Disability And Injury FAQs

Injuries and illnesses that keep from work can cause considerable personal and financial strain. At these times, individuals and families rely on insurance policies to keep them secure. When those benefits are denied, it’s natural to have many concerns and questions. Browse our FAQs to find information and insight from our experienced disability and injury attorneys.

  • What is the difference between SSI and SSDI in Social Security Disability?
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    Difference Between SSI and SSDI

    The Social Security Administration (SSA) manages two programs that provide benefits based on disability or blindness, the Social Security Disability Insurance (SSDI) program and the Supplemental Security Income (SSI) program.

    Social Security Disability Insurance Program (SSDI) (Title II) (Title 2)

    SSDI provides benefits to disabled or blind individuals who are “insured” by workers’ contributions to the Social Security trust fund. These contributions are based on your earnings (or those of your spouse or parents). In order to qualify for SSDI benefits, you must have earned enough credits by paying your Social Security taxes as required by the Federal Insurance Contributions Act (FICA). Title II of the Social Security Act authorizes SSDI benefits.

    Supplemental Security Income (SS) (Title XVI) (Title 16)

    The SSI program makes cash assistance payments to aged, blind, and disabled individuals (including children) who have limited income and resources. There is no work history requirement. The Federal Government funds SSI from general tax revenues.

    Many states pay a supplemental benefit to individuals in addition to their Federal benefits. Some of these states have made arrangements with Social Security to combine their supplemental payment with Social Security’s Federal SSI payment into one monthly check to you. Other states manage their own programs and make their payments separately. Title XVI of the Social Security Act authorizes SSI benefits.

  • Will I need to file more than one Social Security Disability appeal?
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    In Florida, you will need to file two appeals in order to have your claim heard by a Judge.

    The First Appeal: Reconsideration

    Most states, including Florida, require you to file a Request for Reconsideration with your local Social Security District Office before you can file a Request for Hearing before an Administrative Law Judge. Your reconsideration request will then be reevaluated by someone new with Disability Determination Services.

    Unfortunately, the chances of winning at the reconsideration stage are very low. In Florida, statistics show that only about 10% of Requests for Reconsideration are approved for benefits. That means nine out of ten claims continue to be denied. Thus, you can generally expect that if you are denied on your initial claim for disability benefits, you will probably be denied on your first appeal for reconsideration as well.

    To summarize, SSDI and SSI claims that are denied at the initial application level will almost always need to be heard by an Administrative Law Judge (ALJ) at a hearing before they can be approved. So if your initial claim is denied, expect to file at least two appeals (except in those states that have eliminated the reconsideration stage of appeal).

    The Second Appeal: Requests for Hearings Before an Administrative Law Judge

    Reconsideration requests are rarely approved because they are handled by the very same agency that reviews initial claims. In Florida, the state agency is called Disability Determination Services (DDS). DDS is responsible for deciding which cases win and which cases lose.

    If you think about it, it isn’t very likely for the same state agency to deny an application for benefits and then approve it just a few weeks later. Logically, for DDS to deny an initial claim and then, just weeks later, to review the paperwork and approve the claim upon a request for reconsideration would be admitting to decisional errors on the initial claim.

    In other words, it is practically an admission that a denied claim should have won and been awarded benefits in the first place. For this reason, DDS very seldom approves a Social Security Disability or SSI case at the reconsideration level and the denial rate on reconsiderations is even higher than the denial rate for initial claims.

    However, some reconsideration requests are approved. There are two primary reasons that some claims are approved at this level. First, the claim is reassigned to a new claims examiner at the reconsideration stage. So someone new is looking at the claim with a fresh set of eyes. The claim may be approved because of this new perspective. Second, some claims are approved because new and material evidence is submitted during the appeal that bolsters the strength of the claim.

    For these reasons, you can expect a virtual automatic denial of the reconsideration because it happens roughly 90% of the time. Thus, the general “rule of thumb” regarding approvals and denials is that, unless you are approved on your initial application, you will likely need to have your case heard by a judge at a hearing before your case can be won and benefits can be approved.

  • What factors does the Social Security Administration consider to determine whether I am disabled and eligible to get disability?
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    Factors for Social Security Disability

    In evaluating whether to approve a Social Security Disability Benefit claim, the Social Security Administration is required to consider your age, education level, work experience over the past 15 years, and the specific disabling conditions you are suffering from.

    In short, each claim is individually evaluated and no two claims are alike. An experienced attorney can and should explain to you what will be required to win your individual case given your age, education, prior work experience, and disabilities. In cases I handle, I will sit down with you and explain how each of these factors affect your unique case. I will go over all of your physical and mental conditions and resulting limitations with you. I will then explain how all of these vocational (or job) factors combine to determine your disability outcome.

