By: Barrett R. King, Esq.
Social Security Disability Insurance “pays benefits to you and certain members of your family if you are ‘insured,’ meaning that you worked long enough and paid Social Security taxes.”1 In order to have worked “long enough,” you must have forty ‘credits’. One credit is earned for every $1,220 in wages or self-employment income up to a maximum of four credits per year. In addition, twenty of your total credits must have been earned in the last ten years before you become disabled. Benefits are available for widows and for disabled children who cannot or will not earn credits on their own and such individuals may ‘piggyback’ on the credits of working spouses or parents. For purposes of this article, however, we will focus on a worker that applies for benefits.
“Disability” comes with its own definition for purposes of receiving Social Security benefits. You are considered disabled for Social Security purposes if you (1) cannot do work that you did before, (2) cannot adjust to other work, and (3) your disability has or will last at least one year. If you possess enough credits and you feel you meet these criteria for disability, you may apply to the Social Security Administration for Disability Insurance.
In 2014, the Washington Post published an article by David A. Fahrenthold titled “The Biggest Backlog In the Federal Government.”2 The story highlighted the fact that nearly (and, as of this writing, more than) one million applications at one office for Social Security Disability were pending review.3 In addition, Fahrenthold explained, applicants for disability benefits are waiting an average of 435 days for a decision on their application.4 And this is after the cases have been denied at the application stage (twice, as readers will see) and are waiting for a judge to hear the applicants’ plea their cause.
In representing many clients who are approaching retirement or who have disabled children who qualify for various public benefits, this writer has gained a wealth of knowledge about navigating Social Security and it was only a matter of time before the opportunity arose to help a client pursue disability benefits.
Over the years, the firm has assisted dozens if not hundreds of individuals through the process of seeking disability benefits from Social Security. Unfortunately, much of what the Washington Post article says is true. Routinely, cases languish in the various stages of the process for over a year and, in more than one example, exceed two or even three years before resolution.
What we have found is that clients are much better served by hiring an attorney to help them apply from the beginning. Many clients come to us after their initial application is denied. Nine times out of ten, we find that the client overstated their ability to perform certain tasks (via a form called the Disability Report which is filed with the application) such as basic chores and personal care. Simply put, no one likes to admit that they cannot do things like dress themselves, clean, cut grass, cook, or even leave the house without assistance. It is our nature to want to be independent and self-sufficient. Faced with admitting the reality – in writing, no less – applicants will tell Social Security they need “just a little help” or that they “can do a little bit of laundry with no problem.”
You are not getting any awards from Social Security for slogging through these tasks despite pain or limitation, so why are you not being perfectly honest about it? If you were once able to prepare an elaborate meal for a party of eight but are now limited to preparing a sandwich on your own before you have to sit down, tell Social Security. The award you are after is the benefit of the insurance you have paid for over your working years, so relay the facts in the way that best explains what your injury or sickness has done to you. The only way the examiner can understand your experience is if you describe it accurately. The medical records only tell what others perceive. Your application is your chance to tell the subjective truth.
Many times, even if you file an application that appears to show that you are disabled, the application is denied because Social Security believes you were hurt or are sick, but that you can return to work or that you can perform a job different than the one you left. These cases go through several levels of appeal, the first being the Request for Reconsideration. This is the stage where most cases are referred to us for help.
The Request for Reconsideration is, at its most simple, a second look at your first application along with any updated information you provide. The review is not much different than the initial application, though Social Security may send you to a doctor of their choosing for an examination.
If your application fails at this stage, you can request a hearing in front of an Administrative Law Judge (“ALJ”). There are more than 1,400 ALJs who hear these appeals. Appeals are heard either by video conference (where the applicant sits in a room with a court reporter while the judge is present on a video screen from a remote location) or by in-person hearing, the latter usually occurring if the applicant lives in or near a major metropolitan area. From there, applicants who are denied have one more option: the Appeals Council, which adds another year of waiting to the whole process.
Clients who become disabled and go through this process are often waiting for a decision with no other source of income. This is a major reason why we recommend clients work with an attorney from the outset, so that your best foot is put forward in the hope of obtaining a favorable decision sooner rather than much, much later.