Basic Questions About North Carolina Social Security Disability

Below you will find a Hardison & Cochran Podcast episode about Social Security Disability Basics with North Carolina Board-Certified Social Security Disability Law Specialist Blair Biser. The transcript from this episode is also below for those who would simply like to read and not listen. To listen or read transcripts from other podcasts from Hardison & Cochran, please visit our Podcast Page.

Episode #5 Social Security Disability Basics with Blair Biser

Bill Campbell: [00:01:14] All right. Tell us a little bit about yourself, Blair.

Blair Biser: [00:01:16] Hey, my name is Blair Biser, I’m a social security attorney with Hardison & Cochran. I’ve been with the firm for over 10 years now. Originally graduated from law school in Durham, North Carolina and had been practicing security disability law, again, for the last 10 years.

This is all I do. I’m a board certified specialist certified by the State Bar of North Carolina and to become a board certified specialist you have to have intense testing process and also undergo significant peer review from your legal peers in the legal field. And so that’s that’s where I am at this point.

Bill Campbell: [00:02:01]  Getting into the practice at the security law what is the purpose of some security disability benefits?

Blair Biser: [00:02:10] Social Security Disability is a federal… federally run program under the Social Security Act. Most people usually think of when they think of Social Security as the benefits you get when you retire. There’s also another portion of the program called security disability insurance and this program is basically a social program to replace the income that an individual loses as a result of a medical impairment that prevents that person from working.

And this is what mostly people actually think of when they think of Social Security Disability. There’s also another benefit that’s offered under the Security Act called supplemental security income. What most people here is SSI and that’s basically a needs based program for providing people with a safety net who they have never worked or were too young to work or became disabled as a child. Basically a needs based program where you’re basically your income and assets that fall below a certain level and you also have to be disabled in order to receive those benefits.

Bill Campbell: [00:03:16] And both of those programs you mentioned that you have to be disabled. Now how does the (Social Security) Administration define disability?

Blair Biser: [00:03:27] Social Security’s definition of disability is probably one of the toughest standards for disability in the world. You’ve probably heard people say that their doctor has told them that they’re disabled or you hear somebody say that they’re disabled because they have a health problem or something like that.

So security defined pretty specifically and their definition is is that you’re disabled if you have a medically determinable impairment or combination of impairments that are expected to result in death or will last 12 months or more and that prevents you from doing your past work in any other work in significant numbers in the national economy.

And that part that last part is what people usually don’t understand. Because most people think that if they can’t do the work they’ve been doing then they should be eligible for disability. But Social Security’s definition takes it a step further and says that you have to be unable to do any type of work existing in significant numbers in the national economy.

And this includes very simple routine minimum wage type work. And so it’s a very tough standard to meet particularly if you’re a younger individual.

Bill Campbell: [00:04:34] If you are eligible, what type of benefits are available for the two programs?

Blair Biser: [00:04:40] So as I said the benefits that are available are through security disability insurance and supplemental security income. And basically the benefits that are offered are monthly income replacement benefits for Social Security Disability Insurance.

The amount of that benefit that you’re going to get each month is going to be based off of how much you’ve paid into Social Security over a period of time. They use… I always describe it as a very complex average that they use to determine how much your monthly benefits are going to be. But essentially the more you paid and the longer you paid then the higher that that benefit it’s going to be. And you have to have enough paid into Social Security recently enough in order to be eligible for that and have enough what we call work credits.

Now for SSI, there’s a monthly benefit as well. But there’s a cap on what that is. Right now that’s a little over $700 a month. But any additional household income, whether earned or unearned, has as a direct impact on the amount of those SSI benefits so essentially for every dollar of earned income that your household has it reduces the amount of SSI that you that you’re eligible for about 50 cents.

And then if you have assets aside from the value of the place that you live and your car that are worth over $2000 for an individual $3000 for a couple that’s going to push you out of eligibility for SSI. So it’s basically a safety net. And essentially and you do still have to be disabled in order to receive that.

