THINGS TO DO NOW IF YOU ARE WAITING ON A DISABILITY HEARING

Most claimants must appear before a judge in order to get approved for Social Security disability insurance (SSDI) payments. The process is long, and there are things you should do immediately if you've asked for a disability hearing with Social Security.

1. Sign and return all paperwork they send you. Once a hearing date has been scheduled, you will be sent an "Acknowledgement of Hearing" form. Sign and return this.
2. Respond to any forms, questionnaires or other paper work right away.
3. Get your medical records updated and to the judge's office right away!
4. Consider hiring a disability lawyer who understands the terms, process and procedures of disability hearings. Going to a hearing unrepresented can be disastrous.
5. Be sure you are prepared for your hearing. Know what is going to happen at the hearing, how to answer questions and how to submit new evidence in advance.
    
   Don't wait too long if you're considering hiring an attorney/advocate to represent you. Getting one now doesn't cost any more than getting one later. A top notch Social Security attorney/advocate can be worth his/her weight in gold. An attorney will know what the judge is going to put you through because he or she handles several of these hearings each week or each day. The good news is: you can hire the best Social Security lawyer with no money upfront, and there will never be a fee to pay unless you win your case and it results in getting back pay from Social Security. No risk to you whatsoever! Your attorney isn't paid unless you win, and unless you also recover back pay from the Government.

A Social Security hearing a like an iceberg: you may see a little of it in plain sight, but most of it lies hidden below the surface and out of view. Its the hidden part you should worry about.

EASY WAYS TO GET ON DISABILITY

Individuals often ask, "What is the easiest way to get on disability benefits?"

The real answer is:  There is no easy way.

Social Security makes applying for and getting approved for disability a very difficult, time consuming and frustrating ordeal.

It may be relatively easy to get disability benefits if you.....

1.  Have a terminal illness with less than 1 year to live--

2.  Have one of the 220 catastrophic illnesses listed in the Compassionate Allowance program--

3.  Are blind according to the specific Social Security regulations-- 

4.   Meet or equal a Listing in Social Security's "Blue Book."  This would involve a severe medical impairment with excellent medical documentation.

The truth is, most claimants fight for a long time to get disability benefits approved.  Here are some of the factors that make it a long, difficult fight:

• There's a 5-month waiting period; Social Security does not pay any benefit for the first 5 months of a disability.  That's 5 months after the date disability begins.
  
• A claimant must have a condition that disables him/her for a minimum of 12 straight months, OR will end in death.  There are no short term benefits.
• The proof required of claimants under age 55 is unreasonably difficult.
• If you are able to perform any full-time job, you are not disabled according to the rules.
  
• Around three-fours of all claims are denied initially, usually requiring 2 appeals to have a chance at approval.  This process can take up to 2 years.
  
• Most disability cases end up before an Administrative Law Judge for a hearing.
• Some judges pay as little as 12 percent of cases that come before them at hearings.  Others pay better, but you never know which judge you will get. Going before a judge without a lawyer is the worse idea of your entire life!
  
• Social Security is backlogged and very slow to process applications and appeals, worse since the COVID disaster. (And yes, from a Social Security point of view, it IS a disaster).
• Social Security offices are closed to the public.
• Most employees who process disability applications are "working from home," and impossible to reach.
• It is next to impossible to get a return call from a disability case worker.  You can't call them unless you have his/her personal cell phone number.  they almost never return you call.
  
• The waiting times to hear anything on a Social Security disability claim can be months--even years.
• It does not appear that there is any accountability for Social Security disability employees. They certainly have no time limits on them.
  

Should you still file a claim if you feel you have a disability that is so severe that you can't work?  Yes!  But if you have any idea of a quick, easy claim process, you are probably kidding yourself.

 And while my office has all the work we can do, I must tell you that trying for Social Security disability without an advocate/attorney is a long, long shot.  I am not soliciting new business when I say this; it's simply the truth.

If you commit to fighting for Social Security disability, realize first that it is a long commitment and probably a long legal struggle.  If you give up easily, can't take rejection, or are unwilling to enlist legal assistance--a disability claim can be one of the most frustrating things of your life.  It isn't easy.  It wasn't meant to be.

