Common Disability Questions

1. How can I tell if I am disabled enough to apply for Social Securitydisability benefits?
2. How do I apply for Social Security disability or SSI benefits?
3. Do you have any advice about applying for disability benefits?
4. What happens if I am denied benefits and I do not appeal within 60 days?
5. How do I appeal?
6. What are the two biggest mistakes people make when trying to get disability benefits?
7. Should I have my doctor write a letter to the Social Security Administration and should I gather medical records and send them to SSA?
8. How much do lawyers usually charge?

1. How can I tell if I am disabled enough to apply for Social Security disability benefits?

Social Security regulations make it easier to be found disabled as you get older. It becomes easier for a few people at age 45 (those unable to read English), for more people at age 50, for most people at age 55, and even more people at age 60. If you’re over age 55 and you cannot do any job you have done in the past 15 years, you should definitely apply. If you’re over age 50 and have a severe impairment that keeps you from doing all but the easiest jobs, you ought to apply.

But even if you’re a younger person, you don’t have to be bedridden in order to be found disabled. If you’re under age 45 or 50 and you cannot do your past jobs and you cannot work full time at any regular job, that ought to be enough.

Nevertheless, being unable to work and being found “disabled” by the Social Security Administration (SSA) are two different things. It is often difficult to convince SSA that someone is “disabled” even when he or she genuinely cannot work. But it is not impossible.

If you really cannot work, apply for disability benefits from SSA. And keep appealing denials at least through the hearing before an administrative law judge. If you lose at a hearing, sometimes a lawyer with experience handling disability cases can figure out a way to win your case by pursuing the next appeal – to the Appeals Council.

2. How do I apply for Social Security disability or SSI benefits?
The Social Security Administration (SSA) offers three ways for you to apply for Social Security disability benefits:

• By telephone.
• In person at a local Social Security office.
• By the Internet.

If you want to complete an application for SSI or Social Security disability by telephone or in person, you must first telephone SSA at 1-800-772-1213. If you choose to go a Social Security office to complete the application, the person at the 800 number will schedule an appointment for you, give you directions to the Social Security office, and tell you what papers you need to bring along. If you want to apply by phone, you will be given a date and an approximate time to expect a phone call from someone at the Social Security office who will take your application over the phone. The application will then be mailed to you for your signature.

If you want to use the Internet to apply, go to www.socialsecurity.gov/applyfordisability/. If you want to apply for SSA’s other disability program — Supplemental Security Income (SSI) –you cannot complete an SSI application online but you can complete one of the necessary supporting documents, the Adult Disability and Work History Report, on the Internet.

3. Do you have any advice about applying for disability benefits?

Yes. Give SSA all the information it asks for in a straightforward way. Be truthful. Do not exaggerate or minimize your disability.

When you complete the Disability Report, a form that SSA requests completed at the time the application is submitted, explain how your medical impairment keeps you from working. If you’re under age 50, your explanation must show why you cannot do any job you have done in the past 15 years and why you cannot do an easy full time job.

4. What happens if I am denied benefits and I do not appeal within 60 days?

You’ll have to start over with a new application — and it may mean that you’ll lose some back benefits. So it’s important to appeal all denials within 60 days. It’s better if you appeal right away so that you get through the bureaucratic denial system faster. The quicker you can get to the hearing stage the better.

5. How do I appeal?

Your denial letter will tell you about appealing. The first appeal is called a “reconsideration.” You must request reconsideration and then, after the reconsideration is denied, you must request a hearing within the 60-day time limit.

You can appeal in one of three ways:

(1) Telephone the Social Security Administration and make arrangements for your appeal to be handled by phone and mail.

(2) Go to the Social Security office to submit your appeal. If you go to the Social Security office, be sure to take along a copy of your denial letter. And be sure that the Social Security representative gives you a signed copy of your appeal paper showing that you appealed on time.

(3) Appeal online at https://secure.ssa.gov/apps6z/iAppeals/ap001.jsp. Be sure to print and retain the receipt for your appeal so that you can prove you appealed on time.

6. What are the two biggest mistakes people make when trying to get disability benefits?

Failing to appeal. More than half of the people whose applications are denied fail to appeal. Many people who are denied on reconsideration fail to request a hearing.

