7 WAYS SOCIAL SECURITY CAN DENY YOUR DISABILITY CLAIM

 What are some ways Social Security finds to deny disability benefits?  Here are the common ones:

1.  Finding that you do not meet or equal a Listing.  A Listing is a severe medical impairment listed in the "Blue Book."  It is very difficult to meet all the requirements of a Listing.  So, failing to meet a Listing will prevent an automatic approval based on the most severe medical conditions.

2.  Finding that you do not meet a medical-vocational rule or "grid rule."  These rules apply to persons age 50 and over who have physical impairments and often dictate a finding of disabled.  Persons under 50 cannot qualify under a grid rule, neither can individuals who only have mental (non-exertional) disabilities.

3.  Finding that there exist jobs in the US economy that the claimant could perform, given his/her age, education, work history and functional capacity.  For claimants under the age of 50, this will often cause a denial.

4.  Finding that the claimant has worked at substantial gainful activity (SGA) after applying for disability benefits.   Social Security has a hard, fast rule with no exceptions:  a claimant must not work while getting disability benefits.  In 2021, they will find that a person is employed at substantial gainful activity if his/her gross earnings are at least $1,310 per month.  This applies to self-employment, also.

5.  Finding that the claimant can perform one or more past jobs.  Only jobs within the past 15 years are considered for this.

6.  Finding that the claimant stopped working for some reason other than disability.  For example, if a person stops working due to retirement, getting a pension, moving, getting laid off or fired, the employer closed the business, transportation problems or staying home to take care of a sick family member--these will usually not be approved.  The reason is simple:  none of those things are disabling conditions that prevent the physical and/or mental ability to work.  They are not covered by the Social Security Act.

7.  Finding that the claimant does not have a medically determinable impairment which (a) has lasted at least 12 straight months, (b) is medically expected to last at least 12 straight months, OR is expected to end in death.  Social Security will not pay for a short term disability (one that lasts less than 12 straight months). A claimant must have a period of 12 months during which he/she is not able to work at substantial gainful activity (earning at least $1,310 per month).

8.  Finding that the claimant has not worked enough (or recently enough) to have insured status under the Social Security Act.  You need to have earned "work credits" before being covered under the Social Security Act.  The usual rule is:  You must have worked at least 5 years out of the most recent ten-year period.  This work does not necessarily have to be full-time.* But you must have accumulated the minimum work credits.  Most people need 20 work credits to be covered by Social Security disability.

*In 2021, you earn 1 work credit by earning at least $1,470 in a calendar quarter.  In 2020, that number was $1,410 per quarter.  The amount of earnings required for 1 quarter of credit increase year by year.

 

WHAT IS "RECONSIDERATION" AND IS IT USEFUL?

 "Reconsideration" is for disability claims that have been denied.  It is the first appeal after the Social Security disability application is denied.

What happens at "Reconsideration"?

Your case goes back to the state's Disability Determination Service (DDS), which is the agency that denied it in the first place.  Supposedly, a different person re-examines the case and double checks to make sure no errors were made.  In about 90 percent of all cases the claim is rubber stamped "DENIED" and returned unpaid.

Is the process useful?  It is not useful to me and I cannot think of many of my clients it has helped.  As stated, it is pretty much a rubber stamp denial service.  We in the profession often refer to DDS as the "Disability Denial Service."

That is why I always use the word "Reconsideration" in quotation marks.

In theory, "Reconsideration" could be useful in a situation where the claimant has had a sudden worsening of his/her medical condition after being denied.  For example, if the claimant recently had a heart attack, stroke or dramatic decrease in the ability to function--Social Security might pick this up during "Reconsideration" and make a favorable decision.  But this is generally not the case.

The real effect of "Reconsideration" is to delay the process.  In Alabama, it delays the case no more than about 100 days.  On the other hand, in Tennessee a claimant can languish in "Reconsideration" for a year--or more.  Many claimants die before Tennessee can move them out of this process.

Are the claimants denied at "Reconsideration" really ineligible for disability benefits?  Not according to the administrative law judges who later hear their cases.  Among the cases that go on to a hearing, 59 percent are approved for their benefits.

So, at best, the "Reconsideration" process has.....

• A failure rate of about 59 percent.  It makes the wrong decision almost 6 times out of 10.  (Any employee with that error rate would be fired).
  

• Delays of about 90 to 110 days, holding the claimant back from a hearing that could get them approved. 

"Reconsideration" is useful for the government, however.  It saves the US government billions of dollars because thousands of claimants either die or drop their appeals after "Reconsideration."

Therefore, it's hard for me to see this program as anything more than a stalling or delaying tactic to save the government money.

Can it be skipped?  No.  You cannot take a denied claim to a judge unless you have been denied at "Reconsideration."

So the appeal steps are:

1. Denial
2. Reconsideration
3. Hearing
4. Appeals Council
5. Lawsuit in Federal District Court
   

WHAT QUESTIONS WILL LAWYERS ASK, AND WHY?

