Am I Disabled?

A claimant is a person who has applied for Social Security disability or SSI disability benefits.  Many claimants are denied benefits even though they are eligible for them.  The fact that you have been denied once or even twice does not mean that your claim does not have merit.  All the claimants that we help get benefits have been denied at least once before coming to us for help.

Social Security Disability (Title II or SSD) benefits, are part of the entitlement program which also includes Social Security Retirement benefits.  You may be eligible for Title II benefits prior to your retirement age if you are determined disabled.  The monthly benefit amount varies, depending upon your work history and how much you contributed in Social Security taxes. You must be determined disabled, and you must be “insured” for benefits. Usually you are “insured” for Title II benefits if you have worked and paid taxes for 5 of the 10 years prior to the onset of your disability.

Supplemental Security Income (SSI) is a federal welfare program, available to anyone who is determined disabled and meets the income and resources criteria.  No work history is required, but you must have little or no income or financial resources. The SSI benefit amount in 2007 in Washington is $623/month.  The disability rules are the same for SSI Disability (SSID) and Social Security Disability (SSD).

Proving Disability:  Many claimants are turned down because they have not established that they are “disabled” as that term is defined by the Social Security Administration (SSA). SSD and SSI claims are resolved using a variety of rules which have been established by Congress and SSA, as interpreted by the federal courts.  These rules establish the framework within which the unique facts of each individual person are adjudicated.

As a claimant, you must produce evidence of a medical or mental health condition that causes symptoms and limitations. You must establish that these limitations prevent you from performing all jobs, for at least 12 consecutive months.  The discussion below is set out so that you can see some of the issues confronted in this process. It is not intended as a substitute for experienced, qualified representation.

Credibility:  Although every claim is factually different, there are common issues running through many disability claims.  The single most important factor in resolving a Social Security disability claim is the credibility of the claimant.

Credibility is usually determined by comparing subjective complaints (a person’s symptoms and their understanding of their limitations) with the medical evidence which helps explain why the symptoms and limitations are present.  For this reason, it is extremely important that you pursue treatment for all of the medical and/or mental health conditions which might cause limitations. It is also important, of course, to comply with the treatment recommendations of your medical providers and to be open and honest when discussing symptoms and limitations with your doctors.

It is often helpful for lay witnesses (for example, spouses, significant others, friends, former employers, etc) to testify or provide sworn statements about their knowledge of your abilities and limitations. This can help bolster your credibility and give the SSA a better idea of what it is like to walk in your shoes.

Medical Opinion:  It has been our experience that the relationship between a claimant and his or her doctors is very important to the outcome of the disability claim.  It is important that your treating physician believes that you are honestly reporting your symptoms for treatment purposes and are complying in good faith with treatment recommendations. This includes taking medication as prescribed, engaging in physical therapy and home exercise programs, and attending counseling sessions, where appropriate. 

When a doctor, therapist, PA-C, or ARNP knows a patient well, believes the patient is honestly reporting his or her symptoms, and is trying hard to get better, the medical provider is usually supportive of the disability claim.  And there is no better evidence in a disability claim than the well-reasoned opinion of a medical provider.

It is not uncommon for disability claimants to have medical insurance issues that make it very difficult to maintain treating relationships and to follow treatment recommendations. For example, you might not be able to see a doctor because you do not have medical insurance.  Or you might not be able to obtain the medications that have been prescribed for your conditions.  Our staff is familiar with medical insurance issues, especially available state and federal medical assistance programs, and we may be able to help you obtain necessary medical coverage. 

Sometimes it is necessary to schedule a physical or psychological evaluation with a non-treating physician or psychologist in order to fully describe a claimant’s abilities and limitations. 

The Disability Adjudication Process: 

In more than 50% of the cases, disability is obvious, and the disability claim is approved at the Initial administrative level by SSA. In those cases, you do not need an attorney to help you establish disability. For that reason, if you believe you are disabled, you should go ahead and apply for benefits. The staff at SSA are usually quite pleasant and helpful and will process the paperwork you need to apply.

If your claim is denied at the Initial level by SSA, you will need to file a Request for Reconsideration, and you should consider speaking with an attorney at this point. Reconsideration involves a review by the same agency that turned down your claim at the Initial level, but it is done by a different adjudicator and all new evidence will be considered.  Approval of benefits at the Recon level occurs in approximately 15% of the cases. 
 
If your claim is denied at the Recon level, you need to file a Request for Hearing.  At this level of appeal, the assistance of a lawyer is beneficial. You will appear before an Administrative Law Judge (ALJ) from the Office of Disability Adjudication & Review (ODAR), who will hear your testimony about your symptoms and limitations. Your attorney can help you develop the medical evidence, prepare you for your hearing, and be there with you to ensure that all the relevant information is in the record.  Every person is different, every ALJ is different, and every hearing has different issues depending on themedical evidence and the other relevant facts.  Vocational experts and medical experts are often called to give testimony by the ALJ.  Your lawyer will cross examine these experts when their testimony is adverse to your claim, and try to create the strongest possible record in your case so that the ALJ will enter a decision allowing benefits.  If benefits are denied, the record made at the hearing will provide the basis for any further appeal. 

