THE 5-STEP SEQUENTIAL EVALUATION PROCESS

When you apply for Social Security disability or SSI, the law requires that they use a five-step sequential process to determine if you qualify for benefits.

Each step must be determined in order.  If you fail step 1, you do not go on to step 2, etc.  

Here are the 5 steps in the consideration:

1.  Are you now working at substantial gainful activity?  (Are you earning at least $1,180 per month from work activity)?  This is a 2018 number; the amount changes annually.

2.  Do you have a serious and medically determinable impairment?

3.  Do you meet one of Social Security's published listings?  If so, you are approved here.  If not, you go on step 4.  At step 3, however, Social Security must determine what your residual functional limitation is.  In other words, what type of work, if any, are you still capable of doing? 

4.  Are you able to perform any of your past relevant work (meaning, any of the jobs you did during the past 15 years)?

5.  Finally, are there any jobs in the national economy that you can still perform?  This question applies primarily to persons under age 55 (sometimes for persons under 50).  Older workers probably won their case back at step 4.

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So, if you are working full-time you will lose at step 1.  If you don't have a significant medical impairment, you lose at step 2.  If you are still able to perform one of your past jobs, you lose at step 4.  If you aren't able to perform any past work but could perform some other work, you lose at step 5.

Why is all this important?  Because it tells you exactly what kind of chance you have.  Also, it tells your attorney how to prepare and argue your case.  

There are facts in your case that you can't change.  As a friend of mine famously says, "It is what it is."  

However, the one gray area that can be argued about is your residual functional capacity.  How much, and what type, of work are you still able to do?  What do the grid rules dictate in terms of a decision?

Your case will depend (win or lose) on what your functional limitations are.

For example, you can stand and walk at least 6 hours out of an 8 hour day and can lift up to 50 pounds occasionally.  You may be able to perform medium exertion level work.

If you are limited to lifting no more than 10 pounds frequently and up to 20 pounds occasionally, you are limited to work in the light exertion level. 

If you are unable to lift 10 pounds occasionally, you can still perform work at the sedentary level.  Inability to lift even 10 pounds occasionally will prevent even sedentary work.

Lifting isn't the only thing considered.  Among many other important factors will be your ability to sit, stand, walk, bend, reach, grasp, or hold with your hands.  

Mental restrictions are also considered.  You might be found disabled because you can't remember or carry out simple instructions, cannot concentrate or focus long enough to do a job, or have other psychological limitations that won't let you sustain even simple full-time work.

If you're trying to figure out if you have a winnable Social Security case, you may want to speak to an experienced attorney or advocate.  Frankly, it's a little bit like putting together a complicated jig saw puzzle.  There are so many pieces!  Someone who has done this for a long time can give you a lot of guidance and may be able to help win your case.
__________________
The Forsythe Firm
Social Security Counselors
7027 Old Madison Pike NW
Suite 108
Huntsville, AL 35806
CALL US (256) 799-0297

SOCIAL SECURITY JUSTICE - WEBSITE 

 

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"THE HELL OF APPLYING FOR GOVERNMENT BENEFITS"

A couple of years ago Laura Kwerel wrote an article in the Atlantic Monthly titled "The Hell of Applying for Government Benefits."  The link to the article is given below:

https://www.theatlantic.com/politics/archive/2016/06/social-security-administration/486410/ 

Ms. Kwerel had attempted to get Social Security benefits for her daughter.  She describes how the government bureaucracy battled her every step of the way.

Anyone considering applying for Social Security disability or SSI benefits should read this article first.

It explains why there is a huge national industry of lawyers who do nothing but help claimants applying for Social Security and other government benefits.

You may be told that you can do it yourself, you don't need a lawyer.  And while that is technically true, you must be prepared to spend countless hours entangled in frustrating bureaucratic red tape, complications, delays and confusing regulations.  If the system worked the way it ought to, lawyers or advocates would not be required.  But the system doesn't work that way.

The article by Laura Kwerel is sad but fascinating--worth reading by anyone who wants the real story of how difficult it is to deal with Social Security yourself.
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THE FORSYTHE FIRM
Social Security Representation
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
(256) 799-0297
 

HOW SOCIAL SECURITY DISABILITY REALLY WORKS

Each day you work, the US government withholds a portion of your pay, called FICA tax.  This money goes into a special trust fund under your name and Social Security number.  When you retire or become disabled, money can be taken out of this fund to pay you a benefit.  In terms of a disability benefit, SSDI is really a government provided insurance policy against disability.