 You probably want to get a lawyer to help you get Social Security disability benefits.  You need to understand that lawyers cannot charge you any fee unless you win your claim and recover past due benefits.  Therefore, lawyers are careful to only take cases that they believe have a reasonable chance of success.  Otherwise, the lawyer will starve to death.

So, lawyers are going to evaluate your claim to see how solid it is.  To do so, they will ask you several questions.  

Here are the questions:

1.  Are you now working?  If so, how much do you earn?  REASON:  By law, a claimant cannot be working and earning wages of $1,310 per month or more and still qualify for an SSDI benefit.  So, full-time work, or work above the $1,310 per month threshold disqualifies an individual for SSDI, no matter sick he is.

2.  When is the date you stopped working?  WHY?  Your "alleged onset date" may be back-dated to recover more back pay. This is the date you claim to have first become unable to work.  You may qualify for past due benefits back to this point.  But you cannot qualify for a benefit prior to the date you stopped working at "substantial gainful activity."  For example, if you feel that you became disabled on July 1, 2020 but you continued working until September 1, 2020, you cannot claim a benefit prior to September.

3.  What is your impairment?  Will it keep you out of work for at least 12 straight months?  REASON:  Social Security will only pay for an impairment which has lasted at least 12 straight months, that is expected to last 12 months OR is expected to end in death.  Short term disability is not covered by SSDI rules.

4.  Are you getting medical treatment?  WHY THIS QUESTION?  Because the federal regulations require that disabling impairments must be "medically determinable."  This means that a qualified doctor must perform adequate tests and examinations to determine the nature, severity and probable longevity of your condition(s).  Without medical records, there is no chance to get on disability.

5.  What is your work record over the previous 15 years?  WHY?  There are 2 reasons for getting your detailed work history:

• One, a claimant must have worked enough (and recently enough) to have gained insured status with Social Security.  The general rule is, you should have worked at least 5 years out of the most recent 10 year period.  You must pay in before you can take out.  So, work history helps determine if you are covered by SSDI.
  

• Two, at certain ages a claimant may get approved using a grid rule.  These rules rely heavily on past work experience and whether or not the claimant has transferable skills from previous jobs.  Employment history is very important in trying to evaluate whether a claimant can meet a grid rule.

6.  Has there been any other attorney involved in this case?  WHY?  As a general rule, you don't want more than one attorney or representative on your case.  Many attorneys are reluctant to sign on to a case where another representative has been involved because it can complicate the fee process.  No one wants to win a case and then find that someone else is going to get part (or all) of the fee.  It's a matter of fairness.  Ordinarily, it isn't a good idea to change representatives in the middle of a case.  There might be exceptions, of course.  Certainly if you do make a change, the new attorney needs to be made aware of the former representative from the start.

__________

Need help?  Call the Forsythe Firm in Huntsville.  (256) 799-0297. 

Decades of experience.  Free consultations.  

 

3 REASONS SOCAL SECURITY DENIES DISABILITY CLAIMS

 Social Security denies disability claims for many reasons.  In our decades of practice, here are 3 of the top causes of denial:

3.  The claimant has worked since claiming disability.  This causes a firm Step 1 denial, no questions asked.

2.  Mistakes on the Application.  The "Application" includes these forms, too....

• Work History Report (I've never seen one of these filled out correctly)
• Function Report
• Medical Report

1.  Lack of Objective, hard hitting medical evidence.  Claims simply cannot be paid without objective medical evidence, which includes appropriate lab work, X-rays, MRIs, CAT scans or other  studies.

NEED HELP?  The Forsythe Firm can help with all 3 of the above problems.  We build your case with an eye toward winning.  We will never charge you a fee until you win your claim and recover past due benefits.  Our "contingency fee" agreement says that all our work is FREE until you win.  Any fee we earn is taken out of your back payments.  No Back Pay = No Fee.

Get in touch:  (256) 799-0297.

SOCIAL SECURITY DISABILITY: HOW LONG DOES A CLAIM TAKE?

 A Social Security disability claim involves both the state and federal government.  It is one of the slowest processes that one can imagine.  Here are some expected time frames based on our experience and numbers released by the Social Security Administration.  The steps in the process are shown in order.  Approximate approval rates are given at each step.  Of course, not every claim has to go through all these steps, since you could be approved at any step.

1.  APPLICATION PROCESS.  Approval rate 20 to 25 percent.  This process can take between 4 and 6 months.  

2.  "RECONSIDERATION" PROCESS:  Approval rate less than 10 percent.  This will take between 60 and 90 days in Alabama but may take a year or longer in Tennessee.

3.  HEARING LEVEL APPEAL.  Approval rate about 45 percent on average, higher with an attorney).  This process can take about 6 additional months (after "Reconsideration").

So, an unfortunate claimant who must go through all 3 steps is looking at a year or more to get through the process.  And, no, you cannot receive benefits while enduring the application and appeal processes.  You may be able to recover past due benefits that accrue during the long process, however.

