Chapter 10

Applying for Social Security: The Process

Desire to have things done quickly prevents their being done thoroughly.

—Confucius

 

Only about one-third of applicants for Social Security Disability income are found eligible on first submission of their application. This chapter provides the necessary background to increase your chances of doing it right the first time.

Keep in mind that from the point of view of employers, insurers, and SSA, disability is not something that you choose to do. You either are or are not disabled (i.e., unable to do any kind of work for which you are suited for at least a year or until death). Do not discuss disability as if it were a choice.

The following discussion is specifically about filing a Social Security Disability claim. However, the process is the same for each situation in which you have to prove disability. If you are filing a claim for any other reason, the procedure is much simpler.

Section 1. Before You Begin

Determining whether you are disabled under the Social Security law starts with a determination of whether you are insured or have recently worked. Those determinations are straightforward matters of mathematics. However, whether you are sufficiently disabled within the meaning of the law is subject to interpretation.

Unless it is obvious that you are disabled, you should seek advice and assistance from your GuardianOrg or an attorney before you seek Social Security benefits. Your GuardianOrg may have advice tailored to your situation based on information about others with your illness who have sought Social Security in your area. The rules and regulations are national, but each office has its own way of doing things. Your GuardianOrg can probably provide a referral to a benefits specialist or lawyer who can provide assistance should you need it.

Section 2. A Case Study

Experience has shown that it is not just the reality of your condition that determines whether you are approved for disability, but how third parties such as the personnel at SSA interpret the facts. For example, on Lewis L.’s disability report he stated he had AIDS. He described his job as physically taxing. He stated that he was in charge of the local office for his national firm where he supervised forty employees and was responsible for locating and keeping clients. He stated that he had to work long hours, six days a week, and had to be on his feet most of the time. In answer to every question, he repeated his responsibilities and that the illness caused “fevers, fatigue, body aches, and fungal infections” that made it “impossible to work.” He indicated that he was already approved for disability by the firm’s group disability carrier.

Lewis noted that his doctor suggested he reduce stress and “take care of my health.” He mentioned that he does “shopping … on days I have the strength to do so [and] items are delivered to reduce stress. My wife, who works, cleans. I do some when I have the energy.” Answering questions about hobbies he stated, “I paint at home and take walks when I have the energy.” Elsewhere he stated, “I have frequent visits from friends and relatives when I am feeling able.” No supporting documentation was requested, and none was attached.

Lewis sounds like a person who is “disabled,” but the SSA didn’t agree. From their point of view, the answers were too generalized. They could have applied to many people with the condition who continue to work.

An attorney specializing in helping people with life-challenging conditions rewrote Lewis’s “Request for Reconsideration.” He was more specific and tied the conditions to the requirements of the job that Lewis could no longer fulfill. The new form stated that since Lewis had filed his claim, “his symptoms have continued or intensified. Fatigue restricts him to bed an average of one day per week on which days he often cannot maintain basic personal grooming. On other days he requires frequent rest and naps. Severe diarrhea 2 to 3 days per week, regular chronic gastric bloating and pain, and occasional constipation greatly impair his ability to function; sporadic sleep at night further reduces his energy, as do 2–3 day bouts of low-grade fever (100–100.5 degrees), accompanied by night sweats every other week. Furthermore, fungal infections in his feet and pain in his left quadriceps make standing or walking for prolonged periods impossible.… The severe diarrhea and gastric pain he experienced at the time of his claim continues to circumscribe the amount of time he can be away from home. The pain in his feet and left leg continue to make standing or walking for prolonged periods impossible. Certainly, standing or walking for even two hours out of the day is beyond his capacity.… He can do basic food shopping on days he feels well.… Aside from making his bed, his wife performs all other household tasks.…”

The request for reconsideration was accompanied by a letter signed by Lewis’s wife repeating this information and stating specifics of more things Lewis could not do in his personal and social life. It was stated that Lewis’s social life was practically nonexistent due to his condition. This time around, Lewis received his SSD.

