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Jacques Chambers, CLU,
Posted December 17, 2012
Rumor has it that “everyone is denied disability the first time.” That’s a little high, but really not that far off. Approximately, 65% of initial claims for Social Security Disability are denied. Almost 85% of appeals at the Reconsideration level of appeal are denied. Yet, at the next appeal stage, the hearing before an Administrative Law Judge, the denials are only about 25%; 75% of persons going before a judge will be awarded benefits. I’m not starting with these numbers to discourage you from applying; I’m doing this in the hope that you will take an active role in the claim and, perhaps, consider obtaining an advocate to guide you through the process.
Is the Social Security Administration (SSA) really that strict? It is a huge bureaucracy that processes over one and one-half million (1,500,000) disability claims each year. Claims are processed quickly and as thoroughly as possible, but there are a lot of claims that fall through the cracks. Just because an initial claim is denied does not mean that the claimant is not disabled. There are many reasons that this occurs:
Far too many people apply without really knowing the process. They just file the initial paperwork and wait for the result;
Many medical providers do not provide the medical records when Social Security requests them;
Many medical records are not thoroughly recorded, information is missing, or they are unreadable;
Having reviewed many medical records I can vouch that doctors’ penmanship is often unreadable, even to the writing physician;
As more records are recorded electronically, they are very readable, but often skimpy on listing symptoms with their severity and frequency, which is very important to Social Security since they are looking for inability to function more than a specific diagnosis; and,
As physicians work to treat more patients, recordkeeping is often sacrificed and there is a lack of explanation of limitations and restrictions with no elaboration by anecdotes about inability to function.
If you file for disability and are denied, it is very important that you appeal the denial, with assistance if necessary. By appealing, the date you originally filed your claim is protected. That means that when you are eventually approved, Social Security will look back to that original filing date when calculating any retrospective payments. If you start over with a new application, those potential back-payments will be lost.
The appeal process starts when you receive the denial letter from Social Security. The letter gives the reason(s) that your benefits are denied and it lists which providers’ records they used to deny your claim. The letter is also dated, and that date starts the clock for the first level of appeal. You have sixty-five days from the date of the denial letter to notify Social Security of your intent to appeal their decision. They allow sixty days from the time you receive the letter and they assume you receive it five days after the letter is dated.
You may want to consider hiring an attorney or other advocate to help you. Social Security requires that these advocates can only charge you a fee if your claim is approved. That contingency fee is limited by Social Security to 25% of any retrospective payment you receive from Social Security to cover the months in the past for which you should have received benefits. Be aware, however, that the advocate may charge for “actual expenses” in addition to the fee and may charge for them whether or not your claim is approved. Before signing up with an advocate, make sure you know just how these expenses will be determined. You also need to have a clear understanding of your involvement in the process. Many excellent advocates are so involved in their cases that they neglect to keep their clients informed of the process and their progress, creating unnecessary stress and worry for you.
Now let’s look at the various levels of appeal:
This is the first level of appeal, and it is essentially a repeat of the initial process. A different analyst will review your file along with any new information you have submitted and make the decision on your disability. I believe the high number of denials at this level reflect the lack of new information submitted, not any change in their rules.
To have your claim reconsidered, you must submit three forms within the 65-day deadline:
Authorization to Release Medical Information (SSA-827) – This is another copy of the same medical release you signed when you first applied.
Reconsideration Disability Report (SSA-3441-F6) – This form consists of a series of questions that allow you to provide any new or additional information about your medical condition and to list any medical providers whose records weren’t used in the initial decision.
Request for Reconsideration (SSA-561-U2) – This is the actual request for reconsideration; however, it can practically guarantee another denial if you aren’t careful. The form gives you three lines on which to explain why you don’t agree with the denial. I have never seen a denial overturned with only those three lines completed. It’s better to say “See Attached.”
