Frequently Asked Questions
1.Do I need an attorney? Statistics have shown that disability applicants represented by attorneys are much more successful than people without representation. You need to consider whether you have the time and energy to learn and understand the Social Security process for determining disability. This includes learning the techniques necessary to properly advance your claim, the information you should obtain and send to Social Security and how to present your case to an administrative law judge. The process can also involve evaluations and testimony from medical and vocational experts. These issues, along with the ability to pick up the phone and get reassurance that things are on track are all reasons for having an attorney by your side.
2. Why should I choose the Law Offices of James M. Dolenga? It is important to have an attorney that you can visit personally or that could visit you personally should the need arise. Attorney Dolenga has been representing Social Security disability applicants for over 20 years. He personally interviews each client, reviews each case for proper development, counsels each client prior to a court appearance, and attends the hearing to provide personal, professional, competent representation. Attorney Dolenga has successfully represented many individuals that have been turned away or denied benefits by other less experienced attorneys.
3.How much does it cost to hire an attorney? The Social Security Administration controls fees for representation in disability claims. Generally, cases are handled on a contingency basis of 25% of the retroactive benefit with a cap established by SSA. If your claim is not successful, there is no fee. Social Security approval is required for any fee charged. Expenses incurred in the development of your claim remain your responsibility. In certain circumstances Social Security cannot not approve the 25% contingent fee contract (“fee agreement”). An example is when your retroactive benefit is zero due to an offset with another benefit. In those situations I will file an itemized statement with Social Security requesting a specific fee amount. Social Security may approve the requested amount or may approve a different amount. No fee may be charged other than what Social Security approves. Again, you remain responsible for expenses regardless of the amount of the fee. For further information, see http://www.ssa.gov/pubs/10075.html#part3
4.What is the difference between Social Security Disability (SSDI) and SSI Disability? Social Security Disability (SSDI) and Supplemental Security Income disability programs are both administered by the Social Security Administration. For most people, the medical requirements are the same and the person’s disability is determined by the same process. The major difference is that while both programs require proof of disability, SSDI entitlement is based on past work experience while SSI is based on financial need. http://www.ssa.gov/disability/ Social Security Disability Insurance (SSDI) is a program financed with Social Security taxes paid by workers, employers and self-employed persons. Disability benefits are payable to disabled workers, disabled widow(er)’s or adults disabled since childhood, who are otherwise eligible. Auxiliary benefits may be payable to a worker’s dependents. The monthly disability benefit payment is based on the Social Security earnings of the insured worker on whose Social Security number the disability claim is filed. After 24 months of SSDI entitlement, you are also entitled to Medicare health coverage. Supplemental Security Income (SSI) disability is a welfare type program financed through general tax revenues. SSI disability benefits are payable to adults or children who are disabled, subject to income, resource and living arrangement requirements. No dependent benefits are paid with SSI. The monthly amount of SSI payments is different in every state and can vary by the person’s income and resources. You can be eligible for SSI even if you have never worked or paid taxes under FICA. Generally, however, to be eligible for SSI payments you need to be a U.S. citizen or meet certain requirements for non-citizens. If you receive SSI you are entitled to Medicaid (MediCal) which is free.
5.I am over 50 years old, are there any special rules that can help me get my benefits? Yes. The Social Security rules for awarding benefits change for individuals age 50 and above. SSA uses what is described as the “Grid”. The Grid is a framework for decision making. SSA applies the grid when an individual is not performing substantial gainful activity and not capable of performing his/her past relevant work. Age, education, and work experience are used in combination with an individual’s physical capacity. When the individual’s vocational factors coincide with the criteria of a particular rule, a conclusion as to disability is directed.Non-exertional limitations are not reflected in the Grid, but may be considered in combination with the Grid.
6.Am I too young to get benefits? Anyone, young or old, can be awarded Social Security Disability and/or SSI benefits. First you need to satisfy the eligibility criteria. Eligibility can consider work quarters, income and resources. Second and most important is that you have a severe medical condition that prevents you from being able to work in a competitive work environment. Social Security, for the most part, will not consider part-time work or job share work to be competitive employment.
7.When should I apply? Social Security requires that your condition has lasted or is expected to last for at least 12 months. Therefore, if you apply too early, you will likely be denied with Social Security saying that they do not have sufficient evidence to support that your condition(s) will be disabling for the required 12 months. Therefore, applying after your condition has lasted for approximately 5 months is a good reference.
8.How do I apply for benefits? You can apply in several ways.
