What does Medically Determinable Physical or Mental Impairment Mean?

A medically determinable physical or mental impairment is a medical condition that can be shown to exist by medically acceptable clinical and laboratory diagnostic techniques. (20 CFR §404.1508). Social Security Regulations specifically state, “a physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.”

Even if you have a number of symptoms that are preventing you from working, if you have not received a diagnosis, you cannot be found disabled. (See 20 CFR §404.1529). This is why medical treatment is so important to Social Security disability claims. If your symptoms, such as pain, fatigue, weakness, or nervousness, are not explained with medical signs or laboratory findings that show a medically determinable impairment, Social Security cannot determine that your symptoms affect your ability to do basic work activities. (See 20 CFR §404.1529).

Obtain a Medically Supported Diagnosis Before Applying for Disability Benefits.

If you are experiencing symptoms that prevent you from working, you must receive treatment to determine the cause of your limitations. Once you receive a diagnosis, your symptoms must be supported by signs and laboratory findings. “Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements.” (20 CFR §404.1528). Laboratory findings are “anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques.” (20 CFR §404.1528).

In the simplest form, you must receive treatment, your doctor must confirm that the symptoms you express are occurring, and test results should support the diagnosis. If you have not been diagnosed, or your diagnosis is not supported by signs and laboratory findings, you cannot be found disabled.

I suggest to my clients that they have open conversations with their doctors about their medical condition. If you are unable to obtain a diagnosis from your primary doctor, ask for a referral to a specialist. If you are diagnosed with a condition, but have not underwent any medical testing, ask if a test could confirm your diagnosis. Make sure that your doctors are asking you about your condition on each visit, and that you report any symptoms that you are experiencing.

Persistence is so important when you are suffering from serious symptoms affecting your ability to work. Make sure that your doctor understands what you are experiencing, and that her or she is helping you obtain an explanation and treatment for your symptoms. If your condition cannot be explained by a physical condition, also ask your doctor to explore possible psychological causes.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. Impact of High Administrative Law Judge Denial Rates on Disabled Delaware Residents The Delaware News Journal published several articles this week discussing...
2. I Have Breast Cancer, Why Was I Denied Social Security Disability Benefits I meet with many clients that are diagnosed with breast...
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Episode 6 of Social Security Disability Law Weekly Podcast includes discussion of: importance of local attorneys in Social Security Disability Claims; use of an iPad in Administrative Law Judge Hearings; don’t blame the messenger when unpleasant information is communicated about your disability or SSI claim; Social Security Denials Remain High in Delaware; impact of disability on Social Security Retirement benefits; and concept of medical record lag in Social Security claims. Download Episode 6 or press play below to listen in your browser.

Show Notes: Social Security Disability Law Weekly Podcast Episode 6

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Off Topic
  • Support local attorneys – discussion of advantages of having a local attorney
  • Is my attorney using an iPad?
• Issues during my week in practice
  • Don’t Blame the Messenger!
    • Finding out that you don’t qualify for Social Security disability can be difficult, but it is important to remember that the person communicating the message to you isn’t the one making the rules.
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Social Security Denials Remain High by Mike Chalmers of the Delaware News Journal
    • Further discussion of the relatively high denial rate for Social Security disability claims by Delaware Administrative Law Judges
  • Social Security Disability Benefits at Retirement Age by Scott Lewis of Indiana Social Security Disability Lawyer Blog
    • Description of what happens when you reach retirement age and are on disability
    • Reminder to consider loss of benefit when on Early Retirement instead of disability
  • The Medical Records Time Lag by Gordon Gates of the Social Security Disability Lawyer Blog
    • More complete medical records can help you win your claim

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the sixth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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2. Social Security Disability Law Weekly Episode 5 – Technology, Uninsured, and DDS Turnover Episode 5 – Technology, Uninsured, and DDS Turnover Social Security...
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Social Security Disability Law Weekly, Episode 5, includes discussion of use of technology in disability claims; alcohol abuse and mental health claims; importance of trying work before applying for disability; problem of being disabled and uninsured; how to qualify for Social Security based on mental illness/bipolar disorder; improve your Social Security Reconsideration appeal; and, more reasons to file an appeal of your disability denial. Download Episode 5 or press play below to listen in your browser.

Show Notes: Social Security Disability Law Weekly Podcast Episode 5

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Why Technology is Important to Social Security Disability Law
  • Discussion of my attendance at American Bar Association TechShow in Chicago
  • Discussion of how technology has improved Social Security’s processing of disability claim files
• Question from Last Week’s Podcast
  • Does Alcohol Dependence in Mental Health/Depression claims guarantee that your disability claim will be denied?
• Issues during my week in practice
  • Attempting to obtain disability benefits without ever attempting to work
    • Discussion of importance of trying work before applying for Supplemental Security Income Payments
    • Link to Delaware Division of Vocational Rehabilitation
  • Serious medical problems without medical insurance
    • Review of how lack of medical insurance limits options for individuals that have disabilities
    • Link to Delaware Division of Social Services Medicaid Information Page
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Bipolar Disorder and Social Security Disability by Aaron Rifkind of Illinois Social Security Blog
    • Explanation of the Medical Listing criteria for qualifying for disability benefits based on Bipolar Disorder
    • Important to also determine if you qualify based on your Residual Functional Capacity
  • Four Tips for Filing for Your Social Security Disability Reconsideration by Cavey Barrett, Attorneys at Law
    • Steps you can take to improve your reconsideration appeal
  • Another Reason to Appeal Your Denial by Gordon Gates of the Social Security Disability Lawyer Blog
    • Discussion of how high turnover at Disability Determination Services impacts denial rates at the initial application and reconsideration levels

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the fifth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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2. Social Security Disability Law Weekly – Episode 2 Episode 2 – Ethics, Mental Illness, and SSI Fee Withholding...
3. Social Security Disability Law Weekly Podcast – Episode 4 Episode 4 – Healthcare, Onset of Disability and High GAFs...

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Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

Episode 4 includes discussion of: emergency room treatment in disability claims; Delaware District Court Appeals; Delaware State Bar Association Seminar on Social Security; Disability Onset Date when filing a second application for benefits; Attorneys at Administrative Law Judge Hearings; and high Global Assessment of Functioning (GAF) scores. Download Episode 4, or press play below.

