The SSA uses a "sequential evaluation process" to determine if you meet the disability standard (see 20 CFR §404.1520). In determining whether you meet the disability standard, the SSA must establish that: (1) you are not engaging in substantial gainful activity (“SGA”), (2) you have a "severe" impairment, and (3) your impairment meets or equals one of the impairments cited in the SSA's Listing of Impairments. Alternatively, after considering what you can still do, defined as "residual functional capacity" (“RFC”), the SSA may determine that you meet the disability standard if you are still unable to do "past relevant work" and that there is no other work available in the national economy that you can perform. This can be a very heavy burden for you to prove. It means that you not only have to prove you cannot do your old job, but that there is no job anywhere in the national economy that you can do.

If you are determined to be engaging in SGA, no matter how severe your disability or impairments are, you cannot be found disabled. See 20 CFR §404.1572. If the SSA determines that there has been no SGA, the "severity" of a claimant's impairments is then assessed. 20 CFR §§404.1520(c), 1521. A severe impairment must have lasted or be expected to last at least twelve consecutive months. In some cases the SSA will grant a "closed period of disability," if the duration requirement is met for a severely disabled claimant who recovers after the twelve-month period and is able to return to work.

If you are found to have a severe disability, the SSA then determines whether your disability meets or equals a listing. If not, your past relevant work (“PRW”) is considered. If it is established that a severe impairment prevents you from performing PRW, then the SSA considers whether you can perform any other work that exists significantly in the national economy. This step involves careful consideration of your RFC, age, education, and PRW. The medical-vocational guidelines (informally called "grids") are applied at this stage. See 20 CFR §404, Subpart P, Appendix 2.

At the hearing, you will have an opportunity to appear before the ALJ and may have your attorney present to present your case to the judge. This hearing represents the best chance for a favorable decision on your claim. During the initial application and reconsideration levels, the decisions are made completely on your paper file, including your medical evidence. However, at the hearing, the ALJ will have the opportunity to see you and evaluate your credibility, ask you questions, and may have medical or vocational experts available to help make a determination regarding your disability. The role of the medical expert (ME) is to help the ALJ understand complicated medical issues, while the purpose of the vocational expert (VE) is to testify regarding other jobs available in the national economy that the claimant could do. The ME and the VE are supposed to be neutral experts, but their testimony frequently can be hostile to your case. Before the hearing, your attorney will review your file in detail, may supplement your file as necessary, and will meet with you in person to prepare you for the hearing and familiarize you with the hearing process. At the hearing, your attorney may make an opening statement, present your case, ask you questions to clarify your answers, present your witnesses and cross-examine the ALJ’s medical and vocational experts. The ALJ’s hearing decision will be issued in writing and is usually received within 30 to 90 days after the hearing. Your attorney’s presentation of your case and cross-examination of the ME and VE can have a significant impact on the ultimate determination of your case.

Your onset date of disability is very important. From your onset date, the SSA determines how much of your past due benefits you will be paid and/or if you are eligible for benefits at all. The SSA and/or federal regulations define the onset date of disability (“ODD”) as the first day a person is disabled. When determining your onset date, the SSA will look at work history, medical findings, and your allegations. These issues are usually looked at as a whole to determine the onset date. The date on which you stopped working or your allegations are important in deciding onset only if it falls in line with how severe the medical condition is as evidenced by the medical records.

In SSDI claims, the earlier the onset date can be established, the longer the period of disability will be, which will help to maximize the amount of past due benefits that can be received. A person attempting to receive SSDI must also meet the requirement of insured status, which must be met at the time when a disability preventing the claimant from performing substantial gainful activity is determined. You must make a good faith effort in determining the earliest possible date you believe you became disabled. It is important to keep accurate records of your condition and verify your onset date with the SSA’s recognized onset date.