  • What is the alleged onset date in my claim for disability?
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    When a claimant files a claim for disability benefits with the Social Security Administration, the claimant will be asked, “What is the Alleged Onset Date of your disability?” I am frequently asked what an Alleged Onset Date is. I like to explain to my clients that it is more of a legal term than a medical one. What Social Security is really asking is, “When did you need to stop working full time due to your medical condition or disability?” This point of time will, obviously, be very different from the time your disabling conditions actually began.

    For example, let’s say that John Coldridge started having back pain on January 1, 2009. He worked full time through the pain for several years until January 1, 2011, when he had to stop work completely due to debilitating back pain. When asked, “What is the Alleged Onset Date of your disability?”, John will logically think and say, “January 1, 2009.” After all, that is when his back pain started. However, for purposes of his Social Security disability claim, his Alleged Onset Date is more appropriately January 1, 2011, because this is the date he stopped work due to his condition.

    For a more formal definition of the term “AOD,” click here: Alleged Onset Date.

  • Attorney fees in Social Security cases
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    The attorney fees in Social Security cases are set by the contract you sign with the attorney representing you. In most cases, the fee is twenty-five percent (25%) of any past due benefits owed to you when you win your claim. There is, of course, a fee cap in fee agreement cases.

    Since June 22, 2009, that fee cap is $6,000 for work done during the administrative appeal process (in other words, at all stages until the claim goes to Federal Court). You may have a fee cap of $5,300 for contracts before June 22, 2009.

    Social Security must approve any fee contract between you and your representative.

    Once the back due benefits are computed by the Social Security Administration, SSA will issue a Notice of Award detailing the benefits owed to the claimant, and the amount being withheld to pay the fee. In most cases, Social Security will send the fee directly to the attorney and you will receive the remainder.

  • What happens if I lose after a hearing before a Judge?
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    You have the right to file an appeal with the Appeals Council. Any appeal should be filed immediately following the denial by the Administrative Law Judge as you only have 60 days from the date on the decision to file your appeal.

    In the alternative, you have the right to reapply and start a new Social Security claim. Unfortunately, you can no longer file an appeal and file a new application at the same time anymore.

    Click here for more information about the Appeals Council level of appeal.

  • How do you qualify for Social Security disability insurance benefits?
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    To qualify for Social Security disability insurance benefits, you must first have worked in jobs covered by Social Security. Then you must have a medical condition that meets Social Security’s definition of disability. In general, Social Security pays monthly cash benefits to people who are unable to work for a year or more because of a disability.

    Benefits usually continue until you are able to work again on a regular basis. There are also a number of special rules, called “work incentives,” that provide continued benefits and health care coverage to help you make the transition back to work.

    If you are receiving Social Security disability benefits when you reach full retirement age, your disability benefits automatically convert to retirement benefits, but the amount remains the same.

    Let’s look at the requirements more closely:

    Meeting the Definition of Disability

    One way to satisfy Social Security’s definition of disability is for the claimant’s disability or impairment to meet or “equal” the level of severity described in Social Security book of listings called the Listing of Impairments. This is the comprehensive manual that identifies dozens of conditions – from physical conditions like spinal disorders to mental conditions such as severe depression and anxiety – and the level of severity of each condition that is required to “meet a listing”. If your condition satisfies all of the requirements of a particular listing, you are said to “meet the listing” and your disability claim will be approved.

    However, it is important to note that it is very difficult to win a disability application based on meeting the disability criteria in the listing book. Most individuals who apply for Social Security disability will qualify in another way: that is when the claimant’s disabling condition is severe enough that he or she is unable to work and earn at least a minimum amount of money each month.

    The SSA will first determine whether you’re capable of doing your last job, or jobs you’ve had in the past 15 years. If you are not capable of doing your recent history of jobs, Social Security will determine whether you can do other types of work. The Social Security Administration will make this determination while taking into account the claimant’s age, highest level of education achieved, and the type of skills they learned in the past 15 years.

    For example, an individual with a 9th grade education (who did not obtain a GED) who cannot do their past work in manual labor (for instance, because it requires a lot of standing and walking) will not be expected to perform other work that goes beyond his or her educational limits. In the same vein, individuals with severe mental or affective impairments (such as having a low IQ or severe depression or anxiety) will not be expected to perform other work that requires detailed attention and concentration.

    Click here to learn more about Social Security’s disability evaluation process.

    Medical Details Required for the Disability Evaluation

    When Social Security asks you want your disabling conditions are, you should list of all of your impairments, conditions, and symptoms on the application for disability – even the less severe conditions. You should also take care to list of all the doctors, hospitals, and clinics that have treated you – along with their full contact information, including addresses and phone numbers.