Show Notes: Social Security Disability Law Weekly Podcast Episode 4

-          Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

-          Issues during my week in practice

• Emergency Room Treatment as Primary Care
  • Discussion of using hospital as only source of treatment
  • Suggestion to consider low-cost medical clinics as alternative (Delaware Low-Cost Healthcare)
• Meeting to discuss Social Security Appeals with Chief Judge Gregory Sleet of the United State District Court for the District of Delaware
  • Chief Judge Sleet brought together Delaware Attorneys that practice in the Social Security area with representatives from the Social Security Administration General Counsel’s office to discuss Social Security Issues at the District Court level
• Delaware State Bar Association Social Security Disability Ethics Presentation
  • Discussion about Delaware State Bar Association CLE on “Can Social Security Disability Help Your Client?” (Registration Form)

-          Social Security News (Discussion of Topics Reported in the News and Blogs this Week)

• Disability Onset in Subsequent Claims by Aaron Rifkind of Illinois Social Security Blog
  • Social Security allows individuals to file a new claim for disability benefits after being denied by an Administrative Law Judge, but you can only be found disabled beginning the day after the ALJ denial
  • What date should you use as your alleged onset date if you file a new claim
• Am I Required to Have an Attorney at a Hearing by Tim Moore of Disability Secrets Blog
  • Discussion of factors that should be considered when determining if you should be represented at an ALJ hearing
• Is GAF of 65 Too High? By Gordon Gates of the Social Security Disability Lawyer Blog
  • Global Assessment of Functioning or GAF scores are a tool used by Mental Health Providers (psychiatrist, psychologist and therapists) to provide a snapshot of your functioning at the time you are evaluated
  • GAF scores of 51 or higher, normally cause problems in being approved for Social Security Disability based on mental illness
  • Disability cannot be determined solely based on a GAF score

Closing Credits:

-          Contact Steve Butler to Discuss Social Security Disability Law Weekly

• DelawareDisability.com Contact Form
• Email: Steve@SSAlaw.us
• Twitter: @DisabilityGuy
• Facebook: http://facebook.com/SSALaw

I hope you enjoyed the fourth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

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2. Social Security Disability Law Weekly Episode 6 – iPad, Retirement and Medical Record Lag Episode 6 of Social Security Disability Law Weekly Podcast includes...
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When reviewing disability, the Social Security Administration requires medical proof of your disability. This means that the Social Security Administration will look for objective results that support your limitations. It is important that your treatment records contain details reflecting your symptoms, your response to treatment, results of diagnostic testing, and a plan of treatment.

The Medical Society of Delaware (“MSD”) is a society of physicians with the core purpose to “guide, serve and support Delaware physicians, promoting the practice and professional medicine to enhance the health of our communities”. In May 2006, MSD developed treatment guidelines for chronic pain. Although MSD abandoned the development of new guidelines in February 2009, the previously developed guidelines remain available for review.

According to MSD, the guidelines were created to assist primary care physicians in treatment of patients with chronic pain in recognition that chronic pain causes physical and emotional suffering of patients. It is specifically recommended by MSD that consultation with specialists be incorporated into the patient’s treatment plan. Physicians are directed to consider not only the pain diagnosis, but also emotional and functional impact pain has on their patients.

The following areas are notable in the guidelines:

• The diagnosis of a painful condition should include an extensive differential diagnosis that rules out treatable and reversible etiologies while rationally managing symptoms of severe pain.
• An initial assessment of chronic pain should include a detailed history (including vocational issues related to pain), full physical exam, consideration of diagnostic studies, differential diagnosis, and a plan of care. The plan of care should be developed with consideration of patient’s history, examination, and goals.
• When implementing a treatment plan, physicians are instructed to ask about pain regularly, accept patient reports of pain, intervene early, and provide information that helps empower patients to make appropriate decisions.
• Timetables should be developed and the rationale of treatment should be discussed with patients. Documenting the treatment by measuring the progress of pain is essential.
• Objective examination results that reveal abnormalities should raise red flags that lead to specialist referral.
• After diagnostic assessment of pain, conventional treatment (including physical therapy, exercise, chiropractic evaluation and short acting pain medications) should be followed by specialist referral if no improvement in symptoms after more than 6 weeks of treatment.
• Family physicians should determine if psychiatric symptoms exist and consider referral for psychiatric or psychological assessment.
• After an initial treatment plan is created, physicians should monitor and record changes in medical history, perform a focused exam to correlate subjective complaints, observe functional limitations, order and review diagnostic testing, and revise the treatment plan based on the patient’s response to treatment.

The guidelines suggested by MSD explain why specialist care is important when you suffer from long-term chronic pain. If your family physician has not referred you for specialist care, it is important that you discuss and question that decision. If your pain fails to respond to the treatment that you are receiving, suggest additional care to better evaluate your symptoms and discuss the guidelines with your physician.

I am not suggesting that a family physician should not be involved in chronic pain treatment, only that your physician should realize when additional care is needed. The plan for pain management care should be reviewed with your family physician, and your family physician should manage and coordinate your care with other physicians. The purpose of these guidelines is to help you obtain relief of your pain. If your physician follows these guidelines, your condition will be better documented, you will receive heightened care for your condition, and it will ultimately be more likely that you will qualify for Social Security disability benefits if your condition fails to improve.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Even if your doctor believes that you are currently unable to work because of your diagnosis, the most important question is how long the diagnosis will prevent you from returning to work. Early stages of breast cancer are normally treated with a lumpectomy followed by possible radiation, mastectomy, and/or chemotherapy. I have had several clients that have completed all of their treatment for breast cancer and experienced a complete remission within 6 to 10 months of their initial diagnosis. Since the Social Security Regulations require that an impairment be severe enough to prevent you from performing work for a full 12 months, these individuals are denied benefits unless side effects of treatment (or other medical conditions) otherwise limit their ability to perform work.

