Dealing with a government agency can be a time-consuming task, and Social Security is no exception. I frequently get calls from people who are considering applying for Social Security benefits but aren’t sure how to begin. Generally, I advise these callers to go ahead and start the application process on their own because applying for Social Security benefits is actually quite simple. That’s because the Social Security Administration now allows individuals to apply for most Social Security benefits online at ssa.gov. One exception to the rule is Supplemental Security Income, or SSI, for short. Applicants for SSI will need to either walk in to their local Social Security office, or call Social Security’s main phone line at (800) 772-1213, to start the application process.
The Disability Application Process
As with any government application, you should be prepared to answer questions about yourself or the person you are helping. This includes the basics like your social security number, date of birth, place of birth, and parents’ names so that Social Security can verify your identity. For disability applicants, you will also need to provide information about your work history, income, health conditions, treating doctors, hospitals where you have been treated, and medications prescribed to you. Failure to be prepared with this information can result in delays with processing your application and even a denial of benefits. Once you have provided this information, Social Security is responsible for obtaining your medical records and making a decision about your disability claim.
Social Security does a reasonably good job with keeping you informed about the status of your claim (albeit progress is slow so set your expectations low on timing). Social Security sends all decisions and further requests for information by mail to the address you provided them in your application, so be sure to keep your address updated with them. And if you started the application process online, you may even receive electronic updates when a decision has been made in your case.
Why are so few people approved at the initial level? The answer to this question is complex.
However, the percentage of people who will be awarded disability benefits after diligently submitting all their information is considerably low. In 2016, Social Security reported that the average award-rate between 2006 and 2015 for initial claims was 23%! That means the majority of applicants are denied and will need to pursue their appeal rights. This statistic begs the question: why are so few people approved at the initial level?
The answer to this question is complex. For starters, Social Security uses a five-step sequential evaluation process for evaluating every disability claim and this process includes the application of Social Security’s medical rules and vocational rules. At the initial level, Social Security uses state programs and state-employed physicians to evaluate the medical evidence in your case. You will never meet these people or have the opportunity to talk to them. Opportunities for self-advocacy during this part of the process are practically non-existent. The medical examiner’s job is simply to review the medical records Social Security obtained on your behalf and determine whether you have a medical condition that meets or equals one of the conditions in the “Listing of Impairments” maintained by Social Security. Therefore, the majority of the people approved at the initial level tend to be people with extremely limiting disabilities such as severe intellectual and developmental disabilities and those with chronic life-threatening conditions. In other words, the lucky (or not so lucky, depending on how you look at it) 23% have a type of medical condition that is most likely to “meet” a Social Security Listing. In sum, these types of claims are the least complicated and usually do not require the assistance of a representative, such as an attorney or other professional.
Where the decision-making process becomes complex is when state employees attempt to apply Social Security vocational rules to the medical evidence in your file. If you have ever been denied disability benefits, then you know what I am referring to–that part in your denial letter where Social Security lists all your health problems and then tells you that you can still work. Sometimes, they may even tell you that you can return to one of your previous job. These letters typically offer no further explanation about how they arrived at such a conclusion. However, the letter will explain that you can appeal the decision within 60 days of the date of the denial letter.
Disability Appeals and Benefit Award Rates
In some states, a denial from the state disability service means you can immediately request a hearing with an Administrative Law Judge. In other states, like Texas, it means you can ask for the state service to reconsider their decision, called a “Request for Reconsideration”. If your state uses the Request for Reconsideration process, you will most likely be facing more delays in your case and another opportunity to be denied. Social Security reported that the average award rate for claims at the Request for Reconsideration level is 7% (As reported for 2015 by Social Security). If you receive a denial at this point in the process, you may be considering whether it’s worth it to have someone advocate on your behalf at the hearing level.
