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WHAT CAN I DO IF I AM DENIED BENEFITS?
Many people do not get benefits when they first apply, but don't be discouraged. You can many times get benefits by appealing and having a Social Security hearing.
Most people are denied benefits because the SSA thinks:
- The evidence does not show a serious medical problem; or
- The disability won't last 12 months; or
- The person can do some type of work even if it is not their regular work.
(You have to go through a reconsideration before you can ask for a hearing.)
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HOW DO I ASK FOR A RECONSIDERATION?
To get the SSA to reconsider your claim you must write the local Social Security Office within 60 days of the denial of benefits. You must also sign and give SSA a form entitled Request for Reconsideration. Your case will be reviewed again and you will be notified by mail of the decision. Most of the time you will again be turned down.
Do not be discouraged if your claim is denied at first or on reconsideration. Many people win their cases at hearings.
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HOW DO I ASK FOR A HEARING?
If your request for reconsideration is denied, you can appeal the decision by asking for a hearing. The hearing is your chance to explain your situation face-to-face to someone who can grant you benefits. You can have a non-attorney representative or attorney represent you at the hearing. (See below.) Many people win benefits after the hearing, so it is worth trying. If you don't appeal your case you can apply again later, but you might no longer be eligible for benefits or you might get a smaller amount of retroactive benefits. You must ask for a hearing in writing within 60 days of the date of denial of reconsideration. Forms for appeal are available from any Social Security office. On the form for requesting a hearing, be sure to mark the box by saying that you want to "appear" at your hearing.
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WHEN AND WHERE WILL THE HEARING BE?
After you request a hearing it usually (but not always) takes approximately 3-6 months for the Social Security hearings offices to set a hearing date.
Social Security will tell you the date and place at least 20 days in advance. The hearing will usually be held within 75 miles of your home. If the hearing will be held more than 75 miles from your home you and your witnesses will be paid back for reasonable travel expenses.
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WHAT HAPPENS AT THE HEARING?
An administrative law judge will run the hearing. The judge's job is to make an independent decision based on the evidence in your case. This evidence includes medical records, other documents, and testimony you and others give at the hearing.
The judge will question you about your disability. The hearing is private and is held in a small conference room. The only people at the hearing will be the judge, the judge's assistant, you, your representative, and any witnesses. The judge will usually also ask a vocational expert to testify and sometimes also ask a medical advisor to testify. The hearing will be tape recorded.
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CAN I BE REPRESENTED AT THE HEARING?
You can go to the hearing with a non-attorney representative or attorney. You do not have to have a representative, but if you can get one to represent you, you have a better chance of winning. It is important to obtain a representative with experience in representing Social Security disability claimants. You should ask the representative you talk to how many years of experience he or she has with Social Security representation and how many hearings he or she has handled.
A representative can help you with:
- Gathering medical and other evidence.
- Analyzing your case under Social Security Regulations.
- Contacting your doctor and explaining Social Security Regulations to obtain a report consistent with the regulations.
- Referring you to specialists for further medical reports to answer questions raised by Social Security Regulations.
- Sending you to a vocational expert for a report on your ability to work.
- Suggesting that SSA send you to a doctor for a consultative examination.
- Obtaining documents from your Social Security file.
- Reviewing actions taken by SSA.
- Asking that a prior application for benefits be reopened to obtain more retroactive benefits for you.
- Seeking waiver of a time limit.
- Requesting subpoenas to assure the appearance of crucial witnesses at your hearing.
- Advising you on how to best prepare yourself for your hearing.
- Protecting your right to a fair hearing by objecting to improper evidence and procedures.
- Cross-examining adverse witnesses at your hearing.
- Presenting a closing argument at your hearing.
- If you win, making sure that SSA is paying you the appropriate amount of benefits.
- If you lose, requesting an appeal of your case to the Appeals Council.
- If necessary, representing you in a federal court review of your case.
You will also be responsible for what are called "out of pocket" costs of your case whether you win or lose. These costs usually involve charges by medical providers for copying costs or letters, and in a typical case are less than $100.00.
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SHOULD I PREPARE FOR THE HEARING?
It is usually very important to prepare for a Social Security hearing. Your chances of winning the hearing are much better if you take time long before the hearing to:
- Get the medical evidence you need, whether it is obtaining existing records or asking your doctors their opinions;
- Think about the testimony you'll give;
- Get witnesses who can give information about your disability.
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WHAT EVIDENCE TO I PRESENT AT THE HEARING?
You need to prove that you have a serious medical problem that has lasted or that will last for at least 12 months, or will result in death, and that keeps you from working. You do this with:
- Medical evidence
- Your testimony
- Testimony of witnesses
SSA helps you gather medical information for your case, but sometimes they do not have all the medical information that is available. It is important that your SSA file has all of the medical information in your case (from your treating doctor, medical specialists who have seen you, any hospital records, etc.). If you think there is anything else the judge should see before making a decision in your case, you can ask the judge if you can add that information after the hearing.
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WHAT WILL I TESTIFY ABOUT AT THE HEARING?