Bill Campbell: [00:06:27] In your answer you just had there, you said work credits what does that mean?

Blair Biser: [00:06:32] So when you pay into Social Security each year that you pay in you can earn up to four credits for that year and for purposes of Social Security retirement as long as you’ve earned enough of those credits over the course of your life you’ll be eligible for some amount of retirement benefits again depending on how much money paid and through the years.

Now for Social Security disability those credits after a period of time will expire and generally after five years those credits expire. So once you stop working, if you have a health problem for whatever reason or if you stop working for health related reasons, usually within about five years your… those credits are going to expire and so your coverage for receiving disability insurance is going to expire as well.

I always tell clients to think of it as as like a health insurance policy, so that health insurance policy if you stop paying the premiums it’s going to lapse and it’s going to lapse on a certain date. And if you if you get hurt the day after that insurance policy lapses you’re not going to be covered for medical treatment after it lapses. And so this is the same thing, if once your… once your social security work credits expire, if you if you become disabled after they’ve already expired and you’re not going to be eligible to receive the Social Security Disability Insurance.

Now you may be eligible to receive SSI if your household income and assets fall below a certain level. But again you won’t be eligible for the disability insurance if those credits expire.

Bill Campbell: [00:08:15] It sounds like a lot of the decision relies on doctors. If I don’t have the money to go see a doctor and obviously I can’t get his or her opinion what can I do?

Blair Biser: [00:08:29] Well, as part of the Social Security disability determination process. In other words their process of determining whether or not you’re disabled. There is the possibility that they send you to consultative examinations which means they send you out to doctors that contract… that they contract with for an object physical and or mental, if that’s relevant, examination.

So even if you’re not able to see doctors on your own, they will send you for those consultative examinations. Now those, generally a lot of times those are not ideal because those examinations are very short and sometimes they’re not very thorough or sometimes they can be helpful but it just depends. It’s kind of a kind of a hit or miss thing.

The other thing that you can do is you can go, particularly if you’re having significant excruciating pain or life threatening emergency you certainly can go to the emergency room although that’s not ideal but because again you can you can rack up significant cost by doing that. But again, you can at least get a medical documented… medical documentation. The other thing is there are also low cost or sometimes free clinics in your areas.

And so the best place to find out if you’ve got any of those resources in your area would be probably to call the Department of Social Services because they’re usually going to have those type of resources and the contact information for those resources available.

So that would be the first place to start but you certainly do need to have medical documentation for purposes of proving that you’re disabled. Because again the definition of disability under Social Security’s regulations states that you have to have a medically determinable impairment and medically determinable means that a doctor or some… some medical source has to diagnose you with that condition for social security to consider it.

Bill Campbell: [00:10:29] When I fill out my application and I send it either electronically or through the mail, what exactly happens? Who’s looking at it? What’s being determined? Kind of come share what’s going on that we can’t see…

Blair Biser: [00:10:46] So yeah there are several ways to apply for Social Security disability. You can do it online. There’s an online portal file an application for Social Security Disability Insurance. You can not file for SSI that way but you can also file for security disability and SSI in person at your local Social Security office. You can make an application generally sometimes over the phone. And as you said you can also mail in a paper application and do it that way.

Essentially what happens after you file that application, it’s going to be initially processed by your local field office, your local social security field office. You can find where your local field office is and find a number for Social Security at the W W W SSA dot gov. So after the Social Security office gets the initial application and gets it processed, they then send it to Disability Determination Services and for the state of North Carolina that facility is located in Raleigh.

And there it is assigned to a disability examiner and a team of doctors who gather your medical information, send you for consultative examinations if necessary, and evaluate all of your medical evidence and determine whether you’re disabled under Social Security’s rules. And then once they’ve made that determination, they send it back to the local field office and a letter is sent out to you telling you whether you’ve been approved or whether you’ve been denied.

Bill Campbell: [00:12:23] OK. If I am denied what can I do after being denied?

