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Disability Benefits: A Guide Through the Social Security Maze
If a brain injury has permanently or temporarily prevented you from working, you may be eligible for Social Security disability benefits. The time between applying for and receiving benefits, however, can be a very lengthy one. By knowing what to expect from the application process, you can spare yourself some of the frustration many applicant's experience. You should also be aware of when you should contact a lawyer to help you pursue disability benefits.
The Social Security Administration pays benefits to individuals who are unable to work due to a physical or mental impairment that has lasted or is expected to last, for a year or longer. To be eligible for these benefits, you must have worked for at least five years within the ten years preceding your injury.
If you don't meet the five year work history requirement you may still be eligible to receive other kinds of disability benefits available for widows or widowers, disabled children or grandchildren, or divorced spouses of a deceased wage earner. Supplemental Security Income is another benefit program available to disabled individuals who do not have a sufficient work history, but whose annual income is very limited. If the physical or mental effects of a brain injury prevent you from working, you should contact your local Social Security office. A representative there will be able to give you more information about which of these benefits you may qualify for and provide you with the necessary application forms.
When you apply for benefits at your district's Social Security office, you should bring along the names and addresses of all the doctors and therapists who have treated you since the date of your injury. You will have to provide this information on the application forms and sign a release to allow the Social Security Administration to access your medical records. They will use this information in evaluating your claim. The Administration may require you to undergo an examination by a doctor paid by the government. It generally takes about 6 months for the Administration to evaluate your initial application and notify you by mail if you've been awarded or denied benefits. If you are denied, don't be discouraged! Only a small portion of applicants are actually awarded benefits at this stage.
If you have been denied, you can ask the Administration to reconsider your application. A Request for Reconsideration must be filed within 60 days of receiving your first denial. It is recommended that you contact a lawyer who practices Social Security Law as soon as you receive your first denial. This way the lawyer can file the reconsideration forms for you and begin gathering the medical and personal information important to your case. After receiving a timely request, the Administration will review your application again and make a decision within 3 or 4 months to either deny you a second time or award you benefits. It is common for applicants to be turned down at this stage as well, but you cannot proceed with your claim unless you file a Request for Reconsideration.
After receiving your second denial, your lawyer will request a hearing before an Administrative Law Judge. This request must be filed within 60 days after receiving the second denial notice. Your case will be assigned to a judge who will then schedule a date for your hearing. Depending on how many other cases your judge is handling, you may have to wait for a year or longer before your hearing. The hearing is an informal proceeding where you will be questioned by both the judge and your lawyer concerning your medical condition and why it prevents you from working. The hearing is recorded and your statements will be made part of your permanent application file.
Applicants who are represented by a lawyer at their hearing are much more likely to receive benefits than those who go unrepresented. This is mostly because a lawyer who is familiar with Social Security law can alert the judge to the particular injuries, symptoms, and limitations which entitle the applicant to benefits. For example, many survivors of a brain injury may meet the requirements of a Listed Impairment and therefore should be awarded benefits without further inquiry. Listed Impairments are those injuries or diseases described in the Social Security regulations which, because of their effect on an individual's daily functioning, clearly prevent him from maintaining employment. Neurological disorders are included in within this category. The applicant, however, has the burden of proving to the judge that he meets the definition and criteria of a given Listed neurological disorder. A lawyer can present specific evidence to the judge which proves that you meet the level of severity required by the regulations and should be awarded benefits.
If the judge determines you do not meet the criteria of a Listed Impairment, he will proceed along a set sequential evaluation of your claim. This analysis involves an inquiry into the kind of work you have done in the past, whether you can still perform that kind of work and if not, whether you can perform any other kind of work given your age, education, experience, and physical and mental abilities. Oftentimes, the judge will ask an outside doctor or other expert to attend your hearing, review your record, and give an opinion concerning your ability to work. If the judge decides you can maintain employment, you will not be awarded benefits. A lawyer is particularly valuable in cross-examining these experts and demonstrating why, according to the Administration's own regulations, you should be awarded benefits.
Of course, many people are concerned about the cost of having a lawyer represent them. Expensive legal fees are generally not a problem with disability claims however, because most lawyers who practice in this field will agree to represent applicants on a contingency fee basis. This means you will only have to pay the lawyer if she is successful in winning your disability case and even then, the fee is limited to a percentage of your past-due benefits. In other words, the lawyer will get a portion of the benefits the government owes you from the date you became disabled (meaning unable to work), up until you are actually awarded benefits. The lawyer will not receive any portion of your future benefits.
It is after an administrative hearing that applicants are most likely to be awarded disability benefits. It may take as long as a year for your judge to reach his decision, however, because he must review your entire record including all the medical evidence that has been submitted and your testimony at the hearing. Again, the length of time you will have to wait before receiving notice of the judge's decision will fluctuate depending on where you live and how many other cases have been assigned to your judge. Unfortunately, there is nothing your lawyer can do to speed up the decision-making process. It is not at all unusual for an applicant with a good case to wait a total of two years or longer from the date of his initial application until he is finally awarded benefits by an Administrative Law Judge.
If the judge does not award you benefits, your lawyer can appeal that decision by mail. The Appeals Council, located in Arlington, Virginia, will consider the issues raised by your lawyer in the appeal and determine if the judge properly decided your case. The Appeals Council can support the judge's decision; reverse his decision and award you benefits; or, remand your claim and order the judge to hold another hearing. If the Appeals Council decides that the judge correctly denied your claim, one of your options is to file a new application for disability benefits at a later date. Although this begins the entire application process over again, is especially worthwhile for those individuals whose condition worsens over time. Another option may be to pursue your claim in the United States District Court. Your lawyer can best evaluate your chances at success in the District Court given the particular facts and circumstances of your case. If she does decide to pursue your claim this way, you are once again in for a long waiting period before the resolution of your case.
Although the application process can be a trying ordeal, disability benefits can provide well-deserved assistance for brain injury survivors who are temporarily or permanently unable to work. Hopefully, with some knowledge of the system, good legal advice, and lots of patience, survivors can better pursue the added financial security the Social Security Administration was designed to provide.
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