Another mistake, although much less common, is made by people who fail to obtain appropriate medical care. Some people with long-term chronic medical problems feel that they have not been helped much by doctors. Thus, for the most part, they stop going for treatment. This is a mistake for both medical and legal reasons. First, no one needs good medical care more than those with chronic medical problems. Second, medical treatment records provide the most important evidence of disability in a Social Security case.

7. Since medical evidence is so important, should I have my doctor write a letter to the Social Security Administration and should I gather medical records and send them to SSA?

SSA will gather the medical records, so you don’t have to do that. Whether you should ask your doctor to write a letter is a hard question. A few people win their cases by having their doctors write letters. You can try this if you want to. The problem is that the medical-legal issues are so complicated in most disability cases that a doctor may inadvertently give the wrong impression. Thus, obtaining medical reports may be something best left for a lawyer to do.

8. How much do lawyers usually charge?

Most clients prefer … and most lawyers offer … a “contingent fee,” a fee paid only if they win. The usual fee is 25% (one-quarter) of back benefits up to a maximum amount set by SSA, which is currently $6,000. The fee comes from those benefits that build up by the time you are found disabled and benefits are paid. No fee comes out of current monthly benefits.

Although the usual fee will not normally exceed the maximum fee of $6,000, if your lawyer has to appeal after the first administrative law judge hearing, your contract might allow for a fee greater than $6,000. Even in this circumstance, though, your fee is likely to not be greater than 25% of back benefits.

In addition to the fee, many attorneys expect you to pay the expense of gathering medical records, obtaining medical opinion letters, etc.

Examples of Who Is and Is Not Disabled

Social Security disability law defines “disability” as an 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.”

An individual is not “disabled” if drug addiction or alcoholism would “be a contributing factor material to the Commissioner’s determination that the individual is disabled.”

However, you cannot always rely on common sense to tell you who is and who is not disabled under Social Security law. Here are some examples:

Example: Lawyer of Social Security Disability

• He is 35 years old with 10 years of trial experience.
• He is not working, but he is looking for a job.
• He lost his left foot in a car accident a year ago.

Because of stump complications, he is unable to use a prosthetic device to walk one block at a reasonable pace, though he uses it to walk shorter distances, e.g., around an office or around his apartment. When he goes longer distances, he rides a motorized scooter.

He is disabled based on Step 3 of the Sequential Evaluation Process.

Example: Bookkeeper

• He has a college education.
• He is a quadriplegic with only limited use of his right hand and arm and no use whatsoever of his legs and left arm.
• He uses an arm brace to write.
• He works a few hours per day as a bookkeeper and earns, after deductions for expenses related to his impairment, about $1,050 per month on average.

Because of his earnings he is not disabled.

Example: Construction worker

• He is 48 years old.
• He has done heavy unskilled construction work since age 16.
• He has a fourth grade education and is capable of reading only rudimentary things like inventory lists and simple instructions.
• He has a “low normal” I.Q.
• He is limited to sedentary work because of a heart condition.

He is not disabled unless he has some additional limitations.

Example: Machine operator

• He is 38 years old.
• He has done medium exertion level unskilled factory work, operating a machine since he graduated from high school.
• A cardiovascular impairment limits him to sedentary work, and a permanent injury of the right hand limits him to such work not requiring bimanual dexterity.

He is probably disabled.

Example: Truck driver

• He is 61 years old.
• He worked as a truck driver all his life except that 10 years ago during a downturn in the trucking industry, he worked for 1-1/2 years at a sedentary office job which he got with the help of his brother-in-law.
• He is limited to sedentary work because of a pulmonary impairment.

He is not disabled because he is still capable of doing the office job.

Example: Packer

• He is 50 years old.
• He has a high school education.
• He has done unskilled light exertion factory work as a packer for the past 30 years.
• He had a heart attack on January 1 and, after being off work for eight months, he recovered after an angioplasty. His cardiologist gave him a clean bill of health and was ready to send him back to work when he broke his leg in a fall unrelated to his heart condition. In a cast and unable to stand and walk as required by his job, he could not return to work until February. He was off work a total of 13 months.

He is not disabled for the time he was off work based on Step 3 of the Sequential Evaluation Process. A regulation provides that unrelated impairments may not be combined to meet the requirement that a claimant be unable to work for 12 months.

