June 29, 2017

Social Security Disability Practice

Erin Schmidt

Person on crutchesA long-time client walks into your office and hands you a letter he received from Social Security about his disability claim. Your client does not understand why he was turned down—it is obvious he can no longer perform the job he previously held. You want to help. You have been considering moving into a Social Security disability practice for some time now, but you do not know where to start.

One thing to keep in mind: Filing for and receiving Social Security disability is a long process, made more so by the fact that your client has medical problems and is not working. Although some cases are approved at the initial level, many claims end up at hearing, and the time from the initial application to hearing can extend over two years.

Moreover, this area of the law is probably like no other you have worked in. Social Security disability is an informal, nonadversarial system. There is no representative on the other side to negotiate with or argue against, although some may hold that decision makers at the U.S. Social Security Administration (SSA) fulfill this role, and the formal rules of evidence do not apply. At hearings, the administrative law judge (ALJ) is both inquisitor and adjudicator. And proceedings are private. You cannot drop by an Office of Disability Adjudication and Review (ODAR) to watch a hearing in progress. Thus, gaining practical experience requires learning the law, finding a mentor, and jumping in headfirst.

Common Misconceptions

Among the first problems to overcome in a Social Security practice are the numerous misconceptions and lack of understanding about the program and system, not just by clients, but also by attorneys who may send cases your way. Anyone who follows the news lately has seen these misconceptions. Headlines declare extensive fraud in the system. Supposedly, if you want to receive benefits for mental illness, all you need do is get your own doctor to say you are disabled; the award is then automatic. These beliefs are so ingrained that almost all my clients (or clients’ family members) tell me the same thing: They know someone who easily got disability yet does not look or seem disabled, or at least not as severely disabled as the client. I also frequently encounter the notion that people turn to Social Security for an easy payday instead of working. These beliefs are far from the truth. The system’s legal definition of disability is exceptionally strict, the waits are long, the average award is less than working minimum wage, and only the most severely disabled are awarded benefits.

Many clients believe the program only looks at their last job and pay rate. They are angry when informed that, yes, Social Security expects you to take a minimum wage job if that is the work you are still able to do. And even when clients win, the award amounts—which average $1,100 a month—rarely provide a secure future, particularly given the typical client’s high medical needs. Practical tip: Learn your area’s local resources for free and low-cost medical care, food banks, and utility and other assistance. Many of your clients will need these during the claim process and after.

Types of Disability Programs

SSA has several disability programs that fall within two categories: Disability Insurance Benefits (DIB or Title II) and Supplemental Security Income (SSI). Generally, a claimant who has worked five of the last ten years gains DIB insured status. DIB benefits have a five-month waiting period (from the date the claimant was found disabled) before payments start. Benefits are based on the client’s entire earning record, like retirement income. Claimants are Medicare eligible after they have received 24 months of payments. Two offshoots from DIB, Disabled Adult Child and Disabled Widow benefits, allow certain individuals to collect off the earnings record of a retired, deceased, or disabled parent or spouse. DIB awards include auxiliary benefits for the client’s children who are under 18 years old or are 19 and still in high school (auxiliary benefits are the same as survivor benefits and are payable up to the family maximum).

SSI is a poverty-based program for adults and children with a maximum monthly benefit amount currently at $710. It is the only program for disabled children. To qualify, the claimant’s household must be below certain income and asset limits. SSI benefits can be paid the first full month after the SSI application was made or the first month after the date it was determined the claimant became disabled.

Many claimants will apply for both DIB and SSI, called a concurrent claim. If eligible, they can collect SSI during the five-month wait for DIB benefits. The DIB benefits of some claimants are low enough they are also eligible for SSI.

The Levels

Most beginner practitioners will handle claims in three administrative levels: the initial level, the reconsideration level, and the hearing level. (Nine states do not have reconsideration: Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania; the ODARs of North and West Los Angeles also lack reconsideration.)

When starting an initial application, claimants provide to SSA what conditions prevent them from working, along with contact information for their medical providers. Other needed information includes descriptions of jobs for the last 15 years, when the claimant stopped working, and when the claimant alleges the disability began. The initial application can be done online or through SSA. Practical tip: Complete the application online with your client unless it is an SSI-only claim that must be filed through the local office. SSA begins the evaluation of the claim with observations and impressions of the client during the initial interviews they take. You should include in the general remarks on the initial application a description of how the claimant meets the criteria for one of the impairments that the SSA considers severe enough to prevent an individual from doing any gainful activity (for a full list of qualifying impairments, see the SSA’s “Listing of Impairments” at tinyurl.com/bbvd); whether the claimant is eligible for a compassionate allowance (CAL) for an expedited review; or whether the case is a terminal illness (TERI) claim.