Blair Biser: [00:12:30] Because this is a federal government program you do have under the constitutional the right of due process to appeal any decision that you do not agree with from the Social Security Administration. So if you are denied you do have the right to file an appeal and the first step of the appeal process with Social Security if you’ve been denied on your initial application is that what’s called a request for reconsideration.

Essentially the request for reconsideration is you telling Social Security you do not agree with the decision and you want to take another look. And so what happens at that point, your case goes back to Disability Determination Services and a different examiner and a different set of doctors reviews your medical evidence, gathers any additional or new evidence that may have occurred since they made their last decision, and they come to a new decision.

If that is denied, then the next step is to file an appeal called a request for a hearing in which you have a hearing before and we call an administrative law judge. And that that takes place at one of Social Security’s offices of Disability Adjudication and Review. And at that point the judge reviews the evidence, reviews the medical evidence, holds a hearing in which the claimant will go before the judge and whether there may be witnesses to testify to certain things.

And essentially the judge makes an completely new determination based on the evidence as to whether you need Social Security’s definitions of disability. At that point, if a person is still denied, after going in front of the judge.

The next step is the person would then appeal to social security the Appeals Council which is located in Falls Church, Virginia.

At that point you’re basically arguing if you don’t agree with the judge’s decision, you can’t reargue the facts, you’re basically just arguing that the judge made a legal error in finding that you’re not disabled. In other words the judge did not apply the law correctly to the facts of your case.

If at that point you still… if the Appeals Council agrees with the judge’s decisions and you’re still denied, then basically you’ve done every appeal that you can within the Social Security Administration. And once you’ve done, that then your only option is to file suit against the Social Security Administration in federal court in which a federal judge will review Social Security’s determination for errors of law based on based on your arguments that you make.

Bill Campbell: [00:15:21] So you went basically through the whole, pretty much, process from initial application to going all the way to federal court if it gets that far. Now what… at what point in that process would you say it’s a smart play to at least talk to a security disability lawyer?

Blair Biser: [00:15:40] Well it all depends on your situation. I mean if we if you don’t feel comfortable with dealing with social security initially or you just feel like you feel like you don’t have the resources or the know how to deal with Social Security from the from the beginning, there are attorneys who who will help you file your initial application. Our office, Hardison & Cochran, we do help lots of claimants file their initial application.

However, if you feel that you can take on the initial application process by yourself and your you’re able to do that on your own, but you’re denied after that first initial application, then it’s pretty important at that point to go ahead and then get the assistance of an attorney. The reason for that is because there’s a lot of it’s a very complicated process with a lot of very technical regulations and Social Security rulings that can mandate how mandate the outcome of a case.

And the attorneys are going to know how to negotiate that process and what exactly needs to be on the file and what needs to be shown in order to get you approved as quickly as possible. Now the odds are just looking at the national numbers the likelihood of you being denied on the initial application to the earlier appeal stages are pretty high.

But the attorney is going to be… the attorney is going to be able to put you in the best possible position to get approved as early point as possible.

Bill Campbell: [00:17:24] OK. And sticking with the process the hearing. I know from, you know, running the website for Hardison & Cochran that one of our most popular pages for Social Security Disability specifically is an explanation of the hearing what it’s like and you can go to the website look at that, but in your own words can you explain what the hearings are like?

Blair Biser: [00:17:45] Sure. So the hearing is a lot of people when they go to hearing they talk about they’re going to be going to court. Well it’s not really a usual typical court… courtroom setting that you see on a TV legal drama like L.A. Law or any of that. Are there any of those that that you’ve seen over the years. It’s not… you’re not really going into a big courtroom setting like that.

These hearing rooms are fairly small meeting rooms you’re not going to be in a big oak paneled room with a bunch of people watching what’s going on. These are very private hearings. Usually the hearing offices are in just regular office buildings.

And when you go in it is a federal office. You have to go through security screens and everything like that before you go in the building, but once you go in and sit down it’s a it’s a fairly laid back process. Obviously it’s going to be a process that you’re going to have some anxiety with because you’ve never been through it before. But it is a fairly informal process.

