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Social Security Basic Law
Looks at the issues to work around on Social Security
All require work. All require time. But if you win a Social Security Disability case, these are the only ways to do it. This is how a Social Security lawyer in Columbus and surrounding areas like me - or any other experienced Social Security lawyers - goes about looking at your case and working it up for a hearing. If you have any questions about this just call me at 662-328-9365 or email at firstname.lastname@example.org
A) Pay on the record by the Social Security Disability Office
When the case is appealed, as it must be for anything to happen after a denial, then your file is moved from the first group who looked at your case, DDS, to the Social Security office itself that deals with disability claims. The first group, DDS, is Disability Determination Services, a group Social Security lets do the evaluations but it is not Social Security. In fact, DDS is under the Alabama Department of Education. The first review by Social Security disability itself occurs when this file moves out of DDS to Social Security Disability.
If you are very, very, very fortunate, someone at the Social Security disability appeals office called ODAR will spot a blatant mistake by DDS, get the file to the judge who can decide the case right then. This happens very rarely.
When the Social Security judge does this at the beginning of the case, the most common reason I see is something called a compassionate allowance has been missed (That's the next subject.) or a blatant subject missed like age or 100% VA disability and even these last two are rarely used before a hearing.
B) Compassionate allowance
There is a list of disabilities that should automatically tell Social Security Disability folks to find you disabled and pay your case. This is the compassionate allowance. There is a list of types of disability that lead to this -
The clearest examples of this are terminal cancers. Everything on the list in the link above is terminal cancer or something as serious as that. If you think you are in that bad a shape, check the list above.
If your doctor gives a diagnosis of one these terrible conditions on the list, then the condition can be called to Social Security Disability's attention. Note, you must have a doctor's diagnosis of this. Nothing happens until a doctor's records support this finding.
A Social Security disability often has to help with this by collecting these records after he or she spots the allowance that has developed during the case, for example a cancer diagnosed after a Social Security disability case is filed for a different reason. It bothers me that it takes a Social Security disability lawyer in Columbus to spot these when the cases are very clear. Sadder still are the cases I'm already working on a Social Security disability case in Columbus when these compassionate allowance problems arise to add to the Social Security disability case.
C) Pay on the record on the motion of your Social Security disability attorney or you
After you or your Social Security disability attorney has filed your appeal to ask to be heard by an Administrative Law Judge, then one option for very clear cases is a Pay on the Record. Sometimes, Social Security disability can do this on its own motion as I described in " 1 " above or your Social Security disability attorney can do it. There is no guarantee the judge will agree to this but in some cases it is worth the try. Some judges seem to use the motion to prepare for the hearing but take no action on it . But some do and when they do, this can get the case decided favorably without waiting the normal 14-16 months to get to a hearing in the Columbus Social Security disability office.
For a pay on the record to work, you pretty much need clear medical evidence to meet something called a Listing. This is as group of defined medical conditions that Social Security believes will always lead to disability.
http://www.socialsecurity.gov/disability/professionals/bluebook/AdultListings.htm and http://www.socialsecurity.gov/disability/professionals/bluebook/ChildhoodListings.htm
Find details on the Social Security description of you worst problems
As with a compassionate allowance, the Listing for a Social Security disability case must - I repeat must - have medical evidence to prove every point. A Social Security Disability judge can personally believe everything you tell them and can personally believe you cannot work but cannot find you disabled without medical evidence. This will be true in the hearing I talk about below and it is certainly true here.
These are the medical areas for a Listing, you can read the definitions above at the links given:
1.00 Musculoskeletal System
2.00 Special Senses and Speech
3.00 Respiratory System
4.00 Cardiovascular System
5.00 Digestive System
6.00 Genitourinary Disorders
New! - 7.00 Hematological Disorders
8.00 Skin Disorders
9.00 Endocrine Disorders
10.00 Congenital Disorders that Affect Multiple Body Systems
12.00 Mental Disorders
New! - 13.00 Cancer (malignant neoplastic diseases)
14.00 Immune System Disorders
The children's Listing has a similarly long list which can be found at the links above.
As you can see there are multiple disabling conditions. If you go to the links for the listings, you will see quite detailed areas of proof. Again, for Social Security disability proof, you must have a doctor. In these Listings, you can see how much detailed proof is needed to shorten the process. It can be done but it's tough.
