I. Eligibility

As a general rule, you must have a medical condition (either physical, mental or combination) which is expected to keep you out of work for 12 months or more. In determining whether you are “disabled” under Social Security’s rules, they will also consider factors such as your education, age and prior work history.

In addition to the medical requirements required to obtain Social Security Disability (SSDI) benefits, you also have to have paid enough payroll taxes into the Social Security System over your working career. The amount you must pay into Social Security varies with age. Social Security Disability (SSDI) is not a welfare program. It is often confused with Supplemental Security Income (SSI) which is a disability program for the poor. Everyone from millionaires to the regular working man or woman can collect Social Security Disability (SSDI).

II. The Claims Process

A. Level One - Initial Application

The Initial Application for Social Security Disability can be long and confusing.   Many claimant’s feel overwhelmed with the amount of paperwork and information required. In addition, many are worried that they may answer questions on the initial application which may doom their chances for winning the claim.   For this reason, many claimants choose to have attorneys review and file their Initial Applications on their behalf.

Regardless of whether you file your Initial Application with or without an attorney, after your claim is filed it is sent to the Disability Determination Services (DDS) agency in your home state. This agency, which does not have any Social Security employees, makes the initial determination on whether you are medically eligible for SSDI. The examiners at these state agencies are often over-worked, underpaid and undertrained. This in part causes the majority of initial applications to be denied - even the legitimate ones. It is administratively easier for them to process a denial rather than justify an approval. The waiting time for a decision on an initial application usually is between 3-5 months.

Nevertheless, some brave souls do file the Initial Application themselves and only hire an attorney if they are subsequently turned down. Unfortunately, only about 35% of initial applications are successfully approved. The remaining 65% are denied. Such denials require an appeal, leading to Level Two of the process.

B. Level Two - Reconsideration

To be blunt, this level of appeal is generally worthless with over 85% of all initial application denials being upheld. Because of this widely acknowledged fact, this level of appeal has been eliminated for all New York residents. However, it continues as yet another hurdle for New Jersey and Connecticut residents, in addition to most other states in the country. The delay this generally worthless step adds to the long march toward a fair Social Security decision is generally 2-3 months.

C. Level Three - Administrative Law Judge Hearing

This level is where the services of a Social Security Disability lawyer can be invaluable. By this point, you may already have been denied disability benefits twice by the Social Security Administration (SSA). You now get the opportunity to present your case formally to a Judge who will apply Social Security law and regulations to issue a multi-page written decision on your claim. You will have the ability to testify before the judge, bring witnesses to testify on your behalf, cross-examine Social Security medical and vocational experts, and make closing statements. You will be asked questions by the Administrative Law Judge who will determine the credibility of your statements. Although this is not the final level of the process, your hearing before an Administrative Law Judge is your best opportunity to prove and win your case.

Your Social Security Disability lawyer should have long experience appearing before your local Administrative Law Judges.  Such experience and credibility, which is only the product of many years establishing a relationship with a particular judge, cannot be underestimated and will be a key factor in your favor.

Also at this level your attorney will have an opportunity to expedite a fully favorable decision in your claim by submitting written arguments and medical evidence prior to the scheduling of your hearing.  Because the current waiting time for a hearing in New York can be over 12-15 months, such efforts made by your attorney with the Judge and his staff can make a huge difference in your ability to survive financially.

D. Level Four - Social Security Appeals Council

If your claim is still denied after a formal hearing before an Administrative Law Judge, it usually means one of three things: 1) you had lousy representation; 2) you had a lousy judge; or 3) you had a lousy case. If you had a lawyer who did not measure up to the job, you should consider bringing your decision to another Social Security lawyer for a second opinion and possible appeal to the Appeals Council. If you had an abusive, clueless or otherwise disinterested judge (rare but not unheard of), you should insist your lawyer write a legal brief to the Appeals Council asking for a reversal of the ALJ’s decision. If however, you had a bad case going into the hearing that cannot be salvaged by a competent attorney, you may want to consider dropping your claim at this time. Without clear factually procedural and/or legal errors in the ALJ’s original decision, the chances are extremely slim that the Appeals Council will reverse or remand the case.

Whatever the merits of your appeal to the Appeals Council, you can often expect to wait at least 12 months for a decision.

E. Level Five - Federal District Court, Circuit Court of Appeals and U.S. Supreme Court

This level of appeal in Social Security Disability claims separates the real pros from the run-of-the-mill representatives. Only attorneys admitted to the federal courts can represent claimants at this level, which precludes many of the national “advocates” from taking cases to this level. Prior to hiring an attorney or representative, ask them what their track record is in disability claims in federal court or simply do a “Google” search for these public records. Our Social Security Disability Co-Counsel, Troy Rosasco, has won many federal court cases, including the important seizure disorder case of Brown v. Apfel, 174 F.3d 59 (1999).  If an ALJ at the hearing stage knows that your lawyer will take an unfair decision to the federal courts, the judge is less likely to deny your claim unfairly.