In my earlier post, I addressed the first half of the process to apply for Social Security benefits: what it means to meet the legal standard for the benefits, and how to file and follow up on the initial application. If you haven’t read that post, make sure to take a look at it before reading on with this one. Now we come to the meat of the process: preparing for and going through the hearing.
The initial decision
After you’ve gone through the initial application process, eventually you’ll get a Decision in the mail. If it’s a favorable finding, then you’re done! But most of the time, it isn’t. More than two thirds of initial applicants are denied, so don’t be surprised by a denial letter. The letter will have a date on the front and a few pages of boilerplate about the law and your right to appeal. The last page or two of the letter is a very brief explanation of their reasoning. It will almost always say something acknowledging that you have severe medical problems but that they believe your condition doesn’t prevent you from being able to work.
Most people find this letter more than a little frustrating, and I don’t blame you. You may be outright angry at the person who evaluated your case. Unfortunately, there’s only one thing to do at this point, and that is to file an appeal.
Fortunately, the next step is actually really easy. You can file the appeal online right at ssa.gov. Here’s the link: https://www.ssa.gov/benefits/disability/appeal.html
You have to at least start the appeal within two months of the date on the denial letter. If you don’t get the appeal in on time, you have to start over, which will most likely mean waiting months longer to get to a hearing.
The only piece of information you need off the denial letter is the date on the top of it. This is usually a good time to consider getting a lawyer, but the form is straightforward enough for most people to fill out on their own. Just click the big blue button that says “Appeal Medical Decision” and then click “Start a New Appeal.” From there, fill out the information on each page and click the “next” at the bottom. A few pages in, it will give you a “re-entry number.” Write this down somewhere, or enter your email address to have the number sent to your email. You will only need this number if you have to take a break from completing the appeal and come back to it later, but if for some reason you don’t get through the process before the two-month deadline expires, this number is proof that you started on time.
The appeal process usually takes 15 to 20 minutes to complete. You may need to enter quite a bit of information on the next few screens. Mostly, you need to provide updated information about your medical treatment, and you’ll need to type in the names and contact information of any doctors you’ve seen since you last updated the government during the initial application. Frankly, this information doesn’t matter very much at this stage, but it’s just one of the hoops you have to jump through.
One page will ask whether you want to appear at a hearing. Click yes! Even if you later decide to waive your right to appear (which is usually a bad idea), you don’t want to waive it just yet.
One part of the form will ask you why you disagree with the lower level decision. All you have to say is that you believe you can’t work because of your medical condition. Make sure that you keep clicking “next” until you get to the very last page where it says “submit.” You can upload any new documents you would like to add at this time, but it’s not necessary. You will be asked to provide an updated medical release. If you have a printer and a scanner, you can print it out, sign it, and upload it; you can also sign the form electronically right on your computer if you have software to sign a PDF file. Once you’ve uploaded the document, print or save a copy of the appeal receipt at the last page. That’s it.
Now comes the wait. This is the bad news: you’ll be waiting a while. At the time I’m writing this, January 2018, the average wait time for a hearing to be scheduled is a bit over 18 months nationwide. In my home office of Buffalo, NY, the backlog is a full 24 months. That period is just for a hearing to be scheduled; after waiting through the queue, you’ll still need to wait a few months between the hearing being scheduled and held.
You’ll get a few notices from the hearing office during this time. First, you’ll get a notice acknowledging the appeal. You don’t need to do anything when you get this notice. A few times along the way, though, you’ll get some questionnaires that you need to fill out and send back to the hearing office. They’ll ask you for updates about your medical treatment and prescriptions, along with any work activity that you engage in. You may receive a work history questionnaire. It’s somewhat important to complete and return all of these forms, mostly to prevent further delays, but some of the information may also be important down the line.
At one point you’ll get a notice that the file is being assembled. This notice may be a good time to start gathering your medical evidence. You’ll get a notice saying that the file is ready to review, and at that point you can request that they send you a copy of your file to review on your computer. If you have an attorney, your attorney will be able to access your file online through a special government web site. This will help you or your attorney figure out what records you’ll still need to gather.
Finally, you’ll get a notice saying that they are “almost ready” to schedule your hearing. Lately I’ve been seeing notices saying that they expect to schedule the hearing within nine months. This may be a good time to start gathering evidence, and is a great time to retain an attorney if you haven’t already.
The last notice to watch out for is the hearing notice. The law requires the government to give you at least 75 days of notice before the hearing. Most hearing offices lately have been scheduling hearings a little over three months in advance, sometimes four or five months out. If you don’t have an attorney by the time you get the hearing notice, you might be cutting it a bit close.