 

WHAT HAPPENS AFTER A JUDGE MAKES HIS DECISION ON YOUR DISABILITY CASE?

 After your disability hearing the judge will usually take some time to review the claimant's medical records, listen to the recorded testimony and review any other facts about the case.  This review process can take from one week to eight weeks. There are really no time limits or deadlines on the judge. Then he/she will make a decision.  But there is still more to be done before the claimant receives the decision.

Next, the claim moves to a decision writer.  This writer will use the judge's notes and the recordings of the hearing to write a formal decision.  This decision writing process can also take several weeks to complete.  When the decision is formally written, it goes back to the judge to see if any corrections or changes need to be made.  If so, it is returned to the decision writer for correction.  If not, the Judge signs the decision and mails out a copy to the claimant and one to the attorney.

If the decision is favorable, it goes to a payment processing center, such as the one in Birmingham or the one in Baltimore.  There the claim gets in line for the payment to be processed. 

Before the claimant receives a check for any back pay, he/she will receive a detailed letter from the Social Security office, explaining how much pay is coming and the dates of payments.

Finally, at last the back pay arrives.  It is sent as a lump sum or all in one payment.  Then monthly benefits will begin.  Monthly benefits are paid one month after they are due.  For example, the benefit for January is paid in February.

So, this explains why it may take a while to get paid even after the favorable decision has been made.

A final thought:  Social Security does not send paper checks for monthly benefits.  They require direct deposit to a bank account or use of an electronic debit card.  If the claimant wants to be paid cash, it is necessary to sign up for direct deposit with the local Social Security office.  This should be done well in advance of any expected payments.  Most claimants sign up for direct deposit when they file their initial application.

BEFORE YOUR HEARING, THESE ARE THINGS YOU MUST KNOW

 When a Social Security disability case is denied, as they almost always are, they need to go before an Administrative Law Judge (ALJ) for a hearing.

It's at the hearing that a claimant gets to explain his disability, answer questions, submit new evidence, and have his/her attorney present arguments in favor of the case.  The hearing is usually the final time that a case is decided.  It is also the best chance for a favorable decision or approval.

But before attending a hearing, there is a lot of work to do.  Here are some things I would always have in order before I attend a hearing:

1.  WHO IS THE JUDGE?  Judges are not the same.  They don't run their hearings the same, their demeanor is not the same and their pay rates are certainly not the same.  Find out who the judge is and you will know how to prepare for the hearing.

2.  IS THE MEDICAL RECORD COMPLETE?  Judges will not make a favorable decision unless the medical record is complete.  After you filed your appeal, you kept seeing your doctors, hopefully.  Social Security doesn't automatically update those doctor's reports.  It's up to the claimant or attorney to keep the record up to date.  Otherwise, you report to a hearing with an incomplete medical record and the judge has two choices:  postpone the hearing to update the medicals, or deny the claim once and for all.

3.  IS THE ALLEGED ONSET DATE VALID?  The "alleged onset date" or AOD is the date the claimant says he/she first became disabled.  It's also the date Social Security will begin paying benefits.  The AOD may not be the same as the application date.  So, are you working with a valid and defensible AOD?  Some things that tell you your AOD is not going to hold up in court are.....  

• You worked after the AOD; therefore, you were not disabled.
  

•  You have no medical records indicating a disability on the AOD
  

•  You have income that may look like you were working, even if you were not: things like vacation pay, insurance payments, withdrawals from your 401(K), etc. You must document the source of these payments and prove that they were not work related wages, salary, commissions or self-employment earnings.  Failure to document these will cost you a lot of back pay.

4.  BE SURE YOUR WORK HISTORY IS UP TO DATE IN THE FILE.

    Social Security must decide whether you can perform any of your past relative work (PRW).  They look back 15 years.  Most claimants don't properly complete the Work History Report (part of the application) - and this hurts them at hearing.  A good lawyer/advocate will look at the work history report in file and make sure it contains a detailed description of all past work.  The vocational witness at the hearing uses this Work History Report as a basis to answer the question, "Can the claimant perform any of her past work?"  Lack of detailed work history is nearly ALWAYS a problem when we get to court.  Correct it before the hearing.

