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Disability Law 101

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Disability Law 101

Unfortunately, the uniqueness of social security disability law scares many new and curious legal practitioners away. A non-adversarial process lacking in both rules of evidence and rules of procedure, and with a unique government-regulated fee process, it can be both intimidating and confusing for newbies. This program, presented by national industry leader Michael Liner, will provide an overview of the medical and non-medical eligibility requirements of the Social Security Disability (SSD) and Supplemental Security Income (SSI) programs. The nonmedical criteria covered for will include quarters of coverage, insured status, as well as income and resource rules. The medical criteria to be covered includes the sequential evaluation, exertional categories, and common non-exertional limitations. The appeals/claims process will also be covered and explored.

Transcript

- [Michael] Hello, everybody, and welcome to the presentation today, Disabilities for Dummies: SSD and SSI from A to Z. I am Attorney Michael Liner from Liner Legal, and I am your educator, presenter today. Just to tell you a little bit about myself before I get into the content of the presentation, I started Liner Legal Disability Lawyers in 2013, and we have grown into one of the larger disability law firms in the country, which has been a fun ride. But what I'm gonna talk about is what I do every day and something that's very passionate to me. And I hope that I can share some of that passion with you. I got into this line of work because I, myself, live with many recognized disabilities. I went to a special school as a child for ADHD, I had epilepsy when I was a child. And as an adult, I deal with motor tic syndrome and cluster headaches. And I believe it's something that's allows me to relate a little bit to the clients that we have. And it motivated me to wanna help others who maybe didn't have treatment that worked as well as mine did to allow me to work and start this business. The thing that I'm probably most proud of, however, is being the creator of the hit YouTube series, "Go Nuts for Donuts with Michael Liner," where I sample donuts all around the country. There's a YouTube video link that you can check out some of our episodes. But what we're gonna be talking about today, the meat of the presentation, I'm gonna kind of give you an overview. We're gonna talk about what is disability, how does the Social Security Administration define disability. We're gonna talk about the different types of disability benefits and the differences between them. We're gonna talk about the disability application process itself, and, you know, how a case typically goes, what clients expect. We're gonna talk about tips for the disability process that I give to my clients. And finally, we're gonna talk about, you know, what a disability lawyer needs from their client. So, without further ado, what is Social Security Disability? And this is kind of a boiled down definition, but I think it's helpful. Social Security Disability is a government benefit for individuals who are unable to work in any substantial gainful activity. I'm gonna pause and let that sit in 'cause I'm gonna come back to it. By reason of any medically determinable physical or mental impairments. That's the second place I'm gonna kind of pause and let that sink in with you. And which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, okay? So the first piece here is the unable to engage in substantial gainful activity, which has its own definition. This year, 2023, SGA is defined as being $1,470. In order to apply for Social Security Disability benefits, you have to be unable to work for, no matter how many hours it is, but to earn $1,470. Second piece, by reason of any medically determinable physical or mental impairment. That's important. You know, people say to me all the time, "Well, can I get disability if all I have is a mental health impairment? If I have depression or anxiety? Or what if I have, you know, just a back issue?" And I'm gonna talk about this later, but it's important to list all of your impairments, physical and mental on your application. But you can get disability for either one as long as you demonstrate that your impairment is making it so that you cannot perform work. And the last thing here is what we call the duration requirement. So you have to have an impairment, which is expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. What that means is a lot of times, people will apply for disability, they'll, say, you get in a bad car accident and you hurt your back or you hurt your knee. And you know, doctor says, "Boy, you're gonna be out of... It's gonna take you at least nine months till you can get back to doing any type of work." That would not qualify for disability benefits. Because the duration requirement is that you have an impairment, which is gonna last at least 12 months, a full calendar year, or be expected to result in death. So that's kind of an important thing to talk about are the three parts of the Social Security Disability definition. There's two main types of disability benefits that we are going to cover. We're gonna talk about Social Security Disability Insurance benefits, which has a few other common names. It's sometimes called SSDI benefits. It's sometimes called Title II benefits, which is the title of the Social Security Act where it's found under, or DIB, Disability Insurance Benefits. And the other type of disability benefit that we're gonna talk about is Supplemental Security Income, which is sometimes called, abbreviated to SSI or Title XVI, which is again, the title of the Social Security Act where SSI was created and is described. Now, just as kind of a preview, however, and we're gonna talk our way through how a typical disability case goes. But I get asked all the time, so you know, I'm thinking about applying for disability benefits, which benefits should I apply for? Apply for both. Because even if you don't meet the technical eligibility requirements, which I'm gonna talk about, for either of the benefits, the worst thing that happens is you just get a letter from Social Security that says, "Hey, you're not eligible. You know, you don't have enough work credits for SSD," or "You have too many resources or assets to