What’s Age Got To Do With It?

A lot. A social security disability decision maker will use age as a starting point because a person’s age determines the applicable and relevant regulations. In general, the older a person is, the easier it is to be approved for disability benefits. An adult under the age of 50 needs to prove an inability to work full-time in any job because of a mental or physical impairment. However, a person between the ages of 50 and 54 actually can be capable of working full-time in a sedentary position and get disability benefits if that person cannot do the work they did over the last 15 years. A person between the ages of 55 and 59 can be capable of working full-time in a light or sedentary position and get disability benefits if that person cannot perform past relevant work. A person age 60 and above can be capable of full-time work activity at a medium exertional level and still be considered disabled if they cannot perform past relevant work. The terms “sedentary”, “light” and “medium” are specifically defined in the regulations as is the term “past relevant work.”

Additional considerations include mental impairments such as a cognitive decline that might affect a person’s ability to perform past work. Another factor considered is a person’s education or lack thereof. This analysis, also known as “the grid rules,” can make all the difference between a favorable decision and a denial. The grid rules can get complicated and an experienced social security disability attorney can help you evaluate how they impact you given the particularities of your claim.


Should I Hire a Social Security Attorney or a Non-Attorney Social Security Advocate?

You have the choice of hiring a social security attorney or a non-attorney advocate. Both will only charge you only if you win and both will follow the same regulated fee structure which is 25 percent of back pay up to the fee cap currently set at $6,000. A disability lawyer has graduated from law school and passed the bar exam. A disability advocate has a bachelor’s degree and has passed an exam administered by the Social Security Administration. A social security attorney can appeal your claim beyond the administrative level if necessary and an advocate cannot. Social security lawyers are bound by the rules of ethics and must keep privileged information confidential. An advocate does not.

Before hiring a social security attorney or an advocate you should ask whether he or she has handled a social security disability claim in the past. How many social security claims has he or she handled and for how many years? Will the social security attorney or advocate appeal the claim for you if you are denied? Will the disability attorney or advocate write an argument for you if necessary? Is the social security disability attorney or advocate local and familiar with the local judges and preferences?

The regulations are unique and complex. Give yourself the best possible chance to win your disability claim and have an experienced social security disability lawyer on your side.


What Does A Social Security Attorney Do?

A social security attorney can help you determine whether you have a viable disability claim before you even file your application. No one wants to waste years applying for disability benefits without a chance in the first place.

If the social security attorney takes your claim, he or she can help you through the application process by filing your application and staying in touch with the Social Security Administration to help them process your disability claim.

If denied at any stage of the process, the social security attorney will help you properly and timely complete the appeal paperwork. There are many levels of appeal possible. In fact, a disability claim can go all the way to the United States Supreme Court.

If a hearing is necessary, the social security attorney can prepare you for the disability hearing and attend the hearing with you. He or she will ask you relevant and supportive questions that will bolster your claim. Along the way, the social security attorney may help you get opinion statements from your treating sources, update medical records for your claim, write arguments on your behalf, and advocate for you.

If you are thinking of applying for disability benefits contact us so we can discuss your case.


The 10 Most Common Questions Asked in a Social Security Disability Hearing

Every Administrative Law Judge in a social security disability hearing will have a different way of conducting his or her hearing. The questions listed below offer a glimpse into a typical disability hearing. They are not exhaustive and will likely lead to more questions depending on the individual’s circumstance.

  1. Over the last 15 years, what job titles have you held, and what were your job duties?
  2. Are you currently working or in school?
  3. Why did you stop working?
  4. Why can’t you work now?
  5. What are your diagnoses?
  6. What treatment are you receiving?
  7. What are your physical and/or mental limitations?
  8. What is your current living situation?
  9. How do your impairments affect your activities of daily living?
  10. What are your hobbies?

If the disability claimant has an attorney present at the hearing, the attorney will likely follow up with additional questions intended to support the claim. It’s a good idea to review the above questions prior to the hearing and consider how the answers, taken under oath, can support or hurt a disability claim.

Disability hearings may look a little different due to COVID-19, to learn more about what a hearing may look like during the pandemic check out this blog post.


What to Expect at a Disability Hearing During COVID-19

The Social Security Administration is currently allowing claimants to decide whether they will accept an in-person hearing at an unknown future time or opt for a scheduled telephonic hearing instead. Most of our clients are opting for the telephonic hearing, primarily because it’s unclear when in-person hearings will resume. A claimant already waits one to two years from the filing so the idea of waiting another year or more for an in-person hearing, especially when the claimant is unable to work, is daunting. The telephonic hearings are not perfect. The Administrative Law Judge (ALJ) conducting the hearing will not have the visual cues that they might otherwise rely on. The quality of the phone connection is not always as clear as we would like. On the other hand, a telephonic hearing has its perks. Claimants are generally less anxious testifying in the comfort of their home. Snow day cancellations won’t happen. Most importantly, claimants won’t contract COVID-19.

