The Law Office of Burke Barclay
Social Security Disability Attorney
Contact Us​
1-888-780-9125​
FREQUENTLY ASKED QUESTIONS
How long will this process take?
That is always a great question, but not easy to answer. To be realistic, every case has its own individual characteristics which either speed up a decision or slow one down. But, let's see if I can narrow down the possibilities. In reality, if your case is going to be denied twice and you are going to have to attend a hearing, then I would tell you that you need to accept that your case will probably take two years to complete. For most states, it is usually 14 months after the claimant files an appeal for a hearing before his or her case is presented to an administrative law judge. The initial claim and reconsideration after the first denial usually take about 4 to 8 months to complete. Of course, it's always wonderful when we are able to win a case for our client within a couple of months of filing his or her claim, but that is not the usual pace in which most Social Security disability claims go.
What is the difference between SSDI and SSI benefits?
Let's start with what they stand for: SSDI=Social Security Disability Insurance. SSI=Supplemental Security Income.
SSDI is awarded when a claimant is found medically disabled and he or she has earned the correct number of work credits based on his or her age and he or she has not allowed those work credits to expire. To make this quite simple, think of it this way: It is much like an insurance policy one pays into. As long as the policy is still valid, then a claim for benefits can be made. If you are physcially or mentally unable to work, then do not wait too long to file. Usually after five years a claimant will lose eligibility to file for this kind of disability. After two years of receiving SSDI, then the claimant can qualify for medicare benefits.
SSI is similar, but different. In order to qualify for these benefits, a person still has to meet the medical requirements, but there is no requirement for work credits. However, the person qualifying for SSI benefits must make no more than a certain amount of money each month and have very few non-exempt assets. Here, instead of the claimant having to wait a period of time to qualify for medicare benefits, he or she can qualify right away for medicaid.
What will happen after I file for Social Security disability benefits?
If you filed your application online (and you should always do so), then your local Social Security office will send you paperwork confirmning you are in fact seeking disability benefits. This is what actually begins the process. Once all of your administrative issues are resolved, your case is then actually sent to a disability determination service in your home state. These are state employees trained in Social Security disability law and are paid by the Administration. Once your case is there, your medical records will be evaluated by a claims examiner who will make a determination on your case. If your records are not sufficient, a consultative examination will be ordered and you will have to go see a doctor that has been paid by the Social Security Administration. During this process, you will also be required to fill out a function and work history report. These reports further help the claims examiner determine what work you might be able to do despite your physical or mental limitations and how your restrictions in your daily activities reveal how you are not able to work. If you are denied after the first application, then you will have the opportunity to file a reconsideration where a new claims examiner will evaluate your medical evidence. If you are denied a second time, then you will have to file an appeal to appear before an administrative law judge to review your case. Most cases go no further than this, but if the judge denies your claim(s), then you will have a chance to have the Appeals Council hear your case. From there, your case will either be remanded back to the judge or your case will be denied yet again. If all else fails...you can then take your case to the federal district court level and then the corresponding Court of Appeals. And yes, believe it or not, if your case is considered important enough for the Supreme Court of the United States to hear, then your case ultimately could end up there. But just remember, most cases end after the first hearing and yours is likely to do so as well.
How are Social Security disability attorneys paid?
Every Social Security disability attorney who specializes in this area of law will take your case on a contigency basis. This means that unless he or she wins you a fully favorable or partially favorable decision, there is no fee. The rate for attorney fees is: 25% of the claimant's back pay up to $6,000.00. The claimant receives 75% of his or her back pay and he or she keeps the monthly disability payment. In regards to expenses, some attorneys charge their clients and some do not. For our firm, we do not charge for expenses because Texas law does not allow hospitals or doctors to charge for medical records when an attorney or claimant needs them for a Social Security disability case and California allows one free copy of medical records under the same circumstances. We practice Social Security law throughout the United States, so we usually do not need to be reimbursed for paying for claimant's medical records.
Can I still work and receive Social Security disability benefits?
This question can become complicated as well. However, the simple answer is that a person cannot engage in substantial gainful activity and continue to receive benefits. So, what this means in its most simplest terms is that a nonblind person cannot be earning more than $1,350.00 per month and cannot be engaging in substantial activity. Work is substantial if it requires significant physical or mental activity. However, by is own definition, the work must be both substantial and gainful in order to disqualify a claimant from either qualifying or continuing to receive benefits. Therefore, the simple rule is again, don't make more than $1,350.00 in 2022 each month.
What will happen at my hearing?
