If you’re unable to work due to a disability, you may be entitled to benefits from the Social Security Administration (SSA). There are two types of disability benefits offered by the SSA: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Based on your particular situation, you may qualify for one or both types of federal programs, each of which offer benefits in the form of monthly payments.
The process of applying for disability benefits can often be overwhelming, particularly if your initial claim is denied and you need to file an appeal. A skilled disability benefits attorney can help you, from assisting you with the initial application to handling SSA hearings and appeals.
The law firm of Bross & Frankel was founded by a former Social Security benefits authorizer with a simple goal in mind: to give our clients an edge in fighting for the Social Security benefits that they need. We combine the skills of trial attorneys with the knowledge of disability advocates to help our clients achieve the best possible result.
Am I Eligible for Social Security Disability Benefits?
To qualify for either SSDI or SSI, you must meet specific requirements. For both types of benefits, you must first prove that you are disabled. Generally, you may be considered disabled if you are unable to work due to a long-term disability.
The SSA uses a five step sequential process to determine if a person is disabled:
- A person cannot earn more than $1,260 a month from working (gainful employment) when claiming disability;
- A person must have an impairment or combination of impairments that significantly limits their ability to basic work and is expected to last for at least 12 months or result in death;
- Social Security will review whether a person’s condition meets all of the requirements for a condition on SSA’s list of disabling conditions, or has other factors that equal a condition on that list;
- If not, then the medical impairment must prevent them from performing any of their past work; and
- They must not be able to do any other type of work, considering their impairment, age, education, past work experience and any transferable skills (this last step requires Social Security to identify other work that exists in significant numbers in the national economy).
If the SSA determines that an applicant is disabled, then they may qualify for SSDI and/or SSI.
SSDI is available to those individuals who have paid into the system; it is funded by Social Security taxes. For most people, you must have earned 40 work credits (up to 4 per year), 20 of which must have been earned in the 10 years prior to applying. Younger people may be able to qualify for SSDI with a lower number of credits.
SSI is a needs-based program. To qualify, you must meet the income and assets criteria set forth by the SSA. In most states, if you qualify for SSI benefits, you may also be eligible for Medicaid, which is also a needs-based program. Depending on your situation, you may also qualify for Medicare.
The formula for determining which assets and income counts for SSI benefits can be complicated. If you are curious about your eligibility, reach out to a disability benefits lawyer.
While both SSDI and SSI require proof that you have a disability that is expected to last for 12 months or longer, this doesn’t mean that you cannot apply for benefits until you have been unable to work for a year. You can apply for benefits the moment you become unable to work. The rule is designed to screen out temporary disabilities like broken bones and similar injuries that are expected to improve in less than a year.
How Do I Apply for Social Security Disability Benefits?
Filing your SSD or SSI claim can be a challenging and time-consuming process. It involves filling out lengthy forms and gathering information related to your claim, such as:
- Social Security Number
- Birth certificate
- Proof of citizenship or lawful status
- Records of your work history (Social Security focuses on your last 15 years of work)
- Information on any recent earnings (if possible, your most recent W-2 form)
- Contact information for doctors, therapists, and any hospitals where you have been treated
- Information on the medications you take
- An adult disability report
- Medical records already in your possession
- Pay stubs
Once you have gathered this information, you will need to decide how to apply. You can file a claim online, over the phone, or at a local Social Security field office.
No matter how you apply, your application will be initially processed through a local Social Security office and a state of New Jersey agency (usually called disability determination services). These field offices are responsible for verifying non-medical eligibility for benefits; if you meet this threshold, your file is sent to the disability determination services agency to determine if you are disabled under SSA standards. After making this determination, the agency returns the case to the field office for final action: denial or approval and payment of benefits.
The application process can be daunting, especially if you are unsure about whether you qualify or what you will need to prove. If you need assistance, contact a NJ Social Security disability benefits attorney for a free claim review.
How Do I Appeal a Denied SSDI or SSI Claim?