Most of our clients win their cases at the Hearing level.

If your claim is denied by an ALJ after a hearing, there are other levels of appeal. The last level of administrative appeal is a Request for Review with the Appeals Council, which is located in Falls Church, Virginia. This does not involve a hearing, but focuses on the ALJ’s application of the law to the facts of your case. It is highly recommended that you have a lawyer help you with this level of appeal, although unless the lawyer was involved at the hearing level his or her effectiveness at the Appeals Council level will be reduced.  This is because the record will have already been developed, and it is hard to undo what has already been done.

If the Appeals Council declines review, you can file a Complaint in Federal District Court, and have the SSA’s decision reviewed by a District Court Judge. If the District Court upholds the SSA’s decision, you have the right to appeal to the Ninth Circuit Court of Appeals.  We do appeal work at the Federal District Court level, both for our existing clients and for other claimants whose attorneys limit their practice to administrative work.

Should You Call Us?

We start with the premise that if you have not been working because of a medical condition, and you truly believe that you are disabled, you are probably eligible to receive Social Security disability or SSI disability benefits. For this reason, we are always willing to sit down with you and hear your story, without charge. If your application for benefits has been denied by the SSA, please give us a call to discuss the merits of your claim.  Because you have only 60 days to appeal the adverse administrative decision, you should call us as soon as possible after you get an adverse decision.  If we appeal the claim for you, we can obtain a copy of your SSA file before it is sent to the Seattle Office of Adjudicative Review.  If you appeal before you hire us, we can obtain a copy of your file from ODAR but it takes more time for us to obtain access to those records.  You need to make certain that the 60 day appeal period does not run out, because if it does it is difficult and sometimes impossible to reopen your prior claim.

What We Can Do For You

If you meet with us and decide to retain us to help you with your claim, we will advise you regarding the specific issues presented by your claim, answer any questions you have, assess the merits of your claim, and provide representation based on that assessment.

Once we have had an opportunity to meet with you and review the medical and other evidence in your SSA file, Jeanette or Steve will be able to answer any questions you have about specific issues in your case.  It is currently taking an average of 22 months for the administrative hearing to be scheduled! 

In some cases it is possible to obtain a favorable decision on-the-record without the need for (and delay of) an administrative hearing.  In these cases disability must be clearly established by the written medical evidence alone.  If there are factual issues that have to be resolved, especially issues of credibility, or if the medical evidence is not conclusive, the case must proceed to a hearing. Jeanette and Steve analyze the evidence of record and prepare requests for a decision on-the-record where appropriate.  In 2006 approximately 25% of our cases were resolved in this way.  The chances of winning an approval on-the-record are increased if you are over the age of 50, have a good work record prior to the onset of disability, and your treating physician is supportive of your disability claim. If your denial at the reconsideration level was a “durational denial”, the possibility of receiving an on-the-record decision is also more likely. We can discuss this possible resolution of your claim with you after the SSA file has been received and reviewed by Steve or Jeanette.

If you pursue all needed treatment available and follow treatment recommendations, you may be able to successfully return to work before the hearing is held.  If this occurs, the administrative law judge may order a closed period of disability (i.e. benefits for the period of time you were unable to work) even though you may have already returned to work. Such work can also be considered a trial work period and/or unsuccessful work attempt. The rules regarding attempts to return to work are complicated and it is best to seek legal advice before attempting a return to work while your claim is pending, especially during the first year of your disability.

You probably have questions about the disability adjudication process and the merits of your case.  Jeanette and Steve can answer some of these questions for you when you meet with us to discuss possible representation.  After we have an opportunity to review the information in your SSA file, we will be able to answer questions about the merits of your claim and what action you can take to help us present your claim at the hearing level. 

If you meet with us and decide not to hire us, you will not have to pay us any money.  If we are successful in establishing that you are disabled, you will likely receive a lump-sum back-award for the months you were waiting. Our fee is 25% of this back award, with a fee cap of $5,300.  If you hire us and we help you get a favorable decision, but you do not believe the fee we are charging you is fair, you can request that SSA review the fee to determine if it is fair.

In addition to representing you before the SSA, ODAR and/or the Courts, we will do our best to help you understand the process and factors affecting your disability determination. Our goal is to hear your health concerns and to help you through this complex and sometimes bewildering process.

Jeanette and Steve are blessed to work with an experienced and compassionate staff.  While we strive to provide the highest quality of legal representation to our clients, we try to do so in a relaxed and informal atmosphere.  Many of our clients tell us that they were anxious to go to a lawyers’ office, but that they felt comfortable talking with our staff and meeting with Jeanette or Steve.  If you think you might want to meet with us to discuss our possible representation of you with your claim, call us at 360-786-8276 or 1-800-640-8295.