The Office of Hearings and Operations will conference call the ALJ, the claimant, the claimant’s attorney, the vocational expert and the hearing monitor at the time of the scheduled hearing. The ALJ will swear in the claimant and the vocational expert over the phone. The ALJ will ask the claimant for identifying information and request that the various parties be in a private area away from other people. The hearing will then proceed as normal. The benefits of a telephonic hearing, while not ideal, far outweigh the risks of an in-person hearing particularly for the vulnerable population fighting for disability benefits.


Request for Reconsideration Required

As of January 2019, Colorado disability claimants are now required to file a request for reconsideration after an initial level disability denial. Essentially, an additional appeal is now required in Colorado before a claimant can have a hearing before an administrative law judge. Colorado residents can expect to wait longer for a disability hearing as it is likely that only a small percentage of applicants will be awarded at the request for reconsideration level. If you are in the process of filing for social security disability, don’t let this additional step discourage you. Having a judge hear your claim may change the outcome.


Long Wait Times for a Hearing

A claimant waits approximately 8 to 10 months after submitting an application for a disability determination. If denied, a claimant in Colorado Springs or Pueblo, Colorado can expect to wait another 17 months according to the Social Security Administration for a hearing. By the time a claimant has a decision, he or she has typically waited more than two years. If the claim is then denied at the hearing level, another 18 months can be expected for a decision from the Appeals Council. Across the nation, approximately 1.1 million claimants are waiting for a hearing. How do claimants survive during these long wait periods when they are unable to work? Unfortunately, there is no good answer to this question. If a person meets the criteria for dire need, e.g., homelessness, a claimant may request an expedited hearing, but the requirements for expedited status are strict. State programs that may help are Aid to the Needy and Disabled, Medicaid and food stamps. While it takes far too long to get to a hearing, don’t give up. A claimant can use this wait period to continue to develop the evidence necessary to prove the claim.


Top 18 Reasons the Appeals Council Remands


From http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-12-13-13084.pdf




1. Residual Functional Capacity – mental limitations inadequately evaluated

2. New evidence presented upon administrative appeal/review

3. Mental disorder not adequately considered

4. Treating source – opinion not identified or discussed

5. Claimant credibility – failed to discuss appropriate credibility factors

6. Failure to Appear Dismissal – other

7. Treating source – opinion rejected without adequate articulation

8. Residual Functional Capacity – exertional limitations inadequately evaluated

9. Residual Functional Capacity – non-mental non-exertional limitations inadequately evaluated

10. Obesity impairment not adequately considered

11. Past work was not substantial gainful activity

12. Non-examining source – opinion not identified or discussed

13. Failure to Appear Dismissal – notices sent to wrong address

14. Consultative examiner – opinion not identified or discussed

15. Vocational Expert Not Obtained – mental limitations warrant Vocational Expert evidence

16. Consultative examiner – opinion rejected without adequate articulation

17. Incomplete/inaccurate record – lost/inaudible recording

18. Impairment improperly found “not severe”


Will Expanded Medicaid Have An Impact On Disability Applications?


Many Coloradans previously unable to afford medical care can now receive Colorado Medicaid. From the perspective a Social Security Disability attorney, this is wonderful! Disability benefit applications are more likely to be approved when an applicant has medical care and provider’s treatment notes to support his or her claim. Without medical care, or with limited medical care, the Social Security Administration typically sends disability applicants to their own doctors, known as consultative examiners. Consultative examiners spend little time with disability applicants and make opinions based on that limited time. Without medical care, a disability applicant’s chances of receiving a favorable decision are poor. When a Colorado Medicaid recipient has his or her own medical provider, his or her chances improve greatly. Colorado may see an increase in Social Security disability approval ratings at all levels of the disability process based on its expanded Medicaid program.


Impairment Related Work Expenses (IRWEs)

Under Social Security Administration regulations, a person can work while they apply for or have disability benefits as long as the work activity does not excede a certain dollar amount known as substantial gainful activity (SGA). In 2014, SGA is $1070/mo before taxes. There are many exceptions to this general rule including unsucessful work attempts, trial work periods, significant accommodations and impairment related work expenses (IRWEs).

Any money that a person spends on his or her disability can offset the amount of money earned each month. A claimant should keep receipts for any disability-related items, including co-pays, the cost of medications and the cost of assistive devices. Gross earnings will be reduced dollar for dollar by the IRWEs. Keeping such receipts may allow a person to receive benefits that would have otherwise been precluded.


What Impact Will the Legalization of Recreational Marijuana in Colorado Have on My Disability Claim?


The legalization of marijuana in Colorado will have little, if any, impact on the disposition of a Social Security Disability claim. First, marijuana continues to be an illegal substance under Federal law, and of course, the Social Security program is a federally funded program. Second, if a claimant is dependent on or addicted to marijuana and the use of marijuana is substantially material to the disability, the claim can be denied. This remains true regardless of marijuana’s legal status. More often than not, the relevance of a claimant’s marijuana use surrounds an Administrative Law Judge’s (ALJ) credibility determination. If a claimant denies using marijuana when there is ample evidence in the file to the contrary, an ALJ is likely to find that the claimant’s testimony at a hearing is not credible and deny the claim. Again, this is true regardless of whether or not the use of marijuana is legal in Colorado.


