I was recently asked the following question:

I need my job to survive. I can’t quit. I have some vacation days and sick time, but it is not enough to go without pay until they tell me I qualified.

How do I still work and file for SS Disability without loosing any income?

I have previously discussed working while applying for disability benefits. However, this question presents some new issues. Generally, I consider transferring from work to Social Security disability with no loss of income as an unrealistic goal. Here is why:

• The processing time on an initial claim is about 4-6 months (in Colorado).
• The test of disability under Social Security is an inability to perform work (at a substantial gainful activity level). So, working at SGA, after considering the exceptions) is a problem. Note: if an individual works below SGA level, it would not be a bar to receiving disability benefits. However, any work is still be an issue.
• Social Security requires that a disability be expected to last 12 months or longer. This is the “durational requirement.” While Social Security does not require that a person is out of work  (or working below the SGA level) for 12 months, Social Security can deny cases if it feels that while a person is currently disabled, but is unlikely to remain disabled for 12 months.
• There is also the 5 month waiting period (on SSDI claims), during which SSA withholds the first 5 months of benefits. If the alleged onset date is the last date an individual worked, Social Security would still keep the first 5 months of benefits. So, even if an individual is approved within 30 days of applying, there may still be a waiting period in which no benefits are paid. Note: this only applies in SSDI case (there is no waiting period in SSI cases). However, SSI cases do not pay benefits before the filing date.

If you have read all that and digested the information in the links, you have a pretty good idea of what you are up against. Theoretically, if an individual’s impairments limited him/her to work below the SGA threshold, they could continue to work and apply for benefits.

Conceivably, it is possible to document a declining ability to work and build up the case before the individual stops working to try to minimize the time without income.

However, you also have to be aware of the unintended consequences. Lawyers (and non-lawyer representatives) typically work on a percentage of back benefits. Since you are asking a lawyer to keep your back benefits to an absolute minimum, because you want a smooth transition from work income to disability benefits, a standard fee agreement may not work. If an individual asked my office to do something like this, I would probably require a fee petition based fee agreement along with a sizable deposit toward fees. This is because if successful, there wont be back benefits to take a percentage out of. AND, trying to prove inability to work, while an individual continues to work (!), is particularly difficult.

So, it is difficult, potentially do-able (or at least try-able), but costly.

UPDATE 10/13/11: If you have a condition described in the Compassionate Allowance list, it may be possible to get a very quick decision. So it would be worthwhile to review that list. The most up to date list is available here.

It surprises my clients to learn that, most of the time, Social Security does not update medical records after the initial denial.

With wait times of a year or more, this can mean that by the time your case gets in front of a judge, the records in your file may be a year (or more) old, and your recent treatment may not be in the file at all.

This is not the way the system is supposed to work.

When you appeal the initial denial, you provide a list of your current doctors, dates of treatment, tests performed, and medications as part of the appeal.  You also provide an authorization letting Social Security get updated records. Your appeal will be rejected if you do not do this.

There are also regulation instructing Judges to assist un-represented claimants (people applying for Social Security) with obtaining relevant evidence in their case.

BUT, when I get a call from someone whose hearing has just been set, or continued, I often see that NONE of the records have been updated since the denial.

Think about the waiting times in your area.  In Colorado, the typical wait is a bit over a year (although the times in the Pueblo area are sometimes over 2 years). Do you want a Judge deciding your case with out-of-date records?

This is why you need to review your file early to figure out just what records Social Security has, what records are incomplete, and what records are just plain missing. That means you have to know how to review your file.

Personally, I encourage you to work with an attorney to make sure the necessary records are in your file. However, if you decide to brave this process alone, make sure you know what is in your file and keep it up to date!

We all know Social Security cases take too long. Well, get ready for more delays! 

In spite of increasing number of new claims for disability, Governors around the nation are requiring disability examiners (the very people who make the decisions in Social Security cases) take unpaid furloughs. 

The nation’s top Social Security official says benefits for tens of thousands of people with severe disabilities are being delayed by furloughs and layoffs of state employees around the country. ….

State officials have announced furloughs, layoffs and hiring freezes to help balance budgets battered by the recession. 

The cutbacks come as disability claims are rising because of high unemployment, the weak economy and the aging of the baby boom generation.

The Social Security Administration expects nearly 3 million new disability claims this year, up from 2.6 million in 2008. Each month the agency pays $12 billion in disability benefits to more than 13 million people.

Dr. Dann said he had to take off every other Friday. “I can review about 20 disability cases a day, and I am off two days a month,” he said. “So I do 40 fewer cases a month.”

via State Cuts Delay U.S. Benefits, Official Says – NYTimes.com.

The long wait times in Social Security cases are prompting a backlash against Administrative Law Judges (ALJs) in Social Security cases.  

Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.

The problems in Portland reflect a broader national crisis, according to Social Security Administration records … Only about half the agency’s administrative law judges meet its minimum goal of clearing 500 cases a year.

….

In October 2007, Social Security Commissioner Michael J. Astrue met with a delegation of judges from around the country and … complained that many were not productive enough, according to the union that represents the judges. Astrue also accused them of not wanting to be subjected to any professional standards.

The commissioner has testified before Congress that the bulk of administrative law judges are hardworking. But he has griped about underachievers, and the agency set performance goals that ask judges to clear 500 to 700 cases a year..

Grab the pitch forks!  Light the torches!  It’s the judges’ fault!

Of course, things are not that simple.

The November 2008 Social Security Forum (published by the National Organization of Social Security Claimant’s Representatives — NOSSCR) also covered this topic:

Staff levels and a myriad other variables are important factors in ALJ [administrative law judge] productivity… Many ALJs ask for more hearings but support staff is overwhelmed and unable to prepare additional cases for hearing. 

Support staff in many government agencies are being cut, overtime is refused, and work days are reduced to 4 days a week.

Judges are not solely responsible for how many cases they can process. From my experience with the Colorado Springs ODAR (Office of Disability Adjudication and Review), everyone is working feverishly to try to get as many cases done as possible. 

What’s wrong with requiring Social Security ALJs to process 500 case a year?

Ultimately, it comes down to this: do you want Social Security hearings to be handled like a sausage factory?

Social Security hearings are the final step in the Social Security disability process where someone will:

• Personally review all the records (many cases have over a thousand pages of medical records); 
• Meet with you; and
• Hear your side before making a decision.  

Hearings are your day in court.  Hearings are a check against the bureaucracy of the Social Security system. Do you really want to make hearings more bureaucratic?

It reminds me of a sign at my mechanics:

We can do the work a) right, b) fast, c) cheap.

Pick two.

Slow pace of Social Security cases laid to judges, staffing – The Oregonian – Special Coverage from The Oregonian – OregonLive.com .

New figures are out about the Social Security backlog (September 2008 issue of the Social Security Forum):

• The number of cases waiting for a decision at Social Security reached a record high of 767,000. 
• The average wait time is 532 days, with wait times varying between 283 days and 943 days (just under three years).

In my own experience, Colorado cases are processed a bit faster than the national average: I see wait times are approximately 12-18 months (365- 545 days),  with most cases having a hearing scheduled around the 14 months after a request for hearing this filed.

Funding for Social Security for the first six months of fiscal year 2009 (which began on October 1, 2008), is at fiscal year 2008 levels.

In other words,  Social Security will not receive any additional funds for the first six months of fiscal year 2009, greatly limiting Social Security’s ability to deal with the backlog. 

Source: NOSSCR Forum September 2008.

I recently came across this letter on the Letters to the Next President site:

I would like to know about changes in social security-specifically disability. … I worked as an LPN for over 30 years. I started having back, neck and arthritic probelems, and after several years of pain I applie for social security disability. The process was long. It took approximately 2 years from the time I applied untill I was finally approved, and then receive a paycheck. If it had not been for my family helping me financially, I don’t know what I would have done. Isn’t there any way to speed up this process for other people who may desperately need money?

I wish I could say this was the exception, but as most of us know, long wait times are unfortunately the norm in Social Security cases.  

Send your Social Security stories to the president, or leave them in the comments.

However,  I occasionally see cases scheduled as early as six months after the appeal (this is pretty rare), and sometimes as late as 18 months.

This is a long time! For most people there is a real question of how they are going to make ends meet while waiting for their case to go in front of an Administrative Law Judge (ALJ).

However, it is important to try to make the best use of this time:  

• Obtain treatment, 
• Develop documentation of conditions (including symptoms, severity, and response to treatment), and
• Develop medical opinions of your abilities and limitations.

When you add the 12 to 18 months it normally takes for your case to go in front of a judge, with the 4 to 6 months it takes for Social Security to make the initial decision in your case, you are looking at anywhere from 16 to 24 months from the time you file your application to the time your case it goes in front of a judge.

Because it often takes two years to get your case in front of a judge, it is important that your case is in as good a shape as possible. Because if you are denied, and have to reapply, you may be looking at another two years before you get another chance with a judge.

CBS reports on denials and long waiting periods in Social Security Disability cases.

Disability Pay Rejections A two-month CBS News investigation has revealed that many individuals who are disabled are either being rejected or waiting years for a decision on benefits. Armen Keteyian reports.Social Security Criticized

Part 1 (click for video)

The Social Security Administration refuses over two-thirds of the applications it receives for disability benefits. Armen Keteyian investigates what some call a “system-wide culture to deny” claims.

Part 2 (click for video)