My answer to this is YES–three times YES! First of all, your statistical chances of an award are better at the hearing level (award rates are 38%, as of 2015 when Social Security last reported). Earlier this year, the Government Accountability Office (GAO), an independent, non-partisan agency that investigates how the federal government spends taxpayer money, released a report detailing the different factors that affected benefit award rates for Social Security disability claims. The study specifically focused on the award rates at the hearing level. Recall that once you have exhausted all your appeals at the state level, you have the right to request a hearing with an Administrative Law Judge (ALJ). At this level of the Social Security appeals process, you will have a live hearing where you can actually speak to a decisionmaker for Social Security (the ALJ) and plead your case. The GAO study concluded that individuals who had a representative at the hearing level, such as an attorney or family member, were allowed benefits at a rate nearly 3 times higher than those who did not have representation. Essentially, a person’s chance of being awarded social security benefits at the hearing level increased to 82% if they had representation!
Choosing Someone to Represent You
But let’s keep something in mind here, Social Security representatives are not equal in quality and expertise and their services are not free. Historically, Social Security had few rules about representatives. You could pretty much designate anyone you wanted as long as you made that designation known on SSA Form 1696. And all (approved) representatives are allowed to charge a fee as long as Social Security has approved the amount of the fee. The person you designate to represent you doesn’t even have to be an attorney. Social Security allows non-attorney representatives and there are a number of national organizations out there advertising Social Security representation that are staffed with non-attorneys.
However, as of August 1, 2018, Social Security rules regarding representation have changed. Specifically, Social Security will not recognize non-attorney representatives “lacking good character and reputation”. Social Security defines these people as individuals who have a felony conviction (more specifically defined in their rules) or any other type of conviction involving moral turpitude, dishonesty, false statements, misrepresentation, deceit, or theft. Social Security clarified, however, that individuals with these convictions may still assist family members, but only in an “unofficial capacity”. Notably, these rules do not apply to Attorneys. As Attorneys must pass a rigorous examination of aptitude and ethics and subject themselves to background checks before becoming licensed, this requirement is mostly a non-issue for licensed Attorneys. Additionally, Attorneys have continuing ethical obligations to their clients required by their state licensing agencies that either match or surpass any Social Security rule purporting to regulate the conduct of representatives.
The other notable change in the new rules governing representatives is that Social Security now requires all representatives to be competent and knowledgeable about Social Security law. Social Security states, “These rules reflect our interest in protecting claimants and ensuring the integrity of our administrative process, and … should not deter competent, knowledgeable, and principled representatives” (See 83 FR 127, July 2, 2018). So how does one go about finding a competent, knowledgeable, and principled representative who also doesn’t have a felony conviction or a conviction involving moral turpitude? Answer: hire a Social Security Attorney.
Attorneys are licensed by a state regulatory agency, are knowledgeable about the law, know how to research the law, and are trained in oral and written advocacy (translation: they know how to represent clients at a hearing with a judge and cross-examine expert witnesses). And Attorneys who have substantial experience in Social Security law, or who devote most of their legal practice to representing disabled individuals regularly before the Social Security Administration, are more likely to help you get a favorable outcome in your case. Most Social Security Attorneys maintain websites explaining their experience and educational background. If you are in the market for a Social Security Attorney, I encourage you to spend time reading their online profiles and interviewing the prospective Attorney before you make the decision to appoint them. Attorneys charge fees for their services and while the Social Security Administration must approve any fee charged by a representative, it’s worth understanding what you are getting into.
One last point worth mentioning, and that is that Social Security does not recognize law firms or other organizations. Some law firms and organizations get around this by having you sign an agreement with them, but may subcontract the actual representation service to another attorney or non-attorney representative you have never met. This can be done through a fee-sharing arrangement between the firm and the attorney or other representative. There is no Social Security rule against this as long as this is disclosed to you in writing, but this may come as an unsettling surprise for some when someone they have never met shows up to represent them at the hearing. If this is a concern to you, and you are going through a law firm or other organization for your representation needs, ask if the representative you are appointing on Form 1696 will be the same person who will appear with you at your hearing. In my experience, hearings go a lot smoother for individuals who have had an ongoing relationship with their attorney and who have an experienced and knowledgeable attorney who was prepared in advance of the hearing day.
*Adriane S. Grace is a Social Security Attorney who regularly represents individuals in disability and other Social Security appeals in Texas. She is licensed to practice law in Texas and Virginia and is a former Attorney-Advisor to the Social Security Administration. For more information about Attorney Grace, please check out her Attorney Profile.