FAQS Social Security Disability Benefits, Claims, Appeals

 

When it comes to Social Security Disability, you want a knowledgeable attorney on your side who knows the intricate ins and outs of the Social Security System. We have compiled a list of frequently asked questions to give you answers about your Social Security Disability case.

 

1. How do I file an application for Social Security Disability?
Avard Law will assist you in filing your application online for disability benefits.

 

2. What is the $145.00 cost cover that I am requested to pay on my disability case?
This is the average cost incurred on cases in general. Some cases cost more. This is different from attorney fees. A cost is not a fee. If we think you should have psychological testing, most psychologists charge between 250.00 and 400.00. If we think you need a medical evaluation by a physician, most doctors charge between 250.00 to 350.00. They also complete forms that are necessary for your case. However, some treating physicians or psychologists charge very little and some may do it free. In addition, some medical records that are not in electronic form can cost a lot. If you cannot afford to pay the costs, there are options for making payments later when your case is favorably decided.

 

3. How long does it take for me to get a decision after filing an Application for Disability?
Generally, it takes about 3 to 5 months to get a decision. However, the exact time depends on how long it takes to get your medical records and any other evidence needed to make the decision.

 

4. What is the percentage of cases approved after initially filing an application?
Across the nation, 26% – 36% of applications are approved at first. In Florida it is less.

 

5. What do I need to do to appeal if my Application for Disability is denied?
You need to file a Request for Reconsideration. You must do so within 60 days.

 

6. How long does it take to get a decision on a Request for Reconsideration?
If you have no new and material evidence or no new treatment sources, you could get a decision within 8 weeks, approximately. If you have new evidence, it could take up to 5 months for a formal review and decision. You can shorten this period by submitting additional medical records. Always, ask for copies of your medical records when you are visiting with the doctor. Tell your attorney, so the attorney can notify SSA of new evidence or contact your medical providers for the evidence. If you do not submit new evidence, the chance of being denied again is extremely high since it is the same agency making the decision the second time.

 

7. Who makes the decisions initially and upon reconsideration?
The State where you live makes the initial decisions on your Application for Disability. The State agency has a contract with the federal government to make these decisions. The State hires physicians to assist in making these decisions. Many of these physicians have a very limited amount of time to review your medical records.

 

8. What if you move out of state after you file your application?
Avard Law attorneys have represented claimants in almost all states since it is federal law, there is no requirement that a state licensed attorney must represent you where you move to. Avard Law will continue to represent you if you move.

 

9. What percentage of applicants get approved after filing a Request for Reconsideration?
Across the nation between 3%-13% get approved at this reconsideration (2nd) level.

 

10. How do I win my case at the initial and reconsideration levels?
By obtaining your medical records and office notes from your treating physicians and by having your treating physicians complete the medical questionnaires sent to you by your attorney. However, your medical records must be consistent with the answers on the medical questionnaire forms. That depends on what was discussed during your appointments with your doctors. Objective evidence is most important when documenting your doctors’ answers on the medical questionnaires. Objective evidence could be tests such as MRI, CT, X-ray, Range of Motion, Grip Strength, psychological results, and many other objective signs that document all of your symptoms including pain. YOU MUST STAY IN TREATMENT WITH YOUR PHYSICIAN THROUGHOUT THE ENTIRE PROCESS, regardless of whether or not anything can be done about your impairment which may be permanent. SSA will continue to deny your case if you are not seeing a doctor. Please view VIDEOS at Avard Law’s website. Pay close attention to the video “HOW IMPORTANT ARE SOCIAL SECURITY’S DISABILITY FORMS”. This will help you to focus on the real issues that decide your case. https://avardlaw.com/videolawyer-attorney-disability/

 

11. Will Social Security send me out to be evaluated by one of their paid doctors?
Sometimes. It depends on what evidence is needed to complete your file. If you are sent out for a medical exam, you need to watch the VIDEO “HOW TO PREPARE FOR YOUR MEDICAL EXAM”:

 

12. Can I work and collect Social Security Disability?
Yes. However, your gross wages should never exceed the limits of what Social Security defines as “substantial gainful activity”. The upper money limit on substantial gainful activity is contained in the following link: (http://ssa.gov/OACT/COLA/sga.html). Therefore, in 2018, gross wages should not exceed $1,180 a month. Once they exceed that figure, there are some legal options for not considering part of those wages if, for example, the work was sheltered, “made” work, accommodated work, or if medical expenses paid to allow you to work can be deducted from gross earnings. Speak to your attorney at Avard Law to obtain a questionnaire that must be completed by your employer or supervisor when your gross earnings exceed $1,180 a month.

