Getting Disability Benefits: Do I Need an Attorney?

When a chronic illness like diabetes reaches a stage where it is difficult for you to continue to work, there are other options. This article discusses three options that, hopefully, may be available to you to replace your lost income.

It goes without saying that the decision to stop working will be one of the most difficult, and emotionally charged, you will ever have to make. If you’re like most adult Americans, your work has helped you define who you are and has given added meaning to your life. You’ve always worked, always been self-supporting, always helped support your family, and always paid your own way. Not working has never been an acceptable alternative in your way of life.

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However, when your doctors tell you that if you continue to work, you may be placing yourself at physical and/or mental risk, it’s time to make some decisions. This article will help you understand what disability benefits programs are available, how they work, and how you can make them work for you.

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Disability benefit programs

There are three main disability benefit programs that can provide you with income when you are unable to work.

• Short-term disability insurance (STD).
• Long-term disability insurance (LTD).
• Social Security Disability Insurance (SSDI).
• A fourth program, Supplemental Security Income (SSI), is designed for people with limited income and resources.

Short-term disability insurance

STD insurance is most often purchased as group insurance by employers. The employers may pay the whole cost, or their employees may pay some of it through payroll deductions. Different STD programs provide different benefits. But all are designed to pay a percentage of your salary if you are not able to work for a short period of time because of illness or injury (excluding on-the-job injuries, which are covered by workers’ compensation insurance). They generally provide you with 50%, 60%, or 66% of your weekly salary for 13 to 26 weeks.

If you are covered by STD insurance, you are eligible to apply for benefits. If you don’t know whether you are covered, ask your employer, who is obligated to give you that information. Your employer is also obligated to inform you of the steps you need to take to apply for your benefits, give you the forms you and your health-care professionals need, and let you know how to complete these forms.

It is very important that you understand the rules for applying for benefits and follow them closely. Don’t be afraid to ask questions of your employer, the human resource representative (if there is one), or the insurance company’s representative about the application procedure.

It’s also very important to know what steps to take if your application is denied. The appeals process differs greatly from one insurance company to another. Consequently, you need to find out exactly what the process is for the company you are working with.

Whatever the process, however, there is one very important step to take immediately if your claim is denied. That step is to inform your health-care professionals that the evidence they supplied on your behalf was not enough for you to get benefits. If they really feel you are disabled and cannot work, they will need to provide additional evidence for your appeal.

Long-term disability insurance

LTD benefits begin when STD benefits stop. Like STD programs, LTD programs differ in the benefits they provide. However, all are designed to provide long-term wage replacement for you when you can’t work because of a disability. They provide a portion of your salary (usually at least half up to a maximum amount) and can pay you benefits for anywhere from one year all the way up to retirement (usually at 65).

LTD programs, like STD programs, are most often available through employers, and benefits are available to you if you have paid into the program. (Some employers pay the whole cost for you.) Again, you’ll need to check with your employer to confirm your eligibility and to find out the steps you need to take to apply for and obtain benefits. LTD programs usually have more, and tougher, eligibility requirements than STD programs, and the application process may be more demanding. Also, there are a number of conditions related to LTD that you should be aware of. For example, even in the most generous programs, benefits stop at age 65, and there is very often a reduction in benefits if you are also receiving Social Security disability benefits.

So, again, ask lots of questions. Be certain you know how the program works for you, exactly what you have to do, and how you have to do it. This kind of knowledge is extremely important in dealing with the LTD process, in which denials occur much more often than in the STD process.

Social security disability insurance

SSDI is a government-run wage-replacement income program for individuals who pay FICA (Federal Insurance Contribution Act) taxes and have a disability that meets Social Security disability criteria. The program provides a monthly disability benefit. The amount of the benefit depends on the individual’s Social Security earnings, and the benefits may continue as long as the disability does. SSDI is the most common and most extensive of all disability benefits programs.

The program has numerous requirements that you must meet before you are eligible to apply for and obtain benefits. Your local Social Security office will, at your request, provide you with information about the rules and regulations you need to follow to obtain benefits. They will also provide you with your earnings information so you can work out how much your benefit will be if your application succeeds.

