As you might imagine, we get a lot of questions about the Social Security Disability process, who qualifies and why or why not. We sat down with Attorney Rick Fleming who leads our Social Security Disability department and is a NC Board Certified Specialist in Social Security Disability law. He offered some thoughtful answers to help dispel some common misconceptions.
Over the 15 years I have worked in Social Security Disability for the Law Offices of James Scott Farrin I have heard my share of false assumptions when it comes to applying for and being granted benefits through Social Security Disability. It helps when an applicant knows the right steps to the approval process.
Disability is a government-funded program that has strict guidelines. If there’s one thing I try to let our clients know, those working in Social Security Disability determination offices must be uncompromising. They have to be. They don’t work for the public, they work for the government. If your case doesn’t meet strict government guidelines, it won’t be approved.
How does the federal government define disability?
Disability, according to the government, is the unquestionable inability to perform work for at least 12 continuous months. It is important for clients understand that those 12 months must be ongoing or have already passed before someone applies. They also may qualify if it is highly likely that they will be expected to be unemployed for the next 12 months.
There must be a finding of a severe medical impairment.
The Social Security Disability Determination Services expects proof of impairment through medical records. Medical diagnosis and prognosis may be either physical or psychological and they are both covered under Social Security Disability. Clients are often concerned because they do not know what evidence they should use to prove they need Social Security Disability benefits.
Those suffering from disabilities are unable to participate in the kind of work they have done before, or any work in the national economy. When we ask clients if they have the ability to work in the national economy, it doesn’t just mean North Carolina, it means nationally, in all sectors of business in America. The reality is the job simply has to exist. It doesn’t necessarily have to be a job the applicant could actually get. The law wants to know if you have the ability to theoretically work if given the opportunity.
I get a lot of calls from prospective clients who are working and earning substantial wages yet wish to apply for disability benefits. Social Security Disability says that if you are able to work and earn a certain amount of money, then you are not disabled no matter what’s going on physically or psychologically.
Disability can be determined solely on annual income. In 2017, if you are able to earn $1,170 per month gross you are probably not disabled. Even with a physical or psychological impairment, working for that much money means you are likely not entitled to disability compensation.
Is there a difference in applying with an attorney vs. without one?
I would say yes.
It’s a complicated procedure that can be unclear to people because, let’s face it, we don’t grow up learning the Social Security Disability process. If someone has impairment, they may not comprehend all the things required in the application process or be in too much pain to even have the energy to put together a strong case.
They may miss items on the checklist and get something from Disability Determination Services (DDS) called a failure to cooperate denial. If an applicant receives one of these, they did not do all the things they were supposed to do in the application and may need to start over from scratch. That’s nothing to be ashamed of when you’re going through something of this magnitude, and you shouldn’t be penalized for it. This is can be an overwhelming situation to handle. A lot of times it helps to have someone else in your corner who’s making sure your i’s are dotted and t’s are crossed.
Our duty is to be a strong and knowledgeable advocate for you.
Do a client’s assets and resources have an impact on the outcome of the case?
There’s a complex answer there, but I’ll try to explain it simply.
There are two kinds of disability. Title II Disability, or regular Social Security Disability, is something you pay into through payroll taxes. When you look at your check you will see either a FICA or Old Age Survivor’s Disability Insurance (OASDI for short) deduction. Both the employer and the employee pay into this type of Social Security benefits.
If you have a Title II case, then what you own or have does not matter as long as you are applying for a benefit for which you’ve contributed throughout your working life. It’s like making a claim on your medical insurance or car insurance or homeowners insurance – you’ve paid the premium, and now you’re making a claim.
However, applicants under Title XVI (16) or SSI (Supplemental Security Income) are in a hardship or poverty program. This program is for people who have not worked enough or recently enough to qualify for Social Security Disability or Title II, and are poor enough to qualify due to a lack of assets or resources. Under Title XVI you cannot have more than $2000 in assets or other resources as a single citizen, and married couples must have less than $3000 in assets or other resources to qualify. As a side note for people married to a working spouse, you are reviewed with the income of your household. Assets of one spouse are legally deemed available to the other spouse. Married couples with two vehicles and anything worth more than $3000 exceed the asset quota, automatically receiving a technical denial.
We often get calls from parents or guardians who stay at home to take care of children or family members. If they’ve stayed at home long enough that they are no longer insured for Title II, their only option is SSI. If that is your situation, contact us at 1-866-900-7078 and have an experienced Social Security Disability attorney review your situation for free.
What determines the amount of money the client could potentially receive? Do disability benefits correlate to their last salary and benefit arrangement?
