Social Security Disability Lawyer Florida Filing An Appeal For Claiming Compensation

If you are an American or documented worker who has worked in this country for at least 5 of the last 10 years, the deductions made for your Social Security taxes have been placed into a fund for you to be paid to you as a monthly income should you become disabled according to the Social Security Administration Guidelines.

Who is eligible for Social Security Disability (SSD)?

If you are under the age of 65 and are disabled and have sufficient earning credits as determined by the Social Security Administration (SSA) you are entitled to Social Security Disability Income (SSDI) benefits. If you do not have enough credits to qualify for SSDI you may still qualify for Supplemental Security Income (SSI) benefits. The amount of your SSI payments will depend on the household income and assets.

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How much am I entitled to?

Amounts vary but you may be eligible to receive between $650.00 per month to $2,000.00 per month from the Social Security Administration and perhaps more depending on what you have paid into the system and the number of legal dependents living in your home. Social Security Administration states that as of December, 2002, the average monthly benefit for disabled workers in Florida is $838.00 and $246.00 for dependents of disabled workers.

Am I eligible for Medicare or Medicaid?

If you are accepted as disabled by the Social Security Administration (SSA) you will be eligible for Medicare. If you are disabled and you are under the age of 65, your medical bills are covered by the state Medicaid program for the first two years after you become disabled. During this time you may select coverage under an approved Medicaid HMO to reduce co-pays or out-of-pocket expenses. Your minor children and dependents may also be entitled to Medicaid coverage after you are determined to be disabled.

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Do I need appropriate medical care while my application is pending?

No one needs good medical care more than the disabled. Moreover, medical treatment records from your treating physicians provide the most important evidence of disability in a social security case. Obtaining medical reports and sending your doctor the proper forms and questionnaires concerning your care may be something best left for an experienced lawyer to do.

How can I tell if I am disabled?

As workers age, it becomes easier to be found disabled. If you are over 45 and you cannot do any job you have done in the past 15 years and have a severe mental or physical impairment that keeps you from doing all but the easiest jobs, you should apply for Social Security Disability (SSDI) and Supplemental Security Income (SSI). Younger persons and children are also eligible for benefits. The rules about social security disability are complex, however. The one sure thing that will keep you from getting disability benefits is not applying for benefits or not appealing a denial of benefits.

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What if the SSA discourages me from applying or appealing?

Of the people who apply for SSD, over 50% are turned down (from SSA stats). Fewer than 50% of those who are turned down appeal. Of those who appeal, over generally 50% are accepted as disabled. You should not be discouraged by an SSA representative from filing. You should not necessarily believe them when they tell you that you are not disabled!

What if I get turned down?

If you really cannot work in a full time or regular scheduled part time capacity due to injury or illness that has prevented you from working or will keep you from working for 12 months or more, apply for Social Security Disability (SSD) and Supplemental Security Income Benefits. If you are turned down you will have 60 days to file your appeal. More than half of the people whose applications are denied fail to appeal. Keep appealing denials at least through the hearing before an Administrative Law Judge. If you fail to file your appeal, you may lose valuable rights and your entitlement to SSD/SSDI benefits. Remember, the law does not help those who sit on their rights. According to the Social Security Administration, the biggest mistake people make when trying to get disability benefits is failing to appeal or waiting too long (more than 60 days) to file their “Request for Reconsideration” and/or “Request for Hearing ”.

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Should I hire an attorney to handle my Social Security Disability claim?

As a rule, a person does not need a lawyer to help to file an application. After the application is filed, however, a lawyer’s help may make the difference between winning and losing even at the initial application stage. The SSA allows non-attorneys to represent claimants. These non-attorneys are not regulated or subject to Professional and Disciplinary Standards as Licensed Attorneys are. These non-attorneys may not even have a high school diploma and can charge the same fees as a licensed attorney and do not carry insurance to compensate their clients, should they fail to represent you properly. Moreover, these representatives and their firms cannot represent you after the Appeals Council stage. Only a properly licensed attorney can handle your case from the initial filing through hearing and appeal into Federal District Court and Circuit Courts of Appeal and into the United States Supreme Court if necessary.

How much can my representative charge me?

Attorneys fees are limited to 25% of the award of your past due benefits. That is one-fourth of those benefits that build up by the time you are found disabled and benefits are paid. Fees are also capped administratively with the Social Security Administration so that the cap can be even less that 25% of past due benefits in excess of $25,000.00. Under no circumstances do fees come out of current monthly benefits.

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When should I contact an attorney?