You can apply for SSDI benefits in four ways:

•Online at www.ssa.gov.
• In person at your local Social Security office.
• By phone to your local Social Security office.
• By phone at (800) 772-1213.

A caution here. If you do not use the online address given above but type in a general search message such as “social security application,” you may find yourself with a list of sites operated by private insurance companies and attorneys. You want to be certain you’re dealing directly with the Social Security Administration.

The way you choose to apply for SSDI will usually depend on how disabled you are. For example, if you have very significant physical problems (such as trouble standing, walking, or sitting), it makes little sense to try to apply at the Social Security office. The process is very time-consuming. The applicants are many, and the lines are long.

However, if you do decide on that method, be prepared. Make certain you have budgeted a lot of time to accomplish what you need to. Don’t put yourself in a situation in which you get frustrated and give up without getting anything done. You don’t really need that additional stress, and you really only hurt yourself if you do give up.

Applying by phone at the local office can also be very time-consuming. Because the office staff take so many calls, the waiting time is often very long.

It has been our experience that it’s best to make the initial application and do the follow-up interviews by phone, using the “800” number listed above. The process is not too difficult, and you can do it in the comfort of your own home. The Social Security worker you speak with will take some basic, personal information, explain the rules and regulations related to your eligibility to get you started, inform you of the objective evidence you need to support your claim, and arrange to send you the paperwork required for completing the application.

Again, don’t be afraid to ask questions, find out answers, know your rights, know what you have to do, know what information you need to have to complete the application, and know what the doctors who treat you have to do and exactly how they have to do it.

Supplemental Security Income

SSI is a government-run income supplement program designed to provide cash to meet the basic needs of people who are aged, blind, or disabled and have limited or no income. In general, SSI acts as an emergency program supplementing income earned from working or received from Social Security, unemployment benefits, workers’ compensation benefits, friends and relatives, or from free food or shelter. You can learn more about SSI at your local Social Security office, at the website www.ssa.gov/ssi, or by calling (800) 772-1213.

Caution: You can make the initial application on your own. You may not need an attorney. Do not fall victim to television ads that encourage you to call a number and hire an out-of-state specialist. If and when the time comes when you need an attorney, most communities have highly qualified local specialists in disability law.

Criteria for obtaining benefits
Before you can obtain disability benefits from any of the programs described above, you will have to prove that you are disabled and unable to perform competitive work as defined by each program. For STD and LTD, you’ll have to prove that you cannot perform the duties required in your current job. For SSDI, you’ll have to prove that you are “totally” disabled and cannot perform the duties required in any job in the U.S. competitive labor market.

Although each program’s criteria are different, they are all established for the same purpose: to measure how well you can function at this time, both physically and mentally; and then to determine whether your functioning levels allow you to work at this time. “Functioning” is the key word here. What it really means is “What can you do now and how long can you do it?” as it relates to the physical and mental demands of work.

Physical demands usually include your ability to lift, carry, walk, stand, sit, climb, balance, stoop, bend, kneel, crouch, crawl, reach, handle, grip, pinch, finger, feel, talk, hear, and see.

Mental demands usually include your ability to reason; learn, process, retain, and express information; make appropriate decisions; behave in an appropriate manner; maintain emotional control; and understand and carry out instructions.

Also important in all three programs is your ability to perform what are called the Activities of Daily Living (ADL). These activities usually include the ability to bathe, dress and undress, eat, transfer from bed to chair and back, maintain continence, use a toilet, and use a cane, walker, or wheelchair.

To determine whether you meet its criteria for being declared disabled, each program requires that you present a great deal of information related to your diagnosed condition(s). The most important thing you need to know about that information is this: It must be objective, valid, reliable, and impossible — or almost impossible — to dispute. That means that a letter from your primary-care physician (PCP), endocrinologist, or other specialist stating that you’re disabled and cannot perform competitive work will not be enough. The information you provide needs to include the results of x-rays, laboratory work, and MRIs; the results of specific treatments and/or examinations (such as examinations of psychological, vocational, or physical capacities); and any other objective information that will help back up your disability claim.