 

13. How do I appeal a denial when the State agency denies my 1st Reconsideration appeal?
By filing Request for Hearing forms. Your attorney will file these appeal forms for you. However, you MUST inform your attorney if you receive a denial notice because sometimes SSA does not send the denial notice to the attorney. Please send your denial notice to Avard Law immediately. Do not wait because there are only 60 days to appeal.

 

14. How long does it take before I will get a hearing before an Administrative Law Judge after filing my Request for Hearing?
Due to backlogs, and depending on which part of the country you live in, it can take well over a year. In the recent past, waits of two years or longer, from the time a request for hearing has been submitted by your Avard Law attorney, were possible. Depending on how well the SSA disability system is funded and staffed in the future, such extreme wait times may return again.

 

15. After I have a hearing, how long does it take to get a written decision by the Administrative Law Judge?
This varies. Some judges will get the decision notice out fairly quickly. Others will take a long, inordinate amount of time. Much of this has to do with the fact that judges make decisions but do not actually write the lengthy decision notices themselves. Notices of decision (unfavorable, partially favorable, fully favorable) are written not by the judges but by decision-writers.

 

16. At my hearing, can the judge indicate that my disability application will be approved?
This is known as a bench decision and the judge would only do this if the decision is a fully favorable approval of your case. However, even in these cases, your approval notice may not come for many months because the decision-writer needs to write the notice. And the decision-writers may be as backed up as the judge. The system is generally backlogged.

 

17. How long will my hearing take?
Generally, hearings last for 1 to 2 hours. However, some judges have already made up their minds after reviewing your file prior to your hearing. In these cases, it could last 30 minutes or less. A few judges will make a decision “on the record” and not hold a hearing at all if your evidence is very strong and satisfies all of the legal criteria.

 

18. Do I need an attorney with me at my hearing?
You are not required to have a representative with you at your hearing before an Administrative Law Judge (ALJ) but it is well-advised since it can take well over a year to get a hearing scheduled. For something that takes so long to get, you should be as prepared as possible. Representation generally results in a substantially more prepared case in addition to a better understanding of the facts of the case and a more skilled presentation as to why you qualify for disability benefits. In case you do not win your case at the hearing, it is important to have an attorney present who can take your case to appeal in the Federal Court system. Unlike most attorneys, Avard Law attorneys do Federal Court appeals. Before you hire another disability attorney, ask if this attorney does Federal Court appeals.

 

19. Should I have a Board Certified Attorney represent me at my hearing?
Few attorneys are Board Certified in Social Security. Here is a link that explains what Board Certified attorneys are: NBTAlawyers.org

 

20. What happens at my Social Security Disability hearing?
Please review the video on our website: “How to Prepare for a Social Security Disability Hearing”

 

21. If I win my hearing when do I get my money?
It takes about 90 days to receive a Judge’s decision after a hearing, and after that it takes about 45-60 days for an award notice to be sent to you. And, if there are no deductions because you did not receive workers compensation, for example, you should receive your money around the same time as the award notice. If there are deductions, it will take much longer because SSA must receive the paper work showing how much you receive from the workers compensation insurance company. If you get workers compensation, you should send in this paper work to SSA immediately in order to avoid further delays.

 

22. How can I get Medicare and Medicaid?
You are only eligible for medicare if you receive 24 months of checks (or benefits) from social security disability. You can get Medicaid if you become eligible for Supplemental Security Income (SSI) benefits.

 

23. How can I expedite my case and get a decision faster than the general population of applicants?
If you are being evicted, are homeless, cannot pay your rent, cannot afford basic necessities, or your medical condition is life threatening, send written documentation to your attorney who will request that your hearing be held much sooner.

 

24. What should I do if my case is denied by the judge at my hearing?
You must appeal within 60 days. However, you can either file a new application or appeal your case to the Appeals Council. If we believe your case has legal merit for an appeal, Avard Law will file a legal brief with the Appeals Council that sets forth the legal arguments.

