Every day I receive email, phone calls and faxes from individuals throughout the country who ask a very simple question: Do I have a good disability case? If so, how do I begin the process of obtaining social security disability benefits? I don’t know where or how to start…
Step 1. You must believe that you have a valid disability case
We’ve all heard the SSA disability horror stories…but all too often I am surprised by the number of people who wonder whether they have a valid claim and if it is worth their time to file for disability benefits. In my opinion, over 80% of the individuals whose cases I review have a valid claim. If their claim is properly prepared they stand an excellent chance winning their case…regardless of the diagnosis(es).
What is the profile of the average person I am referring to?
In general, they range in age from 30 to 60, have worked most of their adult life, have a confirmed physical and/or psychological disorder, undergo regular and consistent treatment with their doctor/psychiatrist/psychologist, have documented symptoms and limitations significant enough to preclude full time work, and they believe or have good reason to believe their doctor(s) will support their claim for disability.
If you are saying, “he is describing me!” then I have excellent news for you…you can win your social security disability claim regardless of your diagnosis (yes, I am referring to the FMS/CFS crowd!)
Several times a day I am asked, “Can you win a case based on fibromyalgia and/or CFIDS?” The short answer is an emphatic “yes!”…it happens everyday. I have been told that SSA employees and even some disability attorneys are responsible for disseminating the belief that one can not win a disability case based on FMS/CFS.
If you learn one piece of information from this article let it be this: if you match or come close to matching the above profile you have a good chance to win your disability claim…don’t let anyone tell you differently! Success in your disability claim begins with belief in yourself and case preparation!
Now that I have your attention…ignore the naysayers and proceed to Step 2.
Step 2. Filing your application with SSA
You should file your application with SSA as soon as you meet either of the following requirements:
(1) you have been out of work due to disability for twelve (12) consecutive months, (2) or it is expected that you will be out of work for a minimum of twelve consecutive months (if twelve months have not yet passed since you last worked), (3) your medical condition is expected to result in death.
Many people have been told they must wait either from five (5) to twelve (12) months after they stop working before they can file a claim with SSA…this is simply not true! You can file an application at any time after you last worked so long as you meet one of the requirements above. Too many people file their claims years after they have stopped working…this is a tremendous mistake and usually will cost them benefits and possibly their claim.
To file an application, call SSA toll free at (800) 772-1213 or stop by any local SSA office. There is no charge to file an application (or to withdraw one). What information will you need to provide to SSA? Please visit www.ssa.gov/disability.html, SSA’s website provides a list of information SSA requires. Providing all the information SSA requires will speed up the process and avoid those famous and unnecessary bureaucratic delays.
An SSA employee will take your application and set a phone or personal appointment for you to file your initial claim at a local SSA office. My suggestion is that if possible you avoid seeing any employee at a SSA local office! Why? When you visit a local office the employee will make notes about your general appearance, grooming and how well you seem to function…this information in your file is rarely helpful.
Step 3. How much time will pass before I receive a decision?
Welcome to Federal bureaucracy…need I say more? Actually, the answer varies from state to state. In general, you should expect to wait at least four (4) months to receive an initial decision. If you are denied and appeal, expect to wait a minimum of four (4) months to receive a reconsideration decision. If your claim is denied at reconsideration and you have a hearing before an Administrative Law Judge, your claim will likely have been pending for a year to a year and a half before you receive the ALJ decision.
The often absurd amount of time it takes to work through the system is the main reason you should file your claim immediately after you have met, or expect to meet one of the duration requirements listed above.
Step 4. What if I filed a claim within the last couple of years, got denied and didn’t do anything?
Literally everyday I am asked this question and am surprised how often this occurs. Unless you are expecting it (and who is?)…receiving the denial letter from SSA is a
terribly deflating and depressing experience. Many people never recover and give up, assuming they can not beat SSA at it’s own game. The final act is to retreat to the nearest closet never to be heard from again! Nationwide, 50% of the claims that are initially denied are never appealed…in my opinion SSA counts on claimants quitting. If I have described your situation I may have good news. Don’t quit…get angry!
Think of it this way…when you were forced to pay social security or self-employment taxes to Uncle Sam, in return, SSA made an agreement with you that part of the taxes would provide disability insurance if you ever became unable to work…thus, by filing a claim you’re not asking for a government handout…you’re seeking benefits you should be entitled to…benefits you have paid for!
If you are covered for disability insurance benefits (SSDI)(see the frequently asked questions page for information), federal law allows you to reopen the prior claim within one year of the date of the initial denial for any reason. You can even reopen a prior claim within four (4) years of the initial denial if SSA finds good cause to do so.
Even if you are unable to reopen a prior claim you should still be able to file a new SSDI application if it has been five (5) years or less since you last worked full time.
Step 5. Should I consult with or retain a disability attorney?
In my opinion, you should consult with a disability attorney as soon as possible after you file your claim. Almost all will provide advice for free. However, be careful as it is very common for attorneys to advise a person to contact them only after their claim has been denied once or twice. Because almost every disability attorney gets paid a fee only if you win your case, they want your case to be in their office for as short a time as possible…this may not be in your best interest.
Following this advice could jeopardize your claim. Why? My experience is that SSA will usually develop a case against you from the day your claim is filed. All too often, the evidence SSA develops will be used by it or a judge to deny your claim. In many cases, the development of this evidence can be avoided or mitigated if a knowledgeable disability attorney is involved from the beginning of your case.
What if an attorney will not take your case from the beginning? I would continue trying until you find one that will. To determine whether you can afford a disability attorney please see my article entitled “Winning your Social Security Disability Claim: 15 Mistakes You Can Not Afford to Make.”
Best of luck in your pursuit of disability benefits and remember never to quit!
Scott E. Davis and Scott M. Harris are social security and long-term disability insurance attorneys in Scottsdale, Arizona. They are the founding partners of Harris Davis, PLC. Although they have experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of their disability practice is devoted to representing individuals with FMS and/or CFIDS. Mr. Davis and Mr. Harris represent clients throughout the United States. In most cases a fee is charged only if their client obtains benefits. They invite your questions and inquiries regarding representation via email: firstname.lastname@example.org or facsimile (602)482-4300