Learn from the case study. While describing your symptoms, state them graphically and in detail so any reader can understand why you are unable to work due to your medical or emotional condition. Although it is not generally the case with SSA personnel, assume for purposes of completing the forms that the reviewer is biased against awarding a disability. State your case as strongly as possible, but don’t be overly optimistic or unrealistic about your work or personal care abilities. Don’t leave out any details, no matter how embarrassing you may find them to be, or how distasteful you think the reviewer will find the subject.

Tip. As Lewis found out the hard way when the SSA called to check on some of his answers, it’s a good idea during the time SSA is considering your request to keep a set of your papers near your phone in case SSA calls. Be sure to repeat the key phrases that indicate why you can’t work. Don’t volunteer additional information. And don’t talk as if you have a choice about going on disability. When in doubt, hire a professional to help, or at least contact the social workers at your GuardianOrg.

Section 3. Preparing the Paperwork

Keeping Lewis’s experience in mind, take the following steps in preparation for filing your claim:

• Obtain the appropriate procedure and forms from the Social Security Administration (SSA).

• Identify someone experienced with your type of illness and with your local Social Security office to provide you with advice and assistance should you need it. It is best to find someone who has worked with several others with your condition who have successfully obtained benefits.

• Decide what date you will use in answer to the SSA question “When did your condition finally make you stop working?” The date is critical for the commencement of SSI, the waiting period for SSD, Medicaid and Medicare, and even the continuation of your health insurance under your COBRA coverage. Keep in mind that SSD waiting periods start on the first day of a month, so unless you apply on the first day of a month, the five-month waiting period will not start running until the first day of the succeeding month.
    Since Social Security will pay SSD retroactively for a maximum of twelve months, you can and should backdate the onset of disability as far into the past as your medical records will substantiate. Onset dates can be backdated to cover periods when you collected unemployment, state disability income, when you were not working, or even over periods (generally up to three months) when you were working, as long as you were out sick more than you were at work.
    You can also backdate disability over what Social Security calls “closed” periods of disability. For example, if you left work for a year because of a condition, then returned to work for two months, then left permanently, SSA may accept that year as a “closed” period of disability and set the onset date at the start of that year.

• Be sure your journal is up-to-date (chapter 9, section 1), and that it includes how your condition affects your job performance. This record can be important, particularly if your claim is denied and you have to appeal. Social Security will ask for a copy of the journal if you have one.

• When you apply for SSD, SSA will automatically request information to determine your eligibility for SSI. This is done so that you will receive the benefit (as well as Medicaid coverage) as soon as you are determined eligible. If it is clear to you that you are not eligible for SSI based on your assets and/or income, you can inform the Social Security claim representative that you are not interested in pursuing SSI. If you are pursuing SSI, see below for additional information you will need to gather.

• As illustrated in the case study above, one of the main areas about which SSA requests information concerns how your illness interferes with your ability to work. Thus, in your application, keeping in mind Lewis’s experience, describe the duties of your job and focus on the specifics of how your illness makes it impossible for you to do your job rather than how your job is interfering with your health.

• To help identify your symptoms, think about your worst days.

• To help you focus on how your health has interfered with your job, compare how you do your job now to how you did it two years ago or even one year ago. Also look at how your job duties may have changed since the earlier date.

• Social Security will ask for information about changes in your ability to function in everyday life including personal care, cooking, housekeeping, bill paying, ability to do errands, recreational activity, physical mobility, and ability to use transportation. As you did with your job, focus on the specifics of how your illness interferes with these activities. Compare today to two years ago and think of your worst days.

• It would be helpful to obtain letters from friends, family, neighbors, and/or former employers about your functional limitations. They should include how your symptoms keep you from performing normal daily activities, including household chores, your normal social functioning, or contribute to loss of memory or concentration.

• Begin assembling the information described in section 4.3 below.

Tip. Always use your own words when completing SSA forms. Analysts are suspicious of canned answers.

