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Social Security Administration 

Vocational Expert Handbook

Hearings, Appeals and Litigation Law Manual (HALLEX)

QUESTIONS THAT ARE ROUTINELY ASKED

How long would it take to complete this process?

It is a very common question, and one that is difficult to address. Every case has its own specific characteristics that can either speed up or slow down a decision. But first, let me see if I can narrow down the options. If your case is dismissed twice and you have to go to a hearing, your should expect your case to take two years to complete. In most states, the Claimant must wait several months after filing an appeal for a hearing before getting his or her case heard by an Administrative Law Judge or ALJ.

It normally takes 4 to 8 months to complete the initial claim and reconsideration after the first denial. Though, with the pandemic, efforts are taking longer to complete. Of course, it's always fantastic when we can win a case for a client only after a few months after filing his or her claim, but that isn't the norm for most Social Security disability cases.

What is the difference between Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefits?

Let's begin with what each represents:

SSDI is an acronym for Social Security Disability Insurance. SSI stands for Supplementary Security Income.

When an applicant is considered medically disabled, SSDI is granted if he or she has received the appropriate amount of job credits for his or her age and has not caused those credits to expire. Consider it this way to make it easy to understand: It's like paying into an insurance policy. A demand for benefits may be made as long as the policy is still current. If you are unable to function due to physical or mental limitations. Do not wait too long to apply.

A Claimant's eligibility to obtain benefits typically expires after 5 years. A Claimant's eligibility to apply for this type of disability usually expires after 5 years. After receiving SSDI for 2 years, the Claimant will be eligible for Medicare benefits.

SSI is similar to SSDI, but it is not the same. An individual must meet the medical criteria to be eligible for these benefits, but no job credits are required. However, to be eligible for SSI benefits, an individual must earn no more than a certain amount per month and have few non-exempt assets. Instead of having to wait a long time to apply for Medicare coverage, the Claimant will qualify for Medicaid right away.

What happens when I apply for disability compensation for Social Security?

If you applied for disability online, the local Social Security office will give you documents confirming your eligibility. This is the stage at which the procedure starts. Your case is then referred to a disability determination program, (DDS), in your home state after all of your administrative problems have been resolved.

These are state employees at Disability Determination Services (DDS) who are compensated by the Administration and are qualified in Social Security Disability law. Once your case is received, a claims examiner can review your medical history and make a decision on your claim. You will also be asked to complete a Function and Work History Report as part of the process.

These Reports often assist the claims examiner in assessing what job you may be able to perform considering your physical or mental disabilities, as well as how your everyday restrictions show how you are unable to work.

If your original application is rejected, you will have an option to file a reconsideration appeal, in which a new claims examiner will review the medical evidence. If you are denied a second time, you must file an appeal to get your case reviewed by an Administrative Law Judge (ALJ). Most cases end here, but if the judge denies your claim, you will have the opportunity to have your argument heard by the Appeals Council.

Following that, the case will either be remanded back to the judge that heard your case or denied once more. If that fails, you will take your case to a Federal District Court and then to the appropriate Court of Appeals. And, believe it or not, if the case is deemed relevant enough to be entertained by the Supreme Court of the United States, it may wind up there in the end. However, bear in mind that most cases conclude after the first hearing, and yours is likely to be one of them.

What are the fees for Social Security Disability Attorneys?

Any Social Security Disability lawyer who focuses on this area of law will take your case on contingency. This ensures that there is no charge to you until you obtain a fully favorable or partly favorable judgment for you.

Attorney fees are estimated at a one-time payment of 25% of the Claimant's back pay up to $6000. The Claimant retains the monthly disability allowance and collects 75% of his or her back pay. Some lawyers bill their clients for costs, while others do not. Since Texas law forbids hospitals and physicians from charging for medical records when an attorney or Claimant wants them for a Social Security disability claim, our office does not bill for expenses. Our office follows Social Security Law in the United States, but we seldom need to be reimbursed for the medical reports we obtain for Claimants.

Is it possible to work while earning Social Security disability benefits?

This is a tough question to address. The simple response is that a person cannot engage in substantial gainful activity, while receiving benefits. In the most basic words, this means that a non-blind individual cannot receive more than $1310 per month and cannot engage in substantial work activity. Jobs are deemed “substantial” if it necessitates a considerable amount of physical or mental effort.

