Winning Your Social Security Case Within Three
Months - How to Win Without a Hearing
by Jonathan Ginsberg
No matter what your age, education or work experience, you can improve your chances at winning early in the evaluation process if you are truly unable to work. A key to winning is to understand how Social Security
evaluates your claim. You can help your chances immensely by providing Social Security with accurate and complete sources for information. You should also insist that all relevant information be considered prior to
any hearing - win at the initial or reconsideration stage.
What is the main issue?
When you file a Social Security case, you are asking for monthly financial assistance from the government because you are unable to work or support yourself and your family. Thus, it is reasonable that Social Security has
set up a system designed to pay benefits only to deserving claimants. To win your case, you must prove certain things The issue in a Social Security disability case is whether your medical or psychological condition is
such that you cannot engage in “substantial gainful activity” (i.e., work) and whether your condition is severe enough to keep you from working for a year or longer.
Social Security will not approve you if you can do any type of work. Thus, another way to think about your case is to ask yourself whether you could perform a simple, sit down type of job 8 hours per day. For
example, could you work as a ticket taker at a movie theatre, a small parts assembler, a product wrapper, or a security system monitor. If you could perform these simple, low pressure jobs, Social Security will not find
Further, if you have a severe injury, but you are likely to recover within a year, you r symptoms prevent you from working at competitive employment
Finally, Social Security does consider your age, education and past work experience. Specifically, claimants fifty years and older may receive preference. Claimants with less than a high school education are given
special consideration, as are claimants whose only experience is unskilled, labor type jobs.
Are you eligible to file a claim
The first question you will be asked when you try to file a claim is whether you are working. Social Security is looking for a yes or no answer. Part-time work can be an issue, and you may have to decide. In general,
it has been my experience that part time work is evidence that will be used against you, especially at the initial and reconsideration adjudication level. Thus, if you are working part time, you will find it more
difficult to get approved for Social Security.
Similarly, part time work may cause you to lose your insured status for Title II (disability) benefits or may result in a reduced monthly benefit.
Although Social Security says that they want to encourage claimants to work, the truth is that part time work can hurt your chances at recovering disability benefits.
If you are working and earning more than $500 per month, Social Security may not even take your application.
You can find out whether you are insured for Title II disability, as well as how much you would receive each month by requesting an earnings and benefit statement. You can request a statement on-line or you can click here for a copy of the form that you can print out.
It has been our experience that Title II Disability claimants can expect to receive on average between $700 and $1,500 per month, while Title XVI SSI claimants can expect to see about $500 per month.
If in doubt, file a claim
It is easy and free to file a Social Security disability claim. Call (toll free) 1-800-772-1213. You will have to go through a number of voice mail menus before speaking to a live operator. When you do get a live
operator, tell him/her that you want to file for both Title II Disability and Title XVI SSI. Even if it does not appear that you are eligible for both of these programs, you may turn out to be qualified. It is
not the phone intake clerk’s job to make this decision. Insist on filing for both!
When the intake clerk asks you when you became disabled, give him/her the earliest possible date. This could be the day you last physically appeared at your work site or it could be the last day you were able to fully
perform your job. For example, if you hurt your back on February 15, but, because of your long service to your company, your employer let you miss 3 days a week and leave early until May 3rd, your onset would be February
15th. Special work considerations usually don’t count.
Similarly, if you stopped attending work on July 7th, but stayed on payroll until October 15th, July 7th is your onset. Social Security may see payroll entries filed months after you last physically appeared at the
worksite. Use the earliest possible onset date - the date you were no longer able to perform competitive work.
How to Win at the State Agency level
When you file a claim, your case will be opened by an adjudicator at the State Agency. This is an office operated by the State of Georgia with joint state and federal funding. These are the same people who handle Medicaid
claims. This is the “initial evaluation stage”
Before going further, you should realize that many deserving cases are denied at initial. Don’t be discouraged if you don’t win quickly. The adjudicators are overworked and given limited authority.
They rarely have time to give much attention to any one case. I have visited the State Agency office on Ponce de Leon Ave. in Decatur, Georgia. The State Agency adjudicators open literally hundreds of files every
day. Case files are stacked three feet high on tables in the intake room.
How Your Case is Processed
Your case will be processed with form letters and the initial evaluation will take about three months. Most of these form letters are letters to your doctors asking for copies of medical records. If the adjudicator
sends your doctor a request for medical records, and the doctor does not reply, there is rarely follow-up - the decision in your case will be made without those records.