However, proving that you are disabled according to Social Security's rules can complex and difficult.  Their definition of disability is almost impossibly strict.  You may need legal assistance to prove "disability according to our rules" and get a benefit.

If you are under age 50, the standard for being disabled is:  You are not medically able to perform any full-time job that exists in the United States.  That includes unskilled sedentary jobs like ticket taker, parking garage attendant, etc., which usually pay minimum wage.

  The maximum benefit can be around $3,000 per month.  Your actual benefit will depend on your age and your average annual earnings.  If approved, you will also become eligible for Medicare insurance but must wait 29 months (from the beginning of disability) for Medicare coverage to begin.  Children or other dependents may also get a monthly benefit.

HOW TO FILE AND GET BENEFITS

1.  You file an application for disability benefits--a group of complicated forms consisting of about 200 questions.  You may file by going to a Social Security office (expect a long wait), by calling the Social Security office, or by getting an attorney or disability advocate to help you file.

Unless your medical case is very compelling and clear cut, there is a high probability that you will be denied on the first try.  Denials occur with almost three-fourths of applications in Alabama.

However, a denial is par-for-the-course.  It's not the end, just the beginning.  If you are denied, you are ready for Step 2 in the process, which most people will follow through with.  If you don't, you lose.

2.  You file a written appeal of your denial within 60 days.  This sends your case back to the Disability Determination Service or DDS--the agency that denied you in the first place.  The same agency, but a different person, will review your application again.  Alas, they issue a second denial in about 95 percent of cases at this level.  But you must do this to get to the next step.

3.  You appeal again and ask for a hearing before a US Administrative Law Judge (ALJ). 

A successful appeal hearing requires that someone do the following prior to the hearing:

• Obtain all medical records
• Read and analyze all the medical records
• Develop a strategy for meeting the regulations
• Determine if you meet a Listing or grid rule.
• Give the judge a written summary of the case (a brief)
• Prepare you, the claimant, for what to expect at the hearing
  
• Prepare to present the case in a clear, succinct manner to the judge.
  
• Prepare to question Social Secrity's experts who will testify at the hearing.
  
• Address any post hearing problems or requirements that come up.

View of a Typical Social Security Hearing

Your odds of winning at the hearing are much higher than they were with the original application, especially if the appeal is well prepared.  An attorney or representative who is experienced with Social Security cases will know how to prepare the case for the best chance to win your benefits.

You will not pay your representative any money upfront.  All work with be done on contingency.  A fee will become payable only if you win and only if you receive past due benefits. When that happens, the administrative law judge will authorize Social Security to withhold a small portion of your past due benefit to pay the representative directly.  All fees must be approved by the same judge who approved your benefits.  You are protected against high or unreasonable fees.

WHERE DO I START?

The easiest place to start is calling an experienced advocate who has handled hundreds of Social Security cases.  Often, a 15-minute phone call can analyze your case and give you a lot of direction on how to proceed.  If the representative believes that your cases has merit, he or she can help you file the paperwork for the next step. 

We think using a local representative is better.  Why deal with someone a thousand miles away?  Why go through a large, distant "call center" when you could call your representative directly, right here in Huntsville?
______________
Charles W. Forsythe
Social Security Disability Representation
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL  (256) 799-0297 

  https://forsythefirm.wixsite.com/website

SOCIAL SECURITY EXERTION LEVELS: WHY THEY MATTER

One of the big things a Social Security decision maker must do is determine the claimant's capacity to perform different levels of work.  In other words, can he perform very light work or harder work?

Social Security considers 5 levels of work.

Very Heavy work.  This is very physical work which may require lifting 100 pounds or more.  Very few people can perform this work for 8 hours per day.

Heavy Work.  This requires lifting more than 50 pounds regularly and up to 100 pounds occasionally.

Medium Work requires lifting at least 25 pounds frequently and up to 50 pounds occasionally.

Light Work would require lifting more than 10 pounds frequently but no more than about 25 pounds occasionally.

Sedentary Work is the easiest.  It can be performed mostly from a seated position and may require standing/walking for only about 2 hours per day.  Sedentary work only requires lifting up to 10 pounds occasionally.

WHO DECIDES A CLAIMANT'S CAPACITY?

In a hearing, the administrative law judge will decide how much capacity the claimant has.  This is based primarily on a review of the medical records, although claimant testimony is taken into account IF supported by the medical record.

