My Claim Has Been Denied By An Administrative Law Judge – What Are My Options?

You have made your way through the long disability determination process, and finally had a hearing before an Administrative Law Judge (ALJ). Unfortunately, the ALJ has denied your claim for benefits. What now? At this point, Social Security gives you a couple of choices.

First, you may appeal the ALJ’s decision to the Appeals Council, which is another component of SSA, located in Falls Church, VA. The appeal must be filed within 60 days of the ALJ’s decision. You don’t get another hearing at this level. Rather, the Appeals Council will review the ALJ’s decision, the evidence in your claim file, and legal arguments submitted by your attorney in support of the appeal. The Appeals Council will then make a new decision. It may uphold the ALJ’s decision and deny your claim again; it may reverse the ALJ’s decision and send your claim back to the ALJ with instructions to take another look at your claim, which is called a remand; or it may reverse the ALJ’s decision and award benefits directly. Because the Appeals Council handles appeals from ALJs all over the nation, it usually takes 12 to 18 months to receive a decision.

Your second option is to file a new application for benefits. Social Security no longer allows you to file an appeal and a new application at the same time, except under limited circumstances.
The best decision for you depends on several factors, including the strength of the evidence in your claim; whether you continue to be insured for the disability benefit; the ongoing state of your health; and of course any legal mistakes the ALJ may have made in denying your claim.

This decision is best made in consultation with your attorney, who is familiar with your case and can advise you as to your options.

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Law Does Not Provide for a Social Security Cost-of-Living

News Release
SOCIAL SECURITY

Law Does Not Provide for a Social Security Cost-of-Living

Adjustment for 2016
With consumer prices down over the past year, monthly Social Security and Supplemental Security Income (SSI) benefits for nearly 65 million Americans will not automatically increase in 2016.
The Social Security Act provides for an automatic increase in Social Security and SSI benefits if there is an increase in inflation as measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The period of consideration includes the third quarter of the last year a cost-of-living adjustment (COLA) was made to the third quarter of the current year. As determined by the Bureau of Labor Statistics, there was no increase in the CPI-W from the third quarter of 2014 to the third quarter of 2015. Therefore, under existing law, there can be no COLA in 2016.
Other adjustments that would normally take effect based on changes in the national average wage index also will not take effect in January 2016. Since there is no COLA, the statute also prohibits a change in the maximum amount of earnings subject to the Social Security tax, as well as the retirement earnings test exempt amounts. These amounts will remain unchanged in 2016. The attached fact sheet provides more information on 2016 Social Security and SSI changes.
The Department of Health and Human Services has not yet announced Medicare premium changes for 2016. Should there be an increase in the Medicare Part B premium, the law contains a “hold harmless” provision that protects approximately 70 percent of Social Security beneficiaries from paying a higher Part B premium, in order to avoid reducing their net Social Security benefit. Those not protected include higher income beneficiaries subject to an income-adjusted Part B premium and beneficiaries newly entitled to Part B in 2016. In addition, beneficiaries who have their Medicare Part B premiums paid by state medical assistance programs will see no change in their Social Security benefit. The state will be required to pay any Medicare Part B premium increase.
Information about Medicare changes for 2016, when available, will be found at www.medicare.gov.
For additional information, please go to www.socialsecurity.gov/cola.
Social Security 80 Years – Celebrating the Past and Building the Future
Join the Millions! Create your own my Social Security account at www.socialsecurity.gov/myaccount.

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Social Security and Depression

Social Security and DepressionMany claimants file for disability because they suffer from depression. Others, due to ongoing chronic pain or other symptoms, may became depressed and although depression may not be their main problem, it may became part of their disability claim. If you notice symptoms of depression because of your medical, and financial situation, you should seek treatment. SSA may set a consultative examination to evaluate the impact of your depression on your ability to work.

