Michelle L. Baker, Esq.
Social Security Disability Attorney
P.O. Box 128
Brevard, NC 28712
(828) 862-4798
[email protected]
Who I am
My name is Michelle L. Baker...the one in black!  Standing next to me in the photo is Angie Orr, my trusted paralegal since November of 2011.  I graduated from Boston University School of Law in 1990, and started handling Social Security Disability/Supplemental Security Income cases in 1997, when I got a job with the Social Security Administration hearing office in Houston, TX.  Since that time, I've worked for a few different Social Security Disability law firms, and the Social Security Administration hearing office in Greenville, SC...until I opened my own law office in beautiful Brevard, NC in May of 2010.  

I've decided to write a blog about the process of applying for and appealing these types of claims, with advice on how to survive this challenging endeavor. While I already have a Facebook page which addresses some of these issues, it doesn't provide me with enough space to give specific details or discuss enough of the problems that arise.  With this blog, I'm hoping I can help people that are going through the disability claims process in a more significant way! 
SSD and SSI claims defined

Let me first discuss, what Social Security Disability (SSD) and Supplemental Security Income (SSI) claims are all about. I will talk about adult claims first, and will address childhood disability claims after that. If you are between the ages of 18 and 65, you can file an adult claim for SSD and/or SSI Benefits if you believe that your medical conditions (physical and/or mental) prevent you from engaging in any kind of full-time employment. For SSD claims, you must have worked a sufficient numbers of "quarters" during the past 10 years (where you paid Social Security taxes).  This determination is made by the Social Security Administration after a review of your tax records. For SSI claims, you don't have to have any particular work history, but you must be living at or below the poverty level (which is also determined by the Social Security Administration).  Both types of claims, however, require that you present a certain level of "proof", or medical evidence, about the medical impairments that are causing your disability. This means that you must have received a good deal of medical treatment, both at the time that you are alleging you became disabled, and ongoing throughout the course of your claim, in order to win.  In order to show that you are "disabled" within the meaning of the Social Security Act, your medical records must establish that your medical conditions are either so extreme that they are identical to those listed in the regulations, or that they limit your functioning to such an extent that you would not be able to work in any full-time job existing in the national economy.  For children, there is only the SSI program, because children have no work history.  In order for a child to win SSI benefits, his or her family must be living at or below the poverty level, and the medical and other evidence (i.e., school records) must establish that the child's medical problems are so extreme that they are identical to those listed in the regulations, or that they cause him or her to function far below children their own age.

The Initial Application process  

In order to start this process, you must file an application for SSD and/or SSI benefits at your local Social Security office.  This can either be done online at SSA.gov, or by making an appointment to apply in person.  You can see if an attorney will help you with this (I help my clients apply for their benefits), but most attorneys won't get involved in your case until your claim has been denied at least once. The application typically takes one to one and a half hours,and you will be required to provide a great deal of information with respect to your finances, work history, medical problems and medical treatment.  Once the application is complete, it typically takes 2 to 3 months to get a decision. Sometimes, during this time, you will be sent on one or two medical evaluations with doctors that contract with the Social Security Administration.  These will be relatively short evaluations that don't involve much in terms of testing.  

The Reconsideration process

It's unfortunate to say, but almost every claim gets denied at this early point in the process.  Different states have different statistics, but it's pretty much the same in all of them.  Only the most extreme cases get awarded after the inital application.  This means that the claim will, most likely, need to be appealed...a Request for Reconsideration needs to be made.  Most attorneys will do this for you, except that you will be required to complete a several page form outlining any changes in your medical problems, treatment, etc. since the time that you filed your initial application. What happens next is that the claim will be re-evaluated by a different group of people in the same office, and a decision will usually be made in 2 to 4 months.  

The Hearing process

Again, it's unfortunate, but most claims will be denied a second time.  There's a slightly greater chance of winning at the Reconsideration level of appeal...but only slightly.  This means that the claim will have to be appealed AGAIN! This appeal is called a Request for Hearing by Administrative Law Judge.  Once a hearing has been requested, the case is transferred to the closest Office of Disability Adjudication and Review (ODAR).  The good news is that ODAR is far better at adjudicating these claims than are the local Social Security offices that handle things at the earlier stages of the process.  They are equipped with highly qualified administrative law judges, attorneys, paralegals, legal assistants, etc. that really know the Social Security rules and regulations. The bad news is that it can take a good 18 months to get a hearing!  This is because ODAR's funding is almost always inadequate, and they do not have enough employees to handle the thousands of claims before them in a more timely manner.

At the hearing level of appeal, not much goes on until about 14 to 16 months into the process, when a judge gets assigned to the case.  Before then, the file is merely being "assembled" electronically, which means that the medical and other evidence is exhibited in an online computer program.  Once a judge is assigned, a hearing is typically scheduled a few months later.  If you have an attorney, ODAR will call their office first to make sure the hearing fits within their schedule.   You will then get written notification in the mail a few weeks after that.  The hearings take place at the ODAR itself, or at a sattelite office that is closer to where you live.  Each hearing office has at least a couple of hearing rooms that are used by the various judges.  When it's time for your hearing, the judge's assistant will come and get you and your attorney from the waiting room and bring you into one of the hearing rooms.  These rooms aren't very big, and consist of a few large tables, several chairs, computers, and recording devices.  The judge will be sitting up at one end of the table, across from you and your attorney...unless it's a video hearing, where you'll see the judge on a large screen in front of you.  Also in the room will be the judge's hearing assistant, who takes notes and records the hearing, and possibly a person called a Vocational Expert, who is there to discuss information with the judge about your past work and other jobs that a person with certain physical and mental limitations could or couldn't do.  No one else is typically allowed into the hearing room, unless your attorney feels that it would help to have one of your family members or friends testify after you do.  That person will remain in the waiting room until your testimony is done, and then will be called into the hearing room.