be eligible for SSI benefits." I'll get into that a little more later. But at least you have filed for all of the benefits that you may be eligible for, and let Social Security sort that out later. So I'm gonna start by talking about the most common form of type of disability benefit, Social Security Disability Insurance. And as I sort of alluded to earlier, SSD benefits are for people who have essentially worked and paid into Social Security. Generally, disabled individuals must have 20 quarters of coverage within the last 40 quarters before becoming disabled, which basically boils down, so you have to have paid into Social Security for five years within the last 10 years, okay? The rules are a little bit different for workers who are under the age of 32 because as a result of their young age, they just haven't had an opportunity to pay into Social Security as much. As a result, usually what it is, the amount of credits that you need is you have to have worked for half of the time between the age of 21 and however old you are when you apply. So, for example, if somebody's 26 years old, they have to have paid into Social Security for, let's see, 2 1/2 of the previous five years is just a rough example. The things that I think are important to understand about Social Security Disability Insurance, and I'm going to do kind of a compare and contrast when we talk about SSI. But SSD benefits come with Medicare, health insurance through the federal government. And you qualify for Medicare after 24 months of being in a pay status with Social Security. A good way to think about Medicare and why that comes with SSD benefits is that SSD benefits are like collecting your retirement benefits early, you know, because you become unable to work. And retirement benefits, of course, come with Medicare. So it makes sense that it would come with SSD benefits as well. Another important thing. There is a five-month waiting period before disability benefits begin. So what that means is say, we're recording this in January of 2023. Somebody were to become disabled today. And they quickly apply for disability benefits, okay? You will not actually be eligible to receive a disability check for five full months. So January doesn't count, February, March, April, May, June, July of 2023 is the first month that somebody applying for disability who just became disabled today could potentially be eligible. Now this is hotly contested, and this is my pitch in the middle of this to look up what's called Stop the Wait Act, which is pending in Congress. This is something that is very important for people who are applying for disability. There's a lot of congressmen and senators who are working hard to try and eliminate that five-month waiting period 'cause it's very hard for people to provide for themselves when they stop being able to work, and all of a sudden, now, not only do they not have their source of income, but Social Security says, "Well, you've got to wait almost six months. It's the five full months before we can even pay you anything." And there's also a proviso in there to try and end the wait for Medicare. And I put a link in here, so if anybody's interested, you can look up that bill that's been proposed, but this is something that we really hope comes soon. Next thing about SSD that I want everybody to know is that the Social Security Administration can pay retroactive benefits up to one year before an application date. If you demonstrate that you were disabled during that period. So what that means is if you were to, you know, there's many people who become disabled, and they think they're gonna get better, you know? And those are usually my favorite type of clients to help the people who they've put it off because they put their faith in their doctors or in their treatment. But for whatever reason, you know, later on, you know, they don't improve and they still can't work, and eventually, they file for disability. They don't lose all of those months that they didn't apply because with SSD benefits, you can actually get retroactive benefits for up to a year before the application is actually filed. That's really important. How are these benefits calculated? It's very similar to how Social Security retirement benefits are calculated, but it's based on the average indexed monthly earnings, which produces a complicated figure, which is called a primary insured amount. They look at usually the five highest years of an individual's earnings, and that's how they will determine, you know, how much somebody would receive in disability benefits. But the way that I like to explain it to people is that it's based on how much you earn. So, you know, you paid more taxes if you earn more, how many years you worked. And so, you know, the longer you work, the more you earned, the more in taxes you paid, the higher your monthly benefit amount would be. My advice to people though that are trying to estimate how much they'll receive, just go to Social Security's website. You can create an account. It's called my ssa.gov. And within a minute or two, you set it up and it'll tell you exactly how much you were to receive if you retired, became disabled. If you had a spouse who you were dependent of, and you were linked to them, it'll tell you how much you would receive. But I tell people, don't try and calculate this on your own. And this is all I do, this is my entire profession. I can't do a good job of guessing how much people would receive. So trust Social Security's website. The other important thing about SSD benefits that I want to discuss is that there are dependent benefits for, you know, of course, dependent children of people who are disabled up until the child reaches 18, unless the child is continuously enrolled in secondary education. In which case, they can actually continue to receive dependent benefits on the Social Security recipient's account until the age of 19. The amount that's received is usually about half of what the adult receives. So it's very common where, you know, I'm just gonna use an even number here. If a person was eligible for themselves to receive $1,000 a month in disability benefits, but had two dependent children under the age of 18, each child would usually get about $500 more. So the total family amount would be about $2,000. So that's something that's important to people who have worked and paid into Social Security. The way that I always like