What's the best way to deal with a disability claim?

Get a local attorney/advocate who understands the system, the rules, the evidence and requirements.  Follow this professional's advice.  And don't give up.  Remember that most claims are denied TWICE before they are paid.  

A denial by Social Security doesn't mean that you aren't eligible for benefits; it means that the government is being stubborn and demanding more proof.  For all practical purposes, an Administrative Law Judge (ALJ) has the final say (at the hearing level), although other appeals are possible after the hearing.

 Need help but don't want to pay upfront legal fees?  Call the Forsythe Firm in Huntsville for a FREE consultation.  If we represent your case there will never be a fee or out-of-pocket cost to you until you win and recover past due benefits.  Get in touch:  (256) 799-0297.

WHAT IS THE "5 STEP PROCESS" FOR DECIDING SOCIAL SECURITY DISABILITY?

Decision makers at Social Security are required to use a 5-step sequential process to decide whether a claimant is disabled and entitled to a disability benefit.  The process has 5 steps which must be sequential.  They must start with Step 1 and consider it before moving on to Step 2.  A claim may be denied at any of the 5 steps.

Here are the Steps in order:

STEP 1:   Is the claimant working at Substantial Gainful Activity (SGA)?  In 2021, this means wages or self employment income of at least $1,310 per month (gross).  If so, there is a Step 1 denial here.  If not, we proceed to Step 2.

STEP 2:   Does the claimant have at leas one severe impairment which

• Is medically determinable (supported by objective medical evidence) and
• has lasted at least or is expected to last at least 12 straight months OR to end in death.  If the answer is "Yes," we move on to Step 3.  If not, the case is denied here.
  

 STEP 3:    Does the claimant meet or equal one of the Listings in Social Security's "Blue Book"?

• YES - An award or approval is issued here.
• NO -   The claimant's Residual Functional Capacity (RFC) must be determined before proceeding to Step 4.
  

STEP 4:    Based solely upon the claimant's age, education, past relevant work and Residual Functional Capacity, is the claimant able to perform any of the full-time jobs he/she performed during the most recent 15-year period?

• YES -  A denial is issued here at Step 4.
• NO -    The case moves on to the 5th and final step.

 STEP 5:  Based solely upon the claimant's age, education, past relevant work and Residual Functional Capacity, is there any other work in the national economy that the claimant would be able to do?

• YES - Claim will be denied at Step 5
• NO -   An award will made here

 Most cases will go all the way to STEP 5, and will depend on the question associated with Step 5, "Can the claimant do any other work...?"

This is the framework for all Social Security disability decisions.  The steps may seem cut and dried; however, there is a great deal of legal argument that can and should occur at each step.  Even Step 1 isn't cut and dried.  The claimant may indeed be working but that doesn't always mean working at substantial gainful activity.  And "work" may or may not be "past relevant work," according to the regulations.

To get a free case evaluation at no obligation, call the FORSYTHE FIRM in Huntsville.  (256) 799-0297.

 

 

   

WILL SOCIAL SECURITY PAY YOUR DISABILITY CLAIM IN 2021?

 What are the chances Social Security will pay a disability claim filed in 2021?

Answer:  The odds are poorer than at any time in recent history.

However, there are 7 things to help increase your chances and get your disability claim paid:

1.  Don't waste your time without an attorney.  SSDI claims paid without an attorney are about 31 percent, vs. 60 percent with an attorney.  Concurrent SSI + SSDI claims stand at about 6 percent paid without an attorney and 59 percent paid with one.  No need to say more.

2.  See your doctor before filing.  Social Security law declares that impairments must be "medically determinable."  Get all of your disabling medical conditions verified by your doctor(s), then file Social Security disability.  Without medical evidence, it's totally hopeless.

3.  Sign and return every form that Social Security sends you on time.  Fill out and return any paperwork they send you on time.

4.  If Social Security schedules you to attend one of their examinations, show up 15 minutes early (not just on time):

• Take all your prescriptions medicines with you.
• Cooperate with the examining doctor
• Don't exaggerate symptoms 
• Don't pressure the doctor to say you are "disabled."

5.  Listen to the advice of your attorney-representative.  He or she has been through this a lot more often than you have, so trust professional judgment here.

6.  Do not work at Substantial Gainful Activity after filing your claim.  Your work will be substantial and gainful if you earn wages, salary, tips or self-employment of at least $1,310 per month (gross, before tax).  This will make you ineligible for any Social Security disability or SSI benefit.  (It doesn't matter why you had to work. No exceptions).

7.  Stay off of Unemployment benefits during your disability period.  Unemployment benefits are for workers who are able to work, willing to work, and looking for work.  Social Security is for individuals who cannot work, are not seeking work, and could not work if they found a job.  Social Security will usually refuse to pay a disability benefit to persons who are still in the workforce (receiving unemployment benefits).  

Receiving unemployment checks says to Social Security:  "I am just between jobs, looking for work.  So, I am not disabled."  End of case.