Social Security Disability

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In addition to practicing in family-based and employment-based immigration law, Tony has assisted hundreds of clients in obtaining Social Security Disability benefits. He has represented individuals before the Office of Disability Adjudication and Review and has appeared before before nearly three dozen different Administrative Law Judges in the tri-state area of Tennessee, Mississippi, and Arkansas. Tony has successfully appealed denials of disability claims from Administrative Law Judges to the Appeals Council and federal courts.

How are Social Security Disability Claims Evaluated?

All Social Security Disability claims are evaluated using the Five-Step Sequential Evaluation process. A person applying for Social Security Disability benefits (the "claimant") must satisfy all five steps to receive disability benefits.

Step One: Are you working? If you are engaged in work at the time of filing for disability benefits, your earnings cannot be above a certain limit, which is referred to as "substantial gainful activity" (SGA). The limit is determined yearly. For 2014, if you are earning more than $1,070 per month from work activity, you cannot be considered for disability.

Step Two: Is your condition "severe"? A condition is considered "severe" if it interferes with work-related activities. The condition must also be one that is expected to result in death or which has lasted or can be expected to last twelve (12) months.

Step Three: Does your condition meet or equal the list of recognized medical conditions? For every major body system, the Social Security Administration maintains a list of medical conditions, often referred to as the Listings. If your medical records prove that you meet one or more of the Listings, you will qualify for disability benefits. Be warned, however, that the rules are quite difficult to meet.

Even if your condition does not clearly meet the rigid rules in the Listings, you may still be able to convince the Social Security Administration that your condition essentially equals the Listings in severity. If your condition meets or equals a listing, you are deemed disabled. If you have a severe impairment that does not meet or equal a listing, the analysis continues to Step Four.

Step Four: Are you able to return to the work you did previously? If your condition does not meet or equal a Listing, the government will still consider what types of impairments you experience and whether they would prevent you from returning from your past work. In simplest terms, the Social Security Administration is mostly concerned with the work you have performed within the last 15 years and whether you performed it long enough for it to be considered relevant.

Step Five: Can you do any other type of work? If it has been determined that you cannot perform your past relevant work, the Social Security Administration will determine whether you can do any other type of work. Factors that the Social Security Administration will consider are your age, your education, your past work experience, and whether you have any skills gained in previous jobs that would transfer to other types of work. If Social Security determines that there is no other type of work that you can perform, you will be deemed disabled and will qualify for disability benefits.

The Life of a Social Security Disability Claim

All disability claims begin with an initial application for Social Security disability benefits. These usually take 4-6 months to process. The vast majority of these applications are denied -- in some states, well over 90% of initial applications.

If a claimant receives a denial on the initial application, he or she may submit a request for reconsideration, which also usually takes 4-6 months to complete. Unfortunately, most "reconsiderations" are also denied at about the same rate as initial disability applications.

If the claimant has received denials on both the initial application and the request for reconsideration, he or she is entitled to submit a request for hearing before an Administrative Law Judge. Because of the large number of disability applicants currently in the system, there is a long waiting period for a hearing. In fact, a claimant may wait 12 months or more from the time the request is submitted until the hearing is held.

An Administrative Law Judge is not bound by prior determinations in the claimant's case. The judge has the duty to weigh all of the evidence in the record and to issue a new decision on the claimant's case. If the Administrative Law Judge denies the disability claim, the claimant has the right to submit an appeal to the Appeals Council, which oversees and reviews disability determinations made by Administrative Law Judges. The Appeals Council also experiences lengthy backlogs and delays. Many claimants may wait 1-2 years or longer to receive a decision from the Appeals Council.

If the Appeals Council denies the claim, a claimant has the right to submit a federal appeal to the federal district court with jurisdiction over your case. Federal appeals are very difficult to win and should only be considered in cases where the Administrative Law Judge and the Appeals Council made clear errors in the facts or in applying the law that would have resulted in a different decision. Unfortunately, not all cases are strong candidates for federal appeals.

Types of Social Security Disability Benefits

Social Security Disability is divided into two basic types of benefits: Disability Insurance (SSDI) and Supplemental Security Income (SSI). Disabled individuals may be eligible for SSDI only, SSI only, or a combination of both.

SSDI benefits are reserved for individuals with strong work histories who have paid into the Social Security system via their Social Security taxes. In addition, individuals must also have a sufficient number of quarters of coverage to qualify for SSDI and must also be found to have been disabled on or before the individual's coverage expired, which is referred to as the "date last insured." Monthly benefits for SSDI are calculated based on the claimant's earnings history.

In contrast, SSI is a needs-based disability program designed only to cover basic necessities like food, clothing, and shelter. SSI is not related to the claimant's earnings history, but may be reduced (or even eliminated) by financial support received from others.

If an individual is found to be disabled, he or she may be eligible for an award of back pay for the time spent waiting for a final decision on the disability claim. Depending on the type of disability benefits received, the individual may either receive the back pay in one lump sum or staggered payments over a period of several months.