Fighting the ALJ’s Decision

Picture this: you have made your way through the long disability determination process. Finally, you have had a hearing in front of an Administrative Law Judge (ALJ). But unfortunately, the ALJ’s decision is not in your favor, and your claim was denied. You may find yourself asking- what now? At this point, Social Security gives you a couple of choices.

The ALJ Denied My Social Security Benefits – What Are My Options?

Option 1:

Your first option is to appeal the ALJ’s decision to the Appeals Council. The Appeals Council  is another component of the SSA, with its headquarters 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.

The Appeals Council may uphold the ALJ’s decision and deny your claim again. Alternatively, it may reverse the ALJ’s decision and send your claim back to the ALJ with instructions to take another look at it. This is called a remand. Lastly, the Appeals Council may reverse the ALJ’s decision decision enitrely and award benefits to you directly. Because the Appeals Council handles appeals from ALJs all over the nation, it usually takes 12 to 18 months to receive a decision. For full details on the appeals process, you can check out the SSA’s website.

Option 2:

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 a Social Security Disability Insurance Attorney who is familiar with your case and can advise you as to your options.

Originally published on December 2nd, 2015

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.

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.

Elizabeth C. Leffel

A Social Security disability hearing is not a trial. It is not even in a courtroom. But the idea of a hearing can be very stressful for anyone. The hearing is just that, it is an opportunity for the Administrative Law Judge to hear the claimant’s side of the story. It is the time for the Judge to listen to what you have to say and ask questions to better understand your claim.

You will be asked questions about your work history, your age and education level, your disability, your treatment. The hearing is held in an office building in most areas. It is a conference room, set up with video and recording equipment. Hearings can be done with the Administrative Law Judge (AU) in person or in another city by video. The attorney and claimant are seated at a table. There is no witness box or jury or spectators. Usually the attorney makes an opening statement on your behalf and discusses procedural matters with the AU. Then depending on the method of taking testimony that the Judge prefers, the attorney will ask you questions or the Judge may do so.

One must be prepared to discuss every aspect of their disability. Activities of daily living are explored. The time limits for sitting, standing and walking are very important to know prior to hearing. The effect of the disabling impairment on one’s ability to perform activities is discussed. The prognosis for the future and the effect of medications and treatment are also considered and discussed.

Medical expert testimony may be elicited in certain cases where a Medical Expert has been called to testify. The doctor will assess the impairments and let the Administrative Law Judge know if the claimant’s condition meets the Listings found in the Social Security Regulations. The Listings are basic definitions of disability approved by the Social Security Administration. If a person meets or equals a listing, they are found disabled. The Medical Expert also addresses and gives testimony regarding the limitations and restrictions that are pertinent to the case, if the Listings are not applicable.

Vocational expert testimony is also used at a hearing. That is why testimony is taken from the claimant regarding the duties performed in past work. That is very important in evaluating whether there is a job in the past that can still be done, or whether other jobs are available that accommodate the current physical or mental restrictions. The testimony of a vocational expert (VE) is used to help make these determinations in most cases. A vocational expert will attend the hearing by phone, video, or in person. They will testify as to the past relevant work done by the applicant. They will give the Administrative Law Judge the lifting and standing requirements of that job, the exertion and skill level. Then the VE will be asked a series of hypothetical questions to determine if there are any past or other jobs available. The hypotheticals will describe the alleged disabilities and the restrictions on various environments and activities. There is an opportunity for cross examination of both the Medical Expert and the Vocational Expert. A brief closing argument is usually allowed.

Most hearings take 45 minutes to an hour. They are non-adversarial. The decision is usually not rendered at the time of the hearing. It can take 60-90 days before a decision is issued. The decision is sent by mail to the applicant’s current address. So it is important to keep that up to date with SSA or your attorney. The hearing gives you the opportunity to be heard, so don’t miss it.

Can You Collect Unemployment and Social Security?

In short, yes you can receive both unemployment and social security disability benefits. Due to the complicated nature of most legal issues dealing with compensation through government funds, this is something that is going to differ on a case-by-case basis. The most common issue we see is claimants trying to receive unemployment while they are waiting for their SSDI claim to be processed, which is something that can take months or even years. 

Collecting both benefits has become more common during the COVID-19 pandemic but it is still fairly rare. For more information regarding your specific case, you should contact a notable disability lawyer at Barkan Meizlish LLP. 

What is Unemployment?

Unemployment benefits, or unemployment insurance, is in place to reward those who are currently without work but actively searching for it. Unemployment benefits will grant you a predetermined percentage of your most recent income as a way to hold you over while you search for a new job. More information on how to file for unemployment can be found here.

What Is SSDI?

SSDI is an insurance benefit that people pay into and can make a claim for when they become disabled and no longer have the ability to work. It can take months or years for a claim to be approved which is why people often seek unemployment benefits at the same time. Filing for SSDI can be a lengthy and complex process and should never be faced alone. The disability lawyers at Barkan Meizlish LLP have handled countless Social Security Disability cases and can help you get the benefits that you have already paid for.

Can You Apply for Disability While on Unemployment?

The first thing you need to understand when trying to decide on your plan of action is that at their core intention, SSDI and unemployment benefits directly contradict each other. When filing for SSDI you are stating that you can no longer work in any capacity. Contrarily, if you are collecting unemployment benefits then you are admitting that you are both willing and able to perform work. Ensuring that the qualifications are met for both is best done through the eyes of a professional disability lawyer.

You can apply for disability while collecting unemployment but it might not be the best decision. While the SSA has said that collecting unemployment does not immediately disqualify you from collecting disability, it could greatly reduce the chances of you getting approved. 

This is ultimately a gamble and is going to entirely depend on the claims examiner reviewing your case. Some claims examiners are lenient and will still approve your SSDI claim while you are collecting unemployment. This comes from their understanding that SSDI claims take a while and that you need income in the interim. On the flip side, your claims examiner might only see the blatantly contradicting nature of the two benefits and deny your disability claim on the spot.

To prevent this from happening we recommend you wait until your unemployment benefits have run out or are nearing the end before filing your disability claim. This makes everything look good on paper and will force the claims examiner to review your claim based on your physical state alone and not the language used to describe the individual benefits. Always be upfront when filing for unemployment or SSDI benefits as you could face criminal charges and be ordered to pay back the money if caught.

Exceptions

In an effort to cut spending, the government is actively trying to prevent people from collecting both benefits at the same time. But like any other ruling, there are some legitimate and rare exceptions. One of the most common situations is when an individual is collecting unemployment and then faces a debilitating injury. They could file before their unemployment benefits stopped and still have a good chance at receiving SSDI as well.

This is far from the only qualifying circumstance but it is one of the most common. There are other unique situations that qualify individuals to receive both benefits. If you aren’t sure what route to take, contact the highly trained disability lawyers at Barkan Meizlish LLP. We have won countless cases since 1957 and have the case results to back it up.