to explain it is that disability benefits, it's like, it's an insurance system, and it's like your car insurance. As long as you're working and paying into Social Security, your premiums are paid, and if something happens to you, you're eligible to receive. But after a period of time of not working, of not paying your insurance premiums through your FICA taxes, your eligibility for the benefits lapses. It's very different than the retirement standard. But it's a good way of thinking about the system as a whole. What is SSI? You're gonna note some very important differences here. Okay? Right up the top there, you know, generally speaking, SSI is a federal welfare program for disabled individuals, okay? Now, while SSD benefits, we talked about how those are based on work credits and having paid into Social Security. To be eligible for SSI, you never have to have worked. You only need to be disabled and have very limited income and resources. Now it's very, you know, low income and resources. A single individual can only have up to $2,000 in assets while remaining eligible for SSI. A married couple can have $3,000 in assets while still remaining eligible for SSI. But that includes cash, stock, bonds, anything that is easily convertible to cash counts as a resource under this calculation here. And, you know, I always like to tell people to put it in perspective. This is another thing that I really hope gets changed because of how many people get excluded just by having a little bit of assets, which is more than this. The resource limits have not gone up since 1975, okay? Just, it was, right? You know, and I always think about how my parents at that point were finishing up high school and telling me that they used to go to the movie theater and popcorn was a nickel. The movie was a dime and popcorn was a nickel. And to put that in perspective, think about what $2,000 was then versus what it is today, especially with the cost of, you know, living it that's gone up in recent inflation. I mean, it's really paltry. Now, we talked about how SSD benefits, the amount that someone receives is based on how much they worked, how long they paid into Social Security, you know, how much they earned. SSI, it's called the federal benefit rate. It is set every year. It goes up with the cost of living adjustment that's done. But the most that somebody can receive in SSI benefits is $914, okay? And everybody starts with being able to receive $914. But often what happens is Social Security reduces money by 1/3 to account for the value of shelter and food. So, you know, going back to the purpose of the program, it's a federal welfare program. It's based on need. Social Security assumes that if somebody is living in somebody else's house and not responsible for contributing to the rent, or if, you know, not contributing to the grocery bills, they don't need the full 914 because somebody else is providing for them, and they will reduce the benefit by 1/3. Another thing that's important, and I'm gonna talk about a difference between SSD and SSI here, is that for every $2 you earn, and this isn't on the slide, but for every $2 you earned from work, $1 gets taken off of an SSI payment. However, SSD recipients, and I guess this is a reward for having worked and paid into Social Security, they still can't earn more than that SGA amount that I talked on the first slide, which this year is 1470, but they get to keep their full disability payment and the money that they receive from work as long as their work is not, you know, exclusionary, as long as it's under that 1470 SGA amount, okay? But to kind of get us back to the slide here, I think I did mention that monthly benefits are subject to a cost of living adjustment every year. Actually this year, Social Security did the largest cost of living adjustment that they've done in over 20 years. It's like 9.4%, which was pretty significant. And SSI recipients are eligible to receive Medicaid immediately. And in fact, you only need to be eligible to receive $1 of SSI in order to have Medicaid eligibility. This is very important for a lot of disability applicants. You know, I'm fortunate, as I mentioned, to be based in Cleveland, Ohio. And Ohio is one of the states that back in 2014 and other states did it in different years, had Medicaid expansion where basically, as long as you, as a household, would've met the resource requirements for SSI. Now they already would be eligible for Medicaid, but there's many states where I have clients, and their state doesn't offer Medicaid just to anybody who shows financial need. And so being found disabled is very important because it's what unlocks their eligibility for SSI benefits. I talked about how SSD benefits, you can actually get paid a year before the application. It's different with SSI. Benefits start in the month after somebody applies. So you can't receive benefits any earlier than the application. Somebody applied for SSI benefits in January of 2023, the first month that they could potentially be eligible to receive a check is February of 2023. And SSI does not pay dependent benefits. So we talked about the extra money that families can receive for dependent children, SSI does not come with anything extra for dependence. Now, here's the meat of this presentation. We're getting to the goods here. And I'm gonna just kind of talk a little bit about the disability application process. First thing to understand, and I made this analogy earlier, which is that this is a process that's like an insurance system and with the premiums. Well, the entire process is set up very similar to that. And what I mean is Social Security, I believe, operates very similar to Progressive, and GEICO, and the other insurance companies that you see on TV, which is, you know, they're trying to maximize what's coming in and minimize what's going out. And that makes sense when you're a private corporation. However, Social Security operates pretty similarly. At a minimum, what their goal is to do is to, going out as there is coming in. Excuse me, to have as much coming in as there is going out. But they do that by denying people. And this truly is an insurance system. And I'm gonna go through each of the different levels of the adjudication process on subsequent slides. But to just kind of show you how it works now, you know, when somebody submits an initial application for disability benefits, there're only about 1/3 of people actually get approved. About 65% of people get denied. So if you get denied, you file an appeal, which is called reconsideration. There's a few states that skip this step. They're called model states. And if you look at the denial rate at the reconsideration level, you can see why in some states, they've tested just doing away with it because it's almost like a rubber stamped denial. 