During the hearing, the judge will have access to all of your records on the computer.  He or she will ask you a series of questions to verify information in the file about your age, education, and past work (in addition to anything else the judge wants to know...such as your address, telephone number, type of residence, number and ages of children, sources of household income, etc.).  Then the judge will ask you questions about your medical problems, treatment, symptoms, daily activities, and physical and mental limitations.  You will almost always be asked to describe a typical day and what you are able to do around the house.  In addition, you will probably be asked to estimate how much you feel you are capable of lifting and how long you can sit, stand, and walk before having change positions or take a break.  Once the judge is finished with his or her questions, your attorney will ask additional questions that he or she feels will help your case.  This whole process takes about 30 to 45 minutes, typically.  The next step in the hearing is for the judge to ask questions to the vocational expert, as I explained above.  What they discuss is complicated and can be confusing, but I will have to address that in a later blog.  If your attorney then has questions for the vocational expert, he or she can ask those questions.  At that point, the hearing is over.  It is very unlikely that you will know what the judge's decision is going to be on that day.  You generally have to wait for the written decision to come in the mail before you will know.  

Following the hearing

It can take anywhere from 2 weeks to 3 months to get the judge's decision.  It's usually a matter of how much work ODAR is dealing with at the time.  If the judge has issued a Fully Favorable or Partially Favorable decision, your local Social Security office will call you in to work out the details of payment.  You will then be sent a series of letters explaining how and when you will be paid.  Your attorney's fee is taken out of your backpay (or past due benefits) and sent directly to the attorney.  That fee is 25% of the past due benefits, but is capped at $6,000.  This doesn't mean that the attorney will necessarily make $6,000.  It just means that he or she cannot make more than that amount. Depending on how far back the judge feels you became disabled, the attorney's fee can be as little as a few hundred dollars.

If the judge issues an Unfavorable decision, there are really only 2 options for you.  The first is to appeal to the Appeals Council, which you can do through your attorney, or on your own.  You are given only 60 days after the date of the judge's decision to file this appeal.  This involves filing a special form with either your own arguments about why you think the judge made the wrong decision, or an attorney's arguments about legal or factual errors made by the judge.  I am going to be honest about this whole process, and tell you that it can take 2 or more years for you to hear anything, at all, back from the Appeals Council!  Once you do hear back, there are 3 possible outcomes:  
1) The Appeals Council can approve your claim in full based on serious errors the judge made in evaluating yojjur claim. This RARELY ever happens;  2) The Appeals Council can agree that the judge made legal or factual errors in evaluating your claim, and can remand the case back to the same judge for another hearing.  This happens pretty frequently; or 3) The Appeals Council can disagree that the judge did anything wrong, and not allow the appeal.  This happens quite often, as well.  If the Appeals Council does not allow the appeal, you can either file a new application, or see if your attorney will bring the case to federal district court. 

The problem I have with the Appeals Council process is that a lot of time goes by, without too much hope for any approval of the claim.  If you have another hearing before the same judge, the chances of that judge awarding the claim the second time around are not that great.  After all, the judge already made the decision that he or she thought was the right one.  When the Appeals Council remands the case, they are not saying that the judge's decision has to be different...only that the judge has to do a few things differently at the next hearing, or explain things better in his or her next decision.  If the judge denies the claim after the second hearing, you either have to start all over again with a new application, or appeal AGAIN to the Appeals Council.  Many years can go by in all of this, and, even if the judge does approve the claim, you can still lose most of the backpay you were seeking, because the judge may decide to just award benefits for the time period since his or her first, unfavorable decision.  This can be done by claiming that your conditions worsened after the first hearing, making you disabled now, but not previously.  However, there are some factors that make an appeal to the Appeals Council your only option.  I will have to explain this in another blog.

The second option is to file a new claim.  This is often more expedient and effective than appealing the judge's decision.  You can only do this, however, after there has been some change in your medical conditions or the treatment for those conditions.  The reason for this is what's called "res judicata."  That's a term which means you cannot refile (as opposed to appeal) the same claim for benefits that was already denied, because the judge's decision on that claim was the final decision.  To make it into a different claim, you have to show that there has been some kind of worsening in your medical problems or symptoms since the date of your hearing with the judge.  This can be shown by simply getting additional medical attention with a new kind of specialist, establishing a new diagnosis, or indicating new types of medical treatment for the conditions you already had. While filing a new claim can mean that you have to go through the entire process all over again, there is always the possibility of winning at an earlier level of adjudication and not having to go to another hearing.  But, keep in mind, that in filing a new claim, as opposed to appealing, you are giving up any claim to benefits for the time period prior to the judge's Unfavorable decision.