For example, it has been our experience that color pictures of affected body parts (hands, arms, legs, ankles, feet, and so on) can often clarify the descriptions of disability that your specialists give and improve your chances of having your claim approved. It has also been our experience that if all your “experts” have reviewed and are in agreement with all the information you are submitting, it is much more difficult for the adjudicators — the people judging your claim — to deny the claim. The problem is that it is extremely difficult to make sure all your experts are on the same page, and it can be expensive. However, it is well worth the effort if you can get it done.

All of the above means you’ll need to work very closely with the health-care professionals who treat you to be certain they understand the importance of submitting all the available objective, valid information they have and of explaining, in detail, how that information shows that you are disabled. It’s also important for them to understand that they need as well to outline the specific risk(s) you face, physically and/or mentally, if you continue to work.

Given how busy the doctors and other professionals who treat you are, you’re going to need to help them in two important ways:

• You’ll need to outline the steps they have to take (based on the information provided by your employer, human resource person, insurance company representative, or Social Security office).

•You’ll need to monitor their efforts to be certain that they have taken those steps. This means you should be certain they have received the necessary forms, be certain they have included the necessary, objective information, and be certain they get that information to the adjudicators in a timely manner.

Specialist and other evaluations

The government has hired specialists to review your file. In our clinic, we see diabetic patients with retinopathy, large blood vessel vascular conditions, kidney disease, peripheral neuropathy, and loss of function in the feet as a result of poor circulation due to diabetes. Thus, it is extremely important that you provide the state agency with as much specific information as possible about your diagnosis, its symptoms, and how these symptoms affect your ability to work.

There are two additional specialists’ evaluations you should consider: a psychological evaluation and an evaluation of your physical capacities. And in some circumstances, an evaluation from a work supervisor is helpful.

Psychological evaluation

In our experience, a large percentage of people with severe diabetic conditions have psychological problems. The most common is depression and anxiety. They may have frequent crying episodes, isolate themselves from family and friends, and report and demonstrate problems related to concentration and memory. They may have trouble learning, retaining, processing, and expressing both new and old information, report and demonstrate high levels of physical and mental fatigue, and sleep for long periods of time daily. And, in many cases, they may report thoughts of suicide. Also, they often report taking numerous medicines, many of which bring on side effects. In many cases, it is difficult to separate psychological problems from those that may be caused by the underlying medical illness. For example, a patient with a stroke in a certain area of the brain may suffer from personality and memory changes.

It goes without saying that all of the above psychological symptoms (as well as the illness itself and drug side effects) can have a significant negative effect on an individual’s capacity to work successfully. In these cases, a psychological or psychiatric evaluation is almost a “must.” If one has been not been done, we always recommend that the treatment team refer the individual for one. These evaluations can provide objective information about your ability to work and can be extremely helpful in obtaining benefits. Although your treatment team can report on psychological symptoms, the information usually has more weight when a specialist in the field presents it.

If you find that you are having difficulty concentrating and making decisions, you may need an advocate to go with you to apply for benefits. A trusted family member or friend may be invaluable, both emotionally and intellectually here.

Physical capacities evaluation

While your treatment team can provide information about your general capacity to perform the physical tasks associated with your work, such information is sometimes looked upon as being more subjective than objective. It can be better in some cases to get professional physical capacities evaluation.

Vocational specialists and physical therapists are the health-care professionals who most often do physical capacities evaluations. They use standardized ways of measuring an individual’s capacity to meet the physical demands of work. The results of such an objective evaluation, especially when there is agreement with your treatment team, can help you obtain benefits.

If you have any of the psychological symptoms described above or any significant problems with the physical demands of work, it may be worth your while to discuss psychological or physical capacities evaluations with your treatment team. The staff in our Disability Assessment Research Clinic works closely with many professionals who provide psychological and physical capacities evaluations. As a full service clinic, we also conduct extensive medical/psychological/physical evaluations of patients with diabetes referred for services. There are certainly specialists in your area who can perform these same evaluations.