Most initial applications for Social Security disability benefits are denied. According to data from the SSA, 20.3% of all initial applications were approved in 2017. Significantly, most denials in that same year (40.1%) were for technical, as opposed to medical, reasons.
A denial at the initial stages can be caused by any number of issues. Sometimes there is critical evidence missing, or a well-meaning but unhelpful medical opinion. Other times, Social Security may determine that earnings on your record constitute work activity, and deny your claim without even evaluating your medical conditions. A skilled disability benefits attorney can review your claim, and identify any errors that may lead to a denial.
There are four levels of appeal after a denial of disability benefits. You can:
- Request reconsideration;
- Ask for a hearing before an administrative law judge (ALJ);
- Request review by the SSA Appeals Council; and
- File a lawsuit in federal court.
In most cases, you have 60 days after the notice of a decision by the SSA to file an appeal.
Our law firm has appealed issues related to both medical and non-medical denials countless times. We have successfully gotten improper denials reversed at each level of the process. If you claim has been denied, contact us as soon as possible for assistance with an appeal.
Can My Child Get Disability Benefits?
Possibly. Depending on your situation, they may receive SSDI or SSI benefits. First, a child may receive Social Security Disability Insurance (SSDI) if one or both of their parents is eligible for disability benefits. To be eligible for these family benefits, a child must be under the age of 18, 18 – 19 years of age and a full-time student, or 18 or older and have a disability that started before the age of 22.
These benefits are only available when a parent qualifies for SSDI benefits, and typically end when the child reaches age 18, unless they are disabled. The amount of benefits that your child may receive is based on your benefit amount and the number of family members who also qualify for SSDI benefits.
Second, a child with a disability may qualify for Supplemental Security Income (SSI). To be eligible, a child must be disabled and must have little or no income and resources. To be considered disabled, a child must meet two requirements:
The child must have a physical or mental condition(s) that very seriously limits their activities, and The condition(s) must have lasted or are expected to last for at least one year or will result in death.
The Social Security Administration (SSA) uses a complex formula to determine whether a child has limited income or resources. If you are interested in applying for SSDI family benefits and/or SSI benefits for a child with a disability, a New Jersey Social Security disability lawyer can help.
How Long Will It Take to Get a Decision on My Disability Application?
Generally, it takes 3 to 5 months to get a decision, but the length of time can vary significantly. The factors that influence this process include the nature of your disability, whether a medical examination is necessary, and how quickly the SSA can get medical evidence to support an application. Understanding the way that the SSA makes a determination on disability benefits can help you get a sense of how long it may take to get a decision.
The SSA uses a 5 step sequential process to determine if a person is disabled:
A person cannot earn more than $1,220 a month from working (gainful employment) when claiming disability; A person must have an impairment or combination of impairments that significantly limits their ability to basic work and is expected to last for at least 12 months or result in death; Social Security will review whether a person’s condition meets all of the requirements for a condition on SSA’s list of disabling conditions or has other factors that equal a condition on that list; If note, then the medical impairment must prevent them from performing any of their past work; and
They must not be able to do any other type of work, considering their impairment, age, education, past work experience and any transferable skills (this last step requires Social Security to identify other work that exists in significant numbers in the national economy).
If a person has a condition on the SSA’s list of disabling conditions, then the process ends at Step 3 and they will be approved for benefits. This means that a person with a condition on the SSA list will typically receive a decision faster, as the SSA won’t have to do a Residual Functional Capacity assessment. However, this isn’t always the case, particularly if a person fails to submit the required evidence.
You can speed up the process by (1) applying for benefits online; and (2) gathering documents to support your application. The SSA provides a checklist of documents that you may need to provide, such as your birth certificate, medical records, and pay stubs.
What Can I Do If My Disability Claim Is Rejected?
If your application for SSDI or SSI benefits is denied, then you may be able to file an appeal. There are four levels of appeal:
-Requesting reconsideration, which is a review of your claim by a person who did not participate in the initial decision.
