Social Security

AM I ELIGIBLE FOR SOCIAL SECURITY DISABILITY OR SUPPLEMENTAL SECURITY INCOME (SSI) DISABILITY?

Under the Social Security Act, disability means the inability to engage in substantial work activity, due to medical impairments. These may be physical impairments or emotional problems or a combination of both. The majority of people who apply for benefits are initially denied. Of the 65% who were initially denied, about half are eventually granted benefits when they appeal. If you do not pursue an appeal, you may not be able to reapply in the future, or you may be able to successfully apply, but have only limited benefits in the future. [return to top]

DO I NEED A LAWYER?

The Social Security Administration has published its statistics that show that claimants who hire attorneys are more likely to obtain disability benefits than those without representation. The regulations are complex, the process is not easy to go through, and many doctors, and, many lawyers, are unfamiliar with the standards. Although you are not required to have a lawyer you should have an experienced attorney to help you.

Whether you are about to apply, or have already been denied, I may be able to help you. [return to top]

WHAT IS SOCIAL SECURITY DISABILITY?

Social Security Disability is considered an insurance program for persons who have worked. You have to have paid Social Security Tax (the FICA Tax that you see on your pay stub) for the equivalent of 20 quarters for the last ten years before you became disabled. If you are underage 31, and have a shorter work history, there are reduced requirements.

You must meet the Social Security Act’s definition of “disabled.” This means that you have a “medically determinable” problem, which is expected to last, or has already lasted 12 months, or is expected to be fatal. The rules on what is “medically determinable” are complicated. Usually they mean that the physician can detect the problems by objective evidence (for example an x-ray) but that is a major simplification. [return to top]

WHAT IS SUPPLEMENTAL SECURITY INCOME OR SSI?

If you do not have the work history to allow you to get Social Security Disability, you may still be eligible for Supplemental Security Income Disability or SSI. The disability requirements are the same, but there is no work history required. The benefits are substantially less than they usually are under disability insurance. In order to get SSI, you have to have very limited finances. [return to top]

CAN I GET BOTH SOCIAL SECURITY DISABILITY AND SSI?

The answer is yes, in some cases. It does not take very much, unfortunately, to wipe out a person’s saving. Even a person who has worked for a long time may have so depleted his funds that he or she meets the resource limits for SSI as well as meets the insured status for Social Security Disability. [return to top]

CAN YOU EXPLAIN THE SOCIAL SECURITY APPLICATION PROCESS?

Persons applying for Social Security Disability and SSI must first file an application for benefits. The information they give will then be sent by Social Security to the Disability Determination Division, a state agency, which is under contract with Social Security to evaluate disability cases. They are supposed to obtain all relevant medical records, but they frequently do not. They are supposed to then review all of the records and then offer an opinion. Frequently, they do a poor job of that. In the year 2007, the Social Security Administration reported that 35% of the people who applied for Social Security Disability or SSI were able to get benefits with the initial application. A lot more, however, eventually can qualify if they go further, especially with a lawyer.

The next step, in Pennsylvania, after a denial is a hearing before an Administrative Law Judge (often referred to an as ALJ). Claimants who pursue a hearing before an Administrative Law Judge, win in 50% of the cases, according to the Social Security Administration.

If you do not win before the Administrative Law Judge, the next step in the process is an appeal to the Social Security Appeals’ Council, which is located in Falls Church, Virginia and hears cases from across the United States. The Appeals Council does not usually take more evidence but reviews the record that was before the ALJ. The Appeals’ Council sends back, for an additional hearing, about 19% of the cases that an ALJ has denied. Such a remand frequently results in a victory for the claimant.

After the Appeals’ Council, a claimant can file an appeal to the United States District Court. The Federal court cannot take any new evidence but, instead, decide whether the Social Security Administration made a mistake, as a matter of law, in evaluating the evidence and applying the law to that evidence. In 5% of the cases the Federal courts find that the Social Security Administration has made such serious mistakes that they outright award benefits to the claimant. In another 46% of the cases, they find that a serious mistake was made and they send the case back for another hearing, which often results in a victory for the claimant.

