SOCIAL SECURITY

Social Security Frequently Asked Questions

The process for receiving Social Security benefits can sometimes be overwhelming. And when you have been disabled, the last thing you want to worry about is being without medical treatment or income. The problem for many applicants is finding the right attorney to help in their Social Security case. Many questions linger and the process can be very stressful.

If you are reading this page, the search is over. At Smith, Wallis & Scott, LLP, we have a dedicated staff that is ready, willing and able to help you with your Social Security needs. With over 80 years of combined legal experience and thousands of cases tried, Smith, Wallis & Scott, LLP is the resource you need and the experience you deserve.

If you have been denied your Social Security Benefits and need help or are looking for more information, check out our expansive research library that is being updated constantly to better assist you in making the right decisions regarding your case.

For more information on how Smith, Wallis & Scott, LLP can help you on your case, feel free to call 770-214-2500 or email us at chrisscott@smithwallisandscott.com.

 

What does it mean to be disabled and how is it determined?

Being “disabled’ is a term of art. For different people with different ages and different professions, the definition of disabled would be different. If you think about it from a common sense point of view, a person who is a machine operator and loses his ability to work hard labor jobs may be disabled whereas a person with the same age and injury but who may work in an office may not be classified disabled.

Congress has defined the term “disability” for both Social Security Disability and the SSI program as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuos period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A).

Physical or mental impairment is defined as an “impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(D).

However, the Act specifically denies the status of disability to an individual who is disabled if drug addiction or alcoholism would be a material contributing factor to the decision regarding the individuals disability.

Other factors to be considered in the determination of disability is the age, education and work experience of the applicant. However, the Act does not give any guidance as to how much these factors weigh in the determination by the Commissioner.

An exception to the disability definition above can be found for children who are disabled due to marked and severe functional limitations. (For more information on Disability for Children call 770-214-2500).

What is the Social Security System?

The Social Security System is non-adversarial. What this means is that when you hire an attorney, your attorney will never have to litigate a case against an adversary representing the Social Security Administration on any level of administrative review. The process will only become adversarial if you lose your case and the case must be appealed to the Federal Court.

The Administrative Law Judge (ALJ) who presides over your case is a neutral fact-finder and their job is to look at the evidence presented and then make a determination on the case. Although many clients see the Judge as an adversary because the decision and power over your case is held in their hands, the Judge’s job is to be neutral and make a determination based upon the facts that have been presented.

Although many clients experience long dealing in reaching the ALJ, the clients will find that being represented by an attorney can be extremely beneficial in insuring that the case is managed in a non-threatening and non-adversarial way and the process also allows for the claimant to tell their stories to the judge and not have to deal with an adversary.

Because of this non-adversarial process, the Social Security regulations have provided that they will impose civil monetary penalties against persons who “make or cause to be made false statements or representations or omissions or otherwise withhold disclosure of a material fact for use in determining any right to or amount of benefits under title II or benefits or payments under title VIII or title XVI of the Social Security Act.

Despite the fact that disability cases are in essence argued before an ALJ, the process is an informal one. For this reason, the hearings are generally held in small conference rooms and at times are done by way of a video conference where the ALJ may be in another state at the time of the hearing. This process is much different than the formal hearing procedures that are found in the traditional court system that you may expect.

Because of the informalities in these proceedings and because the Judge is the ultimate fact finder in your case, the rules of evidence do not apply in SSA hearings. All evidence is admissible even if in other types of cases, it would have been inadmissible.

The process is also free from tedious forms. There is no special form required for any submission to the SSA.

Unfortunately, the system still takes a while. This may be due to the fact that the SSA is composed of 57,000 employees in more than 14,000 agencies. The difficulty that many claimants run into when dealing with the SSA is determining who to call or who to contact when they have a question or any issue. This is then further compounded by the complexity of the disability programs provide by the SSA. Navigating the seas of this bureaucracy can be virtually impossible without proper legal representation. In the hands of the right attorney, you will be able to present your best argument for a disability case.

What is the evaluation process for a disability decision?

The Social Security regulations provides a multi-step process for determining disability. In addition to the process evaluation the disability must result in the claimant’s impairment to result in death or have lasted or be expected to last at least 12 months.

