curved lines

LSNJ LAW has just been redesigned to better answer your legal questions, help you with your legal problems, or just teach you more about the law.
Please visit our new Web site at http://www.lsnjlaw.org.

LSNJLAW: You and the Law in New Jersey
LSNJ
  Read ThisOnline IntakeGet More HelpAbout LSNJEspanolSite Map
 
governmentaid

Government Aid and Services

Home Help      
Home Page > Government Aid and Services > Social Security Disability (SSDI) and Supplemental Security Income (SSI)

How to Appeal a Social Security Disability Denial

 

Appealing a Social Security disability denial can be confusing and discouraging. However, many claims are eventually overturned on appeal, making it worthwhile to continue the appeals process.

This article gives an overview. It will explain

  • Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI)
  • How to apply
  • How the Social Security Administration determines disability
  • What to do if you are denied disability benefits, and
  • Where to go if you need more help.

What disability programs are coordinated by the Social Security Administration (SSA)?

There are two Social Security Disability Programs: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). They have different rules for work history and income, and different benefit levels and health care coverage. However, the medical rules are the same for both.

  • SSDI: SSDI is a monthly insurance benefit paid to people who meet SSA’s definition of disability, and who have worked and paid enough into the system over the years. Children of such disabled workers, and their disabled widows or widowers, may also collect benefits if they meet certain requirements. If you become eligible for SSDI, you will also become eligible for health benefits though Medicare 24 months after you become eligible for SSDI payments.

  • SSI: SSI pays monthly benefits to people with limited resources and income who are blind, disabled, or age 65 or older. You have to be a U.S. citizen or meet certain immigration requirements. SSI benefits can go to disabled and blind children, too. You do not need to have worked to qualify for SSI. People who get SSI may qualify for food stamps/SNAP. Once eligible for SSI, you will receive health benefits through Medicaid, including prescription drugs.

How do I apply?

To start the process, you must file an application. Social Security claims can be filed one of three ways:

The application will ask you for a lot of information about your medical conditions, treatment, prior work, and daily activities.

When filing your application, it is very important to include the contact information for all of the doctors and medical facilities you have visited. Complete medical information is the key to your success. If you do not have contact information for doctors who have treated you in the past, you may be able to find them through the American Medical Association’s DoctorFinder for Patients Web page. To locate a hospital’s contact information in New Jersey, you can go to the New Jersey Hospital Association Directory.

Unfortunately, Social Security does not always pursue medical records, so the more records you can gather and submit, the better. Obtaining medical evidence is the single most valuable action a representative can take on your behalf. It can be tricky and often requires persistence. Unfortunately, medical records usually cost money, which is one advantage to using free legal representation by a nonprofit agency. Medical providers cannot legally charge more than $1 per page or $100 total for medical records ($200 total for hospitals). Some doctors and medical facilities will waive their fees if you explain your circumstances to them. You will have to sign a special medical release to get your medical records. Some medical facilities have their own releases, which you can only obtain by contacting that facility directly.

How does the Social Security Administration decide if I am disabled?

First a claim is evaluated at the initial application level. You will have to fill out various disability-related forms and possibly go to see SSA doctors. Your case will then be reviewed by an adjudicator at Disability Determination Services (DDS) to see if you qualify for benefits. When considering your application, the adjudicator must follow five steps, outlined below.

STEP 1: The first question Social Security asks is whether or not you are working. Contrary to popular belief, you can still work and receive disability benefits. However, you cannot earn over a certain amount of money (known as Substantial Gainful Activity or SGA). Also, if you do work, you need to be careful not to give the impression that you are still able to perform SGA, and be prepared to answer any questions that arise about the work that you can still do. You can find out the dollar amount for SGA at Social Security Online's Substantial Gainful Activity Web page.

STEP 2: Once SSA determines that you are not working for purposes of Social Security, the second test asks whether or not you have a “severe impairment.” An “impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.” Although the term “severe” is used, a condition does not need to be extremely limiting in order for you to get past this step. As long as your condition is one that will be expected to last at least a year or result in death, and it limits your ability to perform work activities, it is not hard to meet this test. Most claimants have at least one severe impairment.

STEP 3: Unlike the test for whether you have a severe impairment, the third test is very difficult to meet. However, if you don’t meet this test, you can still be approved. This test asks if your impairment is severe enough to meet or equal the Listing of Impairments. The Listing of Impairments is a list compiled by Social Security that contains most of the diseases and mental disorders that are likely to cause disability, and the required level of severity needed to prove disability. Social Security Online's Web site has Listing of Impairments for adults and children. Meeting the Listing can be difficult. Even though there are two more steps in the process, DDS will often deny your claim if you do not meet one of the medical listings, forcing you to have to go before an Administrative Law Judge to have your claim reviewed.

