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MCLE Self Test
Social Security Disability 101
By William Berg and Sandra Takken

Edited by Peg Healy
Category: Disabilities Law
        Everyone knows about Social Security retirement benefits. Surprisingly, however, many people, including lawyers, are unaware of two disability programs administered by the Social Security Administration (SSA): Social Security Disability (SSD) and Supplemental Security Income (SSI) disability. Although our law firm practices traditional plaintiff personal injury law, ranging from auto accidents to mass tort product-liability cases, we have found Social Security disability cases to be a natural extension of our practice and a helpful service to our clients.
        SSD benefits are paid under Title II and SSI disability benefits under Title XVI of the Social Security Act. Congress has defined disability for both programs as an inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 USC §§ 423(d)(1)(A) and 1382c(a)(3)(A). Social Security regulations provide a comprehensive overview of the SSD requirements, and Social Security rulings thoroughly explain the meaning of the regulations. Moreover, the SSA continually reviews and updates the rulings. Attorneys representing claimants in SSD or SSI disability cases must review these rulings, which can be found online at For example, the regulations include a Listing of Impairments, which contain medical criteria applied in evaluating a claimant's symptoms and medical diagnosis. 20 CFR 404, Subpart P, Appendix 1. A September 2002 ruling removed obesity as an impairment from the Endocrine System 9.09 Listing. Thus, obese individuals now meet a listing requirement only if they have another impairment that meets a listing requirement, or that in combination with obesity meets a listing requirement.
        Medical v. Nonmedical Requirements
        The medical requirements are identical for both programs, but they have different nonmedical requirements. SSD functions like an insurance plan, with a comparable earnings requirement: The individual must have credit for a certain amount of work in jobs for which Social Security taxes were paid, and some of this work must have been done near the time the individual's disability began. To determine if the earnings requirement has been met, SSA considers "qcs" (quarters of coverage). In general, claimants over the age of 31 must meet the "20/40" rule (20 CFR §404.130): They must have 20 qcs out of the 40 calendar quarters that occurred before they became disabled. Claimants under 31 can meet the insured status requirement with less work and a minimum of only 6 qcs, if the qcs were earned in one-half of the calendar quarters beginning with the calendar quarter after reaching the age of 21 and ending with the quarter they became disabled. Claimants who become disabled before age 24 need only 6 qcs in the 12 calendar quarter period ending with the quarter in which the disability began. Social Security earnings records are usually accurate, but errors can occur, so attorneys must review the records carefully, as well as become familiar with the alphabet soup of SSA terminology.
        Who Gets the Benefits?
        In addition to paying benefits to disabled workers, Title II of the Social Security Act provides benefits to disabled adult children on the Social Security record of a disabled, retired, or deceased parent and also to disabled widows, widowers, and surviving divorced spouses. 20 CFR §§ 404.350, 404.345, 404.346, and 404.1505. Unlike SSD, SSI is a federal welfare program that awards payments only to the disabled claimant. Since the payments are defined in part as "income based on need," overall eligibility is determined partly by the value of any income or assets that the claimant holds or is potentially entitled to. Sources of income may include the income of a spouse living with the claimant, pensions from civil service, the Veterans Administration or Railroad Retirement Board, or bank accounts, certificates of deposit, or life insurance policies with a redeemable cash value.
        Evaluation Complications
        With both programs, determining an individual's nonmedical eligibility can be complicated but does not usually require attorney representation. The medical determination process is another matter. The SSA considers not only the medical evidence but also the claimant's age, educational level, and work experience, including whether or not the claimant has work skills transferable to other work. This process is daunting for many claimants, and attorney representation helps protect an individual's right to benefits.