Example: Housewife

• She is 55 years old.
• She has an eleventh grade education.
• She has not worked in the past 15 years. Before that she was a secretary.
• She has a back problem diagnosed as status post laminectomy.
• She is limited to maximum lifting of 50 lbs. with frequent lifting of 25 lbs., is capable of frequent bending, stooping, etc., and has no limitation for standing or walking.

She is disabled for the SSI program as long as she meets the income and asset limitations for that program. She is not eligible for Social Security disability benefits because she has not worked for so long.

The Sequential Evaluation Process

The Social Security Administration (SSA) follows a five-step sequential evaluation process to determine whether you are disabled for purposes of either of the two disability programs operated by SSA — SSI or Social Security disability. If it finds that you are disabled or not disabled at a step then the determination is over and it does not go on to the next step. Those five steps are:

1. You are not engaging in “substantial gainful activity” (SGA); and
2. You have a “severe” medically determinable impairment; and
3. Your impairment meets or “equals” one of the impairments described in the Social Security regulations known as the “Listing of Impairments;” or
4. Considering your “residual functional capacity” (RFC), you are unable to do your “past relevant work” (PRW); and
5. You cannot make an adjustment to other work that exists in significant numbers, considering your RFC, age, education, and work experience.

Be careful about the terms identified by quotation marks and the initials that go with some of them. These terms have precise meanings in the law, and these meanings are not necessarily the meanings you would expect.

In addition, to be found disabled you must meet the “duration requirement.” That is, your disability must last for 12 full months.

In summary, there are two main routes to a finding of disability on an SSI or Social Security disability application:

• Your impairment must meet or equal an impairment described in the Listing of Impairments — the sequential evaluation process culminates at Step 3.
• You must meet all the other requirements of the sequential evaluation process culminating at step 5.

There are six ways that you may be found not disabled. That is, you are not disabled if you:

• Are working at the SGA level (Step 1).
• Have no medically determinable impairment (Step 2).
• Have a medically determinable impairment, but it does not significantly limit your physical or mental ability to do basic work activities (Step 2).
• Fail to meet the duration requirement.
• Are capable of past relevant work (Step 4).
• Are capable of other work (Step 5).

There are a few exceptions:

• Three special profiles.
• Be disabled but not eligible.

There are also “non-disability” requirements for eligiblity for the Social Security disability program. That is, you must have worked and paid enough Social Security taxes to earn sufficient work quarters (QCs) to qualify. For the SSI program, there are income and asset requirements.

Step 1: Substantial Gainful Activity

To be substantial gainful activity, work must be both “substantial” and “gainful.” “Substantial work activity. . . involves doing significant physical or mental activities.” Work may not be substantial when:

• You are unable “to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work.”
• You are doing work “that involves minimal duties that make little or no demands” on you and that are of “little or no use” to your employer or to the operation of a self-employed business.

SSA defines gainful activity broadly: “Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.” Nevertheless, when you are an employee of someone else, whether work is “gainful” is usually determined by looking only at your earnings.

But if you are self-employed, SSA looks carefully at a your work activity and its value to the business, even if you are working at a loss (as so many unimpaired self-employed people do from time to time). SSA also does not want to let employed claimants slip past this step if they are in a position to control the timing or amount of their income (e.g., when claimants are working for relatives).

Work is evaluated “without regard to legality.” Thus, illegal activity may be substantial gainful activity.

Whether you are employed by someone else or self-employed, SSA allows deduction from earnings for what it calls “impairment–related work expenses,” which are usually payments you make for drugs or medical treatment for the disabling impairment but may also include payments for some transportation costs, vehicle modification, attendant care services, residential modification,etc. However, the work expense rules must be reviewed carefully before making a deduction because some expenses you wouldn’t expect are included (such as payment for treatment for the disabling impairment that you have to pay whether you work or not) and some expenses that you might expect to qualify are excluded (such as payment for health insurance).

In determining if work is substantial gainful activity, SSA averages income according to rules that consider the nature of the work, the period of time worked, and whether the SGA level changed during the time the claimant worked.

The SGA level, which was $300 per month during all of the 1980s and $500 per month from 1990 until July 1999, when it was raised to $700, is becoming considerably more generous than it used to be because of cost-of-living increases that have been applied beginning with the year 2001. For example, for the year 2013, average countable earnings of more than $1,040 per month show that work was substantial gainful activity.

