Social Security Disability Claims Primer by Troy G. Rosasco, Esq. Turley, Redmond, Rosasco & Rosasco, LLP NY-DBLAW National Academy of Continuing Legal Education October 11,

Social Security Humor!

SSDI Claims (Title II) Only for disabled “workers” Must be “insured” – worked enough “on the books” 20/40 Rule – must have 20 “quarters of coverage” (QC = one quarter of year) out of the 40 QC’s prior to becoming disabled If not ”insured”, Supplemental Security Income (SSI – Title XVI) may be an option if disabled and poor Monthly benefit amount based upon claimant’s Primary Insurance Amount (PIA) and any “auxiliary” claims for dependents

The Administrative Process Initial Application – disability decision made by State Agency under contract to SSA (takes between 1-6 months) Reconsideration- if initial application denied, file appeal for “reconsideration” within 60 days (only in some states) Request for ALJ Hearing Appeals Council Review

What is “Disability” Under Social Security? Statutory Definition: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

Key “Disability” Definition Concepts Durational Requirement – medical condition must be terminal (no mental impairments?) or expected to last 12 months ( if woman with breast cancer has surgery, chemo and radiation, but returns to work after 10 months – no benefits) Will consider age, education and past work (we won’t make a 55 year old garbage man an office worker) Inability to find a job is NOT a factor

Sequential Evaluation of Disability Process Step 1: Substantial Gainful Activity (SGA) For 2011, SGA = $1000/month Can’t get “disability” finding while still working Must be both “substantial” (not just one real estate commission) and “gainful” ( over $1000) Step 2: Severe Impairment De minimis standard Medical treatment + out of work = severe Step 3: Listing of Impairments “Meet” or “Equal” severity of specific Listed Impairment Listing 1.04A – Disorders of the Spine = nerve root compression and muscle loss Age, education, past work NOT a factor Step 4: Past Relevant Work (PRW) Does claimant have the “residual functional capacity” (RFC) to do past relevant work PRW = work in last 15 years prior to disability RFC = what the claimant CAN do despite disability (sit, stand, walk, lift, concentrate) Step 5: Ability to Perform Other Work Does claimant, considering age, education and PRW,have the RFC to do other work in national economy? Majority of claims at ALJ level decided at this step SSA’s Medical Vocational Guidelines (GRID Rules) For some claimants with “exertional” limitations over age 50, you “can’t teach old dogs new tricks”

The “All Important” Initial Intake Like picking a jury in trial court (this is where you win most of your cases !) Initial screen is usually done on telephone Ask about age, education, medical impairment, onset date of disability, past work, treating medical sources Listen carefully and follow your gut – you can assess credibility over the phone sometimes

Office Appointment Again, assess credibility – last chance to turn case down Have claimant sign Appointment of Representative Form (Form 1696), Attorney Representation Fee Agreement, appeal forms and all other forms Get all treating medical information, including pharmacy records, workers’ comp records, etc

Develop Medical Evidence Write for and obtain all relevant medical records Use Medical Source Statement (MSS) Forms to determine client’s residual functional capacity (RFC) Don’t ask treating sources whether your client is “disabled” – means different things to different doctors The issue of “disability” is not just medical and is reserved for the Commissioner of SSA (ALJ)

Administrative Law Judge Hearings Prepare your client to testify one week prior to hearing Tell them how to dress and time to show up Tell them everything you know about the ALJ (how does he conduct the hearing, what questions are likely to be asked, issues this ALJ doesn’t care about) Reassure them the hearing should be non- adversarial –more like a “discussion”

Medical & Vocational Experts Some ALJ’s use them on almost every case, some use the rarely (know your ALJ) Some are more pro-claimant and some are more anti-claimant (know your ME & VE) Some know all the evidence in the file while others have barely glanced at the file Be prepared for cross-examination of both, but don’t burn bridges – you will see them again!

The ALJ Decision If “favorable”, you have won! You and client will wait approximately 30 days for an “Award Notice”, which then must be reviewed for accuracy If “unfavorable”, consider appeal to the Social Security Appeals Council – last step in administrative appeal process before appeal to federal court.

The Appeals Council Request recording of hearing prior to submitting final argument days later Appeals Council will grant review if: Abuse of discretion by ALJ Error of law by ALJ ALJ decision not supported by “substantial evidence” There is a broad policy or procedural issue that affects the general public Despite those dry legal reasons for granting review, always try to capture the AC’s interest with compelling human stories of unjust results!

Federal Court Review If Appeal’s Council fails to grant review, you have 60 days to file a complaint in the federal district court where your client resides Try to resist “form pleading” that simply gets you in door. Lay out your compelling story of injustice in the complaint The Assistant US Attorney assigned to the case may convince SSA to agree to remand without briefing

QUESTIONS? Call Troy G. Rosasco, Esq NY-DBLAW Thank you for watching this CLE!