If you applied for Social Security disability and were denied, don't re-apply. You will likely get denied again. Filing one new application after another is like spinning your wheels. What you need is some sand under your tires for a better grip, so to speak. It is better to appeal than to re-apply.
Here's why:
- Your new application will go to the same people who denied you. You will most likely be denied again.
- A new claim will not protect your past benefits.
- A new claim will probably "move ahead" your alleged onset date, costing you money - lots of money.
- You may risk your Social Security disability insurance expiring, preventing a new claim from being filed.
Let me explain that last point. Social Security disability is a type of insurance - with a start date and end date. Your disability insurance usually expires about 4 years after you stop working and stop paying FICA taxes. This expiration date is called the "date last insured" or DLI. You cannot file a new claim after your DLI.
With rare exceptions, appeal the denial on your claim; do not file a new claim. These are two very different things.
Alabama has a somewhat streamlined disability process. First you apply either online, by telephone or at a Social Security office. An attorney or advocate can also help you apply.
Then, your case is assigned to the Disability Determination Service in Birmingham, a state agency under contract with Social Security. DDS will gather and evaluate your medical and vocational records and make the initial decision about whether you are disabled. Unfortunately, 70 percent of applications are denied.
The next stage is the appeal or hearing phase. You request a hearing before a US administrative law judge. This hearing gives you an opportunity to explain your disability, restrictions in performing work-related activities, and why you should be found disabled. The judge will make a new decision in your case. The odds are more favorable in this process, especially if you are represented.
It is extremely important not to give up. Most of the disability claims that are awarded are approved at the hearing level. What if you are also denied at the hearing?
After the hearing, the next level of appeal is to ask the Appeals Council, a group of judges in Falls Church, Virginia to review your case. The odds of getting an award at the Appeals Council are rather low. Sometimes the Council will remand a case back to an administrative law judge for further review or another hearing. They rarely make awards outright.
When the above appeals have run their course (taking probably a total of at least 3 years), the final resort is to seek a decision in the federal district court. The district court's decision can be appealed to the circuit courts.
Since your best chance of winning a disability award is at the hearing level, it is very important to prepare well for the hearing and put your best foot forward. An advocate trained in Social Security law will know what must be proven to win. He or she will also know how to prepare evidence and testimony that is most likely to prevail in the hearing. A good advocate will also understand how to answer adverse testimony, such as that given by a vocational expert.
The best way to win a Social Security disability case, then, is simply: file a correct, complete application; immediately appeal any unfavorable decision; use expert help to guide you through the complicated appeal process. Patience and persistence are required to win disability benefits. It can be done. Don't give up. Those who give up too soon will not get disability benefits.
Many people fail to understand the technical nature of a Social Security disability hearing. The hearing will involve such technical matters as past relevant work, transferable skills, erosion of the occupational base, unskilled sedentary work, significant gainful activity and residual functional capacity--to mention a few.
A layman with no training or experience in disability hearings cannot be expected to function in the pressure cooker of a hearing room.
How do you respond when the vocational expert testifies that you can't perform any of your past relevant work, but there are 150,000 unskilled sedentary jobs in the US and 15,000 of these jobs within your state that you could perform? If allowed to stand unchallenged, this testimony will direct a finding of not disabled under Social Security rules.
There are dozens of technical issues that you must be prepared to address, question or refute if you are going to prevail in a disability hearing. The best way to do this is to take a qualified and experienced disability advocate to the hearing with you. Good representation is not expensive, it's priceless.
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The Forsythe Firm
Charles W. Forsythe, MS
(256) 799-0297
1-855-854-CASH Click here to see what an Advocate can do for you!
My firm handles clients from a wide area who are trying to get Social Security disability. We have a tremendous success rate and over the years have learned a few things about what it takes to get SSDI (Social Security Disability Insurance) benefits.
The main piece of advice is - don't give up too soon. Most applications will be denied at the first try and will require an appeal to win. Expect that and don't be discouraged. The appeal process is lengthy and tedious; you have to know what you are doing to be successful. But if you do, the results are quite positive.
