by Scott E. Davis, Esq.
Disability AttorneyThe
application and appeals process for Social Security Disability
Insurance benefits can be so overwhelming and intimidating that
roughly half of all applicants give up after they are first denied
benefits by the Social Security Administration (SSA). The process
can make you feel like you are David fighting Goliath. But if you
prepare your case with the right legal and medical documentation,
and if you persevere, you can significantly increase your odds of
obtaining benefits. Proper preparation of your case is critical, as
SSA has made it increasingly more difficult to obtain benefits over
the past several years.
The
following are questions I’m frequently asked regarding the
disability system in general and specifically about cases involving
CFIDS and fibromyalgia.
Q: SSA
denied my claim. What’s the point of appealing? I don’t have
any new
evidence, so I don’t see how I can fight this huge agency with
all
of their experts and their complicated regulations.
A:
If this is you, you’re feeling exactly the way SSA wants you to feel
– defeated.
DON’T
QUIT! Keep in mind that 75% of all disability applicants are denied
benefits during the first step of the SSA process. SSA knows that
about half of those denied benefits will give up and not appeal.
However, 55%-60% or about three in five of those who do appeal and
go before an administrative law judge (ALJ) will obtain benefits.
If you
are denied benefits, don’t delay! You must appeal any denial letter
from SSA within 60 days. Following your appeal, the second step is
similar to the first, in that it is “merely” a paper review of your
claim. You still will not meet with anyone. The review, like the
initial decision, is based primarily on forms you completed and your
medical records. The SSA employees at these first two steps of the
process often are looking for reasons to deny your application.
While a very high percentage of applications are denied at this
review stage—80%--don’t despair. By appealing this denial, you move
closer to a hearing before an ALJ.
Q: Do
I need an attorney? How can I afford to hire an attorney?
Will an
attorney really improve my chances of winning benefits?
A:
I am asked this question frequently and my reply is always, “Do you
know what you have to prove in order to obtain benefits?” The
response is always, “I have no idea.”
You can
hire an attorney at any stage of the process. Practically all
disability attorneys work on a contingency basis, which means no
money up front and you pay the attorney for his or her time only if
you obtain benefits. Federal law sets a maximum amount for that fee,
and in almost every case it is a very small amount compared to the
benefits a person will receive.
Now that
you can afford an attorney, should you hire one? Absolutely. The
earlier you hire an attorney, the sooner he or she can begin
preparing your case. You should substantially increase your chances
of winning by working with an attorney who specializes in disability
law. The system is complex, and an attorney will develop your case
by obtaining the necessary medical and vocational records and
opinions from your doctors that are critical to providing
disability.
An
attorney is especially important in the appeals process and in
presenting your case to the judge, but he or she can be helpful
earlier, too. If you have a treating physician, your attorney can
fight to have your doctor perform a disability evaluation rather
than an SSA doctor, who will almost always tell the judge you are
not disabled. Also, the application requires a dizzying array of
forms requesting all sorts of information, and your attorney should
help you fill them out as they are important to your case. You won’t
win your case with the information you give on the forms, but you
could lose it. Your answers should be honest and somewhat brief. It
is critical to focus on your exertional and non-exertional
limitations and restrictions when completing the forms.
Q: My
doctor believes in CFIDS and that I am too sick to work,
but is the SSA going to believe my doctor?
A:
Your doctor is not thinking about your disability claim when he or
she is treating you. You need to tell your doctor you’ve filed a
claim for disability and measures his or her response. If you are
certain your doctor supports your claim, a reference in the records
that you are unable to work is very helpful.
You must
be a very detailed historian. Keep notes about the severity and
frequency of your pain, fatigue and other symptoms and about what
you are able to do—or not able to do—from day to day. Give this
information to your doctor and tell him or her that you want it
included in your records. Then get and keep copies of all your
medical records. Do not assume SSA will have all your records; 95%
of the time, critical records are missing.
Q: My doctor
has suggested a lot of different treatments,
but there are a few I’m
not sure about and a few I’d like
to try that he doesn’t think will
help.
How
could this affect my case?
A:
Exhausting all the possible treatments is good for your disability
case. It makes your testimony and that of your doctor more credible
and supports the severity of your symptoms because you will have
tried everything to find relief. I always advise clients to undergo
and try any treatment the specialist prescribes, including
nontraditional treatment. You don’t want to give an ALJ any reason
to wonder whether your condition might be so severe if you had only
followed your own doctor’s instructions. The SSA’s doctors will
usually tell the judge that your symptoms would improve and allow
you to work if you would undergo some type of treatment, and that’s
an opportunity for the judge to deny your claim.
It’s
important not to panic and not to give up. The SSA and ALJs are
increasingly familiar with fibromyalgia and CFIDS, and many people
do win their disability case based on those diagnoses. You will need
perseverance and knowledge of the system to win your case, but you
must not give up! Appeal every denial, hire an attorney and keep
fighting.
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