Why does it take so long to get a decision after a hearing for Social Security Disability?
The mystery of all great Social Security mysteries is WHY it takes so long to get a decision. Now, before you go and start blaming the government or your representative or your doctor, recognize a few things.
First, Social Security is in the process of going completely paperless. And let me tell you, this is going to shave a HUGE amount of time off of your case. Now, the local offices, the hearing office, and the medical determination offices all have the ability to look at your file for a variety of information. I don’t know how many of you have ever seen a file for someone who goes to the VA but WOW, back in the day, you could have a paper file that was HUGE (we’re talking 10 pounds easy). Now, everything you need can be put on a disk.
Second, with the processing being paperless, it is easier to transfer your file from place to place if need be. Back in the day, you had to literally MAIL the folder to the hearing office and then the office had to receipt the file. Imagine how long this process used to take.
Finally, Social Security is actively sharing the wealth. It used to be that one office would be responsible for an area and so, as you can imagine, some areas had smaller case loads than others. Now, Social Security is spreading the wealth to other offices and having hearings via video teleconference. You could live in Arkansas and have a judge from Washington (Trust me, the regulations are federal so they are world wide).
NOW, back to your question as to WHY it takes so long AFTER you have a hearing, here’s a few things to consider:
1) New records, not in evidence.
Remember, at the hearing level, YOU have the responsibility of providing records to the court. So you can imagine the number of times people get to court and either a) they bring in new records, b) they mention records that they need to get and the court to consider and/or c) they requested records and they are waiting for them. You have to remember that the courts want to make an informed decision. As such, the court may decide to allow you the opportunity to get those records. Now, I hope you don’t think that the judge has made their decision and will finish it up once you send them the records. The court has a duty to weigh ALL of your evidence so they have to look at what you provided and compare it to what’s in the file. This process may take a while.
2) CE
Follow me on this procedure. You’re in a hearing and the judge decides that you need to go to a Consultative Evaluation (don’t freak, this is usually in your best interest). SO, they order it in court. After the court hearing is over, one of their staff drafts the order. The judge signs it and tells you that you will be scheduled by a Medical Determination Service (this can take about 2 weeks to 3 weeks to get this letter). The Medical Determination Service gets this letter and then looks for the specific type of doctor that you need. They then schedule the appointment based on the doctor’s availability (This can take a few months) and then notify you. You go to the doctor. Within 30 days (usually), the doctor sends back a report to you (if you don’t have a rep) and the judge. You can either agree to it, contest it or ask for another one (you are usually given 10 days to respond). Then the judge has to consider this report with the other medical evidence. Now, in theory, from the time you had your court hearing to the appointment for the CE and the report to come back, at least 4 to 5 months have passed. And the court still has to review the findings. The judge could ask you to come back for another hearing.
3) Supplemental Hearing
Hear me when I say this “If the judge wants to have a SUPPLEMENTAL hearing, there’s not a DAMN THING you can do about it!”. People sometimes forget that the judges have a responsibility to ensure that the decisions properly weigh the evidence. As a result, the judge has the discretion to ask you to come back if he or she needs more info. TRUE STORY, I represented a client that had one hearing and two supplemental hearings after the first one. At the first hearing, the judge was reviewing the evidence and determined that we needed a vocational expert. At the second hearing, the judge determined we needed an additional psychiatric and neurological expert. I kid you NOT. It took a year and a half to go through all 3 hearings AND receive the decision. Now, that’s not a YEAR and A HALF from the start of claim. That’s just the hearing process from the date of the hearing. Supplemental hearings like this one are rare but they can happen.
4) Conflicting evidence
IT is AMAZING how people don’t realize that sometimes, the hardest part of the case is when there is evidence that is conflicting. What do I mean by “Conflicting”? For instance, you got one doctor that says you have bad breathing problems and that even if you stop smoking, you would be in bad shape. You got another doctor saying that you would be better if you stopped smoking. Two different doctors saying two different things. WHO do you believe? Now, that example was clear cut but there are many other times when your medical records provides conflicting information and the judge responsibility of trying to resolve this conflict. Unfortunately, you can’t do this quickly.
5) DAA
DAA - Drugs AND Alcohol. I’ve seen some GREAT cases drag out because somebody wouldn’t put the bottle down or get off the pipe. And just to let you know, Marijuana is only medicinal if it’s PRESCRIBED, not because the ganja makes you feel better about your conditions. As a result, people fail to recognize that anytime you are using Drugs and Alcohol, the court has to determine if this materially affects your ability to return to work. It’s one thing if you haven’t used drugs or alcohol in years. It’s another if you just got off the pipe last week and you want the court to consider that the fact that you’ve been clean for 7 days.