If you are not nervous about your hearing, then I applaud your bravery. Most people are understandably worried about how their hearing will go, and I am always amazed at their strength for persevering through such a difficult process. Each judge conducts his or her own hearing in their own way. Some judges take complete control of the hearing and the claimant's attorney actually does very little. Some judges ask the attorney for an opening and closing statement and some do not. However, there are some basic events that will occur in a hearing that stand true regardless of which judge hears the case. First, there is almost always a vocational or medical expert to assist the judge in making his or her decision. Almost always the claimant will be questioned directly by the judge since there is not opposing counsel seeking to deny the claimant of benefits. Social Security disability hearings are intended to be nonconfrontational, but sometimes it feels just the opposite. The usual sequence of events occurs: The judge opens the case on the record and asks the claimant's attorney to state a theory of the case or make an opening statement. The judge then begins questioning the claimant as to what medical issues are keeping him or her from working. The judge will then ask the claimant's attorney to ask his or her questions. After this, the medical or vocational expert is asked a serious of hypothetical questions (that are really about the claimant but they are intended to be nonconfrontational). Then the judge turns over questioning of the expert to the claimant's attorney. The ultimate goal is for the expert to state that there would not be any jobs available in the national economy the claimant could perform. If this is the conclusion during the hearing, it at least increases the chances of there being a favorable decision. Finally, the hearing is adjourned and the claimant and his or her attorney are dismissed. All of this takes place in about 30 to 45 minutes. Rarely does a hearing last longer than an hour. After this, the claimant will receive the judge's written decision in usually one to four months.
Will I be found disabled by the Social Security Administration?
That is not an easy question and one that cannot be resolved just be reading this short answer. However, there are five sequential steps the Social Security Administration goes through to determine whether or not a person is actually disabled. Remember, no one else but the Administration can determine that you are unable to work in regards to receiving disability benefits. People often believe it is conclusive they are disabled just because their doctor agreed with them that they are unable to work. Social Security actually has it's own definition of what it means to be disabled: If you have the inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, then a person is considered disabled.
Therefore, if you can successfully go through these five steps by applying them to your own mental or physical impairments, your case may be successful in determining whether or not you are actually disabled.
1. Are you still working? If you are still working and engaging in what the Social Security Administration calls substantial gainful activity, then your claim will be immediately denied. This, like all the other steps, can become complicated, but if you are making more than $1,130.00 per month in 2016 and you are not blind, then you are engaging in substantial gainful activity. If you are not working, then you can move on to Step 2.
2. Is your condition or conditions severe? In order to satisfy Step 2, your condition must meet the 12 month duration requirement or be expected to end in death, and the condition must interfere with a person's ability to enagage in basic physical and/or mental work activities. Suffice it to say, if your condition affects you so much mentally or physically that it interrupts your ability to work, then you may be able to pass Step 2 and move onto Step 3.
3. Does your condition meet a listing? If your condition is severe enough to meet the defintion of your impairment as described by the Social Security Administration, then you will be found disabled as long as your impairment meets the severity requirement (Step 2) and you are not engaging in substantial gainful activity (Step1). If not, then you must move on to Step 4.
4. Are you able to do any work you have done in the last 15 years? If you can do any kind of job you have already done in the last 15 years and you did that work long enough to have learned that kind of job, then you are not disabled even if you meet the severity requirement. If, because of your physical or mental condition, you are not able to do any of your past relevant jobs, then the evaluation moves on to Step 5.
5. Can you do anything else? Taking into consideration your age, education, and past relevant work skills, if you can go and do some other type of work, then you are not disabled. However, if because of your mental or physical condition(s) you are not able to do any other kind of work, and you meet the other above requirements, then you may have a strong case for being disabled.
Why should I even use an attorney?
What a great question.
​
If you are looking for any disability attorney to magically fix your disability problems, then you will be disappointed. If you hire an attorney from the very beginning of your case, then all he or she can really do is stand in line with you while the Social Security Administration decides your case. There are long periods of time in which not much will happen on your case and it will seem as though he or she is doing very little.
​
However, there are also some positive factors to consider, especially if you hire an attorney from the beginning of your case:
​
1. He or she can make sure you don't make any mistakes. Any mistake made during the process can potentially hurt your case immediately or down the road if you must attend a hearing.
​
2. He or she can become familiar with your case through this lengthy process and if your case does have to go to a hearing, he or she is much more familiar with your conditions than if you just hired an attorney for your hearing.
​
3. When you do have to complete your Adult Function Report, he or she can make sure you state correctly and specifically what your impairments are. Too many times, I have seen Function Reports prepared by the claimant that end up hurting them at the time of their hearing. ALJ's love to use the fact that a person is capable of caring for their children, driving, or going to the grocery store as a means of determining a person is capable of working at a job eight hours a day, five days a week. It is important to state that even if a person has to do such daily activities, he or she receives help, it is painful to do so, etc.
​
4. There is an attorney-client relationship that is established over a possible lengthy period of time as the claim moves from the application to multiple appeals, as is the case many times when filing for disability benefits.
​
5. If a person does have work credit problems, onset date issues, working while still claiming a disability, etc., an attorney can help make sure those mistakes are not made or can help correct them if they happen to occur.