However, by its own terms, in order to disqualify a Claimant from applying or continuing to obtain benefits, the job must be both significant and gainful. As a result, the basic rule is to make no more than $1310 per month in 2021.

What do I expect at my hearing?

I admire your courage if you are not worried about your hearing. Most people are understandably concerned about their hearing, and I am always impressed by their perseverance in experiencing such a challenging process.

Each judge holds his or her own hearing and performs it in his or her own manner. Some judges take full care of the hearing, leaving the Claimant's lawyer with nothing to do. Some judges request an opening and closing statement from the attorney, while others do not.

However, regardless of the judge that hears the case, there are certain fundamental events that can occur during the hearing. First, a vocational or medical specialist is present to support the judge in making his or her decision. Since there is no competing or opposing counsel trying to deny the person's claim, the judge may almost always challenge the claim directly.

The typical sequence of events is as follows:

The judge records the case and asks the Claimant's counsel to state a hypothesis of the case or make an opening statement. The judge then asks the Claimant about the medical conditions that prevent him or her from working. Then, the judge will question Claimant's counsel.

Following that, a series of hypothetical questions are posed to the medical or vocational expert. These questions are hypotheticals in reference to the Claimant. The judge will not say your name rather a hypothetical like “Say a 48-year-old woman with a heart condition and depression ….” That description is you and the hypotheticals are non-confrontational.

The judge then delegates the expert testimony to the Claimant's lawyer. The ultimate goal is for the expert to state that there are no jobs available in the national economy that the Claimant can do. If this is the finding during the hearing, it raises the likelihood of a favorable outcome.

Finally, the Claimant and his or her lawyer are dismissed once the hearing is adjourned. This process lasts less than an hour and likely 30-45 minutes. In one to four months, the Claimant will obtain a written verdict from the court.

Can the Social Security Administration find me disabled?

That's not a simple question, and one that cannot be answered simply by reading this brief response.

The Social Security Administration follows a 5-step process to decide whether or not an individual is disabled. Remember that the Administration has the authority to ascertain your inability to function for the purposes of obtaining disability benefits. People sometimes feel that only because their doctor decided that they are unable to function proves that they are disabled.

The Social Security Administration has its own definition, it's a legal definition and not a medical one, of disability:

An individual is deemed disabled if he or she is unable to participate in significant gainful activity due to any medically determinable physical or mental impairment(s) that can be expected to result in death or that has lasted or can be expected to last for continuous period  of not less than 12 months.

Consequently, if you can apply these 5 measures to your own mental or physical conditions, you could be effective in deciding whether or not you are disabled:

1. Are you still employed?

Your application would be rejected automatically if your are already employed and engaged in “substantial gainful activity,” as described by the Social Security Administration. This, like others, can get complicated, but if you make more than $1310 a month, in 2021, and aren't blind, you're doing something worthwhile.

You should proceed to Phase 2 if you are not engaging in substantial gainful work.

2. Is your disease (or a combination of conditions) severe?

Step 2 requires that the illness last for at least 12 months or be intended to last for at least 12 months, and that it interferes with a person's ability to participate in simple physical and / or mental work activities. To summarize, if the illness impacts you emotionally or physically to the point that it interferes with your ability to function, you will be able to skip Step 2 and continue to Step 3.

3. Does your condition fall into one of the categories?

If the illness is severe enough to satisfy the Social Security Administration's definition of disability, you will be determined if your impairment meets the severity criteria (Step 2) and you are not engaged in significant gainful work (Step 1). If this is not the case, proceed to Phase 4.

4. Will you do any of the jobs you've done in the last 15 years?

And if you meet the severity criteria, you are still not disabled if you can do any job you have done in the last 15 years and have worked long enough to have mastered the job. If you are unable to perform any of your previous related jobs due to a physical or mental disability, the assessment will progress to Phase 5.

5. Is there anything else you can do?

If you can perform some form of job by taking into account your age, experience, and previous related work skills, you are not disabled. If however, you are unable to perform any other type of job due to your mental or physical condition(s), and you meet the other criteria, you may have a good argument for being disabled.

Why should I employ an attorney in the first place?

Good question.

You would be frustrated if you expect a disability attorney to magically address the disability issues. If you employ an attorney right away, all he or she can do is wait in line for you until the Social Security Administration decides your case. There will be long stretches of time where nothing happens in your case, and it will appear that he or she is doing nothing.

There are, however, some advantages to consider, especially if you hire an attorney from the start of your case.