Preparing the evidence
When you get to the hearing, you are going to want to have all of the evidence ready. The regulation requires that you submit everything that you want the judge to consider by a week before the hearing. Technically, the law specifically requires that you either submit all of the evidence, or at least tell the judge what evidence is missing by that time, but you should really strive to actually have everything submitted by then.
What do you need? You’ll want to get and submit copies of all of your medical records from every doctor, clinic, and hospital that you’ve been to since the date you are claiming as your disability onset date. Your file should already have some of this evidence from the initial application, so you don’t need to duplicate these records. You’ll also want to get a supportive opinion statement from one or more of your treating doctors.
What are medical records? A lot of people have a different idea of what “medical records” are from what the government is actually looking for. The papers that your doctors and hospitals have already given you are probably not the records that you need. Discharge papers that you receive when you leave the hospital do not contain your actual treatment records, and aren’t going to be of much use to the judge or your attorney. Instead, you need the complete internal records that the medical source has kept about you over the course of your treatment. This includes things like the doctor’s notes and findings from each visit, lab results, x-ray and other imaging reports written by radiologists (but not the actual images), nursing notes from hospital stays, surgical reports, and more - basically everything written or typed by a doctor or other medical provider who cared for you.
Some of the documents that I commonly see which are not considered medical records include hospital discharge instructions, prescription medication package inserts, bills, referral slips, and most insurance forms. In general, if they gave it to you without a written request, it’s probably not helpful.
To obtain your records, you’ll need to submit a request in writing along with a valid and signed release form. Under the medical privacy laws, medical sources can only release your medical records with a valid signed release form, commonly called a “HIPAA release.” Your doctor’s office can provide you a copy of one of these forms to sign to get your records released to you, and if you hire an attorney this is one of the first forms they’ll have you sign. Your request for records has to specify what kind of records you’re looking for, your personal identifying information (usually your full name and date of birth), and the range of dates that you need records for. The release form will need to specify the same things, so sometimes all you need is the release form.
It’s important to get all of the relevant records. If you don’t have a lawyer, you’ll want to contact the hearing office early in the process for help getting your records.
The opinion statements
Besides the records, you’ll also want to get a statement of medical opinion from each of your treating doctors, or at least whichever doctor or doctors support your claim for disability. Soliciting a medical opinion is one of the major steps where having an attorney makes a big difference. Your attorney will be able to help determine what information your doctor needs to provide in an opinion statement, and most of us have a library of questionnaires and forms for specific types of conditions.
Your doctor’s opinion can help the judge come to a favorable conclusion on the most important finding in deciding your case: your “residual functional capacity,” or “RFC.” The RFC is the judge’s conclusion about what you can and can’t do, in terms of limitations that would affect your ability to perform work in a typical job setting. The RFC includes what are called “exertional” limitations, things like sitting, standing, walking, and lifting; “postural” limitations, things like bending, crouching, stooping, kneeling, and crawling; and mental limitations, like your ability to work with others, to maintain attention and concentration, and to deal with stress.
When a treating doctor provides an opinion statement that relates to your RFC, the judge is required to consider that opinion in deciding your case. Just because the opinion is written in a way that supports your case doesn’t mean that the judge will definitely grant your case, but it’s often the single biggest factor in deciding your case - as long as it’s written correctly and (this is important) as long as the treatment records back it up. Also, it’s important that the opinion come from the right type of source. The judges are required to consider opinions only from certain types of sources: medical doctors (MD or DO), psychologists (Ph.D. or Psy.D.), and physician assistants (PA-C or RPA). They are not required to give much weight to opinions from nurses, nurse practitioners, chiropractors, physical therapists, or social workers, even though these people may in fact know you better than the actual doctor. If you can't get a doctor or PA to complete an opinion, try to get a doctor the provider works with to co-sign the opinion.
I could write a whole series of blog posts just on medical opinions, and I will. For now I’m going to cut it off here. Medical opinions are very important and are one of the main reasons to get a lawyer. It’s possible to get supportive opinions without a lawyer, but there’s a lot you need to know. More on that later.
Submitting the evidence
Once you’ve gathered your medical records and supportive opinions, you have to submit it to the hearing office. If you have a lawyer, he or she can easily submit your records online. If not, you may need to fax or mail copies of the records to the hearing office. With one of the notices you received earlier, you should have received a sheet of paper with a big bar code on it. Use this page as a cover sheet when faxing your evidence to the hearing office. If you have to mail copies of the records to the hearing office, include a copy of this bar code page with the submission. It’s important to make sure that everything is in by a week before the hearing. If you can’t get it all ready to submit in time, send the judge a letter detailing exactly what evidence you know exists but can’t submit on time.
Stay tuned for a separate post covering the hearing itself. There's a lot left to cover and this post has already gotten pretty long.