1. Medical Condition
2. Medical History
3. Physical Abilities
4. Mental Abilities
5. Education and Training
6. Work Experience
7. Daily Activities
1. Medical Condition
The judge will ask how your medical condition makes you feel. You should tell the judge about the symptoms you experience such as pain, dizziness, numbness, nausea or paralysis as well as you can.
For example, if your case involves pain, you might be asked:
- Is the pain burning, stabbing, crushing, sharp, throbbing, radiating or aching?
- Do your activities affect the pain?
- What do you do to relieve pain?
- What medicine do you take for pain?
- How well does the medication work?
- Are there any side effects from the pain medication?
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2. Medical History
The judge may ask you how often you see your doctor, what sort of treatment your doctor provides, what medication you are presently taking, how often you take each medication and whether there are any side effects.
You may also be asked to describe the symptoms and treatment of your medical condition since it began. You may be asked what your doctor has told you about your problem, but the judge won't ask you medical questions about your disability.
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3. Physical Abilities
If you have a physical disability, the judge will ask you a lot of questions about what you are able to do.
For example:
- How far you can walk before resting;
- How long you can sit and stand at one time during an eight-hour day;
- How much you can lift.
4. Mental Abilities
The judge will ask about your ability to understand, carry out and remember instructions, to use good judgment, to respond appropriately to supervision, co-workers, usual work situations, and changes in your work setting.
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5. Education and Training
The judge will ask you how far you went in school, if you have had any training in the military, if you can read and write, and if you have had any job training.
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6. Work Experience
The judge will ask you about the jobs you have had during the past 15 years. If your condition caused you to miss a lot of work or caused you to stop working, you should explain this.
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7. Daily Activities
The judge will ask you a lot of questions to find out how your disability affects you. For example:
- How do you spend your time during the whole day;
- How well you usually sleep;
- If you take naps during the day;
- What things you do around the house, such as cooking, housework, or gardening;
- If you go shopping;
- If you drive a car;
- What hobbies and activities you have now.
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CAN I HAVE WITNESSES AT THE HEARING?
You can bring relatives, friends or others to the hearing as witnesses. Good witnesses are persons who see you regularly and see how your medical condition affects you. The best witnesses are usually not friends or relatives, but someone else who knows you, such as a neighbor or former boss. Witnesses should talk about the activities that you are not able to do.
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WHAT IS A "VOCATIONAL EXPERT"?
Usually the judge will ask a vocational expert to testify at the hearing, at SSA's expense. A vocational expert will testify whether or not your disabilities make a job too hard for you to do, and which jobs you might be able to perform in spite of your disabilities.
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WHAT IS A "MEDICAL ADVISOR"?
Sometimes the judge will ask a doctor or psychologist to testify at your hearing. The medical advisor is paid by SSA to help the judge decide if you have a serious medical problem that keeps you from being able to work.
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WHEN WILL I GET THE RESULTS OF THE HEARING?
It often takes a few months to receive a decision from the judge. It is very unusual for a judge to announce a decision at the hearing.
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WHAT HAPPENS IF I WIN THE HEARING?
If you win benefits, you will get DIB benefits retroactively depending on the date that you applied and on the date the judge says you became disabled. For SSI, you can only get benefits as far back as the first day of the next month after your application.
The judge may also request that you have a "representative payee" if you have trouble handling money. This is a person who gets your checks on your behalf. If a representative payee is recommended you should think about who would be willing to help you in this way. SSA will ask for your suggestions.
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WHAT HAPPENS IF I LOSE THE HEARING?
If you lose your hearing you can ask that your case be reviewed by the Social Security Appeals Council. You must make this request within 60 days of your unfavorable hearing decision. Your representative will normally do this for you.
If the Appeals Council refuses to review your case or decides against you, you have another 60 days to appeal to the U.S. District Court in your area. You will need a lawyer to appeal your case to the federal court.
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ONCE I'M ON DIB OR SSI, WHAT CAN I DO IF SOCIAL SECURITY TRIES TO STOP OR REDUCE MY BENEFITS?
If you are getting SSI or DIB, Social Security may review your case at some time to see if your medical condition has improved and, as a result, if you are now able to work.
If SSA reviews your case, and if you are still disabled, try to get medical evidence from your doctor that shows that your condition has stayed the same or is now worse. It is also very important to get a lawyer to represent you if you can.
If Social Security decides to terminate your benefits, you can appeal the decision. You will have 60 days to make a written request for an appeal. But, if you make a request within 10 days, your benefits will stay the same until you have a hearing and the Administrative Law Judge has made a decision on your case. If you receive an unfavorable notice, appeal immediately! If you lose the appeal you may be asked to pay back the benefits as an overpayment.
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WHAT SHOULD I DO IF I GET A NOTICE OF OVERPAYMENT?
You will get a notice of overpayment if the SSA thinks they paid you more money than you should have received. If this happens, you can:
- File for reconsideration if you think the amount of the overpayment is wrong or there was no overpayment.
- File for a waiver of repayment if you think the overpayment was not your fault and you cannot repay the money. A request for a waiver asks SSA to free you from having to pay back the overpayment.
- ask for reconsideration or waiver within 30 days of the date of the overpayment notice, or
- ask for waiver at a later time. (If your request is more than 30 days after the date of the overpayment notice, SSA probably will have started to try to collect the overpayment. But they should stop when you make your request.)
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