National Transition Network
Parent Brief - November 1998 Part III of III
National Transition NetworkParent Brief - November 1998 Part III of III |
This is the third in a series of three Parent Briefs addressing Supplemental Security Income. The first is titled SSI: A Bridge to Work; the second, So You Have Decided to Apply. All three are available from the National Transition Network.
The following information about Supplemental Security Income (SSI) appeals was written for young adults with disabilities and their parents or advocates. If you applied for SSI benefits and were denied through the application process—please read on.
Many people are denied. The Disability Determination Service reports that in the state of Minnesota 60% of the original applications are denied. Across the nation the denial rate is 70%. Some of these initial denials are overturned when appealed.
Four levels of appeal are available: Reconsideration is the first level. The reversal rate at this level is approximately 14%. When denials are appealed at the second level, which is a hearing before an administrative law judge, the reversal rate is 60%. Eighteen percent (18%) of the cases denied at level 2 are sent on to the third level—a review by the appeals council. Of those 18%, 27% are sent back to level 2 to be reheard. The Appeals Council carefully examines your case and will grant, deny, or dismiss your request for review. If the Appeals Council grants your request for review, it will either decide your case or return it to a different judge for further actions, which could include another hearing and a new decision. The fourth level is federal court action. Because level 4 is costly, appeals are rarely taken to this level. Most people who appeal are granted reversals at the first or second level. Before appealing, make sure that you meet the basic financial eligibility requirements. If you do, and you have a disability that limits your ability to work, it is to your advantage to appeal. As the above statistics indicate, levels 1-3 of the appeals process have worked in some cases to overturn a denial for SSI benefits.
As you already know, the application forms are lengthy and call for details. The application may have taken a great deal of time and energy from you or your family members or an advocate who assisted you, but if it was incomplete, the application could have been denied. If this was the case when you applied for SSI benefits, you now have the opportunity to provide more detailed information. Some common reasons for denial are:
In the following sections of this Parent Brief, we will use specific examples to illustrate some of the reasons for denial and how the appeals process helped individuals obtain a favorable decision from SSA. In addition, the tear-off panel in this Parent Brief describes the four levels of the appeals process.
The information you provide should include a clear description of your disability and functional limitations. Some examples are:
SSA arranged a medical consultation for Chad to provide more information on his disability. Because of this, he received a favorable decision from SSA and did not have to go through the appeals process.
Chad had done some assembly of paper products while in school. He found the part-time work enjoyable and liked earning his own spending money. Since he was good with his hands, his school counselor suggested that assembly work would be a good place to start when he graduated from high school. He was hired as a full-time worker at a local manufacturer a short bus ride from his home.
He was not on the job long before his supervisor took him aside and warned him of his late arrivals and his lack of attention on the job. Chad said he would try harder. However, he still couldn't get to work on time and found it hard to focus. Often his mind would wander while waiting for the bus. He would not see the bus go by, or he would ride past his bus stop and fail to get off at work or at home. He did not participate with co-workers during break periods or keep up with old friends. When in a group, Chad sat to the side and faced away from the activity. At his supervisor's suggestion Chad consulted with his family doctor, Dr. Stevens.
Dr. Stevens noted withdrawal and anxiety but did not relate this to Chad's difficulty at work or diagnose this as depression. He believed a depression or mental illness label might discourage and depress Chad even more. Instead, Dr. Stevens urged Chad to go out with friends and join groups that share his interests. He believed Chad could break out of his depression by finding more enjoyable activities in which to participate.
Chad received three warnings from his supervisor because of tardiness, absences, and poor attention to details. After each warning, Chad would improve for a few days but lacked the ability to sustain the improvement. Chad's problems kept expanding in his mind and he became totally engrossed in his difficulties. His supervisor again took him aside and stated that he had no choice but to terminate him. Chad was relieved.
At home, Chad stayed in his bedroom, seldom dressing, bathing, or coming out to eat. His parents could not cheer him up. They were worried and knew Chad's problem was more than losing a job. They feared that his current mental state would interfere with any employment opportunities. Because of his difficulties, they believed Chad could qualify for SSI.
They helped Chad apply for SSI. The medical reports from Dr. Stevens were sent to SSA. Soon after, Chad received a notice from SSA explaining that they did not have complete medical information concerning his disability and how it interfered with his ability to work. At SSA's expense, a consultation was made with a psychiatrist, Dr. Forest.