9.What is the Disability Test? To satisfy the Social Security disability and SSI programs requirements you must have a physical or mental health condition (or a combination of impairments) that has lasted or is expected to last for at least 12 months. Your conditions or impairments must be severe enough to interfere with regular full time employment. In addition to the medical condition Social Security will consider your remaining capabilities along with, age, education, education previous work experience, training and skills to make a decision on your claim.
10.My claim was denied - What’s Next? Don’t be discouraged. Initial claims for Social Security are denied over 65% of the time and reconsideration appeals at 85%. The later stages of a claim at the hearing level through Federal court may vary from 15% to over 80%. The denial and award statistics change in relation to individual states, hearing offices, judges and disability claim adjudicators. There are deadlines for filing appeals. Keep track of the dates and watch your calendar. Be sure to discuss your claim with an experienced professional to fully understand the alternatives for appeal.
11.What is the Administrative Law Judge Hearing? This is the third step in the claim process. If your request for reconsideration is denied you have 60 days to request a hearing. This step involves an Administrative Law Judge and frequently includes expert Medical and Vocational testimony. You will be sworn in and the judge will question you directly regarding your medical problems and why they interfere with you ability to work. Your attorney will be able to ask questions and cross examine any of the witnesses that appear on your behalf. Your attorney can also question any expert requested to testify by the Judge. Any statements made or evidence provided will be included in the official record.After the hearing the judge will issue a written decision awarding or denying benefits. On rare occasions the judge will announce a decision at the end of the hearing or sometimes issue an “On Record Decision” without a hearing. On record decisions are generally the result of a pre-hearing brief prepared and presented by your attorney.
12.My Claim was Denied At The Hearing – Now What? If you are within the 60 day appeal period you should immediately contact an Attorney. An experienced Social Security Attorney will be able to present your case at the Appeals Council or if necessary in Federal Court.
13.Will I receive Retroactive Benefits? SSDI Benefits are payable after a 5 month waiting period. The maximum retroactivity from the date application is 12 months. There is no waiting period or retroactivity for SSI benefits. If you receive an award after lengthy delays and or appeals the past due benefits can be substantial. This can also include a retroactive award of Medicare or MediCal health coverage.
14.Can I Shorten the Claim Process? Yes. There are a few things you can do to help move things along. Some examples are:
- Assist your attorney with medical records, reports and functional capacity statements
- File all appeals in a timely manner
- Keep your attorney informed regarding changes in contact information i.e. Phone, address etc. and any new developments in your medical condition
- Provide accurate and complete information on the initial disability and vocational reports
- Obtain supportive statements from friends, family, clergy and past employers
15.How many steps in the Social Security Disability process? Seven – (click here for process chart)
16.Will Disability Benefits include Medical Coverage? Yes. If you are awarded Social Security Disability Medicare coverage will begin after 24 months of benefits have been paid. If you are awarded Supplemental Security Income(SSI) disability Medicaid/MediCal coverage begins immediately.
17.My claim is filed when will a decision be made? An initial determination can take as little as 30 days if you condition falls into specific categories but it will generally take approximately 5 months. This allows SSA to perform development activities such as requesting and reviewing medical records from your doctors, getting statements from you regarding your condition, and statements from family members, employers or other individuals familiar with your condition.
18.Do I have to be totally disabled to receive benefits? No. The Social Security regulations spell out specifically what is required for a disability award. You need to show, through medical evidence, that you are disabled from competitive, full time employment. Remember, there are also special rules that might make winning easier if you are over age 50.
19.I was recently awarded benefits. How long will my payments continue? You can remain on disability as long as you continue to meet the disability rules. For some people, disability will end with a return to work or until a continuing disability review shows that you no longer meet the test for disability. Some people will remain on disability until they reach retirement age.
20.Can I win my case if my doctor won’t support total and permanent disability? Yes. Social Security only requires that your disabling condition has lasted or is expected to last for 12 consecutive months and will preclude competitive work activity. In fact, your doctor’s opinion on “total” or “permanent” is essentially meaningless. What is important is your doctor’s assessment of your condition from the date it started through the present and how it affects your ability to perform various work related activities.
21.If I’m on disability am I allowed to work? Yes. But remember that Social Security looks at both the activity and the amount earned. If you are working full time but making very little money (less than 1000.00 per month for 2010) you will not be considered to be performing “substantial gainful work activity”. However, this may be evidence of the ability to perform substantial gainful work activity and be used to show that you are not medically disabled. If your earnings are too high, that can be used as an automatic presumption that you are performing competitive work activity and are not disabled. Social Security does encourage you to try to return to work and has programs such as” the trial work period” during which you can work full time in competitive employment and not be terminated from disability.