Qualifying for SSI. If you may qualify for SSI, in addition to the above information, you will also need to assemble information relating to your income and resources including bank records, tax records, W-2s, insurance policies, car registration, and if you are married, information about your spouse’s income and resources

You will also be asked about your living arrangements since you must be paying your “fair share” of rent, food, and utilities. If you rent a room, a letter from your landlord should be sufficient. If you have one, make a copy of your lease or proof of ownership such as evidence of a mortgage. If someone gives you money for your expenses, or if you are living rent-free, a reasonable amount may be deducted from your benefit. However, if someone loans you money for rent and the like, it will not count against you (although you may be asked for signed loan statements indicating you must pay back the money). Government and nonprofit assistance for rent or food are not counted against you.

It is also a good idea to research the criteria in your state for qualifying for SSI. If you are over the income or asset limit by even a small amount, you will probably be disqualified. It’s better to know the criteria up front and plan accordingly.

Presumptive disability for SSI. If you fit the criteria for “presumptive” disability, you may be awarded SSI immediately. SSA publishes guides written for laymen defining presumptive disability for several conditions, as well as a guide geared toward medical professionals known as “Disability Evaluation Under Social Security.” SSA uses these guides to determine “presumptive” disability benefits. If you do not fit the presumptive description, you may still qualify if an impairment or a combination of impairments is at least as severe as those described. If it is finally determined that you are not disabled, you will not be required to refund the payments.

You can still receive SSD even if your disability does not qualify under the criteria of a presumptive disability.

Section 4. Starting the Process

File your request for Social Security benefits at any SSA office in the country immediately upon becoming disabled and leaving work. When deciding which filing office to use, consider

• convenience, since the process will probably take several months and you may want to stop in the office as necessary.

• if it is not clear that you are disabled, whether the office handles situations similar to yours and does so favorably.

4.1 In-Person or Telephone Interview

The request for benefits starts by making an appointment with SSA by calling 800-772-1212, 7 A.M. to 7 P.M., M–F. Social Security will send you forms to be completed prior to your appointment if you don’t already have them.

You can choose a telephone interview (so you can do everything by telephone and mail) or an in-person interview at a local SSA office. Doing the interview in person means that you will not have to send vital documents through the mail. It also means that if you make a mistake, you have a person sitting in front of you who can help correct it. If you schedule a telephone interview, you can provide the information from the comfort of your home, but then you don’t have the option of correcting mailed-in mistakes, which become part of your permanent record. Many advocates advise that it’s best to do the interview

• in person;

• in the middle of the week; and

• in the middle of the month.

If you are eligible for a determination of “presumptive disability” under SSI or an SSI emergency payment, do an in-person interview. Be sure to request those benefits during your interview rather than relying on the SSA employee to bring them up. If the claims representative does not file for presumptive, and if the claim leaves the office and goes to a disability analyst, then the Social Security office may have to defer to the analyst for a presumptive decision, which adds weeks to the process.

Ask for a “receipt of claim” when you initially submit your papers. This is proof that you applied.

Tip. Always be prepared for a long wait at the Social Security office.

4.2 A Representative

If you cannot physically go to the SSA office or do not want to, you can ask a friend or family member to handle your Social Security business for you. All they need is your written consent on the SSA form used for appointment of a representative. If the person is also to receive benefits for you, the person must register with SSA and be qualified as a representative payee. A person with your power of attorney does not automatically qualify as a representative payee.

4.3 Documentation

Whether you apply over the telephone or in person at your local SSA office, there will not be a review until all the required documentation is supplied to SSA. Since the burden is on you to prove your disability, it is important to compile the information described below to the best of your ability.

If you’re missing documentation, ask your SSA representative whether that, in and of itself, is enough to disqualify you from a disability determination. If it is, then fill in the gap before turning in your application (unless you believe you can qualify for SSI, in which case you want to turn in your application as soon as possible because SSI awards never predate the date of the application, while SSD dates back to the beginning of the disability).

Tip. The key to a successful SSD/SSI claim is well-documented, carefully written forms and attachments, all of which together show how and in exactly what way a claimant’s condition and symptoms prevent ongoing, sustained work.