You can find the SGA amount for the current year on the Internet at www.ssa.gov/cola/.

Step 2: The Severity Step

At step two of the sequential evaluation process, SSA determines whether you have a “severe” impairment. This step was intended to weed out frivolous cases involving either (1) no medically determinable impairments or (2) slight medically determinable impairments that impose only minor limitations on ability to work. Virtually any reduction in residual functional capacity (what you can still do even with your impairments) satisfies the requirement that there be a severe medically determinable impairment. As such, medically determinable impairments are divided into two categories:

1. slight impairments that are referred to in SSA’s peculiar lingo as “nonsevere” impairments and
2. all other impairments that are, therefore, “severe.”

Even subjective symptoms, as long as they arise from a medically determinable impairment, must be considered in assessing whether an impairment, or group of impairments, reduces your ability to do basic work activity. If an adjudicator is “unable to determine clearly” the effect of an impairment on your ability to do basic work activities, the adjudicator is directed to proceed with the next steps of the sequential evaluation process. Thus, close cases are to be decided in favor of finding an impairment to be severe.

On the other hand, “[n]o symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual’s complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment.” That is, when there is no “medically determinable impairment,” you may be found not disabled at this step of the sequential evaluation process. Nevertheless, as a rule, if a doctor has enough information to make a legitimate diagnosis, you have a medically determinable impairment. When there is a controversy over which diagnosis is correct, if medical signs or laboratory findings show any abnormality, the claimant has a medically determinable impairment even if the doctors do not agree on which diagnosis is best.

The Duration Requirement

Unless your impairment is expected to result in death, it must have lasted or be expected to last for a continuous period of 12 months. The duration requirement is not usually a problem for impairments that wax and wane or have short periods of remission but have active periods sufficient to preclude engaging in substantial gainful activity on a sustained basis. However, the regulation specifically prohibits tacking together unrelated severe impairments to meet the duration requirement.

Denials based on the duration requirement usually occur in those cases where, at the time of the decision, the duration requirement is not met and the impairment is the sort that is likely to improve within 12 months. For those impairments that may or may not improve before the duration requirement is met, sometimes a state agency decision maker will delay a case just to see if you continue to be disabled. Because of the slow progress of the administrative process, the 12 months usually have passed by the time you actually attend a hearing, thus permitting an accurate retrospective evaluation.

Once the twelve-month duration requirement is met, you may ask for a finding of a closed period of disability in the situation where your condition has improved to the degree that you are able to return to work.

Step 3: Listing of Impairments

In order to be found disabled at step 3 of the sequential evaluation process, your medical signs, findings, and symptoms must meet or “medically equal” one of the set of medical signs, findings and symptoms found in the Listing of Impairments. The Listing of Impairments is a set of medical criteria for disability found in the Social Security disability regulations.

Even if your impairment is not in the Listing of Impairments, it is possible to argue that your impairments are medically equivalent to an impairment in the Listing. This comes up in four situations: (1) you do not have one of the essential findings stated in the Listings for your particular impairment but you have other findings; (2) you have all the essential findings but one or more of the findings is not quite severe enough and you have other findings; (3) your impairment is not described in the Listings but it may be as severe as an analogous impairment that appears in the Listings; or (4) you have a combination of impairments, none of which meet the Listings but the cumulative total of your impairments could still equal the Listings.

It is possible to compare medical findings, symptoms and limitations in functioning to see if one claimant, whose impairment does not appear in the Listings, is as disabled as another claimant whose impairment meets a particular Listing. However, before an ALJ can find that your impairment medically equals a Listed Impairment, the decision maker must receive the opinion of a medical expert hired by SSA.

Step 4: Past Relevant Work

You are not disabled if you can still do your “past relevant work.” This means that you must prove that you are incapable of doing any work that you have performed in the last 15 years (or in the 15 years before your disability insured status requirement was last met, if that date is earlier), if that work was done at the “substantial gainful activity” level and lasted long enough for you to learn how to do it. Thus, you have to identify your easiest job and then figure out why you cannot still do that kind of work.

If you had an easy job in the past 15 years that you can still do, then you will be found not disabled unless you can put together an argument that the impairments meet or medically equal one of the impairments in the Listing of Impairments (Step 3).

