1. SSD or SSI?
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• SSD (RSDI) is Social Security's disability program for people who become disabled before retirement and who have been employed for most of their adult lives. If you have worked at least five out of the last ten years, you probably have coverage under the SSD program. SSD is an insurance benefit; you pay premiums for it through payroll taxes. It is back-stop coverage for persons whose health precludes them from work after years of toil.
• SSI is a similar program that is intended to benefit the uninsured and the poor. SSI benefits are not considered insurance; rather they are paid because the disabled recipient has only a small income and few assets. There are income and asset limitations affecting SSI eligibility, but the standard for proving disability is essentially identical to SSD. • SSD and SSI can be applied for at the same time and through the same process, and in many instances people are eligible to participate in both disability programs. • For more information, call us (406) 728-4682. |
2. The five-step disability analysis
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• There are five things an SSD or SSI disability claimant must prove. First, are you engaged in substantial gainful activity (SGA)? (You can't be working for a living and qualify for disability). Second, do you have a "severe" impairment or combination of impairments? Third, do your impairments meet or equal one or more of the SSA's definitions of impairments? Fourth, does your "residual functional capacity" preclude the kinds of work you have done in the past? And fifth, are you precluded, based on your remaining abilities, your age, education, and work experience, and your disability, from working in jobs that exist in the national economy in significant numbers?
• Negotiating these five steps is complicated in the average case. If you have any doubt about whether you pass the test at any of the five stages, you need legal representation. You benefit from a lawyer's assistance in looking at your personal and medical history to find evidence that sustains your disability argument. |
3. Stages in the application process
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• You may already know that there are three stages of the SSD/SSI process during which benefits may be awarded: the application stage, the reconsideration stage, and the hearing stage.
• In the beginning is the application stage, where you apply for benefits, usually by telephone, and supply background information to the SSA and authorize them to acquire records as evidence of your disability. • Stage two, the reconsideration stage, begins when you appeal the denial of your initial application provide an explanation of the SSA's error and tell them why you believe you should have been granted benefits. During this stage, the file is re-reviewed by the SSA's medical experts. • If you are turned down once again at stage two, you move to the third stage, at which you request a hearing on your claim. At this stage you present your arguments to a social security judge, who also hears from a vocational evaluator and (often) a medical or psychological expert. • Legal representation is valuable at any of these stages. And remember, if you don't act quickly to appeal a denial at any of these stages, you will be cut off from further action on your claim. Call us at (406) 728-4682. |
4. Tracking your medical history
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• The SSA gathers medical and other evidence for disability claimants; but often they do not get it all. Our office works to supplement the record with critical evidence from a claimant's childhood and early adult medical records that SSA may not acquire.
• We also help locate witnesses who know facts that are not adequately presented on the paper record. Your medical doctors may have closed their practices, but your records may have been given to another provider. Hospital records may be available not through the treating hospital but from a workers compensation insurer or other source. If you rely solely on the SSA to gather your evidence and evaluate it, your chances of winning go down. • Disability is often the end result of a lot of slowly-accumulating physical and mental problems. Giving the SSA less than a complete picture is asking for rejection of your claim. |
5. The long wait
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• Social security disability wait times weed out a lot of applicants who are not serious about their case or who can't afford to wait. During the long delay you cannot work; if you do, or even if you just apply for unemployment, you can be deemed to have "substantial gainful activity" (SGA) and be disqualified.
• The initial determination takes as long as 90 days, longer if medical record collection is delayed or your application needs to be supplemented after it is received. The reconsideration stage may be shorter because most of the information for the claim has been gathered together earlier, at the application stage. At the hearing stage, the wait can be more than 180 days. • Getting a good submission of records at the beginning of your case improves the odds of success in being granted benefits early on. Collecting, organizing and submitting your records is an important part of what we as your law firm do for you in an SSD/SSI case. Let our office help you with this; call us at (406) 728-4682. |
6. Attorney assistance and fees
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• Attorneys serve SSD/SSI claimants both by gathering evidence before a hearing and by advocating at a hearing to show the existence of a disabling condition under SSA rules.
