David Ashe
Helping Virginia area residents gain their Social Security Disability coverage and with Disability Law claims.

Am I doing something wrong by even applying for disability?Virginia Area Social Security Lawyer Alperin Law
Aren’t there people worse off than me?
Is it too soon for me to apply?
Is it too late for me to apply?
What is Social Security Disability?

What can you learn from this book about Social Security Disability? 

As a career attorney specializing in disability law, I’d like to start by telling you what I have learned:

A Fighting Chance To Get Your Social Security Disability

No one thinks you are asking for a hand-out.  You’re not asking to be rich.  You want one thing:  A fighting chance.  A chance to sustain yourself as you focus on your health, focus on recovery.  

First and Most Important

The first and most important thing you must do is to believe in yourself.  We talk a lot about compassion in our society but we don’t practice it much.  The moment anyone tries to talk about health, the doubts begin.  The suspicion and the looks.  Don’t confuse feelings with facts.  

Trust Yourself  When It Comes To Your Social Security Disability Claim 

The facts are that you have serious health issues.  You may feel that your fellow citizens doubt you.  You may even feel some of your doctors don’t understand the seriousness.  However, don’t confuse those feelings with facts.  

Trust Your Facts

Instead, use those facts.  Those facts are based on your pain, based on your loss of ability, based on your loss of economic opportunity.  Use your facts.  Harness them to make the case as designed by our laws.

Society’s Insurance 

Remember that Social Security disability is insurance.  That is, insurance against the onset of disability.  If your health prevents you from working, you are the right person to access this insurance program.

Capitalism’s Insurance

In American capitalism, we push ourselves to work as hard as we can for as long as we can.  We take risk, we make sacrifices. However, a system like ours requires a safety net in case of illness or injury that prevents a person from working.  This safety net allows our citizens to take risk and aim high.  As a result, the Social Security disability system is a pillar of capitalism.  Those who fall into the safety net are among our best and strongest whose desire to work was overwhelmed by serious health issues.

A Process, a Pathway

Any system can have occasional random results, but far, far fewer than someone might imagine.  Arbitrariness and luck have very little to do with approval for Social Security disability.  It’s a process and there are specific pathways to obtain approval.  Luck is never the factor.

Treatment Records To Support Your Social Security Disability Claim

On one hand, Social Security disability is all about the medical records.  Anything claimed must be confirmed in medical records by a licensed medical professional.  However, it’s never too late.  Just because you have not had the opportunity to have a provider examine a particular aspect of your health in the past does not mean you can’t do it now.  It is common for a person to have specific aspects of health examined for the first time after filing for disability.  Social Security knows that sometimes, a person just did not realize what needed to be in the medical records.

It’s a Legal Matter - Legal Cases Are Either Won or Lost

But despite the noble aspect of disability benefits and the people who need them, it’s still a legal matter that must be navigated.  A legal process can be stressful but the goal is to do it right and never do it again.  

Social Security Disability Form Letter Denial

Statistically, the majority of people who apply for disability will be denied at some stage of the process.  Though the denial often comes as a form letter, it does not take away the hurt.  It is painful and demoralizing to receive a denial but you must not let that stop you.  It is simply part of the process.  

Prior Loss

No matter when the denial took place or at what level, don’t let it make you hesitate.  Social Security does not punish someone who has been previously denied.  

What are my objectives in this book "Social Security Disability Demystified"?

In the Marine Corps we say that an educated Marine is our most powerful weapon.  A good friend of mine who specializes in shopping mall management says an informed consumer is the best customer.  And likewise, I believe my best client is an informed client.  How do I make sure my clients are informed?  That’s my job.  The most important part of my legal service is to keep my clients informed and knowledgeable about the process.  Well, perhaps the second most important part of my services after winning.

What Does It Take to Win Your Social Security Disability Case?

Caring.  Everyone has to care.  The doctor has to care about healing, the Social Security claims analyst has to care about precision, the lawyer has to care about his clients and you, the claimant, must manage all of us.

What are Social Security Disability Benefits?

When some is not healthy enough to participate in the workforce, Social Security disability benefits are designed to give that person a fighting chance.  The chance to heal, the chance to focus on health and possibly even return to the workforce.  

