Kalispell Social Security Disability Attorney

At Anderson & Bliven, our attorneys have been representing disabled applicants for many years. Michael Bliven, an experienced and skilled Social Security Disability lawyer, handles most disability claims in the firm. Mr. Bliven has represented over one thousand disability applicants at Social Security disability in claims and at hearings or appeals over the past 16 years, presented at education seminars to other attorneys, representatives and community case managers, social workers and medical providers. In 2007 Mr. Bliven testified before Congress on Social Security Disability hearing delays, and he worked on issues and problems facing applicants and representatives with Congress. Mr. Bliven has been a sustaining member of the National Organization of Social Security Claimant’s Representatives (NOSSCR) for many years, and has attended many three-day national continuing legal education sessions on representing Social Security applicants to stay current on changes to the law and in the hearing and appeal process. All of our attorneys have done Social Security hearings and we are dedicated the injured and disabled, as we dedicated to the injured and disabled – not insurance companies. Mr. Bliven personally meets with clients, represents claimants at hearing, and does a substantial number of hearings in any given month, as many as twenty. Our dedication, experience and knowledge go to work for our clients in every case. Understanding our clients’ problems from our experience and training, through personal contact, and working hard to develop the evidence in their cases are important parts of why we are trusted. Our former clients refer their friends, relatives and folks they know who need help with their claims – as do case managers, medical providers and other attorneys who are familiar with our dedication to our clients.

We work with our clients’ medical and other providers to develop the evidence of their limitations and prove the case. We also work hard to get all the evidence to SSA and prove the case to the adjudicators.

Introduction: SSDI vs. SSI

Social Security disability benefits consist of monthly payments and/or Medicare benefits which provide compensation to those who are totally disabled from performing substantial gainful work of any kind. Social Security benefits can be obtained through two programs; (1) Social Security Disability Insurance (SSDI) or (2) Supplemental Security Income (SSI). Both SSDI and SSI have the same medical requirements, to be discussed below. However, SSDI requires a certain amount of credit earned for prior work, whereas SSI is based solely on financial need, regardless of prior work. If an applicant qualifies for both, sometimes past due benefits are largely paid under the SSI program, then ongoing monthly SSDI benefits which are greater than the SSI benefit take over completely. It is possible to receive both benefits, but this occurs for ongoing monthly benefits (after the past due benefits are paid) only when a person meets the requirements of both programs and the SSDI benefit is less than the SSI amount for ongoing benefits. The SSI amount is the maximum someone can receive if the receive benefits from both programs. Usually, people who are insured and receive SSDI benefits receive a benefit under the SSDI program only, because their benefit rate exceeds the SSI amount.

What is Disability?

A Social Security disability claimant will be considered totally disabled if he or she is unable to do any kind of work for which he is suited and his total disability has lasted or is expected to last for at least one year, or result in death. The disability can be due to a physical or mental condition, or a combination of a number of such conditions. If the claimant is found to be totally disabled, Social Security benefits will continue as long as the claimant remains disabled.

There is no age requirement for the receipt of Social Security disability benefits. If the claimant is receiving Social Security disability benefits at age 65, the disability benefits are automatically converted to retirement benefits. However, there are special rules that make it easier for claimants who are over 50 years old to prove they are disabled, and the rules change also at 55 and 60. Because older workers have a “more adverse vocational profile” they have advantages in trying to prove the disability claim under the SSA’s Medical-Vocational Guidelines, also known as the “Grid Rules” often times by those working in the field. The reality also is that older workers have usually paid into the system substantially and for many, many years, and as they near retirement age the economics of them being on disability change and the fact they have paid so much into the system is generally recognized, even if not formally.

Who May Receive disability Benefits?

Members of the claimant's family may qualify for Social Security disability benefits based on the claimant's earnings record, including children under the age of 18, or 19 if in high school full time, unmarried children 18 or older if disabled prior to age 22, or a spouse, age 62 or older. Social Security disability benefits to children are made under SSI.