Social Security Disability benefits are based on work history. So if you are someone who made minimum wage, your benefit (if you qualify) will be lower than someone who earned six figures. Benefits also depend on how long you paid in to the system. Someone found disabled at age 26 after beginning to work at age 16 has only 10 years of contribution, whereas someone who has worked 30 to 45 years with high earnings is likely to have more money coming their way from Social Security Disability. That being said, Social Security benefits are modest and average only $15,329 a year for disabled workers.
When a client hires an attorney, does that speed up the claims process and potentially increase chances for approval?
It does not result in an automatic approval. Although, because we know what documentation and evidence to present and how to make sure it is completed properly and meet deadlines, it may potentially help get to an approval.
It may also hasten the process, in that we do everything we can to try to ensure nothing falls through the cracks. There should be open communication between the Social Security Administration, and the attorney representing the applicant or claimant. This networking and experience makes us confident in our ability to potentially win cases. We do our best to try to make sure things will not be forgotten, and therefore the process should go smoother and run more efficiently in most cases. Also, as an attorney I’m expected to frame the issues and use the correct kind of medical evidence that tries to build an unquestionable case of disability.
On our website readers can learn more about Social Security Disability wait times.
Do attorneys make the decisions regarding who is and is not disabled?
No. At the initial reconsideration level, the case goes to a place called Disability Determination Services and the case is assigned to a disability examiner, and either physical or psychological doctors, depending on the variables of the case. It’s that team at Disability Determination Services that makes the decision on the first and second level of appeals.
Each of our paralegals was a Disability Determination Services employee before joining our Social Security Department. They know very well what the agency is looking for and how to try to ensure your paperwork is properly submitted.
If the person is denied at both those levels, the case goes to the hearing level.
The hearing is where an administrative law judge (ALJ) holds a hearing that may include expert witnesses and is responsible for reviewing the applicant’s case and previous reasons for denial. After the hearing level, if the judge’s decision coincides with the lower determination and denies benefits, an applicant may seek to have their case sent to the appeals council where Administrative Appeals Judges (AAJs) make the determination. Here, it will again be decided if the case should be approved, denied, or remanded for a new hearing.
If you do not have success at this level, you can file a civil action in the United States District Court, where an Article III judge will make the decision. Afterward, those denied may apply to the circuit court, which for North Carolina residents is the Fourth Circuit Court of Appeals in Richmond, Virginia. If you’re not successful there, you can attempt an appeal to the U.S. Supreme Court in Washington, D.C.
When you are denied you, the applicant, or the attorney if you have one, have a duty to file an appeal within 60 days.
How long does each process take?
Wait times vary considerably depending on the level of your filing.
At the reconsideration level it’s going to be about six months for a decision.
At the hearing level it’s going to be about two years. At the district court level, it’s probably about one year, and the circuit court level it could be one to two years. The Supreme Court could have multiple factors determining the timing of decisions.
Some people are of the opinion that attorneys hold up cases to get more money. Is this true?
Of course not.
The truth is the Social Security Administration has too few employees and hundreds of thousands of cases to process. At present the backlog of cases awaiting a hearing before an ALJ is over one million. While our paralegals have a history of knowing how to work effectively in most situations, sometimes there’s nothing we can do, and these backlogs cause the process to take time.
What people don’t realize is that stalling the system doesn’t bring us or the client any more money because the government caps our fees.
In Social Security Disability cases fees are capped at 25% of back-due benefits or $6,000, whichever is less.
So if we did delay cases, we would actually be billing more hours than the fee cap provides. So if you’re talking about a case that lasts six months vs. 36 months, at some point we are losing money because we have more time and money in than we can possibly get out. Believe me, we would rather win sooner than later.
Since all employees are obligated to pay into the system, are they entitled to receive back taxes as disability benefits?
They will be entitled to retirement income in the form of Social Security, once they reach retirement age, but there is no entitlement to disability until you meet the strict requirements of disability under the Social Security Act. Think of it like health insurance or car insurance. Yes, you have paid for it, but they may deny it if your claim doesn’t meet the requirements.
Will applying for Social Security Disability assure payment?
No. Not one penny is received for disability until after you are seen as disabled under the law.
What are the keys you look for in a solid case, and what are the red flags.
Going back to some of the things we talked about before, there is a list I can use to initially screen an eligible candidate.
- Are you working? Have you had a break in employment already or do you have an impairment that is so severe, it is reasonable to assume you will be out of work for at least 12 continuous months?
- Does what you allege as a prospect, make sense medically? If you allege for example that you are blind, but you say you can drive to our office to meet with me to discuss the case, I’m going to know you cannot be found to be blind if you offered to drive to my office.
- Do you have medical evidence? Social Security Disability is grounded in medical evidence and you, the claimant, have the burden of proof – you must provide medical evidence to support your case. If you have never been to a doctor in your entire life, then there is no medical evidence to support your allegations of a severe medical impairment. No proof, no disability.
Do factors like a history of drug use or criminal charges factor into receiving Social Security Disability?
