Disability claims based on psychological/emotional disorders succeed or fail based on whether the claimant’s mental impairment either meets or equals Social Security’s listing criteria for psychological/emotional disorders. The listings, which are a set of requirements for particular impairments which Social Security recognizes as automatically qualifying a claimant if met or equaled, are different for different mental disorders,  e.g. depression, bi-polar disorder, etc. Generally, however, they use the following criteria:

A. marked impairment in two of the three areas of functioning:

1. social interaction
2. concentration, persistence, and pace in completing tasks
3. performance of activities of daily living, OR

B. severe impairment in any of the above three areas, OR

C. three or more episodes of de-compensation in work or work like settings.

The best way to prove a mental impairment is to have an established history of evaluation and treatment by mental health professionals and a mental health treatment provider who will file a report with Social Security that supports the fact that the claimant meets the listing criteria. The opinions of primary care providers who may be simply prescribing anti-depressant or anti-psychotic medication is usually not sufficient. Where the mental health treatment sources decline to complete reports, as do many of the state funded community health treatment facilities, then an evaluation and report by a psychiatrist or psychologist is very often necessary.

At the hearing level, except in the most obvious of cases, testimony from the claimant might need to be supported by the testimony of family and friends for the claim to succeed.

Most people who have to go to an Administrative Law Judge hearing are nervous and uncertain of what will happen. The hearing is actually pretty informal. The participants include the judge, a reporter who types up what is said, often a vocational expert (someone versed in what kinds of jobs exist in the national and regional economy, how many there are of each kind of job, and what each job involves physically and mentally), the claimant and his/her representative.

The star of the show, of course, is the claimant. Many times a judge needs to see and hear from the claimant to make his/her mind up. The judge has reviewed the medical records before the hearing and now he wants to see what the claimant has to say and to size him/her up as far as their credibility: whether their complaints and limitations seem real and are consistent with the medical evidence of record.

In preparing my clients for their hearing, I emphasize to them that they need to be truthful and that they should “tell it like it is.” That is to say, don’t minimize or exaggerate your problems and limitations. It is also very important to listen to the question asked, ask for an explanation of what is being asked if you don’t understand the question, and that you only then answer the question. Going beyond what is asked can often give the wrong impression and sometimes will exasperate an impatient judge.

As for my role as your representative, my job is to help you get your thoughts together by prepping you before the hearing, to keep you focused on what needs to be presented, to ask you questions that I think are important to your claim, to make sure all of the evidence we have compiled is part of your claim file and to point out the evidence, Social Security rules and regulations that I believe support your claim in my argument o the judge. If I have done my job in preparing you and your claim properly, there should be little, if any, surprises that occur at the hearing.

Sometimes a witness is brought in to support your testimony. I usually bring one along but only call that witness if I think the claimant hasn’t done a good job of testifying or if the witness can shed some light on the claim that might be particularly helpful to the judge.

In the end, an experienced and skilled representative is very important and in the majority of cases, is the difference between winning and losing a disability claim.

While Social Security retirement has been a target of the Congress for quite some time, more recently a legislature bent on cutting so called Federal entitlement programs is now looking at the Social Security Disability program (SSDI). Some legislators view SSDI as a form of “unemployment” benefit, failing to realize that the Title II\SSDI disability program is funded by the same Social Security taxes that a worker has deducted from his pay checks while working. In effect, SSDI is a form of early disability retirement which allows a person who can no longer work to draw his retirement early. They further fail to recognize that just because a person can no longer do his\her past work doesn’t mean that they get SSDI disability benefits.

A claim for Social Security Disability requires significant objective medical evidence of a person’s impairments and credible evidence that the claimant’s stated limitations, symptoms, and complaints are consistent with her\his underlying medical condition. Far from being easy, SSDI eligibility has never been more difficult. SSA standards have become tougher and more and more doctors just don’t want to take the time to help their patients with their Social Security Disability claim.

A fully funded SSDI program is more than just about assisting Americans with disabilities. It is often the thing that prevents homelessness, keeps families together, provides medical care and promotes our growth by putting dollars into the economy.

