SSA HEARINGS - WHAT TO EXPECT

During my initial interviews I have to explain to my potential clients that most cases will end up in front of a Judge. I often sense an immediate apprehension when I use the word “Judge” or “Courtroom”.  Most people only know about Court from what they see on Law & Order. However, Social Security hearings are about the furthest thing from what is seen on Law & Order that you can imagine. But there are a few similarities that you will need to be familiar with. 

Social Security hearings are not adversarial. This means that Social Security will not have an attorney present to cross examine you. In many cases it will be just you, your representative, the Judge, and a court reporter. The Judge is neutral and while he is a part of the Social Security Administration he is not bound by any prior agency determinations on pending claim. Most hearings have the feel that you are just having a conversation with the Judge. 

Strict rules of evidence rarely apply in Social Security hearings. Hearsay is allowed and documents are do not require a foundation as you typically see in civil and criminal court. But, like we see in Law & Order, all witness must be sworn under oath with penalty of perjury.  You will be asked to raise your right hand when you swear under oath but don’t make a big deal if you raise your left one – ive seen it happen a hundred times.

When the Judge asks you a question you should answer the question. Do not tell your life story. The Judge most likely has another hearing scheduled within 45 minutes of yours so be mindful of the time. If a Judge asks you about your arm and there is nothing wrong with your arm – say so and stop. Don’t immediately jump to what your disabling condition is. He will get to that soon enough.  If the Judge asks you how long or how far you can do something don’t say “not long” or “not far”. The Judge knows you don’t have a stop watch with you all the time but he will need some sort of idea as to the answer. If the Judge asks a question about distance be sure to use a distance that is common. Don’t say “from my front porch to my neighbor’s house”. The Judge will have no idea how far that is. Perhaps you could use a city block or a football field as a guide. 

Dress normally but cleanly. There is no reason for you to wear a suit but there is also no reason for you to wear a t-shirt with holes in it that has profanity on the front. In the majority of cases the Judge will not tell you his decision from the bench. He will close the hearing and issue his decision in writing.  

2010 Disability Statistics

SSA has released the 2010 Disability Statistics. In 2010, 1,026,988 disabled workers were awarded benefits. This statistic does NOT include only those individuals who qualified for SSI (Supplemental Security Income) only. This statistic represents only those persons who were "insured" to receive benefits by working five out of the last ten years. Here is the breakdown by impairments:


32.5% Musculoskeletal and connective tissue


21.4% Mental Disorders (more on that statistic in a bit)


10.2% Circulatory


9% Neoplasms


8.2% Nervous system and sense organs


18.7% Other


The Mental Disorders category was further analyzed by SSA which concluded the following:


11.2% Mood disorders


2.9% Organic Mental disorders


2.1% Schizophrenic and other psychotic disorders


1.8% Intellectual disabilities


.1% Developmental disorders


.2% Autistic disorders


3% Other

5 STEP SEQUENTIAL EVALUATION

The Social Security Administration has developed a five (5) step sequential process to determine if a claimant is eligible to receive disability benefits. This test is only for adults as children have a different test to determine eligibility.

Step 1: Substantial Gainful Activity

Is the claimant working? If so, how much? There is a presumption that certain amounts of income constitute substantial gainful activity (SGA). In 2011 the limit is $1000.00 per month. (Blind claimants have a higher limit). This amount changes almost yearly. Of course a person can still be found to be performing SGA even if the monthly income is less than $1000.  So if you are working at a substantial gainful level your disability process ends here. You do not continue to the other steps.

Step 2: Severe impairment

The claimant must have a severe impairment or a combination of impairments which significantly limit his physical or mental ability to do basic work activities without regard to age, work history, or education.  The level of proof at this level is considerably low and the majority of claimants proceed on past this level. 