85% of reconsideration appeals get denied, which then you file another appeal, which is called a hearing request, where you go before an administrative law judge. And there, as opposed to the bigger numbers being on the denial side, you see that the approval rate nationally is actually about 54%. And so the message that we always pass along to people is don't give up. Just because you were denied doesn't mean you're not actually eligible for the benefits. It just means that they're doing to you what they do to pretty much everybody else, which is try to get you to give up and go away. So file the appeals because in the long run, your best chance of being approved is actually gonna be on your third go at it at a hearing with an administrative law judge. There are additional levels beyond the ALJ stage. The Appeals Council, which is one national body that reviews all cases denied by ALJs for the entire country. They're based in Falls Church, Virginia. Their remand rate is only like 7%. They only disagree with the decision that the, you know, previous adjudicator the judge came to about 7% of the time and send it back. And I'm gonna talk a little bit more about that in a moment or later on in the presentation. The federal district court level, that's a case where we find ourselves a lot though. And, in fact, there's a lot of great work being done in the federal district courts. The remand rate, you know, your chance of getting another bite at the apple with a new hearing is pretty decent in federal court depending on the jurisdiction that you're in. But bottom line is almost everybody is denied when they apply. And the key is to keep filing appeals. You know, I always tell people, if Social Security made getting these benefits easy, then I would be a corporate lawyer, or a worker's compensation attorney, or an employment attorney, something else. But the reason that I have not only a job for myself, but that I'm able to employ as many people as I do is because this is a system that is based on making people fail. And our job is to help guide them through the process to that end where you do have a strong chance of being approved if you truly can't work. Now, let's talk about the application. There are many different ways that you can apply. You can apply online, you can apply over the phone. Believe it or not, you still can file a paper application. But I always tell people usually the best way is to file your disability application online. It's definitely the quickest. And I do include the link here in case anybody's interested to just kind of click through and see what the disability application looks like. And I'm gonna talk about the different pieces of it. But you know, I find, Social Security has, for the last eight or 10 years, really just been trying to push online applications and discouraging in the office, over the phone, or paper applications. So what they've done is they've really tried to streamline for people who are willing to go through the process that they want, which is to do it online. One application allows you to apply for both SSD and SSI benefits. I told you on an earlier slide that I really encourage people to apply for both benefits. However, all that means is checking a box, an extra box on the application. What the disability application is it's generally speaking, an SSD application. And then by checking a box on the application where it asks, do you intend to file for SSI? It becomes an SSI application as well. I provide a kind of a link here to what's called the application checklist that Social Security publishes, which kind of goes over all the different things that you might want to have ready and available for you if you're going to apply, but we're also gonna talk about that now. So what are the things that are important to have if you're applying for disability? First, it's important you know when you were born, your own birthday, where you were born, your Social Security number. You should have the name, Social Security number, and date of birth, or age of any current and former spouses. Why? Because they may be eligible to receive dependent, they may be able to receive auxiliary benefits on your record if you're found to be disabled. You also should have the names and dates of birth of minor children. We talked about the dependent benefits that SSD pays. And so it's important that you have that information available so that Social Security could potentially approve money for them as well. And then you need to have your banking information. Now the U.S. Treasury requires an electronic transfer, of any disability money. So, you know, they will send a first check to people, but the monthly deposits of SSI or SSD funds, it needs to be into a bank account. So it's important that you have a bank account set up and you have a routing number ready so that you can give that to Social Security and they can pay you, hopefully, if you're approved. Information about your medical condition. Of course, we're talking about disability benefits. So you need to have available when you apply. Detailed information about medical illnesses, injuries, or conditions. You need to have the names, addresses, phone numbers, patient ID numbers, dates of treatment for all doctors, hospitals, and clinics, need to have the names of all your medications and which of your physicians prescribe them for you. And then also you should have the names and dates of medical tests performed and who sent the applicant for testing. I think this is the most important part of the application right here because at the end of the day, disability benefits and being awarded them, it's gonna be based on an individual's medical records. And so it's very important that you give Social Security the information that they need to be able to track your records down so they can review a complete file, you know, everything that's going on with you, and hopefully award you the benefits. On the application, they're also gonna ask about your work, okay? Because to prove that