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'No' isn't always the final word

March 1999

A note from TheBody.com: Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!

When it comes to determining eligibility for Social Security benefits, getting "no" for an answer is not necessarily the final word.

If an applicant for Social Security benefits already has received a denial at the Reconsideration level, the next step is to request a hearing before an administrative law judge (ALJ).

The applicant may wish to retain an attorney, but can also retain a representative who is not an attorney. The applicant can even designate more than one representative (which normally might be the applicant's care-giver and an attorney).


Watch that clock!

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Applicants usually have only 65 days to request the hearing (this includes an additional five days for mailing). The time is counted from the date stamped on the Notice of Decision the applicant will have received in the mail from Social Security. If the claimant tries to file the forms after 65 days have passed, the Social Security office frequently will refuse to accept the forms, requiring the claimant to file a new application instead.

In rare cases, an applicant will be allowed to complete a waiver, asking that Social Security accept the forms even though the 65 days have passed.

To request a hearing, applicants must fill out the Request for Hearing by Administrative Law Judge (Form HA-501-U5) and Claimant's Statement When Request for Hearing Is Filed and the Issue Is Disability (Form HA-4486). Both of these forms are available at your local Social Security office, AIDS Project Los Angeles' Benefits Department or AIDS Service Center.


Why request the hearing?

The purpose of requesting the hearing is to ask the ALJ to review the current application, to review the medical records and to hear a claimant explain why he or she is disabled. The ALJ will consider all of the documents and verbal testimony and then decide not only if the claimant is disabled (under Social Security regulations) but also the "onset date" (the date the disability began).

By asking for the hearing, the claimant is asking the ADJ to agree that the claimant was disabled as of the onset date. The onset date often is the same as the claimant's application date, but if the ADJ agrees that the onset date pre-dates the application, the claimant may be entitled to benefits for as much as one year prior to that application date.

By filing a new application, the claimant closes the previous claim, and any possible benefits which might be awarded would be for a shorter retroactive period. By filing a new application, the claimant may lose possible retroactive benefits.


Hurry up, then wait

Claimants who are HIV-positive or who have AIDS are classified as TERI cases; these claimants suffer from a Terminal Illness and Social Security is required to speed up the processing of their application. Scheduling a hearing, however, can take as long as one year simply because there are so many claimants requesting hearings.

Use this waiting period to gather the medical records and ensure that your file is complete and up to date. Be sure that Social Security has your current mailing address, so that you receive all notices promptly.


Get those medical records!

Applicants have the right to submit new evidence (which usually consists of more recent medical records) as late as the day of the hearing. According to Social Security, the major reason why a claimant's case is denied is that there are insufficient medical records in the file to prove the claimant is disabled.

It, therefore, remains crucial that the claimant regularly ask his/her doctors for copies of the most recent records, including laboratory reports and psychological reports.

The claimant should review these records. Is the provider writing down everything? Are all of the symptoms listed? Are the notes legible? Are the recent lab reports coming in? To supplement the records, claimants can ask their provider to write a letter which includes a list of symptoms and diagnoses.

Psychological or psychiatric records may not be released to claimants themselves but to an authorized representative instead or to Social Security. APLA's Benefits Department and AIDS Service Center can assist claimants with obtaining these records.

The claimant then should make an appointment at Social Security's Office of Hearings and Appeals to review his/her file. Check to make sure that all of the recent medical records are in the file. Note which records are missing. Then make arrangements either to have copies sent straight to Social Security by the doctor, psychologist or psychiatrist, or deliver the copies personally to make sure they are filed properly.


Social security doctors

Social Security frequently will send claimants a notice asking them to be examined by one of their doctors or psychologists.

By law, you can request that your primary treating doctor or psychologist be substituted. AIDS Service Center or APLA's Benefits Department staff members can advise claimants on the procedure to switch the appointment with a Social Security medical provider to an appointment with the claimant's personal medical provider.

If the claimant plans to be examined by the Social Security provider, the claimant must keep this appointment and truthfully answer any questions. Do not be surprised if the examination takes 15 minutes or less. From this, the provider may produce a 6-10 page evaluation of the disability claim.

You will have a chance to testify at your hearing and you can tell the ADJ about this examination. If you believe that the more detailed notes from your regular provider are a better description of your condition, be sure to tell the ADJ!


Experts at the hearing

A medical or a vocational expert may be asked by the ADJ to appear at the hearing. After reviewing the claimant's Social Security file (both the work history and the medical records), they will tell the ALJ whether the claimant in fact is permanently disabled, or whether there is some other kind of job the claimant could perform.


