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The Challenges of Securing Disability Benefits

  • Published: 2012-12-18 (Revised/Updated 2013-06-13) : Bruce S. Lipsey.
  • Synopsis: For adults with intellectual and related developmental disabilities securing benefits they are entitled to can be challenging.
Developmental Disabilities
Developmental Disabilities - Birth defects that cause lifelong problems with how a body part or system works. They include; Nervous system disabilities affecting how the brain, spinal cord and nervous system function; Sensory-related disabilities, which can cause vision, hearing and sight problems; Metabolic disorders; Degenerative disorders such as Rett syndrome.

Main Document

Quote: "The options for an individual applying for Social Security disability benefits include applying online, applying in person at the local Social Security office, or having a law firm file it on behalf of the individual."

For adults with intellectual and related developmental disabilities, securing the benefits they need and are entitled to in order to better lead dignified and enriching lives can be challenging. With various hoops to jump through and confusing language to decipher, it's no wonder that many decide to forego the process entirely. They are in need of an advocate.

Currently, the process is even more challenging due to a convergence of factors, including the downturn in the economy and the aging of the baby boomer generation. But it cannot be denied that the court also seems more bent against claimants than since the days of the Reagan administration, when Congress stepped in and liberalized the system. Today, the average approval rate for claims is under 50 percent. That means more and more people are being shut out after long waits and going broke.

Generally, the application takes two to three months to process. Most are denied at this level. The appeal, or reconsideration level, will take another two to three months. One is then required to request a hearing before a judge. Remarkably, this could take a year. Therefore, it is imperative that the case is developed aggressively along the way so the applicant is prepared at every level for decision making.

Making the Case

Certainly, there are cases that shouldn't be approved, and I - and most good lawyers - try my best to weed them from my practice. But the trend now is for judges to pick and pick at a person's credibility. Flaws and wrinkles are exaggerated. It is more important than ever to attack cases early on and make sure that they are prepared properly. Evidence is crucial as well as having productive and open contact with one's doctor. The government is sending a message - those with disabilities are going to have to sweat it out some more.

Bruce S. Lipsey
About This Image: Bruce S. Lipsey
Once a person applies for social security disability, they will be subject to a medical examination by the social security administration. They are usually not that helpful, and typically used as the basis for a denial of benefits. An applicant should not be discouraged from moving forward. The applicant's treating doctor's opinion will be given more weight by the judge than the social security doctor. Therefore, it is important for the applicant to maintain good communication with his/her doctor so when it is time for that doctor to be called on for their opinion, the report will be favorable.

When a case is brought forward to hearing, one witness that the claimant should be aware of is the vocational expert retained by the government. Though the expert is not called upon to cross examine the claimant, he/she is asked a series of hypothetical questions that will be used by the judge to determine employability. It is important that the medical evidence in the case goes in strong so that the vocational expert will be forced to at least address the claimant's medicals in answering the hypotheticals.

Benefits at Work

Did you know that it is possible to work even while receiving Social Security disability benefits? The government allows for individuals to work a limited amount (up to $1,010 a month) without losing their benefits. There is also a trial work program that allows for a return to work while making any amount of money for nine months. After that point it is deemed a successful return to work and benefits would presume to stop. However, the claimant could drop under the $1,010 amount and continue to receive SSDI benefits.

The term "substantial gainful activity" is used by the administration to describe not only your actual earnings but your level of activity. The judge can find that you are still considered disabled even if your earnings are higher if you can prove that your work was overpaying you in relation to the work you were doing, substantial accommodations were made to keep you at work, maybe a helper was provided to you or you spend money on medical equipment that allows you the ability to travel to work. There are regulations in place that help define this more specifically, but it is definitely a complicated issue, so contacting a law firm or the Social Security Administration for further assistance would be recommended.

The Role of an Attorney

The options for an individual applying for Social Security disability benefits include applying online, applying in person at the local Social Security office, or having a law firm file it on behalf of the individual. Given the fact that there is a waiting period of five months before benefits can start, waiting a few months before applying is recommended.

Attorneys' fees in Social Security disability claims are set by the Social Security Administration's commissioner. Currently, the fee is based on a contingency (meaning the claimant is awarded benefits). The fee is 25% of the retroactive award, with a cap of $6,000. So, if the retroactive is $10,000, the fee is $2,500 and that is mailed directly by the government to the attorney without the claimant's involvement.

Generally speaking, an attorney is not required at the application stage. Although I routinely handle questions for applicants, it is not necessary to formally retain an attorney. I recommend counsel be hired at the reconsideration stage, as at that point the Social Security administration has made its decision to not pay.

If you are late in filing an appeal, all might not be lost. There are several criteria that can be used to open up a late appeal. For example, if you suffer from mental illness and did not understand the process, have difficulty with the English language or were misled by the Social Security Administration, your appeal might be allowed to proceed.

Those who live with disabilities understand firsthand the true meaning of the word "perseverance." It is unfortunate that so much perseverance need be applied toward securing such helpful benefits, but the determination put in toward this endeavor will go far toward making the financial burden of a person living with a disability that much easier to bear.

Bruce S. Lipsey is a Social Security disability attorney and partner at Epstein, Lipsey & Clifford, P.C. (www.elclaw.com) in Hanover, Mass. A graduate of Brown University and Suffolk Law School, Mr. Lipsey is a member of the Plymouth and Norfolk County Bar Associations, as well as the Massachusetts Bar Association and the Federal Bar Association. He can be reached at blipsey@elclaw.com

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