The Disability Process


Cooke & Company, Thank you so very much!Cynthia
Tracy Cooke & Mike, Thank you so much for your help.Kathy

rockclimbApplying for, successfully winning, and ultimately getting paid Social Security disability benefits is typically a long, complicated and confusing bureaucratic process full of deadlines, waiting in lines, government forms, endless abbreviations, confusing official notices written by attorneys for attorneys, bad information, contradictory information, and no information at all. And the key to understanding it all is what they often do not tell you on the SSA website, the 1-800 telephone number, or at the Field Office customer service window.

What is the Social Security Administration’s definition of disability?

The definition of disability used by the Social Security Administration is being unable to work due to medically-proven physical and/or psychological impairments that are expected to result in death, or to last for a minimum of 12 months. This definition can differ dramatically from that used by state and local public assistance programs, insurance companies, and other entities. And, of course, actually proving disability entails additional issues such as age, education, medicine impacts, Past Relevant Work, Activities of Daily Living, impairments taken both individually and in combination, and general claimant credibility, to name just a few.

How do you get Social Security disability benefits?

You can apply in person or via telephone at any Social Security Field Office, or online at When you apply, the Administration will first determine if you are qualified for RSDI, SSI or Concurrent programs. If you qualify for RSDI, they will help you determine your Alleged Onset Date (AOD), which is the date your disability precluded employment at Substantial Gainful Activity (SGA) levels. Then your case will go to the Disability Determination Services (DDS), which is typically run through your state Department of Health and Human Services (HHS). And that’s when it gets interesting. They will have you complete a wide variety of government forms such as Work History, Medical History, possibly a Pain Questionnaire, and everything in between. They will request medical records from your relevant medical providers within the timeline indicated by your RSDI AOD, or, if it is an SSI case, your Protected Filing Date (PFD). And they will likely send you to a physical and/or psychological Consultative Examination (CE) with doctors provided at government expense.

  • And from the first application appointment onwards, literally everything you say, everything you do,  everything you don’t say or don’t do, how you look (clean or disheveled?), how you smell (alcohol or cigarettes?), how you act (normal or abnormal?), how you behaved at the CE exams (cooperative and full effort or non-cooperative and malingering) will be quietly noted in your file for future consideration by the Administrative Law Judge (ALJ) eventually assigned to hear your case.

After all this, they will most likely say that while you have obvious medically-determinable impairments that impact your daily life, they are not severe enough to keep you from working and thus you do not meet the Social Security definition of disability, but if your condition worsens, please feel free to try again. Social Security historically denies approximately 85% of initial applicants. At that point, you can throw up your hands and quit, or depending on which state you live in, file for a Reconsideration, which is almost always a rubber-stamp of the original denial, or file for an Administrative Law Hearing before an Administrative Law Judge (ALJ) at the Office of Disability Adjudication and Review (ODAR), at which you will have the legal “Burden of Proof” to medically and vocationally prove you are disabled.

How long will the disability determination process take?

The initial application and DDS phase typically takes from three to four months. A Reconsideration request, if required by the state in which you live, can take another three to four months. An Administrative Law Hearing is supposed to be scheduled with 12 months of your request, but in reality, it can take 14 to 18 months. The Social Security Administration is just now getting over a disability hearing backlog that in some states had hearings taking place a full 24 months after they were requested. Unfortunately, even though the Administration has now largely caught up with the hearing backlog, the negative state of the economy has dramatically increased the number of people filing for disability, which in cascade effect is once again expected to create a hearing backlog in 2013 and 2014.

gavelHow does the judge decide if you are disabled?

The judge must follow a five-step sequential evaluation process. First, she must determine if you are engaging in work that meets Substantial Gainful Activity (SGA) levels: essentially full-time work earning over $1,000 a month. Second, she must consider if you have a medically-determinable impairment, or a combination of impairments, considered to be severe under Social Security guidelines. Third, she must consider whether your impairment or combination of impairments meets or medically equals the criteria of an impairment listed in the regulations of the Combined Federal Rulings (CFR). Fourth, she must determine your Residual Functional Capacity (RFC), and whether you retain the ability to do your Past Relevant Work (PRW). Fifth, she must consider whether there is any work in the national economy you can still do, considering your RFC limitations, age, education, work experience and transferability of work skills, if any.

