SOCIAL SECURITY: THE BASICS & BEYOND

What does Social Security Disability mean in monetary terms?

How does it interact with regular Social Security?

The money you receive for Social Security Disability can be thought of conceptually as the same money you would receive for regular age 65 retirement if you pretend you were age 65 on the date of your disability. In other words, if you get disability, you are essentially getting the amount of money you would have gotten had you been able to retire at the age you became disabled.

If someone is drawing early retirement (age 62) can they also draw disability?

Yes, with a caveat. Remember age 62 benefits are about 80% of full disability benefits. Also, if you draw age 62 benefits the amount will never be increased – even after turn 65. However, if an individual drawing age 62 benefits applies for and receives disability, what they are getting, in effect, is the other 20% or full retirement (age 65) benefits.

LEVELS OF APPEAL

Initial Application

The claimant must sign a written application and complete paperwork explaining the nature of this disability and list all relevant medical treatment. The case is then sent to a state agency called the Disability Determination Service or DDS for evaluation under the Social Security Administration’s rules. If denied, the claimant has 60 days to appeal to next level.

Reconsideration

The claimant’s case is sent back to DDS to be “reconsidered.” DDS usually finds no fault with their previous decision. If denied, the claimant has 60 days to appeal to next level.

Hearing Level

Claimant’s case sent to local Office of Disability Adjudication and Review (ODAR), formerly the Office of Hearings and Appeals (OHA), where the case is assigned to an ALJ who will hear the case. The ALJ has a duty to ensure unrepresented clients’ cases are full developed, but ODAR usually relies on attorneys and representatives to provide medical evidence for the file.

I highly recommend you submit any evidence as soon as possible, because most ALJ’s review the file and will not want to delay the hearing if you submit too much on the day of the hearing.

After the hearing, the ALJ will issue a detailed, written decision and close the record. It is very difficult to get any additional medical evidence in once the ALJ’s decision has been issued. If the decision is unfavorable, the claimant has 60 days to appeal to the Appeals Council by filing a Request for Review. If the same case has been previously remanded by the Appeals Council to the ALJ the deadline is only 30 days to file written exceptions to the Appeals Council.

Appeals Council

The Appeals Council (AC) is an administrative appellate level made up of “administrative judges” who are not full ALJ’s. The AC reviews the file and any written arguments submitted. The AC may also consider new evidence but there must be “good cause” for not having submitted it earlier. The AC may reverse the ALJ and issue a fully favorable decision or it may remand the case to the ALJ for further proceedings. Usually the AC issues a form letter denying the Request for Review and the ALJ’s decision then becomes the final decision of the Commissioner of Social Security. If the Request for Review is denied, the claimant has 60 days to seek judicial review in Federal Court if the case merits that level of review.

Federal Court Review

The standard for review is limited (42 U.S.C. 405(g)). The Court may only overturn Commissioner’s decision if it finds that the decision was not based on substantial evidence or that Commissioner made error of law. There is no de novo review. The Court can reverse the Commissioner’s decision, but usually the case is sent back for a new hearing. Generally, the Court upholds the Commissioner’s decision.

Court of Appeals

If a case is denied at the District Court level, a claimant may proceed to the Court of Appeals. However, the standard of review gets harder the higher up you go.

An informal review of the 6th circuit cases in 2002-2003 showed that almost all cases are appealed by denied claimants, almost all waive oral arguments, and almost all lose in unpublished decisions that are typically two pages long.