6) Large case load (the Judge to the Writer to the Editor to the Judge THEN to you)
Bottom LINE, my friends, Judges have a HUGE case load. As a result, it takes a while to receive a written decision. Here’s how it will go. The judge has to review the evidence and make a decision. The decision is sent to a decision writer. The decision writer is usually writing for several judges which means that they probably process their decision based on age (the oldest first). After the decision is written, the judge has to review. If it’s cool, it goes to the editor. Back to the judge for a signature and THEN, to you! See, I told it takes a while!
7)Once it’s in the judge’s hand, there is nothing your representative can do (most of the time).
If you have a representative, please recognize that there is probably nothing more than can do. They have gotten all of the evidence into the court. It’s in the court’s hands. More importantly, there is nothing YOU can do. So please don’t think that you calling the court every day or sending faxes to the court is going to make a difference. At the end of the day, the process must go through. Now, i know you noticed that I said there is nothing your representative can do (most of the time). If you have a critical situation (ie foreclosure or eviction), your representative may be able to ask the court to expedite the case. In some instances, the court may permit your representative to file a proposed decision (if it’s favorable). However, everything rides and falls with the court.
I know this process is a beast but it’s the only one we have so you need to be aware of the pitfalls and the perils of the process so you don’t get too overwhelmed.
Should I apply for Social Security Disability if I am still working?
This question actually comes to me alot and it is a tricky question that really doesn’t warrant a “YES” or “NO” response. Since I’m an attorney, I gotta give you the text book response of “IT DEPENDS”.
Here’s how the scenario usually plays out. You find yourself in a position where you are working a job but you are struggling because of your medical condition. So you start to consider what would happen if you apply for Social Security benefits. You go and talk to your doctor and your doctor encourages you to apply for benefits. Here’s where the story begins. What do you do now? You are still struggling with your job but you need the money. You want to apply but you don’t know if you can wait. So what do you do and how should you proceed?:
1) Question 1, Are you still working? This question is usually the FIRST thing Social Security will asking because the First inquiry into the Social Security process is ‘Are you performing Substantial Gainful Activity?’. Now, Substantial Gainful Activity (or SGA) is normally based on the amount of money you earn. Social Security using a variety of different to determine SGA but let’s say that you (as a non blind individual) was making about $1100 a month. Now, I know you are saying “No one can live on that” but that’s not relevant to the disability process. In accordance with the Social Security guidelines, for 2009, anything over $980 is considered SGA. In other words, you may make too much money unless you can show that you are working under special circumstances.
2) Question 2, Are you working under special circumstances? You now have to ask yourself the question “how are you coping to your working situation?”. How many days are you missing from work? Is your boss cutting you some slack or some leeway? Do you have someone helping you? Are you getting paid even if you’re not working?
3) Question 3, are you out of work for 12 months or more? Part of the regulations requires you to determine if your condition keeps you out of work for 12 months or more OR can reasonably expect to keep you out of work for 12 months or more. Remember, your medical condition has to be the basis for your inability to work at SGA level.
4) Question 4, is your MEDICAL CONDITION keeping you from working? Sometimes, I have had people tell me “Oh, I’ll just quick or reduce my hours in order to get under the SGA level”. AAAAAAAAAA!! WRONG ANSWER!! If you are merely lowering your hours to get under the level BUT you can still WORK at the level you were before, SSA is probably going to assume that you can work at that level. The question is “Has your medical condition caused you to reduce your work load”.
The toughest part of this analysis is when people ask if they should stop working. I can’t tell you that but you do need to be aware of a few things:
1) If you decide to stop working, be prepared to wait. The Social Security process is long and tends to take a while so please don’t think that once you apply, you will see results right away.
2) Be prepared to explain your work. If you stop working and apply right away, SSA is going to want to know what happened that caused you to stop working.
3) IF you decide to go back to work while the case is pending, it MAY have an effect on your case. How much of an effect? You can’t really tell. It depends on the circumstances of the work. If you go back and try for a few days or weeks, the work may be considered an Unsuccessful Work Attempt. However, without more information, it is difficult to tell.
The Social Security Disability process is not easy and alot of good people find themselves trying to decide what steps to take when they are unable to work at they normally do. Evaluate all of your circumstances and, if you have any questions, ask.
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