If you retain the capacity to do a job as it is ordinarily done, then you will be found not disabled even though your actual past job required greater exertion and you are unable to do that particular job. The “job as it is ordinarily done” rule will not be applied to your benefit, however. If your own past work was easier than the way the job is ordinarily done, SSA will examine the actual job requirements as you performed them in determining whether you can perform past relevant work. This rule applies even if the past job was done only part-time, as long as it was substantial gainful activity.

Determining whether you can do past relevant work is accomplished by comparing your current residual functional capacity with the physical and mental demands of past relevant work.

Step 5: Other Work

Determining whether you can make an adjustment to other work that exists in significant numbers in the national economy is the most complicated step in the sequential evaluation process.

This step considers your remaining work capacity, age, education and work experience. SSA has provided an important tool for determining whether or not you are disabled because of medical-impairments and vocational factors: the Medical-Vocational Guidelines. The Medical-Vocational Guidelines, popularly known as the “grids,” provide that the older you are, the easier it is to be found disabled.

Exceptions to the Five-Step Sequential Evaluation

Three Special Profiles

There are three other ways to be found disabled without completing the standard five-step sequential evaluation process. If you fit one of three special medical-vocational profiles, you are found disabled without proceeding to step five and without consulting the Medical-Vocational Guidelines.

Profile #1:

A claimant is disabled who:

• Has a severe, medically determinable impairment;
• Is age 55 or older;
• Has an 11th grade education or less; and
• Has no past relevant work experience.

Profile #2 (the “worn-out worker”):

A claimant is disabled who:

• Has no more than a sixth grade education;
• Worked 35 years at arduous unskilled labor; and
• Is unable to do the arduous unskilled labor done in the past.

Profile #3:

A claimant is disabled who:

• Is not working at SGA level.
• Has a lifetime commitment (30 years or more) to a field of work that is unskilled, or is skilled or semi-skilled but with no transferable skills.
• Can no longer perform this past work because of a severe impairment.
• Is closely approaching retirement age (age 60 or older).
• Has no more than a limited education.

Disabled But Not Eligible

There are two ways to be found not disabled even though the sequential disability evaluation process has been completed and SSA has concluded that you are, in fact, disabled. You will not be found disabled if:

• Without good reason, you do not follow prescribed treatment. A determination finding a claimant not disabled on this basis is made only after SSA finds that you are otherwise disabled. The treatment must be prescribed by your own physician and this treatment must be “clearly expected to restore” your ability to work.
• Drug addiction or alcoholism is “a contributing factor material to the determination of disability.” This issue is addressed only after it is determined that you are disabled when considering all impairments, including any impairments involving drug addiction or alcoholism. Then SSA looks at your impairments again to consider whether you would still be disabled if you stopped using drugs or alcohol.

The Social Security Administration Is a Large Bureaucracy

The sheer size of the Social Security Administration (SSA) is a fundamental problem in dealing with it. It has more than 57,000 employees. There is also a separate SSA Office of Disability Adjudication and Review (ODAR) that has about 8,000 employees, including about 1,300 administrative law judges and 34 administrative appeals judges. Furthermore, there are more than 14,000 state agency employees nationwide involved in making determinations of disability below the administrative law judge hearing level.

It is difficult enough for a lawyer to figure out whom to contact about a claimant’s particular problem and then to determine how to contact them. Trying to do this on your own, without a lawyer, can be overwhelming.

The problem of SSA’s size is compounded by the complexity of its programs, and the most complicated are the two disability programs: Social Security disability and SSI. When there are program changes, it is a huge task to ensure that everyone within SSA who needs to know gets the information, and often they do not.

As an example of problems created by complexity, a test of the Social Security Administration’s nationwide toll-free telephone number showed 25% wrong answers to questions involving SSI. The toll-free number is most useful for information about the retirement program, not for questions about disability benefit entitlement.

Like all bureaucracies, SSA tries to develop routines for complex decisions. However, this does not work well for disability determinations below the administrative law judge hearing level because the medical-vocational issues tend to be complicated and because state agencies are simply not equipped to handle these issues. State agency disability determinations tend to be inadequate, and many people within SSA remain almost blissfully unaware of state agency decision shortcomings.

There is also a tendency for low-level bureaucrats to follow rules rigidly, whether or not application of the rule makes any sense. This problem has been known to cause both claimants and their lawyers to tear out their hair.