Now, think of the famous symbol of the Scales of Justice: the blindfolded woman holding up the equally-balanced scales. To do her job, the judge must consider the varied medical and vocational evidence of your case, and assign it weight upon those scales. The greatest weight possible is that of a conclusive medical record with clear medical signs and symptoms and medically-supported opinion evidence rendered by a doctor with whom you have had a treatment relationship for one year or longer. Good weight can also be accorded to the tests and diagnostic opinion of a specialist your doctor may have referred you to. Of less weight is the opinion of a doctor you’ve seen only a few times, or who only ran a few tests. Of even less weight is a doctor you’ve seen only once. In general terms, the opinions of MDs, PhDs and PsyDs carry great weight, while the opinions of LCSWs, RNs and such carry lesser weight, or can even be considered an unacceptable source. Your own opinion testimony is important, of course, and the judge will generally give you the benefit of the doubt, but the opinion of a medical professional backstopped with complete records that are generally in agreement with the medical record as a whole are usually assigned great or even controlling weight, and will thus win the case.

What if your doctor says you are disabled?

It doesn’t mean a thing. In fact, by law the judge can’t even consider your doctor’s opinion on the issue of disability because it is an opinion “Reserved for the Commissioner.” That phrase means the Commissioner of the Social Security Administration through the legal opinion of his due representative, the Administrative Law Judge. What your doctor can do, however, is insure that your medical records are complete by considering every possibility for your illness, ordering proper tests, stating your medical signs and symptoms in clear, unambiguous language, and offering opinions as to your medically-supported physical and psychological limitations.

What if you have a state Med-9 form stating you are disabled?

See above. It’s a state form, not federal, so it’s not applicable to an SSA disability hearing. Furthermore, the signing doctor, if it’s even signed by a doctor rather than a nurse,  typically has a very limited treating relationship with the patient. And again, the opinion of disability is “Reserved for the Commissioner.” Thus, the presiding judge will grant it little or no weight.

Can you help your case?

scalesAbsolutely! First, get representation. Second, see your doctor regularly. Third, tell your doctor absolutely everything about your illness or injury that is negatively impacting your daily life. Having problems sleeping? Tell your doctor. Need a daily nap or have to elevate your feet? Tell your doctor. The medications she prescribed for you making you dizzy or nauseous? Have to go to the bathroom far more than usual? Tell your doctor. Stopped driving due to your condition? Can’t stand long enough to make dinner? Constantly dropping things? Tell your doctor. Have to leave the store with your cart almost full because you can’t stand the crowd? Hearing voices, seeing shadows or smelling scents that aren’t there? Have days where the pain or depression or anxiety is so bad that you can’t get out of bed, let alone leave your home? Tell your doctor!

The list is substantial, depending upon your disability, and can include limitations on how long you can sit, stand, or how far you can walk; limitations on how much you can comfortably lift and carry; limitations of focus and memory as demonstrated by the need to rely on lists, or having problems reading or watching television or movies; limitations on socialization as reflected by your ability to go to the store alone, get along with others, work without distraction, accept criticism and guidance, and tolerate a rapid pace or change. What might seem silly or embarrassing to you could be the factor that wins your case, so tell your doctor absolutely everything. If you don’t tell your doctor, it’s not in your medical record. And if it’s not in your medical record, it carries very little weight, and thus is not of particular help at your hearing.

Can you hurt your case?

Absolutely! Is there a history of drug or alcohol abuse in your medical record? By law, the judge cannot award you disability if Drug or Alcohol Abuse (DAA) is actively present and contributing to your disability. (In other words, if you removed the DAA and would then be able to work, you are not disabled under federal law. However, if you would still be unemployable even after removing DAA, then you might be disabled under the law.) Have you been incarcerated? Judges are human and incarceration may impact your general credibility. Particularly if the incarceration is narcotics related. Have you received unemployment benefits? To get unemployment you have to agree to actively look for work, yet to get disability you are claiming to be unable to work. The judge may find “Secondary Gain” in that contradiction that hurts your credibility. Not taking prescribed medications or following your doctor’s orders? The judge may find that you are not cooperating with medical procedures that would make you healthier and thus able to work. (An example is continuing to smoke even though you have asthma, or refusing to take bipolar meds that have been proven to stabilize your mood swings.) Are you young and have no employment record to speak of? The judge may find that you simply haven’t tried to work through your disability, as so many people have before you. Please understand that Cooke & Company, Inc. has won cases even with the presence of these issues, but these issues can make the job more difficult. Be aware, it is generally easier to get disability after age 50 because the regulations change.

When considering the Social Security disability process, remember that the famous Scales of Justice are supposed to demonstrate that justice is blind. However, be certain that you are not blind to these concerns. Remember that the “Burden of Proof” is on you to prove your disability. Information is power, and proper preparation prohibits poor performance.