New York Social Security Disability Lawyers Blog

In recent posts, we've explained some of the various legal issues that can arise in a Social Security disability benefits claim as well as an appeal of a denial of a Social Security Disability claim. However, for many applicants, there is a long, tough road to hoe before even getting to these issues.

In a recent article, the St. Augustine Record's Jennifer Edwards tells the story of Kim Paul Carter, a 54-year-old carpenter currently undergoing a second bout of cancer, which, thus far, has cost him his job and his home. The SSA denied Carter's initial application for disability benefits and he is currently awaiting an appeal hearing. Meanwhile, he undergoes radiation treatment three times a week, but can't afford the stem cell transplant that doctors say could help treat the condition.

According to Edwards, Carter is one of a growing number of Social Security disability benefits applicants coping with being (at least temporarily) shut out of the system. "The annual number of applications for the program has increased more than 28 percent over five years, going from about 2.5 million to about 3.2 million," she reports. Paralleling the jump in applications is a drop in the number of those that are actually approved. The SSA approval rate dipped from 35 percent to 33 percent from 2005 to 2010. Moreover, the number of claims pending a decision continues to grow. Applicants whose claims are initially rejected can be expected to wait almost a year or more for an appellate hearing (which, based on our experience representing thousands of applicants, is the best opportunity to prove a claim).

The process may be about to get slower. The National Council of Social Security Administration Field Operations Locals, the union that represents SSA employees, predicts that if the agency's 2012 budget remains at 2011 levels, the SSA would review 400,000 fewer disability claims, raising the agency's backlog of claims to 1.2 million and extending the time for an average claim to be reviewed and decided on to more than four months. If the budget were actually reduced, it could lead to a further slow down.

If eventually approved for benefits, Carter will be eligible for retroactive payments covering the current waiting period. For now, he's living in a trailer parked behind his foreclosed home.

A person seeking Social Security disability benefits must submit an application or claim, which can be done by telephone, mail or online. In addition to other background information, the applicant is asked to describe the impairment and any treatment of it. This is the most difficult and confusing part of the process and the point at which a Social Security disability attorney's help can be invaluable. An experienced lawyer knows what information must be included in the initial application, and an excellent lawyer - not a "claim advocate" - will not only guide his or her client through the process but file the application for the client as well. Furthermore, the SSA has implemented a number of programs aimed at fast tracking certain claims and the lawyer can assist the client in efforts to speed up the decision process. Finally, a disability lawyer can also represent the applicant before SSA and federal judges on appeal, if necessary.

Related blog posts:

Fast-Track Social Security Disability Claims to be Sped Up

Social Security Disability Hearings: What to Expect

SSA Turns to Electronic Processing of Medical Records for Social Security Disability Claims

The Social Security Administrative Law Judge who couldn't just say no is going on vacation.

West Virginia Administrative Law Judge (ALJ) David B. Daugherty, who approved every single claim for Social Security disability benefits he reviewed in the first six months of 2011 has been placed on leave while the Social Security Administration (SSA) completes an investigation into his friendly Social Security disability claim approval rating.

"The Social Security Administration placed David B. Daugherty, 75, on an indefinite leave one week after an article was published in The Wall Street Journal detailing the unusually high number of disability benefits applications and his decisions," reports the West Virginia Record.

In May, The Wall Street Journal's Damien Paletta reported that Daugherty, who reviews appeals of claims for Social Security Disability Insurance (SSDI) benefits, approved benefits in 99.7% of his decisions in Fiscal Year 2010 and in all 729 cases that he decided in the first six months of this year. The SSA is currently investigating the matter.

A person who files a Social Security Disability claim that is initially denied - roughly 65% percent of all claims are shot down by the SSA in its first ruling - has 60 days to appeal to the next level. For New York claimants, the first level of appeal is a hearing before an SSA ALJ. New Jersey and Connecticut Social Security disability claimants, however, must first request reconsideration, an often futile process - over 85% of all initial application denials are upheld - that typically takes two or three months.

Continue reading "Social Security Disability Claims Judge with Lopsided Record Goes on Leave " »

Social Security disability benefits provide vital support for people who are unable to work due to physical or mental impairment. But the road from disability to benefits is often long and winding. Submitting an application is the first step in the Social Security claims process.

The Social Security disability benefits program is federally administered by the Social Security Administration (SSA). In order to receive benefits under the program, a person must be unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or will last for at least one year. Almost 60,000 people received Social Security disability benefits in February 2011.