A doctor may provide his or her opinion about capacity.  That's why a claimant's attorney/representative may provide a form for the claimant's doctor to complete.  The form will ask about the patient's ability to sit, stand, walk, bend, kneel, lift, etc.  The purpose of this form is to help Social Security properly determine how much capacity for work the claimant has, in spite of his/her impairments.

WHAT IS THE REQUIRED STANDARD FOR APPROVAL?

If under the age of 50, claimants must show that they are restricted to less than sedentary work capacity.  In other words, they are not able to sit at least 6 hours out of an 8-hour day, to stand/walk at least 2 hours per 8-hour day, and cannot lift at least 10 pounds occasionally. This is why it is so difficult to get approved if you are below age 50.

Who Can Evaluate Your Case and Determine the Strength of Your Disability Claim?

An experienced attorney or disability advocate can review your claim and evaluate whether you meet the basic requirements of Social Security disability.

P.S.  If there are restrictions from mental impairments (depression, PTSD, anxiety, etc.), these are evaluated independent of exertion restrictions. 

WHY YOU NEED RECORDS FROM YOUR OWN DOCTOR?

In Social Security disability claims, it is infinitely better to have medical records from your own doctor(s).  

Decision makers want to see at least 12 months of recent medical treatment.  In cases where this treatment doesn't exist, Social Security may send you for a special consultative examination (CE), performed by a doctor under contract with Social Security to furnish these exams.

Maybe a  CE is better than no evidence at all, maybe not.  My experience is that consultative exams usually do not help get claims approved.

There are some things that your own doctor can provide that a consulting doctor cannot:

•   History of treatment; what has worked, what hasn't.
•  Medications and therapy that has been tried.
•  Response to treatment.
•  Prognosis - What course is your illness likely to take?
•  Opinion with regard to your physical/mental limitations.

If I had to list the Number One factor that helps claimants get approved for disability benefits, it would be an adequate medical record.  

Here are some further suggestions as you seek medical treatment, with regard to how the treatment may affect your chances with Social Security:

• Try to see a physician (MD or DO), or a Physician's Assistant (PA), as opposed to a nurse practitioner.  
• Follow doctor's orders (treatment plan) as closely as possible.
• Try to see your primary care doctor at least twice a year.
• Seek a specialist if you have a condition that requires it (for example, a cardiologist, orthopedic specialist, neurologist, etc.).
• If possible, get imaging studies or laboratory testing to verify the diagnosis and severity of your condition.  An MRI, CT scan or even a simple X-ray, in some cases, may be good as gold.

Remember, it's not about what a claimant says; it's about what he/she can PROVE.  So, one of the best things you can do is to see your doctor(s) regularly and get as much treatment and investigation of your medical condition as possible.
________________
Charles W. Forsythe
The Forsythe Firm
Social Security Disability Represention
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"

FREE CONSULTATIONS:  (256) 799-0297

 
SOCIAL SECURITY JUSTICE 
 

DDS: THE DISABILITY DENIAL SERVICE. GET OUT OF THERE!

The official name for DDS is the Disability Determination Service.  But attorneys refer to them as the "Disability Denial Service."  That's because they deny such a huge percentage of claims at the initial, application level.  Their award rates are dismal.

DDS is the state agency which makes the initial decision on Social Security disability applications.  They will order your medical records, review them, determine if they support your claim and issue a decision.  There is a 75 percent chance you will be denied by this state agency.

By filing an appeal on the denial, however, you move your claim away from the state level and into the federal arena.  The appeal puts you in the Office of Hearings and Appeal, a strictly federal agency within Social Security.  It's a more productive place to be, although the waiting time can be quite lengthy (down to about 6 or 7 months now, less than it has been).

The appeal heads your claim toward a hearing with a US Administrative law judge. There are two advantages to the appeal forum vs. the application forum at DDS:

1.  You get an in-person hearing with a judge.**
2.  You get to take your attorney/representative to the hearing.

A vigorous appeal can be your best chance to get paid.  

Get a good representative for your appeal.  You will pay nothing unless you win and all fees are regulated by the Social Security Administration.

** Since the COVID-19 pandemic, all hearings are held via telephone conference call.  But your attorney can be on the line with you and ask the same questions.  No one knows when in-person hearings will resume.

___________
Charles W. Forsythe
Social Security Representation
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH. (256) 799-0297

Serving all of North Alabama and Middle Tennessee

https://forsythefirm.wixsite.com/website