While the immediate concern with breast cancer will be the treatment of the cancer itself, it is important to pay attention to other symptoms that occur. Due to the traumatic nature of the disease, it is common to experience depression because of a breast cancer diagnosis. It is important to discuss any emotional symptoms that you experience with your doctor, and if necessary to even seek psychotherapy. If you fail to seek treatment for these symptoms, it is unlikely that the Social Security Administration will consider any limitations that are directly related to depression.

If you are required to undergo chemotherapy or radiation, it is also important that all side effects of your treatment be discussed with your oncologist and/or radiologist. It is normally determined that during chemotherapy and radiation an individual would have a difficult time performing full-time work, but it is still important that difficulties are recorded by your treating physician. Some individuals with mild symptoms are actually able to continue performing work activities while undergoing treatment. Since not every individual has the same side effects, your doctor must be aware of any problems you are experiencing.

If your cancer is detected early and your oncologist is optimistic that remission will occur after only a brief period of time, consult with an attorney to determine the likelihood of success if a disability application is pursued. Depending on your unique circumstances, an attorney can advise whether it is in your best interest to file a disability application immediately or if you should wait until after you have underwent your initial treatment. An attorney will also remind you of the importance of receiving treatment for other symptoms and not just those that you relate to your cancer diagnosis. This could be very important for establishing that the durational requirement of the Social Security disability program is met.

Luckily the majority of my clients with breast cancer have experienced complete remission within 6-18 months of diagnosis. Most of these individuals ultimately qualified for a closed period of disability benefits because their symptoms prevented them from performing full-time work for at least 12 months, but several were found to be ineligible for benefits because with treatment they were able to begin work again less than 12 months after their initial diagnosis. Only a small portion were eligible for ongoing benefits, and normally this was because the treatment was unsuccessful or because the cancer treatment caused severely limiting side effects.

The important thing to remember when you are diagnosed with breast cancer is that with early detection, the disease is much more treatable and remission is more likely. To have the best chance of being approved for Social Security disability benefits, it is important that you understand the process and the rules of the Social Security disability program. Consulting with an attorney early in the process will help protect your rights and assist you in better documenting your eligibility for the Social Security disability programs.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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1. Applying for Social Security Disability Insurance while Receiving Long Term Disability Benefits When you are receiving Long Term Disability (“LTD”) benefits, you...
2. Requirement for Medically Determinable Physical or Mental Impairment in Order to be Found Disabled by Social Security In order to qualify for Social Security Disability Insurance Benefits,...
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Why Change Anything, I Am Happy with My Health Insurance?

Most individuals I speak to regarding these issues are not worried about the healthcare debate because they are happy with the current coverage that they have. These individuals often ignore how easy it would be to lose this coverage. For the majority of Americans, healthcare coverage is linked to your job. If you lose your job, you also lose your medical coverage. Although this is not an issue for a healthy individual that is able to obtain a new job (and new coverage), if you have lost your job because of your medical condition, you may quickly find yourself without medical insurance coverage. Even if you are eligible for COBRA coverage, when the choice is paying your mortgage and buying groceries or paying for health insurance, most individuals choose the necessities. No one ever expects to be in a position that they will not have health insurance available to them.

Medical Coverage does not Begin Immediately with Social Security Disability

What is shocking to most people is that if they are found disabled by the Social Security Administration, they do not immediately qualify for healthcare coverage. Under the best-case scenario, an individual that is ultimately found disabled is not entitled to Medicare coverage until 29 months after they last worked. (This is assuming that the individual was found disabled on the first of the month that they stopped working, and that the Social Security Administration determined that the medical condition was severe enough that they were entitled to disability from the day that they stopped working.)

If you are found entitled to Supplemental Security Income payments, you are entitled to Medicaid coverage immediately. However in order to qualify for SSI, you must be able to establish that you have very little assets, and little or no income on a monthly basis. Your spouse’s income is considered when determining your eligibility for SSI. The majority of the time if you qualify for SSI, it is likely that you already had Medicaid coverage, because the Medicaid criteria are similar to SSI.

During the waiting period for Medicare, no assistance is provided for medical treatment. If you do not have health insurance, you are expected to pay for your treatment out-of-pocket. Due to the amount of your Social Security Disability Insurance, you normally do not qualify for any income-based assistance from your State. Although the government has determined that your condition is severe enough to prevent you from performing work, no help is provided to obtain the treatment you need. Once Medicare beings, these benefits are just extended to the disabled individual and are not available to a spouse or dependents.

The Importance of COBRA

The thing that surprises me about many of the uninsured people that I meet is that they had an opportunity to purchase COBRA. The individuals refused COBRA because of the cost of the coverage. These individuals were unaware of the wait time for Medicare coverage and did not realize that they would not qualify for Medicaid because of their household income. Their immediate concern was paying their existing bills. They rarely considered the impact that one hospitalization could have on them financially. Many of these individuals are later forced into bankruptcy because of the cost of required medical care.

Even though COBRA initially sounds like a expensive alternative, you must consider how much your treatment will cost without insurance coverage. I have several clients that have medications that would cost more than the monthly COBRA premium. They quickly find after they refuse COBRA coverage, that the cost of one hospitalization would have paid for 12 months of COBRA. These individuals also discover that when they are unable to pay for medical treatment, it becomes less likely that they can establish their eligibility for Social Security Disability. Since they are unable to work and they do not have medical coverage, their financial situation only becomes worse.

Alternatives for individuals without Healthcare Coverage

It is possible for individuals without healthcare coverage to purchase personal policies. However these policies are often expensive, and rates raise with age. Insurers are allowed to consider your pre-existing health conditions, and in certain situations even exclude coverage based on pre-existing conditions. Affordable personal healthcare policies for older individuals normally require high deductibles. A yearly deductible of $5000 or more may be enough to prevent an individual from obtaining treatment even though they have healthcare insurance.

Medicaid is available to individuals with financial need, but if you have any source of income or your spouse is employed, it unlikely that you will qualify for this program. If you do not qualify for Medicaid, Delaware Residents may qualify for the Community Healthcare Access Program (“CHAP”). CHAP is a network of physicians and healthcare centers in Delaware that agree to provide discounts for medical services. There are still financial eligibility guidelines, but CHAP extends medical coverage to an additional group of individuals that normally would not qualify for help.

