Roughly 4 out of 10 denials for disability benefits are just plain wrong. They will be reversed and paid when they reach an administrative law judge. The problem is, too many people fail to appeal.
If your disability claim was denied, what should you do? Take the following steps immediately. There's a 60 day deadline.
1. File for Reconsideration. This is the first appeal and it does not take you before a judge. But it's the required first step. Social Security will review their decision to see if they can approve your benefits. (Most of the time they will not).
2. File another Appeal and ask for a hearing. This will take you before an administrative law judge for a personal hearing. You will typically wait a few months for your hearing. This gives you time to prepare.
3. Consider Getting an Advocate or Representative. The hearing is your absolute best chance to be approved. It only happens once. To have the best chance, get professional representation. It won't cost you a cent unless two things happen:
- Your case is approved, and
- You receive back payments
You will be able to sit down with an advocate who understands Social Security disability and discuss your case with no cost, no obligation. If you are comfortable with the advocate, you may hire him or her to represent you. If not, you may talk to another one.
I usually speak to potential new clients for a few minutes over the phone when they call my office. Then, we may set up an in-the-office appointment here in Huntsville for a further consultation. The potential client has an opportunity to ask me questions, get detailed information, hear my view of the case, etc. If we agree to work together, I get started on the case right away.
Everyone makes mistakes. Making a mistake on your Social Security disability claim, however, can cost you tens of thousands of dollars and endless delay in getting benefits.
Here are some of the mistakes we see on disability claims that should be avoided at all costs:
1. Missing Deadlines. Social Security is a very slow system and we all get tired of waiting on them. However, if you miss a deadline, the system can be very unforgiving. For example, if you fail to file an appeal within the required deadline, your right to appeal dies and the denial becomes the final decision for that filing.
2. Improper Forms. There are more forms in a disability application than most people have ever dealt with in their entire lives. The forms are confusing and complex. Incorrect or incomplete forms become evidence in your case and follow you for months or years, even into the appeal process.
3. Not Asking Your Doctor for Help. Your doctor can be very influential and a great ally. Talk to him or her. Ask if the doctor will support your disability claim. A detailed Residual Functional Capacity report by the doctor can go a long way toward getting your application approved.
4. Failure to Appeal. Over 75 percent of disability applications are denied. That's right, about 3 out of 4 will be denied. Many of these denials are mistakes. Mistakes get corrected in the appeal process. Yet, we see individuals who give up without appealing their denials. Most of the approved claims we see today are the result of the appeal process, not the application process. By all means, appeal.
5. Not Getting an Attorney/Advocate. There are 2 powerful reasons why you should get an advocate:
A. It costs you nothing unless you win.
B. Represented claimants are much more likely to win than those who are unrepresented.
Having a plan or strategy is very important to winning your Social Security disability appeal.
Judges
have very limited time to spend on a case. They are required to issue
up to 700 decision a year, or over 50 per month. One case may have
thousands of pages of medical records and other documents to review.
Your attorney or representative can help the judge, and your chance of
winning, by pointing out what the judge needs to know.
- Is this claimant insured for benefits?
- What kind of past work did the claimant do?
- Does he or she meet a Listing or grid rule?
- Are there any transferable skills?
- Does the medical record support the alleged onset date? If so, where?
These are things the judge must know to decide the claim.
A
good representative will read and analyze the medical records, which
are the foundation of every case. The important evidence will be
pointed out to the judge. Are there MRIs or imaging studies to prove
the alleged impairments? Where can they be found quickly?
Do
any of the treating doctors provide an opinion on the claimant's
ability to perform work-like activities? How do these opinions limit
the claimant's residual functional capacity?
Then
we come to the claimant's testimony. It's very important that the
claimant has been prepared and knows what to expect--and how to answer.
The testimony should match up with what the doctors say in the records.
Award
rates among Social Security judges are lower now than at any time in
the past 30 years. A lot of things have to line up and make sense for
the judge.
I
always provide the judge with a pre-hearing brief. That means that I
give her a step-by-step view of the case and why the federal regulations
allow benefits to be paid. The brief condenses hundreds (or thousands)
of pages of medical evidence into 3 or 4 pages that can be read in
about five minutes. So, I try to help the judge make efficient use of
his/her time.