STEP 4: The fourth test asks whether you can return to any of your prior work. Generally, this means work you have performed in the last 15 years. If you get to this step, it is important to have a medical opinion as to your Residual Functional Capacity (RFC) from your doctor, psychiatrist, or psychologist. An RFC evaluation will detail all of the various limitations you have as a result of your physical and mental impairments. Generally, separate RFC evaluations are used for physical and mental evaluations. An RFC evaluation is important because, if it shows that you cannot meet the demands of your prior work, it will be more difficult for a judge to deny your claim at this stage. For both this stage and the following stage, jobs are generally divided into different levels according to how many physical demands must be met to perform them. These categories are sedentary (sitting down), light, medium, and heavy. If you are not able to get an RFC questionnaire, ask your doctor to write a letter for you, and ask him to be as detailed as possible about your actual limitations. A standard physical RFC opinion should include information about how much you can lift, how long you can stand, how far you can walk, and how long you can sit. For a mental impairment, details about your ability to follow directions, stay on task, remember important information, get along with coworkers and supervisors, and perform daily activities are important.

STEP 5: The last step, even if you cannot meet the physical and mental demands of your past work, is to consider whether there is any other work you can do. This step takes into account a combination of factors, including your age, physical and mental health, education, and work history.

What do I do if I am denied disability benefits?

If your initial claim is denied, you may appeal at the reconsideration level. At the reconsideration level, you will be able to submit new evidence and your case will again be reviewed. Claims at the initial and reconsideration levels are handled by DDS.

If you are denied a second time, at the Reconsideration level, you can request a hearing through the Office of Disability Adjudication and Review (ODAR). You will get a notice of hearing, which should say whether they plan to have any experts (medical or vocational) testify at your hearing. If they plan to have experts, and you do not already have legal representation, you should reconsider getting a lawyer at this time.

At this level, your case will be heard by an Administrative Law Judge. A hearing before an Administrative Law Judge is an informal process. The judge will ask you questions about your past work, medical conditions, limitations, treatment, medications, and daily activities. It is important to give straightforward answers that explain all of your limitations. If possible, you should try to give real life examples of how your impairments limit you. The chances of success are highest at this level, but are much higher if you have legal representation.

Following a hearing, the judge will usually issue a written decision. A decision can either be fully favorable, partially favorable, or unfavorable. If you get a decision that is not fully favorable, you will want to consider appealing to the Appeals Council. At the Appeals Council level, your case will be reviewed to see if any errors were committed previously. Both ODAR and the Appeals Council are run by the Social Security Administration. If you are denied at the Appeals Council level, you may appeal your case to federal court (a system that is not associated with SSA or bound by its policies). Representing yourself at this stage, however, is very difficult, and may be best left to an experienced representative. If you have any questions about handling an appeal on your own or any other disability-related question, you can call LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline, for advice at 1-888-LSNJ-LAW (1-888- 576-5529), Monday through Friday, 8:00 a.m. to 5:30 p.m. The hotline does not charge for its services, but certain eligibility rules apply.

Where can I go if I need more help?

  • The Social Security Administration’s Web site, provides more information than any other free online resource. (If you do not have Internet access, many local libraries provide free Internet access). In particular, the following documents are available on the Social Security Web site:

    • Code of Federal Regulations (CFR). Title 20, Part 404 pertains to SSDI. Title 20, Part 416 pertains to SSI. You can use the CFR to check a variety of rules that SSA must follow when determining if you are disabled.

    • Social Security Rulings (SSRs). An SSR is a ruling by Social Security that provides guidance as to how common situations should be handled. For example, if you have a mental impairment, SSR 85-15 lists what kind of limitations you would need to be disabled if you did not meet a listing.

    • HALLEX (Hearings, Appeals and Litigation Law Manual). The HALLEX is a policy and procedure manual used by Social Security to provide guidance on how SSA officials should handle appeals. For example, according to HALLEX Section I-2-2-10, all issues to be decided at the hearing should appear in the notice of hearing. This requirement ensures that you have adequate time to prepare your response or to collect evidence.

    • POMS (Program Operation Manual System). The POMS is the Social Security Administration’s policy and procedure manual that applies to all Initial and Reconsideration claims handled by DDS.

  • The Social Security Administration’s Social Security Handbook provides comprehensive information about different benefit programs.

  • Consider hiring an attorney or an experienced representative. Claimants who are represented win much more often than those who are not represented. Usually, you do not have to pay the attorney’s fee in advance. Often, attorneys only get paid if you are approved, and then the Social Security Administration (SSA) will automatically withhold and deduct attorney’s fees from your award to pay your attorney.

  • If you are unable to pay for representation, there are many programs that will provide free legal representation if you meet certain income and eligibility requirements. Your local Legal Services program can help. You can find a Legal Services program near you, or call Legal Services of New Jersey's statewide legal hotline, LSNJ-LAW™, at 1-888-LSNJ-LAW (1-888-576-5529).

  • If you are receiving welfare (GA or TANF) benefits, you can also call Legal Services of New Jersey’s SSI Project for representation in your SSI or SSDI claim. The SSI Project can be reached by calling 1-877-576-5774.

This article is from the April 2008 issue of Looking Out for Your Legal Rights®.

 

Top of page Terms of Use | Privacy Policy | Glossary

Low-income New Jerseyans can get free legal help by phone: call our toll-free hotline at 1-888-LSNJ-LAW (1-888-576-5529), Monday through Friday, 8:00 a.m. to 5:30 p.m. Outside of New Jersey, please call 732-572-9100 and ask to be transferred to the hotline.