If you do not qualify for Medicaid or CHAP, healthcare is also available through a sliding-scale healthcare center. These facilities determine your eligibility for their services based on financial criteria, and limit the number of patients that they can see. Households with higher incomes will still be required to pay out-of-pocket co-pays for healthcare treatment, but will receive a substantial discount off the normal cost.

Although all of these options are better than no treatment, you will still not receive the same level of care that you would with a traditional health insurance plan. It will be harder to obtain specialist treatment for your condition, and some tests and medications that are needed will be excluded. Since treatment will be limited, establishing disability will be harder.

Pay Attention to Healthcare Debate

The purpose of this post is not to advocate any specific plan for reform, but instead to raise awareness of unforeseen healthcare concerns. Most of the uninsured people that I meet never expected to find themselves uninsured. They are normally hard-workers that simply did not realize that if their job ended due to disability, they would also lose medical benefits. These are individuals that always had healthcare coverage, and now when the need it the most, no affordable option is available.

Because continuing treatment is important to the Social Security Disability determination, many of these people will be denied benefits that they deserve because they cannot obtain the medical treatment that they need. These people need to share their stories with elected officials, family, friends and the public. It is only through increased awareness of these problems that there will ever be support for meaningful reform.

Relevant Links:

• Delaware Low-Cost Healthcare
• Delaware Division of Medicaid & Medical Assistance Programs
• Community Healthcare Access Program (CHAP)
• Delaware Uninsured Resources
• Delaware Insurance Commissioner’s Health Insurance Guide

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The ALJ denial rates have serious implications on individuals that live in Delaware and have physical or mental disabilities. Because of the high denial rate, more Delawareans are approved at the initial application level than any other point in the Social Security Disability Process.

The Importance of Obtaining Legal Assistance Early

Since more Delawareans are approved at the initial application level, it is important to have help with your Social Security Disability claim as early as possible. The most significant change that I made in my practice since the Dover ODAR office opened in 2004, was actively representing more people at the initial application level. I discovered that clients denied by Dover ALJs could have been approved at the initial application level if additional medical evidence had been provided. When I started representing claimants in 2003, less than 10% of my clients were at the initial application level. Now more than a third of my cases are at the initial application level.

The initial application is important because you have a clean slate. No medical opinions have been provided that indicate that you can work, and you still have an opportunity to submit evidence that can be considered by the Disability Determination Service. If the State Agency Physician is able to review your treating physician’s medical opinion before providing his or her own opinion, it is more likely that your doctor’s opinion will be incorporated into the decision. Because of the importance of being approved early, I focus on building the strongest claim possible before my clients even apply for benefits. If you are approved benefits on your initial application, you never have to worry about the high denial rates of the Dover ALJs.

More Treatment is Necessary to Establish Disability with Dover ALJs

It is extremely difficult to be approved for benefits at an ALJ hearing in Delaware if you do not have specialist care. Even the Dover ALJs that have higher approval rates are unlikely to approve you for disability if you are only receiving treatment from a family physician. Although your family physician may be willing to treat you for every medical condition, it is important that you receive treatment that will improve your chance of being approved.

If you are suffering from a major disability, the Dover ALJs expect you to see a specialist for your condition. Family physicians are less likely to document symptoms to the same extent as a specialist. Since specialist limit their practice, it is also more likely that they will be aware of recent developments in your condition, and be able to offer treatment alternatives that may help. Having specialist care will make it more likely that you are one of the few that are approved if you eventually have to have a hearing in front of a Dover ALJ.

Your Treating Physicians must be Supportive

If your treating physician believes that you can work, it is unlikely you will be approved for Social Security disability benefits. I normally only accept new clients if a treating physician first documents limitations and explains how the limitations would interfere with your ability to work. If your treating physician is not supportive of your disability, the ALJ will only have the State Agency medical opinions to consider when deciding your claim. Since the State Agency medical opinions were likely the basis of your original denial, the Dover ALJs will cite the same opinions to deny you again.

Even when your treating physicians are helpful, it is still possible to be denied benefits. Several of the individuals featured in the New Journal had opinions from multiple doctors supporting their disability. I even routinely have had clients denied benefits when the opinions of Social Security Consultative Examinations supported their disability.

More Documentation is Necessary

Obtaining supportive medical opinions from your treating physicians is only the starting point in proving disability in Delaware. You must also be able to support your symptoms with objective medical evidence. If you have pain, you must have test results that establish the source of your pain. This is normal throughout the United States, the difference in Delaware is that the ALJs are often looking for you to have the tests repeated throughout the time that you are receiving treatment. It is not enough to have a test performed when you initially became disabled; the ALJs also want to see updated tests that are performed shortly prior to the ALJ hearing.

If you are experiencing pain, but have not had surgery performed, it is rare to be approved benefits by many of the Dover ALJs. Even if you had surgery, the ALJs will look at how invasive the surgery is when making a determination on whether you are disabled. Injections are not significant to most of the ALJs in Delaware, and if you are only taking medication for your condition and have not required more invasive care, it is unusual to be approved.

If you are suffering with a mental based disability, you must have treatment with a psychiatrist and a therapist/psychologist. If you fail to take medication, or abuse illegal drugs or alcohol, you have very little chance of approval (even if your doctor indicates that this is caused by your condition). If you are claiming memory or cognitive impairments, it is also important to have psychological and memory testing to document the severity of your symptoms. In my experience, individuals with purely mental based disabilities are rarely approved in Delaware unless they also have required hospitalizations for their condition.

Higher Costs to Pursue Claims in Delaware

Because of the higher standard of disability that we face in Delaware, I have noticed that the cost of pursuing disability benefits has skyrocketed between 2003 and 2009. The average cost in 2003 was below $150 at the ALJ level; today it is not abnormal to have costs of $400-$600. The reason for the increase is the additional evidence the ALJs are requiring. The ALJs want records from every doctor you have seen since your disability began (even if it is not relevant to your disability), and I often must request opinions from each doctor actively treating you. Since the ALJs do not like fill-in-the-blank forms, narrative opinions (that have cost as much as $1,000) are sometimes needed.

Additional costs are incurred for the additional treatment needed. If you have copays for every visit to your doctor, the additional care will result in more out-of-pocket costs. If you see additional doctors, it is also likely that additional tests and treatment will be suggested.

