The Application Process
If your application is denied at first, don’t be discouraged. Here’s what happens procedurally when you apply for Social Security Disability (SSD) or Supplemental Security Income (SSI) benefits. It’s a five-phase process.
Phase one: First, you file your initial application. As previously discussed, your attorney can do this for you, or you can do it yourself. If you go to a New York Social Security office, a claims representative will take the details of your case. Your application will then be sent to Disability Determination Services, where it will be reviewed by a disability examiner.
Usually, within two to four months, you’ll get a determination. A substantial percentage of claimants who will ultimately be found disabled are denied on their initial applications. Many applicants who are denied make the mistake of giving up at this point. Don’t! Get yourself an SSD/SSI lawyer. In a significant number of cases, benefits that are initially refused can be won on appeal.
Phase two: In New York, if your local Social Security office tells you that it doesn’t find you disabled, your next step is to request a hearing before an administrative law judge at the Office of Hearings Operations. In other jurisdictions such as New Jersey and Connecticut, there’s an intermediary step in which you must first request reconsideration. That can take several more months. In New York, however, all disability denials proceed next to the hearing phase.
Generally, it takes anywhere from 18 to 24 months before you get to see a judge, depending on which county you’re in. Each county in New York has its own hearing office; there are also hearing offices in White Plains in Westchester County and in Central Islip on Long Island. Occasionally, a case is called within a year. However, that’s unusual and currently claimants wait up to two years to be scheduled for a hearing. When your case comes up, it usually will be heard in the county where you live.
Since the government does not adequately fund the Social Security Administration, there’s a shortage of judges and support staff, which creates extensive wait periods and backlogs at every level of the system. Also, because many applicants are denied and have to go through the hearings and appeals process, the backlog has gotten worse. This is one reason to apply these strategies judiciously. Time-wise, the deck is stacked against applicants from the start, and doing things the wrong way only results in you waiting longer to get your benefits.
When you appear for your hearing, the judge will evaluate your case, including all the medical evidence of your disability and your testimony. If there’s a favorable decision, then you get the benefits.
Phase three: If the judge denies your claim, the next step is to file an appeal with the Social Security Appeals Council. Your attorney will do this with a detailed letter or brief. An effective appeals letter usually includes a lengthy analysis of the judge’s decision, pointing out any factual or procedural mistakes or errors. The requirements for these decisions are highly technical, since Social Security Disability and SSI law is a very regulation-intensive field. Judges can make mistakes, and case decisions sometimes have significant errors.
Once again, here’s where having an SSD/SSI lawyer represent you can pay dividends. Frequently, a seasoned attorney can spot valid reasons for an unfavorable decision to be overturned.
The Social Security Appeals Council can take anywhere from a few weeks to a year to respond. Often, you wait another six months. When you receive an answer, three things can happen. First, it can deny your appeal. Second, it can grant the appeal and award you benefits, which happens rarely. Third, it could send it back for a new hearing to the administrative law judge, with direction on how to correct the errors in the first decision. For instance, the Appeals Council might require a vocational expert at the second hearing. Or it might instruct the judge to look at a certain medical report more carefully or to obtain another report from a treating doctor.
For example, Stephen Jackel represented a client with severe mental illness. This young man was denied benefits even though he was so ill that he was later detained by the police for directing traffic in the nude. After the first hearing, an essential medical report submitted to the judge was not forwarded to Mr. Jackel for comment. When this was pointed out to the Appeals Council, it ordered a second hearing, during which benefits were won for the client.
Phase four: If you do get sent back to a second hearing, you’re usually going back to the same judge who denied you the first time. If after a second hearing you are still denied benefits, you can appeal again. If the Appeals Council sends your case back for a third hearing, then you get a different judge. There are only two hearings with the same judge.
Phase five: On the other hand, if the Appeals Council denies your appeal and indicates there’s no basis to overturn the judge’s decision, then you have the option of a further appeal in federal District Court. In this event, Mr. Jackel will refer you to an experienced colleague who practices in federal court.
A Denied Claim Does Not Mean You Are Out Of Options
Here’s some encouraging news. Although most claims get denied at the initial application level, the majority of claimants who appeal are ultimately awarded benefits after a hearing. It pays to fight if you’ve been refused benefits unfairly.
Always file an appeal if you believe you’re disabled, but are denied on your initial application. If you just file a new application, your case will again be routed to a disability examiner instead of an administrative law judge. Then, unless you’re submitting new medical evidence, you’re likely to be denied again.
When you get a hearing, your disability lawyer has a chance to argue your case in person, and there’s a much higher chance of winning benefits. In fact, at the hearing level, approximately 60 percent of claims for adults are approved for benefits.
Here are the two key points to keep in mind about winning your case: Be patient with the process, and fight. As you can see, you have many opportunities to press your case, as long as there’s a legitimate reason to do so. Those who win benefits don’t give up and make use of every advantage available to them.