there's no work at all that you can do in the evaluation process for Social Security, one of the things you have to do is prove that you can't do any of the work that you've done, okay? So you need to have available the amount of money that you've earned in each of the last two years, so that Social Security can evaluate if you are working or have worked at SGA, substantial gainful activity, that 1470 we talked about earlier. The beginning and ending dates of any active US military service, they asked that on the application. And then a complete list of all of the jobs that you have done in the 15 years before becoming unable to work and the dates that you worked at those jobs. And then information about any other types of benefits that you might be eligible for applying. workers' comp benefits, black lung US railroad disability benefits. It's important to have information available about those to include that on the application. Disability application tips. This is important. You need to be prepared to admit accurate and complete limitations and interviews with Social Security and in the form sent for a completion by Social Security. I always, you know, make sure to tell clients, be honest with yourselves and with your doctors. Avoid denying symptoms, but avoid exaggeration as well. You know, like I said earlier, at the end of the day, these cases are gonna come down to what your records say. But Social Security is gonna send some paperwork, which we're gonna talk about in a few minutes here to complete. And it's important that you do the best that you can with those, really take your time and provide accurate, detailed descriptions of how you're functioning and what your work was in the past and that you're honest about it. Another application tip that I always give to people, do not feel pressured to answer yes or no to questions from Social Security. The answers to the questions that get asked on an application are very rarely yes or no more likely. You know, the questions that, you know, are asked on the application, the responses are maybe, sometimes. Let me give you an example. Soon after filing for disability, Social Security will send you a form that's called a Function Report, which we're gonna talk about. And it asks you to, you know, just kind of go, it's a complete list of different daily activities that a person might do. And it wants to know, are you limited in them and your ability to perform any of those activities? You know, for example, it'll ask on there, do you have any difficulties? Or, you know, do you prepare meals? Do you cook? Do you clean? Well, the answer to do you prepare meals for pretty much anybody with a pulse is yes. I mean, but the trick is don't just respond with a yes answer. Describe how your limitations affect your ability to prepare meals, how they affect your ability to clean around the house. So let me give you some examples here. You know, when we're talking about the preparing meals, if they say, do you prepare meals? You can say yes, but then below it, make sure you explain that preparing a meal is limited to, you know, pouring a bowl of cereal or making a quick sandwich, and that you can't cook over the stove because it requires you to stand for too long. Or maybe you do do some stove cooking, but you have to pull a chair up next to it. Tell Social Security that. The question should address how your limitations affect your ability to do whatever activities they're asking about. And similar to cleaning, I mean, I could come up with similar examples. You know, well, I do clean my house, but I can only do it for five minutes at a time. You know, and then I need to sit and take a break. I used to be able to clean my whole house in a morning, now it takes me two days just to clean my living room. Those are things that Social Security that should know. But a lot of times people just rush through the forms, read the question that says, do you prepare meals, checks yes without qualifying it all. And the unfortunate inference that Social Security makes is well, if you can prepare a meal, McDonald's is hiring. So give them information to help rebut that presumption. Next thing, and this is something that I'll talk about again later on, but this is more than even just on the application. It's important that you are documenting your symptoms and functional limitations in treating records. I want my clients to be complaining to their doctors and having their complaints recorded because of exactly what I said earlier. These cases are based on the records. Every client that I've ever had, every disability applicant in America is filling out a Function Report, which, you know, describes serious limitations that they believe would keep them from being able to work. The people who actually get awarded disability benefits have medical records that describe the same limitations that they're complaining about in the forms that they're filling out for Social Security. You know, nobody ever gets approved for disability because of what they tell a judge is wrong with them or how they fill out a form, it's because of the tests that your doctors are doing and they're reporting of your daily activities. So you make your case to your doctors. Every time you have an appointment with a doctor, therapist, whether it's for mental health or physical health, you should be letting them know how your limitations are affecting you from doing your daily chores. People don't get disability just because they're in pain. They get disability because they can only stand for three minutes before the pain is so excruciating that they have to sit down and change positions. So I hope that makes sense. Kind of talking about the different stages now. After that application is filed, Social Security begins collecting medical records based on the information from the application, okay? That's something that if I'm representing somebody, I'm working with Social Security and the client to, you know, deliver to Social Security the medical records for our clients. I told you how that's the most important part of the process. And then Social Security will send a few forms. I was giving examples from that Adult Function Report earlier. That's the form where they ask about the cooking and cleaning and just how you interact with other people. Basically everything that a person would need to do every day. And then there's also a work history report where you