Social Security Disability Insurance. The following documentation will be required to process your claim for SSD. If you haven’t already done so, obtain form 7004 from SSA and be sure to check it for accuracy (see chapter 3, section 3).

Medical.

• Letter from your doctor setting forth the following information:

• Detailed diagnosis and prognosis—details are important; make sure all of your symptoms are included (such as weight loss, fatigue, headaches, and depression as well as major infections or diseases).

• Results of supporting medical tests including biopsies, X rays, and the like.

• A description, preferably based on the information you have been providing, that states specifically how your condition affects your ability to work and engage in other activities.

• A statement that you will be unable to work for at least a year due to your illness.

Tip. If your doctor is not familiar with SSA requirements, ask SSA for a copy of its current publication describing the information needed from your physician, which you can give to your doctor. Check the letter against these criteria. If the letter is not adequate, don’t hesitate to speak with the doctor and point out the areas that need improvement. Let her know that you recognize the difference between her real optimism about your condition and your needs for Social Security purposes.

• Copies of medical records relating to your disability. Don’t rely on SSA to obtain this information. Overworked SSA employees can take an endless amount of time to obtain information from overworked staffers in your doctor’s office, clinic, or hospital. For absolute safety, don’t rely on the mails: pick up your medical records by hand. Be sure to mention, and secure, records and reports about current or past physical or mental conditions that could possibly relate to the condition that prompts your disability.

• Copies of medical records relating to any other ongoing or past condition, physical or psychological, that affects your ability to function.

Work related.

• Letter from your employer setting forth when you stopped being a productive employee (even though the employer may have left you on the payroll for other reasons, such as compassion). This date should coincide with your doctor’s statement relating to the onset of the disability.

• A summary of where you worked in the past fifteen years and the kind of work you did.

• All pay stubs from the current year (to prove your earnings to date for the current year).

• W-2 statements (or if you were self-employed, your federal tax return for the last two years).

Other.

• Your journal.

• Birth certificate (original or state-certified copy only). If you can’t find it, contact the hospital in which you were born. If that doesn’t work, try the city government or as a last resort the state’s department of health.

• Green card, passport, immigration/naturalization papers.

• Copy of driver’s license or other identification with picture.

• A copy of your Social Security card or at least your Social Security number.

• Documentation relating to any other government programs for which you may be receiving benefits.

Supplemental Security Income. If you are applying for SSI, prepare all of the documentation requested for SSD. In addition, compile the documentation described here, under the heading “Qualifying for SSI.”

Section 5. Determination of Disability

Once SSA determines your file is complete and that you satisfy the credit and work criteria, your file is then sent to a state agency known as Disability Determination Services (DDS), which is responsible for the initial disability determination. The determination is made by a two-person team consisting of a medical or psychological consultant and a disability examiner.

If DDS determines that you are disabled for purposes of Social Security, SSA then looks to see if you are otherwise eligible for SSI and/or SSD. If they agree, and you are eligible for SSI, your monthly benefits and Medicaid coverage will start immediately, with the first check covering funds back to the date of the application. You will also be eligible to apply for food stamps. At the end of the sixth full month from the date determined to be the onset of your disability (i.e., in month seven), an SSD payment will be made to you for the sixth month only. Keep in mind that with SSD, there is no payment for the waiting period of the first five full months after the onset of disability and that checks are then written at the end of a month in which you are disabled—not the beginning.

Tip. When you file your claim, Tom McCormack, author of The AIDS Benefits Handbook, suggests, “Ask the SSA claims representative for the name, address, and telephone number of the DDS worker or branch to which the claim will be sent for review.… After a decent interval, call the DDS worker or branch and inquire what additional information, records, files, or statements you might submit to assist in processing your case.”

Tom also advises, “Never mail your only copy of any document, report, or form and always [if possible] hand-deliver submissions to SSA or the DDS.”

Tip. During the period from submission of your disability claim until it is approved, medical files from new doctor’s visits should be sent as they occur to SSA or the DDS analyst as the case may be.