• Attorney fees in Social Security disability cases are regulated by the social security system. They are a version of the contingent fee, and based upon back benefits that your legal representative obtains for you. Back benefits in most SSD/SSI cases go back two years, although the onset date of your disability may go back further than that. In an SSI case, back benefits date to the applicant's time of the application. • When the SSA awards benefits to a claimant, attorney fees are normally set aside and separately paid by the SSA at 25% of the back-due benefit amount. As with other contingent fees agreements, we charge no legal fee unless you prevail on your claim. |
7. What is RFC?
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• RFC stands for Residual Functional Capacity to engage in work (defined for this purpose as substantial gainful activity). This is the measure of what is left of your work capacity when the disability is factored out. If you have sufficient RFC to do work that you have done in the past, or work that could be found to exist "somewhere out there", you may be determined to be ineligible for benefits.
• At the hearing, a vocational expert assesses your ability to work, taking into account your physical abilities, your medical exertional and non-exertional restrictions (including psychological disorders), your ability to be a reliable worker and other factors. You need to be prepared to give your own opinion of your RFC in a credible way at all stages of the disability process. |
8. SSI For Disabled Children
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• In determining whether SSI benefits may be awarded for a disabled child, the criteria are different. The focus is on six subject areas: 1) acquiring and using information; 2) attending and completing tasks; 3) interacting and relating with others; 4) moving about and manipulating objects; 5) carrying of oneself; and 6) health and physical wellbeing. Limitations in these areas need to be either "marked" or "extreme."
• Some limitations very seriously affect a child's ability to initiate or sustain activities, and may significantly limit day-to-day functioning. Test scores are also mentioned in the regulations and there are rules in the SSA system for evaluating test scores to determine whether there is a "extreme" or "marked" limitation. The overall evaluation process looks at whether the child's activities are affected in all of the six domains described above; whether the activities which are limited are important or essential; whether the activities occur regularly; and whether the limitations occur just at home, or elsewhere, as well. • For assistance in an SSI case for a child, call us at (406) 728-4682. |
9. Older Workers
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• Age is an important factor in social security disability evaluation. If you are under the age of 50, you are a "younger individual" and must meet a high standard of proof. If you are age 50-54, you are "closely approaching advanced age", and the burden of proving your case is somewhat less. If you are 55 or over, you are considered to be of"advanced age," and your quantum of proof of disability is further eased. Age is an arbitrary factor, but the social security law contains a number of rules that allow a look-back to a date before a birthday in order to make a common-sense determination of whether you have become disabled before one of these milestones (50, 55, or 60).
• The rules require that when age is critical to a decision, recognition is given to things such as deterioration in your senses, joints, eye-hand coordination, reflexes, and thinking processes. These things can diminish your competitiveness and adaptability to new jobs. For more information, call us at (406) 728-4682. |
10. Mental Impairments
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• Mental impairments can be compensated in Social Security disability if they meet one of these definitional listings: organic mental disorders, schizophrenia and other psychotic disorders, affective disorders, mental retardation, anxiety disorders, somatoform disorders, personality disorders, and autistic disorders. Alcohol and drug addiction are also listed as mental impairments, but they are disqualifying ones; benefits are not available as a disability if alcohol or drug abuse is a "contributing factor" material to the disability.
• Mental impairments can be an important part of a case when combined with physical conditions which are not sufficient in themselves to qualify you for benefits. |
11. Functional Limitations in Mental Disability cases
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• There are two sets of criteria that define functional limitations for people seeking disability benefits for a mental impairment. Under the first set of criteria, there is a showing of restrictions of activities of daily living; difficulties in maintaining social functioning; deficiencies in concentration, persistence, or pace; or repeated episodes of decompensation of extended duration.
• The other functional evaluation for mental disorders consists of a two-year history of chronic mental impairment with more than minimal limitation in the ability to do basic work. It must be accompanied by repeated episodes of decompensation of extended duration and by a residual disease process that has resulted in such marginal adjustment that even a minimal in mental demands would be predicted to cause decompensation. An alternative formulation is for a current history of one or more years of inability to function outside of a highly supportive living arrangement. • For assistance with mental disability as a component of your case, call us at 406 728-4682 |