    As stated above, specific criteria for disability approvals are detailed in the Social Security Listing of Impairments. It is important your doctor is familiar with these criteria when submitting medical records and opinions on your behalf. You should explain to your doctor just how your conditions limit your daily activities so that your doctor will notate this information in your medical records.

    Click here to learn more about the medical evidence used in disability cases.

    Non-Medical Requirements for Social Security Benefits

    In order to qualify for “regular” Social Security Disability Insurance (SSDI) disability benefits, an individual must have paid Social Security payroll taxes over a certain length of time and earned enough “work credits.” An individual who has earned enough credits this will be considered “insured” for SSDI purposes. The minimum number of years you are required to pay into the Social Security system to earn insured status is determined by your age. If an individual stops working and paying Social Security taxes, he or she must be able to show his or her disability began before his or her “date last insured,” which is when the insured status ran out.

    In order to qualify for Supplemental Security Income (SSI) disability benefits, an individual must have income and assets under the SSI program’s strict limits.

    Learn more about qualifying for SSDI or eligibility for SSI.

    Appealing Disability Denials

    It is common for an application for Social Security or SSI disability benefits to be denied in at the initial application stage (sometimes called the first round). In fact, well over 50% of all disability applications are denied. In these cases, appeals are required for disability benefits to be approved.

    To be frank, all too many claims are denied because the patient’s claim record lacks enough medical documentation to fully document and establish the severity of the disability.

    If you’ve applied for SSDI or SSI and been denied, you should not start over with a new application.This is a common mistake made by (unrepresented) applicants for disability benefits. You should not start over with a new application because new disability claims will simply be denied again. Instead, you should file an appeal called a “Request For Reconsideration,” and make sure the medical evidence is complete in your file. An experienced disability lawyer can advise you about what medical evidence will help you win an approval.

    Click here to learn more about appealing a denied disability claim.

    Hiring a Disability Lawyer or Representative

    No matter what stage you are on in the disability application process – whether it be the initial application, Reconsideration, or Hearing stage of appeal – you should consider retaining the services of a qualified disability lawyer to help guide your case through the disability appeals process. It is well established claimants with legal help have a better chance of winning than those who are not represented by counsel.

    The Ortiz Law Firm has years of experience in handling Social Security disability insurance claims. If you think you may qualify for disability and have questions about the process, contact Mr. Ortiz at 850-898-9904 for a free case evaluation.

  • What do I do if my claim for disability was denied?
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    Appeal, appeal, appeal.

    The number-one mistake claimants make is failing to appeal in a timely manner. A couple key things to keep in mind.

    First, there is a time limit to appeal. You only have sixty (60) days from the date on the denial to appeal. Second, the actual filing of an appeal is not as complicated or time-consuming as you may be dreading. Gathering and submitting the evidence to support the claim is more time consuming than filing the actual appeal paperwork with Social Security.

    Second, it is better to appeal a denial than to start a new claim. Statistically, most disability claims that are denied are not appealed. Most claimants either (1) give up on the process, or (2) file an appeal too late (more than 60 days after the denial), or (3) file a new claim or application from the beginning. Each case is unique; however, filing a brand new claim is usually a mistake.

    A failure to file a timely appeal or filing a brand new claim have the same end result: a loss of appeal rights and the need to start over at the very beginning with a new Social Security Disability or SSI application.

    Appealing Has the Best Chance at Winning

    Generally speaking, a claimant is better off filing an appeal of a denial than starting over and filing a new application.

    Filing a new application tends to be a waste of valuable time.

    New applications for disability will likely be denied for the same reasons as the initial application. In any event, missing an appeal deadline or starting a new application instead of appealing are situations that should be avoided because they waste a significant amount of time.

    [Note: If you missed your appeal deadline and you do not have a good reason for missing the deadline, then you may have to start over with a new application for disability.]

    Summary of What to Do After a Denial

    • Determine the root cause of why your case was denied.
    • Educate yourself about what a denial means.
    • Consider hiring an experienced disability lawyer to assist you in appealing the denial. Learn the “pros and cons” of hiring a disability lawyer.
    • Contact your local Social Security district office (or your attorney) and request an appeal.
    • Learn more about denials and appeals.
  • How long does it take to receive an approval or denial decision on a disability claim?
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    There is simply no way to determine or predict how long a case will take. Unlike other programs (such as the Department of Social Services, for example), the federal Social Security disability program unfortunately does not have deadlines to issue decisions on applications or appeals. Although there are no time limit deadlines to issue decisions, the following attempts to give some estimates of how long each stage of the disability process typically takes:

    The Initial Claim

    Social Security advises that it may take up to 180 days to issue a decision on a Social Security Disability Insurance (SSDI or SSD) or SSI claim. That being said, the average length of time it typically takes to receive a decision on your disability claim is from three to five months. It can vary depending on several factors, but primarily on:

    • The nature of your disability;
    • The number of medical providers you identified in your application;
    • How quickly we obtain medical evidence from your doctor or other medical source;
    • Whether it is necessary to send you for a medical examination in order to obtain evidence to support your claim; and
    • If your claim is randomly selected for quality assurance review of the decision.

