By: Anna Louise Hawes

One of the things Burnett & Driskill does daily is speak with people who want to know if they should apply for disability.  When I look at a case, there are three big issues I am looking for: program financial requirements, severity and timing.

Program financial requirements

This is the easiest because it comes down to whether a person has paid into the system long enough and recently enough or whether the person lacks resources.

Severity

This category is the hardest to evaluate.  Social Security has a very tough definition for disability. It is not the same definition used by other programs or in every day speech. For Social Security, disability is the inability to maintain substantial gainful employment. That means, Social Security will be evaluating whether a person can be a door greeter, an eye glasses assembler or even a copy machine operator.

An example of how difficult this definition is: let’s say Paul has broken his leg and undergone surgery.  During recovery, he contracted a bad infection that caused him to be on Prednisone, and eventually he had to have a total knee replacement because of avascular necrosis in the joint. Despite the significant medical problems Paul is having, it is possible that he will be found “not disabled” because even with all the leg problems, it is likely that he could sit and therefore do a sit down type job. However, with the right judge and medical records, it is also possible he would be disabled because of the pain associated with his injuries.

Many cases that ultimately are found to be “not disabled” are based upon severity.

Timing

This issue is perhaps the least understood by disability applicants.

The rules for “when” a person becomes disabled can be very confusing and can be contradictory.  For instance, a person who is working is not likely disabled, but if they are “working” because they are on a payroll but actually not going to work because of FMLA or short-term disability, then they may be disabled.

Many people jump too quickly into an application. Social Security defines disability as a condition that lasts for 12 months or ends in death. Just because someone has a diagnosis does not mean that they are disabled. For instance, I had stage 2 Hodgkin Lymphoma cancer. From diagnosis to declaration of remission, my cancer lasted eight months. I never reached the 12 month requirement and therefore was never disabled under the Social Security definition. Another example, I had a gentleman who was diagnosed with diabetes and argued that he was disabled because diabetes ends in death. However, millions of Americans live with diabetes daily and manage to work. Filing at the time of the diagnosis was too soon in his case.

There has to be medical records to back up statements. When a major life event happens, such as being hospitalized for car wreck, many patients file for Social Security, often with the help of the hospital. The hospital does this to increase their chances of getting an insurance payout. However, because they file for disability during a crisis moment, there is often times not a medical trail. After all most people don’t go to the doctor monthly leading up to a car wreck in anticipation that they will be severely injured tomorrow. And even if they had been regularly seeing the doctor, the records will not show the effect of a wreck that has not happened. Because there is limited medical records on the injury, it is too soon for Social Security to make a decision.

Social Security is a long process. The first decision can take six months. Waiting for a judge can mean a two-year wait. Sometimes people are in a rush to file for disability and start the long process. However, in a severe enough case, waiting a few months and getting the right medical documentation may mean getting a favorable decision in six months instead of waiting for years. It can be frustrating to wait up front, but I have found better success with proper timing of a case.

What does this all boil down to? If a person calls my office and is advised to see a doctor or wait a few months, it is possible that they are on the cusp of being disabled but the timing or one of the other factors is not quite right.