If you experience a unique condition that has flare-ups, it is important to notify your physician of every flare-up. Even when you have learned to manage your condition during flare-ups, it is important that the flare-ups be documented by your doctor. If your flare-ups are not mentioned in your treatment records, many of the Dover ALJs frequently find that the flare-ups did not occur at the frequency that you identified.

Dover ALJs do not Independently Review Your Disability

ALJs are supposed to independently consider all the medical evidence that is in your file and all testimony that is provided prior to issuing a decision. Before a hearing, it is not abnormal to submit over 100 pages of new medical records, and to provide medical opinions from treating physicians for the first time. Due to the length of time it takes for a hearing to be scheduled, normally the Social Security medical opinions in your file are at least one year old when the hearing is held.

The Chief ALJ of the Social Security Administration, Frank Cristaudo, stressed in the News Journal the importance of ALJs independence. He indicated, We allow the judges to make the decisions they think are appropriate. This stance is commendable, but many of the Dover ALJs fail to exercise their independence.

Although there is so much new information available for the first time at the ALJ hearing, it is common for Dover ALJs to ask, “Why was the Disability Determination Service (DDS) wrong in denying the claim?”. I must be prepared to explain why the State Agency Physician’s medical opinion does not adequately address your limitations (although it is obvious that these doctors never had the opportunity to review your new medical documentation), and I have been reminded by one ALJ that the State Agency Physicians are not biased like treating physicians.

This is a concern because the ALJs are not independently considering your disability. When the majority of Dover ALJs ask for Vocational Expert testimony, they ask the Vocational Experts to only consider limitations that were identified by the State Agency Physician, and when they issue a decision, the State Agency Physician (that never examined you) is normally awarded the most weight. It is rare for the ALJs identified by the News Journal to believe you or your treating physician. Even when they approve benefits, it is usually based on information that was previously provided by the State Agency Physician or a Consultative Examination Physician.

Approved for Less Benefits

The News Journal article briefly provided an example of one individual that was ultimately found disabled, but it was determined that his disability did not begin until 2 years after his employment ended. It is common for decisions from the Dover ALJs to be partially favorable. This means that although you are approved for benefits, the ALJ will find that your disability was not “severe enough” to cause you to become disabled until sometime after you originally stopped working.

ALJs in other areas commonly find that a claimant was disabled when their job ended, even if additional care was not received until a later date. For example, if you are suffering from depression and lose your job because of the condition, but did not start seeing a psychiatrist until after you had to be hospitalized 6 months later, other ALJs will find that your condition was severe enough for you to qualify since your job ended. With many Dover ALJs, you would not be approved until the date that you had to be hospitalized.

If you have a spine impairment, and went through therapy and injections before it was determined that you needed surgery, most ALJs would realize that your doctors wanted to try less invasive treatment before considering surgery. However, with the Dover ALJs discussed in the News Journal, I have had several clients that have not been approved until the date of their surgery. Although these individuals had experienced pain severe enough to prevent them from working for several months (to several years), the ALJs determined that they were not actually disabled until surgery was necessary.

One Dover ALJ is also routinely finding that individuals are only disabled for a brief period. An ALJ normally only awards a closed period of disability if an individual’s condition has actually improved enough to allow them to return to work (or the individual admits that they have the ability to return to work). This specific Dover ALJ routinely issues partially favorable decisions finding that a person was only disabled for a period of 12-18 months. The ALJ will indicate that an individual has improved even if the treating physician does not believe the symptoms resolved.

The News Journal did not provide specific details on the number of fully-favorable versus partially favorable decisions in the article, but I have information for each of the ALJs for fiscal year 2008. The ALJ that was discussed the most by the News Journal had an overall denial rate of 59.2% in 2008, but only issued fully-favorable decisions 22.3% of the time. The remaining 18.5% were partially-favorable decisions. For individuals age 18-49, this same ALJ issued fully-favorable decisions 10.3% of the time, and issued partially favorable decisions 19.9% of the time.

This is alarming because when an onset date is voluntarily amended, or an individual agrees to a closed period of disability, this counts as a fully-favorable decision. This suggests that if individuals did not voluntarily make these changes, the ALJ would have a much higher partially favorable rate (or possibly even deny more claims). Therefore, even some of the people that are approved by the ALJ with the highest denial rate are not actually receiving all the benefits they deserve.

Fewer People Offered Representation

Because the practice of law is a business, it is important that attorneys are able to make a profit when representing individuals. Although I would like to help everyone that contacts me, I must focus my limited resources on helping those people that have the most realistic chance of being approved for benefits. When fewer people are approved for benefits, it becomes harder to offer representation to all the people that need it.

The higher denial rates make it less likely that I can offer representation if your condition is not well documented. When I started practicing in 2003, I would routinely take cases where my client did not have adequate documentation of their disability. I would work with my client to help them establish the necessary medical care, and I would file appeals while they strengthened their case. I realized that the individual may be denied one or more times, but I knew that I could help them improve their future chance of approval.

Now when I meet with a potential client, I am unable to devote my resources to claims that are poorly documented. I have had multiple clients denied benefits that have had 4 or more supportive medical opinions from treating physicians. If it is difficult for someone with the support of all of their doctors to be approved for disability benefits, it is nearly impossible for an individual with little or no medical support to be approved.

The result of this change is that Delawareans that would have been offered representation in the past must now pursue benefits without legal assistance. All of the Delaware attorneys that I speak with that handle Social Security Disability cases are also being more selective in accepting clients. I currently only begin to represent 20% of individuals that request my help. If all of the Delaware attorneys are being more selective in offering representation, the net effect is that fewer claimants are represented.

Claims with Supportive Evidence are Not Being Appealed

If you are denied by an ALJ, you have a right to appeal your decision to the Appeals Council. The Appeals Council typically takes anywhere from 6 months to 2 years to issue a decision. In 2008, Appeals Council denied 73% of claims filed, and only approved 2%. Although Appeals Council remanded 22% of cases, this simply means that your claim will be sent back to the same ALJ that denied you previously. In my experience, the Dover ALJs are no more likely to approve you after your case has been remanded by the Appeals Council.