Chad's parents accompanied him to the scheduled appointment and participated in the meeting. It was difficult for Chad to articulate his feelings to the doctor. He told Dr. Forest that he saw no point in living. His parents added some details about Chad's difficulties in keeping a job and his behaviors at home and at work. Dr. Forest said he would submit his report to SSA.
Three months later Chad learned that he was eligible for SSI. In the meantime, Chad saw a private psychiatrist who diagnosed him with severe depression and began a treatment plan. During the period when Chad could not work because of his disability, SSI benefits provided him some financial security and medical treatment for his illness. When Chad returned to work, almost two years later, his financial benefits were reduced. He continued to receive the medical assistance necessary to pay for his prescription drugs, therapy appointments, and other medical requirements. His family provided supports to help him maintain his job during reoccurring periods of depression. Chad also developed methods for keeping his job by requesting accommodations from his supervisor, such as some flexibility in work hours or a leave of absence when necessary.
With the additional medical information provided by Dr. Forest, Chad's application for SSI benefits was approved and he did not have to start the appeals process.
Current school-to-work transition programs provide many supports that enable students to work and have positive experiences. Reports from teachers, counselors, employers and parents usually emphasize the individual's strengths without describing any of the limitations and supports utilized. Data on all assistance being provided to you and your employer should be noted. If you need built-in supports or a job coach, are these services fully described? Give complete details about services such as: Interpreters; assistive technology; flexible hours; work behavior guidance; co-worker and/or employer support; limited duties; rest periods; special transportation; adapted equipment and devices; alternative communication methods. See Examples 2 (below) and 3 (next page).
Example 2: Reconsideration—Level 1 of the Appeals Process
Illustrated below is a situation where the applicant, Kara, was denied SSI benefits. She and her parents notified SSA of their intentions to appeal. They submitted additional information on how her disabilities affect her ability to work and supports that she needs to succeed in the workplace. With this new information, Kara received a favorable decision.
During Kara's school transition program, when she was 17, she had the opportunity to work at a fast-food restaurant. She could perform preparatory duties such as mixing coleslaw, dispensing foods into appropriate containers, and labeling the containers. Kara voluntarily assisted her co-workers when they fell behind by cleaning up and sanitizing areas. She was good at helping out when things got busy and liked to keep the work areas clean.
Kara had a brain injury that affected her speech, learning, and balance. Her speech was not easily understood. She could walk for short distances despite an uneven gait. She had short-term memory problems that made it difficult for her to follow a series of instructions. Kara was afraid of the stove and could not carry or lift heavy things. The manager of the fast-food restaurant was familiar with disability issues and, with the job coach's help, he structured Kara's work activities to reduce stress, simplified instructions, and used pictures on index cards to remind her of task order. Kara's co-workers reflected the manager's attitude, noticed when Kara needed some assistance, and frequently joked and talked to her as they learned to understand her speech.
Six months later the manager was transferred. Kara's new manager liked Kara but could not understand her speech. He was concerned about Kara's balance and feared she might hurt herself by bumping into something hot. If he felt she was too close to the stove, he would physically move Kara by taking her by the shoulders. Kara was uncomfortable with the physical interventions and began to fear his presence. She became withdrawn at work and stopped interacting with her co-workers. This discomfort started to affect her work. She did not complete her more difficult tasks or fill the containers of food consistently. Kara sensed her supervisor's disapproval in her work, and this increased her anxiety making it more difficult for her to talk.
The manager attempted to communicate with Kara about her performance, but Kara started crying when he interrupted her reply. She pushed a tray of prepared food to the floor and retreated to the storage room. Her job coach tried to resolve the misunderstanding between the manager and Kara, but Kara refused to return to work.
Kara had not been on SSI as a child because her parent's income had been too high. Now that she was almost 18, her parents decided to fill out an SSI application on her behalf.
Kara's doctor described her range of motion as "better than might be expected” for her disability. He noted limitations for work regarding lifting and heights, but did not describe additional difficulties she might experience if employed. He alluded to her communication problems, but because he had known her for many years and understood her adequately, he did not go into any detail. Kara's application was denied because it did not contain adequate information on how her disabilities affected her ability to work.
