Unlike Social Security, however, veterans can recover less than 100% VA disability.  A vet with, for example, a 20% disability usually will not see much benefit when he applies for Social Security disability.

This past March, SSA announced a new policy that will provide for expedited claims processing for disabled veterans who have been awarded 100% permanent and total disability from the VA.  If you have such an award, you or your attorney needs to provide SSA with a copy of your 100% P&T compensation rating and your Notification letter.

SSA’s new policy does not mean that 100% P&T vets will automatically win SSD.  It does mean that their cases get moved to the front of the line.

When you file your claim, an SSA intake clerk opens an electronic claims folder in your name.  Thereafter your claim will be assigned to a claims representative located in your state.  These claims representatives are called adjudicators and they are employed by your state government (in Georgia, the Disability Adjudication Services office is part of the Georgia Vocational Rehabilitation Agency).  100% of the cost of the adjudication program is borne by the federal government (Social Security Administration).

The adjudicator in your case will gather medical and vocational evidence and has the authority to approve or deny your claim based on very specific guidelines.  Adjudicators work directly with medical and psychological consultants to better understand the documentation in your claims file.

Your adjudicator can also refer you out to a consultative evaluation with a medical doctor or psychologist in an effort to further develop your file.

Generally the initial application adjudication process takes between three and six months.  If the adjudicator denies your claim, she will mail out a denial notice along with an explanation of what factors went into her decision.  If you disagree with the adjudicator’s conclusion that you are not disabled, you must file an appeal called a request for reconsideration within 60 days from the denial notice date.

The reconsideration appeal goes back to the adjudicator for an updated look at the evidence. This re-evaluation process will take between three and six months  Statistically very few denied claims are reversed at reconsideration.

If the adjudicator denies your claim at reconsideration, she will send out a reconsideration denial notice and brief explanation.  At that point, you have the right to appeal and request a hearing before an administrative law judge.  This request for hearing must be filed within 60 days from the reconsideration denial date.

Once you file your request for hearing, your adjudicator’s job is over and your electronic file will be transferred to a local hearing office called an ODAR (Office of Disability Adjudication and Review). The ODAR is staffed by federal (not state) employees and your case will be assigned a federal administrative law judge.

One important point about the transfer from the state to the federal government.  Your adjudicator has the responsibility of developing your record by requesting and obtaining medical records.  The ODAR does not have personnel to do this, so once you request a hearing you and your lawyer are solely responsible for updating your claims file.  Since the delay in getting your hearing scheduled can be a year or longer, it is essential that you and your lawyer make an ongoing effort to update the records in your file – you do not want to appear before a judge with the last record in the file dating back 12 months or longer.

By contrast, your SSI payment most likely would be impacted by your marriage, especially if your spouse-to-be is working.  SSI (Title XVI disability) is a welfare program and your benefit payment is subject to something called the “deeming rules.”

The deeming rules are quite complex but the net result of these rules would be to cause you to lose some or all of your SSI monthly check if your spouse earns even a modest salary.  Further, if you get married and certain assets end up in your name, those assets can also serve to reduce your SSI benefit payment.

If your spouse-to-be is also collecting SSI, you will both likely see a reduction in your total monthly benefit.  This is because the maximum you can receive for SSI (in 2013) is $710, but the max for a married couple is $1,066.

So, the bottom line here: if you are receiving SSDI, your check will not be impacted by a marriage, but if you are receiving SSI, your check will most likely be negatively impacted.

Return to Work Full Time After Filing

If you are able to return to work full time after filing, your disability case will effectively be over.  Since Social Security defines disability in terms of your capacity to work, you cannot be found disabled if you are working.   There are a couple of exceptions to this rule:

• if you missed more than 12 consecutive months of work before you returned to work you can pursue a closed period of disability.  ¹ If you win your closed period case you can recover a lump sum but not on-going benefits.
• simply returning to work full time does not automatically disqualify you.  Generally you must last at least 3 months at your job before that work effort will be considered successful.  Therefore, do not dismiss your case until you are fairly certain that you will be able to work ongoing

I would not dismiss your claim without first talking to your lawyer.

