Tag: disability law

The Disability Decision Making Process

Understanding the Social Security disability evaluation process is important because it helps us understand how to prepare a better claim.

The Application

The first step in the disability process is for us to submit an application. On the application we include information about the doctors you seen, the medical tests you have had, procedures you have had, and medications you are taking. We also include information about your work history and your education. 

Once we submit the application it goes to the local Social Security office. At that office they make some technical determinations in your case. For example, they look at your work record to determine whether you have worked for long enough to qualify for disability insurance benefits. They also look at whether you are currently working (if you are doing substantial work, you are not disabled) and whether you meet the income and asset requirements for SSI.

If you meet the technical requirements for disability, they will send your claim to a state agency called the Disability Determination Services, or “DDS.” Once your claim gets to DDS it is assigned to a person called a Claims Examiner. The Claims Examiner is the person who will make the decision about whether you meet the medical requirements of disability.

The Claims Examiner

When the Claims Examiner gets your claim, that person will review the application and request the medical records from the medical sources you have listed. When those medical records are received, the Claims Examiner will write a short, usually one page, summary of those medical records. Then the Claims Examiner will send the claim to a different person at DDS called a Medical Consultant.

The Medical Consultant

The Medical Consultant will review your medical records and make a list of limitations in what Social Security calls “Basic Work Activities.” Basic work activities are the basic things that you need to do to be able to do any job. For physical activities, basic work activities include things like sitting, standing, walking, lifting, carrying, bending, kneeling, climbing stairs, and other similar activities. For mental activities, basic work activities include things like being able to remember and follow simple instructions, being able to get along with supervisors and coworkers, being able to work without being distracted by or distracting others, being able to maintain normal standards of hygiene and dress, and being able to maintain normal schedules.

A normal list of limitations in basic work activities will look something like this.

This person can occasionally lift 20 pounds and frequently lift 15 pounds. He can stand and/or walk about six hours in an eight hour workday. Likewise, he can sit for about six hours in an eight hour workday. He can occasionally (up to one third of the workday) climb ramps/stairs, ladders/ropes/scaffolds, balance, stoop, kneel, crouch and, crawl. He can reach overhead with both arms occasionally. He can do simple, routine work with occasional contact with others.

Making the Decision

After creating this list of limitations, the Medical Consultant will send the case back to the Claims Examiner. The Claims Examiner will then compare the list of limitations with the physical and mental requirements of the work that you have done in the past 15 years, called past relevant work. If the Claims Examiner determines that you can do any of your past relevant work, then you will be found not disabled. If you are determined to not be able to do any of your past relevant work, then the Claims Examiner will compare the list of limitations to all other work available anywhere in the national economy. If the Claims Examiner finds other work available your claim will be denied. If, on the other hand, there is no other work available you will be found disabled.

There are a couple of special situations to be aware of regarding age. If you are age 50 or older and you have never done a sit-down type of job and you don’t have the skills for a sit-down type of job, Social Security does not expect that you will work a sit-down job in the future. Therefore, even if you are found capable from a physical and mental standpoint of a sit-down type of job, Social Security will not require that you return to that job and will instead find that you are disabled.

Similarly, at age 55 if you are limited to what is called light work, which is work that requires standing on your feet for about 6 of 8 hours and lifting 20 pounds occasionally during the workday, and you have only done heavier manual labor types of work, Social Security will find that you are unable to return to other work and award disability.

Understanding this process, helps us to understand what sources Social Security looks to to determine your eligibility for disability benefits and what information Social Security is looking for in those sources.

How To Build a Better Claim

First, the primary source of information for Social Security about your disability is the medical records. That means that your limitations should be documented clearly and completely in those medical records.

Second, Social Security will be looking for limitations in basic work activities in those medical records. That means that you should make sure to discuss with your doctor how your medical conditions limit your ability to do daily activities such as cooking, cleaning, shopping, and interacting with others. The more specific and detailed the examples your doctor writes into the medical records the better.

If for example, you are over the age of 50 and your past work has all been truck driving, you will need to establish in the record that you are now limited to lifting less than 20 pounds occasionally and you are limited to standing/walking for less than six of eight hours. That means that you want to provide your doctor with examples from your daily activities that establish these limitations.

On the other hand, if you are under the age of 50 you will need to establish that you are unable to sustain any activities for an eight-hour workday sufficient for you to work. For example, if you have depression that keeps you from leaving the house several days a month you will need to establish that limitation in the medical record to show that you are unable to maintain normal schedules. If you have back pain that requires you to lay down for several hours during a normal eight-hour work., You will need to establish that in the medical records.

Using these simple techniques can substantially improve the quality of the evidence Social Security relies on determine your disability. Of course, having this information will not guarantee that you will win your case. However, having this information will definitely help you build a better claim and make your chances of winning much higher.