This is a great question because it all depends on the perspective or reason for the disability claim.
If a client says, “I am disabled because I see and hear things,” and you see in their records they’ve tested positive for LSD then there is a problem. LSD causes one to see and hear things, thus drug use would be a factor to their disability and they could be barred from receiving any sort of benefits.
The flipside is if someone has a diagnosis of bipolar 1. Any psychiatrist is probably going to tell you that part of being bipolar is having some sort of a lack of impulse control, leading to some proclivity to drugs or alcohol use. So in that case it is different. It may be that it’s not the drug or alcohol causing them to be bipolar. Rather, substance abuse is a symptom of the bipolar disorder. One does not cause the other; this is to say that if the person stopped using drugs or alcohol they would not stop being bipolar.
Now criminal behavior is simple. If the injury was caused while in the process of a crime, they cannot receive any benefits. Let’s say, for example, during the course of a bank robbery the bank robber fell and broke both legs and tore the ACL in each knee. In this case the bank robber cannot claim disability for these impairments because it happened during the commission of a felony.
However, if their disabling impairment has nothing to do with the commission of a crime then they could potentially receive Social Security Disability benefits.
What is the cut-off age for receiving Social Security Disability?
In this case it is important to remember the right to disability ends at full retirement age, which you can find by clicking here.
For most of the population right now this means after 66+ years, the only benefit you can receive is retirement and not disability. If someone is working up until 70 and wishes to file for disability they can’t.
If a client dies from terminal illness, can their family assume the pending claim?
What we can do is file a special claim for the ill client. A claim marked TERI (terminal) which expedites the case to receive a quick decision. Assuming the case is approved, the disabled person would collect benefits until they passed. Then benefits would end. But if this client is a parent of minors, their children would be considered survivors of the deceased. This scenario brings Old Age Survivors Insurance in to play. When the client passes, their children are to receive benefits as a survivor under their parent’s social security number until their 18th birthday.
Another scenario is when a person dies while their case is pending. In some situations we can substitute in a proper party (a surviving spouse, parent, or child) and allow the case to proceed to a decision. Any benefit won would be for the time period prior to the death of the deceased claimant.
What would you say to those who say, “I know I’ll get some sort of compensation because my friend or relative got it for the same situation”?
We hear that a lot and it’s often that these people don’t know the specifics of their friend’s case. If for example the person has a low IQ, or met a certain listing, or if there is some fact that they don’t know about their neighbor, then they are comparing apples and oranges.
Are there any patterns you see in people who get accepted or denied?
No. Just that they meet the requirements of the statute. The most important thing is to have consistent medical evidence and support of doctors.
For people who have to take medicine for diabetes, thyroid, or other illness, is there a way they could be declared disabled?
No. Taking a lot of expensive medications is only part of the analysis. In and of itself it is not conclusive evidence of disability.
When people say their condition has caused their doctor to restrict them from driving, does this mean they are disabled?
No. You can take public transportation, catch a ride with a friend, or call Uber. Whether you can drive or not is irrelevant. As long as there is a job that exists that you could reasonably do you are not disabled Under the Social Security Act.
If people are working to put food on the table, but they feel like they are disabled, are they?
Not according to the government. People who think they should receive disability because they are only working to pay rent or to feed themselves or family are missing the point of disability.
It doesn’t matter why you are working, it only matters that you are working.
That’s where the analysis stops for a perspective client. The government does not care why you are working. This is probably the most common conversation we have, and it is sad. We understand these situations – we see them all the time. Essentially, the analysis ends there and they cannot apply. Click here for information on working and applying for Social Security Disability benefits.
Before people contact us about a case what should they think about first?
I would tell them to ask themselves if they meet the conditions under the definition of disability.
If you can drag yourself to work two more days, six more months, five more years, or as long as you can, do it! You’ll probably get more money working than you will from Social Security Disability. The benefits are modest at best.
Do you have documented proof of your condition?
You need to have strong medical proof (documentation) of your disability and meet the guidelines set forth by the Social Security Administration. If you can provide evidence that you fall under the legal definition, you should expect proper compensation, and you have the right to!
What should people do if they want a case evaluation?
If you’ve become disabled, don’t be afraid to file for Social Security Disability benefits. It’s your right. Just as importantly, don’t think you will necessarily receive these benefits without a strong case that is backed with thorough medical evidence.
We offer FREE case evaluations and we are available 24/7. Our experienced lawyers and paralegals respond to the call of many clients statewide that have trouble dealing with their disability. Click here to contact us or call 1-866-900-7078 for a free evaluation of your Social Security Disability case.
Click here for other frequently asked questions.
P.S. Don’t feel like you can’t afford to hire Social Security Disability attorney. At the Law Offices of James Scott Farrin, we work on a contingency basis, so you don’t owe us an attorney’s fee if we don’t get you compensation for your claim.2