There is a lesson to be learned here: If you have a good case, and you have a good lawyer, you have to persevere. You may not win at any one particular level, but your chances of winning are still very good, if the case is worth pursuing. [return to top]

HOW LONG DOES ALL OF THIS TAKE?

It is a little hard to say how long it will take for Social Security to process an initial claim. Most of the initial claims that come into this office seem to be disposed of within 4 to 6 months. If you are located in Southeastern Pennsylvania, your appeal will go to one of three different appeals offices. As of November 2013, they average a bit more then a year from the time it was first received. In other words, if you file an appeal from initial hearing, it will take about a year, for your appeal to be heard. That is about the national average. The time for appeals above the ALJ level (to the Appeals Council and then, if necessary, to the District Court) is very unpredictable but can take several years. [return to top]

IF I HAVE A LAWYER, WHAT DOES THIS COST ME?

All fees, in Social Security cases, are subject to approval by either the Social Security Administration or the Federal Courts. In initial applications for disability, the fee is normally capped, and cannot exceed, 25% of the past due benefits. An attorney may agree to accept the lesser of 25% or an amount specified by the Commissioner of Social Security, under statute. As of January 2010, that amount is currently $6,000.00. In other words, the attorney agrees that if you win your case that he will accept no more than $6,000.00, even if your back benefits are more than $24,000.00. If it is necessary to go beyond the first hearing, before an Administrative Law Judge, the attorney may have to file a Fee Petition and the $6,000.00 cap would no longer apply.

In cases in which there is no back benefits to be generated, the fee still has to be approved by Social Security or the Court. Generally speaking, the Social Security Administration approves fees for work done before the Social Security Administration and the Court approves fees for work done before the Court.

If the case does go to Court, we may be able to apply for an award of attorney’s fees, under the Equal Access to Justice Act. If the Court does not find that the Social Security Administration was substantially justified in its’ decision, the Court will normally award counsel fees, which do not come out of back benefits. There may also be an adjustment to the counsel fees coming out of your award, if the Court does award EAJA fees.

In addition to fees, the client is responsible for out-of-pocket costs. In a typical disability case that would be payment of costs for records and, where necessary, doctor’s reports. In Pennsylvania, there is a cap on the cost of records in Social Security cases. Doctors, hospitals and other health care providers are limited to approximately $27.00 to produce records. There is no limit, however, on what a doctor can charge for a report. Doctors vary widely on what they charge for reports, but those reports are frequently the key to winning disability cases.

Social Security will normally withhold one fourth of any back due benefits to pay for the attorney’s fee. That money will not be used to repay costs that the attorney has advanced. Accordingly, you will be billed at the end of the case for the costs and expected to pay. Normally, you will have money, as a result of the award, to pay the costs, and without those costs you would not have won. In over thirty years I have never had anyone complain about those costs as being unjustified or unfair. [return to top]

SOCIAL SECURITY HAS JUST INFORMED ME THAT THEY BELIEVE I HAVE RECOVERED AND AM NO LONGER DISABLED OR THEY WANT TO CHECK TO SEE IF I HAVE RECOVERED. I DON’T FEEL LIKE I HAVE RECOVERED. CAN YOU HELP ME?

I will certainly be willing to look at your case and try but you need to contact me right away! [return to top]

SOCIAL SECURITY HAS JUST INFORMED ME THAT THEY BELIEVE I HAVE BEEN OVERPAID AND THEY WANT THEIR MONEY BACK. CAN YOU HELP ME?

Just as with a termination case I will certainly be willing to look at your case and try but you need to contact me right away! [return to top]

HOW LONG HAVE YOU BEEN DOING SOCIAL SECURITY DISABILITY LAW?

The first case I handled (successfully, I might add), was in 1977. Through the years I have represented a lot of applicants, usually with success. I have sometimes had to take appeals to the Federal Courts and a few of the cases were reported. If you are interested you can read the decisions in those cases. (Most of the cases I had to appeal to the Federal Courts were not reported but I won them, too.) [return to top]

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