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Wanger: A primer on the Social Security Disability process

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Friday, Nov. 10, 2017 4:54 PM
Michael Wanger

Social Security Disability and Supplemental Security income are ways for people who are unable to work for at least 12 months to receive income from the federal government. This article will set forth the procedure and obstacles in attempting to obtain those benefits.

To start the procedure, you must either apply online at the Social Security website or go to our local Social Security Office at 103 Sheppard Drive, in Bodo. At that office, the personnel will assist you to file the application for benefits. This is the first step in the process.

Normally, the applicant will be turned down for benefits within two months of the initial application. At that point, you must request a hearing in order to pursue your claim. This can also be done online or at our local office. It takes approximately 18 to 24 months to obtain a hearing date.

The hearing is held in a small room at the local Social Security Office. It is a video hearing where the applicant and the attorney are in Durango and the judge is in Colorado Springs.

The most important thing in proving a person’s disability is medical records. Without a strong medical record supporting the claim, an applicant is destined not to receive benefits. The applicant must be able to demonstrate he or she cannot work at any job, not just at the previous occupation. This is proven primarily through medical records that demonstrate the applicant has a severe disability or disabilities; either physical or psychological in nature, or both.

Another important factor in obtaining benefits is the age of the claimant. It is extremely difficult for a person under the age of 50 to qualify for disability benefits. In addition, the applicant cannot be earning over $1,170 per month from employment during the disability period.

Disability versus SSIThere are two types of disability benefits – SSDI and SSI. SSDI (disability benefits) are based on the money the applicant has put into the system from his previous employment. A rule of thumb is that one must have worked roughly five out of the past 10 years to qualify for SSDI. The benefits paid out for SSDI are directly based on the amount of earnings the claimant has put into the system.

SSI is for indigent applicants who do not have a significant work history and assets. For example, if you own a house or have over $2,000 in a bank account, you will not financially qualify for SSI. The monthly SSI payment for a successful applicant is $735 per month. In some cases, a successful claimant can receive both SSDI and SSI if he or she is indigent and has also worked five out of the past 10 years.

Retaining an attorneyIt probably is a good idea to hire an attorney if you are proceeding to hearing. An attorney can help gather your medical records, submit them to Social Security and argue your case in front of the judge at the hearing.

Under the applicable statutes, an attorney may charge you 25 percent of your back benefits (benefits you are entitled to before your hearing date) up to a maximum of $6,000. The attorney is not entitled to any of your future benefits.

You are responsible for the cost of your medical records. Having an attorney at the hearing is not a requirement, and if your medical records are strong enough, you may be able to prevail without one. It is advisable, however, to retain an attorney, if one will take your case.

The hearing As stated earlier, the hearing is a video that takes place at the Social Security Office with the judge being in Colorado Springs. Also present at the hearing will be your attorney, if you have one, a court reporter and possibly a vocational and medical or psychological expert retained by Social Security to assist the judge in making his or her decision. The experts will also appear by video or phone. There is no opposing attorney.

Before the hearing, the judge will have reviewed the medical records you submit to Social Security. The judge will ask you questions concerning your work history, your medical issues and medications, and your daily activities. Your attorney may also ask questions to fill any gaps he or she feels the judge may have omitted.

The judge will use the vocational expert to pose hypotheticals about any work you still may be able to perform in light of your limitations. Such jobs may include watching surveillance cameras or assembly line work, which the judge can use to refuse you benefits. Exaggeration by the claimant about medical symptoms usually results in denial of benefits.

The judge normally does not tell the claimant his or her decision at the hearing. If you receive a fully favorable decision, you should receive it within one month to six weeks from the date of hearing. Should the decision be unfavorable, it may take significantly longer than that.

If you do not prevail, you can either appeal the decision to the Appeals Council in Virginia or reapply, starting again from scratch. Either way, you will have to wait another year to two years. The entire process is long and can be extremely frustrating. It is designed to make it difficult to obtain benefits.

If you are successful, you will receive back benefits from the date of onset of disability to the date of hearing. The claimant’s attorney will be paid directly by Social Security from those benefits. Normally, it takes 24 months to receive Medicare benefits. Monthly benefits should commence approximately two months from receipt of a fully favorable decision.

Michael Wanger is a sole practicing attorney in Durango. Reach him at mwanger@gobrainstorm.net.

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