The Social Security Disability Insurance (SSDI) program is an involuntary insurance program, meaning that FICA taxes are automatically taken out of your paycheck to cover disability benefits should you become injured in an accident and no longer able to work.

Since you paid into these benefits with money you earned, it seems as if you should be able to use the funds if needed. Unfortunately, the Social Security Administration will make it extremely difficult for you to collect on these benefits. They will make you jump through hoops and untangle yourself from red tape in order to fight for what you deserve, and in many situations you’ll still be denied.

Applying for Social Security Disability benefits is very complex, and the Social Security Administration relies upon your lack of knowledge on how the system works to turn you down. After all, if you don’t know how to play the game, you can’t win. Here are three things you should do when applying for Social Security Disability benefits.

1. Learn everything you can about applying for Social Security Disability, as well as the appeals process. Doing everything correctly and in the right order will reduce the chances of you being turned down. Also, if you’ve been denied benefits, don’t give up. You have the right to appeal a denial. Whatever you do, don’t fill out another SSD application. Not only will you be turned down again, you will then lose your right to appeal. Instead, file a Request for Reconsideration. If this is also denied, you have the right to request a Social Security Disability Hearing before an administrative judge. Be sure not to throw in the towel before this stage; more than half of benefits are won at this level.
2. Substantiate your claim with medical records. Be sure to get copies of all your medical records, and submit them with your SSD application. Make sure your doctor supports your SSD application, and ask him or her to write a supporting statement for your case.
3. Get help. If you feel you aren’t being treated fairly by the Social Security Administration, ask your congressman or senator to help you. Also, it’s a good idea to seek representation from an attorney who has experience with Social Security Disability Insurance. An attorney will help you file your claim and appeal paperwork, will ensure no deadlines are missed, and has the knowledge to properly prepare your Social Security Disability case for hearing. Hiring an attorney will substantially increase your chances of winning your SSD case.

If you become disabled and are no longer able to work, make sure that you get the SSD benefits that you deserve and need. Educate yourself on the SSD process, and get the help of someone who can navigate the complex SSD system.

But now getting benefits may be even more difficult than in the past. That’s the gist of an article recently published in the St. Augustine Record newspaper. The reason has to do with the number of Baby Boomers who are reaching the age at which diseases and injuries mount to the point that a person simply cannot continue to work. Here are excerpts from the article:

Kim Paul Carter of St. Augustine thought he would easily qualify for Social Security disability after his second round of debilitating cancer cost him his carpentry job, his house and all of his savings.

“It’s pretty hard; it gets you depressed,” said Carter, who now is living in a camper on land his family owns behind his foreclosed house. His family members have to give him money for the gas he uses for the generator that supplies the electricity and he is often without phone service. “It’s hard after working all your life … depending on everybody else,” Carter said. “You feel like a burden to them.”

Carter is one of millions of Americans waiting longer for disability benefits because the number applying for benefits has grown substantially in the last few years, as has the number of rejections.

“Baby boomers reaching their disability-prone years and the economic downturn have contributed to the increase in applications,” said Patti Patterson, Social Security Administration regional communications director. Congress has imposed a strict definition of disability in order to be eligible for Social Security disability benefits, she said.

“Your condition must be so severe that it is expected to last at least a year and you are unable to work,” Patterson said.

The annual number of applications for the program has increased more than 28 percent over five years, going from about 2.5 million to about 3.2 million, according to administration statistics. At the same time, the number of approved applications has shrunk from 35 percent to 33 percent over the same time period.

The waiting period is slightly shorter than it was five years ago; initial claims take about 115 days to process now versus 120 on average, Patterson said. But for those who have been rejected, it could take a year or more to appeal the decision at the court level, she said.

By the numbers

Fiscal Year 2011: 3,243,079 applied for social security disability and 33.5% were approved at the initial level.

Fiscal Year 2006: 2,524,550 applied and 35.2% of these applications were approved at the initial level.

Source: Social Security Administration

Earlier this year, senior managers at the Social Security Administration in Baltimore, frustrated by a growing backlog of applications for federal disability benefits, called meetings with 140 of the agency’s doctors.

The message was blunt: The number of people seeking benefits had soared. Doctors had to work faster to move cases. Instead of earning $90 an hour, as they had previously, they would receive about $80 per case—a pay cut for many cases which can take 60 to 90 minutes to review—unless the doctors worked faster. Most notably, it no longer mattered if doctors strayed far from their areas of expertise when taking a case.