When you're this far down in the weeds, then I really would suggest an experienced Social Security lawyer here in Columbus or elsewhere. These rules get very detailed. The evidence must be dead on point. It's hard to do this on your first try especially if you're trying to learn all the rules to make sure you didn't miss something.
5) Win on proof of a "Five Step Sequential Evaluation" at a hearing before a Social Security Disability Judge
The situation is complicated enough but the language Social Security can use to describe the process can throw one off all by itself but "The Five Step Sequential Evaluation" is the name that's given. Social Security Disability's description is found herehttp://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR86-08-di-01.html.
At every hearing, the Social Security disability judge will go through these five steps in some form or fashion. This is the core of the case your social Security disability lawyer prepares; it is how the judge looks at the case; it is how the decision is written; and it is how the Appeals Council in Virginia or a federal judge looks at an appeal from the local Social Security judge in Columbus and surrounding ares. This is where the vast majority of cases are decided as wins and losses. If you want to do this without a lawyer, this is what you must prove
These are the five steps:
1) Is the individual engaging in substantial gainful activity (SGA)?
Roughly translated as "Are you working full time or working part time and earning more than $1,000 a month?" If you're working, the case ends here. Nothing more is done. The case is over. If no substantial gainful activity, the Social Security Disability case moves on to the next issue.
2) Does the individual have a severe impairment?
That is, do you have a mental and or physical problem that could significantly interfere with work? If the answer is no, the case stops here. If yes, the case goes on to the next issue.
3) Does the individual have an impairment that meets a Listing?
This is the same issue we talked about in the section on Listings for a pay on the record. If the medical records show that your conditions are so bad they meet the extreme standards of a Listing, the case stops here with an award. If not, then the Social Security disability case goes to the next step. As a practical matter, very few cases stop here during the Social Security hearing. A Listing may be found by the judge when he writes the order a few weeks or months later but it makes sense to go through the whole disability process while everyone is there in the courtroom because a more thorough hearing that covers all issues is often better. More testimony can often provide more support for the listing .So, the Social Security disability hearing generally goes on to step four.
4) Can the person return to past relevant work?
If you can go back to any of your old jobs and do them 8 hours a day for 40 hours a week, the case ends here with a finding of "not disabled." This is based on medical evidence. If you can't go back to your old job or jobs, then the case moves on to the next step. Most appealed cases are decided with the evidence in step five. Cases can be won here if folks are 50-54, approaching advanced age, or 55+ , advanced age. If older individuals cannot go back to past work and they meet the special criteria for these ages then the case can stop by "gridding out. ( There really is a sheet of paper laid out in a grid that we use at these ages for particular limits.)
5) Can the individual make adjustment to other jobs available in the national economy?
It is the government's, that is Social Security Disability's, burden to prove this. The best working assumption for a hearing - and the only safe one - is to assume they can prove this and be prepared to show this is wrong with medical and legal arguments. If you can pass through this gauntlet to show there are no other jobs available, then you have won. If not, then you go on to try to win in two forums where you have less chance to win.
E) Win on appeal at the Appeals Council in Virginia.
If you disagree with the decision, sometimes but not always, it is best to ask the Appeals Council to look at your Social Security Disability case. I say sometimes because there is very little chance to win here and the case will be delayed possibly for a year or more. Oftentimes it is best to start over with a new case. There are quite a few technical issues involved in whether it is best to appeal. For now just know it is out there.
This appeal is all on paper. There is no person to meet. No one to talk over the case issues. Just paper. The rules used are somewhat obscure even to seasoned lawyers and a win is generally a remand that goes back to the same judge that turned you down but this time with guidance from the Appeals Council.
If this case is lost on at the Appeals Council, then the next option to win is at the federal district court and beyond. In this case, the Social Security Disability appeal would be heard in Tuscaloosa.
F) Winning on appeal at the federal court.
At this level, there is no new evidence to be submitted and the legal presumption is that the administrative law judge in the Social Security Disability case got the facts right. The only arguments to make here are purely legal, that is arguments the judge at the Social Security hearing got the law wrong. In special cases, it is worth going to this level. But if the only arguments are about the interpretation of the facts of the case, then it is best to re-file to start the fight for another day.
This is the bare outline. If you have any questions please call (662-328-9365)or email email@example.com
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