If you are sent to “consultative” exams, ask the analyst if reports from your own doctor would be satisfactory instead.

If your health insurance is still on a COBRA eighteen-month continuation, remember to send a copy of your Award letter to your COBRA administrator within sixty days of receiving it to qualify for the eleven-month continuation.

Tip. If you’re not satisfied with the way that Social Security is handling your situation, call one of the following: your state or local office on aging; the National Committee to Preserve Social Security and Medicare (800-966-1935), an advocacy group; or the office of your U.S. senator or representative. Every member of Congress has a caseworker whose sole job is to help constituents who are having problems with Social Security or other federal programs.

Section 6. If Social Security Denies Your Claim

If SSA denies your application, you have the right to appeal the decision. While the appeal is ongoing, which can take from several months to a year, there is no automatic right to Medicaid or any other benefits that would accompany a finding of disability. Even worse, any presumptive benefits you may have been receiving would stop.

It is preferable to appeal rather than withdraw your application and start again. While any eventual award of SSD will date back to the commencement of the disability, whether the award is through an appeal or a new application, an award of SSI can only refer to the date of the filing of the application.

If your application is turned down, ask SSA for the current form that describes the appeal process as well as the dates by which appeals must be filed. In general, appeal rights must be exercised within sixty days of any adverse decision. Follow the dates precisely or you may inadvertenly lose the right to appeal and will have to start all over again. The appeal process consists of four stages of review.

1. Reconsideration: A DDS reconsideration of disability determination is made by a different team in the DDS from the one that handled the case originally. DDS agencies seldom reverse themselves, but you should still treat this appeal seriously and request a reconsideration as soon as your application is turned down. The DDS reconsideration becomes part of the record that is passed on to the next appeal level.

2. Administrative hearing: The next level of appeal is a hearing before an administrative law judge who works in the SSA’s Office of Hearings and Appeals. Practically speaking, this is the most important level of appeal. The judge acts as a judge, jury, and in a sense, the lawyer for the SSA, since it is the judge who will ask the questions (in addition to your own lawyer, if you have one). If you have not done so before, consider submitting affidavits from professionals, friends, and neighbors about your disability. Also, consider hiring an attorney to help you. You have a right to review and copy the SSA file prior to the hearing. Consider submitting a prehearing memorandum outlining the evidence and identifying the issues for the hearing.

3. Appeals council: Makes a decision based on the record, with no oral argument. Appeals are not usually successful at this level.

4. Federal court: The judges do not revisit the question of whether you are disabled, but only question whether the SSA followed its own rules and gave you appropriate “due process,” or whether there are any constitutional issues. This venue is of little value because of the limited nature of the review.

Under the Privacy Act, you may ask to see all the evidence used to evaluate your application for disability benefits.

Tip. During the appeal process, make sure your medical records are continually updated and that any changes in your condition, including new facts, are brought to the attention of the appealing body.

Tip. If, as part of the appeal process, you are required to submit to an examination by a consulting physician, review your notes and/or medical file so you will be able to discuss all your symptoms.

Section 7. Hiring an Attorney

If you follow the suggestions contained in this book, you should not need the help of a lawyer to file for Social Security benefits. However, it is a good idea to have an expert at your GuardianOrg, your social worker, or other knowledgeable person at least review your application before submitting it.

If you don’t have an attorney by the time you have to appeal, you should consider hiring one to help with the process. Aside from reducing the stress of the situation by having an experienced representative working on your case, you will receive help in framing your case in a way that enhances your chance for success. Firms that specialize in these matters work for a percentage of the amount you receive from SSA for retroactive benefits—from the date you are determined to have been disabled to the date of the determination. The standard fee is 25 percent of the amount awarded you. A representative cannot charge a fee without first getting written approval from SSA.

If your GuardianOrg, your friends, support group, local bar association, and/or legal aid program cannot recommend an attorney, contact the National Organization of Social Security Claimants’ Representatives at 800-431-2804 for suggestions. See chapter 36, section 3, for how to choose an attorney.