SSI pays benefits to disabled needy individuals of any age, including children, provided they meet the disability and resource rules. Under SSI, children are considered disabled if they have a physical or mental condition which is so severe that it results in marked and severe functional limitation. As with an adult, the child's condition must last or be expected to last at least twelve (12) months, or be expected to result in the child's death. The amount of SSI to which a disability claimant is entitled depends on what the claimant owns and how much income he or she has. If a claimant is married, the Social Security Administration will also consider the income and property of the claimant's spouse in making a determination of entitlement to SSI disability payments.

What Is The Earnings Requirement for SSDI?

To qualify for Social Security Disability Insurance (SSDI) benefits, the claimant must have received credits for working a specific amount of time and earning a specific dollar amount during the ten-year period immediately preceding the established onset of disability. The Social Security Administration keeps a record of all amounts reported by employers on each workers' Social Security number or account over the course of each worker's work life. From this record, the Administration calculates whether a claimant has earned sufficient credits to qualify for SSDI. A credit is equivalent to a calendar quarter. In order to earn a credit for having worked a calendar quarter a disability claimant must have earned a minimum dollar amount (to be discussed below) during that calendar quarter. Even if that minimum dollar amount was earned during a brief, two-week period in that calendar quarter, following which the disability claimant did no work at all during the remaining portion of the calendar quarter, credit for the entire quarter is earned. Generally, in order to be eligible for SSDI, a claimant must have received credits for at least 20 calendar quarters (five years worth of calendar quarters) out of the last 40 calendar quarters (ten years worth of calendar quarters) ending with the year the claimant became disabled. The requirement of having earned credits for 20 out of the last 40 calendar quarters roughly equates to having worked five years worth of quarters out of the last ten years worth of quarters; however, it should be emphasized that the quarters need not have been worked together or in sequence. Thus, if a claimant were out of work every other quarter over a ten-year period of time ending with his disability, he would have just barely earned sufficient credits to qualify for SSDI benefits. Since there are only four calendar quarters in a year, a disability claimant cannot earn more than four credits for a year of work. The minimum amount of earnings required during a calendar quarter in order to earn a credit towards Social Security disability eligibility increases each year. However, there are special earnings rules for younger individuals, or applicants who have spent time on disability benefits. You should have an attorney should be aware of these rules and who works to prove that are disabled under Title II (Disability insured benefits) so that you can receive the maximum SS benefits available. Another example is applicants who do not have enough earnings on their own record, but qualify under the record of a parent or deceased spouse. We look for these alternative routes to establish Title II benefits, as it usually a big advantage to the claimant to receive Title II benefits.

The Application Process

If you believe you may be entitled to Social Security disability benefits, you may apply on the Social Security Administration’s website, by calling the toll free number, 1.800.772.1213, or in person at your local Social Security office. Save or print copies of forms you file, and if you mail forms, keep copies and receipts for everything. Initial processing of disability claims usually takes at least 60 to 90 days. The states, in cooperation with the Social Security Administration, assist in the handling of Social Security Disability cases by establishing an office called the Disability Determination Service (DDS) to evaluate and process the disability claims. Your SSDI claim will be sent to the Disability Determination Service office, which in Montana is in Helena. There, a decision will be made as to whether you are disabled under the Social Security law, based upon a review of your medical evidence, and possibly even a consultative medical exam, which the DDS office schedules. At this level of the proceedings no hearing is held.

As a result of the lack of a hearing at the initial stage of a Social Security disability claim, as well as the difficulty of deciding cases based solely on a review of papers, it is not uncommon for errors to be made in the preliminary stages of Social Security disability claims. The denial of a Social Security disability case is frequently reversed on appeal once a skilled, experienced Social Security Disability lawyer becomes involved and takes the case through the hearing. The disability lawyer you retain can decide what medical conditions and disabilities can be shown to contribute to your total inability to work. An experienced disability attorney can ascertain what if any medical records or medical reports may be needed to demonstrate that you are totally unable to work under Social Security administration regulations. Attorneys can direct the questioning of the claimant at the hearing so as to bring out the strongest evidence in the claim. Skilled and experienced Social Security lawyers are familiar with the Social Security regulations, and know which parts of the regulations pose the most difficulty in certain cases. A claimant should not be surprised at the denial of his/her claim at the early stages and certainly should not hesitate to retain a disability attorney and appeal an unfavorable decision.