 

25. How long does it take the Appeals Council to make a decision?
It generally takes the Appeals Council a minimum of one year to make a decision on your appeal. In some cases, it takes 2 years for an answer.

 

26. What kind of issues does the Appeals Council consider?
The Appeals Council will review a case if there is an abuse of judicial discretion; error of law; the actions, findings or conclusions are not supported by substantial evidence; or there is a broad policy or procedural issue that may affect the general public interest. New evidence can be given to the Appeals Council if it relates to the period before the date of the Administrative Law Judge’s (ALJ) decision and if is likely to change the outcome of the case and if there was a good cause reason for not submitting this evidence while the case was before the ALJ. The Appeals Council can do one of 3 things: 1. Deny the Request for Review (take no action on your case). If this happens, then you will have 60 days to file an appeal in Federal District Court, or 2. Return your case to the ALJ for a new decision. This will usually mean you will have another hearing with this ALJ, or 3. Issue a new decision and award you disability benefits.

 

27. What percentage of cases are denied at the Appeals Council?
Approximately 74% of all cases that go before the Appeals Council are denied. Approximately 22% are returned to the Administrative Law Judge’s (ALJ) for another hearing. The same judge will hear your case the second time. A different judge will hear the case a third time.

 

28. What happens If my appeal is denied?
If your appeal is denied by the Appeals Council, the remaining stages of your appeal will take place in Federal Court. You will not be expected to appear in court. You cannot be represented by a disability advocate. You must have a Social Security Disability attorney who is admitted to the federal district where the appeal will be filed. To start, speak with your attorney about filing an Appeals Council review. If the Appeals Council again decides against you, it is time to discuss taking your case to Federal District Court. When the issues in your case are meritorious, Avard Law Offices handles appeals in Federal Courts in many parts of the US.

 

29. What is the percentage of cases in Federal Court (U.S. District Court) that reverse the Administrative Law Judge’s decision?
The average percentage of cases overturning the Administrative Law Judge’s (ALJ) decision is approximately 45%. Your attorney will file a legal brief in Federal Court outlining the errors made by the ALJ. If your appeal is successful, the case is sent back to your ALJ for another hearing.

 

30. How long does it take before the Federal Court makes a decision?
After briefs are filed by your attorney and the government’s attorney, it can take up to 1 year or more before the Court issues a decision. Several months can go by before the briefs are filed because the Government has to prepare and file a transcript, and the Court has to issue a scheduling order, once the government has been properly served with a complaint. Instead of filing in Federal Court, you can file a new application, or you can do both an Appeal to Federal Court and file a new application for disability. However, if you do both, there is a risk that if you are approved on your new application, and then the Federal Court remands your case, the Administrative Law Judge (ALJ) can consolidate both applications and cancel your approval on the second application.

 

31. What happens if I lose in Federal Court?
If your case is denied by the Federal Court, your attorney will decide whether a further appeal should be made to the U.S. Circuit Court of Appeals. Please note, appeals to the Circuit Court are very rare.

 

32. Can a “medical marijuana” recommendation from a physician negatively impact my disability case?
Though your state law may authorize the use of medical marijuana, federal law still says marijuana is an illegal substance. Federal law overrules state law, therefore a medical marijuana recommendation can potentially negatively impact your case and if you are found to be using or in possession of marijuana it may even lead to arrest and prosecution. An Avard Law attorney can help advise you on what is best for your case. Here is a recent statement from the Office of the Attorney General: https://www.justice.gov/opa/press-release/file/1022196/download

 

33. Can you receive disability and retirement at the same time?
You cannot receive Social Security retirement benefits and disability benefits (SSDI) at the same time. If you do collect SSDI disability, those benefits will be converted to retirement benefits when you reach full retirement age.

 

34. What is the amount for early retirement and what is the amount for disability benefits?
For early retirement benefits, the benefit received is approximately 30% percent less than the expected full retirement amount. In general, full retirement now occurs at age 67. If the monthly full retirement amount is hypothetically $700.00/month, the 30% reduction would be approximately $210.00. Therefore, the early retirement monthly benefit would be $490.00. However, the disability benefit amount is the exact same amount as the full retirement benefit amount. Therefore, you would receive the full $700.00/month by accepting disability benefits. If you collect early retirement and later apply for disability, you are only allowed to collect up to one year of benefits prior to the date you file your application for disability benefits. Therefore, if in the interim you receive early retirement, that early retirement benefit amount will be deducted from the full benefit amount that you would expect to receive during the one year period prior to the date you apply.

