UNDERSTANDING SOCIAL SECURITY'S DISABILITY APPLICATION PROCESS

The first thing you do to seek Social Security disability (SSDI) benefits is to file a complicated application.  Once all the forms are completed, your case goes to a state agency called the Disability Determination Service, or DDS for short.  DDS will order medical records from all your doctors and treatment providers.  They will analyze your education, past work history and other factors to see if you are obviously eligible for benefits.  A DDS employee will consider such factors as:

• Does your medical condition meet the severity required for a Listing--a published criteria that automatically pays a benefit.  Less than 1 percent of applications meet a Listing.
• Does a Medical-Vocational Guideline ("grid rule") direct a finding of disabled?  This applies to persons 50 years of age or older, never to younger persons.
• What is the claimant's Residual Functional Capacity or RFC?  In short, what is the maximum amount of work-like activity the claimant can perform based on his/her age, education, past work experience and medical limitations?
• If a claimant is believed to be able to perform any job that he or she has performed during the last 15 years, the claim will be denied.  Also, if the claimant is under age 50 and is believed able to perform any job which exists in the US economy, the claim will be denied.

Between 70 and 80 percent of applications are denied at this first level.  It typically takes about 4 months to get an initial decision on an application.  Sometimes it takes longer.

Once the application has been denied, it must be appealed within 60 days.  This first appeal sends the claim back to the Disability Determination Service (DDS) for "Reconsideration."  The same agency that denied the claim (but a different person) will review the claim again.  In more than 90 percent of cases, the DDS will once again deny the claim.  (Honestly, Reconsideration is pretty much a waste of time; however, it is a required step in the appeal process).  Reconsideration often takes 6 additional months. So, by the time DDS denies the claim for the second time, the claimant has about one year invested.

The second appeal takes the claim before a special Social Security judge called an Administrative Law Judge (ALJ), who will hold a hearing with the claimant and his/her attorney present.  Prior to the hearing, the claimant may submit new or additional evidence.  The claimant may go to other doctors or have more tests performed and submit those records to the judge prior to the hearing.  Once the second appeal is filed, it may take 12 months or longer to get before the judge.  So by now the claimant has about 2 years invested in the claim.

At the hearing, 5 individuals will meet in a small hearing room that looks like a conference room (not a courtroom).  These 5 individuals are:  the presiding judge, the claimant, the claimant's representative, a vocational witness and a hearing reporter.  The judge will take oral testimony from the claimant, consisting of questions asked by the judge and by the claimant's attorney (called a representative).  The judge will also hear testimony from the vocational witness.

Once the hearing is completed, the judge will review all the evidence, including the hearing testimony and arguments.  A new written decision will be issued within 2 to 6 months following the hearing. The judge may issue three possible rulings:

FULLY FAVORABLE DECISION:  Finds the claimant disabled as of the alleged onset date (the date claimed in the application) and pays a benefit back to that date, minus the mandatory five-month waiting period.

PARTIALLY FAVORABLE DECISION:  Finds the claimant disabled at a later date than alleged in the application and pays a benefit only back to that date.  Thus, a partially favorable decision results in less back pay than a fully favorable decision.  Note:  The claimant is NOT partially disabled.  There is no partial disability with Social Security; it is all or none.  However, the decision can be partially favorable in the sense that it is less favorable than a fully favorable decision.  (It pays less in back pay).

UNFAVORABLE DECISIONS deny all benefits because Social Security finds that the claimant is not disabled or otherwise does not meet all of the rules of the Social Security Administration.

The third appeal can take the case before a group of judges in Falls Church, Virginia--known as the Appeals Council, or AC for short.  These judges will review the way the ALJ handled the hearing to decide if any procedural problems or regulations were violated.  It typically takes the AC about one year to render a decision.  If the AC finds a problem with the way the ALJ handled the hearing, the case may be "remanded," sent back to the ALJ for another hearing.

Two things to consider about the Appeals Council:

1. Neither the claimant nor his/her attorney gets to appear before the AC.  This is a paper review only.

The AC does not try to decide whether the claimant is disabled or not.  The AC only considers whether the claimant received a fair hearing.  If so, no action will be taken and the decision made at the hearing becomes the administration's final decision (that is, the case remains denied).  By this time, the claimant has invested  about 3 years in the case.

The final appeal is to file a lawsuit against the Commissioner of Social Security in Federal District Court (FDC).  Only about 1 percent of all disability claims wind up in Federal District Court.  But if a case goes there, it will take at least 12 more months to be adjudicated.

So, at what stage does the claimant have the best chance of being approved?  The answer clearly at the second appeal when the case goes to a hearing before an Administrative Law Judge.  The case never again has a chance this good.  That's why it is so important to prepare for the hearing well and to have good counsel.  

I cringe to hear that claimants went to their hearing unprepared and unrepresented, thus wasting their best opportunity to win their case.  And this opportunity never, ever comes along again.  You only get one hearing and must make the most of it.  

So, that's a little synopsis of the life of a Social Security disability application.  Denial is common in the first two stages and the best chance to win is at the third step (the hearing).
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The Forsythe Firm
Practice Limited to Social Security Disability
7027 Old Madison Pike, Suite 108
Huntsville, AL 35806
Call us:  (256) 799-0297

E-mail us:  forsythefirm@gmail.com

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