This article reprinted with permissions from the Hep C Connection in Denver Colorado. Although written with the US population in mind, the issues raised below apply equally to filing for disability in Canada. In Canada, however, there is a network of community advocates, paralegals and legal aid lawyers in place who will represent you for free if your finances are limited.
Mistake #1: Assuming that what SSA tells you is true.
Unfortunately, some of the advice that Social Security Administration (SSA) employees provide to the public is incorrect. So if you aren't happy with what SSA told you over the telephone, you'll be glad to know it may not be correct. The problem is, many people don't file a disability claim for years (and go without benefits they deserve) simply because an SSA employee gave them bad information.
Advice: Don't give up on your claim until after you have reviewed your case
with a disability lawyer. Disability lawyers know more about the law than
SSA employees and will give you correct information.
Mistake #2: Assuming the Social Security Administration will approve your claim.
Many people believe that because they have paid into SSA, their claim should easily be approved when they apply for disability benefits. Many people believe it's just a matter of filling out the forms and going through the process. But this isn't true. SSA denies 70 to 75% of first-time claims. SSA denies 82% of claims that are appealed for Reconsideration. However, the good news is that when cases are heard before judges, nationwide over half (53%) are approved.
Advice: Appeal every denial within 60 days of receipt. Build a strong case by
understanding what information Social Security requires. Make sure to
present your case properly.
Mistake #3: Assuming the disability forms you fill out will win your case.
Usually they will not. Claimants hurt their case by overstating what they can
do. In most cases, SSA and judges rely heavily on medical records as well
as your doctor, psychiatrist, and/or psychologist's opinion about your
ability to work full-time. If the judge isn't happy with you, if he
doesn't believe what you're saying, or if he is looking for a reason to
deny your claim, he may look for inconsistencies in answers you provided
earlier on the forms. For example, if you answer one way on the form and
testify at a hearing to something else, the judge may use the answer on
the form to undermine your credibility and support a denial of your
Advice: When completing the forms, be honest, accurate, and brief! You should always answer the question in the space provided--do not attach additional sheets of paper or write in the margins. Also, it is important to assume you are back working full-time on a sustained basis (8 hours per day, 5 days per week) when answering questions about what you are capable of doing.
Mistake #4: Assuming that your medical and/or psychological symptoms will be enough for the judge to approve your claim.
Not true. You need detailed medical records, which document your symptoms and limitations and specific opinions from your doctor, psychiatrist, and/or psychologist if you hope to win your case. Their opinions will only be given weight by the judge if you have received continuous and consistent medical treatment. If you are not meeting regularly with your doctor, you are jeopardizing your case!
Advice: It is critical that you receive continuous and consistent medical treatment and care so you can provide SSA and a judge with current and complete medical records which support your doctors'
Mistake #5: Assuming your diagnosis will win your claim.
It won't. It's true that SSA needs a diagnosis. But SSA also needs medical proof that your diagnosis causes limitations that are so significant and severe that they preclude your ability to work full-time on a sustained basis.
Advice: Disability cases are won based on your limitations, not your symptoms. Make sure you provide detailed medical records from your doctor that reflect your symptoms, the diagnosis, and your limitations.
Mistake #6: Assuming SSA will be persuaded by any type of medical treatment you choose.
It will not. You can choose any alternative therapies and holistic treatments you desire. After all, you should do whatever it takes to try to get better. However, be aware that SSA and judges are most persuaded by mainstream doctors (M.D., D.O., and psychologists) and how you respond or fail to respond to mainstream treatment. If you are not taking medications or are not receiving mainstream treatment by a mainstream doctor, you may be jeopardizing your claim.
Advice: To win your claim, try to exhaust every medical treatment your mainstream doctors recommend, so you can prove that in spite of doing so, you continue to be unable to work full-time on a sustained basis.
Mistake #7: Assuming your family doctor's opinion is the only one you need.
This may not be a good choice depending upon your diagnosis. If your diagnosis is usually made and treated by a specialist (M.D., D.O., Ph.D.), you should treat with both a board certified specialist and your family practitioner. From a legal standpoint, you want to show the judge your diagnosis is correct and that you are receiving the best possible medical care. You have a stronger case when your doctor is a specialist who is skilled and experienced at treating people who have your condition. Social Security law generally gives more weight to the opinions of a specialist than a general practitioner. As a result, SSA and the judge will look more closely at the credentials of the doctor who is providing the opinion.
Advice: Get your medical treatment from a specialist because the more skill and experience your doctor has, the more likely you are to win your claim. Note: If you are a member of an HMO and they will not allow you to go to a specialist, consult with your disability lawyer, who can help you get appropriate treatment.
Mistake #8: Assuming your doctor will support your claim for disability benefits.
He may not. Some doctors refuse to help patients with their disability claims. Many doctors do not know SSA's definition of disability and believe that one has to be bedridden to qualify. In general, doctors are very conservative in their opinion about a patient's ability to work. Because SSA and a judge will want to know if your doctor supports your claim, it is critical you know the same information! After you have established a relationship with your doctor you should discuss with them the fact that you have filed a claim for disability. Ask if they will support your claim, and if they will not, you should consider finding another doctor because their opinion is not likely to change! It is critical your doctor supports your inability to work full time on a sustained basis!
Advice: As soon as practicable, you should learn whether your doctor supports your disability claim. If not, consider finding a more compassionate doctor who will. One place to find a referral is to attend a local support group for individuals who share your diagnosis.
