Practice Area
Social Security Disability
Have you applied for social security disability on your own and the government has turned you down? Know your rights.
Although frustrating, this is not all that uncommon. The majority of people who apply on their own, without the assistance of an attorney, simply accept the rejection of their application by the Social Security Administration. Millions of dollars are saved yearly by the government based upon the odds that you will not appeal.
The proper progression toward a successful social security disability application comes, for the most part, in three separate stages. As previously stated, the first step in filing the initial application, very often results in a denial of the social security disability claim. Generally speaking, this first determination is made approximately four months after the initial application. The claimant then has sixty (60) days from the date of rejection, to file for a reconsideration. The decision for reconsideration also takes approximately four months. Unfortunately, the “recon” stage rarely results in a reversal of the initial rejection by the Social Security Administration. The claimant then has another sixty (60) days from the date of the “recon” rejection, to apply for a hearing before a Federal Administrative Law Judge. It is at this third stage that the claimant has the best chance of obtaining approval of a social security disability application.
At the hearing before the Federal Administrative Law Judge our firm will present evidence and have you testify to fully document your disability. Our procedure is to document the court records prior to the hearing to that the correct medical records are available for the Judge to review. Moreover, prior to the hearing we will call you into our office and go over all of the questions and information for the hearing so that you are comfortable with your testimony and what will be asked.
Another important aspect of a successful social security disability claim is the strong support of your treating physician. It is crucial that at some point you sit down with your treating physician and ask whether he or she will support your application for social security disability. Our law firm will want to obtain the doctor’s medical records and a detailed medical narrative describing the exact type of disability or combination of disabilities, the history, diagnosis, prognosis, treatment, diagnostic testing, medications, physical or mental restrictions in detail making you incapable of performing work in the national workforce.
When is a person considered “disabled” under the Social Security guidelines?
Pursuant to the Social Security Act, the definition of “disability” is defined as follows:
“Inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental 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 12 months.”
When should I apply for social security disability benefits?
You can apply for social security disability benefits the very same day that you become disabled. In fact, it is to your detriment to wait. Generally, Social Security will not pay benefits longer than 1 year from the date of the initial application. Therefore, if you were disabled 2 years ago and apply today, you will have lost an entire year of disability benefits by waiting. Use it or lose it.
Moreover, if an individual is injured at the workplace, and is currently on sick leave or workers compensation, there is no reason whatsoever to wait until your sick leave is exhausted or workers compensation has terminated as long as you believe your medical condition will cause you to be unable to work for 1 year or more. In the case of a claimant who is successful in obtaining social security disability benefits and who is also receiving worker’s compensation, there will be an offset which reduces social security benefits because of worker’s compensation paid, however in most instances there are still some Social Security benefits to be paid.
How and when are social security benefits are paid?
Many people ask what their monthly payment will be if they are able to obtain social security disability. For each person this amount will vary depending upon how long you have worked and earned in prior years. For children’s disability benefits, this amount will depend upon how long the parent worked and earned. For widow’s or widower’s disability benefits, this amount will depend upon how long the deceased spouse earned and worked. Payments for regular social security disability benefits and widow/widower’s benefits are not paid for five (5) months until after the date of disability. In each social security disability case, there must always be a date which is referred to as an “onset” date. This is the date determined as to when the actual disability began. If a Federal Administrative Law Judge grants a fully favorable decision granting benefits, there will always be an onset date of disability. In most cases, payments will be made five (5) months after that date.
Many people already on social security benefits are concerned about whether the government can stop their payments. Although the social security administration has a right to review a case to determine if someone is still disabled, only a small percentage of cases reviewed result in benefits being terminated.
Another benefit to obtaining social security disability is that you will get Medicare benefits after you have been on social security disability for two (2) years. Although most doctors accept Medicare, prescription medications are generally not covered.
Who can apply for social security disability benefits?
Social Security disability benefits are an earned right based upon the amount of money a worker contributes into his or her social security witholdings from their employment prior to their disability. If sucessful in obtaining social security disability, the claimant will receive roughly the same amount (or higher) of benefits at the earlier age of his or her onset of disability as the individual would have received at retirement. The majority of claims are for Disability Insurance Benefits which are awarded to people who have worked in recent years, which in most cases, are those who have worked five out of the laast 10 years, and who are now disabled. Each claimant’s work history is different as everyone will have had a different amount of work credit and wages witheld.
To find out if you have the requisite work “quarters” for the 5 out of the last 10 years, as well as the amount of disability benefits that would be payable to you, you can call the Social Security Administration at 1-800-772-1213 from 7:00 a.m. to 7:00 p.m. and request an earnings statement. You can also visit the Social Security Administration’s website online to receive valuable information about your social security benefits. You may initiate a social security disability application by visiting your local social security administration office, or by calling the Social Security Administration and requesting a phone interview during which a Social Security Administration representative will take certain information from the claimant. We always recommend that an attorney from our law firm first review the written application before sending it is submitted.
If a claimant does not have a work history where wages were withheld for the 5 out of the last 10 years, then although they may not qualify for regular social security disability, they may still qualify for SSI, or Supplemental Security Income benefits. These are benefits that are paid to individuals who are disabled and are of low income. Those individuals must be able to document not only their disability but their indigency status.
Disabled Widow’s and Widower’s Benefits are paid to claimants who are at least 50 and become disabled within a certain amount of time after the death of their wife or husband. The deceased spouse must have worked enough years in order to be insured with the Social Security Administration . Disabled Adult Child Benefits may go to children of persons who are deceased or who are receiving social security disability or retirement benefits. In this instance, the child must have become disabled before the age of 22.
It is important to note that an individual may have a series of physical or mental illnesses, none of which are disabling by themselves but in the aggregate make it impossible to work. The attorneys at Guttmann & Kellner P.C. will work to successfully document such a claim.
What if I am able to work at another job?
The test is not whether or not you can go back to the job that you once performed. The analogy we often use is that if you were a pitcher for the Mets, the issue is not whether you can pitch for the Yankees or Dodgers. The issue is can you perform any job in the national workforce given various factors such as age or job skills or training. Accordingly, the question is can that same individual work at a totally different job, or even do sedentary work, rather than physical work. This might include answering phone calls at a desk, writing phone messages or light receptionist work. The Social Security Act requires the Administration to consider age as a factor because as people get older, they become less capable of switching to different jobs to accommodate health problems. Simply put, a back injury which might cause a 35 year old person to easily switch jobs where he or she can sit most of the time, might be totally disabling to a 60 year old who might be totally incapable of performing that same job with the same injury.
Generally speaking, the Social Security Administration is supposed to consider all of a claimant’s health problems, age, work experience and education. If the Administration determines you are incapable of performing your present job, it is supposed to consider whether there are other jobs you can perform considering your health problems, education, work experience, and age.
The Guttmann & Kellner P.C. Difference
The attorneys at Guttmann & Kellner P.C. are seasoned trial attorneys who know how to craft a winning presentation. We have taken and won cases that other firms have rejected. We take the time to listen to our clients and we aggressively fight for your benefits.
No fee unless we are successful
Our fee is contingency based, which means that we do not charge a fee unless we successfully obtain you Social Security Benefits. We don’t make money unless you make money, and we are serious about getting you the money you deserve.
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