1. He or she will ensure that you do not make any errors in the application process. Any errors made during the process could damage your case immediately or later if you are required to attend a hearing.
2. Through this lengthy process, he or she will become acquainted with your case, and if your case does need to go to trial, he or she will be much more familiar with your situation than if you simply hired an attorney for your hearing.

3. When it's time to fill out your Adult Function Report, he or she will double check if you've stated your impairments accurately and precisely. Too many times Claimant's Function Reports end up hurting a Claimant's case during the hearing.

Administrative Law Judge's use a person's ability to care for their children, drive, or go to the grocery store to assess whether or not they are capable of working eight hours a day, five days a week. It is critical to emphasize that even if a person is required to perform certain daily tasks, he or she receives assistance, that doing so is painful, and so on.

4. As the claim progresses from the application to multiple appeals, as is often the case when applying for disability, an attorney-client relationship is built over a potentially long period of time.

5. Whether an individual has job credit issues, onset date issues, working while still claiming a disability, or other issues, an attorney can help prevent errors from occurring or aid in correcting them if they do.

We serve clients across the United States who need to apply for Social Security disability insurance for the first time or who have been denied at one of the different stages of the process. If you are unable to work for at least a year due to serious mental or physical illness, our office will assist you in the initial stages of applying for insurance or at your hearing before an Administrative Law Judge. In the vast majority of our cases, we represent Claimants at the outset of their disability application to ensure that they have the greatest chance of obtaining benefits.

The process of being declared disabled is lengthy and difficult. The Social Security Administration follows a strict 5-step process to decide whether or not an individual is affected by their criteria. It is important that everyone applying for disability compensation knows the rules. We have legal representation to help people understand what it takes to meet those standards and to help them achieve the best possible results.

If a client is applying for SSDI or SSI, an attorney is often present at each point of the process. This covers not only the initial application stages, but also the client's career history and function records, as well as training him or her for the hearing. Since most cases must go through a hearing stage before benefits can be awarded, we are committed to our clients at every stage of the process.

When the claim is represented from the outset, the attorney and the client form a tight bond, allowing the attorney to properly represent the client at his or her trial, explaining to the Administrative Law Judge what circumstances limit the client's ability to function.  

Are you disabled enough to qualify for Social Security Disability benefits?

To be considered disabled under Social Security's rules, you must meet certain conditions. An individual may believe he or she is impaired but will be rejected because he or she does not fit within the standard. Let's begin with the most fundamental concept of being discovered disabled. An individual must have such a serious impairment or combination of impairments that he or she has been out of work for 12 months or more, may be required to be out of work for 12 months or more, or has a disorder that causes the applicant to be terminal in order to be found disabled under Social Security disability laws.

Of course, it's not that easy now.

To begin, the claimant's disability (or combination of impairments) must “substantially” impair his or her ability to perform basic work activities. Sitting, standing, walking, kneeling, leaning, reaching, focusing for long periods of time, getting along with along with others in the workplace, and so on are examples of such behaviors.

If your impairment(s) prevent you from performing one or more of these tasks, you may be eligible for Social Security disability benefits. However, and there's always a “but,” a claimant's capacity to perform one or all of these daily tasks is dependent on his or her age, education, and whether or not he or she has acquired skills from previous work.

Let's look at some examples to help you understand.

The first example is:

A Claimant who is over 55 years old, with a high school diploma, and has worked in unskilled labor for the last fifteen years before applying for disability benefits. Despite his or her impairments, whether he or she may function at a light or sedentary stage, he or she is likely to be approved for disability benefits.

The second example:

A Claimant is over 50 years old and can still work at a light or sedentary position, and has no transferable abilities from previous jobs, he or she might be eligible for disability benefits.

The third example:

The same Claimant as in Example 2, but now the Claimant is under 50 years old with the same impairments as Example 1 and 2. Since the Claimant is under the age of 50 and can still work at a light or sedentary position despite his or her impairments, he or she would likely be denied.

As you can see from these examples, disability benefits can be granted or refused based on a person's age or past work history. There's a lot more to it than deciding whether or not a person has a disability that greatly limits his or her ability to perform simple job tasks.

How to Apply for Social Security Disability as a Worn-Out Worker

With a long history of hard, arduous work, an applicant can qualify for Social Security disability as a worn-out worker. The following are some examples: (1) a person with a limited education had a long history of arduous unskilled manual labor, and (2) a person who is advanced in age, has a limited education, and has no work experience.