The following are the five steps that must be shown to prove disability:

  1. The claimant is not engaging in “substantive gainful activity”, and
  2. The claimant has a severe impairment, and
  3. The impairment meets or “equals” one of the impairments described in the Social Security regulations known as the ‘Listing of Impairments:, or
  4. Considering the claimant’s “residual function capacity” that is, what the claimant can still do even with his or her impairments, the claimant is unable to do “past relevant work”, and
  5. Other work within the claimant’s residual function capacity, considering age, education and work experience, does not exist in the national economy in significant numbers.

Because you must satisfy all of the steps in this process, if your case does not have sufficient proof at every level of this process, the determination will be made that you are not disabled.

What is substantial gainful employment?

The first step in this process is that you must show that you are not substantially gainfully employed. Therefore the definition of this term is critical in the evaluation of your disability. Even if you have extreme impairments that could place in you in a wheel chair, if you are substantially gainfully employed, your impairments will not be sufficient to qualify you as disabled.

The term “substantial gainful employment” has two parts. First is the substantial portion and second is the gainful portion.

Substantial work activity involves doing significant physical or mental activities. When a claimant is unable to “do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given to other people doing similar work” or when claimant is doing work “that involves minimal duties that make little or no demands” on the claimant and that are of “little or no use” to the employer or to the operation of a self employed business then the claimant should be found to not be substantially employed.

However, there must be a second portion that must be satisfied which is the “gainful” portion. A claimant must show that the work they do perform is not gainful. Gainful employment is defined by SSA as work activity of any kind of work usually done for pay or profit, whether or not profit is realized. Because this is such a broad definition of gainful, the SSA has routinely looked earnings of the claimant but as well as other factors such as if claimants work for relatives in order to prevent circumvention of the earnings requirements.

Generally, self-employed claimants are viewed with great suspicion for the fact that they have a greater opportunity to hide earnings through their business operations that employees of companies will not be able to do.

In addition to this calculation, the SSA has determined a threshold amount of $700 that will generally mean you are substantially gainfully employed if you reach that limit although they have become more lenient in recent years in an effort to accommodate cost of living expenses.

What does it mean to be severely impaired?

The second step in the disability evaluation process is a showing of severe impairment. The purpose of this requirement is to weed out frivolous applications for disability involving (1) no medically determinable impairments or (2) slight medically determinable impairments that impose only minor limitations on ability to work.

The severity requirement may be found either by a showing of one impairment that satisfies the SSA requirement of severity or by a combination of multiple no-severe impairments which taken as a whole result in a severe impairment. In order for the impairment to qualify for determination, the impairment must arise from a medically determinable condition. This means that even if the impairment is based upon the claimant’s subjective belief, it must be substantiated by medical evidence.

If the claimant cannot show by way of medical evidence that they are physically or mentally impaired, then they may not be found disabled. The test in determining whether there is sufficient medical evidence to find a medically determinable impairment is whether a doctor has enough information to articulate a legitimate diagnosis regarding the impairment.

How long must I have the impairment to qualify?

Unless an impairment will result in Death, the impairment must have last or be expected to last for a continuos period of 12 months. The impairment, of course, must be considered severe for the entire 12 month period of time.

Many have concerns regarding those impairments that may be severe over extended periods of time but not necessarily during a continuos 12 month period. For example, an impairment may be severe only 9 months out of 12 months but may last for 3 years. Under the SSA regulations, this impairment would not meet the durational requirements.

However, the regulations do not require automatic rejection of the case due to failure to meet this requirement in strict accordance of the law if the impairment is a single impairment. The regulation will not allow for discretion in the event that a tacking on of multiple periods of impairment are caused by multiple and different impairments.

For example, a claimant who is severely impaired fr seven months due to one impairment and then is no longer impaired but subsequently becomes impaired due to another impairment for seven more months, can not combine the two impairments to meet the durational requirement.

Because of the slow progress of the administrative process, cases are seldom denied at t his level of review unless the claimant has a hearing prior to the impairment lasting 12 months and the ALJ determines that the claimant is likely to improve prior to the completion of the 12 months.

What is the Listing of Impairments?

In order to be found disabled, an applicants medical condition or symptoms must meet or be “medically equal” to one of the medical signs, findings and symptoms found in the Listing of Impairments. The Listing of Impairments can be found at Appendix 1 of the Social Security Disability regulations, cited as 20 C.F.R. Part 404, Subpart P, Appendix 1.