Once a decision is made, the claimant will receive written notice from the Social Security Administration. If approved, the claimant will receive a notice showing the amount of benefits he/she will receive and when the payments will begin. Social Security Disability benefits do not begin until the sixth full month of disability from the date the Social Security Administration decides the claimant's disability began. Disability benefits can be paid retroactively for up to twelve months prior to the date the claim was filed, not including a five month waiting period which the law requires before a Social Security application may even be filed. On the issue of retroactivity, it should be noted that SSI cannot start before the date of the application.

How Much Are The Disability Benefits?

The law provides that the receipt of certain types of other benefits will result in a reduction of Social Security benefits. Taking into account other benefits that a claimant may be receiving, such as workers' compensation or federal, state or local government disability, a claimant's total combined payments cannot exceed 80% of his/her average current earnings.

Levels of Appeal

If the disability claim is denied, a notice will explain why (in a totally unsatisfactory way) and advise that the claimant may request reconsideration no later than sixty days from the denial. It is important to file this Request for Reconsideration in a timely fashion, and this can be done even before you retain a lawyer. As with the initial application, a Request for Reconsideration may be filed by you or your attorney at a local Social Security Office. If the claimant fails to file for reconsideration and later decides to reapply for benefits, he/she may lose some benefits, or may not qualify for any benefits at all. Therefore, it is crucial for you or your attorney to file for reconsideration. If the claimant does file for reconsideration, the claim will again be sent to Disability Determination Services for review. A physician and disability examiner who will evaluate the evidence previously submitted, as well as any additional medical evidence will review it since the original decision. Again, the claimant will receive written notice of the decision, without the benefit of a hearing. Not surprisingly, few denials are reversed at the Reconsideration stage of Social Security proceedings, so be prepared for another denial and for taking the next step in the appeal process.

If denied on reconsideration, the claimant may then file a Request for Hearing of the decision by the Office of Disability Adjudication and Review (until recently know as the Office of Hearings and Appeals). The applicant must request the hearing in writing within sixty days of the date of the reconsideration denial notice. The form is actually called a Request for Hearing and may be obtained from the local Social Security office. It is important to file the Request for Hearing in a timely fashion, and to save the receipt to prove it was filed on time. Although it is very important to retain an experienced Social Security Disability lawyer, it is even more important to file the Request for Hearing on time, so you may file this form even before you interview attorneys and find the lawyer who you want to represent you.

If a hearing is requested, the case will be assigned to an Administrative Law Judge (ALJ), who, while not a "judge" in the technical sense of sitting in a court of law, is the person charged with "judging" your lawsuit at the hearing level. By all means, call the ALJ "Your Honor." They have worked in their field for many years and have earned the same respect of the claimant and lawyers accorded to a judge in a court of law. The hearing proceedings are somewhat informal and give the claimant and his/her attorney the opportunity to explain why he/she disagrees with the decision made in the case, to present additional evidence and to have witnesses testify in his/her favor. Administrative Law Judges are usually better versed in the law than the individuals who decided the claim at the lower levels in the application process. They are also independent of the Disability Determination Service, and, when a case is properly presented to them, usually with the assistance of an experienced Social Security Disability lawyer, they frequently reverse earlier denials of disability benefits. As stated previously, it is highly recommended that the claimant retain an attorney experienced in the handling of Social Security Disability cases. The attorney’s fees in a Social Security Disability claim are generally structured so that even those with little in the way of resources can afford experienced attorneys.

How The Determination of Disability is Made

The Social Security Administration regulations require the Administrative Law Judge to follow what is called a sequential evaluation process in order to determine whether a claimant is disabled. The first step is to determine whether the claimant is doing any work at all. If the claimant is working and his/her earnings average more than the SSA definition of substantial gainful activity (SGA), and indexed amount. That amount is indexed, and as of December of 2006, that amount was $850 per month, and is currently $1000 per month, he/she cannot be considered disabled (unless certain exceptions apply, such as sufficient income related work expenses that would reduce the amount below the SGA level). The second step is to determine if the combination of medical conditions or disabilities of the claimant is severe, or, the impairments interfere with basic work-related activities. Step three decides whether the condition is found in a list contained in the regulations of disabling impairments that are considered so severe they automatically qualify as a disablement. If the condition is not on that list, the judge determines if the condition is of equal severity to an impairment on the list. If the condition is severe, but not at the same or equal severity as an impairment on the list, step four determines if it interferes with the claimant's ability to do the work he/she did in the last fifteen years. If the claimant is found unable to do the work he/she did in the last fifteen years, step five takes into account the claimant's age, education, past work experience and transferable skills to determine if there are jobs he/she can perform in the national economy.