“The implication there was that you really didn’t have to be that careful and study the whole thing,” said Rodrigo Toro, a neurologist who analyzed cases for the Social Security Administration for more than 10 years. Some doctors, including Dr. Toro, quit following the changes. Others were fired. In all, 45 of the 140 left within months, the agency said.

The upheaval, described by current and former doctors and agency officials, is the latest strain on a cash-strapped program struggling to deal with a giant influx of applications.

In targeting the doctors, the Social Security Administration says it is seeking to overhaul a part of the disability-review process that can be both expensive and slow.

But many doctors and former agency officials say the changes threaten the quality of decisions. Several doctors said medical opinions were now prone to inaccuracy since many specialists don’t have the backgrounds to make decisions outside their areas of expertise. The new policy could make doctors more likely to award benefits to those who don’t qualify and deny benefits to those who are entitled, these doctors said.

After the procedures were implemented in Baltimore, an eye doctor was assigned back-pain cases, several doctors said. A dermatologist reviewed the files of someone who had a stroke. A gastroenterologist reviewed the case of someone with partial deafness, the doctors said.

All of the medical consultants working in the program went to medical school or had other extensive training, preparing them for the wide range of cases that might cross their desks, according to interviews with more than 10 of the program’s current and former doctors.

But many of the doctors haven’t practiced outside their specialty in decades, if at all, making the complexities of disability cases even harder to analyze, several doctors said.

Doctors who specialize in nerve disorders “would be hard pressed to evaluate diabetes and heart disease and … leukemia,” said James McPhillips, a doctor who left the program in April once he realized the changes that were coming.

The federal disability system is designed to help people who can no longer work. For many, it represents the social safety net of last resort. Successful applicants receive a monthly stipend and access to federal health-care programs, often for life.

Through a combination of high unemployment, an aging population and an uneven process for awarding benefits, the disability system is under strain and could run out of reserves within six to seven years, say budget experts. That would make it the first major federal entitlement program to go bust in recent history. Applications and appeals, meanwhile, are accumulating in a giant backlog, in part because of the deep and lasting economic slump.

The disability application process has many layers, including hundreds of state-based field offices that accept applications and administrative law judges who weigh appeals.

In addition, the Social Security Administration spends millions of dollars each year on more than 2,000 medical consultants who scour the medical records of Americans who believe they have a disability so severe they can’t work. Most doctors work for the state agencies that administer the program and are sometimes the only people with medical expertise to review claims. Others, like those in Baltimore, contract directly with the Social Security Administration.

Many medical consultants are retired or semi-retired doctors seeking additional income and working under contract, meaning they can be fired with little cause.

The Baltimore office is considered the flagship, according to several doctors and John Delpaine, who oversaw medical consultants there before retiring in December. In its procedures and structure, Mr. Delpaine said, the office sets the standards for offices throughout the U.S.

Q: I would like you to comment on the attached email. In it, you’ll see a photo that shows a waiting room in a typical Social Security office. I’ve seen similar scenes in my own local office. No wonder Social Security is in trouble if these kinds of people are ripping off the system!

A: Who are “these kinds of people”? To answer the question, let me describe the photo for the rest of my readers. Labeled “Our tax dollars at work: Social Security office waiting room — Austin, Texas,” the image shows a room full of chairs. Sitting in those chairs is a collection of mostly young to middle-aged people. Almost everyone in the picture is African-American or Hispanic. Above the picture is this question: “Do you see any gray or white haired retired folks?”

And this bit of vitriolic text accompanies the picture:

My friend went to his Social Security office to get a Medicare card. He took a picture of the waiting room. Please tell me if you can find a retired person in the place!!!! It’s called “disability” insurance!!!! You no longer have to wonder why Social Security is broke!!! These people do not pay into the system, nor are they disabled!!! Please spread this picture to everyone you know. Our country is going broke on this fraud!!! Please also go down to your Social Security office and take a picture and post it on the Internet. It just might wake up the country as to what is going on!!!

Gosh. Where and how do I begin to deal with this pile of Internet excrement? There’s so much I could point out that is absolutely idiotic.

Let’s start with one obvious point: I hope you realize how racist and xenophobic it is. The uninformed fool who posted this picture and text on the web never came out and said it, but instead of wondering where the gray-haired people were, he might as well have asked, “Do you see any white folks?”

And how about this whopper: “These people do not pay into the system, nor are they disabled!” How in the world can you tell all of that from looking at the picture? How can you tell that they haven’t worked and paid Social Security taxes? I guess it’s because they are “those people” — black and Hispanic. What other reason would the email sender have for saying that?