Return to Work Part Time After Filing

Part time work generally serves to make it difficult to collect on-going benefits.  Even though SSA defines substantial activity in terms of full time work, most judges look at on-going part time work as evidence that you have the capacity to work full time.  So, if you take a part time job that you can handle for 3 months or longer, there is a good chance that you will have a very difficult time recovering disability benefits. ²

Unsuccessful Work Attempts

If you try to go back to work but your physical or mental health condition prevents you from keeping your job, then your work attempt will be deemed unsuccessful ³.   One or more unsuccessful work attempts can help your case by demonstrating that you have the desire to return to work but you simply cannot.   Your unsuccessful attempt may also produce evidence in the form of affidavits or testimony from a co-worker or supervisor about your capacity.  If you engage in one or more unsuccessful work attempts you will not need to change your alleged onset date.

Seek Advice from Your Lawyer Before You Return to Work

As a rule, I advise my clients to try to return to work if they can.  The disability claims process takes a long time and there are no guarantees that you will win.  Secondly, you will earn more money and you will feel more fulfilled personally if you work rather than collecting disability benefits.

At the same time, you want to avoid a situation where your work activity reaches a tipping point – where a judge might conclude that you have the capacity to work full time, even though you are pushing yourself to the limit with questionable capacity to stay at that limit ongoing.   If you decide to try to return to work, first pick up the phone and call your lawyer to discuss your decision and to establish parameters for your efforts.

When you appear at your hearing, the judge will most likely call a vocational witness to serve as an expert [Learn more about what actually happens at a disability hearing by clicking here].  The judge will ask the vocational witness a series of question to help the judge understand whether any jobs exist in the regional or national economy that you could do, given your medical limitations.

Because Social Security is so focused on work capacity, you may be wondering if non-medical factors are considered by Social Security – matters such as:

• you have no transportation to get to a job
• a very poor job market in your community
• the pay offered by one of these simple, entry-level jobs would not be enough to support your family
• the likelihood that you would not pass a pre-employment physical
• your personal experience that employers are not likely to hire a person with XYZ impairments
• difficulty getting back into the workforce after being out for months or years

In the Social Security world, the factors described above and others like them are not part of an administrative law judge’s consideration.  The only issue – if a simple, entry-level job was available, could you perform it 8 hours per day, 5 days per week.  All of the other issues – transportation, pay, job market, etc. – are not considered.

Remember, in a disability case, you have the burden of proving that you cannot reliably work any type of job.  It may not seem fair to you that you have to fight so hard to get money out when you paid taxes into the system for so many years, but this is the system Social Security has created and you have no other choice.

Social Security does not offer much guidance as to what this date should be.  I have had clients tell me that in telephone applications, the SSA phone operator will suggest a date.  Other clients pick a date that corresponds to the date their illness was diagnosed or the date that they stopped working.

In general, your Alleged Onset Date should be the date when your medical or mental health condition created so many impediments to your ability to function at a job that you had to stop working.

I generally advise my clients to choose a date after they stop working.  Remember that Social Security defines disability as the inability to engage in substantial gainful activity – if you are working and earning money, the presumption will be that you are engaged in substantial activity.  In other words, you cannot be working and disabled at the same time.

What About Part Time Work or Work with Special Considerations?

In theory, you could qualify for disability if your work is not substantial, or if you are getting special considerations that others might not get.  For example, you may be a 20 year employee at a company where the owner has created a special position that allows you to remain on the payroll but includes extra help from co-workers or a unique job description.

Several years ago, this argument would sometimes work but in the current climate, I am finding that judges are just not willing to award disability benefits to a claimant for a time period when that claimant is earning money.  I like to tell my clients that Social Security decision makers see things in black and white – either you disabled or you are not.  You either have the capacity to work or you do not.  If you try to hedge your bets you will probably lose.

Don’t Rely on Your Diagnosis Date

I also encourage my clients not to focus on the date of their diagnosis.  It does not matter if you were diagnosed with heart failure, or fibromyalgia or a herniated disc 6 years ago if you continued working.  Instead focus on the date that your condition reached a level where you had to stop working.