    Reconsideration

    The first appeal after an initial denial is a Request for Reconsideration. A “Recon” Request typically takes between three weeks and three months to be decided. The length of time at this stage is typically determined by the amount of new records that must be obtained, and whether a consultative examination has been ordered.

    The Hearing Before an Administrative Law Judge

    If the Request for Reconsideration is denied, the claimant must file a Request for Hearing Before an Administrative Law Judge (ALJ). There is “good news” and “bad news” about this stage of the process. The good news is this is the claimant’s best chance of winning (statistically). The bad news is it can take a horrendously long time to get to a hearing. In fact, it can take as long as two years for a hearing before an ALJ can take place and for benefits to be awarded.

    An appeal to an ALJ usually takes much longer because a hearing has to be scheduled and heard. In the Mobile, Alabama, and Pensacola, Florida area, the wait averages 13 months. [Note: this does not run from the initial application; this is the wait from the time the Request for Hearing is filed after Reconsideration.]

    In many parts of the United States, the Social Security initial application and appeals process is taking longer and longer. Why is this happening? Part of the reason is a steep rise in disability claims, which may be due to the changing economy. The rise in claims may also be due to the fact that the population is aging.

    What Can You Do?

    At the Ortiz Law Firm, we understand it can be difficult not knowing when you’ll receive an answer to your claim when you are out of work and short on income while you wait for your disability case to be decided.

    Fortunately, if you have a very severe medical condition with a clear diagnosis, you may be eligible for an expedited decision through one of Social Security’s expedited disability benefit programs:

    • The Quick Disability Determination program identifies straight-forward and easily-determined disability cases through a sophisticated software program;
    • The Compassionate Allowances program is available for many cancers and other severe illnesses that are easily diagnosed and documented with objective medical findings;
    • The Terminal Illness program (TERI) is available for those with terminal illnesses or who are in hospice;
    • The Presumptive Disability program (for SSI claimants only) gives applicants with certain conditions monthly SSI benefits even before their disability claim is approved or denied.
  • Why is my attorney so concerned about drugs and alcohol in my disability claim?
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    The claimant’s use of alcohol and/or illegal (or “street”) drugs is one of the single greatest problems in getting claims approved. Why is it such an issue?

    Drugs and alcohol are a problem because the Social Security Administration may deny benefits where it finds such use is a “material contributing factor” to the disability.

    Standard of Review

    First, Social Security must determine whether there is “medical evidence of Drug Addiction and/or Alcoholism (“DAA”).”

    “Medical evidence of DAA” means that the evidence is from an acceptable medical source; and is sufficient and appropriate to establish that the individual has a medically determinable substance use disorder.

    If there is medical evidence of DAA, the SSA must then determine whether the DAA is material to the claimant’s disability. DAA is material only when the evidence establishes that the individual has medically determinable DAA as described, and would not be disabled if he or she stopped using drugs or alcohol.

    According to the guidelines, the key factor Social Security must consider when making a material determination is whether it would still find the individual disabled if he/she stopped using drugs or alcohol. In doing this, SSA must decide which of the current physical and mental limitations would remain if the individual stopped using drugs or alcohol; and whether any or all of these remaining limitations would still be disabling.

    Examples of When DAA Is Material

    The following are some examples of when DAA is material.

    1. The only impairment is a substance use disorder.

    2. The individual’s other impairment(s) is by itself not disabling; e.g., a hearing impairment that is “not severe.”

    3. The individual’s other impairment(s) is exacerbated by DAA and the evidence documents that, after a drug-free period of 1 month, the other impairment(s) is by itself not disabling.

    If the evidence in file is sufficient and consistent to establish that the individual is disabled but does not establish that the individual has DAA, then no additional development of the DAA is required, and SSA should make a disability determination based on the evidence in file.

    For additional information, visit the following pages on Social Security’s website:

    POMS Section DI 90070.050

    and

    20 CFR § 416.935.

    The “Reality” of DAA

    Now I have to tell what I believe to be the “reality” of DAA in disability claims. Many Judges are very hesitant to award benefits to claimants with a drug and/or alcohol history. Even if the use of drugs and alcohol is not “material” to the claimant’s disability, many (if not most) Judges will not award benefits to individuals where the Judge believes the claimant will use government benefits to consume illegal drugs or alcohol.