A person seeking benefits must submit an application or claim, which can be done by telephone, mail or online. In addition to other background information, the applicant is asked to describe the impairment and any treatment of it. This is the most difficult and confusing part of the process and the point at which a good attorney's help can be invaluable. An experienced lawyer knows what information must be included in the initial application, and an excellent lawyer will not only guide his or her client through the process but file the application for the client as well.

Most Social Security disability claims are initially processed through a network of local SSA field offices and state agencies, usually called Disability Determination Services (DDSs). The DDS typically tries to obtain evidence from the claimant's own medical sources and then often arranges for the claimant to be examined by a medical consultant. After reviewing the evidence, the DDS makes the initial disability determination. If the DDS finds that the claimant is disabled, SSA computes the benefit amount and begins paying benefits.

The average waiting time for an initial determination is four to six months. An initial determination is often made about six weeks after the claimant is examined by a medical consultant. Applicants suffering from certain serious medical conditions that require only minimal objective medical evidence in order to prove that they are disabled may apply for a "Compassionate Allowance," speeding the process to a matter of weeks.

Continue reading "Applying for Social Security Disability Benefits: The First Step" »

If your Social Security Disability claim is denied at the initial level, you have 60 days to appeal to the next level. Strangely, for a Federal program, what that next level is varies from state to state.

In New York your appeal goes straight to a hearing; in New Jersey and Connecticut the initial denial is followed by the Reconsideration level. In the 1990's Social Security instituted a "pilot program" bypassing the Reconsideration level in ten states. They have never expanded the program beyond the original ten states, but they have never changed back to the old method in those states either. So whether your appeal will take you to Reconsideration or directly to a hearing depends on where you live.

The typical New Jersey or Connecticut case spends three to four months at Reconsideration. Statistics show that relatively few cases are approved at Recon. Typically that happens when there is a new condition or the worsening of the original condition or, rarely, if important medical records that were not received previously finally get to the State Agency. It is uncommon for the State Agency to schedule new medical exams at this level.

From our experience, we feel there is little value to the Reconsideration level. We would prefer it if all cases went right to hearing, though Social Security might disagree.

Cases that take longer than the typical six months to get a ruling at the Initial Determination level usually fall into one of three categories.

The first is what Social Security cynically calls "Quality Review." Many if not all of the cases in which the State Agency responsible for the initial determination recommends a favorable outcome are reviewed by the Social Security Administration to "insure" that the state assessment is accurate. The use of quotation marks here refers to the fact that we feel Social Security is just trying to make it harder for the people at the state agency to approve a claim than deny it. So while the decision may take longer than six months in this case, at least it is usually favorable.

The second reason a case is delayed is when a claimant undergoes a surgical procedure during the initial determination period or Reconsideration level. Often a case like that will be put on hold for three months to see how well the claimant recovers. That is not unreasonable.

The final reason for a delay is the most unfortunate. It occurs when a claim is mishandled: lost, not sent to the State Agency by the local office, or not properly processed for some other reason. Unfortunately, an unrepresented claimant would have no way of determining what has happened to his or her case. Experienced disability attorneys with contacts at the local offices and State Agencies can get to the bottom of these delays and make sure that the case is properly processed.

One of the first questions every client asks is "how long will it take until I get a decision from Social Security?" Most cases follow a typical path, although there are exceptions that we will discuss as they come up at each step.

The Initial Determination typically takes from four to six months, though most are decided around the five month mark. If a case is properly documented, meaning that clear and convincing medical records are part of the initial application, sometimes that timeframe can be shortened to as little as one month.

There are also 88 clearly defined conditions, which lead to what Social Security calls "Compassionate Allowance." In those cases a medical note or report confirming the condition can lead to a favorable determination in a matter of weeks, rather than months.

A list of "Compassionate Allowance" conditions can be found here.

Although it is a Federal program, Social Security contracts with each state, and the state agency where you live makes the initial determination on all cases. Most claimants are seen by medical consultants, and we find that the initial decision usually comes about six weeks after that exam. Although this is usually what happens, sometimes the Initial Determination can take longer.

Some applicants for Social Security Disability have such serious medical conditions that their conditions require only minimal objective medical evidence in order to prove that they are disabled. Applicants whose condition falls under one of these categories may apply for a "Compassionate Allowance," which can expedite a favorable determination, speeding the process to a matter of weeks rather than months.

