DISABILITY SURVIVAL GUIDE: NORTH ALABAMA EDITION

Social Security Getting Further and Further Behind & Paying Fewer and Fewer Claims More than one million people are currently waiting for Social Security to review their application for disability benefits according to the nonpartisan data association USA Facts. At the same time, the average processing time has also hit a new record high—7.5 months. (As recently as 2020, the average processing time was four months.) The percentage of backlogged cases has risen in 44 out of 50, Alabama and Tennessee included. Social Security says they have has been struggling due to staffing shortages and insufficient budgets. Acknowledging delays in service and long waits for disability decisions, the Social Security Administration (SSA) asked for an increase in funding and Congress allocated the agency a $400 million increase for fiscal year 2022. That's a drop in the bucket toward what Social Security needs. We have known of claimants waiting more than 2 years to get an initial dec...

Your lawyer can do things to help with your disability claim that you cannot do. 1.  Obtain special evidence that you won't know to get. 2.  Develop a legal theory of your case. (Use the rules to win your case) 3.   Foresee and solve problems or credibility issues 4.  Apply grid rules (medical-vocational rules) 5.  Help you potentially meet Blue Book listings 6.  Write a brief supporting your case and summarizing evidence  7.  Prepare you for hearing testimony 8.  Go with you to the hearing as your legal advocate 9.  Cross examine the government's expert witnesses 10.  Make a closing argument to supp0rt your case 11.  Know when and how to file appeals if you are denied at hearing  12.  Present your case to the Appeals Council with a legal argument.   

Many individuals call me who are disabled but do not qualify for Social Security Disability Insurance (SSDI) benefits because they have no recent work history.  They haven't paid into Social Security through payroll deduction (or otherwise) and therefore are not insured for SSDI. If this is the case, we always consider applying for SSI, which stands for  Supplemental Security Income. SSI is really a type of welfare supported by grants from the federal government to the states.  Therefore, an individual must meet certain strict medical and financial requirements to qualify for SSI:   Must have financial resources of not more than $2,000 for an individual applicant. Must have financial resources of not more than $3,000 if a couple. Must be age 65 or over OR have a qualifying disability. Many claimants can medically qualify for SSI but are disqualified financially. On the other hand, many can financially qualify for SSI but are disqualified medically (not disabled or ag...

Let me be brutally honest:  Social Security denies almost 9 out of 10 disability claims in Alabama and Tennessee.   You should NOT file a new application. Here are 6 reasons: A new application is starting over.  That's bad. A new application repeats the 5 months waiting period that you've already met. A new application loses all or part of the past due benefits to which you may be entitled. A new application has even less chance of approval than your first one. A new application forces you to wait an extra 12 to 24 months for a final decision/pay. Your basic eligibility (DLI) may expire before the new application is filed. You are nearly always better off to file an appeal of your denied claim, not a new application. An appeal is not the same thing as a new application.   NEW APPLICATION                                              ...

  Here's the honest truth:  Most of the decisions issued in Alabama about Social Security disability are wrong.  Not some , most . That leads me to my premise:  Appeal first and ask questions later. Well, maybe it's OK to ask a few questions first. But ultimately, you probably won't get any benefits until you appeal. And probably you will have to appeal twice . The first appeal, called "Reconsideration," is also denied in about 90 percent of cases.  The only reason to file for "Reconsideration" is to get to the next step, which is a hearing. In the second appeal (your third action) you will take your case before a US Administrative Law Judge, who will hold a hearing, listen to all the evidence and give you a new decision. Your lawyer/advocate may attend the hearing and help you make your case. Approximately one-half of the decisions that have been denied can be approved during a hearing.   Unfortunately, many claimants give up after being denied...

Social Security will use 5 steps to consider your application for disability.  Think of these "steps" as tests.  Nearly everyone passes steps 1-3.  So here we will discuss Steps 4 and 5: STEP 4:  Are you now able to perform any full-time job that you have performed within the past 15 years?  Th is work is called "past relevant work."  If decision makers find that you can perform any  past relevant work you are not disabled under the rules and regulations.  Many claimants are denied at Step 4, but even more get denied at Step 5. STEP 5:   Do you still have the capacity to perform any other which exists in the national economy?  In other words, you can't perform any past work but can you perform easier work?  If you can you are not disabled and will be denied.  Step 5 tricks up claimants who are under age 50 and considered "younger individuals" under the regulations.  No, you can't do your work as a construction worker but ...