Supervisor evaluation

If you are applying for STD or LTD benefits, your supervisor or manager can play an important role. We have always recommended that applicants attempt to obtain a strongly worded letter from an immediate supervisor or first-line manager stating that the individual cannot perform specific duties of his or her current job. Such a letter can be extremely helpful, especially when it is combined with objective evidence from the individual’s treating professionals.

An important recommendation

At this point, let us give you some advice that may help you through the very difficult and often very long and frustrating application process for each disability program.

Without exception, having to apply for disability benefits comes at a time when you least feel like doing it. You’re probably in pain. Your physical and mental energy may be significantly reduced. You may be having significant problems to do with concentration and memory. You may even be finding it difficult to make simple decisions. On top of this, you may very often be frustrated, angry, and short-tempered. Our caution is this: Don’t let these symptoms and emotions, especially your anger at the application process, get in the way of your judgment. Be smart. Be patient. Be thorough. Don’t take any shortcuts. Know what you need to do and do what needs to be done. Most of all, don’t quit on the process.

However — and this is extremely important — if you feel you cannot do it alone, get help. There are local disability attorneys and other advocates who can assist you with your application. Do not fall victim to television ads, as stated earlier in this article. You need either an attorney or an advocate you can relate to on a face to face personal basils You do not need a person you would communicate with solely by telephone/fax/email or other remote access.

Attorneys and advocates

Obtaining disability benefits from any of the programs discussed in this article has become increasingly difficult, and in some cases impossible, without the help of an experienced and knowledgeable attorney or advocate. The programs’ rules and regulations have become more and more complex, to the point that an individual has little or no chance of finding his or her way through the procedural maze. This is especially true if your application is turned down and you decide to appeal. The appeals process frequently has additional rules and regulations and requires even more information than the initial application does.

Hire a local disability attorney/advocate

For these reasons, it probably makes sense for you to consider having an attorney, or at the very least an experienced advocate, assist you with your initial application and throughout the entire process. Experienced attorneys and advocates know the rules and regulations. They know what the different programs require. They know what evidence is needed. And they can work with your health-care providers to be certain that the right evidence is part of your application. In addition, local attorneys and advocates usually know the judges and adjudicators in the system. This can often improve your chances of having your claim accepted.

Unfortunately, attorneys are sometimes reluctant to represent individuals seeking STD and LTD benefits, generally because it’s difficult for them to recover their costs. Consequently, if you are applying for STD or LTD, it might take you a while to find an experienced attorney to take your case. It’s important to note here that very often, the more objective, valid evidence you have and the more experienced your professional specialists are, the better your chances of getting an attorney to work with you.

Advocacy resources differ from city to city. However, most major population centers have voluntary agencies that can assist you through the application process. In Arizona, for example, an excellent program in the greater Phoenix area is Arizona Bridge to Independent Living (ABIL). Similar independent living programs, centers, and agencies are available in most cities. Also, your local Diabetes Organization is an excellent source for locating individual advocates and/or advocate groups. (To find contact information for your local Diabetes Organization, go online to search for diabetes organizations.

The fee for an attorney who represents a claimant who applies for SSDI/SSI is set by Federal Law. It is 25% of the first check the successful applicant receives. Advocacy groups may charge a small fee or no fee at all. Be sure to ask about costs when seeking assistance from a non-attorney agency.

Some closing thoughts

We sincerely hope that this article helped you understand the realities of applying for benefits:

• Initially, obtaining disability benefits is not easy.
• The programs are difficult, demanding, and sometimes adversarial.
• Getting through the application process requires a combination of tenacity, knowledge, and patience.

To have the very best chance of getting benefits, you should know exactly what each program requires you to do and make sure you do it. And you need to be certain that your treating health-care professionals know what information to submit and they submit it in the appropriate way.

If you feel you can’t do it all by yourself, or with the help of family and/or friends, you need to obtain the services of a knowledgeable, experienced local attorney or advocate. This is especially important at the appeal level.

Good luck!