As a general rule it is better to contact an attorney earlier rather that later. A licensed attorney has had to excel academically in 4 years of college, pass his courses during his or her pursuit of a Doctoral degree during three years of Law School and to pass a 2 to 3 day long examination for the State Bar and pass an in depth background check to be sworn in to represent you in this area. Additionally a licensed attorney is ethically bound to expeditiously and zealously prosecute your claim. By the rules that control licensed attorneys, the earlier you get your disability benefits, the lower the attorneys fees will be on those past benefits. Non-lawyers are not licensed or required to expeditiously and zealously represent you or to expedite your claim. The SSA now applies its complex processes, making the help of an experienced lawyer even more important.

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What about costs?

In addition to the fee, your representative may charge you for the expenses of gathering medical records, obtaining medical opinion letters, etc. Costs rarely run over $500.00, and if we are unsuccessful in obtaining your disability benefits for you, you will not owe us for either costs or fees for the time we spend on your behalf.

How do I apply for SSD or SSI benefits?

You can telephone the SSA at 1-800-772-1213 and select the option of either having your application taken over the telephone or by going to your local social security office to apply for benefits. The 800 number is open between 7:00 a.m. to 7:00 p.m. The teleservice is most busy on Mondays and Tuesdays and between 10:00 a.m. and 3:00 p.m. daily.

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Do you have any special tips in dealing with the SSA?

Yes. Once you call SSA and actually talk to a claims representative, always ask for his or her telephone number. They are unlisted and you cannot get them from the phone company. Do not lose the number, save the number so you can re-contact your claim representative in 3 or 4 days for a follow-up.

The SSA is a gigantic bureaucracy. Make sure to write down the names, dates and location of everyone you talk to at SSA and if you complete forms always keep copies and if at an SSA office, ask to be provided with stamped and dated copies of the records you submit. Organize your records in a file and always bring your own records to the SSA office and ask for a supervisor if you have a problem.

Finally, dealing with the SSA can be frustrating and disheartening. Do not let yourself despair. Seek help if you need it and never, never, never give up.

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What happens if I try to return to work?

We always recommend that our clients not live their lives for a lawsuit or a Social Security Disability claim. If you can return to work and do and subsequently fail, the Social Security Administration may deem that an unsuccessful return to work, if the monies you earn are not significant or your return to work lasts generally less than six months. If you return to work and succeed, you may have your claim changed from an open ended period of disability to a closed ended period of disability, as long as your disability made you unable to work for twelve months or more. If your return to work is successful, please let us know in writing and as to whether you want to continue on with either an open ended or closed ended period of disability.

What if I have investment income, (stocks, bonds, rental income)?

That does not generally constitute substantial gainful activity, unless you are substantially active in producing that income. This gets a bit difficult with dividends from a small business or corporation and with rental income, as these often involve some gainful activity to produce the income other than just receiving and depositing a check or moving monies from place to place on your computer. Of course, work and investment income will affect directly your SSI (Supplemental Security Income) claims as there is a need based financial offset involved.

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What earning guidelines are used during a trial work period?

Trial work period (TWP)

$ 620.00/mo (2006)

$ 590.00/mo (2005)

What are the income limits for receiving SSI?

SSI

* Individual

$ 603/mo. (2006)

$ 579/mo. (2005)

* Couple

$ 904/mo. (2006)

$ 869/mo. (2005)

Substantial gainful activity thresholds

* Non-blind

$ 860/mo. (2006)

$ 830/mo. (2005)

Substantial gainful activity thresholds

* Blind

$1,450/mo. (2006)

$1,380/mo. (2005)

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What is the role of the vocational expert at my social security disability hearing?

While medical factors alone may justify a finding that the claimant is or is not disabled, it is necessary in some cases to consider vocational factors in order to determine whether or not the claimant is able to engage in any substantial gainful activity. A vocational expert may be called by the Social Security Administration to testify about your employability. Two basis questions will be presented at your hearing as follows:

The first question pertains to the kind of work, if any, the claimant can do in light of prior work activity and residual functional capacity considering age, education, training and work experience, as well as physical and mental restrictions. The expert's testimony will be predicated on various assumptions, posed at the hearing, with respect to the claimant's residual functional capacity. The expert will not be expected to testify as to whether or not the claimant is under a disability, since he does not have the responsibility for deciding this ultimate legal issue. The expert will not express any opinion regarding the impairments involved and their effects on residual functional capacity, since these are medical matters. The expert will be requested to furnish a rationale and complete explanation for his or her opinions. In forming the expert's judgment as to whether or not the claimant could transfer vocational skills to any other type or work, the expert will be requested to consider only work which the claimant could perform after a normal period of training, usually given to new employees, rather than after extended vocational rehabilitation.