After being denied by the Appeals Council, you can file an appeal in United States District Court. Unless you can prove that you have very little resources and/or income, it cost $350 to file an appeal to United States District Court. The United State District Court for Delaware issued 30 Social Security Disability decisions in 2008, and remanded 43% for a second hearing (no outright reversals were issued). It took the District Court an average of 527 days to issue a decision in 2008. Between 2004 and 2008, an average of 27 Delaware District Court appeals were filed each year. During the same time, Dover ODAR denied an average of 642 people per year for disability benefits.

The only way that you are assigned a new ALJ for a second hearing is if you can prove bias or your original ALJ is no longer available. I have never had a case assigned to a new ALJ for a second hearing in Dover. If you are successful at getting a second hearing based on an Appeals Council appeal, it is likely that it will take a minimum of 18 months after the ALJ’s original decision before you get a new decision. For cases that are remanded from District Court, it is likely that you will have waited for 3 or more years before you receive another decision.

During the time that you are waiting for the appeals process, you are not receiving benefits. I spend approximately 20 hours preparing a file for the first ALJ hearing. If I have to file an Appeals Council appeal, I spend an average of 10 additional hours working on your claim. District Court appeals take me between 20-25 hours. When a case is remanded for a second hearing, I usually spend at least 10 more hours preparing the case for a second hearing. This does not include the time that my staff spends preparing your file and giving you updates.

When I decide to appeal claims to Appeals Council and United States District Court, I am making a significant investment in my time. If it is not likely that I can obtain a better decision by filing an appeal, I am unable to continue to pursue the claim even if the ALJ technically made errors in your decision. During the entire time that you are waiting for your claim to be decided, I am also not receiving payment for my services. If I spend 40 hours working on an appeal that is not going to be successful, I have spent an entire week of my time that I cannot devote to obtaining additional clients.

Because I am running a business, I have to make a cost-benefit analysis before I agree to take action on your behalf. Since there is only a small chance of receiving benefits after being denied by an ALJ, I appeal only a small number of claims past the ALJ level. I look for ALJ mistakes that are so obvious that I believe that 100% of claims that I appeal to Appeals Council or District Court should be approved.

My main consideration when I decide to appeal is not whether I believe that you are disabled (I believe that 100% of people I represent at hearings are disabled), but whether I believe that you could be approved if you have a second hearing. Based on the small percentage of cases that are filed in Delaware District Court (only about 4% of ALJ denials are appealed to District Court), it appears that other attorneys also take a similar approach. This means that even individuals that have supportive medical evidence and should have been approved benefits are not always appealing their decisions after an ALJ denial.

Conclusion

I am disturbed by what has happened at the Dover ODAR office because it overall is limiting your access to the legal system. Attorneys that were handling large numbers of Social Security Disability Claims in the past are reducing their caseload. Individuals that are unable to work and should be found disabled are being denied benefits. I am reluctant to appeal adverse decisions from the ALJs because it is unlikely that you will be approved for benefits even if your case is remanded. Instead of taking all clients that should be found disabled according to the law, I instead have to focus my attention on taking clients that can be approved based on how the Dover ALJs are applying the law.

I realize that there will always be variances in decision-making, the problem that I had hoped that the News Journal would highlight, is that the variance in Dover is not caused by ALJs exercising their independence, but by some ALJs misapplying the law. I personally have had at least 25 decisions where the ALJ found that my client was not credible because they attended their hearing and responded to questions. (If my client had not attended their hearing, the case would have been dismissed.) I am hoping that the attention that the Dover ODAR office receives from the News Journal articles will at least result in a consistent application of the law so that I can tell my clients that they will receive a fair hearing regardless of the ALJ assigned to their case.

News Journal Articles:

• Disability claims denied more often in Delaware
• After a lifetime of hard labor, body and mind are beaten up
• Woman felt like a ‘beggar trying to get something’
• With a family full of suffering, benefits don’t go a long way
• Hopeless situation sends mom to depths of despair
• Agency refuses to release information about complaints
• Dual roles of judges a source of tension
• Claim denials haunt some to death’s door”
• She fears judge is ‘just waiting for me to die’
• Disability denials troubling to leaders
• Routinely rejecting disability claims deplorable

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. Social Security High Denial Rates by Delaware ALJ Focus of another News Journal Article The Delaware News Journal has published another article in the...
2. The Social Security Administration makes New Administrative Law Judge Data Available Online The Social Security Administration recently released public use files...
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An Administrative Law Judge Hearing for Social Security Disability Insurance (“SSDI”) or Supplemental Security Income (“SSI”) can be a very stressful event. For most individuals, you have already been waiting two or more years since you initially applied for Social Security disability benefits before your hearing is held. You have already been denied benefits at least once, and it has been multiple years since you have been able to work. Most likely, you have spent most (if not all) of your savings, and you have had to rely on friends and family members for support to help you survive.

The Administrative Law Judge (“ALJ”) Hearing may be the most important event in determining your future. Although additional appeals are available if you are denied at the ALJ hearing, only a small portion of people that appeal ALJ denials are ultimately approved. Depending on how long you have been out of work already, it may even be your last chance for being approved for Social Security disability benefits.

The first thing I advise my clients after the ALJ hearing is scheduled, is “take a deep breath and relax”. Although the outcome of the hearing is extremely important, your preparation for the hearing is more important than the actual hearing. The Social Security disability process is not supposed be adversarial, and the main purpose of the hearing is to provide the Judge with additional relevant information so your claim can be decided.

Although the hearings are described as “informal”, there is still a structure to them. It is important that you treat the Judge and any experts called to testify with respect. Each Judge has his/her own unique style, and they conduct the hearings in different ways. The information in this series provides you with a general overview of what to expect when your ALJ hearing is scheduled.

Since there are so many aspects to cover about ALJ hearings, I have separated this series into 4 posts. The first post will focus on what to do to prepare for the ALJ hearing once it is scheduled. The next post will focus on a description of what to expect on the day of your hearing and who will be present during your ALJ hearing. The third post will describe what to expect during the actual hearing, and what types of information you will be asked to provide. The final post will provide tips to make the most out of your ALJ hearing.

Part 1. My ALJ Hearing was Scheduled, Now What?