And how do we know they aren’t disabled? What do disabled people look like? Do they have to be wrapped head-to-toe in a body cast? Should they be lying on a hospital gurney? Or, once again, I have to wonder if maybe — just maybe — the email sender thinks they have to be white (and possibly using canes)!

And then there’s the implication that people get disability benefits without paying into the system.

That’s simply not true. To qualify for Social Security disability benefits, you must work and pay Social Security taxes, usually for a minimum of 10 years. Also, people who really know how the system works understand that it’s very difficult to qualify for Social Security disability benefits. In other words, you must be severely disabled before you receive monthly Social Security disability payments.

As I point out so often in this column, the Social Security Administration does manage a federal welfare program called Supplemental Security Income, or SSI. SSI is not a Social Security benefit and is not paid for out of Social Security taxes. To qualify for SSI, you must be over 65 or severely disabled, and you must be poor. So I guess there’s a chance that some of the folks in the picture are there to file for SSI benefits.

But I can tell you that most of the young and middle-aged people you see sitting in that waiting room in the picture are not there to file for Social Security or SSI disability benefits. They are there to replace a lost or missing Social Security card. How do I know? Because internal SSA studies show that about 80 percent of the people who come into a Social Security office are there to do just that. That’s the primary reason why you don’t see any “white-haired folks” in a Social Security waiting room.

So where are the old folks who need to do business with Social Security? They are sitting at home on the phone or at their computer. Most people who file for Social Security retirement benefits do so either online or by making an appointment for a phone interview. They rarely, if ever, have a need to visit a Social Security office.

Shame on the people who are spreading this vicious email!

• Learn how to collect the proper data to give an informed referral
• Learn how to distinguish among types of claims
• Become familiar with the Five-Step Disability Determination Process

Just as medical specialists should know at least the basics of other areas of medicine, so should lawyers know the basics of other areas of law. You may be a tax lawyer, but chances are you will get questions from clients or friends regarding everything from divorce to drunk driving laws. You may not want to give legal advice in these other practice areas, but you probably don’t want to appear totally ignorant of them.

So it helps if every lawyer can know at least enough to recognize a potential Social Security disability claim when talking with a client, potential client, or friend. For information beyond the basics included in this short article please visit the Social Security Administration website at http://www.ssa.gov.

Two Types of Social Security Disability Claims

Let’s start with some terminology. It seems almost every lawyer who contacts our firm with a possible referral says the case is a claim for SSI benefits. I don’t know why people seem to think all Social Security disability claims are called SSI, but this is an important misunderstanding. There are two basic types of Social Security disability benefits. They have many similarities, but several distinctions. One is an insurance claim and the other is a welfare program.

The insurance claim is called Disability Insurance Benefits, commonly shortened to DIB. The welfare program is Supplemental Security Income, or SSI. The medical and vocational qualifications are the same for each, but the financial qualifications are completely different.

To qualify for DIB, a person must have worked and paid in, through payroll deductions, to the Social Security system for at least five of the past ten years. To qualify for SSI, the person must have extremely low household income and assets, but does not have to show any record of paying into the system.

Another major difference between the two types is that people who qualify for DIB benefits receive Medicare coverage. People who qualify for SSI benefits receive Medicaid coverage.

Due to the space limitations of this article I will not attempt to discuss widow’s benefits, child’s benefits, or other types of disability claims.

Medical and Vocational Qualification

Once the financial determination is made, and the claimant meets the test for either DIB or SSI, the claimant must then qualify medically and vocationally for a finding of disability. In Social Security disability cases, the claimant must be determined to be totally disabled and unable to be gainfully employed. There is no percentage finding, as in veterans service-connected compensation claims. Social Security is an all-or-nothing system. Benefits do not require a finding of permanent disability however. A person can receive benefits if he or she is disabled for a minimum of 12 months.

These medical and vocational determinations are made in a series of decisions referred to as the Five-Step Disability Determination Process. A claimant must pass each stage in order, move on to the next stage, and finish out the process. If the claimant fails any stage, the process stops and the claimant will be denied benefits. Each step is in the form of a question.

The Five-Step Disability Determination Process

Step 1: Is the person engaging in substantial gainful activity?

If the answer to this question is yes, the person is not disabled. Substantial gainful activity means physical or mental activity performed full-time or part-time for an amount of money in excess of the amount defined as acceptable by the Social Security Administration. That amount for nonblind persons in 2011 is $1,000 per month. A person who is working and earning more than $1,000 per month is not disabled by law.

Step 2: Does the claimant have a severe impairment?

A severe impairment is defined by the Social Security Administration as an impairment or a combination of impairments expected to last more than 12 months and/or result in death, and that significantly limits the claimant’s physical or mental ability to perform work activities

Step 3: Does the claimant have an impairment or combination of impairments that meets or medically equals a listed impairment?