-A hearing by an administrative law judge (ALJ), where the judge will consider your testimony, any new information or evidence, and the testimony of other witnesses (such as vocational experts) to make a decision on your claim.
-Review by the Appeals Council, where the Social Security Appeals Council will either grant or deny a request for review. If it accepts the request, the Appeals Council may decide the case or return it to an ALJ.
-A federal court lawsuit may be initiated if the Appeals Council denies your request or if you disagree with its decision.
Although you can represent yourself in these appeals, working with a disability benefits lawyer can help you achieve the best outcome.
Common Myths About Social Security Disability & Social Security Income
The Social Security Disability (SSD) and Supplemental Security Income (SSI) entitlement programs are the product of the first major expansion of the Social Security Act in 1954. These programs were radically expanded by amendments to the Social Security Act in 1957, 1960, 1965 and 1967.
I continue to be amazed, despite the fact that these important programs have now been in existence for many years, at how little the American public really understands about such an important component of the federal program which most directly affects the greatest number of Americans. Here are a few of the most common myths, which many people have come to believe as truth:
Myth #1: “You have to be disabled for a year before you can apply for Social Security Disability/SSI.” False. Confusion about this alleged requirement stems from the definition of disability, which provides that you must have an “impairment, which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve months.” While the law requires proof that you have been disabled or expect to be disabled for at least one year, there is nothing in the law that says you cannot apply for benefits earlier than this. My general advice has always been to apply for disability benefits as soon as you and your doctor expect that you will likely be unable to work in any capacity for at least one year. Unnecessary waiting to apply only prolongs what is already a very lengthy process.
Myth #2: “You can not apply for Social Security Disability benefits while you are getting workers compensation.” False. Not only is this belief not true, but also I’ve noticed that some workers’ compensation lawyers have the same misconception. While it is correct that, if you do receive Social Security Disability benefits after receiving workers compensation, your disability benefit may be reduced (the “workers’ compensation offset” rule), there is nothing in the law that prevents someone from getting both benefits. Of course, because the laws governing these two programs differ greatly, remember that entitlement to workers’ compensation does not assure qualification for Social Security Disability.
Myth #3: “Everyone who applies for Social Security Disability/SSI is denied the first time.” False. According to the Office of Disability Programs, 36% of initial claims are allowed (granted). This means that roughly two-thirds of claims are initially denied, but certainly a significant percentage of people have their disability applications approved without the need to appeal. Note: The percentage of denied initial claims for persons under the age of 50 is considerably higher than those over age 50.
Myth #4: “Everybody gets denied the first time but wins when they go before a judge.” False. As an attorney who tries hearings before judges on a regular basis, I only wish this was true. The fact is, the judges who hear disability cases — for any number of reasons — frequently deny claims. Among the most frustrating telephone calls I receive are from people who appealed their disability denials and went before a judge without an attorney, after being told by someone that all they need to do is “show up” at a hearing and they would win. Nothing could be further from the truth. Although it is statistically true that your chances of obtaining benefits improve when you appear before a judge, this is hardly a guarantee of success, and, without a Social Security attorney to effectively prepare your case and represent you at the hearing, you may lose your best opportunity to prove and win your claim.
If you have questions, I suggest you call your local Social Security office or the National Social Security toll-free number, 1-800-772-1213. You may also obtain helpful information by logging on to www.socialsecurity.gov. If, however, you still have questions, a Social Security attorney can be your best source of accurate information.
Do I Need An Attorney For My Social Security Claim?
One of the most common questions I am asked by people applying for Social Security Disability and SSI benefits is: “Do I need a lawyer for this or can I just do it on my own?”
My first response is this: “You need a lawyer only if these benefits are important to you!”
The claims process begins with the filing of an application and various related documents, as well as an interview. As I have discussed in earlier columns, the majority of claims are denied and a process of appeals is undertaken, often culminating in a hearing before an Administrative Law Judge. Sometimes appeals are necessary beyond the hearing stage and cases may have to be resolved in federal court.