Job Going Away vs. Unable to Continue

You also need to be careful about choosing your last day of work as your onset date if you stopped working because your company went out of business or laid off workers for lack of business.  In these cases, the judge will wonder if you could have continued working for weeks, months or years had your job remained stable.

In my experience it is a good practice to tie your onset date to a medical event such as

• a diagnosis date
• a medical crisis (stroke, heart attack, suicide attempt, etc.)
• a hospitalization
• a termination for excessive absences

and

choose a date that is after you last worked.

You will come across as much more credible if you choose an onset date that logically arises from the decline in your health as opposed to a date that seems more connected with your disability application.

Can you change your onset date after you start your case?  Yes, and I’ll discuss that issue in a future blog post.

During my pre-hearing conferences with my clients, I always spend a few minutes talking about past employment. If I see that my client has had 15 or 20 past jobs, most of which lasted only a month or two, I will ask more questions. I think that if the judge recognizes that my client has an on-going problem remaining employed this can be compelling evidence about my client’s lack of capacity to perform work in the future.

I think that every claimant should have an updated list of past work. The judge is going to ask about this and there is no reason to take up the limited time allotted to you for your hearing to try to recall this information.

But where can you obtain information about your past work?

Fortunately Social Security makes it easy by providing this information in your case file, which your attorney will be able to access electronically.

Located in Section D (Non-Disability Development) of your claims case file your attorney should be able to locate and print out for you something called a Detailed Earnings Query. This document will identify the name and year of employment of past employers along with your gross earnings at each employer.

This document will not tell you the months you worked at a particular job although it will tell you the year. You also need to keep in mind that your employer’s legal name is shown – for example, if you worked at a McDonalds, your employer may be shown as ABC Holdings, LLC, which is the franchise name.

Still, the information in this Detailed Earnings Query can be very helpful to you and your attorney when you discuss past work or past unsuccessful work attempts. Not only can your attorney submit a more comprehensive work history prior to the hearing, you will be much better prepared and courteous of the judge’s time, which can only help your cause.

Psychiatrists and psychologists base their diagnoses on the definitions set out in the DSM.  This change means that several new mental health conditions (including hoarding and disruptive mood dysregulation disorder (for children).  At the same time, some existing mental health conditions will be re-defined (for example, depression will now include a provision for bereavement that did not previously exist).

Social Security's mental health listings, which may be found here, will need to re-written to reflect the new DSM.  You can review the latest draft of the DSM-5 by clicking here.

I have seen no evidence that such a memo exists, but there is no question that Administrative Law Judges are requiring more and better evidence to approve cases.

At the same time, Congress is very aware of the disability trust fund’s shortfalls, and one Senator, Tom Coburn of Oklahoma, has put forth a specific plan to reduce Social Security’s costs by requiring SSA to conduct more Continuing Disability Reviews and by tightening the standards.

A senior staff attorney at one of the local hearing offices did tell me that judges who approve a  higher than average number of cases are seeing their decisions scrutinized by the Appeals Council and several of these high approval judges are not being re-hired when their contracts come up for renewal.

In this brief audio, I summarize how I see the current environment for Social Security disability claims and how I have adjusted my new case evaluation procedures.

No one expects that Congress will let this happen, but we may see a legislative bargain whereby the disability trust fund is shored up in exchange for additional limitations on eligibility.  I am already seeing a trend where claimants under the age of 50 are facing more scrutiny and judges who approve a high percentage of cases are being eased out of the agency.

It would not surprise me at all to see Social Security disability to establish a system whereby a judge could find someone partially disabled, and thus eligible for less money.  The VA already uses a percentage system – a disabled veteran can be found 60% disabled, for example and thus eligible for 60% of full disability pay.

We may also see means testing whereby a SSDI recipient’s assets are considered when determining how much he will be paid.

None of these changes are imminent but I think it is safe to say that the Social Security disability system cannot continue on its present course