Of course, there are dozens of other pitfalls and traps a claimant may fall into at the hearing.  That's why we advise claimants to NEVER, NEVER, EVER to before a judge without an attorney.  If you don't understand the law, the judge, the witnesses, or the procedures--take someone who does. Take legal representation.

_________

The Forsythe Firm

Social Security disability representatives

Huntsville, AL

Nashville, TN

(256) 799-0297

ONE AREA OF DISABILITY CASES YOU CAN'T AFFORD TO OVERLOOK

We often focus on the medical evidence of disability.  And that's important.  But another are that must be carefully prepared is the claimant's earnings or wage record. Social Security will pull all earnings records, including unemployment benefits, for the period claimed as disability.

A problem I often run into is that the claimant stopped working but then received sick leave pay or long term disability benefits from an insurance company.  When Social Security pulls the wage and earning record, these payments show up as wages.  And that creates problems with Social Security disability--because they won't approve a benefit while the claimant was working.

 So, it is necessary to see whether any wages or earnings are being reported during the period of disability.  If the claimant received sick leave, withdrawals from a 401(K) or disability insurance payments, those must be documented so they do not count as earnings or wages.

Receiving disability insurance payments will not offset Social Security payments, as long as you document that the income in question was not wages, salary or self-employment income.  You need to prove that, indeed, the money came from disability or "non-earned" income, not from work.

Failure to prove this distinction can cost you thousands of dollars in back pay.  Of course, if you have a professional advocate or attorney representing you, he/she will take care of this for you. 

PROVE THIS AND YOU WILL GET DISABILITY BENEFITS

 Everyone talks about how difficult it is to get Social Security disability benefits.

However, if you can PROVE the following things, you WILL get benefits.

1.  You worked enough to be covered under the Social Security Act.

2.  You have a severe, medically determined medical condition which has lasted 12 straight months, is expected to last for 12 straight months OR to end in death (terminal).

3.  FOR THOSE UNDER AGE 55:  Your condition makes it impossible for you to perform any kind of full time work which exists in the United States economy.

4.  FOR THOSE 55 AND OVER:  Your condition makes it impossible for you to perform any of your Past Relevant Work (meaning, any full-time work you have performed within the past 15-year period).

Those, of course, are difficult burdens of proof.  You can certainly allege these things but that's not enough:  you must PROVE them using admissible medical and vocational evidence.  Most claimants get denied, not because they aren't disabled, but because they don't know how to PROVE IT according to Social Security regulations.

"NEVER WORKED A DAY IN HIS LIFE BUT GETS SOCIAL SECURITY DISABILITY" ??????

There are a lot of myths, legends, superstitions and stories about Social Security disability and how it works.  One of my favorites is the street legend that we hear a lot:  "He never worked a day in his life but he still gets Social Security disability checks."

Of course, this is simply not possible.  In order to be covered for Social Security disability insurance (SSDI) a person must have worked and earned a minimum number of work credits.  For most individuals, they must have worked at least 5 years out the most recent 10-year period to be covered or "insured" by Social Security's Title II, which can pay a disability benefit.  Without work credits, no SSDI benefit is possible.

Part of the confusion lies in the fact that people confuse Social Security disability (SSDI) with Supplemental Security Income (SSI).  SSI is a welfare program for the very poor who are either elderly or disabled.  SSI requires no work history.  Because SSI is administered through the Social Security Administration, in cooperation with the state government, many folks confuse it with SSDI.  But SSI is not part of the Social Security disability program. It's really an income based program for the needy.

Here is a comparison or contrast:

SSDI                                             SSI

Paid for by workers who pay FICA tax                                Requires no work and no tax

Has no income restrictions to get benefits                            Has severe income restrictions

No restrictions on claimant's financial resources                   Severe restrictions on resources

Maximum benefit can be over $3,000 per mo.                    Maximum benefit is $791/mo.

Comes with Medicare after the waiting period                    Medicaid with no waiting period

Funds paid by the Social Security Trust Fund                      Pays from government revenue

Requires only medical proof of disability                            Requires medical proof of                                                                                                         disability AND financial need

Administered by Social Security Administration                The only thing that's the Same

 

 

 

 

HOW MUCH IS YOUR DISABILITY CASE WORTH (IN DOLLARS)?

