According to the National Organization of Social Security Claimant’s Representatives, the processing time of cases once they reach the Request for Hearing stage of appeal are as follows for our local hearing offices as of February 2011:

Memphis     427 Days

Nashville     399 Days

Tupelo         416 Days

Paducha      257 Days

Today, the Social Security Deputy Commissioner for Budget, Finance and Management issued a letter to the Office of Management and Budget outlining a contingency plan for continued activities during the potential Federal Government shutdown.  As I said earlier, it looks as though those who are receiving benefits will not experience an interruption. Claims processing will continue with limited services. Local field offices will continue to take new applications for disability benefits. Requests for appeals will continued to be processed.  Hearings that are scheduled will be held, but there will be no new scheduling or processing of files waiting for a hearing date. Though, the ALJs will continue to decide cases, decision writing will will be put on hold. The Office of Disability Adjudication and Review will suffer significant furloughs of staff.

Just as I expected, though you will be able to file and appeal new claims, you can expect a delay in decisions.

As of today, a government shutdown looks more and more imminent. Political leaders have 3 days to reach a budget deal, but the rhetoric doesn’t sound promising.

It is unlikely that a shut down will affect those who are already receiving Social Security benefits.  However, if you have a claim pending, it is entirely possible that the processing of your claim is going to be delayed with the shutdown.  I guess we can look forward to what is already an inexcusable delay in processing to get even longer.

Well, that depends on how much you have paid into the Social Security system through withholding.  Your benefits amount is what is known as your primary insurance amount or PIA.

PIA is the monthly amount payable if you are a retired worker who begins receiving benefits at full retirement age or if you’re disabled and have never received a retirement benefit reduced for age.

Social Security calculates your PIA based on your taxable earnings averaged over the number of years you worked.  They do this using a complex formula system that is beyond the scope of this post.  But what is important to remember is that the more earnings you have reported the higher your benefit amount will be.

We have talked about how SSA evaluates your claim, but today I wanted to give you a little information on what the typical claimant may expect when he or she files a claim for benefits.

The claim is initiated by filing an application for disability benefits.  This can be done online or with the assistance of a Social Security claims representative over the telephone or at a local Social Security office.

Once you have filed the application, Social Security will send the claim to what is known as Disability Determination Services or DDS where the claim is processed.  DDS will attempt to gather your medical records, possibly send you to some doctors for evaluation, ask you to fill out several questionnaires, and review the physical and skill requirements of your past work.  After a couple to several months, they will make a determination as to whether you meet the requirements for disability benefits.  For most claimants, this results in a denial.

You then have 60 days to file your first appeal, which is known as a Request for Reconsideration.  At this stage, DDS again reviews the claim.  It is no surprise that they rarely change their position on the first determination, and most people are once again denied.

You must then file your second appeal within 60 days.  This is a Request for a Hearing before an Administrative Law Judge.  At this point, the claim is removed from DDS processing and a new determination is made by a Federal Administrative Law Judge or ALJ.  The ALJ is not bound by any prior determinations that DDS has made on your current claim.  He or she will conduct a hearing using your medical records as evidence, take testimony from you, often take testimony from a Vocational Expert, and sometimes take testimony from a Medical Expert.  He or she will then issue a multi-page written decision as to whether you meet the requirements for disability.

With the representation of a competent attorney, many claimants who were denied at the initial and reconsideration levels are awarded benefits at the ALJ level.  Unfortunately, it can take a year or longer to get a hearing date.  But if you are awarded benefits, you usually are entitled at this point to receive back-benefits. These are typically paid to you in a lump sum.

If you are again denied at the ALJ level, you can file a third administrative level appeal to the Appeals Council.  The Appeals Council will review the ALJ decision to determine whether the ALJ’s decision is supported by substantial evidence, whether the ALJ made an error of law, whether the ALJ abused his discretion, or whether new and material evidence warrants an new evaluation of the claim.  Claimant’s are allowed to make written arguments in support of this appeal, and again it is advisable to have a competent attorney assist you.  Often the Appeals Council will remand the matter to the ALJ for a new hearing with specific instructions on how to treat certain evidence or on procedures to be used in the new hearing.

If you are still not successful at the Appeals Council, you can file a civil action in Federal Court to seek review of the Social Security Administration’s determination.  We will save this discussion for another day.

The vast majority of cases that I represent claimants on are resolved favorably at the Administrative Law Judge level.  However, as I have indicated, claimant’s need to be prepared for what is typically a long wait for a resolution.

