Applying for Social Security Benefits: What if My Claim is Denied?

First, don't be surprised or discouraged. At least 2/3 of all applicants are denied benefits initially. If you receive a denial letter, and you disagree with the determination, you may appeal it. Appeals must be filed in writing and may be submitted by mail or in person to any Social Security office.

The first administrative appeal is a Reconsideration, which is a judicial review of the case. You must file a Request for Reconsideration within 60 days. Requesting a Reconsideration instead of reapplying is particularly important when applying for SSI, because if you are awarded benefits, they are retroactive to your initial application date. When you request a Reconsideration, the Social Security office will most likely want additional medical evidence to support your claim. The new decision will probably take a few months.

What Type of Medical Evidence Should I Provide?

First, make sure you collect a history of objective evidence. Provide medical reports that include information such as:

• Dates of doctor visits
  
  
• A description of your illness, including symptoms and complications
  
  
• Results of diagnostic tests (i.e., endoscopies, x-rays, blood tests, etc.)

In addition, Social Security rulings allow secondary proof to be taken into consideration. Examples of secondary proof are:

• Notations on physician records such as repeated instances of pain, fever or fatigue, how many times a day you must use the bathroom, whether you are able to travel to work by public transportation, whether you need to lie down for periods of time during the day, or are unable to perform any physical tasks necessary to your work.
  
  
• Your personal diary of symptoms and their effect on your daily activities. Keep records of work and social events you've missed because of your illness.
  
  
• Accounts from family, friends or co-workers of how your disability has affected your work or your ability to participate in family or social activities.

What Role Does My Doctor Play?

Your doctor's report is the most important evidence you can include in your claim. Make sure your doctor substantiates his or her opinion with as much objective data as possible. A general statement verifying that you are disabled is not adequate-that is what the judge must decide and he or she needs appropriate details to make that decision. However, studying medical records is tedious and often requires medical expertise. The report should be in "layman's" language, preferably in letter form, and should provide a detailed evaluation of your condition and the effects it has on functions that limit your ability to work. The physician should avoid ambiguous terms like "guarded prognosis," which cast doubt on the duration of your disability. The report should focus on your current condition, assuming it will remain the same.

One note: no matter how helpful your doctor wants to be, physicians are trained to document for the purposes of medical diagnosis and treatment, not to educate laypeople or anticipate the questions of claim examiners. Yet, proper preparation of your claim is absolutely essential to attaining a favorable decision. The claim examiner is only required to review the evidence presented, not seek out necessary information, so the doctor's report must foresee what medical evidence will be required under the federal regulations. An experienced advocate (generally, a Social Security attorney or paralegal) knows how to describe the disability so that it conforms to the Social Security regulations and can be instrumental in helping your doctor prepare this critical evidence.

Do I Need an Attorney?

The disability determination is sometimes thought of as a medical decision, but it is actually a legal decision based on medical information-information that is subject to the interpretation of many Social Security Administration employees with no medical expertise. Perhaps that is why, statistically, you are much more likely to win your claim with an experienced attorney representing you. If you haven't already, this juncture (after an initial denial) is a good time to consider hiring an attorney. An attorney will work with your doctors so that they understand which issues should be addressed and highlighted in their reports.

A qualified Social Security attorney will be thoroughly familiar with the intricacies of Social Security Regulations (which are constantly being revised) and other resources such as the Listings of Impairments, Social Security Rulings, case law, and the Dictionary of Occupational Titles. He or she can use these to help you, your doctors, and your other witnesses present a more convincing case.

If you decide to employ an attorney, it will be to your advantage to get him or her involved early on, while your record is being created. In this way, you can avoid making any mistakes that cannot be undone further along in the process.

Generally, attorneys take Social Security Disability cases on a contingency basis-i.e., you only pay attorney's fees if you are awarded benefits. The fees are restricted by the Social Security Administration, and are usually based on a percentage (typically 25%) of any back benefits that you receive. The Social Security Administration will automatically withhold a percentage of your Social Security Disability Insurance back pay amount for private attorney's fee.

If you need help finding an experienced Social Security attorney, the National Organization of Social Security Claimants' Representatives (NOSSCR) offers a referral service. You may call NOSSCR at 1-800-431-2804 during regular Eastern Time business hours.

If you have questions about insurance, Social Security issues and the Americans with Disabilities Act, please send a note to response@ccfa.org (with your quesiton topic in the subject line and your contact information and question in the body of the email), or call CCFA Headquarters, 800.932.2423 ext.239.