You can help your case by providing the adjudicator with a complete list of each and every doctor or hospital that has ever provided you treatment. This includes medical treatment received ten or more years ago.
Encourage Your Doctor to Cooperate
You should also encourage your doctor to cooperate with the adjudication process. Many doctors and most hospitals use independent copying services to respond to requests for records. These copying services charge a fee for
each page copied. By law, Social Security is permitted to obtain these records for $10 per request. Frequently, your records will not be sent by the copying service because Social Security will not prepay the
copying service’s standard fee (which is more than $10), and your Adjudicator does not have time to push the issue.
If there is other evidence that you want the adjudicator to add to your file - such as school records, statements from former employers, etc., put your request in writing to the adjudicator.
Is there Objective Evidence of Impairment
When evaluating your medical records, your adjudicator is looking for objective evidence - test results, unqualified diagnoses. For example, the following impairments are easy to evaluate objectively: an amputated
leg; diminished lung capacity as measured by medical equipment; congestive heart failure as measured by decreased blood flow through the heart. These types of cases probably will be approved.
Subjective Medical Evidence May be Discounted
Cases involving “shades of gray” will likely be turned down. For example, the following cases will probably not be approved by a State Agency adjudicator: a case involving a combination of impairments;
cases in which you are still trying to work part time; cases in which your medical treatment has not been continuous; cases in which there is conflicting medical opinion (very common in worker’s compensation cases).
Furthermore, if you have previously applied, but were denied, it is not likely that you will be approved at initial.
Often the adjudicator will send you out for a “consultative examination” with a doctor who has a contract with Social Security. Our experience has been that physical consultative exams are rarely helpful to
you. You may be sent to an internist at a clinic set up specifically to perform independent medical exams. These doctors tend to discount your complaints and rarely produce helpful reports.
Consultative psychological exams are often more reasonable although there are some psychologists on the panel who seem to produce the same non-beneficial report every time.
In-house Review by non-examining physician
iOnce the adjudicator has received records from your doctors and from the consultative evaluations, he/she will evaluate the record. In most cases, the adjudicator will organize your file and send it to an in-house
physician or psychologist for review. These Social Security doctors (who have never seen you personally) will review your records, determine the general category of your impairment, then complete a form checklist.
As noted above, the obvious cases in which the medical evidence is overwhelming will be flagged for approval. Similarly, cases that have been through the system will likely be turned down. The vast majority,
however, will be denied on the basis of the file reviews by the in-house Social Security staff doctors.
These form checklists become part of your file - I have reviewed literally hundreds of these checklists - in most cases, the staff doctor’s handwritten notes are illegible and the “analysis” is extremely
Issuing the decision
When the medical consultant has finished his/her review, the file is returned to the adjudicator. In cases that are denied, the adjudicator will issue a form letter denial. This form letter is important in that it
does identify the medical records used to make the decision. Most importantly, the date on the initial denial letter starts the 60 day appeal time limit.
60 days to appeal
When you receive your denial, you must file an appeal for “reconsideration” within 60 days. With rare exception, if you do not appeal within 60 days, your case will be closed and you will have to start all over
again if you want to pursue a claim.
You can lose money and even the right to pursue a claim if you miss an appeal deadline. Therefore, if in doubt, file a reconsideration appeal.
File for Reconsideration
It has been our experience that the reconsideration appeal is often a useless exercise. Very few cases are approved at reconsideration. The reconsideration process is much like the initial evaluation process.
Your case is assigned to an adjudicator who develops the file for an evaluation by a non-examining Social Security doctor.
The main things you can do to improve your chances at reconsideration:
1. Make sure that Social Security has the name and address of all of your doctors, including any new ones.
2. You are required to fill out a long form to file your reconsideration. You must ask Social Security for this form - they will not send it automatically
(at my law office we have blank forms - call us at 770-393-4985 and we will send these reconsideration appeal forms to you.
File for a Hearing
When you are denied at reconsideration, you have only 60 days to appeal and request a hearing. Again, Social Security will not provide you with the hearing request forms unless you ask for them. Feel free to call my
law firm at 770-393-4985 for copies of these forms.
When you request a hearing, your file is physically moved from the State Agency office to a Social Security Office of Hearings and Appeals. Although the Office of Hearings and Appeals may be only a few miles away, the
physical transfer of your file may take six months. Unlike the State Agency, the Office of Hearings and Appeals does not have the personnel to update your medical records. You or your lawyer is responsible for
updating your medical file.
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