Leaving the Workforce

In the famous novel Catch-22, one of the characters finally learns the meaning of Catch-22.  “That’s some catch,” he says.  The other character replies, “It’s the best catch there is.”  The same is sadly true for Social Security disability.  Though there are technical rules which can allow a person to work limited amounts and still apply, it is very important to leave the workforce if at all possible.  Any amount of work demonstrates a lot of capability.  It is difficult to win a case if the applicant is still working.

Terminology

Any process, like the Social Security process, needs terms and definitions.  Let’s discuss the key concepts:

Social Security Administration (SSA)

SSA is a large federal government agency which is lead by the Secretary of Health and Human Services.  The Secretary is a cabinet position, like the Secretary of Defense, and this high level government official is appointed by the US president.

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)

SSDI and SSI are the two components of the SSA disability program.  SSDI is for persons who have a history of taxable income.  However, some individuals do not have sufficient time in the workforce.  Or, a person may have spent too much time out of the workforce and the eligibility for SSDI has expired.  For such persons, SSI is now the option.  However, the same medical criteria will apply for both programs.

Date of Last Insured (DLI)

If a person exits the workforce, eligibility for SSDI can begin to expire.  And when it expires, SSI is the only part of the program for which a person is now eligible.  The date your eligibity expires is called your date of last insured (DLI).  Depending on your circumstances, your DLI can be a critical factor.

Significant Gainful Activity (SGA)

SGA is the amount of money you earn monthly.  In order to maintain eligibility for SSDI, you must earn SGA a sufficient number of years.  Likewise, if you earn more than SGA while you are applying for SSDI, this can render you ineligible.  

Contingency

One of my favorite concepts.  SSA has very tight rules about how I can charge a fee to my clients.  And, I like it that way.  It ensures that all disability clients are protected by a strictly enforced system of rules that control an attorney’s fee.  Another way to describe contingency:  I am not paid unless my client wins. If we don’t win, my client owes me nothing.

There are many other disability programs in the US economy but the rest are products in the private sector.  For those who can afford, there are private sector carriers.  Don’t we all enjoy the funny duck quacking the name of a disability carrier in television commercials?  We can’t all afford the product the duck is advertising and so SSDI is there for all of us.

While SSDI has no additional cost beyond the payroll taxes that fund it, it is difficult to qualify.  SSA has a very careful matrix of rules to control who qualifies.  The most recent statistics indicate almost 2/3 of initial applications are denied and about half of all applications are never approved no matter how many levels of appeal applications reach.

Earning SSDI credits

Social Security disability insurance determines your eligibility for benefits by looking at how many years you’ve worked and how much you earned during that time, which the administration measures by using a credit system.

You earn one credit each time you make a certain amount of earnings, up to four times per year, and you keep your credits even if you lose your job, get a different job, or have a salary change. You also keep the credits you’ve accumulated in previous years even if the government increases the amount of earnings required per credit.

Is your disability “severe”?

Your disability must be so severe that it inhibits your ability to perform substantial gainful activity (SGA) for at least one year. Substantial gainful activity means any physical and mental action you need to do for your job.

Is your disability listed by the SSA or equivalent to a listed disability?

The administration lists a number of medical conditions that inhibit substantial gainful activity. If your disability is on the list, then you are eligible to receive SSDI benefits.

However, if your condition is not on the list, then the administration will determine whether or not it equals a listed condition in severity.

Can you do the work you did before?

If your disability is not a listed condition but might be severe enough to qualify for SSDI benefits, the administration will check whether the condition prevents you from continuing to work. If it doesn’t, then you don’t qualify for benefits, but if it does, then you move on to the last step in the process.

Can you do any other work?

If your disability isn’t listed, but it is severe enough to prevent you from doing your previous job, then the last hurdle is whether you can do other types of work. Using factors like your work experience and skills, the administration will approve your application if you can perform enough substantial gainful activity to work another job, even if the job is paid considerably less than your last one.

Worried you won’t be able to qualify? Policygenius can help you find a long-term disability insurance carrier that won’t deny your application, and a policy that won’t clean out your bank account while still providing the protection your income when you become disabled.

