Frequently Asked Questions in Social Security Disability Cases

What Are My Appeal Rights?

Your Right to Question the Agency's Decision

You have the right to appeal the Social Security Administration's denial of your claim at every step in the process. Most of the time, you must appeal the Agency's decision within 60 days of receiving the denial notice. (The deadline is much shorter - only 10 days - in a Continuing Disability Review Case if you want your benefits to continue while your appeal moves forward.) Your appeal must be in writing. You have the right to be represented by an attorney. If you hire an attorney, everything the Agency mails to your attorney will also continue to be mailed to you. Click HERE for more information about your right to question the decision made on your claim.

How Does the "Request for Reconsideration" Stage of the Appeals Process Work?

If your initial claim for SSI, SSDI or both is denied, you have the right to appeal the denial by filing a "Request for Reconsideration". You must file your Request within 60 days from the date you receive the initial denial. At the Reconsideration level, your case will be sent back to Disability Determination Services (DDS) - a state agency responsible for: (1) gathering medical records and other relevant evidence; (2) having that evidence reviewed by a medical professional; and (3) making a decision on your claim. The person who handles your claim at the State agency on Reconsideration will not be the same person who handled it when you filed your initial claim for benefits. It typically takes 3 to 5 months to receive a decision. Click HERE for the necessary forms and more information about filing a Request for Reconsideration.

What Happens at the "Request for Hearing" Stage of the Appeals Process?

If you do not agree with the Reconsideration decision made on your application for benefits, you may request a hearing before an Administrative Law Judge (ALJ). This appeal of the Request for Reconsideration decision must be filed within 60 days of the date you received the written denial letter. Within a few weeks of filing a Request for Hearing, the local Social Security Administration office handling your claim (called a "field office" or "district office") will send your file to the "Office of Hearings Operations" (OHO). Then you will receive a letter from OHO acknowledging receipt of your Request for Hearing. At this time, your attorney will have on-line access to your entire electronic folder. Reviewing your file at this stage is adviseable. That way you and your attorney can see what medical records and other evidence the State agency based its decision on, and how they evaluated that evidence. This is an ideal time to begin formulating how you and your attorney will present your case to the Administrative Law Judge. From the date you request a hearing with a judge, you will have to wait about 12 to 15 months for the hearing. The Office of Hearings Operations must provide you with the hearing date, location and name of the Administrative Law Judge at least 75 days before the date of the hearing (unless you have waived this right in writing). For more information about what happens at the hearing level of the appeals process, click HERE and HERE.

What Are the Different Types of Social Security Disability Benefits?

Supplemental Security Income (SSI)

The Supplemental Security Income (SSI) program pays benefits to adults and disabled children who have limited income and resources. In 2020, the maximum you can receive under the federal government's SSI program is $783 per month. (Click HERE to see the SSI payment amounts from 1975 to 2020.)

Social Security Disability Insurance (SSDI)

The Social Security Disability Insurance program (SSDI) pays benefits to you and certain family members if you worked long enough, recently enough and paid Social Security taxes. (Your adult child also may qualify for benefits on your earnings record if he or she has a disability that started before age 22.) SSDI only provides benefits to disabled or blind persons who are “insured”. To become insured you must meet the requirements of 2 different "earnings tests": (1) the "recent work test"; and (2) the "duration of work test". For example, if you are 45 years of age and became disabled at age 42, then you must have worked at least 5 years between the age of 32 and 42 to be considered "insured". Your dependents may also be eligible to receive benefits based on your earnings record. Click HERE to learn more about SSDI benefits.

Do I Have to Choose Between SSI and SSDI Benefits, or Can I Receive Both at the Same Time?

Many people receive payments under both programs at the same time. However, to qualify for Supplemental Security Income (SSI) you must meet the Social Security Administration's low income and asset criteria. Just like state government welfare programs throughout the United States, the eligibility rules are fairly complex. Income - both "earned" and "unearned" - as well as other financial resources and assets will affect your eligibility for SSI benefits. This includes any SSDI benefits, which means only those who qualify for a relatively low monthly SSDI benefit will be able to receive SSI and SSDI at the same time. In most instances if your monthly SSDI benefit is $771 or higher, you will not qualify for any SSI.

The Agency Is Going to Stop My Disability Checks - What Are My Options?

How the "Continuing Disability Review" (CDR) Process Works

Once disability benefits have been awarded, the Social Security Administration (SSA) typically will review your case in a few years to determine whether you still meet their definition of "disability". "Disability" is defined as "the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months". (See definition and related information HERE.) A person who has been awarded disability benefits may regain the ability to return to work after having surgery or receivng other restorative medical treatment. If your benefits were awarded by an Administrative Law Judge, the judge can recommend to the Agency that your case be reviewed after a certain period of time (usually 1 to 2 years). If you receive a "cessation" notice saying the Agency has decided to stop your benefits, you MUST APPEAL WITHIN 10 DAYS if: (1) you want your benefits to continue during the appeal process; and (2) you are willing to risk having to pay back those benefits if you lose your appeal. If you choose not to have your benefits continue during the appeal period, then you have 60 days from the date you received the cessation notice to file your appeal. Click HERE for the necessary forms and for more information about the CDR appeal process.

What Can I Expect at My Hearing with the Administrative Law Judge?

What Can I Expect at My Hearing with the Administrative Law Judge?

