Obtaining Social Security Disability:
How to Begin the Process
by Scott Davis, Esq.
Step 1. You must believe that you have a valid disability case
We’ve all heard the SSA disability horror stories…but all too
often I am surprised by the number of people who wonder whether they
have a valid claim and if it is worth their time to file for
disability benefits. In my opinion, over 80% of the individuals
whose cases I review have a valid claim. If their claim is properly
prepared they stand an excellent chance winning their
case…regardless of the diagnosis(es).
What is the profile of the average person I am referring to?
In general, they range in age from 30 to 60, have worked most of
their adult life, have a confirmed physical and/or psychological
disorder, undergo regular and consistent treatment with their
doctor/psychiatrist/psychologist, have documented symptoms and
limitations significant enough to preclude full time work, and they
believe or have good reason to believe their doctor(s) will support
their claim for disability.
If you are saying, “he is describing me!” then I have excellent
news for you…you can win your social security disability claim
regardless of your diagnosis (yes, I am referring to the FMS/CFS
crowd!)
Several times a day I am asked, “Can you win a case based on
fibromyalgia and/or CFIDS?” The short answer is an emphatic
“yes!”…it happens everyday. I have been told that SSA employees and
even some disability attorneys are responsible for disseminating the
belief that one can not win a disability case based on FMS/CFS.
If you learn one piece of information from this article let it be
this: if you match or come close to matching the above profile you
have a good chance to win your disability claim…don’t let anyone
tell you differently! Success in your disability claim begins with
belief in yourself and case preparation!
Now that I have your attention…ignore the naysayers and proceed
to Step 2.
Step 2. Filing your application with SSA
You should file your application with SSA as soon as you meet
either of the following requirements:
(1) you have been out of work due to disability for twelve (12)
consecutive months, (2) or it is expected that you will be out of
work for a minimum of twelve consecutive months (if twelve months
have not yet passed since you last worked), (3) your medical
condition is expected to result in death.
Many people have been told they must wait either from five (5) to
twelve (12) months after they stop working before they can file a
claim with SSA…this is simply not true! You can file an application
at any time after you last worked so long as you meet one of the
requirements above. Too many people file their claims years after
they have stopped working…this is a tremendous mistake and usually
will cost them benefits and possibly their claim.
To file an application, call SSA toll free at (800) 772-1213 or
stop by any local SSA office. There is no charge to file an
application (or to withdraw one). What information will you need to
provide to SSA? Please visit
www.ssa.gov/disability.html. SSA’s
website provides a list of information SSA requires. Providing all
the information SSA requires will speed up the process and avoid
those famous and unnecessary bureaucratic delays.
An SSA employee will take your application and set a phone or
personal appointment for you to file your initial claim at a local
SSA office. My suggestion is that if possible you avoid seeing any
employee at a SSA local office! Why? When you visit a local office
the employee will make notes about your general appearance, grooming
and how well you seem to function…this information in your file is
rarely helpful.
Step 3. How much time will pass before I receive a decision?
Welcome to Federal bureaucracy…need I say more? Actually, the
answer varies from state to state. In general, you should expect to
wait at least four (4) months to receive an initial decision. If you
are denied and appeal, expect to wait a minimum of four (4) months
to receive a reconsideration decision. If your claim is denied at
reconsideration and you have a hearing before an Administrative Law
Judge, your claim will likely have been pending for a year to a year
and a half before you receive the ALJ decision.
The often absurd amount of time it takes to work through the
system is the main reason you should file your claim immediately
after you have met, or expect to meet one of the duration
requirements listed above.
Step 4. What if I filed a claim within the last couple
of years
and got denied and didn’t do anything?
Literally everyday I am asked this question and am surprised how
often this occurs. Unless you are expecting it (and who
is?)…receiving the denial letter from SSA is a terribly deflating
and depressing experience. Many people never recover and give up,
assuming they can not beat SSA at it’s own game. The final act is to
retreat to the nearest closet never to be heard from again!
Nationwide, 50% of the claims that are initially denied are never
appealed…in my opinion SSA counts on claimants quitting. If I have
described your situation I may have good news. Don’t quit…get angry!
Think of it this way…when you were forced to pay social security
or self-employment taxes to Uncle Sam, in return, SSA made an
agreement with you that part of the taxes would provide disability
insurance if you ever became unable to work…thus, by filing a claim
you’re not asking for a government handout…you’re seeking benefits
you should be entitled to…benefits you have paid for!
If you are covered for disability insurance benefits (SSDI — see
the frequently asked questions page for information), federal law
allows you to reopen the prior claim within one year of the date of
the initial denial for any reason. You can even reopen a prior claim
within four (4) years of the initial denial if SSA finds good cause
to do so.
Even if you are unable to reopen a prior claim you should still
be able to file a new SSDI application if it has been five (5) years
or less since you last worked full time.
Step 5. Should I consult with or retain a disability attorney?
In my opinion, you should consult with a disability attorney as
soon as possible after you file your claim. Almost all will provide
advice for free. However, be careful as it is very common for
attorneys to advise a person to contact them only after their claim
has been denied once or twice. Because almost every disability
attorney gets paid a fee only if you win your case, they want your
case to be in their office for as short a time as possible…this may
not be in your best interest.
Following this advice could jeopardize your claim. Why? My
experience is that SSA will usually develop a case against you from
the day your claim is filed. All too often, the evidence SSA
develops will be used by it or a judge to deny your claim. In many
cases, the development of this evidence can be avoided or mitigated
if a knowledgeable disability attorney is involved from the
beginning of your case.
What if an attorney will not take your case from the beginning? I
would continue trying until you find one that will. To determine
whether you can afford a disability attorney please see my article
entitled “Winning your Social Security Disability Claim: 15 Mistakes
You Can Not Afford to Make.”
Best of luck to you and remember to keep
fighting for the benefits you deserve!
Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email: info@scottdavispc.com.
Visit his website at
www.ScottDavisPC.com.
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