After the denial Kara's parents decided to appeal for reconsideration. They submitted additional information from their observations of Kara concerning her communication difficulties and behaviors, such as tantrums and crying, when she was feeling stressed. They included information on Kara's short- term memory loss, which made it difficult for her to follow oral or written instructions. Her parents also contacted Kara's job coach. He wrote up the supports Kara needed at work and explained her difficulty in staying motivated on a job without structured positive reinforcement from her employer. Since Kara was planning to remain in the school transition program through age 21, her job coach was confident that other jobs would be found, but mentioned that the fast-food restaurant environment might not be the best job site for her. He emphasized that Kara would require continued supports from employers, co-workers and job coaches for her to succeed.
This additional information on Kara's work behavior was submitted and she received a favorable decision at the reconsideration level.
Example 3: Hearing—Level 2 of the Appeals Process
Marci was denied SSI benefits. When she and her family went through the first level of appeal—Reconsideration—they didn't know they could add more information to her file. So, Marci was denied benefits again because her file didn't contain information on all the supports she receives in order to work. They appealed SSA's decision. This time, with the help of an attorney, Marci and her parents provided SSA with detailed information about Marci's limitations due to her disability and the supports she needs in order to participate in the workplace.
Marci is 22 years old and has a cognitive disability. She is socially outgoing and enthusiastic, and loves helping people. Marci works in a small office part-time, 15 hours a week at $6 per hour and receives no benefits. She would like to increase her work hours so she can earn more money and receive vacation and health benefits. Marci's employer is willing to train Marci for more duties if she can improve her hygiene and impulsive behaviors. Marci is proud of her office job and believes she can soon work full-time and support herself.
Marci lives with her parents but is determined to be independent, work full-time, and live on her own. Her parents are also working towards this goal but realize that it might take Marci quite awhile to be able to manage her own place and a full-time job. Her parents are afraid that if she loses this job she may not easily find another.
Marci's parents and her job coach provide many work supports. These supports were not included in her initial SSI application, thus she was denied benefits. Her job coach intervenes regularly with Marci and her employer and will likely be required for long-term support . When the family went through the first step of appeal, reconsideration, they did not know that they could describe these supports or add more information to Marci's file. They assumed many of the supports provided Marci were understood by the SSA representative. It was also not made clear how Marci's behaviors and limited skills prevented her from working more hours. Marci received a denial at the first level of the appeals process—reconsideration.
The family then prepared for the next step of the appeals process, the hearing, by choosing an experienced attorney who understood SSI disability issues. He was realistic with Marci and talked to her about her difficulties due to her disability as well as her strengths. He realized that Marci is very talkative about all the things she can do and that her parents and service providers have never been successful in getting her to discuss work problems realistically. The attorney questioned Marci's parents on the supports they provided so that Marci could work. He went over the SSI file and requested additional information on job accommodations from both her employer and job coach. He learned that grooming issues, talk appropriate for the worksite, and transportation arrangements are still issues for Marci, and that she receives ongoing support in those areas.
The attorney discovered that Marci gets angry and leaves work early if her supervisor attempts to correct her work or speak to her directly about her work behaviors. For this difficulty, Marci and her job coach work on behavior and anger management strategies. He documented that Marci's behaviors and limited work skills prevented her from increasing her work hours. The attorney put all this new information together for the hearing officer.
Marci's job coach agreed to attend the hearing so she could provide additional explanations on some of the strategies she provides Marci and Marci's employer.
At the hearing the judge consulted the paper work he had on file. He asked Marci's attorney many questions regarding the new information and then spoke to Marci. He listened to her describe her duties, hours, and work goals. Marci described her job and stated that she loved shredding paper and using the photocopy machine. She knew that she talked too much sometimes, and could be disruptive when she was happy or angry about something. The judge then listened to Marci's job coach describe the services that were being provided. The job coach specifically described how she worked with Marci and how she worked with the employer. She gave examples of how she assists the employer in reinforcing positive work habits.
The judge complemented Marci on her good work attitude and goals. He closed the hearing by stating Marci would have a written decision in a couple of weeks.
If you receive a letter from SSA denying your application, you may appeal that decision. You must respond within 65 days from the date on their letter, or 60 days from the date you actually received the letter. If the letter was forwarded to you, or in some other way delayed so you are unable to respond within 65 days of the letters date, you may be required to verify when you actually received the letter. Directions on how to appeal will be included with the notification. Your first step is to state in writing that you plan to appeal the decision and to mail that statement to the address on the denial letter.
At each level of appeal, to understand why the denial was made, you should request a copy of your file and review all information. Request that information as soon as possible and check to see if it is complete and accurate. You may submit any additional information on your disability at any level of the appeals process.