There is a range of testing for mental consultative exams, including a full psychiatric exam and a psychological exam which is essentially an IQ test. Very often, however, a claimant who has listed depression or anxiety on a claim will be sent to an abbreviated form of exam, known as a mental status exam.
A mental status exam will include data regarding your appearance, the way you speak, apparent physical limitation, your ability to sustain eye contact, how well you remember things, your concentration. They will also ask a claimant the date, time and place of the examination. They will also evaluate your ability to interpreter proverbs and your ability to deal with social situation.

Can your disability be granted based on a mental status exam? Likely not. However, that does not mean that a claimant who is sent to a mental status exam cannot be approved. Sometimes, psychological testing is scheduled simply to obtain recent additional medical evidence and in many cases the existing medical evidence is sufficient to warrant an award of benefits.

For this reason, individuals who file for disability on the basis of depression, or, really, any mental impairment, should strive to maintain a record of continuous and ongoing treatment. They should also stay compliant with their prescribed medications as a failure to do so may contribute to the basis for a denial.

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Why has my Social Security Disability claim been denied?

My doctor has told me that I’m disabled, so why has my Social Security Disability claim been denied?

Even though your doctor may have reported to Social Security that, in his opinion, you are disabled, Social Security may not automatically adopt that opinion. Rather, they will evaluate all of the medical evidence in your claim file, including your doctor’s treatment notes, hospital records, test results, and the reports of doctors who may have examined you at the request of Social Security.

At the initial and reconsideration levels of the claim, all of this medical evidence is reviewed and evaluated by “in house” doctors, who arrive at a conclusion as to the severity of your medical conditions, and their impact on your ability to work. An adjudicator then uses this information to decide whether you qualify for benefits, under Social Security’s rules. At the hearing level, it is the Administrative Law Judge who makes this decision.
Although Social Security may not automatically adopt your doctor’s opinion as to disability, they cannot simply ignore his opinion and, if it is well supported by the overall evidence, must give it controlling weight in their decision. Therefore, when applying for disability, it is very important to be in regular treatment; to report all of your symptoms to your doctor; and to follow all of your doctor’s treatment recommendations. By doing so, there is a better chance that Social Security will adopt your doctor’s opinion as to disability.

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Disabled Widow(er) Cases

If certain conditions are met, a person may qualify for disability based of his/her spouse earning record. To qualify for disability insurance benefits, a widow(er) must have become disabled before the end of a certain period described by law. The disability must begin at least 5 full calendar months before the month the widow(er) attains sage 60 (before age 63 if disability is being established for “Medicare only” purposes) and no later than 84 months after the latest of the following months:

(a) The month of the worker’s death; or
(b) The month in which previous entitlement to disabled widow(er) benefits terminated because the disability had ceased; or
(c) With respect to a widow(er), or surviving divorced spouse, the last month of entitlement to mother’s/father’s insurance benefits based on the worker’s record.

 

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80th Anniversary for Social Security

Social Security gets closer to the agency’s historic 80th anniversary and prepares to commemorate the August 14, 1935, signing of the Social Security Act. Acting Commissioner Carolyn W. Colvin today announced the launch of the agency’s event-filled celebration, with many activities leading up to August 14, 2015.

“Social Security offers hope and protection for millions of people and some of the most vulnerable members of the American public,” Acting Commissioner Colvin said. “This was President Franklin Roosevelt’s vision in 1935, and the vision has never been clearer, nor has the work of our agency ever been more important than it is today.”  

Observing this important milestone would not be complete without the participation of the agency’s employees and the public. To engage the public, Social Security launched a commemorative 80th anniversary website, where they will learn more about the agency’s legacy and the importance of the Social Security program. The website is: www.socialsecurity.gov/80thanniversary.
This website can be used by anyone who wants to tell how Social Security changed their life or the life of a family member.

 

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How Does SSA Decide if I am Disabled?