What Is the Americans With Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) is a civil rights law that generally prohibits discrimination against people with disabilities, with the goal of giving people with disabilities the same rights and opportunities as everyone else. The original disability law was passed in 1990, but in 2008 it was revised via the Americans with Disabilities Act Amendments Act (ADAAA). These amendments made significant changes to the definition of “disability” as well as narrowed down the requirements for certain cases, such as with small businesses.

The 5 Titles

ADA disability law is divided into five titles (sections) that apply to different aspects of public life:

Title I deals with employment. It helps people with disabilities access employment opportunities and benefits, and applies to employers with 15 or more employees. Employers are required to provide reasonable accommodations which enable those with disabilities to be able to do the job effectively. This title defines disability, establishes guidelines for “reasonable accommodation,” and addresses the subject of medical examinations and inquiries.

Title II deals with public entities, prohibiting discrimination based on disability by state and local government agencies. Title IIrequires public entities to make their programs, services, and activities accessible to people with disabilities. This involves identifying architectural barriers and communicating effectively with those who have related disabilities.

Title III deals with public accommodations, which includes privately owned, leased or operated facilities like hotels, restaurants, retail stores, schools, health clubs, sports stadiums, movie theaters, etc. Title II requires businessesto make reasonable accommodations to serve and communicate with people with disabilities.

Title IV deals with telecommunications. Telephone and Internet companies are required to provide a nationwide system of interstate and intrastate telecommunications relay services that enable people with hearing or speech disabilities to communicate over the telephone. Title IValso requires federally-funded public service announcements to have closed captioning available.

Title V deals with other provisions that don’t fit under the other titles. 

Who Does it Cover?

The ADA only covers people with disabilities. Disability is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities. These life activities include seeing, walking, communicating, sitting, and reading.

The ADA does not specify all disabilities that may be covered, but as of 2020, it is likely to cover 

  • Back injuries
  • Heart failure
  • Coronary artery disease
  • Vision loss
  • Hearing loss
  • COPD
  • Asthma
  • Multiple Sclerosis
  • Cerebral palsy
  • Parkinson’s disease
  • Epilepsy
  • Depression
  • Anxiety
  • Autism
  • HIV/AIDS
  • Lupus
  • Rheumatoid arthritis
  • Sjogren’s Syndrome
  • Marfan Syndrome
  • Dermatitis
  • Liver disease
  • IBD
  • Kidney disease
  • Cancer
  • Hemolytic anemia
  • Bone marrow failure
  • Bi-Polar Disorder
  • PTSD
  • Schizophrenia
  • Diabetes
  • Migraines

Conditions of short duration, such as sprains, infections, and broken limbs, are unlikely to be covered. Depression and stress (ex: anxiety) may also not be covered if they are the result of personal life or job pressures.

Being qualified for accommodations under the ADA does not mean that you qualify for disability benefits under Social Security. The opposite is also true. The definitions of disability for the two programs and their purposes are different. While the ADA is meant to help people participate fully in most aspects of public life, Social Security disability is meant to provide some minimal income when you are not able to work because of a disability.

It’s not easy to get SSDI or SSI benefits, and to be honest, Social Security denies most applications. In one survey, only 42% of respondents were approved for benefits. However, there are ways to increase the likelihood of a successful application:

People who have been disabled by a life event should apply as soon as possible. This is because the approval process can take a significant amount of time; at best about six months and in many cases 2-3 years or more.

Strong medical evidence is a major factor in the success of a claim. People with disabilities should get the help of a doctor or other medical professional to create the needed evidence for their application. Social Security will not believe anything you say about your condition unless it is backed up by strong medical support. Those who apply without the help of a medical professional are much less likely to receive benefits.

If you are still working when you file your SSDI or SSI application, that can also hurt your chances of getting approved. Applicants who are working over the limit that Social Security allows are immediately denied regardless of their medical conditions. , Working at the time of application can make it much more difficult to prove that you are sufficiently disabled to qualify for benefits because for many Social Security decision makers, doing any work is evidence that you are capable of working full time. If you are working, it is very helpful to get a note from your doctor explaining what your limitations in doing that work are, especially if your limitations include working less than full time hours. 

If your application is approved, disability benefits will continue until you are able to work again on a regular basis or until you reach full retirement age. Special rules, called “work incentives,” help those affected make the transition back to work by providing continued benefits and health care coverage during the transition period.

When you’re applying for protection under the Social Security Act, it can be extremely helpful to seek aid from a disability lawyer to streamline the process, answer your questions, and increase your chances of getting your claim approved on the first try. Contact us today to see how we can help with your case.