The reconsideration and the initial levels are similar. They involve state agency review of medical records, consultative examinations, and written statements by the client or another individual who knows about the condition. (The state agency may or may not be located in your state; SSA is not limited by jurisdictional lines.) The agency only reviews those records provided to them, either by the claimant, the representative, or medical providers in response to a request for records. Practical tip: Provide what records you have on hand. SSA generally gives a small window—ten to 20 days—for medical providers to respond to a request. Important records are often missing at these levels. A written, boilerplate decision is issued after the review. It can take as little as a few weeks to as long as six or more months to receive a decision in these stages.

If the claim advances to the hearing level, the representative will now have access to the file created by Social Security. The file is broken into five sections and includes all medical records and documents received, documents created by the state agency, decisions, and earnings records. The burden now shifts to the claimant to fill in the blanks and complete the record.

If the case is denied at any of the three administrative levels, an appeal must be filed within 60 days of decision. For represented claimants, all administrative appeals (except for those to the Appeals Council) must be filed online. Appeals after the hearing level are made first to the Appeals Council and then to federal district court.

Determining Disability

One of the hardest things for a client (or a beginner practitioner) to understand is that the SSA disability process works in a hypothetical world, not reality. Social Security does not ask if an employer would actually hire the client, or if any employers are hiring for jobs the client might be able to perform, or if these jobs are local to the client. Given the lack of reality in the process, it should be no surprise that the majority of those denied at the hearing level fail to return to work. But certain claims never reach these hypothetical questions. This is owing to the steps that SSA must take in determining disability.

Social Security has a five-step sequential framework to determine eligibility. The client is either denied, approved, or passed on at each step. A claimant can be found disabled at Step 3 and Step 5 but denied at all other steps.

Step 1. SSA looks at whether the claimant is working and making substantial gainful activity (SGA), currently $1,040 per month. If your client is making more than SGA, he or she is denied and the claim is over. If the client makes less than SGA, the claim moves to Step 2. The claims of clients who experienced an unsuccessful work attempt (i.e., stopped working for at least a month, returned to work for three months or less, and then stopped working again for at least a month) will not be stopped at Step 1 even if the client made more than SGA during the time they attempted to work.

Step 2. SSA determines which conditions are severe and likely to last at least 12 months or end in death. A condition is severe if it puts significant limitations on work-related activities. If the client’s condition is not severe or will not last more than 12 months, SSA will issue a denial.

Step 3. SSA determines whether the claimant’s condition meets or equals one or more of the criteria detailed in its “Listing of Impairments”; if a listing is met, the claimant is found disabled and awarded benefits without moving to Step 4 or Step 5. If a listing is not met, the claim moves to Step 4 for further determinations.

Step 4. SSA looks at the client’s “past relevant work”—all work done at SGA over the past 15 years—to decide whether this work falls within the client’s residual functional capacity (RFC), what SSA believes the client can do after taking into account any restrictions from all current conditions. If the RFC does not exclude past work, the claim will be denied. Practical tip: SSA uses the Dictionary of Occupational Titles (DOT) as the source of job information and for the definitions of sedentary, light, medium, and heavy work. The DOT can be found online at occupationalinfo.org.

Step 5. SSA considers whether there is other work in the national economy that the client could perform within the RFC, and in what numbers those jobs exist. The Social Security “Grid Rules” (see Code of Federal Regulations, Section 404, Appendix 2) consider age in determining the levels of work appropriate for the client to adjust to. To be found disabled, a person under 50 must, as a rule of thumb, be unable to perform a full range of sedentary work, those age 50 to 55 should be limited to sedentary work or less, and those 55 and older should be limited to light work or less.


Hearings are conducted in person or by video. Witnesses may appear in person, by video, or via telephone. Unlike a court hearing, where the judge listens to each side and may never say a word, an SSA ALJ will ask your client questions—and lots of them. Many judges will spend the first 15 to 20 minutes of the hearing asking questions before handing the case over to you. Practical tip: As a new practitioner in the field, you should find a mentor to allow you to observe a few hearings before attempting one yourself.

Prepare your client to fully explain why his or her condition interferes with typical physical activities such as standing, sitting, or lifting and non-exertional limitations such as concentration, attendance, and interacting with others. Do not forget your theory of disability and aim your questions to the client and the expert to support your theory. Almost every hearing will have at least one expert—usually a vocational expert but sometimes a medical expert—present to testify. You will not know what questions the ALJ will ask of the expert or their testimony prior to hearing. Practical tip: It is important to track the testimony of the experts who appear at your hearings and the hypotheticals of each ALJ. This helps you begin to predict the expert’s testimony to expected questions from the ALJ or yourself.

The hearing may end with the ALJ issuing a bench decision indicating that the judge plans to approve the case, or the decision may give no indication of how the judge will rule. Written decisions usually arrive in 60 to 90 days. Once you have gone through a few hearings, you will begin to have a general feeling of how the case has gone.

Ready to Help

With a little preparation, the next time that clients walk into your office or call you asking about their disability claim, you can allay their fears and be more comfortable talking to them about the process.

Erin Schmidt

Erin Schmidt is an attorney with Bevan & Associates, LPA, Inc., representing claimants for Social Security disability benefits throughout Ohio and western Pennsylvania.