Perhaps the most important medical ingredient for a successful Social Security Disability claim is the support of a treating doctor(s). Why? Because SSA, by its own rules, recognizes that treating doctors are in the best position to give a professional opinion regarding a claimant’s impairments and their effect on his\her ability to work.

A properly drafted report by a treating doctor with a substantial history with the claimant, which clearly sets out the objective medical evidence proving a claimant’s impairment and also explains how the symptoms and limitations complained of by that claimant are consistent with the medical evidence, is going to be given special and sometimes controlling weight in Social Security’s disability determination.

Unfortunately, a lot of doctors don’t see helping their patients who have a Social Security Disability claim as a part of their job. Others think a simple letter to Social Security stating that their patient can’t work should be enough. And as doctors focus more and more on managing larger patient loads, responding to a request for a report from a patient’s disability attorney doesn’t rank high on their list of things to do. In fact, many doctors now simply refuse to give such reports and instead suggest referring the patient to a physical therapist who does functional capacity evaluations (FCEs are a series of tests designed to measure how much physical capacity a patient still has). But Social Security doesn’t like FCEs because it recognizes that they are only a snap shot of a claimant’s physical work ability and do not address what that claimant can do 8 hours a day, 5 days a week over 50 weeks.

So over the years I have had to pester, educate, shame and cajole doctors into providing me what my client (their patient) really needs to help his\her disability claim succeed.

As for the claimant’s part, seeing your doctor regularly, truthfully setting out all of your symptoms and complaints and being a good patient by following doctor’s orders can really go a long way toward persuading a doctor to help.

Once a claim is filed, whether Title II or Title XVI, the department of vocational rehabilitation for the state in which it is filed, through its disability determination services office (DDS), will review the claim and make the initial decision. Usually DDS will obtain evidence from your doctors and other medical care providers. Sometimes they will send you to a doctor at their own expense if the medical evidence is not available or is insufficient to allow them to make a decision. At the initial level it will usually take 3to 4 months for a decision. I emphasize the word “usual” as I have seen cases where the initial decision was made in a month and others that took as long as year.

If the claim is denied you will be notified in writing and advised that if you want to appeal you have 60 days to ask for a “reconsideration”. The reconsideration review is also done by DDS but by different persons than those who made the initial decision. New medical evidence can be submitted and DDS can also refer the claimant to a doctor for evaluation just as at the initial level. This level of review can take as long or longer than the initial level based on whether new medical evidence is submitted.

If denied at the reconsideration level you again have 60 days to appeal, this time by ask ing for a hearing before an administrative law judge (ALJ) who works for the Social Security Administration in the Office of Disability Adjudication and Review (ODAR). Unfortunately, due to an extreme back log in appeals nationwide, it typically takes a year and a half from the time you request the hearing before the hearing is actually conducted.

If your claim is denied by the ALJ you can ask for review before the Appeals Council. The Appeals Council will look at the records form the hearing and can review new evidence. If the Appeals Council decides that the ALJ was correct in denying your claim, the decision of the ALJ becomes the final decision of SSA subject to court review. If the Appeals Council disagrees with the ALJ’s decision, it can modify the decision, reverse it or send it back for a new hearing.

If the decision of the Administrative Law Judge is upheld by the Appeals Council your next avenue of review is in the Federal Court system, first by  filing suit in the Federal District Court for the jurisdiction in which you live. The district court can affirm, modify or reverse SSA’s decision. You can also appeal an unfavorable decision of the district court to the U.S. Court of Appeals and potentially to the U.S. Supreme Court, though appeals to these last two courts is seldom seen.

The Social Security Administration (SSA) administers two programs that provide benefits based on disability. Title II refers to the SSA insurance program which provides benefits to persons who, by virtue of their wok history and the social security taxes paid on their income, are considered insured. When such a person is no longer able to work he or she is entitled to disability benefits IF they meet SSA’s test for disability and have worked enough in the recent past to be considered “insured”. See the article, “What is social security’s test for disability?”