Following is the list of Compassionate Allowance Conditions as of March 1, 2010:

• Acute Leukemia
• Adrenal Cancer - with distant metastases or inoperable, unresectable or recurrent
• Alexander Disease (ALX) - Neonatal and Infantile
• Amyotrophic Lateral Sclerosis (ALS)
• Anaplastic Adrenal Cancer - with distant metastases or inoperable, unresectable or recurrent
• Astrocytoma - Grade III and IV
• Bladder Cancer - with distant metastases or inoperable or unresectable
• Bone Cancer - with distant metastases or inoperable or unresectable
• Breast Cancer - with distant metastases or inoperable or unresectable
• Canavan Disease (CD)
• Cerebro Oculo Facio Skeletal (COFS) Syndrome
• Chronic Myelogenous Leukemia (CML) - Blast Phase
• Creutzfeldt-Jakob Disease (CJD) - Adult
• Ependymoblastoma (Child Brain Tumor)
• Esophageal Cancer
• Farber's Disease (FD) - Infantile
• Friedreichs Ataxia (FRDA)
• Frontotemporal Dementia (FTD), Picks Disease -Type A - Adult
• Gallbladder Cancer
• Gaucher Disease (GD) - Type 2
• Glioblastoma Multiforme (Brain Tumor)
• Head and Neck Cancers - with distant metastasis or inoperable or uresectable
• Infantile Neuroaxonal Dystrophy (INAD)
• Inflammatory Breast Cancer (IBC)
• Kidney Cancer - inoperable or unresectable
• Krabbe Disease (KD) - Infantile
• Large Intestine Cancer - with distant metastasis or inoperable, unresectable or recurrent
• Lesch-Nyhan Syndrome (LNS)
• Liver Cancer
• Mantle Cell Lymphoma (MCL)
• Metachromatic Leukodystrophy (MLD) - Late Infantile
• Niemann-Pick Disease (NPD) - Type A
• Non-Small Cell Lung Cancer - with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
• Ornithine Transcarbamylase (OTC) Deficiency
• Osteogenesis Imperfecta (OI) - Type II
• Ovarian Cancer - with distant metastases or inoperable or unresectable
• Pancreatic Cancer
• Peritoneal Mesothelioma
• Pleural Mesothelioma
• Pompe Disease - Infantile
• Rett (RTT) Syndrome
• Salivary Tumors
• Sandhoff Disease
• Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
• Small Cell Lung Cancer
• Small Intestine Cancer - with distant metastases or inoperable, unresectable or recurrent
• Spinal Muscular Atrophy (SMA) - Types 0 And 1
• Stomach Cancer - with distant metastases or inoperable, unresectable or recurrent
• Thyroid Cancer
• Ureter Cancer - with distant metastases or inoperable, unresectable or recurrentAlstrom Syndrome
• Amegakaryocytic Thrombocytopenia
• Ataxia Spinocerebellar
• Ataxia Telangiectasia
• Batten Disease
• Bilateral Retinoblastoma
• Cri du Chat Syndrome
• Degos Disease
• Early-Onset Alzheimer's Disease
• Edwards Syndrome
• Fibrodysplasia Ossificans Progressiva
• Fukuyama Congenital Muscular Dystrophy
• Glutaric Acidemia Type II
• Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
• Hurler Syndrome, Type IH
• Hunter Syndrome, Type II
• Idiopathic Pulmonary Fibrosis
• Junctional Epidermolysis Bullosa, Lethal Type
• Late Infantile Neuronal Ceroid Lipofuscinoses
• Leigh's Disease
• Maple Syrup Urine Disease
• Merosin Deficient Congenital Muscular Dystrophy
• Mixed Dementia
• Mucosal Malignant Melanoma
• Neonatal Adrenoleukodystrophy
• Neuronal Ceroid Lipofuscinoses, Infantile Type
• Niemann-Pick Type C
• Patau Syndrome
• Primary Progressive Aphasia
• Progressive Multifocal Leukoencephalopathy
• Sanfilippo Syndrome
• Subacute Sclerosis Panencephalitis
• Tay Sachs Disease
• Thanatophoric Dysplasia, Type 1
• Ullrich Congenital Muscular Dystrophy
• Walker Warburg Syndrome
• Wolman Disease
• Zellweger Syndrome