Social Security follows a multi-step evaluation process. They will gather medical records from your doctors and obtain hospital records and test results. SSA may choose to have you examined by a doctor or psychologist. To determine if you meet the definition of disability, SSA will ask the following questions:

1) Are you working? If so, your claim will be denied. If not, proceed to next question.

2) Do you have an impairment or combination of impairments which significantly effects work related functions such as standing, walking, lifting, hearing, seeing, concentration, attention to task, attendance, and understanding instructions? SSA will also consider if your impairments have lasted or are expected to last for at least 12 months. If not, your claim will be denied. If yes, proceed to next question.

3) Is your condition so severe as to qualify for disability without further consideration? SSA has a list of impairments which are considered to be totally disabling. If your impairment meets all the elements of the listed impairment, you will be determined to be disabled. If not, proceed to next question.

4) Do your impairments restrict your work capacity so that you cannot return to any of your past relevant work? SSA considers your past relevant work to be all jobs you performed in the past 15 years. If you are found to be capable of returning to one or more of your past jobs, your claim will be denied. If SSA agrees you cannot return to your past work, proceed to next question.

5) Do your impairments restrict your work capacity so that you are unable to adjust to other work which exists in significant numbers in the national economy? SSA does not have to find you work or determine that you could be hired. SSA only determines whether you would be capable of performing and sustaining work if given the opportunity. In determining whether you are capable of other work, SSA will consider your age, education, past work performed, and acquired skills.

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The Social Security Disability Claims Process

Paul F. Woodrow

Filing for Social Security Disability (SSD) benefits involves a sometimes lengthy administrative process.  A claim is filed by contacting the Social Security Administration (SSA), which may be done online, over the telephone, or in person at your local SSA office.  The SSA representative will ask you for information about when you became disabled, your work history  and,  most importantly,  the medical and /or mental health conditions that prevent you from working.  It is very important that this information be complete and accurate, so that SSA can thoroughly evaluate your claim.  Once they have obtained this information, SSA will transfer your claim to the Bureau of Disability Determination, an agency of the state of Ohio, which will actually process your claim, using SSA’s rules and regulations for evaluating disability.

The state agency will contact your doctors and other medical providers, and gather all of the medical evidence pertaining to your disabling conditions.  They may send you to a doctor for an examination, at their expense, in order to get a better picture of your medical condition.  They may also contact you or your representative for additional information.  Once the state agency has gathered all the evidence, your claim will be reviewed by a state agency doctor, who will determine the severity of your medical conditions, how they may limit your ability to function in a work setting, and whether they meet the SSA definition of disability.  Your claim will then be returned to SSA, who will send you a written decision.  At the initial level, this process usually takes about six months.  If SSA finds you disabled, they will then process payment of your benefits.

If your claim is denied, you have the right to appeal.  This is called requesting a reconsideration.  At this level, SSA and the state agency will obtain updated medical evidence, review your claim again, and make a new decision.  This process usually takes three to six months.  If SSA finds you disabled at this level, they will notify you and process your benefits.

If your claim is denied at the reconsideration level, you have the right to request a hearing.  At the hearing level, you will have the opportunity to appear and testify at an informal hearing before an Administrative Law Judge.  Your representative will make sure all the evidence is up to date, and will present your claim to the Judge, making arguments on your behalf.  The Judge does not have to follow the earlier decisions which denied your claim, but will make a brand new decision after considering the medical evidence, your testimony, and the arguments of your representative.  Because of the large backlog of claims at the hearing level, it usually takes about nine to twelve months for a hearing to be scheduled.

When filing for disability benefits, it is very important to be in treatment for all of your medical and/or mental health conditions, so that they can be documented for your claim.  It is also vital that SSA be kept informed of any changes in your medical condition or treatment, so that they will have complete and accurate information when evaluating your claim.  Your attorney representative can help you make sure SSA has all the information they need at all stages of the claim, and can help present your claim in a way that will maximize your chance of success.

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