WHAT QUALIFIES YOU FOR DISABILITY PAYMENTS IN ALABAMA? 1.  You have worked and paid the required FICA tax into Social Security.  This tax is called FICA. 2.  You have a severe medical/mental impairment that makes you unable to work and the impairment has lasted at least 12 straight months, or is expected to last 12 straight months OR is expected to end in death  3.  You are not able to perform any of the work you have performed within the past 15 years, and  4.    There is no easier work you can do which exists in "substantial numbers" in the US economy.  (This rule applies mostly to individuals under age 50). Even if you have an eligible disability Social Security will generally deny your application and often denies the first appeal.  You may have to appear for a hearing before a federal Administrative Law Judge before reaching a final decision. The process can be long, complex and confusing.  We recommend an experienced and succe...

Applying for Social Security disability is complex and overwhelming.  The Social Security Administration is the largest agency in the federal government and its rules and regulations are so complex that some lawyers don't even understand them. About 8 out of 10 applications for disability are denied.  The 20 to 30 percent that are approved are those of individuals who have catastrophic medical or mental conditions that are obviously disabling.   What Can You Do To Improve Your Chance of Being Approved? 1.  Understand the Eligibility Criteria It's not for everyone.  SSDI benefits are for those who have worked long enough and recently enough and contributed FICA tax through payroll contributions or other means.  In addition, you will need a severe disability that has or will prevent you from working for at least 12 straight months OR end in death.  Most impairments will qualify. 2.  Provide Objective Medical Evidence This path runs through your doct...

Can you work while receiving Social Security disability payments? Two important f acts: 1. Any  work can draw unwanted attention from the Social Security Administration and may put your disability benefits under review .    2.  According to the written regulations, you are allowed to work as long as your wages or earnings fall below $1,550 (gross) per month.   That's the amount for 2024.  (In 2023, the amount was $1,470 per month).  Earn more than that and you are no longer disabled under Social Security rules.  And it doesn't matter why   you work. The basic premise of the Social Security Administration is that benefits are only available for individuals who cannot work.  If you can't work you are disabled.  If you can work you are not disabled. Working proves that you are not disabled like nothing else. I counsel my clients:  If you can possibly keep working then that is probably th e right path.  If you have reached ...

  You're trying to get benefits from Social Security because you are disabled.  They may not believe you.  In fact, they will deny 70 percent of all claims.  There's one thing that can help you win on appeal. What is a "Residual Functional Capacity" or RFC?   RFC simply means the amount of work you are still able to do in spite of all your impairments.   Where does the RFC come from? In a worse case scenario , Social Security makes up their own Residual Functional Capacity (RFC).  This often results in denial. In a better scenario , the claimant's own doctor provides an RFC opinion.  This can really help win the case. Here are some facts you need to know about the RFC opinion from your doctor: It must come from your doctor who knows you and has treated you for awhile. It must be specific and on the correct form. Letters from doctors don't work; get the right form for your doctor to complete. Understand that your doctor may only provide a...

A lawyer isn't required to apply for Social Security Disability Insurance (SSDI) benefits.  However, many people who try to go it alone will get confused and frustrated and seek an attorney or advocate to assist them. A lawyer or advocate can fill out the SSDI application for you and submit it.  He/she can review the application to be sure it is complete and without errors that could delay the claim.  Your lawyer/advocate can attend meetings, conferences or hearings with you.  The Social Security Administration (SSA) will work directly with your legal representative and will share your Social Security file. Having legal representation can be especially important if you disagree with Social Security's decision on your claim and you need to appeal.   Most denied cases require attendance at a hearing before an Administrative Law Judge.  Your legal representative can go with you to the hearing and can prepare for it.  He or she will prepare you and any wit...