Mistake #9: Assuming you have to go to SSA's doctor for a medical examination.
Often, SSA wants to a claimant to go a disability examination with a doctor/psychiatrist/psychologist it chooses. Unfortunately, the doctor is not really "independent" and probably performs many of these examinations for SSA each month. In my experience, the majority of the time the doctor will conclude you are not disabled and can return to work. Once this opinion is included in your file SSA and a judge will have sufficient evidence to deny your claim.
Here's the good news: SSA rules allow your doctor to perform the disability exam and SSA should pay for all or at least part of it. Naturally, if your doctor supports your disability claim he will probably conclude your condition precludes your ability to work. Once your doctor's exam report is in your file with a conclusion that you are disabled, SSA and a judge may have sufficient medical information to approve your claim.
Advice: This strategy is only possible if you are certain your doctor supports your claim and is willing to do the examination. If you do not have a doctor, or your doctor will not perform the examination, you must go to SSA's doctor or risk having your claim denied or closed out. This strategy really should only be employed by a disability lawyer because complex regulations are involved and must be complied with.
Mistake #10: Assuming an entire year has to pass before you can file a disability claim.
Not true. SSA law requires that before you can be approved one of the following must be true: (1) you have already been disabled and out of work for one year, or (2) your doctors expect that you will be unable to work for a minimum of one year from the date you last worked, or (3) your medical condition is expected to result in death. Too many people have told me that an SSA employee said they could not file a claim until one year had passed since they last worked. This information is totally incorrect and if followed, will almost certainly cost you disability benefits and medical insurance!
Advice: Apply for disability benefits as soon as you or your doctors believe your medical and/or psychological condition will preclude you from working for at least one year. Waiting to file will only cost you benefits that you may not be able to recover.
Mistake #11: Assuming that if you lose before a judge at a hearing, you can simply file another claim.
When you have a hearing before a SSA judge, you do not want to lose. This is because, practically speaking, your best chance at winning is at your first hearing before a judge. True, you can file a second application if you lose at a hearing; however, the second time you go through the process, SSA and a judge will know your first claim was denied. In my opinion, this may have a detrimental effect on your second claim as the second judge will know.
Advice: Make sure your case is properly prepared so you can present your strongest case at the first hearing.
Mistake #12: Assuming you can handle your case without a disability lawyer.
Most people can't. SSA disability laws are complex, even many lawyers do not understand them. To win your claim, you need to very carefully prepare your case from the very beginning. In addition, it is critical to understand what you need to prove legally in order to win your case; if you do not know what you need to prove, why would you risk going before SSA or a judge without knowing how to win your case? The fact that you and your doctor agree you are disabled is not enough to win your case.
Advice: Retain only an experienced disability lawyer. They will help build your case, develop a case strategy, obtain a complete set of your medical records and critical opinions from your doctor that will maximize your chances of success. More often than not, your doctor will not be familiar with the stringent criteria that SSA and a judge will utilize in determining whether you meet their definition of disability.
Mistake #13: Assuming any lawyer can help you win your claim.
Not true. You want a disability lawyer who is familiar with SSA laws and regulations. Similar to doctors, attorneys generally specialize in a certain area of the law. You wouldn't go to a dentist for a physical examination, so do not pick just "any" attorney to represent you in your disability claim.
Advice: Choose a disability lawyer who's practice is dedicated to representing clients because your odds of winning will increase. A seasoned disability attorney will understand the strategy and tactics that are crucial to helping you win your claim.
Mistake #14: Assuming you should not hire a lawyer until your case has initially been denied.
Not true. You can hire a lawyer any time you wish. Unfortunately, many employees at SSA will tell you that it is not necessary to hire an attorney until you have been initially denied. Following this advice could be fatal to your claim! Why? Because in general, SSA will begin preparing a case against you from the day you file your application!
Advice: You should consult with and/or hire a disability attorney as soon as possible after you file your application. The attorney can explain how the process really works and lay the proper foundation for your case by developing a case strategy. The attorney can also guide your case through the myriad of rules and regulations that are certain to have an effect on your entitlement to benefits.
Mistake #15: Assuming that you cannot afford a lawyer.
Not true. In almost every case, you will only pay the attorney a fee if and when you have won your case and received benefits. SSA law limits the amount of money your lawyer can earn from your disability claim. Generally, by the time you win your claim you will have accrued back benefits. The law mandates the fee can only be 25% of your past benefits and is capped at $4,000. In other words, if your back benefits total $1,000.00, the attorney's fee would be $250.00. The law does not allow your lawyer to charge a fee on your future benefits.
What may be at stake? By way of example, assume a claimant is 45 years old and their monthly disability benefit is $1,000.00. If the person never returns to work before age 65, their disability benefits would total $240,000.00! This amount does not include the value of the lifetime health insurance they would also receive through Medicare or Medicaid.
Advice: Because the amount of the benefits can be staggering, the truth is, you can't afford not to hire an experienced disability attorney!
Scott E. Davis and Scott M. Harris are attorneys who specialize in Social Security and long-term disability claims. More than 50% of their disability practice is devoted to individuals with FMS and/or CFIDS. Mr. Davis and Mr. Harris are located in Scottsdale, Arizona and represent clients throughout the United States. They invite your questions and inquiries about representation by email firstname.lastname@example.org or FAX at (602) 482-4300.