It is important to understand that you cannot be disabled and work at the same time. Therefore your onset date cannot pre-date any work activity. However if you believe your onset date does pre-date some type of work activity, you should identify the type and extent of the work you did. If the work you did was below the substantial gainful activity (SGA), discussed below, or the past work you did was an unsuccessful work attempt, you may be able to reconcile this potential problem. If your past work does not “qualify” as SGA, you may be able to push your onset date back.

In evaluating whether you are engaged in SGA, the SSA considers job performance requirements, number of hours and days worked each month, the nature of any supervision or special assistance provided to help you perform the job, and the salary you receive. For 2011, the monthly earning threshold for SGA is $1000 for disabled individuals and $1,640 for blind individuals. 20 CFR §404.1574. The SSA has made provision for what is called an "unsuccessful work attempt" (“UWA”) for those individuals who return to work but are forced to stop because of their impairments. The SSA will determine that you have made an UWA if, after becoming disabled or impaired, you attempt to return to work but are only able to work for six months or less before being forced to stop and the onset date used for your claim will remain the date you originally stopped work because of your disability. It is often difficult to determine if the work you have done in the past will qualify as SGA. If you have any questions you should contact us at 713-857-2123 or fill out the FREE evaluation form to the right and SUBMIT it to us.

If you feel that you can return to work after being found disabled, SSA allows you to test your ability to work and still be considered disabled in a “trial work period” (“TWP”) of up to 9 months in a rolling sixty (60) month period, which is not necessarily consecutive. SSA may find that your disability ended at any time during the trial work period if the medical or other evidence shows that you are no longer disabled. However, after the trial work period has ended SSA will consider the work you did during the trial work period in determining whether your disability ended at any time after the trial work period. You may have only one trial work period during a period of entitlement to cash benefits. In 2011, earnings trigger a trial work period if your earnings exceed $720 in any month of service. See section 404.1592 of the Code of Federal Regulations.

It’s different if you are applying for SSDI or SSI. SSI only pays benefits back to the “protected filing date” (“PFD”), or the date when you first applied for benefits through SSA. SSDI pays benefits up to 12 months before the PFD, not including the 5 month waiting period.

No, you do not have to have a lawyer, but you may need one to help you through the evaluation process. Meeting the nonmedical eligibility can be complicated, but you can usually establish your eligibility by just working with the Social Security Administration (“SSA”). But proving you meet the medical determination process is another matter. The SSA considers not only your medical evidence but also your age, educational level, and work experience, including whether or not you have work skills transferable to other work. You as the claimant, not the SSA, have the burden to establish your eligibility. This can be a daunting task for you. With our experience, we can help you prove your right to benefits and may protect you from losing those benefits or from receiving less than you are entitled to receive. Call us at 713-857-2123 or e-mail us at dspeer45@gmail.com.

We take Social Security cases on a contingency-fee basis, and no fee is due to us if your claim for benefits is not approved by SSA. If the claim is approved, the notice of award will also address the fee and will explain the amount your attorney is due from the back-benefits awarded to you by SSA. In SSDI and SSI cases, the attorney fee is set by statute (42 USC §§406(a) and 1383(d)(2)) at 25 percent of your retroactive or back benefits, the fee is capped at $6,000 except in special circumstances, and the fee must be approved by the SSA. In SSDI and SSI cases, the SSA can withhold the attorney fee from the retroactive benefits due to you and can issue that fee directly to your attorney. You will not owe your attorney any fee from your continuing, on-going benefits, only from your back-benefits.

Obviously, no attorney can become wealthy handling Social Security disability cases. However, of all the types of cases that Dana has handled over her twenty-one years of practice, her Social Security practice has been the most personally rewarding to her. She has had the opportunity to make a real difference in her Social Security clients’ lives by helping them obtain benefits that they need and deserve, benefits they possibly would not have obtained without her help. Each and every claim is personal to her. To ask Dana to help you with your Social Security disability claim or to help you determine if you are eligible for SSDI or SSI, call Dana at 713-857-2123 or SUBMIT the free evaluation form on the right.