This article from the The Hill reports:

House Budget Committee Chairman Paul Ryan (R-Wis.) will largely give Social Security a pass in his highly anticipated budget while proposing a significant overhaul of Medicare and Medicaid, according to sources briefed on the plan. 

The 2012 budget resolution, which committee Republicans are still finalizing, is scheduled to be unveiled on Tuesday. It will not back specific benefit cuts to Social Security or suggest raising the retirement age, sources said.

Instead, it will lay out the problems with the program and suggest authorizing committees tackle the specifics. It also will propose “trigger” thresholds for Social Security that, once reached, would ask the president to propose a way to fix the program.

Most of the people who contact my office are seeking representation for a Social Security Disability claim that has been denied.  But, we also get calls with questions about how to start the claims process. 

The first step to receiving disability benefits is to file an application for benefits.  Social Security offers a couple of options for filing. You can call or visit your local Social Security office and they will set an appointment for you to file an initial claim.  At the appointment, a claims representative will interview you and take all of the necessary information to initiate your claim. If you would prefer not to wait for an appointment, you can file an application for benefits any time of day online at www.ssa.gov.

When you file your application, one of the most important things you should do is to give Social Security the most accurate contact information about your medical providers as possible.  Your medical evidence is critical to proving disability.  Social Security will make an attempt to collect your medical records for you, but if they have the incorrect contact information for your doctors and do not get a response to their requests for records, they will make a decision on your case without the records.  This could mean that they issue a denial on your claim without a critical piece of evidence that would otherwise prove your disability.

When processing your application, Social Security may also schedule appointments for you to be evaluated by a physician or psychologist.  It is very important for you to go to these appointments, as your claim will be denied if you do not.  They will also send you various questionnaires to complete regarding your work history, pain, fatigue, and daily activities.  Complete these as soon as possible. If you do not, it will delay processing your claim.

You should expect to wait at least three months and often times longer for Social Security to make a decision on your claim.  If you are denied, as many disabled people are on their first application, it is important for you to file an appeal as soon as possible.  If you wait more than 60 days to file an appeal, you may have to start the application process over.  This is the time where it is probably a good idea to start thinking about finding a lawyer to represent you.

In Strauss v. Commissioner of Social Security Administration, the 9th Circuit upheld the District Court’s finding that the ALJ failed to follow both Appeals Council and District Court remand orders.  However, the Court noted that the ALJ’s failure to follow the remand orders did not warrant an automatic award of benefits by the District Court.  Instead, the District Court must make its own independent finding of fact as to whether the claimant met the disability requirements.

Although this has worked out to be Part 6 of my discussion, today we are talking about Step 5 of the Social Security Disability Evaluation Process.

If an adjudicator has determined that the evidence supports a finding that you can no longer perform your past work, his or her analysis must move on to Step 5.  There, the final determination is whether you can make an adjustment to other work that exists in significant numbers in the national economy.  The adjudicator may employ a couple of tools to assist in making this determination.  One of these is what is known in the Social Security regulations as the Medical-Vocational Guidelines.

The Medical-Vocational Guidelines, or “grids,” as they are popularly called, is a set of rules that take into account a claimant’s age, education, prior work-skill experience, and the residual functional capacity that the adjudicator has assessed to make a determination as to whether you can make an adjustment to other work.  On very important factor with the grids is that as an individual ages, he or she can generally have a higher RFC and still be found disabled.  Also, the grids will only direct the adjudicator to make a finding of disabled for individuals over the age of 50.

If a claimant is under the age of 50 and has a RFC of sedentary or above, he can not be found disabled on the basis of a grid Rule for a physical disability.  If he has a RFC of below sedentary, the adjudicator must look to the Social Security Rulings, specifically SSR 96-8p and SSR 96-9p to determine whether that individual can make an adjustment to other work.  The adjudicator may also need the input of a vocational specialist to define what effect the claimant’s limitations would have on the ability to perform work activities that are normally contained within the sedentary work range.

Only when a grid Rule tells the adjudicator that a finding of disabled is appropriate or an analysis of the Social Security Rulings tells him that the claimant can not perform work activites on a regular and continuing basis or at the sedentary level, can the adjudicator issu a decision of disabled.

National Public Radio aired a piece this morning on the continued backlog and the effects that the economy is having on it. You can hear the piece and read the written version here.