If an applicant is found to be disabled according to the Listing of Impairments guide found in the Social Security Disability Appendix, then no other inquiry into the applicant’s work history is necessary and there is no need to show that an applicant is not able to continue working.

This assessment is especially important if as an applicant you are still able to perform past work. If the impairment you suffer meets or equals one of the impairments on the list, the fact that you can perform past work is irrelevant.

However, before a determination of disability can be found based upon the disability being equal to an impairment on the Listing of Impairments, the Administrative Law Judge must receive a medical opinion from an expert hired by the Social Security Administration.

My impairment is not on the Listing of Impairments, What’s next?

If the applicant’s impairment is not on the Listing of Impairments, then the applicant has the burden of proving that he or she is incapable of doing any “past relevant work.”

What qualifies as past relevant work?

  1. First, the job must has been performed within: (a) 15 years prior to adjudication; or (b) if insured status has lapsed, 15 years prior to the date last insured.
  2. Second, the job must have been “substantial gainful activity.” See Substantial gainful employment for more information.
  3. Lastly, the job must have lasted long enough for the claimant to develop the facility needed for average performance.

Although, not apparent from reading the three part test above, part-time work can be past relevant work so long as it was substantial gainful activity. Therefore, if the applicant has had an easy job that they could do in the past 15 years, and the applicant can still perform the job, then they will not be found to be disabled. Even if the job no longer exist, as an applicant you must still show that you are not able to do the past relevant work if it was in existence.

Once the past relevant work is identified, then the applicant must compare their residual capacity to work to the past relevant work and a determination is then made regarding the applicant’s disability.

If I cannot do past relevant work, am I automatically disabled?

The short answer is no. The Social Security Administration has medial Vocational Guidelines that are used in determining whether the person is capable of finding work that exists in “significant numbers in the national economy, considering the claimant’s remaining work capacity, age, education and work experience.” Thus, a person who is capable of doing some work in the national economy may be considered disabled if they are of advance age and diminished education whereas a person with the same capability having a lower age and higher education may not be found disabled.

If I am found disabled, do I automatically qualify?

If you are found disabled, you would qualify for disability so long as you follow the prescribed treatment and so long as alcoholism or other drug abuse are not material contributing factors in determining disability.

Does my age matter in determining disability?

Yes. Age is second only to the residual function capacity in determining whether or not someone is found disabled by the Medical-Vocational Guidelines. Along with other factors such as the claimants education, work history and functional capacity, the chronological age of the person is used to determine a person’s disability. As you may conclude from the age requirement, the older a person is, the easier their chances of begin found disabled.

Additionally, the age of the person in combination with the other factors also determines what category/type of wok they must show they cannot perform in order to be found disabled. For example, a 50 year old man with a highschool education and work experience in the heavy labor job field would have to show that they can do no more than sedentary work ( lifting 10 lbs.). If they can lift over 10 lbs., or do more than sedentary work, then they would not be found disabled.

However, the same man who is 60 years old with the same education as the man in the example above and the same work experience would only have to show that they can not lift more than 50 lbs. to be found disabled.

As you can see, age is a huge factor in determining disability.

For more information regarding your particular case, please be sure to call 770-214-2500 for a consultation.

What is SSI?

SSI stands for the Supplemental Security Income program which is a welfare program for the disabled, the blind and those over 65 years of age. Unlike Social Security Disability, SSI is paid out of general revenue funds which are sometimes supplemented by the States and therefore the benefit amounts vary by State.

What are the requirements for qualifying for SSI?

To meet the requirements for SSI, a claimant must:

  1. Be “disabled” under the same guidelines as Social Security Disability,
  2. Meet the income and asset requirements of the SSI program,
  3. Be a U.S. citizen or fall into the group of limited exceptions to the citizenship rule; and
  4. File an application.

For the SSI program, there are both income and asset limitations in order to qualify.

Will my benefits be paid retroactively?

One of the main differences between SSI and SSD, is the payment of retroactive benefits. In the SSI program, SSI benefits have never been paid for any time before the date of the application. In other words, you will only begin to receive benefits from the time of the application if you are approved for benefits.

Unlike the SSI program, SSD may provide a benefit of up to 12 months preceding the date of the application if all of the requirements are met.