A
lot of times I can answer difficult or technical questions for the
judge. This can also help to get a favorable decision out more quickly.
It's
risky to walk into a hearing and just hope for the best. Those kind of
hearings often don't go well for the claimant. It's much better to
have a legal roadmap of where you want to go and how to get there.
That's worth paying the attorney/representative a fee when your case is
successful.
So,
talk to a representative early in the process. I think most people who
appoint me to represent them decide after just a few minutes that I can
add value to their case. I have to think so, too, or I won't take the
case. The best of all worlds is when the claimant and representative
work well together as a team.
______________
Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike NW, Site 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL (256) 799-0297
https://forsythefirm.wixsite.com/website
Most
Alabama workers are covered by Social Security disability because they
pay FICA withholding tax out of every paycheck. This provides coverage
against long term disability and loss of income.
However,
Social Security can be difficult to deal with and there are complex
rules that must be met before they will part with any money. It can
take anywhere from 4 months to 4 years to get approved.
Here
is the sticky part. Social Security will often agree that you cannot
perform the work you once did. However, they will say that you can
still perform some jobs which exist in the national economy.
These jobs are often unskilled minimum wage jobs, such as hand packager,
inspector or copy colater. It doesn't matter that you can't actually find one of these jobs.
If you
file an application and are denied (as up to 75% are), you have 60 days
to file an appeal. The appeal puts you in line for a hearing before a
US administrative law judge (ALJ), who can review your case and give you
a new decision. Your odds before the judge are much better, especially
if you are represented by counsel who understands the system and how to
navigate it.
HOW CAN YOU PAY FOR EXPENSIVE LEGAL COUNSEL?
You
don't have to. Social Security forbids an attorney or representative
to charge you any fee unless your case is decided in your favor and
results in back payments. In that case, Social Security will withhold a
small portion of your back pay and pay the legal fee directly. You
keep most of your back pay and 100 percent of your monthly benefits.
If
you need help with a Social Security disability application or appeal,
please invest 15 minutes in a phone call to our firm for a free initial
consultation. We never ask you for money and our experienced disability
advocates have been handling cases like yours for over a decade.
_________
THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL (256) 799-0297
SOCIAL SECURITY JUSTICE WEBSITE
At step 3 of the sequential process, Social Security must determine your "residual functional capacity," or RFC, they call it. This is basically the maximum you can do in terms of work-related activities--such as sitting, standing, bending, lifting, reaching, etc. For mental impairments, it judges ability to concentrate, remember, understand and follow simple instructions, etc. The judge will normally use one of two methods to determine your RFC:
1. He/she may plow through your medical records and simply make up an RFC, which is rather arbitrary. This is scary and unless the claimant has a devastating health condition, often leads to a denial. Bad idea
2. The judge may look back at the RFC used by the state agency that originally denied your claim and use the same RFC at the hearing. Since this RFC got your claim denied in the first place, it will get you denied again at the hearing. Also a bad idea.
So, what's the alternative? The better idea is for you or your attorney/advocate to give the judge a valid residual functional capacity, so he/she does not rely on either 1 or 2 above. In other words, provide your own RFC.
How do you get this residual functional capacity? It has to come from one of your treating doctors. The form I use is called a "Medical Source Statement" or MSS for short. The MSS form should be customized to fit the claimant's particular impairments. For example, if the impairment is fibromyalgia, the MSS form should be tailored to that particular ailment. If the impairment is mental--such as depression or PTSD, there is another form for that. I often customize my own forms to fit the claimant's particular symptoms, such as pain, fatigue, lack of concentration, poor memory, etc.
IMPORTANT: Social Security will not ask for or obtain this form from your doctor. An RFC is not part of the doctor's routine medical records. It's up to each claimant or attorney to provide this form to the doctor, ask for it to be completed, then submit to Social Security before the hearing takes place.
The use of a properly completed and appropriately customized RFC/MSS form can make a vast difference in the outcome of a Social Security disability case at hearing. In fact, it may be the key piece of evidence and may be given "controlling weight" in the judge's decision.