Should I Hire a Local Attorney Over a National Firm?


Yes! There are two great reasons to hire a local Social Security Disability attorney. First, local disability attorneys know area Judges and staff. National firms have several “hubs” across the country. The attorney assigned to the case will travel from the hub to the local hearing office on the day of the hearing. The attorney from the national firm will not know the area Judges’ preferences, nor will the national firm have built relationships with area staff handling the claims. The local attorney, on the other hand, will know both area Judges and staff well. Second, you can make an appointment to meet your local attorney and visit his or her office well in advance of the hearing. It is unlikely that an attorney from a national firm will be located in your area. As such, it may be difficult for you to meet your attorney prior to the hearing without a plane ticket.


Unveil the ALJ


In an attempt to prevent forum shopping, the Social Security Administration (SSA) has decided to keep the identity of the ALJ a secret until the day of the hearing. In Colorado Springs, we are now approaching our eighth month of scheduling hearings with an unknown ALJ. While we have discovered methods to help us unveil the identity of the ALJ in advance of the hearing, it would be much more efficient for all involved to be notified of the ALJ at the start. Knowing who your ALJ is before the hearing can help an attorney and a claimant be prepared for the hearing. Each ALJ wants the evidence presented in a slightly different way to help him or her sort and organize the evidence. Knowing this in advance makes the hearing process easier for the attorney, for the client, and for the Judges. It is practically unheard of to keep a Judge’s identity a secret until the day of a hearing in other legal forums. It is unfortunate that the SSA has implemented this policy, and we are hopeful that the policy will one day be reversed.


Disability Benefits in the News

bankruptcy-attorney-colorado-springs-06Lately, Social Security Disability has been under attack in the media. Social Security Disability has been portrayed as a waste of government spending. Many myths have been propagated, such as, “It’s easier than ever to get Social Security Disability benefits” and “the recession is causing a rise in applications.” The truth is that it’s now more difficult than ever to get Social Security Disability benefits as regulations have become more stringent. Also, applications are on the rise due to an aging population and an increase of women in the work force. Do your part to help protect the future of the Social Security Disability program and present those who repeat these myths with the facts. Learn more at www.Nosscr.org.


Expedited Social Security Disability Applications for Wounded Warriors


Usually, a claimant waits three to six months or longer for an initial disability decision through the Social Security Administration. A person who became disabled while on active military service on or after October 1, 2001 may see his or her Social Security Disability application expedited. A veteran can apply for disability benefits with the Veterans Administration and make a separate application with the Social Security Administration. If the Veterans Administration finds that the disability is service-connected, then the Veteran can receive both types of disability. The Wounded Warrior program will make the disability process somewhat less onerous for those who have served our country.


52 New Conditions on the Compassionate Allowance List

bankruptcy-attorney-colorado-springs-10Tomorrow, August 11, 2012, 52 new conditions will be added to the Compassionate Allowance List for a total of 165 conditions. A person with a condition on the Compassionate Allowance List will have his or her claim expedited. The Social Security Administration has set a goal of processing these claims within 20 days. To be recognized as a claimant with a condition on the Compassionate Allowance List, a claimant needs to allege his or her condition in the application. Conditions on the Compassionate Allowance List include certain cancers, acute leukemia, and malignant multiple sclerosis. Click Compassionate Allowance List for a complete list. The Social Security Administration will also expedite a claim if a person is terminally ill or in dire need.


Medical Treatment in Colorado Springs

bankruptcy-attorney-colorado-springs-09Judges rely heavily on the opinions of your doctor. Good medical care is important to your claim, but can be difficult to obtain and afford in Colorado Springs and Pueblo. A good starting point is the Department of Human Services, (719) 636-0000, where you can find out if you qualify for the Colorado Indigent Care Program, as well as other resources such as Aid to the Needy and Disabled or food stamps. Peak Vista and Pueblo Community Health Centers have long wait periods, but can be a valuable resource for those needing medical care. If you are looking for low cost medical care and don’t know where to go, call my office and we may be able to provide you with other ideas. Also, you can try calling 2-1-1 to obtain more information on health care, housing and counseling.


Invisible Disabilities

bankruptcy-attorney-colorado-springs-08Many people who are disabled may seem healthy to a casual observer, leaving claimants to wonder, “Will a Judge decide that I’m not disabled because I look “normal?” It may be that a person with a disability is having a good day, or that a person’s disability is a mental illness that cannot be seen by mere visual inspection. A Judge will carefully review the medical records and will base a disability judgment on a combination of those records and testimony at a hearing. Many people with “invisible” disabilities are granted disability benefits based on these factors. If you have an invisible disability, visit www.invisibledisabilities.org for support and resources.

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