SSDI Benefits

Social Security disability insurance pays you a cash benefit every month. The benefit amount is calculated using the following factors:

Benefit reductions

Receiving workers’ compensation benefits or public disability benefits (a similar federal- and state-level social disability program) may offset your SSDI benefit amount, although you’ll never receive less than your total Social Security benefits before the reduction. The offset will be removed either after you turn 65 or the workers’ comp and public disability benefits end.

Family benefits

Members of your immediate family are also eligible to receive disability benefits when you become disabled, even if they’re otherwise healthy and able to perform substantial gainful activity. The following family members are eligible:

  • Spouse, including one you’re divorced from
  • Child, healthy or disabled
  • Disabled child between the age of 18 and 22
  • Each qualifying family member can receive a cash benefit up to 50% of your SSDI benefit amount, up to the maximum family amount described above. In June 2018, a family with a male disabled worker, a young spouse, and one or more children received $2065.69 on average. When the disabled worker is female, the average was $1,723.14.

If you’re a widow, widower, or surviving divorced spouse, you’ll also be eligible for SSDI benefits if you became disabled either before or within seven years after the death of your spouse. You must be between ages 50 and 60 and meet the definition of disability, which is described above.

Supplemental Security Income

If you qualify for SSDI, you’ll also qualify for Supplemental Security Income (SSI) if you’re aged 65 and older, blind, or disabled, and have limited income or resources. As of 2018, the maximum monthly federal SSI amounts are:

Before applying, you must fill out the SSA’s Disability Report for adults. This form is lengthy because it goes into deep detail about you and your family, your disability, your employment history, and your general health and treatments you’re undergoing.  The best way to fill out any forms is to team up with a lawyer to ensure your documents put you in strong position.

Appealing a denial for SSDI benefits

Most people’s claims for SSDI are rejected. You may be denied benefits because of one of the following reasons:

  • Your disability was not severe enough or isn’t expected to last 12 months
  • You can perform your usual work or another type of work
  • You failed to provide sufficient medical documentation or follow your doctors’ orders
  • Your impairment was caused by drug addiction or alcoholism
  • However, your initial rejection can be appealed. According to the SSA’s most recent data, an average of just 23% of initial applications for Social Security disability insurance benefits are accepted, with an additional 2% of applicants being approved after reconsideration and another 9% after a hearing from an administrative law judge. The final acceptance rate over 10 years has averaged 34%.

There are four levels of appeal for Social Security Disability

Reconsideration

Another qualified person at the SSA will review all the evidence and any new evidence you submitted.

Hearing in court

You’ll have to go to court and argue your case before an administrative law judge. You’ll be able to bring any witnesses, including medical and vocational experts, as well as a representative to question the witnesses. The representative can be anyone you want, including a lawyer or friend.

If you’re unable to attend the hearing in person, you may be allowed to attend via video conference or reschedule it for another date.

Review by the appeals council

The SSA maintains an objective appeals council that will determine whether the judge’s decision was correct. It may either make its own decision or ask the judge to review the application again.

Lawsuit in federal court

If you’re denied at the other levels of appeal, you may file a lawsuit in a federal district court. The SSA may help you file the lawsuit if necessary.

Who Is Eligible for Social Security Disability Benefits?

Eligibility requirements depend on your age, your years in the workforce and when you became disabled. Our team will be able to tell you whether you are eligible to apply, potentially saving you time and a great deal of frustration.

Determining Whether You Are Disabled

If you have met the eligibility requirements for Social Security Disability, the next important step is to determine whether you meet the Social Security Administration’s criteria for disability. Unlike workers’ compensation and other insurance programs, the Social Security Administration (SSA) only pays for total disability, meaning you must prove that you can no longer do any previous job you have held and there is no other job you can perform. You must also prove that you will be unable to work for at least a year or that the condition will result in death. These are tough standards to meet, and many people are denied the first time they apply. However, the disability attorneys at Alperin Law will help the SSA understand the severity of your disabilities—whether they are physical or mental health—to ensure the success of your claim.