Let's focus on the first one for the time being:

This type of job and educational background is particularly relevant for those under the age of 55 who are unlikely to qualify for disability insurance because it is assumed that they will at least perform sedentary duties, which would exclude eligibility disability benefits.

Marginal education: This is normally reserved for Claimant's with less than or a little more than a 6^th grade education. The grade level is not the definitive in the decision of whether a person is eligible. The Claimant must prove that his or her logic, arithmetic, or language abilities are limited. As a result, a Claimant's grade level is just beginning of deciding whether or not they have a marginal education.

Long job history in arduous unskilled labor: A Claimant's past related work is determined by looking back 35 years. This Claimant must have worked at a job that needed heavy lifting on a regular basis and usually 100 pounds or more. Or a job that required less lifting capacity but required the Claimant to repeat physical tasks at a high rate or fast paced. This can also include a person who has only lifted 50-75 but at a fast pace during the day.

Long hours of arduous unskilled labor: A Claimant's past related work is determined by looking back 35 years. He or she must have worked in a position that involved heavy lifting on a regular basis or a position that required less lifting capacity but required the applicant to repeat physical tasks at a high rate. For example, consider a claimant who only lifted 50-75 lbs. a day, but did so on a repeated or routine way and at a high rate during the day.

Additionally, the job would have to be unskilled. Past work that qualified as semi-skilled would usually rule out the worn-out worker rule. If those abilities did not improve in an advanced aged person's capacity to perform at a light exertion stage, these types of jobs would be seriously considered.

The rule is actually very easy for those reading this. It's possible that you'll be eligible for Social Security disability payments if you've served for at least 35 years in extremely demanding and unskilled jobs and have a very limited education.

Keeping a Daily Journal Can Assist You in Winning Your Social Security Disability Case

Many individuals who are trying to win their case for Social Security payments face the dilemma of not having adequate medical evidence to support their arguments. One reason is that many people have been out of work for almost 2 years or more by the time their hearing date arrives, and they lack the financial resources to pay for individualized medical treatment from a private practitioner.

Many people have been reduced to only being able to visit a county emergency department if their symptoms worsen. As a result, it is difficult for an attorney to pick out one doctor who would be able to provide more medical evidence to support this client's case. Simply put, the doctor  would not have known (or even remembered) the patient well enough to be of assistance.

To resolve this question, the Claimant may want to begin keeping a daily record of how their conditions affect their daily activities. I always mail a new client a little journal for this purpose. You see, if you can't fulfill the medical listing for your condition, you'll have to demonstrate how it affects your ability to function. This is often demonstrated by how long you can walk, stand, or even carry something heavy, or how well your fingers can manipulate small things like a pen or typing on a keyboard.

A daily journal is one of the tools you can use to achieve this. It is, however, important to demonstrate how your condition affects your everyday activities. Simply stating that you were exhausted and spent the whole day in bed is not enough.

What you should write is if getting out of bed was painful, what part of your body hurt, and that you were unable to make breakfast that morning because your back hurt so badly that you had to sit down after just 10 minutes.

Or maybe you attempted to carry a 20-pound bag of pet food or and 8-pound gallon of milk but were unable to do so due to the pressure on your hands and back. These are the kinds of things you should be writing down every day. These examples are your “residual functional ability.” This residual functional ability is what Social Security considers when making a decision on your disability. The same with mental health concerns.

Your mental health residual ability is also measured by Social Security. As a result you should be keeping track of how your mental illness or illnesses prevent you from going outside, driving a car, caring for a pet or loved one, coping with stress, managing money and so on. As a result, your daily diary should be telling a story from the time you woke to the time you went to bed.

As well, many people have a tough time sleeping because their disability affects them and they worry about the financial side of it. If this is the case, you can keep track of the days when you can't sleep, which causes you not to be able to get up in the morning and go to work even if you had to.

I hope this information has been useful. If you have solid medical evidence to back up your point, it will only strengthen your argument.

Do you know why your disability claim was turned down?

Do you know whether you have a chance at being awarded disability if you file an appeal or go in front of a judge to have your case reviewed?

If you don't know the answer to any of these questions, this list might be of some assistance:

1. Your claim was dismissed due to a lack of medical evidence to support your claims.

This is number one on the list because it is the most popular explanation for a case's rejection. Did you note that I didn't say “records”? Instead, I said “evidence”. Filing for Social Security disability benefits is a legal process not a medical one. In your evidence on record you are attesting to the truth of your claim aren't you?