The supplemental security income program (Title XVI) is a program funded by the individual states and supplemented by the federal government. People who have never worked or haven’t worked enough to be considered “insured” for Title II disability benefits, or disabled children, who meet the disability test can claim SSI benefits BUT ONLY if they also meet a resource test, meaning limited income and assets. The SSI resource test, simply stated, allows single claimants to have $2,000 in income and assets and married claimants to have $3,000 in income and assets and still qualify for SSI. Certain assets, such as a home of any value, and one car of any value, if used for work or to obtain medical care, are excluded from consideration as a resource.

In some cases a person can qualify for both types of benefits, usually where a Title II claimant has a low disability monthly amount and sometimes when they have been out of work for so long that they have used up their resources and assets qualifying them for a limited time to SSI in addition to Title II benefits. These are referred to as “concurrent” claims by SSA.

There are significant differences in the amount of benefits each program pays, Title II monthly benefits being typically two to three times the amount paid by SSI. The SSI benefit rate varies from state to state. Also, Title II claims can be awarded retroactively up to one year prior to the time the claim is filed subject to a five full month waiting period from the date disability is established. SSI claims pay benefits beginning the first full month after the date the claim if filed or the claimant is found to be eligible. Medicare insurance entitlement is established for Title II disability recipients after they have received disability benefits for two years, while SSI recipients qualify for Medicaid immediately upon being established as disabled.

No one is required to have a representative to assist them with their claim, but a skilled attorney experienced in representing people in disability claims is often the difference between winning and losing your claim. In fact, except for the most obvious cases of disability, it is almost always advisable to get an attorney if you have been denied at the initial level of your claim. Why? Because most people don’t understand just how complicated social security’s regulations regarding disability really are. If you’ve been denied by SSA there is something about your claim that needs to get straightened out or you are going to continue to be denied. I have seen case after case of persons who are obviously disabled but have been denied by SSA-often several times as part of several attempted claims- who don’t have a clue as to why.

I have heard time after time “My doctor says I can’t work anymore, why is SSA denying my claim?” A quick review of the article in this site “What is social security’s test for disability?” should give you a little more understanding of why  this is not enough to win your claim and what you are up against. But what an experienced attorney knows that is not written anywhere is that there is an ingrained bias within the state DDS agencies against allowing disability claims. I have witnessed numerous occasions where a doctor to whom a claimant has been sent by DDS for evaluation has written a report that clearly qualifies the person for disability but who DDS simply disregards and finds against the person.

In my practice I generally advise claimants who contact me to wait until after the initial decision by DDS to hire me. That way they can see if their claim is approved without having to pay an attorney. However, once denied at the initial level it is almost certain that the claim will be denied again by DDS unless new evidence is produced or the old evidence is shaped up to address the specific points of SSA’s disability test. A good attorney will know how to get that evidence if it exists, and how to address the specific problems affecting your claim. A good attorney can also make a big difference in the amount of benefits you receive by making sure that the earliest possible onset date for you disability is proven, or by arguing effectively for reopening  a prior denied claim through the introduction of new and material evidence supporting your claim, all of which maximizes the benefits owed to you for the period during which you were waiting for your claim to be approved.

A disability claimant should never go to the hearing stage of their claim without a good attorney. The hearing is your first opportunity to appear in person to testify and have others testify about how your impairment affects you and your capacity to work. An experienced attorney knows what evidence to present, the right questions to ask and the right way to present the testimony of you and your witnesses. It is an opportunity to win your case that you cannot afford to squander and your last chance to win your claim without the lengthy and time consuming next steps of review: the Appeals Council and Federal District Court.

Clearly presentations to the Appeals Council and lawsuits at the Federal District Court level are beyond the ability of the vast majority of claimants and require the assistance of an attorney.

Generally a person can start his or her claim by calling the SSA teleservice center at SSA”s toll free number, 1-800-772-1213. The teleservice center staff will call your local SSA office and make you an appointment with an SSA representative. A person can also call the local SSA office where he or she lives and make an appointment to complete in person the disability claim application. The phone number for your local office should be listed in the white pages under Social Security Administration or the blue federal government pages of your local phone directory under the same heading.