have to describe what you did in the jobs that you've had in the last 15 years. The initial application stage, both of those forms get filled out. They're really important. How we handle it in my office, and I think this is good information for people who are interested, is I don't let my clients speak to Social Security at all. Once I assume representation of someone, if they have any questions about their case, I tell them they should contact me, not contact Social Security. If Social Security ever tries to reach out to them, I tell the client to only tell Social Security that they have a lawyer and that they should call the lawyer. And we also review all of this paperwork, the work history report and Adult Function Report before it gets sent to Social Security. I'm a control freak. I wanna see and hear everything before Social Security does. It's the only way that I can make sure that SSA is getting good, helpful, relevant information about my clients in their case. So we really try and be middlemen for our clients, which allows us to be the best advocates possible. Often even after collecting medical records, Social Security will send applicants to a doctor's appointment, which is called the consultative exam, to get information about an applicant's medical condition. I want to talk about this a little bit because there's some misconceptions around these. They're called CEs. And a lot of times, you know, a client will get a denial letter in the mail and call my office and say, "You know, Mr. Liner, they didn't even send me to see their doctor. How could they have, you know, truly considered my condition?" What clients rarely understand, you don't wanna be sent to a consultative exam. They only will send somebody to a consultative exam if the person's own medical records don't contain enough information for Social Security to be able to form an opinion and make a decision. But who's paying for these consultative exams? Not the applicant, Social Security is. And what is Social Security? It's an insurance company. So, you know, not to say that every consultative examiner out there is bad or biased, however, you know, from having handled thousands and thousands and thousands of these cases, what I can say is that, on average, you know, CEs are what you would expect of an exam that's paid for by an organization that wants to turn you down and wants you to go away. They're quick, brief doctor's appointments. The testing that they do is not particularly relevant. You know, a lot of times somebody will say, "Well, I've got two bad knees." And they'll say, "Well, pick one. We can only image one of them." They're not ordering MRIs, they're ordering X-rays, which is, you know, everything, these exams are not intended for treatment, they're intended to provide enough information that Social Security can say, "We looked into whether this person was disabled and what their limitations are, but it's not serious enough and to be able to issue a denial." The average wait time for an initial application decision. So once somebody's filed, it's usually about four to six months. You know, Social Security also gets backed up a lot. You know, an average is based on outliers, it's based on cases that were decided quicker and cases that were, you know, that took longer. Just this morning, I was on the phone with a new client who said that they had just been denied at the initial application stage, and it had taken 13 months to get that denial letter, which is pretty outrageous. But it's a slow process as you're gonna see here. Reconsideration. So as I explained, most people who apply for disability get denied at first. To do the reconsideration, it's an appeal that we file online. Filing it is very fast. Usually only takes us about 10 minutes. But with it, we need to submit this form that's called a disability report, which is basically asking about anything that is new or has changed since the application was initially filed. And I include a link here. So anybody who's interested can look up that form and see what it looks like. You know, looking at the middle bullet there, and I put this part in italics on purpose. According to SSA, reconsideration is a thorough independent review of all evidence from the initial determination and any new evidence the claimant or another individual submits in connection with the request for reconsideration. Why did I put according to Social Security? Because in reality, what I have found is that reconsideration reviews are usually very abbreviated and they literally result in a carbon copy of the original denial letter. How could I say carbon copy? Because a lot of times, I will find that the same typos that appeared in an initial denial letter appear in a reconsideration denial letter. They didn't even have the courtesy to fix their typos. They just decided to put a new header on it and print out the same denial letter. Pretty sad. Something that I think is good information to people to have because there's different buckets where I think if somebody's gonna be approved at reconsideration, usually one of three circumstances occurred, okay? First circumstance is Social Security was missing records, missing medical records when they made the initial decision. A lot of times, I will take in a client after an initial denial, and they will tell me about a doctor, an important doctor that they're treating with that they just forgot to report to Social Security. So we go and get those records, send them to Social Security. And after a view of those new records that should have been there all along, they decide to approve the claim. That's one circumstance. Another circumstance that leads to approval sometimes is an age change. It becomes a little bit easier to get disability as somebody gets older. When somebody is under 50 years old, disability cases are often very difficult. They're always very difficult. But when somebody turns 50 years old, then again, when somebody turns 55, Social Security has what's called grid rules. They're also called medical vocational tables that make it so the application of disability for older workers is a little bit easier. For example, somebody who is over 55 years old doesn't have to prove that there's no work at all in the national economy that they can do. They just have to prove that they can't do any of the past work that they've done in the past 15 years and haven't acquired any skills that would