        In evaluating SSD and SSI disability claims, the SSA uses a "sequential evaluation process," explained at 20 CFR §404.1520. In determining whether a claimant meets the disability standard, the SSA must establish that: (1) The claimant is not engaging in substantial gainful activity (SGA), (2) the claimant has a "severe" impairment, and (3) the claimant's impairment meets or equals one of the impairments cited in the SSA's Listing of Impairments. Alternatively, after considering what the claimant can still do, defined as "residual functional capacity" (RFC), the SSA may determine that the claimant meets the disability standard because he or she is still unable to do "past relevant work" and there is no other work available in the national economy that the claimant can perform.
        A claimant determined to be engaging in SGA cannot be found to be disabled, no matter how severe the claimant's impairments. 20 CFR §404.1572. In evaluating such work, the SSA considers job performance requirements, number of hours and days worked each month, the nature of any supervision or special assistance provided to help the claimant perform the job, and the salary received. In 2003 the monthly earning thresholds increased to $800 for disabled individuals and $1,330 for blind individuals. 20 CFR §404.1574.
        The SSA has made provision for what is called an "unsuccessful work attempt" (UWA) for those individuals who return to work but are forced to stop because
        of their impairments. A claimant who returns to work for three months or less before being forced to stop is determined to have engaged in a UWA. If a UWA is granted, the onset date used for the claim remains the date the disabled claimant originally stopped work. If the SSA determines that there has been no SGA, the "severity" of a claimant's impairments is then assessed. 20 CFR §§404.1520(c), 1521. A severe impairment must have lasted or be expected to last at least twelve consecutive months. In some cases the SSA will grant a "closed period of disability," if the duration requirement is met for a severely disabled claimant who recovers after the twelve-month period and is able to return to work.
        If a claimant is found to have a severe disability, the question then becomes whether he or she meets or equals a listing. If not, the claimant's past relevant work (PRW) is considered. If it is established that a severe impairment prevents a claimant from performing PRW, then the SSA considers whether the claimant can perform any other work that exists significantly in the national economy. This step involves careful consideration of a claimant's RFC, age, education, and PRW. The medical-vocational guidelines (informally called "grids") used at this stage exist at 20 CFR §404, Subpart P, Appendix 2.
        Claims for SSD and SSI disability are filed through Social Security field offices. The application process can be handled with either an office or telephone interview. The claims representative completes a basic application form and a number of auxiliary forms with the claimant and asks the claimant to complete a Disability Report form. On this form the claimant explains his or her impairments, describes work done in the past, and provides the names and addresses of medical providers who have records pertaining to the claimant's illnesses or injuries. The entire claim file is then sent to an agency of the state government that contracts with the SSA to make disability determinations, where the claim is reviewed by a disability examiner and a physician. Because of the complexity of most cases and the growing backlog, case review and adjudication can take three months or longer.
        The Hearing Process
        If a claim is denied and the claimant wishes to protest the decision, the first step is to make a Request for Reconsideration. The claim file then goes back to the state agency, where it is reviewed by a different disability examiner and a different physician. If the reconsideration is denied, the next step is to file a Request for Hearing before an administrative law judge (ALJ) at the SSA Office of Hearings and Appeals (OHA). This hearing represents the best chance for a favorable decision on a claim: The claimant is present with his or her attorney and has the opportunity to discuss the case with the judge. At the initial claim and reconsideration levels, the decisions are based on a paper trail-the claimant's medical evidence and any supplemental information the claimant may be asked to provide in the form of questionnaires that ask about daily activities and any disability-related symptoms of pain and fatigue. The ALJ, however, will also evaluate the claimant's credibility, which can have a significant impact on the ultimate determination.
        Social Security hearings are generally held in conference rooms and are fairly informal. Those present include the ALJ, the judge's assistant who tapes the hearing, the claimant, his or her attorney, any witnesses the attorney has called, and any medical or vocational experts called by the judge. There is no prescribed format, but most ALJs open hearings by briefly summarizing the case and explaining how the hearing will be conducted. The ALJ may ask the claimant's attorney if any witnesses will be testifying during the hearing, at which point the ALJ may ask that they leave the room until after the claimant has testified. ALJs seldom ask the claimant's attorney to make an opening statement, but the attorney should be prepared for this possibility. The ALJ may question the claimant first before turning questioning over to the attorney or may ask the attorney to present the case by questioning the claimant.