(These forms are all available on line at: www.ssa.gov/online/index.html)
To stand any chance of an approval at this level, you must submit the above forms with:
Medical records they haven’t seen that show your symptoms are more severe than the original medical records stated;
Medical records and test results that provide more objective proof of your condition;
Letter(s) from your treating providers that focus on your inability to function and why;
Documentation that shows your condition meets one of the Listings of Impairments used by Social Security; and,
Any other documentation that supports your claim, such as third party testimony, symptom diaries, etc.
Sixty-five days is not a lot of time, so it is necessary to work quickly to obtain all the necessary documentation to overturn your denial. Start with examining the denial letter. Although it appears to be a form letter, it really contains information important to the preparation of your appeal. First, look at the list of medical records they used in their examination of your claim. You should get the complete records of any medical providers they do not list and submit them with your appeal.
Next, look at the reasons for the denial. This will give you an idea of just how much is missing to qualify for benefits.
Once your appeal is submitted you need to follow up with the process just as with the initial application since this level of appeal is a replay of the initial application process. There is additional information on Reconsideration of a Social Security Denial and Speeding Up Your Social Security Claim in this site’s archives
Disability Redesign Prototype
In an effort to reduce the amount of time it takes to appeal denials, Social Security launched a pilot program in certain parts of the country. While the results of this program have been mixed, it is still followed in those areas where it was first launched, which includes the states of Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, Pennsylvania as well as Albany and Brooklyn in New York, and certain Social Security offices in the Los Angeles area: Metro (Alhambra, Burbank, Chatsworth, Glendale, Glendora, Tujunga, University Village, Watts), Sierra West (Crenshaw, Culver City, Inglewood, Torrance), and South Coast (Compton, Huntington Park, Norwalk, Whittier).
Under this prototype program, the Reconsideration stage of appeals is eliminated. Instead, the Social Security Representative is to contact you, inform you that the medical record as examined does not support a claim for disability, and give you the opportunity to add additional documentation and medical evidence to the file before it is officially denied. Unfortunately, the letter being used to notify you does not clearly spell out that your claim will be denied unless you either submit more documentation or request an interview with the representative. If your claim is filed in one of these areas, you should carefully read every piece of correspondence from Social Security and call if you are not clear about what they are telling you. (Of course, you should do that anyway, regardless of where your claim is filed).
The ALJ Hearing
If your Reconsideration appeal is denied, the next level of appeal is a hearing before an Administrative Law Judge (ALJ). This is a somewhat informal version of a trial, except there is no opposing counsel. You are given an opportunity to present to the judge and for the record additional documentation and to explain how the documentation they already have should be sufficient to allow your claim. The judge then decides whether your claim should be approved or denied. Three-fourths of the claims at this level are approved, which is also the person deciding actually gets to see you and listen to you directly.
You really should have an attorney with you for the hearing. They not only know what needs to be presented, they have experience with the Administrative Law Judges in your area and know what works and doesn’t work with each judge’s preferences and personality.
The Appeals Council
If your case is denied at the ALJ level, you may appeal to an Appeals Council, which will decide, not if you are disabled or not, but rather, if the ALJ hearing was conducted appropriately and the evidence examined correctly. If not, they will return it for another ALJ hearing.
Lawsuit in Federal Court
Your final level of appeal is to file suit in federal court against Social Security for your benefits. Clearly, this requires an attorney and several years before a decision is finally made. Instead of going to this level, many claimants will abandon their old claim and file a new one, although approval of the new claim will result in loss of all the past benefits under the old claim.
Confused about applying for disability? Click here
[Jacques Chambers, CLU, and his company, Chambers Benefits Consulting, have over 35 years of experience in health, life and disability insurance and Social Security disability benefits. For the past twelve years, he has been assisting people with their rights, problems, and other issues concerning benefits and disability. He can be reached at firstname.lastname@example.org or through his website at: http://www.helpwithbenefits.com.]
Copyright December 2012 – Hepatitis C Support Project - All Rights Reserved. Permission to reprint is granted and encouraged with credit to the Hepatitis C Support Project.
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