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SSD Appeals Process


Why Would Someone Be Denied Social Security Disability?

How Common Is It For The First Application For Social Security Disability To Be Denied?

Nationally, at the initial level, there is a thirty-three percent approval rating. At the reconsideration level, there is only an eleven percent approval rating, but at the hearing level nationally, it is sixty to seventy percent approval. I believe that this is in part due to the fact that people do not always have attorneys when they begin the process, but most people will hire an attorney before they actually attend a hearing.

What Are The Most Common Reasons For Initial Denials At Each State?

The most common reason for a denial is lack of medical evidence. It is important to receive continuous medical treatment, document your impairments, pain etc. Everything has to be documented for diagnostics to show the problem objectively and not just subjective complaints of pain. If you have not received medical treatment generally within two to three months of your application, you will most likely be set up for what is called the consultative examination through the social security administration.

The consultative examination is an evaluation that is performed by a physician that is appointed and paid for by the social security administration. Therefore, the results are generally not favorable to the claimant and they do not have the benefit of seeing the person for over a period of time. Usually, it is one visit, a few minutes in length or maybe an hour that they are basing their opinions regarding that person’s disability.

Another reason for a denial is that the claimant has sent various forms and is requested to provide information to the social security administration. A lot of times, that can be overwhelming for individuals that are going through this, trying to get medical treatment for their disability and being unable to work. It becomes overwhelming and they fail to provide the information or return the completed forms. Another reason is that clients start working again. Even if it is part-time work, it can and does affect the disability determination.

What Does It Mean If You Are Denied For Disability Because You Can Do Other Work?

This means that the social security administration has determined that although you may not be able to do the work that you have performed in the past, you are still capable of doing some other work that may be lighter in capacity in the national and local economy. Some examples of that kind of work can be construction work before and now you have a back injury. In that case they will say, “Well, we don’t think that you can do that heavy construction anymore, but you may be able to be a Wal-Mart greeter or an assembly line worker or a tollbooth collector”. Those are all jobs that you can have an option to sit and stand and do not require lifting”.

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Common Reasons for Denial of Social Security Disability Benefits

Will You Be Denied Disability Benefits If Your Medical Record Indicates That You Can Return To Work?

Yes. If the medical records show that the physicians believe you are able to return to work, then there is a very good chance you will be denied benefits. The crux of the social security disability system is to pay people who are unable to be gainfully employed due to an illness or an injury. So if your doctors believe that you can return to work and you do not, then your chances of getting disability benefits are greatly reduced.

However, if it is the social security administration’s record that says you can return to work, such as from a consultative examination, then you can still get disability benefits, because that is a onetime evaluation. If your treating physician has expressed that you are not able to work, which is really a legal determination instead of a medical determination and if they give specific restrictions that would prevent you from being gainfully employed on a continuous basis, then you can still get disability benefits even if there is a consultative examination in the file that says you are able to be gainfully employed.

Can You Be Denied Social Security Disability Benefits If You Have A Certain Amount Of Money In A Savings Account Or Set Aside?

Savings accounts and resources in general only affect SSI or the Title XVI benefits. For the Title 16 claim or SSI, there is an asset and income test. If you have more than $2,000 in assets as an individual or $3,000 as a married couple, then you will not qualify for the SSI. Title II, also referred to as DIB, and is not affected by a savings account or any other resources that are earned from working. So if you have worked five out of the last ten years before your disability onset, then you would generally be qualified for Title II or DIB and your savings or any other assets will not make a difference. It only makes a difference for the Title 16 or the SSI, which is basically a welfare based program.

In that regard, not only your savings account, but any other assets that you have that are not on this list that will be excluded. You can find that list online, but it is for things such as one house, one car, burial expenses that are in a certain policy or things like that, that are excluded from that asset list. However, a savings account is definitely included in the assets list.

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What Is The Process Of Social Security Disability Benefits?

You can start receiving benefits in as soon as a couple months after filing your social security disability application. However, benefits can also take as long as two and a half years to three years to be received in the event you have to go through the entire process at the initial level, reconsideration level and then at the hearing level in order to receive your benefits.

Social Security Disability Denials and Appeals Process

What Is To Be Expected Of The Appeals Council?

The appeals council is where you appeal from an unfavorable decision given by the Administrative Law Judge or an ALJ, and that process currently takes about two years. This is done with a paper record without an appearance by the claimant themselves or their attorney. The appeals council will either agree with the ALJ’s decision or disagree in whole or in part. If they disagree in whole or in part, they will remand it for whatever parts they disagree with, generally giving specific instructions on what the judge should consider in the rehearing process. There is always a chance that they could just outright reverse it, but that does not happen very often at all.

What Happens At The Fourth And Final Appeal? Does Florida Have That?

Yes. If the appeals council denial can be appealed, it can be appealed in federal court. This is also a lengthy process, but like the appeals council, it is a paper review for which the claimant does not appear for a hearing.

How Long Does One Have To File The Appeal After The Initial Denial?

You have sixty days from the date of the denial, which is at the top right hand corner of that denial on the first page, plus five days for mailing from the day of the denial letter itself.