What is a Hearing?

According to the NOSSCR, about 20% of claimants win at Reconsideration. If your claim is denied at the Reconsideration level, you have 60 days to ask for a hearing. The hearing is a crucial step in the process, because it is your only chance to present information about your claim directly to the person who decides your case-the Administrative Law Judge (ALJ). It usually helps to have legal representation at this level.

Once you file a request for a hearing, it generally takes 6 to 9 months for the Social Security Hearing Office to set a hearing date. You will be informed of the date and location of your hearing at least 20 days in advance. Hearings are usually held within 75 miles of your home, but if that is not possible, you and your witnesses will be reimbursed for reasonable travel expenses.

The information you present should include as much objective evidence as possible, such as medical records and any other relevant documents. Be sure to gather information about all of your limitations-physical and mental-and submit them before the hearing. Although your condition may be primarily physical, often it is the combination of problems that confirms that you are disabled. If you've seen a therapist for symptoms arising from your physical condition or inability to work, provide those records, too.

If you wish, you can also provide witnesses to testify about your disabilities. Effective witnesses are people who see you regularly and can describe how your medical condition affects you-especially someone who can remain objective, such as a former employer or co-worker.

The hearing is a legal proceeding, but generally, it is rather informal. There will be no jury, no spectators, and no opposing attorney. The only people likely to be present will be the judge, the judge's assistant, you, your attorney and any witnesses you have brought. The judge may also ask a vocational expert and a medical or psychological expert to testify.

The ALJ will question you extensively about your disability. Typically, you'll be asked questions about your medical condition and history-what symptoms you experience and how frequently, when you first consulted a doctor for the condition, how often you see your doctor, what medications you take, and whether there are any side affects.

The judge may also question you about your capabilities and limitations, both physical and mental. You may be asked questions such as how long you can stand, how far you can walk, how much you can lift, etc. You could also be questioned about your ability to understand, remember, follow instructions, or respond and adapt to various work situations. Remember, even if your job doesn't involve these particular activities, the judge is trying to determine if you could do any job for which you might be qualified.

To help determine what types of jobs you may be qualified for, the judge will probably ask about the extent of your education and training, and your work experience. Be prepared to answer questions about all the jobs you have had during the past 15 years and how your condition affected your performance. Be very specific about your past job duties, because titles alone can be misleading.

You will also be asked about your daily activities and how your disability affects them. For example, how you spend your time during the day, your sleep patterns, whether you drive, what activities or hobbies you take part in.

After your testimony, the judge will question the medical expert. The medical expert will have already reviewed your medical evidence, and will testify as to whether or not your condition is severe enough to "meet the listings." His or her opinion is based on the records you have provided, not your testimony at the hearing, so it's imperative that you submit all of your records beforehand. At this point, if the medical expert testifies that you do "meet the listing," and the judge finds no reason to mistrust that opinion, you are considered disabled, and have won your case. Often, however, it isn't that simple.

If you are not automatically qualified by meeting the listing, the judge will then determine whether you can do your "past relevant work"-under Social Security's definition, this means any work that you have done in the last 15 years. To do this, he or she may ask the medical expert's opinion, and then question the vocational expert for confirmation. The vocational expert will offer an opinion as to whether or not you can perform your "past relevant work" or any other type of work that you could reasonably be expected to find.

After the vocational expert's testimony, you or your attorney will be able to question him or her. If you feel the opinion offered did not take into account all of your limitations, be sure to address this. After the hearing is over, the judge will make a decision as to whether or not you are disabled. Statistically, over half of the claimants who have a Social Security disability hearing win. However, the decision could take up to a year.

What if My Claim is Denied After the Hearing?

If your claim is still denied, the hearing record provides the basis for the decision at the next step, if you decide to pursue it. The final administrative appeal is for a review by the Appeals Council. You again have 60 days to file this appeal.

Things get more technical here, so it's also important to have a legal representation at this level. This appeal addresses the validity of the ALJ's decision more than your disability. A denial at this level means that the Appeals Council has not found sufficient evidence to warrant reviewing your case. This step will usually take several months.

At this point, you have exhausted all administrative appeals, but you can take the next step by filing a civil suit in Federal District Court (within 60 days). The court will review the record from your hearing and the reasons why the Appeals Council turned you down. The court has the authority to award you benefits, concur that you should not receive benefits, or remand your case back to the Social Security office for an additional hearing. After this step, if necessary, you can eventually appeal all the way to the United States Supreme Court.