Specific Conditions

Any medical condition that is severe enough to prevent you from being able to work for at least a year can qualify you for disability benefits. The SSA maintains a publication—the Blue Book—which contains an extensive listing of disabling impairments and the information and evidence you need to prove that you are disabled. A few examples of conditions included in the publication are as follows:

Musculoskeletal Injuries

Spinal disorders, amputations, bone fractures, and soft tissue injuries can be considered debilitating if you meet specific criteria.

Respiratory Disorders

  Asthma, cystic fibrosis, and other chronic respiratory disorders will be approved if your ability to breathe is significantly impaired.

Cardiovascular Disease 

Chronic heart failure, recurrent arrhythmias, congenital heart disease, and arterial disease may be approved if the condition is severe enough.

Cancer

  Depending on the origin and extent of the cancer and the effects of treatment or prognosis, you may be able to collect disability if you are diagnosed with any kind of cancer.

Mental Health

Treatment-resistant anxiety or inability to sustain concentration can be considered disabling.

There are hundreds of conditions included in the Blue Book, and you must meet the criteria attached to a particular condition to be approved for Social Security disability. If your condition is not included in the Blue Book, you must be able to prove that it is equal in severity to a condition that is listed. Our attorneys will work with you to document your disability.

How Long Will the Application Process Take?

On average, the Social Security Disability process takes 4-5 months for your initial determination, and another 4-5 months for reconsideration if your initial application is denied. In some cases, it can take as long as two years for benefits to be awarded. The SSA does have expedited programs for people with very serious or terminal conditions so that they can begin receiving benefits when they need them most. Working with a Social Security disability attorney can make sure the process is as smooth and efficient as it can possibly be.

Two  Aspects of Social Security Disability

Social Security Disability Insurance (SSDI) funded by the federal payroll tax and administrated by the United States government. It is managed by the Social Security Administration and designed to allow a person who has paid into Social Security to access his or her benefits before reaching retirement.  

People sometimes confuse Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Unlike SSI, SSDI does not depend on the income of the disabled individual receiving it. A disabled person of any income level can receive SSI.   Unlike SSDI, there are numerous financial eligibility conditions that affect whether and how much of the SSI benefit a person will receive.

Fellow Citizens Who Need Help

At any one time, there are more than 10 million Americans collecting SSDI or SSI.  This is more than 3% of the US population.  

Wait time for applications

The amount of time it takes for an application to be approved or denied varies, depending on the level of the process at which the award is made.  It is true that at any one time, there are more than one million new applications in the stage of initial processing by SSA. 
SSA estimates the initial benefits application will take 120-150 days, but cases of 8 months or more do occur.  

Appeals

If a claimant is denied at a hearing by an administrative law judge, there are two levels of appeal beyond the hearing level.  The first is within SSA and is called the Appeals Council which is a panel of Social Security judges who are trained to determine if the hearing judge made mistakes at the hearing.  If the Appeals Council grants no relief, the remaining level of appeal is US federal district court.  Cases at this level require significant review and time by an experienced attorney.

Expedited Processing

Though the speed increase is often slight, military service members can receive expedited processing of disability claims from Social Security.  Also, certain dire circumstances can help increase expedited processing.  Homelessness and suicidal ideation are among alarming developments that are critical to communicate to SSA.  

Managing Funds

There are persons approved for disability benefits who cannot manage personal banking or paying bills. In such a situation, SSA may require the person assign someone to be their representative payee. This person will receive the benefits on behalf of the disabled individual, and disburse them directly to payers such as landlords, or to the disabled person, while providing money management assistance.  Social service agencies sometimes serve as the representative payee and some even charge a fee to for their representative payee services.  However, there are representative payees who are very busy managing the full array of another person’s living expenses especially in the complexity of public assistance.

Citizenship and Residency

SSI benefits are not paid solely to US citizens, but may also be paid to non-citizens legally residing in the United States.  There are a number of criteria for such non-citizens such as time in the United States. 

Disbursements

Payments for SSI are made on the first day of the month unless that day is on a Weekend or legal holiday, in which case the payment is made on the first day prior that is not a weekend or legal holiday. The minimum benefit can be as low as one dollar for SSI.

Does a Claimant Need a Lawyer?