        Social Security hearings are nonadversarial, and ALJs are, for the most part, fair and neutral and do not ask "trick" questions. Also, the attorney will have the chance to clarify answers he or she feels were incomplete or unclear. At times, the ALJ may call a medical expert (ME), whose role is to help the ALJ understand complicated medical issues, or a vocational expert (VE) to testify. The presence of a VE at a hearing often means that, after reviewing the claimant's file, the ALJ has decided the claimant cannot do his or her past work but wants to hear testimony regarding other jobs available in the national economy the claimant could do. The ME and the VE are supposed to be neutral experts, but attorneys sometimes find themselves dealing with what can only be described as hostile testimony. When this happens, the attorney should respond to the hostility with professional courtesy and concentrate on asking questions that will elicit information helpful to the client.
        Hearings seldom last more than one hour. Given this short period of time, attorneys should review each case in detail and carefully prepare the client for the hearing by explaining the process, answering any questions, and giving the client some idea of what information the ALJ will be looking for and what questions the ALJ and the attorney may ask.
        During the hearing or at its end, the ALJ will advise the attorney if he or she feels additional evidence is needed for the file. Such evidence will usually be medical evidence from the claimant's treating physicians that has not yet been received by the attorney. However, the ALJ may decide to order a consultative examination to be done (at agency expense) if he or she feels specific medical testing will help the evaluation of the case.
        Hearing decisions are issued in writing and are usually received within 30 to 90 days after the hearing. The decision explains in detail the factors considered and advises claimants of their right to file within 60 days a Request for Review of the Hearing Decision with the Social Security Administration Appeals Council. This is the final step in the administrative review process. Because of the backlogs at the Appeals Council and the complexities of each case, Appeals Council reviews can take from six months to a few years. In addition to filing for an Appeals Council review after an unfavorable OHA decision, many claimants, if they still meet the nonmedical requirements of SSA law and regulations, will decide to file a new claim.
        If the Appeals Council determination is not favorable and the claimant wishes to pursue the claim for benefits, the claimant must file an appeal with a U.S. district court, which has jurisdiction to review such decisions. In addition to filing with the district court, a new claim should perhaps be filed if this was not done soon after the unfavorable hearing decision. Whether or not to file a new claim while filing with the district court is an issue that can only be resolved on a case-by-case basis. Most attorneys advise their clients not to do this without discussing it first with the attorney.
        Most attorneys take Social Security cases on a contingency-fee basis. There is no fee due from the client if the claim for benefits is not approved. If the claim is approved, the award notice will also address the fee agreement and will explain the amount withheld for the fee. In SSD and SSI cases, the attorney fee set by statute (42 USC §§406(a) and 1383(d)(2)) is 25 percent of retroactive benefits due the disabled client and must be approved by the SSA. Acceptance of an unauthorized fee can be punished by a fine, by imprisonment not exceeding one year, or both. 42 USC §406(a)(5). The attorney could also lose the right to practice before the SSA. 20 CFR §404.1745. The current maximum fee is $5,300. In SSD cases, the SSA withholds the attorney fee from retroactive benefits due and issues that fee directly to the attorney. In SSI cases, current regulations provide that the full amount of the retroactive payment due be sent to the SSI claimant, and the client is advised that the matter of the attorney fee is to be handled by the client and the attorney. For this reason, many attorneys will not take SSI cases. In 2002, Congress introduced legislation that would have extended withholding of the attorney fee to SSI cases, but that legislation stalled in the Senate.
        Obviously, you won't become wealthy handling Social Security disability cases, but the work can be very rewarding. You have the opportunity to make a real difference in people's lives when you help someone obtain benefits they need and deserve, benefits they probably could not obtain without your help.
        William Berg is managing partner and Sandra Takken is Social Security case manager with the firm of Berg & Associates-Injury Lawyers in Alameda.

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