How Long Does It Take To Get An Answer Between Each Level? Is It The Same At Each Level?

No. When you file the initial application and the reconsideration level, which is the second level, those are both usually three to five months. Then after you file the request for hearing, it generally is up to twelve to eighteen months, at least in the Tampa area. It varies from area to area, but in the Tempe area, it is usually that long to get a hearing. It generally takes a few weeks to a few months to obtain the judge’s decision after a hearing and around two years for the appeals council.

What Are Some Things That Someone Should Do Or Could Do To Prepare For An Appeal’s Hearing?

The only level that you really have a hearing at is the request for hearing level after the reconsideration level. If you have an attorney, they should meet with you before the hearing to prepare you for this. Attorneys generally meet with their clients about two weeks before the hearing to go over the types of questions that will be asked and what the environment will be like. They will answer any questions that the clients may have about the process, as well as discus appropriate dress and courtroom etiquette.

If You Have Missed The Appeal Deadline, Is There Anything That You Can Do?

Sometimes, yes you can. Depending on the reason that you have missed a deadline, you can file a request for extension of time for good cause to file. This will generally be granted if the reason that you failed to file the appeal in a timely manner was not within your control. Some reasons or examples of that would be mental illness, which does not allow you to understand your right to appeal. It could also be hospitalization which delays your receipt of the denial; moving which delayed the receipt of the denial, or any other catastrophe, such as a house fire.

If you can show that it was not within your power to appeal, they will generally grant that. If it is just because you didn’t feel like it, then you are most likely not going to be granted an extension. However, you can do a new application if it is within a certain period of time, it is two years for SSI and DIB is four years. If you are filing it within that time period, you can ask for reopening of the prior application. You still have to start the application process over again, but you can at least get a protective filing date.

Are You Able To Work While You Appeal The Social Security Disability Decision?

Any work you may do while your case is being appealed, will be scrutinized to determine how much work you really are capable of performing. There is an amount that social security looks at to determine if you are what they call substantially gainfully employed and that amount changes yearly. In 2016, it was $1,130, in 2015, it was $1,090, in 2014, it was $1,070 and in 2013, it was $940. If you earn that amount of money or more in any given month that is considered to be Substantial Gainful Activity, meaning you are able to work.

If you do this any one month within the first twelve months after your alleged onset date of disability, you will have to begin that twelve month elimination period all over again. Once you pass the twelve month elimination point, then they look for that same Substantial Gainful Activity or SGA, but they will also look at a lower amount to determine if it is a trial work period. So, there are many rules that we follow, we do take in to consideration self-employed individuals versus regularly employed individuals. On the whole, the case is definitely more closely scrutinized if there is income earned during the period that you are claiming disability.

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Other Questions Related To Social Security Disability Denials

Can You Get The Benefits If They Are Stopped During The Appeal?

Yes. You have to file a form within the timeframe provided on your notice, which is thirty days generally that your benefits are being ceased. You have to advise that you are appealing that decision and that you want your benefits to continue while the review is going on. That review is generally called a cessation review. However, you do need to be aware that if you do this and continue to get your benefits and ultimately you are found not to be disabled during that period after they ceased your benefits, you will have to repay those benefits to the social security administration.

What Can You Do If You Are Denied All Four Times?

You can reapply. You basically have to start the process all over again. There is an option to go to the Supreme Court to appeal. It is a fairly lengthy and expensive process.

Is There Anything That Can Be Done If You Start From Scratch To Better Your Odds?

First of all, it is very important to get an attorney at the beginning of your case. A lot of people like to wait till the end, which is one of the reasons for the disparity between the reconsideration level of eleven percent approval and the hearing level at sixty to seventy percent approval. An attorney that practices in this area and does for at least the large part of their practice knows what the social security administration is looking for.

The attorney can get the information generally from the doctors that they need. The doctors write their medical records from a medical perspective as they should, because that is what they are using them for. However, the social security administration does have a specific set of rules and you basically have to fall into and those rules have to be met from the medical records. Most medical providers do not know what social security is looking for and social security is not telling them; they are just saying, “Provide me the records”. So if you have an attorney at the beginning of your appeal, the attorneys have actual forms that are several pages that can be sent to a doctor that specifically goes through the listing or the impairment that person is suffering from. The doctor then checks off boxes; do they meet this, yes or no from a medical standpoint. That form answers all the questions that social security is looking for.

Contacting an attorney at the beginning of your case is important. You are much more likely to get approved instead of having to start all over again. The most important thing would be to hire an experienced attorney from the start. The attorney fee is not any different. The percentage is still the same, whether you hire an attorney at the beginning or at the end of your case, but you are going to get a lot more representation if you do it from the beginning than you will if you hire somebody right before a hearing. Also, you are more likely to get your benefits a little sooner.

Moreover, the attorney fee in that respect would be less, because it is twenty-five percent of past due benefits. If they are able to get your benefits earlier, then their fee is less. If your benefits come at the hearing level and you have already been out of work for three years and they do not get to your case until two months before the hearing, they are still getting twenty-five percent of those three years of benefits. Therefore, you might as well get an attorney early.

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Attorney Christine Franco

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