It’s a legal matter and like all legal matters, there are risks for the unwary.  Statistics show that legal representation significantly increases success rates for SSD and SSI claims.

What is the Cost of a Lawyer?

A disability law attorney will not charge money upfront.  We work only on contingency and Social Security very carefully controls our fee.  Per Social Security rules, we are paid 25% of any backpay owed to the claimant.  If we lose, the client owes nothing.  Social Security limits the fee to $6,000 unless the case goes to higher levels of appeal at the Appeals Council or federal district court.  

Eligiblity Basics

Eligibility for disability benefits depends on having medical records which shows you have an impairment that prevents or that already has prevented you from maintaining substantial gainful activity (SGA) for 12 months or you are expected to be unable to maintain SGA for 12 months.

 

The First Steps of a Social Security Disability Application

As websites go, ssa.gov is not too bad.  However, it will ask for a lot of information.  You can also call Social Security and they can interview you by phone to complete the application.  However, attorneys provide free consultations at all levels.  You should talk to a lawyer at the earliest stage of your claim or even before you begin.

Mental Health

Mental health alone can be enough for approval for disability benefits.  There are very specific factors SSA will want to see in treatment records.  The first step is to obtain regular treatment so that a mental health provider will know enough about your condition to comment on your severity.

What is My Approach to All of This?

In my opinion, the most effective path for a client and his lawyer is compassion.  As your lawyer, my job is to connect with how your health has impacted your life.  My job is help SSA understand you’re not applying to become rich, you’re applying to have a fighting chance.

I’m a Tidewater native. After graduating from Virginia Tech and then law school, I joined the Marine Corps and served as a judge advocate. I was set to leave the Marine Corps in September 2001, except that it was September 2001. I served two more years spending most of 2002 in Kuwait and most of 2003 in Iraq with infantry. My six months on the streets of Iraq with my dear Iraqi friends was life-changing and I’m proud to maintain my contact with them. 

Upon my full transition to civilian practice in 2004, I spent many years providing regulatory defense to banks and debt collectors. It was a period of almost non-stop litigation in state and federal court to include the U.S. Court of Appeals for the 4th Circuit. During this time, it was also my honor to serve two years as the Chief Deputy Director of Virginia’s Department of Professional and Occupational Regulation (DPOR). Those years at DPOR are extremely important when I assist clients in responding to actions from DPOR.  However, through all of this, my reserve career was shaping my focus on disability law. 

You see, I left active duty after 7 years and it’s hard to believe I have now served 16 more years in the Marine Corps reserves. As a reservist, I had the honor to help create a billet where I help navigate our wounded warriors through the medical separation and medical retirement process and with their initial approach for VA disability benefits. As a result, I began my shift away from regulatory litigation and focus exclusively on serving my disability clients. I have been part of the process at the earliest stage of a VA claim and I rely on this experience to serve my fellow veterans. 

With regard to Social Security disability, I am always eager to help break through some of the myths that are out there regarding eligibility or what happens to a person’s first application.  Disability is a process and my strategy is to partner with my clients. The more I can help the client understand the process, the better we will work together. Whether VA or Social Security disability, it’s essential for my clients to feel informed and confident about where they are in the process and what is the next step.

Not only is it an honor to specialize in disability law, it’s an uncannily good fit for me. My wife is an RN with 20 years as a critical care nurse. My younger sister is an ER doctor.  We don’t talk about clients, but we love to talk medicine. And of course, it’s not just that discussions of medical conditions and medical records are a frequent topic. My family is very aware of my specialty as a lawyer.  Just like my military service, it’s a source of pride for them and they know how important it is for me. I strongly believe it is this array of support and knowledge that gives my clients an extra edge.

Thank you for taking time to learn about your lawyer. Looking forward to learning about you.

Have You Or A Loved One Been Denied Social Security Disability Benefits?

If you or a loved on has been denied Social Security Disability Benefits you need to speak with an experienced SSD attorney as soon as possible. Please contact us online or call our Virginia Beach office directly at 757.490.3500 to schedule your free consultation. We have offices throughout Virginia including Chesapeake, Newport News, Norfolk and Suffolk.