Filing for Social Security Disability

According to most studies, if you file a claim for Social Security Disability (SSD) benefits due to your inability to work because of disability, you have a 60%-70% chance of being denied on your original petition for benefits. Appealing the decision to have your case reviewed by an ALJ, or Administrative Law Judge is always recommended, but even at that level, you have only a 15% chance of having the original decision overturned. In my experience as a legal assistant to an attorney who handled these types of cases, I have found this to be true. I am not saying that it is a lost cause to even try for benefits. Not at all. I just want to make it clear to not take the initial denial personally.

Social Security's site indicates to even be eligible for SSD benefits, you must:

· You must be unable to do any substantial work because of your medical condition(s); and
· Your medical condition(s) must have lasted, or be expected to last, at least 1 year, or be expected to result in your death.

Having your doctor tell you that you are disabled is simply not enough. Often after you file a claim, Social Security will make appointments for you to keep with their own doctors to have your disability evaluated. So in order to be even considered for benefits, you must not be able to do any work right now or any for at least a year. I have seen many wage earners pressured by their own economic situation be forced to return to some type of work, writhing in agony the whole day to put food on the table. Social Security does not care; you have just worked and you are not going to have your claim approved.

The minute a physician tells you that they think you are too disabled to work, file your claim. To do so just delays the adjudication of your case. Some areas of the country face a serious backlog and it can take years (yes, years) to have your case heard by an ALJ if you are denied at your initial claim. I once had a client with brain cancer who was denied. We filed the appeal, of course, but he died in the interim. He was clearly disabled, but yet he did not get benefits, yet I also had clients in my opinion were not worthy of receipt of benefits sail right through and get approved.

On appeal, an ALJ will look at all of the medical records in your case, take testimony of you, your witnesses and any other witnesses they choose to call, which will be listed on your hearing notice. The fact is that the older and less educated you are, the better. The vocational grid, listed as a reference link below (see Table 1), will clearly show that anyone under the age of 55 doesn't have much of a shot. In my experience, it was the older, lesser educated individuals who worked menial jobs that were successful on their appeal. Why? Because they are less employable and getting closer to retirement age anyway. Simply put, Social Security Disability favors this demographic, it is reverse age discrimination! The more educated you are (for instance, even a college diploma, which is becoming the gold standard even for entry level jobs in many sectors) the less likely you will receive benefits. Your education and prior work history has as much to do with your case as your disability.

However, there are things that you can do to help your case run smoothly. Below I am going to highlight them in no particular order:

1. Most people file a claim and receive a denial. The first thing you should do upon receipt of a denial is to file an appeal. Shop for your attorney later. You can, of course, represent yourself if you wish. However, you are more likely to be successful if you obtain legal representation. By filing your appeal immediately instead of waiting until you can speak with an attorney, you do not waste the appeal period and miss the deadline. If you miss the deadline, you have to start all over again with a new claim.

2. Start assembling your medical records, but don't go to unnecessary expense. If you should hire an attorney, they will be able to request your records for you. Social Security records are duplicated at significant savings than any other litigation that you could pursue. You would not think this is the case, but it is. Often with Disability cases, we had ongoing Workers' Compensation cases with the same clients. The fees to obtain records were often twice what they were to get them for a Social Security case. This is because the fees are dictated by law and the doctor can only charge so much for them. This meant that if we needed records, we sent a request indicating that they were needed for Social Security, even if we needed them for both cases. (All medical records obtained in these types of cases are forwarded on to the respective opposing parties, be it Social Security or the opposing counsel for the workers' compensation case anyway.) Even if you don't have any or many of your records, take the time to sit down and compile a comprehensive list of your doctors, any specialists you have seen, any hospitals where you had testing, etc. for the past 15 years. Your attorney will be able to determine which records may or may not be relevant to your case. Try to locate as much information about the doctor or hospital as possible, along with approximate dates. It is much easier to obtain medical records from "Dr. Smith" in "Texas" if we know his first name, office address and phone number, if you have it. This list will also help you determine whether or not Social Security failed to receive any records you may have had them obtain at the start of your claim.

3. Shop for an attorney. Ask around and get a few names. Social Security cases are taken on a contingency basis, so try to ask for a free consultation if you can. If you don't know any attorneys concentrating in this area of the law, call your local bar association in the county where you reside and they should be able to provide you with a few names. Social Security fees are among the most regulated. An attorney can only charge the lesser of 25% of past due benefits, or $4,000 maximum. This fee structure does not include expenses such as for obtaining medical records, travel expenses, express mail or regular mailing fees, etc. Be sure to have the attorney explain in full detail the fee agreement, and if necessary, take it home with you to re-read it. The attorney should be able to give you a ball park figure of the costs that most clients incur.

4. Cooperate fully with your attorney, return any calls to his office and keep him updated with your medical progress. Often this information can be left with his secretary. Even while your case is pending on appeal, any and all medical records obtained will be forwarded to Social Security and will be maintained in your file until your hearing. If at all possible, do not wait until after your hearing has been assigned to request medical records. Often, doctor's offices farm this work out to companies who come in to their offices once a month or so to copy the medical records. These companies bring their own Xerox machines in with them. It can take two months or more to have your records request filled. Therefore, if at all possible, after the initial records request of the doctor, on any future visits you should request a copy of his handwritten notes.

5. Keep a diary. I know, this sounds so high-school, but most people are disabled by pain. They need to take pain medication just to get through the day. You aren't going to remember that on October 24 you were in such pain you didn't get out of bed all day. This isn't something that is going to be on the tip of your tongue at your ALJ hearing either. I have seen at least one case where the diary of the claimant was some of the most compelling evidence that the ALJ reviewed. It was the one thing he kept coming back to question the claimant on and ultimately, the claimant was one of the lucky 15% who successfully appealed and won their case.

6. Keep all appointments. If you cancel your doctor's appointment, you better have a good excuse. You may think that missing appointments will not affect your case much, but it does. Often your missed appointment will appear in your medical records as a note that the patient called to cancel and will reschedule. If you are seriously disabled, you most likely need to see a doctor on a frequent basis. Going months on end without seeing even one physician is a red flag that would indicate that you aren't really disabled. If Social Security schedules an appointment with one of their doctors, make arrangements to attend. If it is unduly burdensome for you to make their on your own, inform your attorney of your circumstances and he will contact someone to make arrangements for you.

7. Don't call your attorney every week to see if he got anything in the mail from Social Security. Social Security will mail you both a copy of any decision or any other important paperwork. If you receive something, please call your attorney, he may not have received it yet. A case can sit inactive for months before any activity is seen on it, so don't be discouraged if it has been a few months since there was any activity on your case. Attorneys generally forward a copy of all correspondence received to their client so if your attorney receives something you will receive a copy in the mail.

Filing for Social Security Disability does not have to be a painfully complicated experience. If you know what to expect and use the tips listed above, your case will run as smoothly as it can. Knowing ahead of time that your case will most likely be denied should cushion the blow if you receive a denial. But don't be discouraged. An appeals process is in place and you should take full advantage of it. Your tax dollars fund this program and if you are truly disabled, you should not hesitate to try to claim what is yours.