 

35. Should I apply for early retirement while I wait for a decision on my Social Security Disability case?
Remember there is a reduction in the amount of benefits of 30% if you apply for early retirement. This is a permanent reduction. Therefore, if you do not get on disability, your monthly benefit will be permanently reduced. However, if you get approved for social security disability, it makes sense to apply for early retirement since it will provide you with income while you wait. Therefore, this is a decision you will need to make yourself.

 

36. How do I complete the hearing form HA 4631 is Claimant’s Recent Medical Treatment form, https://www.ssa.gov/forms/ha-4631.html?
You must complete each box on the form. You must disclose all medical providers and/or doctors who treated you during the relevant period of disability. If you don’t remember details, you can estimate some of the information, and other information you can do the best you can with it, but again you must complete every box. For example, if the box says, list the addresses and telephone numbers of the doctors, and you don’t remember the addresses, google the doctors’ names and see if their addresses come up. If you don’t remember the dates when you saw the doctor, estimate them. For example, you could say between approximately 2016 and 2018. One way to obtain good information concerning the names of doctors, is to contact your pharmacy for a complete list of medicines you were provided. You can also look in your medicine cabinet and read the names of the doctors printed on your medicine bottles. That list will have the names of the doctors and the dates of the prescriptions, which will help refresh your memory. The Social Security laws now require that you disclose every doctor who treated you during your relevant period of disability. Under no circumstances can you not disclose the names of doctors who evaluated or treated you.

 

37. How do I complete the hearing form HA 4632 is Claimant’s Medications form, https://www.ssa.gov/forms/ha-4632.pdf?
You must complete each box on the form. It does not have to be perfect and you can estimate some of the information if you don’t remember it, but you still have to complete each box. You are filling this out based on updated information, and if you have a “date-last-insured” , you are expected to complete it for the period prior to the date-last-insured. But if you do not have a date-last-insured, you only need to complete it for the most up-to-date, recent period, just prior to the hearing date. Look at your medicine bottles or doctors’ office notes to get the names of your medications and dosage. Look at the date on the medicine bottles to determine the date the medicine was first prescribed. State how many pills you take each day. State the reason for the medication, for example, high blood pressure, diabetes, depression, etc. Finally, the medicine bottle will name the doctor who prescribed the medicine. The doctor’s name must be put on the form. In the box at the bottom of the form, you must list all nonprescription medications you take, even if infrequently. For example, if you take over-the-counter drugs when you have periodic headaches, make sure you list these. If you can’t remember, look in your medicine cabinet at home to see what over-the-counter medicines you bought.

 

38. How do I complete the hearing form HA 4633 is Claimant’s Work Background form, https://www.ssa.gov/forms/ha-4633.pdf?
You must complete each column in the Work Background form. You must list only the work performed in the past 15 (fifteen) years, unless you have a date-last-insured. If you have a date-last-insured, you must list the jobs performed in the 15 year period prior to the date-last-insured. If you don’t know if you have a date-last-insured, call you caseworkers who will tell you what that date is. If you don’t remember the dates of your employment just say “approximately” and put the dates down, e.g., from approximately 2015-2018. Then name the employer and the location of employment, for example, Walmart in Cape Coral, Fl. And, in the column described “Duties Performed”, list only the significant duties, for example, Cashier and Janitor, or Secretary and Bookkeeper and Filing Clerk. If you have more than one or more significant duties make sure you list all of them. If you have any questions, call your case manager. You should look at your detailed earnings record which is in your Social Security file to refresh your memory about when and where you worked. Your case manager can give this to you if you ask for it. This detailed earnings record only lists the places of employment where you were paid actual wages. If you were paid cash, you must report it to the IRS and pay your taxes. It is illegal not to pay taxes on work you performed for cash.

 

What if I feel my questions are not answered in this Q&A?
Please call your case worker or attorney at Avard Law and tell them the number of the question for which you do not understand the answer. Or ask a question not covered by the Q & A questions. Please note that your calls should be answered within 48 hours. Thank you for your assistance. We are working very hard to help you win your case.