Step 3: Listing of Impairments

SSA has established a list of impairments that qualify for disability benefits. At this stage a claimant must show that he meets or equals at least one of the listed impairments. This determination is made without regard to a persons age, education, or work history. Most claimants do not meet or equal a listing level impairment. The Social Security definitions and requirements contained in the listings are designed for the most severe cases. Even if a claimant does meet or equal a listed impairment the claimant must also meet the durational requirements that the impairment is expected to last 12 months or longer or end in death.  If a claimant equals or meets a listed impairment and meets the durational requirement benefits are awarded at this step. If the claimant does not meet or equal the listings then the case will proceed on to the fourth step.

Step 4: Past Relevant Work

If a claimant has a severe impairment (step 2) but does not meet or equal a listed impairment (step 3) then SSA will look at past relevant work. Past relevant work is work performed 15 years prior to the onset of disability. Given a residual function capacity does the claimant have the ability to return to their past relevant work? A residual function capacity is basically a determination of what a person can do despite their impairment. For example a person with COPD may no longer be able to lift 50lbs but can still lift 10lbs on a sustained basis. The constraints of the residual function capacity will determine if the claimant can perform their past relevant work. For example, if your past relevant work required you to lift 50lbs and walk 8 hours a day and your residual function capacity due to a back injury limited you to only lifting 25lbs and walking 4 hours a day then you would be found unable to return to your past relevant work. If you are determined that you can return to your past relevant work you will be denied disability at this step.

Step 5: Ability to perform other work

So SSA says that you cant go back to your past relevant work but now asks are there other jobs you can go do. The determination at this step factors in your residual function capacity, age, education, and prior work. The majority of SSA disability claims are decided at step 5. If it is determined that you cannot perform other work the a claim for benefits would be awarded. If you are over 50 don’t be alarmed by the requirements under step 5. SSA has a table called “GRIDS” that factor in age. If you are 55 and your past relevant work is Heavy concrete layer then SSA will require you to go be retrained to perform sedentary jobs.

SSA expands compassionate allowance list

Beginning this month the SSA will add 13 additional new conditions to its list of compassionate allowances. When a claimant for disability benefits alleges  one of the conditions listed on the compassionate allowance list the claimant will begin receiving benefits while the claim is being processed through the agency. This could save the claimant months of waiting for benefits to begin.  Unfortunately, many attorneys and representatives are not aware of this list and often allow a claim of benefits under this provision of SSA policy to go unused. The 13 new additional conditions are:


Malignant Multiple Sclerosis
Paraneoplastic Pemphigus
Multicentric Castleman Disease
Pulmonary Kaposi Sarcoma
Primary Central Nervous System Lymphoma
Primary Effusion Lymphoma
Angelman Syndrome
Lewy Body Dementia
Lowe Syndrome
Corticobasal Degenreration
Multiple System Atrophy
Progressive Supranuclear Palsy
ALS/Parkinsonism Dementia Complex

The Levels of the Social Security Disability Administration

What is the process for getting disability in Tennessee? First and foremost a claimant must file an application for disability benefits.  This can be done in a multitude of ways and I encourage the reader to visit my webpage for a video tutorial on filing an application.  Once an application is filed the case is sent to Nashville for a medical determination. The case must also meet certain requirements to be sent for a medical review.  In Nashville state employees process the case, order medical records, and sometimes schedule consultative examinations.  This first stage typically takes approximately five (5) months before SSA issues a decision. 

If a claimant is denied at the initial level then the claimant can request “reconsideration” within sixty (60) days of the initial denial notice. If a reconsideration is timely requested the case is sent back to Nashville to be reviewed by a second pair of eyes. This second stage takes approximately two – four weeks before SSA makes a decision.  The denial rate at this level is so great that many (including SSA staff) refer to this step as a rubber stamp denial. 

If a claimant is denied at the first and second stages then he can request a hearing before an Administrative Law Judge (ALJ).  The claimant may appear at this hearing and call witnesses on his behalf. Most claimants have representation at this level. Unfortunately the wait for this hearing is lengthy. As of the writing of this the average wait time from the second stage till the hearing is around twelve (12) months. 