You go into the hearing room and basically you’re going to be sitting at a table in front of a judge, the judge is going to be sitting usually behind a raised desk. Some judges wear robes some judges choose not to wear robes, it is not a requirement. But you you will be sitting in front of this judge with a microphone on the table in front of you that is going to be recording everything. Usually there’s also a couple other people in the room besides the judge, the attorney and the claimant.

Usually there’s a hearing reporter that’s taking notes and making a recording of everything. And usually there’s also another person in the room called a vocational expert and a vocational expert is essentially a jobs expert and is usually there for for two reasons.

That is to classify the work you’ve done in your past because the type of work that you’ve done Social Security has to determine whether you can go back and do that type of work or not. And and they also were there to answer questions from the judge and from the claimants attorney or from the claimant them self about… about how their physical and mental limitations effect the availability of jobs in the national economy.

Because again Social Security in order to find that you’re not disabled has to show that there are significant numbers of jobs in the national economy that you could do if you could go back into your past work. So the vocational expert isn’t there for that reason.

Generally, the hearings last about on average 45 minutes to an hour. Generally, the judge asks questions, the claimants attorney asks questions of both the claimant and the vocational expert. Generally, a decision is not given on the day of the hearing. It’s very rare that a judge gives a decision on the day of the hearing.

Usually the judge sends the decision out in writing usually within 30 to 60 days after the hearing. And then that that decision will tell you whether the judge’s finding in your favor or or not in your favor.

Bill Campbell: [00:21:04] OK. Last question for you today and this is one I think has… adds lot of confusion with people after they’ve… after they’ve gotten their benefits, are people allowed to earn money?

Blair Biser: [00:21:17] People are under limited circumstances allowed to earn a limited amount of money after they’ve started receiving benefits. Part of the definition of Social Security is that you’re not able to engage in substantial gainful activity.

So Social Security has a… has a bright line number for what substantial gainful activity is based on a person’s monthly income. And for… for this year for 2017 that number is one thousand one hundred seventy dollars a month of gross earnings. So if a person is working and earning $1170 (note: this is a 2017 figure and may be different while reading) a month before taxes are taken out, then they’re considered to be engaged in substantial gainful activity.

And if you’re receiving benefits there are some work return to work incentives such as the trial work period, so a person who’s receiving disability can say they want to attempt to try to go back to work but they’re afraid of maybe losing their benefits altogether if they go back and they’re not able to successfully return after a few months.

So there’s a trial work period that you can return to work at the SGA level for nine months and still continue to receive your ongoing full disability payment while working and earning above that substantial gainful activity level amount.

After that nine months if you continued to work at that level then you’re no longer eligible for your ongoing benefits and the benefits will be discontinued. That aside, people can continue to work on a limited part time basis and if that part time work is the most that they’re physically… physically capable of and they’re still earning below that SGA, substantial gainful activity, amount then yes they can continue to receive their ongoing benefits even though they’re doing the limited part time work.

However, the caveat, an exception to that is that any type of work activity that you do can be used to evaluate whether your disability is continuing. So because once you receive some security disability that you’re not on it forever. Social Security will review your case every few years particularly if you’re younger individual to determine whether you’ve made any improvements medically to determine whether you can return to work.

And so any type of ongoing work activity, even if it’s just part time, can be used in an evaluation along with evaluation of medical evidence and other factors to determine whether you’re still disabled. So you do want to be careful of and mindful of that as if you’re receiving social security disability benefits.

Bill Campbell: [00:24:08] That’s all the questions I have for you today, but before you get off the phone. I want you to tell everybody where you’re at right now.

Blair Biser: [00:24:15] I’m currently in Washington D.C. at a conference it’s a conference for the National Organization of Social Security Claimants Representatives. It’s the largest and it basically is the nationwide organization of the claimants representatives and attorneys who represent people before the social security administration usually have these conferences twice a year. And I’ve been a member of this organization since around 2006.

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