Judicial discretion

Under Social Security regulations, the ALJ is allowed a lot of discretion. S/he can listen to any testimony and accept virtually any kind of evidence in the consideration of the claimant's case. The Administrative Law Judge may simply look at the claimant and make a general observation as to whether this person "looks" sick.

If medical records are spotty, brief or lack detail, the ALJ may be unable to conclude that the claimant is disabled under Social Security regulations. As sick as the claimant will look, by law, there must be a medical record to document the disability and "back up" any conclusion by the ALJ that the claimant indeed is disabled.


The decision

Weeks, and sometimes months, may pass before the ALJ prepares the written Notice of Decision.

Three decisions are possible:

  • Fully favorable. (Yes, the claimant is disabled, and the disability began as of the claimant's onset date.)
  • Partially favorable. (Yes, the claimant is disabled, but the onset date is later than the date claimed.)
  • Unfavorable. (No, the claimant is not disabled.)

At this hearing level, at least 80 percent of all claimants (not just those claimants with HIV or AIDS) who have been denied Social Security benefits are determined to be disabled and entitled to benefits.


Where's my check?

The ALJ only decides whether the claimant is disabled and the onset date of that disability. Once this decision has been made, if part or all of the claim is for Supplemental Security Income, the claimant will get a notice to come to his/her local Social Security office for an appointment.

The purpose of this appointment is to confirm any financial eligibility requirements (since Supplemental Security Income is based on financial need). The claimant will be asked how s/he was living during this 1-2 year waiting period. The claimant will need to bring rent receipts and other proof of expenses and any income.

Regardless of whether the claim is for Supplemental Security Income, Social Security Disability Income or both, if the claimant has been receiving General Relief and/or Food Stamps, Social Security will have a record and this money will be repaid directly to the county out of the claimant's retroactive benefits.

If the claimant retained a private attorney for representation during the appeal procedure, the attorney's fee of 25 percent (with a maximum fee allowance of $4,000) usually is deducted automatically from the claimant's retroactive benefits as well.

The first Social Security on-going benefits check normally is issued the month following the appointment at the local Social Security office. If the claim does not include Supplemental Security Income (such that no appointment at the local Social Security office is required), the first on-going benefits check normally is issued the month following a letter sent to the claimant (which outlines the benefits to be paid).


'Not disabled'?!

If the claimant receives an unfavorable decision from the ALJ, another appeal is possible.

This time, no hearing will be held. The file, and any new medical records or other documentation the claimant wants to submit, will be sent to the Appeals Council in Falls Church, Va. The reversal rate at this level is less than 10 percent.

Remember the part about the ALJ having judicial discretion? They are allowed a lot of leeway in reaching their decision. For this reason, the Appeals Council rarely issues a reversal.

If the claimant does not receive a reversal from the Appeals Council, the only remaining options are either to file a lawsuit in federal court, or to start over and file a new application for benefits.


Where does the lawyer come in?

When a claimant receives a reconsideration denial, it may be a good time to consult an attorney. HALSA provides free legal representation at these hearings to most claimants who are HIV-positive or who have AIDS.

The claimant may wish to hire a private attorney. Most agree to accept such Social Security appeal cases on a contingency. As mentioned already, the fee for such cases is 25 percent of the retroactive benefits award, with a maximum allowed of $4,000. The claimant can call the Lawyer's Referral Service at (213) 243-1525 for the name of an attorney who represents claimants in such cases.

Keep in mind that the claimant can designate a representative who is not an attorney to assist during this appeal. If the claimant has a long-term care-giver, or other trusted person whom the claimant wishes to appoint as the representative, this also is permitted.

The representative will help the claimant gather the medical records, review Social Security's file, and often review with the claimant a list of questions either the ALJ or the representative will ask during the hearing. The attorney may also prepare a written analysis of the facts of the claimant's case and the applicable law, to present to the judge during the hearing.

If you would like your Social Security case reviewed for possible representation, call any of the following agencies:

  • AIDS Service Center, (626) 441-8495
  • AIDS Project Los Angeles' Benefits Department, (323) 993-1444 or (323) 993-1409 or (323) 993-1475


This article has been reprinted at The Body with the permission of AIDS Project Los Angeles (APLA).

A note from TheBody.com: Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!



  
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This article was provided by AIDS Project Los Angeles. It is a part of the publication Positive Living.
 
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