The most important thing that you can do to have a successful ALJ hearing, is be prepared prior to the hearing. It helps to be represented by an attorney for a hearing because an attorney knows what must be proved, and has knowledge of what the Judge expects. The most important aspect of my representation at an ALJ hearing, is keeping the Judge happy before the hearing even starts. Below is a list of steps to take to make the ALJ hearing process meaningful for both you and the Judge.

1. Know what evidence is in your Social Security Administrative File. Review your Social Security file and determine what medical records are missing. (I obtain a copy of the Social Security File for my clients and make this determination. A copy of your file can be obtained once your request for a hearing is submitted. Contact your local Office of Disability Adjudication and Review for instructions on obtaining your file).
2. Request any records from your doctors that are relevant to your disability and are not currently in your Social Security file. It is important to have information about all treatment you have received since your disability began. The Social Security File will have all information that the Social Security Administration was able to obtain through the date of your last denial.
3. Submit new medical records that you obtain to the Judge before your scheduled hearing. (Remove any records that are already present in your Social Security file.) It is best to submit all new records to the Judge at least 15 days prior to your scheduled ALJ hearing. If you have an electronic file, the Social Security Administration will provide you with a barcode that you can use to fax your records to the Judge.
4. Provide the Office of Disability Adjudication and Review updated information about all of your treatment. Include the dates that you have seen each doctor and the treatment they have provided. Use Social Security Form HA-4631 to provide this information.
5. Provide a detailed medication list to the Judge. List all prescriptions that you are taking, the dosage prescribed, the frequency you take the medication, who prescribed it, and why you are prescribed the medication. It is also helpful to let the Judge know how long you have been taking the specific medication. Use Social Security Form HA-4632 to provide the medication information.
6. Review the work history forms that you previously submitted to the Social Security Administration. If you have attempted any additional work since you last completed the form, submit detailed information to the Judge about your additional work attempts. Use Social Security Form HA-4633 to provide an updated Work History.
7. Provide any information regarding any new accident you have been involved in or diagnosis that you have received. Indicate for the Judge the date that the accident occurred, or when you were diagnosed with any new condition. (This information can be provided in Form HA-4631 above).
8. Correct problems with your onset date. Review your application to determine the onset date that was used when you applied. If your alleged onset date is not consistent with your medical records, speak to your attorney to determine if the date that you are alleging disability should be changed.
9. Obtain detailed information from your treating doctors regarding your limitations. Have conversations with your doctors regarding your ability to perform work, and ask for medical opinion forms to be completed.
10. Review information that you previously submitted to the Social Security Administration describing your limitations, and be prepared to answer similar questions during your hearing. If your answers have changed, think about why you are more or less limited than you were when you previously completed the questionnaires. Make sure you are able to explain any changes to the Judge.
11. Know what you are going to be asked during the hearing. I provide my clients with a list of topics that are normally asked during the hearing. It is important that you be prepared to address areas specific to your disability. You should use the time between your hearing being scheduled and the date of the hearing to think about answers for questions you will be asked. (This will be covered in detail in part 3 of the series.)
12. Decide if you are going to call witnesses. I usually use witnesses only when they can add information that my client cannot provide directly. Repetitive testimony from friends and family regarding your limitations is not normally helpful. Although I would always like to have a treating physician or therapist testify, usually the cost of doing so is prohibitive. Ask yourself if a witness will be able to add any relevant information that you cannot provide yourself. (If you decide to bring a witness, notify the Judge at least 30 days prior to the hearing.)

Taking these steps prior to the hearing will help the Administrative Law Judge close your Social Security Record at the time of your hearing. By properly preparing your claim, you allow the Judge to quickly resolve any procedural issues, and focus his/her time on questions relevant to your disability. If your record is complete, the Judge will have a more accurate outlook on your impairment and limitations, and be able to issue a decision quicker.

I usually use the information compiled above to submit a pre-hearing brief to the Judge. I meet with my client after the hearing is scheduled, and I review all the topics above. I request all the updated information that is needed, and I resolve any conflicts with my clients. I use the pre-hearing brief to explain my theory of the case to the Judge, and to explain why the evidence supports a favorable decision. I identify any areas that still need to be resolved during the hearing.

The next post in this series will describe what you should do on the day of your hearing, and what to expect when you arrive at the hearing. If you have questions about any of the information provided in this post, please use the comment area below. Since this is a public website, please do not include any information in your question that would personally identify you. Your email address is not publicly viewable when you submit a comment and is only used if I need to directly respond to you.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Relevant Links:

• Social Security Form HA-4631 – Claimant’s Recent Medical Treatment
• Social Security Form HA-4632 – Claimant’s Medications
• Social Security Form HA-4633 – Claimant’s Work Background
• Linarducci & Butler Medical Opinion Form
• Questions Generally Asked During Social Security ALJ Hearing
• Social Security Best Practices for ALJ Hearing
• Office of Disability Adjudication and Review Hearing Office Locator
• Part II, The Day of Your Social Security Disability Administrative Law Judge Hearing
• Part 3, What Happens During My Social Security Disability/SSI Hearing?
• Part 4, Tips for an Effective Social Security Disability Administrative Law Judge Hearing

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1. What Happens after a Social Security Disability/SSI ALJ Hearing In November, I published a four-part series on what to...
2. Part 3, What Happens During My Social Security Disability/SSI Hearing? What to Expect at a Social Security Disability/SSI Administrative Law...
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The majority of individuals that seek the assistance of an attorney do not qualify under medical listings. Instead they must be able to prove that their medical diagnosis causes limitations that will make it impossible to perform full-time work. If you are under the age of 50, it is not important whether you can perform your past work, just whether you are capable of performing any full-time work based on your limitations.

Generally, you are found to able to perform full-time work if you can stand for a total of at least 15 minutes of every hour during an eight hour work day (for a total of two hours in an eight hour workday), remain seated for a total of 45 minutes out of each hour for an eight hour workday, and have the ability to lift more than 3 pounds of weight on an occasional basis throughout the workday. If your impairment limits your ability to stand for less than a total of two hours during an eight hour workday, it is normally difficult to perform even sedentary work. Additionally, if your impairment causes frequent unscheduled breaks during an eight hour workday, or frequent absences on a weekly or monthly basis, most employers will not tolerate your loss of productivity. Vocational experts generally indicate that if an individual is unproductive for 15% or more of a workday, they are not employable.