1st Level—Reconsideration
Within 60 days of receiving SSA's initial denial you must request, in writing, reconsideration. In the reconsideration process all of the documentation will be reevaluated by a disability examiner who was not part of the initial determination.
At this level the reversal rate is 14% (about 1 out of 7 appeals are won). SSA will send you written notification of the reconsideration decision. You must go through this step before you can have a hearing before an administrative law judge.
2nd Level—The Hearing
If you disagree with the reconsideration denial, the next step is the hearing before an administrative law judge. You must request a hearing within 60 days of receiving the reconsideration denial. This is the only appeal level where you will actually have the opportunity to communicate directly with a decision-maker. It is important that you attend this hearing, and it is assumed that you will, unless you write and state that you cannot or do not want to attend. If you do not attend, the judge will make a decision based on the information from the reconsideration level and any new information that you might provide.
The length of time that it takes to have a hearing scheduled may vary from 3 months to a year. You will be notified of the time and place of the hearing. A hearing can be postponed if you are ill, the weather makes transportation difficult, or an important witness is not available at that appointed time.
You do not have to go alone. You may bring an advocate, family members, witnesses and/or have a representative such as an attorney who specializes in SSA disability cases. A witness could be someone such as a co-worker, physician or anyone else that you believe would help explain your disability and how it results in limitations to work. The judge may ask you, your advocate, family members, or witnesses questions about your disability, and how your disability affects your daily life and your ability to work. You or your representative(s) may ask the judge to clarify any questions he/she asks. You or your representative may also ask questions of the witnesses to explain your disability and how it places limitations on employment. Before the hearing make sure that all the medical records are complete. Specific medical questions will usually not be asked if the supporting medical documentation is clear.
Other people at the hearing will include the court reporter who tapes the proceedings, and medical or vocational experts if the judge brings them in to help make a fair decision. There will be no jury or spectators. There is no attorney representing SSA, so there will be no cross-examination involved. The hearing will usually last about an hour. You will receive a written notice of the judge's decision in about eight weeks. This level has a 60% reversal rate (3 out of 5 appeals are won).
3rd Level—Appeals Council Review
If you disagree with the judge's decision you may ask to proceed to the next appeal level. The request for a review by the Appeals Council must be done within 60 days from the date you receive the hearing denial.
The role of the Appeals Council is to review the administrative law judge's decision. You will not be present during this review process. The council will review all the submitted documentation and the judge's decision. The council may make a decision or they can return your case to another administrative law judge. This could mean another hearing before a different judge. You will be notified in writing regarding how your case will be handled.
4th Level—Federal Court Action
If you disagree with the Appeals Council's decision, you may appeal again by filing a lawsuit in a federal district court. It is important to have an attorney help you with this step. You must file an action in the Federal Court within 60 days after you receive the Appeals Council decision. You will not appear in court and no additional hearings are conducted. The Federal Court reviews all the information you have provided and makes a decision. Appealing at this level, however, can be quite costly. A Federal Court action may be taken all the way to the Supreme Court. Although this is unusual, once every year or two, a disability case is decided by the Supreme Court.
Why Appeal?
It is to your advantage to pursue the appeals process if you are denied SSI benefits. Statistics for levels 1-3 show that this process has benefited many people who were initially denied benefits. Level 4, however, because of its costly nature, may not be a realistic option for most individuals.
It is important to remember that even if you go through the appeals process and are denied, you may apply again for SSI benefits in the future. You may meet SSI income and disability eligibility requirements if your situation changes.
. . . This person may be an advocate, parent, attorney or other individuals who are familiar with SSI and your specific situation. SSI will work with this person just as they would with you. This person can come with you or go for you to any interview, conference, or hearing. They may help get information from your SSI file such as medical records, or statements from teachers or other support specialists. You can even have more than one representative if you choose. Your representative(s) cannot charge or collect a fee from you without first getting written approval from SSA.
. . . Once you choose a representative, you must inform SSA in writing as soon as possible. To do this, you can get a Form SSA-1696-U4, Appointment of Representative, from any Social Security office.
. . . You must give the name of the person you are appointing and sign your name. If the person is not an attorney, he/she must, in writing, give his/her name; state that he/she accepts the appointment; and sign the form.
. . . Your representative will receive a copy of any decision made on your disability claim and assist in determining whether an appeal would be to your advantage. Your representative can:
