Common Claimant Misconceptions about Social Security Disability Benefits
There are many misconceptions when filing for Social Security. This article will list some of the more common misconceptions of claimants as they relate to the disability process.
- GENERAL MISCONCEPTIONS
- MISCONCEPTIONS ABOUT MEDICAL OPINIONS AND RECORDS
- MISCONCEPTIONS ABOUT HIRING AN ATTORNEY
- MISCONCEPTIONS ABOUT HOW LONG THE PROCESS TAKES
- MISCONCEPTIONS ABOUT HOW TO ACT AT THE HEARING
- MISCONCEPTIONS ABOUT THE STANDARD FOR DISABILITY
- MISCONCEPTIONS AFTER THE HEARING
- MISCONCEPTIONS ABOUT DATES
- OTHER MISCONCEPTIONS
- THINGS TO WATCH OUT FOR
- THINGS NOT TO DO WITH CLAIMANTS
1. “My case is an above average case.”
This misconception is usually based on a claimant comparing their case to a friend, relative, or other. However, one case is completely irrelevant and immaterial to another. Claimants must also understand that there is no way to predict how an Administrative Law Judge will decide their case.
2. “Every claimant who goes to a hearing wins!”
However, national statistics show the following:
- Only 33% of initial applications were granted for Fiscal Year 2012. Social Security Administration, Office of Disability Program Management Information, “Fiscal Year 2012 Workload Data: Disability Decisions” Data Prepared November 26, 2012;
- Only 12% of reconsideration appeals were granted disability benefits for fiscal year 2012. Id; and
- Only 47% of disability claimants that appeared before an administrative law judge were granted disability for fiscal year 2013. According to the Deputy Commissioner of Social Security Glenn Sklar, the 2013 allowance rate was a 40-year low.
- NOTE: You can research the allowance rates for your local ODAR Administrative Law Judges at http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html
3. “If l lose my claim, it is somebody’s fault!”
Not true. Some claimants simply do not have a good factual case. For example, their impairments are not very restrictive and do not prevent sedentary (sit-down) or light work. Others do not have a supporting treating doctor or psychologist and thus do not have a good residual functional capacity evaluation in the file.
Thus, before representing a claimant the representative must determine during an initial interview with a claimant “How good are the facts of the case?” After this is determined, a representative can start developing a theory of the case. But, if the claimant, for example, is not seeing a doctor, then the “facts of the case” are not very good. The same may be true if the claimant is not taking medications for the impairments or does not need medical treatment for his impairments.
4. “If I qualify for disability from another agency or program I will be eligible for benefits from the Social Security Administration.”
The Social Security Administration’s rules are different from private plans or other government agencies. The fact that you may quality for disability from another agency or program does not mean that you will be eligible for disability benefits.
MISCONCEPTIONS ABOUT MEDICAL OPINIONS AND RECORDS
5. “If I have a statement from a doctor indicating I am disabled, I will be eligible for benefits.”
Having a statement from a doctor does NOT mean you will automatically be eligible for disability benefits. There are many other factors that are considering when determining whether someone is eligible for disability benefits.
6. “Once I receive a diagnosis from the doctor that is all I need to win.”
However, a diagnosis does not matter. What matters is the severity of the impairment and how the impairment(s) affects the ability to work 40 hours a week, under Social Security Ruling 96-8p (1996).
7. “The more medical records I submit, the better my chances of winning!”
It does not matter how many pages are submitted, especially if they cannot be understood by the person reading them. However, some representatives must believe this, as they routinely submit duplicate and triplicate medical records.
8. “I submitted all of my medical records to Social Security!”
Some claimants think this is all that is needed to win. But, more important than submitting their medical records, is what their medical records show.
If a claimant went to an emergency room every week for one year, the medical records would indeed be large. However, if every exam done at that emergency room was normal, there are no “objective medical findings” for a judge to find a claimant disabled. Therefore, the claimant needs to specifically point out what in the medical records supports a finding that they are disabled.
9. “The Administration errs if they did not obtain medical records which are several years old, even though the onset date of disability is recent.”
The Disability Reform Act of 1984 requires the Administration to obtain medical records for the 12 months before the date of application. See 20 CFR 404.1512 (d). The claimant can, of course, submit older medical records if relevant and material, but the Administration may not be required to obtain these records on their own.
10. “The Administration should know about a recent hospitalization or MRI study even though I didn’t tell the Administration about this.”
In some cases, the Administration will not obtain medical records because the claimant has not told the Administration about a specific doctor or hospitalization. It is not the Administration’s fault if the claimant does not advise them of a specific doctor or hospitalization!
For example, a claimant has been waiting four-five months for a reconsideration decision and has been in the hospital three times since filing the reconsideration appeal. If the claimant or the representative did not tell the Administration about these hospitalizations, the Administration cannot request these medical records since they do not know about the hospitalizations. Hospitals do not have a “super computer” linked to the Social Security Administration which automatically sends medical records to the Administration. The same is true with regard to medical records when the case is pending before an Administrative Law Judge.
MISCONCEPTIONS ABOUT HIRING AN ATTORNEY
11. “Once I hire a representative, my case will be moved up at reconsideration or for a hearing.”
NOT TRUE. In fact, this belief (in many instances) is the reason claimants want to hire a representative. Below, you will find the different stages to the appeals process and an average of how long each stage takes:
- Initial Determination – 3-5 months
- Reconsideration – 3-4 months
- ALJ Hearing – 1 year (maybe longer)
- Appeals Counsel – 1 year 3 months
- Federal Court – 1 year 6 months
12. “The long waiting periods, rules, and procedures will not apply to me when I hire a representative.”
Among this misperception are the following misconceptions:
The claimant thinks:
- he/she will not have to wait 12 months to have a hearing.
- the 5-month waiting period for Social Security Disability Insurance (DIB) benefits does not apply to him/her; or
- the 30-month waiting period for Medicare coverage does not apply to him/her; or
- the workers’ compensation offset does not apply to him/her; or
- the income and asset limitations does not apply to their SSI benefits.
13. “Now that I have hired a representative, my doctor will fill out a residual functional capacity evaluation or write a letter for me.”
Maybe the doctor does not think the claimant is disabled. Maybe the doctor does not understand the Social Security disability program and thinks that the claimant must be bedridden to be found disabled.
It is important that a representative not press the doctor to find the claimant disabled unless (1) the doctor truly believes the claimant is disabled, and (2) understands what it means to be disabled, per the Social Security regulations.
MISCONCEPTIONS ABOUT HOW LONG THE PROCESS TAKES
14. “If my workers’ compensation benefits stop or my personal injury settlement runs out, my case will be moved up.”
Not true. However, the claimant’s case may be moved up if the claimant:
- needs medications;
- is homeless;
- has a terminal illness; or
- is suicidal or homicidal. HALLEX 1-2-I -95.
15. “My hearing date will be set soon after I send my request for hearing.”
MISCONCEPTIONS ABOUT HOW TO ACT AT THE HEARING
16. Some claimants with mental impairments think they are disabled due to their physical impairments alone.
Claimants with mental impairments are more likely to want to discuss their physical impairments at the hearing rather than their mental impairments. They might also downplay their mental impairments. However, it is crucial that they do not do this.
It is understandably difficult for some claimants to describe their depression, their anxiety, their bipolar disorder, their schizophrenia, their personality disorder, or their low I.Q. Therefore, it is important to direct the claimant to discuss his/her mental impairments during the hearing to help find them disabled.
17. “If I show that I’m bedridden at home at the hearing, I will be found disabled.”
Not true. It is best to go over the daily activities at the hearing and explain
- how long the claimant can do these things,
- what breaks they take,
- if they are in pain when doing these things, and
- what help they need doing these things.
Residual functional capacity, under Ruling 96-8p (1996), is based on the ability to work 40 hours a week, productively, at a competitive job, and not on the ability to do sporadic activities at home.
18. “I must look disabled at my hearing.”
Social Security Ruling 96-7p (1996) does mention observations by the ALJ at the hearing, but this is only one of many factors for the ALJ to consider. Used alone to discredit credibility is probably an error of law on the part of the ALJ.
Therefore, the problem with trying to “look disabled” is the uncertainty of what “looking disabled” really means, because some claimants are stoic, and others “put on a show” for the ALJ. It is best for the claimant to act and look as he always does.
19. “If I talk like a doctor at the ALJ hearing, I will win.”
Claimants think they must use medical terms at the hearing when this is not necessary and, in fact, hurts their claim because (in many instances) claimants use incorrect medical terms or do not accurately describe their medical problems.
Some claimants will erroneously state things like “I have rheumatoid arthritis” when they have degenerative arthritis. They may claim “I have three herniated discs in my back” when they do not. They may claim “I have bone on bone in my knee on x-ray” when they do not. This does irreparable damage to a claimant’s credibility.
20. “The more I talk/ramble at the hearing, the better my chances of winning.”
Ramblers lose. Be on point to the ALJ. Some claimants think they must have a script to follow at the hearing, going into great detail to describe their impairments, their pain, and their work-related limitations. This will likely cause the ALJ (and the representative) to lose track of what is important at the hearing.
Some claimants also think they must prove everything at the hearing or explain why they think denying their claim will be a “grave injustice.” But, some of their reasoning on this will not even be related to their Social Security or SSI disability claim. For example, they will focus on the fact that their workers’ compensation benefits have stopped, or the fact that they lost their personal injury case, or that they really want Medicare or Medicaid coverage and can only obtain this if the Administration finds them disabled. But, these factors have no relationship to the medical strength of their case. There are plenty of healthy people who are homeless and not disabled.
21. “If I act helpless. I will win.”
Being helpless is not a virtue. While there may, in fact, be a few helpless claimants due to their impairments, most are not helpless. The ones who act helpless are more work for representatives and are more likely to be critical of us if they do not win their case. They may also not be helpful to us in representing them.
Some of the characteristics of the helpless claimant are:
- “Social Security won’t let me look at my file.” Why not? The file is yours to look at unless looking at the file would be dangerous to the claimant. Looking at the file is not a mystery.
- “I can’t get my medical records.” If the records are from years ago, the doctors may be retired. Are these medical records even relevant if before the alleged onset date of disability? What medical condition do they relate to? Is that condition disabling? Many States have laws about the costs of medical records for a Social Security and SSI claim, and in many States the records are free or available at a small cost. It will likely be an unusual situation where a treating source (doctor or mental health facility) does not release medical records to a claimant or a representative.
- “I applied before and was denied.” When? Where? What were the disabling impairments then, and how disabling were they? If the medical impairments at this time are the same as they were on the prior claim, the Social Security Administration may argue res judicata and collateral estoppel to deny the present claim. However, if there is a worsening on the present application, then these legal principles do not apply to the present claim.
MISCONCEPTIONS ABOUT THE STANDARD FOR DISABILITY
22. “If I don’t take my medications or do something, my pain and symptoms are really bad.”
First of all, this is not the standard for disability. Second, if a condition can be remedied, it is not disabling. Thus, the claimant must describe the medical condition while on medications. In connection with this, a representative should review the medical records to see what the claimant has told the treating doctor(s) about his/her symptoms to make sure his/her testimony at the ALJ hearing is consistent.
23. “The side-effects of my medications are really bad.”
Here, we are not referring to the possible side-effects listed on a medicine bottle. Rather, we are referring to the side-effects specific to the individual claimant. The best way to show this is to look at the side-effects mentioned in the treating doctor’s notes.
Also, find out what the treating doctor did about the side-effects (changed medications, stopped all medications, lowered the dosage, added on more medications). ALJ’s are trained to look at these factors. Furthermore, some claimants do not understand the term “side-effects,” so it may be necessary to ask them specific questions rather than to asking them to generally describe what their side-effects are.
24. “I only need to prove disability. The Administration needs to determine that I can’t work.”
On the contrary, the burden of proof is on the claimant to prove that he/she is disabled and that he/she cannot work. Some Claimants also only think “past relevant work” is their last job rather than work done (at the substantial gainful activity level) in the last 15 years prior to the hearing.
MISCONCEPTIONS AFTER THE HEARING
25. “Appeal before receiving the written decision.”
This happens after leaving the hearing when the claimant thinks the ALJ will deny the claim and the claimant wants to immediately appeal before receiving the written decision. However, on appeal we must appeal the specific reasons the ALJ gives in his/her written decision and we cannot do this until we receive the written decision.
26. “On appeal, the Appeals Council or federal court will either (1) reverse and grant benefits, or (2) deny the appeal.”
Although these are two possible outcomes on appeal, many claimants have never heard of a remand of their claim. Thus, they are disappointed if the Appeals Council or federal court remands their claim, even though this happens far more than an outright reversal for an award of benefits.
27. “If found disabled, the check for the past-due benefits is sent to the representative.”
This may happen with some workers’ compensation benefits or personal injury matters, but it does not happen in DIB and SSI disability claims. Let the claimant know this upon receiving a favorable decision. This will cut down on the number of phone calls you receive.
28. “Social Security pays my representative first.”
Wrong. The representative may be paid at the same time the claimant is paid. But, sometimes the first check to the claimant is three times the maximum SSI benefits ($2163.00 in 2014). Advise the claimant of this, and remind them of your fee agreement [i.e. that you are entitled to the lessor of (a) 25% of the past due benefits, or (b) $6,000 (Six Thousand Dollars)]
29. Social Security and SSI Notices of Award.
DIB and SSI Notices are separate and only relate to one type of benefit (DIB or SSI). These benefits are not integrated on these Notices. Thus, the Notices are confusing to the claimant.
Remember, there is a five month waiting period for DIB benefits (i.e. five months after the onset date found). But, SSI benefits start the month after the month of application. Also, DIB benefits are payable retroactively 12 months prior to the date of application. Thus, if the claimant filed a DIB application two years after onset date, the past-due DIB benefits are payable only 12 months before the date of the application.
Information about Medicare coverage should be in the DIB Notice of Award (date it starts and monthly premiums). In addition, the date of future medical review of the claim should also be in the DIB Notice of Award. The amount of DIB benefits is based on the number of years worked under Social Security and the earnings in those years.
MISCONCEPTIONS ABOUT DATES
30. “Dates are not important.”
Many claimants cannot remember dates for doctor visits, date last worked, or other important dates in their claim. The exact date may not be important, but the month/year may be. I have found it helpful to ask leading questions to the claimant on this when interviewing the claimant to find this out.
In connection with this, claimants have different calendars than the rest of the world. For example, they will state that they have been waiting for two years for a hearing when their request for a hearing was filed six months ago. It is important to find out the specific dates on this and on other matters.
31. “Every month has 30 days in calculating appeal periods.”
Wrong. If you are near the 65 day appeal period for reconsideration, request for hearing, appeal to the Appeals Council or to the federal court, calculating the exact number of days is critical. The claimant will calculate a month as having 30 days in it, regardless of the actual number of days in the month—but this is incorrect.
Also remember that the 60 day appeal period is actually 65 days because the Regulations add five days to the 60 day appeal period due to mailing a decision to the claimant.
32. Claimants can have problems with date last insured issues.
This can be critical in a Social Security Disability Insurance (DIB) claim. If the date last insured is a year ago (or more recent), it may not be significant. However, if the date last insured is a number of years ago (3-5, for example), then this is critical.
Some claimants may not be able to remember their condition many years ago. In that case, it is important to try to help them. Ask them about an important event in their life on the date last insured. For example, if the date last insured is December 31, 2007, ask them if anybody in their family was married in that year, graduated from high school or college in that year, or had a child. If they recall this event, ask them about their medical condition at that time.
Obviously, medical records from the date last insured are the most important factor, but a claimant’s recollection of this time period may also help you discover some other medical records which they had forgotten.
1. “If I was found disabled and went back to work, I will be found disabled as soon as I stop working and apply again.”
Not if the claimant had improved medically to go back to work. Some claimants think it is automatic for them to reapply and be found disabled.
2. “If I am found disabled now, the Social Security Administration must reopen all of my prior applications, especially if I hire a representative now.”
Most claimants do not know the rules of reopening (two years in SSI claims and four years in DIB claims, based on new and material evidence). Many claimants think the reopening is automatic when it is not.
They also do not know that, if they appeal the issue of reopening to the ALJ or the Appeals Council, the Appeals Council can look at the entire ALJ decision and find they are not disabled at all! The same is true on appealing the issue of an earlier onset date of disability—the Appeals Council can look at the entire case and take away the benefits already awarded by the ALJ.
THINGS TO WATCH OUT FOR
1. “I don’t know”
“I don’t know” loses cases! Many claimants answer “I don’t know” when date last insured is an issue, or when asked about their present treating doctors or recent medical treatment. But, the Social Security disability system is a civil system. Thus, the burden is on the claimant to show that he/she is disabled. If the claimant does not remember something, this does not help his/her claim and may lose their case. Even if the claimant truly does not remember something due to mental problems (i.e. Parkinson’s disease, dementia, stroke, mental problems), this will not help the claimant.
Some claimants also like to say “I don’t know” when faced with a tough question or a tough situation. For example, if the claimant is not seeing a doctor regularly for treatment, the claimant may answer “I don’t know” when you ask them, versus saying that he/she does not have a regular doctor. Watch for this and press the claimant for a specific answer when you ask the question at the interview, because generalities lose.
Bottom line—specifics win! It is up to the claimant (and to us) to prove disability, and not the other way around. “I don’t know” is not convincing at a hearing.
2. What is the claimant’s ultimate goal?
Ask the claimant at the first interview about the ultimate goal. You might be surprised at the answer.
Is it simply to be found disabled, or is it a Medicare or Medicaid card? Remember that Medicare coverage does not start until 30 months after the onset date of disability except for end stage kidney disease or ALS.
THINGS NOT TO DO WITH CLAIMANTS
1. Never state to a claimant that something is unfair.
Claimants think that, if something is unfair, we can correct this as a lawyer. Life is not fair. If a claimant says that something is unfair (i.e. a date last insured issue), this does not mean that we can change it or appeal it.
2. Never state that something will be done in a certain period of time.
Some claimants think we have control over this when we simply do not. It is important to make sure claimants understand that there are some things we cannot control in this process.
3. Never give a guarantee to a claimant
It seems that claimants want us to “give them odds” on their claims or tell them “their chances” on a claim. A nice way to deflect this is to tell your clients that you did not learn to play the odds in law school. If you did, you would be buying lottery tickets and betting on horses instead of practicing law. Another suggestion is telling clients that “guarantees” are not for the legal profession. Social Security deals with humans, and (much a like a jury trial) it is impossible to predict how a judge will decide a case.
4. Communicate with the claimant as clearly as possible
For example, if I write a letter to the local Social Security District Office or to the Appeals Council, this does not do much good unless somebody there reads the letter and acts on it. Claimants do not understand this and think that we receive immediate attention on writing a letter to SSA, to an ALJ, or to the Appeals Council. In this situation, claimants must understand that these people are busy and may not be able to respond to our letter right away.
5. Do not try to read a claimant’s mind
It is impossible to know what a claimant is thinking. Therefore, it is impossible to know about their recent medical treatment (or medical problems and new impairments) unless they tell you about them. On the initial interview, you should advise the claimant to contact you on important matters, including if they go to the hospital or emergency room or see a different doctor.