  Chances of Social Security Disability Approval at the “Initial Application” Level .  At the first (called “Initial Application”) level, only about 30  percent  of all claims are approved. Those that are approved are usually for claimants who meet a “Listing” (check out the SSA’s “Listing of Impairments” ) or who are so clearly and obviously disabled (for instance, those in a coma or rendered quadriplegics from accidents) that there is no question they cannot work. This leaves roughly 70 percent of the original 2 million (or about 1.4 million) claims rejected at the Initial Application level. Chances of Social Security Disability Approval at the “Reconsideration” Level The second step in the SSA’s process is called “Reconsideration.” At this step, a different Claim Examiner at the state’s Disability Determination Services (“DDS”) office reviews the work of the Examiner who reviewed the case at the Initial Application stage to see if anything was missed o...

On November 4, 2022, the U.S. Court of Appeals for the Seventh Circuit, the Court which considers appeals from district courts within Indiana, Illinois and Wisconsin, issued a decision in which it concluded the ability to perform 89,000 jobs in the entire United States economy amounted to the ability to perform a “significant number of jobs” in the national economy. In concluding a Social Security claimant is not disabled, an Administrative Law Judge must prove that the claimant, with all of their physical and mental limitations, can perform either a job they previously performed in the past 15 years or other jobs which exist in “significant” numbers in the national economy. The term "significant number of jobs" is not defined by the Social Security Administration. This final step is especially difficult for Social Security judges, especially where a person is physically limited to only “sit-down” work and has not acquired significant technical skills during th...

I have previously published "Signs that Your Social Security Disability Hearing Went Well." Today, I want to discuss "Signs that your Disability Hearing Did NOT go well." At the beginning, let me say that you never really know  whether you're going to be approved until you get the judge's notice in the mail.  However, there are some definite signs that your hearing didn't go well. 1.  The judge questioned your credibility or indicated that he/she did not believe some part of your testimony.  The judge may think you exaggerated your symptoms or that your real restrictions in activities of daily living are not as severe as you testify they are. 2.  The judge calls you on substance abuse.  For example, "The record says that you drink two cartons of beer per day; are you still drinking that much?" 3.  The judge finds substantial earned income (wages) after your alleged onset date (AOD).  For example:  You claim you had to stop working on 10/1/21 ...

Decisions   on Social Security disability claims are made according to established guidelines and must conform to the rules and regulations of the Social Security Administration.   3 THINGS THAT CAN HELP GET YOU APPROVED FOR DISABILITY: 1. Support from your treating doctor.  In  addition to his/her complete medical records, the best thing your doctor can provide to Social Security is a a form called Residual Functional Capacity .  Doctors do not have these forms (and they may not like to fill them out) but you can obtain a copy from your attorney or advocate.  Caution:  A letter from your doctor usually doesn't help because it will not be specific enough to meet Social Security regulations.  Use a form that Social Security uses and recognizes. 2.  Regular medical examinations and treatment.  The path to Social Security disability runs straight through your doctor's office.  If you have a severe medical or mental condition that ...

  RED FLAGS IN A SOCIAL SECURITY DISABILITY CASE A red flag is something that causes concern or raises a problem in a Social Security disability case.   In short, it’s something that may get the claim denied or cause a big problem. Here are some of the red flags that we see crop up: ·          Work after the alleged onset date (AOD).   Since the process takes so long, many claimants feel that they are forced to return to work for income.   Social Security often sees this as a sign that the claimant is not disabled. ·          Severe substance abuse.   Chronic and frequent abuse of drugs or alcohol can pose problems. ·           A skimpy work record.   A claimant who has worked very little or has jumped from job to job frequently may not have good credibility. ·          Quitting wo...

IS AGE A FACTOR IN GETTING SOCIAL SECURITY DISABILITY? Yes!  Age is a big factor and plays a major role in Social Security disability. Social Security has 3 sets of rules based on age, as follows: If you are under age 50, you are a "younger individual" according to the regulations, and the bar is really high.  You must prove that you cannot do any job which exists in significant numbers in the United States.  That can be very difficult. If you are between the ages of 50 and 54 you are "approaching advanced age," and the bar is lowered a little.  You may be able to meet a "grid rule" that combines age, education, impairment and past work to direct a finding of disability. If you are age 55 or over, you are of "advanced age," and it is easier yet to meet a grid rule finding you to be disabled.   So, the severity of a disability must be severe for a person under 50, but as you age your medical impairments combined with age and past work experience ...