The Social Security Administration listings are a complex compilation of age-factored medical conditions and symptoms. The listings can be found online. The listings include both exertional and nonexertional matters.

This step is the one that allows the most flexibility for zealous advocacy on behalf of the claimant. Reading the listings and grid, and fitting your client into the proper slot, is similar to working a complicated puzzle. Many cases require a certain creativity to use your client’s physical, mental, psychological, educational, and vocational limitations in exactly the right combination in order to convince the administrative law judge (ALJ) to find disability. Lengthy articles and even books can and have been written about this step alone.

Step 4: Can the claimant perform his or her past relevant work?

This question is normally answered by using a medical finding referred to as residual functional capacity. Evidence may come from the claimant’s treating doctors and from a medical expert hired by the Social Security Administration. The claimant can also offer testimony on this point.

Step 5: Is there any other work in the national economy, given the claimant’s age, education, past relevant work, and residual functional capacity that the claimant could perform?

Vocational testimony is used to make this determination based upon information in the Dictionary of Occupational Titles. At the ALJ hearing there will frequently be a vocational expert who will present evidence regarding jobs available that fit the claimant’s residual functional capacity. It is the duty of the claimant’s lawyer to rebut this vocational evidence.

If a claimant makes it through these five steps, he or she should be declared disabled. Of course, as with any bureaucracy, this does not always happen. In those cases, an appeal may be in order.

The Procedural Stages

There are five stages at which a person may be declared disabled. Without going into any detail, this is the list of stages:

1. Initial Application

2. Reconsideration

3. ALJ Hearing

4. Appeals Council

5. Federal Court

In general there is a 60-day time limit in which to appeal a denial at any of these stages. One thing every lawyer must know is that time is of the essence in any Social Security disability claim. Never delay if you are asked questions about a claim. You do not want a deadline to pass because you postponed talking with someone about a claim.

Following this article is a very brief checklist of important things to do or to ask when first considering a Social Security disability claim. If you plan to refer the case to a Social Security disability lawyer, that lawyer would appreciate having this information when you make the referral call. This list (actually this entire article) barely begins to scratch the surface of this complex practice area. But the information here should allow you to discuss the basics of Social Security disability, and to recognize a potential case.

Lawyers who practice Social Security disability must learn huge amounts of arcane and sometimes contradictory federal rules and regulations, and must do battle daily with a gigantic obstructive bureaucratic government agency. The money is not great, because there is a $6,000 fee cap on most cases. But those practitioners have the enormous reward of helping clients who are in terrible physical and financial shape. Winning a Social Security disability claim is almost guaranteed to bring you a heartfelt hug from your client, and some of us think that’s worth much more than money.

New Cases: Questions to Ask and Actions to Take

Get the full name of the claimant as listed on the Social Security Administration paperwork.

Get the claimant’s marital status.

Does the claimant have any dependents under the age of 18?

What is the claimant’s level of education?

Has the claimant worked 5 of the last 10 years?

What is the claimant’s Date Last Insured under DIB claim?

Has the claimant applied for disability benefits before? Get copies of any prior applications.

When was the claimant last denied? Was an appeal done? When?

Get a copy of the claimant’s last letter or denial from Social Security—remember the 60-day deadline.

Has the claimant attempted to return to work since the disability began? Get dates worked and amounts earned.

Get all sources of income for the claimant’s household. Is the claimant receiving any form of government assistance such as food stamps or unemployment?

Who are the claimant’s treating doctors? Will their reports support a claim for disability?

Have the claimant’s doctors restricted work (for example a 10 pound maximum lift) in any way? Have the doctors put this in writing?

Is the claimant able to afford ongoing medical treatment?

Has the claimant filed any claims for workers’ compensation benefits? Is the claimant receiving long-term or short-term disability benefits from private insurance?

Are there any third parties such as friends or neighbors who can corroborate the claimant’s restrictions or needs for assistance with daily activities?

Is the claimant an honorably discharged veteran with a potential service-connected disability?

Laid-off workers and aging baby boomers are flooding Social Security’s disability program with benefit claims, pushing the financially strapped system toward the brink of insolvency.

Applications are up nearly 50 percent over a decade ago as people with disabilities lose their jobs and can’t find new ones in an economy that has shed nearly 7 million jobs.

The stampede for benefits is adding to a growing backlog of applicants — many wait two years or more before their cases are resolved — and worsening the financial problems of a program that’s been running in the red for years.

