Disabled Adult

I have 3 pieces of advise for anyone who can no longer maintain fulltime employment due to a medical impairment or combination of impairments.

  1. Apply Now, Don't put it off!
  2. Don't give up if you are denied, File your appeal immediately!
  3. Hire an attorney early on in the appeal process.

APPLY NOW

If you have been working and paying taxes for at least 5 years, you are probably insured for disability benefits. You need 20 quarters of coverage in the last ten years to be currently insured. You must earn $1300 to get one quarter of coverage in 2017. To learn the amount of earnings required for a quarter of coverage each year, see this table. At $1300 per quarter, it takes at least $5200 of earnings to get the maximum four quarters of coverage in 2017.

Most people don't know that if they stop working, their disability insurance coverage will expire in 5 years. Many people make the mistake of putting off filing an application for disability insurance benefits for several years hoping that their health will improve and they can go back to work. Don't make that mistake. A better strategy is to file now and then if your medical condition improves such that you can now work full-time, you simply withdraw your claim or ask for a closed period of disability benefits.  

DON'T GIVE UP!

Winning your disability appeal takes patience and perseverance. Your denial letter will say you have 60 days to file the appeal. Don't miss that deadline. You might have to start a new application which wastes time. Get representation to file the appeal.

HIRE A COMPETENT ATTORNEY EARLY ON.

Hire an attorney who is a member of NOSSCR (the National Organization of Social Security Claimant's Representatives). He/she will have more training and experience. Most non-attorney representatives charge the same fee as the attorneys, why not benefit from the greater knowledge, training and skills of an attorney? However, be careful to hire an attorney who makes Social Security Appeals the majority of his/her practice. Most do not. Ask them! Ask what percentage of their practice is devoted to Social Security Appeals. Ask how many staff members work on the disability appeals. Ask how many years have they practiced Social Security Law. Finally, ask whether they pursue the appeals into federal court. These attorneys will likely have a better grasp of the law and will likely prepare your case right the first time. 

The Basics of Social Security Law.

For an adult, the law defines disability as an inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. See 20 C.F.R. 404.1505(a).

Note that a claimant is not disabled simply because he/she cannot perform his old job. If you are under the age of 50, you will usually have to prove there are no jobs in the national economy that you can perform. The Social Security Administration ("SSA") will often point out some very simple jobs that you supposedly can still perform.

People often ask me if they can work part-time while appealing the denial of their disability claim. Appeals often take several years and people often cannot afford to wait that long. I try not to discourage people from working. People are often happier if they have a job and are able to provide for themselves. However, if they earn more than what SSA defines as substantial gainful activity ("SGA") for six months or more, they will disqualify themselves. In 2017, a person earning more than $1180 monthly is ordinarily considered at SGA and therefore not disabled under the above definition. A blind individual can earn up to $1820 monthly before being considered earning SGA.  For more information click here. I tell clients to be careful if they earn gross income (before taxes) of $880 per month. Any higher and SSA may question the credibility of their disability claim.  

Here are the 5 Steps in the Sequential Disability Evaluation Process

1. Are you performing SGA (defined above)? If yes, you will be denied.

2. Do you not have a severe medically determinable physical or mental impairment or combination of impairments that has lasted or can be expected to last for at least 12 months? An impairment is "severe" when it "significantly limits your physical or mental ability to do basic work activities." If no, you are denied.

3. Does your impairment(s) meet or medically equal the criteria of a listed impairment? If yes, you are approved. To review the detailed criteria that must be proven to meet or equal one of the listing of impairments, go here. If no, that is not the end of the inquiry. SSA must first determine your "residual functional capacity." This is the stage when most cases are decided. RFC is what a claimant can still do despite his/her functional limitations and restrictions caused by medically determinable physical or mental impairments. RFC is the individual's maximum remaining ability to perform sustained work on a regular and continuing basis; i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule. If a job requires you to perform some task that aggravates your condition, the task is probably beyond your RFC. I have many client's who have taken on jobs that aggravate their condition to the point that they have to quit or they get fired. SSA is only interested in determining what you can do on a "regular and continuing basis."  

4. Will your RFC allow you to still perform your past relevant work (jobs done in the last 15 years)? If yes, you are denied. If no, then you have satisfied your burden of proof. Now SSA must prove you can still perform other work that exists in significant numbers in the national economy.

5. Given your RFC, age, education, and easily transferable job skills, can you make an adjustment to other work that exists in significant numbers in the national economy. If yes, you are denied. If no, SSA will find that you are disabled. 20 C.F.R. 404.1520(a). SSR 96-9p. 

The Key To Winning. Be sure to obtain early on specific medical opinions of your limitations. This is how to establish an RFC that eliminates all work. A diagnosis of the impairment(s) is not enough! Rarely will SSA take your word (or the word of your family or friends) for your limitations. I like to get hired early in the process so that there is time to line up supportive opinions from treating physicians. As soon as you receive your first denial, hire an attorney who specializes in this area of the law. If you live in the Central Florida area, click the Contact tab above, and fill out the form. We will be happy to help you.

 

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