allow them to do work that it would transfer from. And they have to demonstrate that they would be unable of doing work beyond light exertion level, okay? Those are called the grid rules. Sometimes somebody applies for disability does the initial application when they're, you know, 54 years old, gets denied. By the time Social Security considers the reconsideration appeal, the person is then 55. And so they have an easier chance of being approved because they weren't subject to those grid rules or to one of the grid rules at the initial determination, but they become able to have them applied at the reconsideration. So that's something that's important and good to know. The third bucket is somebody gets approved for, you know, there's an a circumventing event, an event that happens after the application, I mean. And these are what we always hope to avoid, but, you know, life happens. You know, I've had clients who applied for disability because of a mental health impairment and literally got hit by a bus or struck by lightning. I've seen both of those things, and their health totally changes because of a new intervening event. And they become eligible to receive disability on the reconsideration because the evidence that's important to their case at that point is totally different than the evidence that Social Security was even considering or looking at on the first application. So those are the three buckets. The average wait time for a reconsideration determination is about three to five-months. You know, like I said, because it's not as extensive of a review, it's faster. There's not as much for them to need to, you know, they're not really reviewing everything they should so they can get through it a lot quicker. Most people at the reconsideration get denied. So we file another appeal for them. We use that same disability report appeal form that we use to file the reconsideration. And what happens after you get denied by a judge. Excuse me, what happens after you get denied at the reconsideration is you present arguments to a judge for why you believe that you'd be unable to work. Historically speaking, and I showed those numbers earlier, this is the stage of the process where most people get approved if they're going to be approved. So the good news is even if somebody gets denied at the initial level, denied at the reconsideration level, I always tell them, "Don't panic, don't freak out, don't think that you're never gonna get disability benefits. Your best chance is still in front of you, okay?" The bad news is that this is a really slow process. It takes a long time to get to a hearing depending on where you are in the country because there's hearing offices located in, not all 50 states, but you know, the Social Security Administration has about 225 hearing offices that ALJs work out of. It can take anywhere from six months to 24 months to get a decision. So it's really, really, really slow. During the hearing, you know, an administrative law judge will explain issues in the case and question the applicant and any witnesses that may appear about the nature of somebody's disability and why they'd be unable to work. My office will submit all medical records for our clients, you know, before the date of the hearing. We wanna make sure that the judge has an opportunity to review all of the records before the hearing. And so we provide those. And you know, a hearing usually lasts around an hour. Most hearings have a, you see below here. The ALJ may ask a medical expert or vocational expert to testify. We don't see many doctors testifying in disability hearings anymore. Frankly, I'll tell you what I think happened is the medical experts were a little more gracious with their opinions of disability than judges wanted them to be, so they were kind of pushed out of the process, you know, because they were leaned on to help the judge decide what limitations would be appropriate for someone or whether somebody might have met any of the automatic rules for disability. And so we don't see medical experts very often. However, almost every hearing that we do has a vocational expert at it, which is an expert who is hired by Social Security to provide an opinion about what type of work the individual has done and the applicant has done in the last 15 years and define it, but more importantly, help the judge understand with different hypothetical work limitations. Would there be any work that the individual could perform? And so, you know, but a hearing is that's the date that we're getting excited for that we're building towards. We make sure that we have letters of support from our client's doctors, family members, friends, anybody who knows about them. We make sure that they have all the medical records, and we make sure that we, you know, do a good presentation for the judge and really explain why because of their health issues, there's no work at all that they would be able to perform. There are subsequent appeals even after the unfavorable ALJ hearing that I was talking about earlier. I talked about how the Appeals Council review, the remand or reversal rate is extremely low. Historically, only about 7% of cases get remanded and 0.01% get outright awarded by the Appeals Council. If somebody gets denied or dismissed by the Appeals Council, you can then file an appeal all the way through the federal court system. And in fact, there are more disability cases filed in the US federal courts than any other type of case. Something like 60% of the US District Court dockets is disability appeals, which is kind of hard to believe, but that's how prevalent they are. And depending on where you are geographically, the remand and reversal rates can be quite high. What's important to know about appeals after an unfavorable ALJ hearing decision is that the standard of review changes. It is no longer a de novo review, you know, with fresh eyes. When somebody is filing their initial application, if they're denied and they're at reconsideration, and again, before an administrative law judge, you know, the only question is is the person disabled? Is there no work at all that they can do? However, after the ALJ level, once you get to the appeals counsel in federal courts, the question is totally different. The question is, did the judge make a mistake of law? Mistake of fact? Was there an abusive discretion? Is there a public policy problem with the judge's decision? And