The second question is whether any work a claimant could do exists in the "national economy"; i.e., whether it exists in significant numbers either in the region where the claimant lives or in several other regions of the country. The expert should be prepared to testify from personal knowledge gained from vocational surveys of businesses and industries (whether such surveys were made by the vocational expert or by the other vocational experts) and from other current vocational resource materials.

Questions may also be asked of the expert by the claimant or representative who will be entitled to cross-examine the vocational expert.

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Can I get SSI benefits for my minor child?

SSI LAW APPLICABLE TO DISABLED MINORS

Under the authority of the Social Security Act, the Social Security Administration has established a three-step sequential evaluation process to determine whether an individual under the age of 18 is disabled (20 CFR 416.924(a)).

At step one, the Administrative Law Judge (“ALJ”) must determine whether the claimant is engaging in substantial gainful activity. Substantial gainful activity is defined as work activity if he is doing significant physical or mental activities for pay or profit (20 CFR 416.972). Generally, if an individual has earnings from employment or self-employment above a specific level set out in the regulations, it is presumed that he has demonstrated the ability to engage in substantial gainful activity (20 CFR 416.974 and 416.975). If the claimant is performing substantial gainful work, he is not disabled regardless of his medical condition(s) (20 CFR 416.924(b)). If the claimant is not engaging in substantial gainful activity, the analysis proceeds to the second step.

At step two, the ALJ must determine whether the claimant has a medically determinable “severe” impairment or a combination of impairments that is “severe”. For an individual who has not attained age 18, a medically determinable impairment or combination of impairments is not severe if it is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations. If the claimant does not have a medically determinable severe impairment(s), he is not disabled (20 CFR 416.924(c). If the claimant has a severe impairment(s), the analysis proceeds to the third step.

At step three, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or medically equals the criteria of a listing, or that functionally equals the listings. In making this determination, the ALJ must consider the combined effect of all medically determinable impairments, even those that are not severe (20 CPR 416.923, 416,924a(b)(4), and 416.926a(a) and (c)). If the claimant has an impairment or combination of impairments that meets, medically equals or functionally equals the listings, and it has lasted or is expected to last for a continuous period of at least 12 months, he is presumed to be disabled. If not, the claimant is not disabled (20 CFR 416.924(d)).

In determining whether an impairment or combination of impairments functionally equals the listings, the ALJ must assess the claimant’s functioning in terms of six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. In making this assessment, the ALJ must compare now appropriately, effectively and independently the claimant performs activities compared to the performance of other children of the same age who do not have impairments. To functionally equal the listings, claimant’s impairment or combination of impairments must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain (20 CFR 416.926a(d)).

In assessing whether the claimant has “marked” or “extreme” limitations, the ALJ must consider the functional limitations from all medically determinable impairments, including any impairments that are not severe (20 CFR 416.926a(a)). The ALJ must consider the interactive and cumulative effects of the claimant’s impairment or multiple impairments in any affected domain (20 CFR 416.926a©)).

Social Security regulation 20 CFR 416.926a(e)(2) explains that a child has a “marked limitation” in a domain when his impairments(s) “interferes seriously” with the ability to independently initiate, sustain, or complete activities. A child’s day-to-day functioning may be seriously limited when the impairment(s) limits only one activity or when the interactive and cumulative effects of the impairment(s) limit several activities. The regulations also explain that a “marked” limitation also means:

1. A limitation that is “more than moderate” but “less than extreme”.

2. The equivalent of functioning that would be expected on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. For a child who has not attained the age 3, functioning at a level that is more than one-half but not more than two-thirds of his chronological age when there are no standard scores from standardized tests in the record.

3. A valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and his day-to-day functioning in domain-related activities is consistent with that score.

4. For the domain of health and physical well-being, frequent episodes of illnesses because of the impairments(s) or frequent exacerbations of the impairments(s) that results in significant, documented symptoms or signs that occur: (a) on an average of 3 times a year, or once every 4 months, each lasting 2 weeks or more: (b) more often that 3 times in a year or once every 4 months, but not lasting for 2 weeks; or (c) less often than an average of 3 times a year or once every 4 months but lasting longer that 2 weeks, if the overall effect (based on the length of the episode(s) or its frequency) is equivalent in severity.