What does a successful claim have to support it? Consistency in the medical evidence and in the Claimant's testimony. Solid facts in support of one another. To put it straight forward, you need credible medical proof to back up your argument. If you need help getting medical evidence, give me a call.

2. You're too young.

Yes, you're too young. You're 24 years old and claim you're disabled. Social Security assumes you can still work and function in the national economy in some capacity. There must be solid medical evidence that your condition is severe and that you are unable to do any job in the national economy if you are under the age of 50. That being said, Social Security is very good at locating unskilled sedentary work that you are capable of doing.

3. You're over 50, but you've held prior professional positions.

Often this is the death nail for these claimants. If an individual has done skilled work in the past, it is likely that they will be able to pass those skills to other types of work. These skills, particularly if you've worked in a managerial setting are universal and easily transferable. So, if you're over 50 and know you have good medical evidence but are still being denied, this may be the cause.

4. You claim that you have depression, ADHD or anxiety.

All of these claims are going to require that you go before a judge. These are very common conditions and the Administration has seen them all too often. The Administration has become wary of these claims. Bipolar disorder is another claim that has been used quite a lot. Are you a person who just can't get along with people, and if you took medication you would be able to work? Not to sound harsh, but it's a counter argument. Or, is the condition so severe that it is debilitating. Bipolar has been known to be a disabling condition.

5. You just haven't worked enough in the past to apply for SSDI.

There are two ways this can affect you. First, you're case is dismissed right off the bat because you're deficient in job credits. You will want to apply for SSI because this form of claim does not require work credit. However, in SSI your family income may be to high to be eligible for it. This scenario fits well with a lot of homemakers who have taken care of the family while their husband worked. They haven't worked in a long time and their husbands are consistently breadwinners. As a consequence, this claimant will be denied benefits.

Obtaining Social Security disability benefits

For certain individuals, disability is difficult, though not impossible. Certain symptoms and some groups of people can find it more difficult to be eligible for disability than others.

For starters:

1. Mental disorders without additional physical impairments.

This is where the vast majority of claimants fail in their claim. It is more difficult to pursue a disability claim when there is only mental symptoms that prevent him or her from functioning. The reasoning is that you can't see anxiety, depression or ADHD on an MRI, an x-ray or ultrasound. The doctor diagnoses only what the patient can tell him. Consequently, the reliability of and consistency of the evidence medically determines whether you're eligible for disability.

On the other hand, if a Claimant does have physical symptoms and mental condition(s) then these should be identified in the medical record and thoroughly diagnosed by treatments. These should be shown in the medical record that the Claimant cannot work in any job due to these conditions.

Certain types of medical conditions are difficult to be eligible for disability. These include connective tissue disorders. Lupus, for example, may be difficult not only to identify in the Autoimmune testing scenarios, but proving it is severe enough to the Administration is a whole different story. Epilepsy is another condition just by far one of the most difficult to win. The consensus is that a Claimant can still work even though they are subject to chronic seizures. In cases such as this, the symptom diary is going to be your best friend in documenting how many seizures are suffered and how often.

I can't stress enough how important it is to continue routine care, doctor visits and maintain your symptom diary.

So that was the easy part.

Now I address the hard part:

 2. Some classes of individuals have a rougher go of being eligible for disability than others.

For example, someone who is 50 years old, even with impairments, is still considered by the Administration able to gain some type of work in the national economy. Specifically, sit-down, unskilled types of work are the most common. Someone in this category must overcome the presumption that he or she cannot do any type of work in the national economy. Most often this is too difficult a burden to prove.

Next, a person who worked in a sit-down type of job during the previous fifteen years prior to filing a disability claim. This individual may not have been able to return to any job, at a certain level, within the last 15 years of filing for disability. Remember it is often the case where the assumption is that a person is capable of performing a sedentary job. If the same person has been working sedentary for the past 15 years, then it his highly likely the job skills can be transferred to another sit-down type of job.

Finally, someone who has previously been employed in a role that required management skills. This becomes important for those Claimants who are over the age of 50. Management skills are readily transferable to other fields of work. Even if the Claimant's condition is serious or there are a combination of disability claims, Social Security believes the individual can adapt to other forms of work environments and will deny the claim. If this is you, you will most likely appear before a judge and justify why you are limited, your condition is severe and why you are not able to work.