For individuals age 50 or older, the disability standard is somewhat more lenient. You must still have a medical diagnosis that will result in limitations in the ability to perform work, but it is possible to be approved for benefits even if there are still jobs that you could perform on a full-time basis. If you are between the age of 50 and 54, and limited to a sit-down job that requires very little skills, generally you are found disabled unless you have performed similar jobs in the past. If you are age 55 or older, it is possible to be approved for benefits even if you can still perform jobs that require standing up six hours or more during an eight hour workday, and lifting up to 20 pounds on an occasional basis. The main question for individuals between the ages of 50 and 64 will be the type of work that they performed in the past, and whether the skills that you have learned from the past work will transfer to easier work. If an individual age 55 and older is only able to perform work with lifting restrictions of less than 20 pounds, and has no transferable skills to work that is consistent with their remaining abilities, generally they will be found disabled.

Before applying for benefits it is a was important that all individuals have treatment for their condition. If you are suffering from an impairment, it is important that it is diagnosed. Simply having aches and pains without a medical diagnosis is generally not sufficient. Social Security considers all physical and mental conditions when determining your disability. If you are experiencing any medical problems, it is in your best interest to discuss those with a doctor and to follow your doctor’s treatment suggestions. Even if you did not stop working as a result of medical condition that you are suffering from, it is important that you have treatment for these conditions and that you disclose your condition to the Social Security Administration.

While pursuing treatment for your condition, it is important that you see specialists for confirmation of your diagnosis, and to obtain suggestions for improvement of your condition. Often, I am unable to offer my assistance to individuals because they have not received sufficient care for their condition. If you are suffering from back pain, arthritis, depression, or any other condition that is preventing you from performing work, it is normally important that you see a specialist for your condition. If there are objective tests to determine if your condition exists, Social Security will normally expect that those tests be performed prior to your application. If your doctor prescribes medications, it is important that you take your medications as prescribed. Failure to follow or comply with your doctor’s instructions can result in a denial for benefits. If you have difficulty following your doctor’s instructions, it is important that you speak with your doctor concerning the difficulties.

For individuals that do not have medical insurance, it is possible to receive treatment through clinics. In Delaware, there are several different low cost physical and mental health clinics that are available. These clinics usually see patients on a sliding scale basis. Information will be asked about your resources and income and the clinics will determine the most that you can pay for the services that are available. Often these clinics are able to provide services to low income individuals free of charge. If you have limited income and resources it is also important that you apply for medical assistance through the state that you live in. If you are below the poverty level, you often will qualify for free medical care through the state you live in. The Medicaid program in the State of Delaware provides better coverage than the majority of health care plans that individuals can purchase on their own. Generally, with Medicaid in Delaware, all doctor and hospital visits are free of charge. Transportation is available at a low cost, and prescriptions are normally less than five dollars.

When you apply for disability benefits, Social Security considers your medical condition and also information that you provide them. It is important that Social Security finds you to be a credible person when you apply for benefits. Social Security looks for inconsistencies in the statements that you provide, and inconsistencies between your statements and statements in your physician’s reports. The use of illegal substances, or the abuse of alcohol can cause problems for you during your application. If your use of illegal substances or alcohol is material to your condition, even if you are disabled, Social Security will deny you benefits. Even if your use of illegal substances or abuse of alcohol does not contribute to your condition, it can still be used as a factor in determining your credibility. If you are using illegal substances, you are breaking the law, and this is a relevant factor when determining if you are believable. Even if you do not disclose information about your use of alcohol or illegal substances, normally this information is found through your medical records.

You cannot begin your application for disability benefits until you are out of work, or your earnings from work have been reduced to a point that you are making less than $980 per month (this is the maximum you can make and still apply for benefits in 2009). Although you can apply for benefits the first day after your employment ends (or your earnings are reduced below the allowable limit), I normally recommend that individuals wait to apply until sufficient proof of their disability is available. Since Social Security must be convinced that your condition will prevent you from returning to work for at least 12 months, or result in death, it is often hard for individuals to be approved if they apply for benefits shortly after employment has ended.

The exception is if you have been diagnosed with a terminal illness. When you have been diagnosed with a terminal illness, it is important to apply as soon as possible. When you apply for a condition that may improve, commonly the Social Security Administration will deny your application even if you are currently disabled. It may be determined that even though you are currently unable to work, your condition is expected to improve within 12 months. Before applying for benefits, I suggest that my clients discuss their options with their treating physicians, make sure that their treating physicians are supportive of their application, and also discuss the expected duration that their condition will prevent them from working. If it is unknown if the condition will result in the inability to work for at least 12 months, I normally suggest waiting to apply until closer to the 12 month mark.

It is always important that you communicate with your physicians throughout this process. You should find out if your doctors are going to support your application for disability, and whether they will be willing to provide information that is necessary to help you be approved. I also commonly ask that my clients have forms completed by their doctors before filing an application for benefits. This gives me a better idea of what your doctor thinks, and allows me to better determine if you have a condition that meets the disability requirements. It is important to communicate with your physicians that you would prefer to work, and that you are only pursuing disability benefits because that is your only option based on your limitations. I always encourage my clients to remind their doctors that they are willing to take any steps necessary to allow them to return to productive work in the future.

Even when everything is done properly for an application for disability benefits, it is a time-consuming process. The average time for a decision in Delaware is between 4 to 7 months on the initial application. Failure to provide all of the needed information to the Social Security Administration can result in delays, and failure to seek necessary treatment can result in a denial. If you are considering applying for disability benefits, I recommend that you contact my office for assistance at the earliest possible time. Although it is possible to pursue disability benefits without the help of an attorney, it is helpful to have an experienced person help navigate you through the process. Please contact my office if you would like a free initial consultation.

Relevant links:

• Social Security Listing of Impairments
• Delaware Medicaid Frequently Asked Questions
• Delaware Low Costs Healthcare Clinics
• Delaware Online Public Assistance/Medical Assistance Application

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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