Social Security Disability: What Every Lawyer Should Know

Vol. 1, No. 4

Robert Kraft

A native of Waco, Texas, Robert Kraft has practiced plaintiff's personal injury and Social Security disability law in Dallas since 1971. He is a Director Emeritus of the Dallas Trial Lawyers Association, a former president of the North Dallas Bar Association, and a Sustaining Member of the National Organization of Social Security Claimants' Representatives. He also practices elder law, Medicaid planning for long-term care, and Veterans pension benefits law.

Learn how to collect the proper data to give an informed referral
Learn how to distinguish among types of claims
Become familiar with the Five-Step Disability Determination Process

Just as medical specialists should know at least the basics of other areas of medicine, so should lawyers know the basics of other areas of law. You may be a tax lawyer, but chances are you will get questions from clients or friends regarding everything from divorce to drunk driving laws. You may not want to give legal advice in these other practice areas, but you probably don’t want to appear totally ignorant of them.

So it helps if every lawyer can know at least enough to recognize a potential Social Security disability claim when talking with a client, potential client, or friend. For information beyond the basics included in this short article please visit the Social Security Administration website at http://www.ssa.gov.

Two Types of Social Security Disability Claims

Let’s start with some terminology. It seems almost every lawyer who contacts our firm with a possible referral says the case is a claim for SSI benefits. I don’t know why people seem to think all Social Security disability claims are called SSI, but this is an important misunderstanding. There are two basic types of Social Security disability benefits. They have many similarities, but several distinctions. One is an insurance claim and the other is a welfare program.

The insurance claim is called Disability Insurance Benefits, commonly shortened to DIB. The welfare program is Supplemental Security Income, or SSI. The medical and vocational qualifications are the same for each, but the financial qualifications are completely different.

To qualify for DIB, a person must have worked and paid in, through payroll deductions, to the Social Security system for at least five of the past ten years. To qualify for SSI, the person must have extremely low household income and assets, but does not have to show any record of paying into the system.

Another major difference between the two types is that people who qualify for DIB benefits receive Medicare coverage. People who qualify for SSI benefits receive Medicaid coverage.

Due to the space limitations of this article I will not attempt to discuss widow’s benefits, child’s benefits, or other types of disability claims.

Medical and Vocational Qualification

Once the financial determination is made, and the claimant meets the test for either DIB or SSI, the claimant must then qualify medically and vocationally for a finding of disability. In Social Security disability cases, the claimant must be determined to be totally disabled and unable to be gainfully employed. There is no percentage finding, as in veterans service-connected compensation claims. Social Security is an all-or-nothing system. Benefits do not require a finding of permanent disability however. A person can receive benefits if he or she is disabled for a minimum of 12 months.

These medical and vocational determinations are made in a series of decisions referred to as the Five-Step Disability Determination Process. A claimant must pass each stage in order, move on to the next stage, and finish out the process. If the claimant fails any stage, the process stops and the claimant will be denied benefits. Each step is in the form of a question.

The Five-Step Disability Determination Process

Step 1: Is the person engaging in substantial gainful activity?

If the answer to this question is yes, the person is not disabled. Substantial gainful activity means physical or mental activity performed full-time or part-time for an amount of money in excess of the amount defined as acceptable by the Social Security Administration. That amount for nonblind persons in 2011 is $1,000 per month. A person who is working and earning more than $1,000 per month is not disabled by law.

Step 2: Does the claimant have a severe impairment?

A severe impairment is defined by the Social Security Administration as an impairment or a combination of impairments expected to last more than 12 months and/or result in death, and that significantly limits the claimant’s physical or mental ability to perform work activities

Step 3: Does the claimant have an impairment or combination of impairments that meets or medically equals a listed impairment?

The Social Security Administration listings are a complex compilation of age-factored medical conditions and symptoms. The listings can be found online. The listings include both exertional and nonexertional matters.

This step is the one that allows the most flexibility for zealous advocacy on behalf of the claimant. Reading the listings and grid, and fitting your client into the proper slot, is similar to working a complicated puzzle. Many cases require a certain creativity to use your client’s physical, mental, psychological, educational, and vocational limitations in exactly the right combination in order to convince the administrative law judge (ALJ) to find disability. Lengthy articles and even books can and have been written about this step alone.

Step 4: Can the claimant perform his or her past relevant work?

This question is normally answered by using a medical finding referred to as residual functional capacity. Evidence may come from the claimant’s treating doctors and from a medical expert hired by the Social Security Administration. The claimant can also offer testimony on this point.

Step 5: Is there any other work in the national economy, given the claimant’s age, education, past relevant work, and residual functional capacity that the claimant could perform?

Vocational testimony is used to make this determination based upon information in the Dictionary of Occupational Titles. At the ALJ hearing there will frequently be a vocational expert who will present evidence regarding jobs available that fit the claimant’s residual functional capacity. It is the duty of the claimant’s lawyer to rebut this vocational evidence.

If a claimant makes it through these five steps, he or she should be declared disabled. Of course, as with any bureaucracy, this does not always happen. In those cases, an appeal may be in order.

The Procedural Stages

There are five stages at which a person may be declared disabled. Without going into any detail, this is the list of stages:

1. Initial Application

2. Reconsideration

3. ALJ Hearing

4. Appeals Council

5. Federal Court

In general there is a 60-day time limit in which to appeal a denial at any of these stages. One thing every lawyer must know is that time is of the essence in any Social Security disability claim. Never delay if you are asked questions about a claim. You do not want a deadline to pass because you postponed talking with someone about a claim.

Following this article is a very brief checklist of important things to do or to ask when first considering a Social Security disability claim. If you plan to refer the case to a Social Security disability lawyer, that lawyer would appreciate having this information when you make the referral call. This list (actually this entire article) barely begins to scratch the surface of this complex practice area. But the information here should allow you to discuss the basics of Social Security disability, and to recognize a potential case.

Lawyers who practice Social Security disability must learn huge amounts of arcane and sometimes contradictory federal rules and regulations, and must do battle daily with a gigantic obstructive bureaucratic government agency. The money is not great, because there is a $6,000 fee cap on most cases. But those practitioners have the enormous reward of helping clients who are in terrible physical and financial shape. Winning a Social Security disability claim is almost guaranteed to bring you a heartfelt hug from your client, and some of us think that’s worth much more than money.

New Cases: Questions to Ask and Actions to Take

Get the full name of the claimant as listed on the Social Security Administration paperwork.

Get the claimant’s marital status.

Does the claimant have any dependents under the age of 18?

What is the claimant’s level of education?

Has the claimant worked 5 of the last 10 years?

What is the claimant’s Date Last Insured under DIB claim?

Has the claimant applied for disability benefits before? Get copies of any prior applications.

When was the claimant last denied? Was an appeal done? When?

Get a copy of the claimant’s last letter or denial from Social Security—remember the 60-day deadline.

Has the claimant attempted to return to work since the disability began? Get dates worked and amounts earned.

Get all sources of income for the claimant’s household. Is the claimant receiving any form of government assistance such as food stamps or unemployment?

Who are the claimant’s treating doctors? Will their reports support a claim for disability?

Have the claimant’s doctors restricted work (for example a 10 pound maximum lift) in any way? Have the doctors put this in writing?

Is the claimant able to afford ongoing medical treatment?

Has the claimant filed any claims for workers’ compensation benefits? Is the claimant receiving long-term or short-term disability benefits from private insurance?

Are there any third parties such as friends or neighbors who can corroborate the claimant’s restrictions or needs for assistance with daily activities?