The Social Security Benefits Hearing: A Client's Legal Guide Read online

Security benefits claims, the question is whether you can work full-time despite your medical problems.  All medical conditions are considered – work-related or not.  Social Security follows an “all-or-nothing” approach to disability.  With Social Security, you are either disabled or not.  Unlike workers’ compensation, Social Security does not assign percentages of disability.  Social Security does, however, factor in your workers’ compensation injuries when determining your overall functioning. 

   

  What if I already receive disability from the VA?

  Although evidence of approval by the Veterans Administration for disability is persuasive, it generally is not legally controlling. 

   

  Service-connected and non-service connected VA disability benefits are different.  If you receive service-connected VA benefits, you can generally receive both this and Social Security Disability benefits without any issues.  If you receive non-service connected VA benefits, you may lose them if approved for Social Security benefits. 

   

  Important note:  If your VA benefits are non-service connected, you should find out whether possible Social Security benefits will offer you a higher payment.  If they will, you generally should proceed.  If they won’t, you may wish to withdraw your Social Security claim from consideration under certain circumstances.  If you have a question, talk to your attorney about this issue.

   

  What is the most important legal concept I should know before my hearing?

  Your “Date Last Insured”.  The two kinds of Social Security benefits, Disability Insurance and Supplemental Security Income, have the same medical standards, but are different programs.  Disability Insurance Benefits are based on your work history.  If you worked enough for these benefits, you must prove disability within (roughly) 5 years after your work ended.  This is your “Date Last Insured”, and it is a crucial element of Disability Insurance Benefits claims only.  By contrast, SSI claims have no “Date Last Insured.” 

  The “DLI” in Disability Insurance Benefits claims varies case-by-case.  It is the last day of either March, June, September, or December of any particular year.  As of the hearing day, your “DLI” is either in the past or the future.  If it is in the past, your attorney will likely argue that you were disabled before your DLI whenever your medical evidence supports it.

   

  Does age matter?

  Yes.  As a general rule, you may be disabled if you are at least 50 and you:

  (1) Can only physically perform sit-down (sedentary) work, and

  (2) Cannot perform the kind of work you did in the past 15 years.

  At age 55, the legal standards are easier.  

   

  Important note:  The judge or your attorney may request that you change (“amend”) your start date of disability (“alleged onset of disability”) to match later medical evidence if you are near age 50 or older.  The framework for these age-related decisions is called the “medical-vocational guidelines”. 

  Can children under 18 receive Social Security benefits?

  Yes.  Assuming household income is below certain standards, children can receive Supplemental Security Income if found disabled.

   

  How are children under 18 evaluated for disability at a hearing?

  Children are evaluated based on their age-appropriate ability to:

  (1)           Learn,

  (2)           Follow through with tasks,

  (3)           Interact with others,

  (4)           Get around physically,

  (5)           Care for themselves, and

  (6)           Function despite overall health issues.

   

  These 6 categories above are called “Domains”.  Two of these domains with a “marked” level of severity can allow benefits.  Child listings also may apply. 

   

  Important note:  Our attorneys plan to submit all available school records to judges in child cases, particularly Individualized Education Programs (“IEP’s”).  These records reflect a child’s functioning.  Forwarding copies IEP’s to us as soon as you get them helps your attorney track changes in your child’s claim. 

   

  Practical Considerations for Hearings

   

  What must my judge ask me at my Social Security hearing?      

  Your judge at your Social Security benefits hearing generally must inquire about the following 5 legal steps:

   

  Step 1.  Are you currently working?  When were you last working?  Working, in Social Security’s view, is defined by monthly gross earned income.  The judge determines when you last worked under Social Security’s rules.  The rules presume you were last working “substantial gainful activity”  when you earned more than a set amount per month (such as $1,000 gross per month for 2010) for three months in a row or more.  This increases annually.

   

  Important note:  Judges can only approve you for benefits if you have at least 1 continuous year when you haven’t worked and earned above the annual “substantial gainful activity” amount for 3 or more months in a row.  Otherwise, judges generally cannot consider the medical question of disability – regardless of your reason for working.  If you are back to work after more than 1 year of disability, you may be eligible for a “closed period”.  Your attorney can guide you about these issues.  See SSA.gov for more information about “SGA”.

   

  Step 2.  What’s medically wrong?  What affects your ability to work?  Are your medical problems “severe”?  Your combined medical problems must interfere with basic work-related activities for your judge to consider them.

   

  Step 3.  Are any of your medical problems defined as “disabling” by Social Security?  These defined disabilities, known as “Listings”, are disabilities so severe that they can automatically mean you are disabled.  The judge at a hearing will decide if these “Listings” apply.  If not, the judge will go to the next step of the evaluation process. 

  Important note:  Details about these physical and mental “listings” can be found at SSA.gov.

   

  Step 4.  Can you do the work you did before?  The judge must determine how all your medical problems may interfere with your ability to do the kind of work you did in the last 15 years.    

   

  Step 5.  Can you do any other type of work you never did before?  If you cannot do previous work, Social Security then considers whether you could do any other (usually unskilled) types of work that exists.  The judge will consider your age, education, past work experience, and skills that you gained in your past (“transferable skills”).  The judge will usually ask a Vocational Expert at the hearing about job demands of occupations as already defined by the Department of Labor (in what’s called the “Dictionary of Occupational Titles”).  Your attorney will usually raise all your relevant limitations that he or she believes may establish that you cannot work full-time.  If at this step you cannot do any other kind of work full-time, your claim may be approved – barring any procedural issues. 

   

  What do I do after my hearing?

  After the hearing, your attorney will submit any records or legal arguments the judge requested at the hearing.  The judge’s hearing decision will arrive by letter to you and your attorney after the hearing.  Depending on your area of the country, you will generally get your hearing decision between 2 to 4 months after your hearing.  There is no deadline for these decisions.  

   

  How will I know whether I won or lost my hearing?

  Your written hearing decision from the judge states that it is either:

  (1) Fully favorable (a win),

  (2) Partially favorable (partial win), or

  (3) Unfavorable (a loss). 

   

 
Hearing decisions also include language about appeal rights.  If you withdrew your hearing request or otherwise did not pursue your hearing, you may receive a “Dismissal”.  Speak with your attorney about your options for appeal if necessary. 

   

  Important note:  Pay special attention to all appeal deadlines.  They are generally 60 days from denial dates.  Your attorney’s office should get copies of all denials when representing you, but this occasionally does not happen.  If you receive a denial and your attorney’s office doesn’t contact you soon about your next step, call the office.

   

  Could I have a supplemental hearing?

  Yes, but this is relatively rare.  There are “follow-up” hearings if a previous hearing was postponed or if there are additional, special issues to address.

   

  What is the full Social Security benefits appeal process?

  There are various stages to a Social Security benefits claim.  Here is a summary in order:

  (1) Application.  The first step is for you to apply for benefits.  Benefits applications are taken by Social Security as long as you are not working under Social Security’s regulations.

   

  (2) Reconsideration.  This is the first appeal of an application denial.  (Some regions of the country do not have this step.) 

   

  (3) Hearing.  This is the meeting with the Social Security Administrative Law Judge to ask you questions and evaluate your medical records.

   

  (4) Appeals Council.  This is an appeal of an unfavorable hearing decision.  It is a written appeal only.  You request the Appeals Council to review any errors in how the judge reviewed the evidence in the hearing decision.  The Appeals Council may reverse, remand, or refuse to review