CAUTION: Do not make the following mistakes in regard to the RFC/MSS form:
A) Do not assume Social Security will have this done, or that the Social Security doctor who examined you will fill out this form. Even if he does (very unlikely), it will not help you--guaranteed. It needs to come from YOUR doctor.
B) Never assume that the RFC is part of your doctor's routine medical records. It never is.
C) Do not get the RFC/MSS form completed by a nurse practitioner (CRNP), chiropractor, therapist, counselor or anyone besides a licensed Medical Doctor (MD or DO), or a licensed psychologist (Ph.D. or Psy.D) for mental issues. If you have a vision impairment, a licensed optometrist can complete the form--but only with regard to vision problems. Not all medical professionals are considered "acceptable medical sources" by Social Security. Doctors (MD or DO) are acceptable. So are licensed psychologists (Ph.D. or Psy.D)--but NOT therapists, counselors, social workers, nurse practitioners, chiropractors, etc.
Summarizing. The following professionals may sign your RFC/MSS form:
- Doctor of Medicine (MD) or Doctor of Osteopathy (DO). This includes psychiatrists, who hold MD degrees.
- Licensed psychologist holding either the Ph.D. or Psy.D (doctorate) degree and properly licensed by the state.
- Licensed optometrist for vision problems only.
I try to never go to court without a supporting medical source statement form the doctor. I find that most of my winning cases include a treating doctor's RFC.
Here are basic guidelines that may give you an idea if you can qualify?
- Are you now off work because of a severe impairment? (If still working at substantial gainful activity, you will not be approved).*
- Have you been unable to work for at least 12 consecutive months, or do you expect to be unable to work for at least 12 months? (Short term disability is not covered by SSDI).
- Have you worked at least 5 years out of the most recent 10-year period? Most people need at least 40 quarters of covered work to be eligible. Exceptions apply to very young workers who aren't old enough to meet this rule.
- Is there objective medical evidence of a severe physical and/or mental impairment? In other words, can we get medical records from doctors, hospitals or other healthcare providers to document your medical condition(s)? Objective evidence is a must for a successful claim.
If you answered YES to all these questions, you may have a solid disability claim. Beware that up to 80 percent of claims are initially denied and require an appeal to win. Don't give up if you get denied. Many of the denials are actually wrong and can be overturned on appeal. We tell our clients to expect an appeal: it's part of the process, the rule, not the exception.
____________
* In 2018, substantial gainful activity refers to work in which a person earns at least $1,180 per month before tax. This amount changes slightly from year to year. It refers only to income derived from work, including self-employment income.
Psychological or mental disorders certainly affect an individual's ability to work. A great many disability claims boil down to a person's ability to consistently perform the mental tasks of work. So, Social Security does pay for severe psychological impairments--such as depression, PTSD, panic disorders, schizophrenia, anxiety, etc.
DOCUMENTATION. My experience tells me that mental impairments need special documentation and evidence. First, there needs to be a history of treatment by a mental health professional, either a psychiatrist or licensed clinical psychologist. (Nurse practitioners are not helpful with Social Security claims). Second, the patient must be compliant with recommended treatment. Third, the doctor needs to provide a statement detailing how the patient is restricted in the ability to perform specific work-related activities.
Problems that often arise with this type of claim:
- There hasn't been enough work history, or not enough recent work, for the required quarters of coverage. The claimant is "not insured" by Social Security.
- The claimant has little or no medical treatment for mental disorders.
- The claimant has had some medical treatment but is not non-compliant (refuses or neglects to make medications, does not follow up with doctors appointments, etc.).
- There has been some medical treatment but not by a mental health professional--often a nurse practitioner has been used, which Social Security does not recognize as an 'acceptable medical source.' Even family practice doctors don't get the same weight as a psychiatrist or licensed psychologist.
- A history of drug or alcohol abuse can hurt any claim, especially one based on mental health issues.
It isn't enough for the claimant to tell the judge that he is depressed, despondent, nervous or has panic attacks. There must be medical evidence of severe, ongoing and chronic problems that would convince a judge that the claimant cannot work.
All this having been said, many of our clients do get approved for disability based on mental disorders. Before we move forward with a case, we evaluate the available evidence and try to get more evidence when appropriate.