Social Security regulation 20 CFR 416.926a(e)(3) explains that a child has an “extreme” limitation in a domain when his impairment(s) interferes “very seriously” with his ability to independently initiate, sustain, or complete activities. A child’s day-to-day functioning may be very seriously limited when his impairment(s) limits only one activity or when the interactive and cumulative effects of his impairment(s) limit several activities. The regulations also explain that an “extreme” limitation also means:

1. A limitation that is “more than marked”.

2. The equivalent of functioning that would be expected on standardized testing with scores that are at least three standard deviations below the mean. For a child who has not attained age 3, functioning at a level that is one-half of his chronological age or less when there are no standard scores from standardized tests in the record.

3. A valid score that is three standard deviations or more below the mean on a comprehensive standardized test designed to measure ability or functioning in that domain, and his day-to-day functioning in domain-related activities is consistent with that score.

4. For the domain of health and physical well-being, episodes of illness or exacerbations that result in significant, documented symptoms or signed substantially in excess of the requirements for showing a “marked” limitation.

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How Can One Expedite a Hearing on a Social Security Disability/SSA Claim?

Expeditious hearing requests are routinely denied unless a claimant meets at least one of three circumstances:

The first is whether the claimant is 55 years of age or older. This is because at 55, claimants fall into a less restrictive disability category. As a consequence, the claim is more easily decided by a Social Security Administration judge. We automatically file expeditious requests once all of our clients reach the age of 55.

The second category for expeditious handling is when the claimant is at a critical risk for death if emergency life saving surgery is not performed immediately. This must be put in writing by the claimant’s physician and given to us so that we can request an expeditious hearing on the claim.

The third area ripe for expeditious handling is when a claimant is in receipt of a Notice of Eviction, foreclosure or acceleration of mortgage payments.

Unfortunately, with the extreme backlog of cases pending with the Social Security Administration, these bases are just of historical note and are now seldom, if ever granted. We do file them with the Social Security Administration and make the request if and when our clients send such notice to us.

Unfortunately, there are no further bases under which to ask for an expedited hearing. We do not recommend that our clients contact their U.S. Senator or Congressman with their request unless they ar a disabled American Veteran who has already received a VA in-the-line-of-duty disability award.

Remember that a request for an expedited hearing may only move your hearing up a few months. It is only in extremely rare cases that the request to expedite is granted and the hearing takes place within 90 days.

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What if I let the 60 days run on my appeal, can I file late?

Yes. According to the Social Security Administration you can file your appeal after 60 days if you have good cause for late filing.

In determining whether the claimant had good cause for failure to file a timely appeal request SSA considers:

a. whether circumstances impeded the claimant’s efforts to pursue his/her claim;
b. whether SSA/CMS actions were confusing or misleading;
c. whether the claimant understood the requirements of the Social Security Act (the Act), resulting from amendments to the Act, other legislation, or court decisions; and
d. whether the claimant’s physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) prevented him/her from filing a timely request or from understanding or knowing about the need to file a timely request for appeal.

NOTE: Good cause for late filing may apply to any person standing in the place of the claimant, like the claimant’s representative or attorney.

Some examples of Good Cause are:

Circumstances where good cause may exist include, but are not limited to, the following situations:

a. the claimant was seriously ill and was prevented from contacting SSA in person, in writing, or through a friend, relative, or other person;
b. there was a death or serious illness in the claimant’s immediate family;
c. pertinent records were destroyed or damaged by fire or other accidental cause;
d. the claimant was actively seeking evidence to support his/her claim, and his/her search, though diligent, was not completed before the time period expired;
e. the claimant requested additional information concerning SSA’s determination within the time limit. (After receiving the information, the individual has 60 days to request a reconsideration or hearing. The individual has 30 days after receipt of such information to request AC review or file a civil action);
f. the claimant was furnished confusing, incorrect, or incomplete information or was otherwise misled by a representative of SSA or CMS about his/her right to request continued benefits, reconsideration, a hearing before an Administrative Law Judge, AC review, or to begin a civil action;
g. the claimant did not understand the requirement to file timely or was not able (mentally or physically) to file timely;
h. a notice of the determination or decision was never received (e.g., SSA used incorrect address or claimant moved);
i. the claimant transmitted the appeal request to another government agency in good faith within the time limit and the request did not reach SSA until after the time period had expired;
j. the claimant thought his/her representative had filed the appeal (good cause applies to the claimant despite whether the claimant is still represented or represented by a different person);
k. unusual or unavoidable circumstances exist, which demonstrate that the claimant could not reasonably be expected to have been aware of the need to file timely, or such circumstances prevented him/her from filing timely.

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