If a claimant is unsuccessful at the hearing level then he may request a review from the Appeals Counsel within sixty (60) days from the ALJ’s decision. The Appeals Counsel will review the administrative record and can either approve, deny, or remand the case back to the ALJ. The Appeals Counsel is the final step in the SSA process. It is important to note that the Appeals Counsel can overturn even favorable decisions but such action is rarely heard of. 

Disability Defined

 What does “disability” mean for Social Security?

As a lawyer I can tell you – how something is defined can mean everything.  The term “disability” can have numerous different definitions depending on its setting. For instance, im sure many of you have heard that the military can sometimes deem someone to be disabled in percentages (ex. 35% disabled).  The definition of “disability” for Social Security purposes is defined in the Code of Federal Regulations at 42 U.S.C. § 423(d), §§ 1382c(a)(3). While the full definition is quite large its basic tenants are:

The inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment 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;

This definition is important for several reasons. First off you will notice the absence of any percentages. This definition isn’t like the military’s – its either yes or no. Another aspect you may have quickly noticed is the durational requirement.  The impairment must be expected to end in death or last at least 12 months. So even the worst types of traumatic injuries may not meet the Social Security definition of disability if the condition is expected to improve within 12 months. 

*You must clearly understand the durational definition. Many people misconstrue this definition to mean that they must be out of work for 12 months before they can file for benefits. This is not the case. You do not have to be out of work for 12 months before you can file for disability under Social Security. Your condition must only be expected to last 12 months or longer. *

You will also find an absence of availability of jobs. Social Security is not meant to be an unemployment benefit. Therefore, if you cannot find a job, no jobs exist, nobody will hire you because of a criminal record, or that you have no transportation to a job will not be adequate grounds for a favorable disability decision. 

"INSURED" - WHAT DOES IT MEAN?

A disabled worker seeking to receive benefits from the Social Security Administration(SSA) must not only be disabled within the meaning of the law but also “insured”.  One must also be “insured” for retirement purposes but the calculations differ between the two types of benefits. One could be insured for retirement benefits even at an early age and not be insured for disability. This article will address solely the disability insured status requirements.

The formulae for becoming insured is to acquire “Quarters of coverage”. A quarter is represented by a quarter of the calendar year: Jan – Mar, April – June, July – Sept, Oct – Dec.  In order to obtain a quarter, a person must be paid a certain amount of wages during that quarter. The amount necessary is recalculated annually by SSA. To earn a quarter of coverage in 2011 is $1120. If a person earns more than is required for a quarter of coverage the excess can be applied to the next quarter. For example if you earn $2120 in Jan of 2011 then $1000 can be applied to your April – June quarter. It is quite possible for a person to earn an entire year of quarters in just a couple of months!

How quarters of coverage are applied to different individuals:

1.       For most workers to be insured they must meet the “20/40” rule. This means that you must have at least 20 quarters out of the last 40 quarters ending in the quarter that you became disabled.  A good rule of thumb that I use is – work 5 out of the last 10 years to be insured.

2.       A worker who is disabled prior to age 31 is not required to meet the 20/40 rule. This person need only have quarters of coverage in half of the quarters between age 21 and the date of onset of disability. If there are fewer than 12 quarters between age 21 and onset the worker must have 6 quarters of coverage nonetheless.

3.       Workers who are disabled due to blindness fall under a different test.

If a person does not meet the quarters of coverage requirement then they are not “insured” for Social Security purposes. The time when the insured status is expired is called the “Date Last Insured” (DLI).  It is extremely important to be determined by SSA to be disabled before the DLI or you could not be entitled to any benefits despite being severely disabled.  Persons who are not “insured” must rely on meeting the strict income and resource requirements of SSA’s Supplemental Security Income (SSI) provision.