Social Security hearings are held by federal Administrative Law Judges (ALJs) and usually last about an hour.  You, the claimant, will be answering questions posed by the ALJ and by your own attorney/advocate.  Your answers to these questions will form your testimony and provide the ALJ with information needed to decide if you are disabled. Here are some things you must be able to answer clearly at your hearing. 1.     On what date did you last work for pay?  The ALJ wants to month and year.  You must be able to state this without pause or hesitation.  "I last worked in November of 2022." 2.  Why do you think you are disabled?  May also be asked as:  "Tell me why you believe you are unable to work?"    Specifics:  Trouble walking, standing, sitting, reaching, bending, lifting, chronic pain, difficulty concentrat                     ing or staying focused, etc.  No...

SOCIAL SECURITY DISABILITY INSURANCE (SSDI) covers workers who become unable to continue working.  You have this insurance under Social Security if you have recently worked at a job  which withheld and paid FICA or Social Security tax out of your payroll checks. Answer these questions as a guide to see if you may be eligible for SSDI benefits. Have you worked and paid FICA taxes (payroll deduction) for at least 5 years out of the past 10-year period?  If you haven't, you not be covered or "insured" for SSDI. Are you now working at "Substantial Gainful Activity" or SGA level?  In 2023, you are gainfully employed if you work and earn $1,470 per month (gross) in wages, salary, tips, commissions or self-employment.  In 2024, SGA will be earning at least $1,550 per month (gross).  If you work at these levels, you are not disabled for Social Security purposes, no matter how severe your impairments are. Do you have a severe and medically determined impairment whic...

  Substantial Gainful Activity, or SGA is a term used by Social Security to determine whether you are gainfully employed. If you are gainfully employed you cannot receive disability benefits. In 2023, you are engaged in Substantial Gainful Activity (work) if you earn at least $1,470 per month (gross) from wages, tips, commissions or self-employment.  If you are working at SGA you are not eligible for disability or SSI benefits, no matter how sick or disabled you may be.   n 2024, you will not be engaged in Substantial Gainful Activity unless you work and earn at least $1,550 per month (gross).  So, if you work and earn less than $1,550 per month (in 2024) you could be disabled. Social Security goes to great lengths to assure that nobody who is working at SGA level can receive a disability benefit.  We get calls from individuals regularly who could probably prove that they are disabled, except for one thing:  they are working and earning wages above t...

Your Social Security disability (SSDI) benefit will depend on your work history and your lifetime wages.  Different disabilities do not pay different amounts, except for blindness.   So, if you are disabled by heart disease or by depression, your benefit will be the same--based on your lifetime wages and the amount of FICA you paid into the Social Security system. The average disability benefit in Alabama for 2023 was $1,333.89 per month, which is about $50 higher than the national average. The maximum SSDI benefit in Alabama for 2023 was about $3,600 per month.  In 2024, this will increase to $3,822 for new claims decided on 1/1/24 or later.  This increase does not apply to persons already getting SSDI benefits before 1/1/24. So, the amount of your SSDI benefit is not determined by the type of medical condition you have (except for blindness, which can get a higher benefit). Also, since Social Security only pays for total disability, benefits will not increase becau...

Your "onset date" is the date your medical disability began.  It is also the date from which Social Security will pay benefits.   There are 2 possible onset dates to be aware of: ALLEGED ONSET DATE (AOD) - is the date that you, the claimant, believe you became unable to work or disabled. ESTABLISHED ONSET DATE (EOD) - is the date that Social Security decides that you became disabled.  This is the date they from which they will pay benefits. This date may be different from your alleged onset date. The effect of moving your onset date forward is twofold: a)  It reduces your back pay, or in some cases it eliminates all back  pay. b)  It makes you wait longer to get Medicare health coverage, since Medicare begins 29 months from the established onset date (EOD).  The later the onset date, the later you become eligible for Medicare.   In some cases, the Social Security Administration (SSA) will disagree with the date that applicants claim their di...