A Social Security disability case can be worth a lot of money.  How much will your monthly check be?  That depends basically on your wages over your working lifetime.  The more money you earned, the more FICA tax you paid, the more benefit you get.

The maximum monthly benefit can be over $3,000.  And dependent children may get substantial additional monthly benefits until they graduate high school. 

And just think:  these benefits may continue until the beneficiary reaches full retirement age.  For example, a person who becomes disabled at age 35 may receive monthly benefits for up to 31 years before switching over to retirement benefits.

 And it's not just the monthly checks.  SSDI comes with Medicare health insurance that can cover doctor bills, hospitalizations, outpatient care, and even prescription drugs (by buying Part D).  Medicare alone can be worth hundreds of thousands of dollars, especially if the beneficiary has a lot of health problems and requires frequent or extravagant medical treatments. 

Is Social Security disability easy to get?  No, it isn't.  The requirements to qualify are very, very strict and the process is grueling, time consuming and frustrating.  A claimant may end up before a federal Administrative Law Judge (ALJ) before getting approved.  So, don't expect it to be easy.  But it's worth it.

P.S.  You must have worked and paid into Social Security (FICA tax) recently to be covered. It doesn't cover everyone, only insured workers or recent workers.

Our job as disability counselors or advocates is to help our clients prove their case and get approved.  We are not allowed to charge any fee for our representation until the claimant is approved and qualifies for retroactive pay, or back pay.  Social Security will then authorize our fee and pay us directly from the US Treasury.  The fee is deducted from back pay.

The Forsythe Firm has been helping disabled individuals get Social Security disability benefits for 2 decades.  We pride ourselves on giving close personal attention to each client and we are proud of our high success rate. 

WHY YOU SHOULD AVOID A REPRESENTATIVE PAYEE (RP)

 

When a claimant has a physical or mental impairment that might prevent them from handling their own benefits, Social Security may require a "Representative Payee" or RP for short. This is a third party who will receive the claimant's Social Security payments, then dole the money out to the claimant, using their own judgment. So, the benefits do not go directly to the claimant, but to the representative payee. The PR can give the claimant as much, or as little, of his own money as the PR wishes.

The representative payee may be a spouse, family member or some other person not necessarily related to the claimant. It is the responsibility of the Social Security Administration to decide (1) Does the claimant need a representative payee, and (2) Who will be the representative payee? 

 

 Persons who may need a representative payee are persons who can't make good judgments, can't handle their own financial affairs, need mental supervision, or have a serious drug or alcohol problem, etc. In this type situation, an RP is probably a good idea. Just be sure to choose an RP who will look out for YOUR best interests.  

Why to Avoid Representative Payees if Possible

Unless it is absolutely necessary, I recommend you avoid having a Rep Payee. I've seen all kinds of abuse by Rep Payees (RP). Sometimes the RP uses the Social Security money for their own needs or desires and the claimant suffers. The claimant is pretty much at the mercy of the RP when he/she wants or needs money. While there is theoretically accountability by the Social Security Administration, there is little RP supervision in reality. If the claimant complains about his/her RP, it can take a long time to get a response from Social Security, and they may never give the claimant a satisfactory resolution to the problem.

There have been attempts by the US Government to use the need for a representative payee to restrict other rights, such as gun ownership. The theory is that if an individual is not able to handle his/her own finances and needs an RP, they are not able to handle a gun responsibly. This is, of course, a ridiculous assumption. Just because someone can't make sound financial judgments doesn't mean that they are dangerous. The very fact that a clerk in the Social Security office can decide to take away an individual's Second Amendment rights is ridiculous. This is not currently the practice, but it has been attempted by liberals in the US Congress. And the issue is not going away. It will be tried again, and again. So, avoid using a Rep Payee if you can. You're just better off without one.

Who knows? Perhaps one day some Social Security employee may get to decide that a person using a representative payee is not safe to fly on an airplane, or board a cruise ship, or exercise some other right. I'm not a conspiracy theorist, but leftists in the Government have already shown their hand. The decision to deny someone their Constitutional rights should belong to an official higher than a Social Security employee who conducts a ten minutes interview with the claimant.

 

  If you absolutely must have a RP, try to get someone appointed to that position that you trust explicitly and who uses good judgment on financial matters.

 

Part of our job is to help you protect your rights.