New congressional estimates say the trust fund that supports Social Security disability will run out of money by 2017, leaving the program unable to pay full benefits, unless Congress acts. About two decades later, Social Security’s much larger retirement fund is projected to run dry as well.

Much of the focus in Washington has been on fixing Social Security’s retirement system. Proposals range from raising the retirement age to means-testing benefits for wealthy retirees. But the disability system is in much worse shape and its problems defy easy solutions.

The trustees who oversee Social Security are urging Congress to shore up the disability system by reallocating money from the retirement program, just as lawmakers did in 1994. That, however, would provide only short-term relief at the expense of weakening the retirement program.

Claims for disability benefits typically increase in a bad economy because many disabled people get laid off and can’t find a new job. This year, about 3.3 million people are expected to apply for federal disability benefits. That’s 700,000 more than in 2008 and 1 million more than a decade ago.

“It’s primarily economic desperation,” Social Security Commissioner Michael Astrue said in an interview. “People on the margins who get bad news in terms of a layoff and have no other place to go and they take a shot at disability.”

The reason this is so bad for claimants is a little complicated to explain, but it is definitely not good news for disabled people. Here is the NOSSCR explanation:

In today’s Federal Register, SSA published SSR 11-1p, which revises SSA’s policy for filing subsequent applications where a prior application is pending at the Appeals Council. 76 Fed. Reg. 45309 (July 28, 2011). Available at http://www.gpo.gov/fdsys/pkg/FR-2011-07-28/pdf/2011-19103.pdf.

Under SSR 11-1p, which is effective today, SSA “will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.” This SSR does not change SSA’s policy where an appeal is pending in federal court. In those cases, the claimant may file a new application while the court case is pending. According to SSA, SSR 11-1p will not apply to subsequent applications that were filed before July 28, 2011.

Key provisions of SSR 11-1p:

A claimant who wants to file a new disability claim under the same title and of the same benefit type will have to choose between continuing with the administrative appeal or declining to pursue administrative review and filing a new application.

If the choice is to purse the administrative appeal, SSA will not accept the subsequent application.

Additional evidence reporting a new medical condition or a worsening of existing medical conditions can still be submitted. If submitted to an SSA Field Office, the evidence will be forwarded (in most cases, electronically) to the office handling the claim, e.g., the ODAR hearing office or the Appeals Council.

If the claimant decides to pursue the first claim and it is pending at the Appeals Council and additional evidence is submitted, the Appeals Council will first determine if the evidence relates to the period on or before the date of the ALJ hearing decision. If it does relate to that period, the Appeals Council will consider it with the rest of the record. See 20 C.F.R. §§ 404.970(b) and 416.1470(b). In Region I states, see 20 C.F.R. § 405.373.

If the new and material evidence relates to the period on or before the date of the hearing decision and “shows a critical or disabling condition, the Appeals Council will expedite its review of your pending claim.”

If the additional evidence relates to the period after the date of the ALJ decision, the Appeals Council will return the evidence to the claimant per 20 C.F.R. §§ 404.976(b) and 416.1476(b).

The evidence will be returned when the Appeals Council takes action on the appealed claim. The notice from the Appeals Council will inform the claimant that “under certain circumstances,” SSA will consider the date the request for review was filed as the protective filing date for the new claim. To be covered by the protective filing date, new Title II applications will need to be filed within six months of the date of the Appeals Council notice; new SSI claims will need to be filed within 60 days of the notice. Id.The new application can be filed only after the Appeals Council completes action on the request for review of the first claim.

If the claimant decides not to pursue further review of the pending claim, a new application can be filed. However, the claimant will need to withdraw the request for review. See 20 C.F.R. §§ 404.971 and 416.1471.

Effective August 15, 2011, Social Security field offices nationwide will close to the public 30 minutes early each day.  For example, a field office that is usually open to the public Monday through Friday from 9 a.m. to 4 p.m. will close daily at 3:30 p.m.

“While agency employees will continue to work their regular hours, this shorter public window will allow us to complete face-to-face service with the visiting public without incurring the cost of overtime for our employees,” said Michael J. Astrue, Commissioner of Social Security.  “Congress provided our agency with nearly $1 billion less than the President requested for our budget this fiscal year, which makes it impossible for us to provide the amount of overtime needed to handle service to the public as we have in the past.”

Most Social Security services do not require a visit to an office.  For example, anyone wishing to apply for benefits, sign up for direct deposit, replace a Medicare card, obtain a proof of income letter or inform us of a change of address or telephone number may do so at www.socialsecurity.gov or by dialing our toll-free number: 1-800-772-1213 (TTY 1-800-325-0778).