My second piece of advice is to develop a good professional relationship with a treating physician. See your doctor at least two or three times a year, even after you win disability benefits (because you will have "continuing disability reviews" and your doctor's records will be of utmost importance).
Finally, if you are denied for benefits - don't be afraid to contact a professional representative who understands Social Security disability law and procedures. He cannot charge you a fee until you win your case and also collect back-pay benefits. It's a no-risk arrangement. It lets you hire first class representation and pay nothing until you've won and collected your money.
Disability representatives generally fall into two broad categories:
- Large national firms that use a volume philosophy - advertise widely, get as many clients as possible
- Local or Regional firms that use an individual client philosophy - take only as many clients as you can serve individually and get to know them.
I meet with nearly every client I represent before I accept the case. I will meet with them at least one more time prior to the hearing. Generally, I will speak with them several times during the ensuing claim or appeal process. I take pride in getting to know my clients as individuals. No two cases are exactly alike and a "one size fits all" solution simply isn't my style of practice.
Obesity is no longer a listing under Social Security disability. An individual cannot be found disabled merely because he is obese. However, if a person has an impairment that is listed, and obesity complicates the other impairment, it can be considered as a contributing factor to the disability.
For example, Social Security Ruling 02- 01p states “when
evaluating impairments under mental disorder listings 12.05C, 112.05D
and 112.05F, obesity that is ‘severe’
. . . satisfies the criteria in listing 12.05C for a physical
impairment imposing an additional and significant work-related
limitation of function.”
So, an individual must have an additional impairment, not just obesity, to be found disabled. Obesity can certainly make ailments like musculoskeletal disease or COPD more severe. The same could be said of many other conditions, as well.
When your Social Security disability case is being evaluated, many factors should be considered.
A disability
advocate can help you win a Social Security disability claim. What does
he/she know that you may not know? Plenty. Here are a few examples,
just as they routinely come up during Social Security hearings:
- What was the exertional level of your past relevant work, according to the DOT (the Dictionary of Occupational Titles)?
- Does your Residual Functional Capacity prevent you from performing any of your past relevant work?
- What was the skill level of your past jobs?
- Did you learn any skills transferable to other types of work?
- Do you have any non-exertional limitations that limit the work you can perform?
- If your main
medical evidence is from a nurse practitioner or a chiropractor, is it
admissible and what weight may it be given under Social Security law?
- Social Security
sent you for a "consultative examination" with one of their doctors who
says that you have no severe impairments; must you accept this opinion?
- Your treating
doctors say you have impairments that are more severe than Social
Security's doctor has found. Which doctor's opinion must be given more
weight-- your doctor's opinion or the Social Security doctor's opinion?
- You have a
history of alcohol (or drug) abuse and Social Security law says that
abuse may not be used as the basis for disability. Can you be denied
benefits because of drug or alcohol abuse? What is the legal test?
- The judge
concludes that you can perform most, but not all, of the basic job
functions required by sedentary unskilled work. Is that good enough to
find that you are able to work, or must you be able to perform "the full range" of job functions of sedentary work?
- Is your
"occupational base" significantly eroded due to your inability to get
along with coworkers, supervisors and the public? Does 20 CFR 404.1521(b)(5) support you?
- The consulting
physician states that you would be unable to walk one block at a
reasonable pace over rough or uneven surfaces. Is this sufficient to
show that you do not ambulate effectively under Appendix I, Section
1.00?
A qualified
disability representative or advocate knows the answers to those
questions before walking into the courtroom. And he/she will know how
to argue the appropriate points before the judge who will make a
decision on your case. The representative will also be skilled at cross
examination of the vocational expert. In fact, well before the hearing
occurs, your representative will have prepared a detailed legal brief
in which the pertinent legal arguments have been stated, laws cited, and
conclusions drawn.
Under
no circumstances should a claimant wander into a disability hearing
unrepresented. It is usually the death knell of the claim. Good
representation is not expensive. It is priceless! And remember, you
don't even pay a fee unless you win back pay! Your representative will never ask you for money. He or she even pays all of the case expenses until it has been favorably decided.
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THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US (256) 799-0297