so it's more about there being error at the ALJ level than it is about whether the person's disabled. You need both. You need to create the, you know, significant question that there's harmful error, and that if the case is remanded, whatever was wrong with it could have led to a different decision. But it's more about something being wrong with the process than the person being disabled. What I expect from clients, this is really important. I expect that my clients abstain from all use of drugs and alcohol. This is so important in a disability case. When people are applying for disability benefits, it's like the chicken and the egg game. Social Security law has done a 180 over the last 20 years where people actually used to be awarded disability benefits because of addiction issues. That was considered a mental health issue. And if they were unable to work as a result of it, they could receive disability benefits. The 180 is now, if somebody's drug or alcohol use is a contributing factor to why they're unable to work, Social Security has to find the person not disabled. Now, if the person is, you know, using drugs or alcohol, but they would be disabled either way, they can still be found disabled even if they're continuing to use drugs and alcohol. The problem is that often Social Security gets to decide who's, you know, what came first, the drugs and alcohol or the, you know, liver problem, or the mental health problem? And boy, if you just stopped, you know, abusing drugs, you wouldn't be hearing voices, or if you just stopped drinking, your liver function would improve. And so it's only because you continue to use DA&A that, you know, you're unable to work. The best way to re to rebut that presumption by Social Security, which is usually gonna go against the individual is to just not have it in the records at all. Don't use drugs, don't use alcohol. That's bad for your health, and it's bad for your disability case. I expect that all of my clients are treating with physicians and making regular follow-up appointments. You know, my clients will say to me a lot, "You know, I have a back condition. I'm seeing the doctor once a month. Is that enough to get disability?" The answer is maybe. You know, I don't want you to go to your doctor and tell them to increase your treatment because you're applying for disability. But if they tell you that you should try physical therapy or need to have an MRI done, you need to follow what they're telling you to do because it's gonna be their notes and your compliance with their treatment recommendations that create the records that we need to prove disability. So it is really important that my clients are treating with a specialist for each of the conditions that they want Social Security to consider to be severe. If all you're doing is seeing a primary care doctor, and you have a severe mental health issue and something is wrong with your heart, the notes that are being generated in the case probably aren't significant enough to win. What I wanna see is if my client has depression and a back problem, I want them to be treating with a psychiatrist for the mental health and for the back, they should be seeing either an orthopedic doctor, or a rheumatologist, or a pain management physician. Some people are going to a neurologist even for a back problem. But specialist care because specialists are more likely to do the, you know, significant testing that it takes to prove the limitations which go into a disability case, okay? Tell your treating source what's wrong. I talked about this earlier when I said that it's important that you admit every, you know, you admit all your limitations, but don't exaggerate them. Make sure you're doing the same with your doctors. Symptoms must be documented for Social Security to consider them real. Again, if the first time that Social Security is hearing about your back pain is at your disability hearing, and it's not accounted for in your records, and there's no treatment for it, it's not been documented well, a judge is probably not going to consider it at all. In fact, it might be a negative credibility problem. You know, parrot to your doctors everything that's wrong consistently 'cause that is, excuse me, so important to a successful disability case is having thorough and complete medical records. And follow prescribed treatment. I mentioned this earlier. But, you know, just like it's important that you are going to the doctor, you need to actually be doing what they're telling you to do because if they're suggesting, "Hey, I'm gonna put you on this medication that I think is gonna clear up your symptoms," the lens that Social Security evaluates disability is if this person were to be following the treatment that is recommended by their providers, would they still be unable to work? So if somebody has severe mental impairments, but they're totally unmedicated, even though their medication is being prescribed and recommended for them, Social Security says, "Well, the reason that you're unable to work is because you're not following your doctor's orders. And if you were to just take that Prozac, take that Seroquel, it would improve your functioning enough that you can work." The purpose of medications is not to knock you out and make you disabled, the purpose of medications is to restore functioning. So, of course, Social Security wants to know how somebody would be functioning if they were receiving all of the appropriate treatment for them. I have really enjoyed getting to talk to you. I hope that the information that I shared here was relevant and important. These are things that I wasn't taught when I was in law school. I don't think that there was a class on this, but it's something that I'm very passionate about, and I think it's been a great career for me and the other people who are engaged in it. And if you do have any questions, I would be more than glad to answer them, and I hope that you would reach out to me. So here is my address, my work address as well as my work and cell phone number. And I am happy to speak to anybody who's interested in this type of law 'cause I'm very passionate about helping to build the profession and get new young attorneys into this practice. Or even if you just, you know, wanna talk, please reach out. Thank you so much.

Presenter(s)

ML
Michael Liner
Founder
Liner Legal, LLC

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