Know Your Legal Rights is a bi-monthly column distributed by the State Bar of Wisconsin. It is written by members of the State Bar of Wisconsin’s Lawyer Referral and Information Service (LRIS), which connects Wisconsin residents with lawyers throughout the state. Learn more at wislaw.org.
By Attorney Leah Drexler-Dreis
Filing for disability benefits is not an easy choice. However, if you have health issues that are interfering with your ability to successfully work, sometimes this is one of the only options people have for income.
Unfortunately, the process for disability benefits is often a long one—avoiding these common hurdles could make all the difference.
File a timely appeal
After you file an initial application for disability benefits, you await an initial determination. If denied, you may file an appeal for reconsideration. If that is denied, you may appeal for a hearing before an Administrative Law Judge (ALJ). Subsequent appeals are also possible.
Generally, appeals must be filed 60 days after a denial letter is received. It’s easy to get discouraged after getting a denial letter in the mail. Some people give up, thinking they don’t have a valid claim. Others decide to start over again. However, a claimant’s highest probability of success is at the ALJ hearing – the third stage in the disability process.
In 2021, only 36% of cases were approved at the initial stage; only 13% of cases were approved at the reconsideration stage. However, 51% percent of cases were approved at an ALJ hearing.
These statistics don’t vary much from year-to-year. To get to the hearing level – the level at which you have the best possible chance of prevailing on your claim – you must file timely appeals of your first two denial letters.
Must show medical evidence of disability
Social Security disability claimants have the burden of establishing that they have impairments which cause them significant limitations. Generally, you do this with medical evidence.
The more doctors you see and the more often you see them, the more evidence there is to support a disability claim. The more you talk – in great detail – about your symptoms and how they impair your functioning affects the quality of that evidence.
Some people assume (sometimes correctly) that they can go into their doctor’s office and say that there’s been “no change” since their last visit and still get the treatment (or a change in treatment) they need. However, for a disability claimant, doctors’ visits serve dual purposes: to get necessary treatment and to communicate with the Social Security Administration (SSA).
SSA personnel are combing your medical records for notations regarding symptoms and limitations. If you’re not talking to your doctor about these things, there won’t be much substance to support your case.
Being very specific is also helpful. SSA is trying to quantify your limitations. Telling your doctor you’re in pain is not as illuminating as describing that you can only stand to prep dinner for 10 minutes before having to sit down, or that the neuropathy in your feet has resulted in you needing to hold onto the furniture in your home for balance as you try to walk.
Follow prescribed treatment
While you do not need to undergo risky treatment or treatment that you cannot afford, not taking your medications as prescribed or failing to follow directives (including abstaining from alcohol or illicit drugs) can muddy your case.
It forces SSA to try and guess what your likely functioning would be if you did follow prescribed treatment. SSA is unlikely to assume findings in your favor.
Cooperate with the Social Security Administration
SSA will sometimes schedule examinations for you with their doctors. They often will send questionnaires that ask about your day-to-day activities and work history. They will ask for medical releases to be signed (sometimes multiple times) and/or for you to contact them to answer questions they may have about your file.
These requests will have deadlines. Missing these deadlines or not communicating with SSA about extending them can result in denials for failure to cooperate.
If you cannot meet a deadline, call the examiner whose name appears on the letter and discuss your situation with them. Always keep a written record of who you talk to and when.
Leah Drexler-Dreis practices solely Social Security disability law at the Disability Benefits Law Center in Milwaukee with her father, David Dreis. She has been practicing in this area since 2008 (and as an attorney since 2012) and does work at all levels of the disability process, including the Eastern District of Wisconsin federal court. She is a member of the State Bar of Wisconsin Lawyer Referral and Information Service, which connects Wisconsin residents with lawyers throughout the state. Learn more at wislaw.org.