Having an attorney represent you at this level is a very, very good idea. An attorney who has handled many disability cases before an Administrative Law Judge will know what issues to focus on, and what sort of evidence is needed to win your case. With most hearings, you will only have about 1 hour to persuade the judge you are disabled. A job expert (called a "vocational expert") will testify at your hearing regarding what kind of work could be performed by a person with the medical conditions and functional limitations the judge decides you have. At first, the judge will ask the vocational expert to assume a person with the limitations/abilities the State agency decided you have. Since the Agency decided intially and upon Reconsideration that you could perform some sort of full-time work, the vocational expert will respond to the judge's hypothetical question by saying that a person with those limitations and abilities could, in fact, work full-time. Do not assume you have lost your case. You haven't. Remember, the jobs initially identified by the job expert can only be performed if the judge adopts the Agency's findings regarding your physical and mental capabilities. Next, the judge will ask the vocational expert to assume a person with the medical conditions and limitations that you and your doctors say you have. At this point, the vocational expert will likely say that the limitations are too severe to permit any type of full-time work. However, this doesn't necessarily mean you have won your case. Although the vocational expert will have testified that the limitations, as described by the judge, are too severe to permit any type of full-time work, this testimony will not help you unless the judge agrees with you and your doctors about how severe your functional limitations are. So, expect that you will leave the hearing not knowing if the judge intends to adopt the Agency's findings regarding your medical conditions and functional limitations, or if he/she will instead believe what you and your doctors have said about how severely limited you are. With regard to having witnesses testify on your behalf, you can ask the Administrative Law Judge for permission to call a witness or two. Most of the time, however, you will be the primary witness. Expect the judge will ask a lot of questions about your medical conditions (physical and mental), and how those conditions limit your day-to-day functioning. Your attorney also will have an opportunity to ask you questions. The judge's assistant will sit in the hearing room in front of a computer and record the hearing audio. A video recording will not be made. If you lose the case and choose to appeal, the audio recording will allow the appellate judges (as well as you and your attorney) to hear everything that was said during the hearing. This recording, along with all the other evidence in your electronic folder, will form the basis of your appeal, should there be one. Before the hearing, it is important to review all the information given to the Social Security Administration in your: (1) initial application; (2) Request for Reconsideration; (3) Request for Hearing; (4) statements to any doctors who examined you at the Agency's request; (4) medical records; (5) records related to your past employment; and (6) forms submitted to the Agency throughout your claim, such as Function Reports, Work History Reports, Medication forms, Recent Medical Treatment forms and Disability Reports. You are far less likely to give contradictory testimony at the hearing if you have taken the time to review all of these previous submissions. You should also review your work history for the past 15 years, paying particular attention to: (1) the job title and duties; (2) the amount of walking, standing and lifting required; (3) whether you trained or supervised other workers; and (4) roughly when you began and ended each job and, your reason(s) for leaving. Do not expect the judge to tell you at the hearing what his/her decision will be. This rarely happens. On average, you can expect to wait about 2 to 3 months before receiving the judge's decision.

What Can I Expect from The Law Office of Bainbridge D. Testa, PLLC?

What You Can Expect from the Law Office of Bainbridge D. Testa, PLLC

Expect to be treated with respect and compassion. Expect that your phone calls will be promptly returned either the same day, or sometimes the following day. Attorney Testa is frequently either in court or traveling to/from court, which can take up much of the day since he represents clients in New Hampshire, Massachusetts, Maine and Vermont. When you call regarding the status of your case, you can expect us to answer all your questions - not only regarding where your case stands now, but also what the next step in the process is, and what we - and you - can do at each level to strengthen your case. About 2 to 3 weeks before your hearing with an Administrative Law Judge, expect that Attorney Testa will prepare you to testify at the hearing. This will include: (1) reviewing what you told the Social Security Administration about your medical conditions and physical/mental limitations throughout the application and appeals process; (2) what medical and other evidence is currently in the electronic folder that the judge will have in front of him/her at the hearing; (3) what, if anything, still needs to be added to your file; (4) what the strongest and weakest parts of your case are; (5) what questions the judge will most likely ask; (6) who will be at the hearing and what each person's role is; (7) what questions Attorney Testa expects to ask you at the hearing; (8) how long it will take to receive a decision from the judge; and (9) what happens after you receive the judge's decision.

How Long Does the Application and Appeals Process Take?

If the Judge Decides I Do Not Qualify for Disability Benefits and I File an Appeal with the Appeals Council (AC), How Long Will It Take To Receive a Decision?

About 12 to 18 months.

After Filing My "Request for Reconsideration", How Long Will it Take to Get a Decision?

About three to five months. On average, it will take from 3 to 5 months to complete the Social Security Disability reconsideration process and receive a letter of decision.

After Filing My Application for SSI or SSDI Benefits, How Long Will It Take to Get a Decision?

About 3 to 5 months. Generally, it takes about 3 to 5 months to get a decision. However, the exact time depends on how long it takes to get your medical records and any other evidence needed to make a decision.

After Filing My "Request for Hearing", How Long Will it Take to Get a Hearing with a Judge?

In New Hampshire, Maine, Vermont and Massachusetts, after filing a Request for Hearing, you can expect to wait about 12 to 15 months for a hearing with an Administrative Law Judge (ALJ). The Office of Hearings Operations (OHO) is required to tell you the date and location of the hearing, as well as the name of the judge, at least 2 1/2 months before the hearing takes place (unless you have signed a waiver saying you are willing to attend the hearing even though you were not notified of the hearing date at least 2 1/2 months before the hearing).

If the Appeals Council Denies My Appeal and I Appeal to the Federal District Court, How Long Will It Take To Receive a Decision?

Because Federal District Court judges experience very heavy workloads, it can take up to one year or more to receive a decision regarding your Federal District Court appeal.