Although Disability and SSI claims do not involve what people think of as “going to court,” the Social Security regulations which govern the claims process, are unique and complex. Consequently, you cannot always rely on “common sense” to understand whether or not you meet the strict definitional requirements of “disability” under the Social Security Act. For instance, it is usually not good enough to merely supply a doctor’s report with a statement that you are “disabled,” as there are usually very specific criteria set by the Social Security Administration (SSA) to determine whether you are in fact disabled under its rules and regulations. In short, the process is not as simple and easy as it may look.
Although an attorney’s help generally becomes most critical when the claim reaches the “hearing” stage, an attorney’s involvement early in the claims process can sometimes make the difference between winning and losing a case later on. Early involvement allows the attorney to exercise some degree of “damage control.” Also, since SSA has put new emphasis on making the “right” decision at the earlier stages, by applying the same legal rules at these earlier stages that used to be applied only at the hearing stage, a lawyer’s help at the beginning can be critically important.
A Social Security attorney can also help you with a number of common issues, such as the ability to revive earlier claims, obtaining benefits for dependents, and dealing with “return to work” scenarios.
Therefore, although you can file an appeal without being represented by counsel, applicants generally have more to gain than to lose by hiring an attorney as soon as possible. In fact, persons represented by an attorney received favorable decisions 62% more often than persons who did not hire an attorney. (Highlights for fiscal year 1998, “Social Security Bulletin”. Vol. 62 No. 1 (1999).
Most attorneys charge a “contingent fee,” a fee paid only if they obtain benefits. The most common type of fee charged is 25% of back benefits, up to a maximum of $6,000. Nothing comes out of current monthly benefits. You will usually be expected to reimburse expenses for items such as medical reports and records, but these expenses tend to be very modest. In some cases, attorneys may use a different type of fee arrangement when appropriate. However, fees may only be charged to a client if and when the Social Security Administration approves the fee. Therefore, because attorney’s fees are strictly regulated, you can get an experienced attorney at a very affordable cost.
Although there is a great variation from case to case, here are some examples of things Social Security attorneys can do for you:
- Advise you as to all of your rights under the Social Security Act (something which the overworked people at your local Social Security office may not always be able to do);
- Participate in the ALJ (Administrative Law Judge) hearing through direct examination of you and your witnesses, cross-examination of any vocational and medical experts, making oral arguments, etc;
- Review and evaluate your medical situation as it pertains to SSA’s regulations for qualifying Disability and/or SSI;
- Obtain and review additional medical evidence from your physicians;
- Advise you as to your rights to “reopen” any earlier claims and to maximize your benefits;
- Obtain and review documents from your Social Security file;
- Review actions taken by the SSA and evaluate if they are proper;
- Ensure that appeals are filed timely;
- Prepare and submit appropriate evidence to SSA prior to, at the time of, or following any ALJ hearing;
- Prepare you and your witnesses for the ALJ hearing;
- Prepare and submit legal memoranda and briefs to the ALJ, Appeals Council, etc;
- Request a review of the ALJ decision, if necessary, by the SSA Appeals Council or beyond to federal court;
- Effectively communicate with your disability, health, or other insurers to obtain documents, maximize coverage, and otherwise protect your interests.
How We Can Help
If you are considering filing for SSI or SSDI benefits, you may be worried about getting through the bureaucratic red tape. The process can be overwhelming, particularly if the SSA denies your initial application. We can help.
At Bross & Frankel, we are dedicated to helping people who are unable to work due to their disabilities. With experience within the agency as well as in private practice, we know what the SSA looks for — and how we can put together a strong application or appeal.
With law offices in both New Jersey and Pennsylvania, we represent clients in Camden, Burlington, Gloucester, Ocean, Monmouth Counties and throughout Southern New Jersey and the Philadelphia Metro area. To learn more or to schedule a free initial consultation, contact us online or call our office at 856-795-8880.