Appealing An Administrative Law Judge's Decision

If the Administrative Law Judge denies the claimant Social Security disability benefits, an appeal can be taken to what is called the Appeals Council. Experienced Social Security Disability attorneys are generally familiar with the regulations pertaining to such appeals. No in person hearing is held at this level, but the decision of the Administrative Law Judge is reviewed for error, following an opportunity for the lawyer to present written argument and even new and material evidence. The appeal to the Appeals Council must be filed within sixty days of the decision by the Administrative Law Judge. A further appeal can be taken from a denial by the Appeals Council to the United States District Court, which also must be filed within sixty days of the denial by the Appeals Council. No evidentiary hearing is held at this level either, but the attorney will be given ample opportunity to present legal arguments. Needless to say, lawyers must be admitted to practice before the United States District Court in order to handle Social Security Disability appeals to that Court. It is not unusual for experienced Social Security Disability lawyers to obtain reversals of administrative law judges' decisions, even at this stage of appeal. However, the ALJ Decision was partially favorable, it may not be in the applicant’s best interests to appeal, because that appeal can re-open the entire case, and the Appeals Council can “undo” the favorable parts of the Decision. Consultation with the attorney can be important in this situation.

Periodic Review of Claims Where Finding of Disability Has Been Made

Once approved for disability benefits, a claimant's case will be reviewed periodically to make sure the claimant is still disabled. How often a case is reviewed depends upon the severity of the claimant's condition and the likelihood of improvement, which can range anywhere from six months to as long as seven years. In order to terminate a claimant's disability benefits the burden is on the Social Security Administration to produce evidence that the claimant's condition has improved. Even if a claimant's treating physician has indicated nothing further can be done to help the claimant's medical condition, if the condition has not improved, it will be helpful to periodically return to see the doctor to document the physical complaints and the lack of improvement.

After a claimant has been eligible to receive disability benefits for two years (twenty four months) he/she will be eligible for Medicare.

Attorney Representation Attorney Fees

When a favorable decision has been rendered on a claim, the representative is entitled to a legal fee. The Social Security Administration must approve the fee agreement between a claimant and their representative. Reference should be made to 42 U.S.C.A. Sec. 406 (a) and 20 CFR Sec. 404.1730. The law simply states that, in case there is an award of past-due benefits, the Social Security Administration shall certify an attorney fee, which is allowed the attorney representing the claimant. This fee is deducted from the past due benefits. Thus, in any case where the Administration makes a determination favorable to a claimant who was represented by an attorney in a proceeding before the Administration and, as a result of such determination, past due benefits are payable, the Administration will certify for direct payment to the attorney, out of such benefits, as follows:

a) 25 percent of the total of such past-due benefits;
b) the amount of attorney’s fee set by the Administration; or
c) the amount agreed upon between the attorney and the claimant.

Law requires the Commissioner, when claimants are represented by an attorney, to deduct and withhold from the claimant’s past-due benefits an amount not to exceed 25 % thereof. "Past- due" benefits include not only the amount due the claimant, but also any amounts due family members. In certain circumstances, an attorney will be required to file a fee petition, which is subject to the approval of an ALJ for payment of a legal fee.

The Montana personal injury attorneys at Anderson & Bliven, P.C., handle all types of Personal Injury, Criminal Law, Family Law, Business Law, and Social Security Disability matters in Kalispell, Columbia Falls, Whitefish, and throughout the state of Montana. If you have been injured by a foodborne illness, auto accident, or suffered any type of injury, call our Kalispell personal injury attorneys at (406) 755-6828 or toll-free at (888) 757-6828 for a free consultation with an experienced attorney.