Never just go to the local office and expect to be seen. Without an appointment you will likely have to wait for hours to see someone.

Be sure that whichever way you proceed that you have the names, addresses and phone numbers of all of your medical care providers, the drugs you are currently taking and a good outline of your work history for the past 15 years with a description of what each job involved physically and mentally, how long you worked at each job and what you were paid. Be ready as well to explain your physical and mental impairments and how they reduced or eliminated your ability to do each of your past jobs.

An attorney can charge by the hour or by contingent fee agreement. Some expect payment regardless of the outcome. I charge by contingent fee ( I only get a fee if I win the claim) and I use what Social Security calls a Standard Form Fee Agreement that sets my fee at 25% of a claimant’s past due benefits not to exceed $6,000.00 no matter how large the amount of past due benefits awarded. Past due benefits are those benefits earned from the date your disability began through the date of a favorable decision on your claim. Standard form fee agreements are encouraged by SSA and in most cases, where there has been a favorable decision, approved almost automatically. In all cases a representative’s fee must be approved by SSA before it is paid.

 But what if you can’t afford an attorney? If your case has merit this is usually not a problem as long as there is the potential for a decision resulting in past due benefits.

A claim with the potential for a year or more of past due benefits is usually sufficient to generate a reasonable fee for an attorney working on a contingent fee agreement.

Whether you have applied for disability benefits based on (Title II) or Supplemental Security Income (Title XVI) the disability test is the same (see my article, “What is the difference between Title II and Supplemental Security Income?”). Social security defines disability as the inability to engage in any substantial gainful work activity because of a severe and medically provable physical or mental impairment or impairments which has either lasted or can be expected to last for twelve continuous months or to result in death.

 SSA uses a five step process to determine if a person meets this test. The steps are followed in order. At any step that a person is determined not to meet the test, the determination process ends.

 Step one (substantial gainful activity) refers to whether you are working, performing substantial work activities and earning income from that activity. If you are engaged in substantial gainful work activity, no matter how impaired you are, you cannot get disability benefits. If you pass step one, the evaluation proceeds to step two.

 Step two (severe medically provable impairment) refers to the reason you can’t engage in substantial gainful work activity. The cause has to be a physical or mental impairment (or combination of impairments) which have been proven to exist by accepted medical testing and which results in a significant reduction in your ability to perform basic work activities.

 Step three, does the impairment meet or equal an impairment in SSA’S listing of impairments? If it does, the person is automatically qualified for disability. If it doesn’t, the evaluation process proceeds to step four.

 Step four, does the person, in spite of the impairment, still have the capacity to perform his or her past work? To decide this, SSA must first determine what the persons’s residual (remaining) physical or mental functional capacity is. Then SSA looks at the work the person has done over the last fifteen years prior to filing for disability. That past relevant work is physically classified as sedentary, light, medium or heavy work. If a person’s past work includes a job that he or she still has the residual physical capacity to perform, he is not qualified for disability. A person claiming a mental impairment, must show that he or she does not have the remaining mental capacity to perform the basic mental work activities required by his past work or he is not qualified for disability.

 If the person does not have the residual physical or mental capacity to do his past work, then SSA proceeds to the final step of the process, step five.

 Step five, does the person have the residual physical or mental capacity to do other work which exists in significant numbers within the national economy? This step basically refers to whether a person retains the ability to do jobs other than those which they have performed in the past. At this step a person’s age, education and past work experience becomes important because SSA allows people as they get older to retain some capacity to work and still be considered disabled. For people under fifty, unless illiterate, any remaining capacity to work, even at jobs they have never performed or it is doubtful they would be hired to do, will disqualify them from receiving disability. But people fifty two and older can have the capacity to do sedentary and sometimes even light work and still be considered disabled since SSA assumes that they don’t retain the capacity to adjust to new work like younger people do.

 If a person cannot do other work, he or she is disabled.