May 2023 is Mental Health Awareness Month across the country, as it has been for 74 years. It is an appropriate time to recognize and honor our clients who face with dignity and grace challenging symptoms from mental impairments.

Mental impairment may provide SSDI or SSI eligibility

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When SSA fails to meaningfully weigh all the evidence, it may deny a claim based on carefully extracted evidence that is less reliable or supportive of the disability, while ignoring without explanation more weighty medical findings that indicate significant limitations or severe symptoms.

Cherry-picking

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Sadly, some cannot win this waiting game, losing homes or even passing away before SSA decides their claims or appeals. Most initial applications are denied, kicking off a long journey through levels of further review or appeal.

Attorney involvement

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Definition of disability

SSA’s definition of disability is different from those used in other kinds of disability support programs like workers’ compensation, or short- or long-term disability insurance policies. For SSDI (or SSI) purposes, the definition of disability follows:

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When long COVID prevents a person from working, they should consider filing an application for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), an income supplement for those without adequate work histories to qualify for SSDI. But proving disability may be difficult for this condition that presents differently in each person.

Long COVID may prevent the ability to work

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First, a little history.  Before 2003, the Social Security Administration (SSA) conducted hearings largely in person.  For an in-person hearing, the Claimant and the attorney meet at the Office of Hearings Operations (hearings office) and appeared before a judge who was in the same room as the Claimant and the attorney.  This was the preferred method of holding a disability hearing. In “extraordinary circumstances” phone hearings were permitted when the Claimant could not appear at the in-person hearing.  These “extraordinary circumstances” were limited to Claimants who were incarcerated, institutionalized or something similar.  In a few cases, “extraordinary circumstances” extended to circumstances which were the direct result of  a Claimant’s impairments.  (In my experience, cases which allowed an exception due to a Claimant’s impairment were few and far between.)

Then, in 2003, SSA, which was trying to find a solution to an enormous back log of cases waiting to be heard by judges, implemented disability hearings by video teleconferencing.  At a video teleconferencing hearing (VTC hearing), the Claimant and his/her attorney meet at the hearing office closest to the Claimant’s residence.  There, they sit in a room before a TV screen.  The judge appears on the TV screen from a different hearing office.  The OHO office where the judge is could be any where in the nation.  (I have had judges preside over VTC hearings from Detroit, Chicago, Falls Church, Virginia, Albuquerque, New Mexico, California, and South Carolina.)  SSA randomly selects which case is sent out to another office and also randomly selects which judge hears to case.

In 2014, SSA created a time sensitive procedure allowing the Claimant 30 days from the date of the video teleconferencing notice to object to a hearing conducting by video teleconferencing.  If an objection is timely filed, the Claimant’s hearing will be set for a “live judge” hearing.

On March 17, 2020, SSA closed its hearing offices (as well as its field offices) to the public across the county due to the COVID-19 pandemic.  However, SSA employees continued to work (mostly remotely).  Eventually, SSA decided to hear disability cases by offering Claimants a phone hearing (without showing “extraordinary circumstances”).  The Claimants could decline the phone hearing.  By the end of 2020, many Claimants opted not have cases heard by phone.  So, SSA implemented a second alternative for a hearing, “Microsoft Teams Video” (similar to Zoom or FaceTime).  With a Teams hearing, the Claimant can testify from home.

Around April 2022, with the COVID-19 pandemic in retreat, SSA began to reopen its field and hearing offices.  Hearings are currently offered as 1.) live hearings, 2.) video teleconferencing hearings, 3.) phone and 4.) Teams video.  The two types of hearings which involve going into the OHO hearing office are live judge hearings and VTC hearings.  There are special rules for these types of hearings.  First, the Claimant cannot be at the hearing office more than 15 minutes before the hearing, the Claimant must have completed an SSA COVID -19 screening document on-line within 24 hours before the hearing and the Claimant must wear a mask during the hearing.  In the hearing room, there are Plexiglas dividers between the Claimant and the judge.

Because a live hearing and a video teleconferencing hearing are still the preferred methods for a disability hearing, SSA may schedule a live hearing or a video teleconferencing hearing even if the Claimant has agreed to a phone or Teams hearing.

There are also special rules for phone and Microsoft Teams Video hearings.  For these hearings, the Claimant must be in a private room in his/her home, must be alone in that room and cannot record the hearing.

Many Claimants select a Microsoft Teams Video hearing rather than a phone or going into the hearing office.  Claimants who do not have a camera or feel intimated with using technology will opt for the phone.  While some Claimants still wish to  appear before a live judge, most do not because they do not feel well enough to travel.  Any of the four methods for a disability Social Security hearing allow for the Claimant’s story to be told to the judge and for the judge to use the 5 step sequential evaluation process to determine whether the Claimant is disabled.

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Ask anyone who has applied for Social Security Disability benefits (either disability insurance benefits or supplemental security income). They may tell you about a lengthy and frustrating process that required completing an in-depth application, filling out information forms for the Disability Determination Bureau (DDB), attending one or more examinations by a physician or psychologist hired by the Social Security Administration (SSA), keeping the DDB updated about new treatment appointments, emergency department visits and hospitalizations and then just waiting on a determination. Across the county, initial applications are approved about 30% of the time.

The processing times for initial applications increased significantly during the height of the COVID-19 pandemic. At that time, SSA offices were closed to the public (starting in March 2020).  SSA and DDB staff were working from remote locations.  Beginning around March 2022, SSA offices started to reopen.  Now processing times are much improved.  Depending on the medical complexity of the case, it normally takes, at a minimum, 90 to 120 days for SSA to reach a determination on an initial application.  (Of course, this is an estimate.  The processing time varies in each case.) Applications which are denied will have an opportunity to appeal the denial.

The importance of being thorough and on time

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The American tradition of decorating the graves of fallen American soldiers began shortly after the close of the Civil War in the Spring of 1865.  With the war’s end, citizens across the country began to decorate the graves of soliders who gave their lives defending the Union in the Civil War.   The decoration of the graves consisted of placing flags and flowers on their graves.

With the advent of the first World War, the nascent national tradition of remembrance extended to those soliders who died in the World War I.  Remembrance was later expanded to included soliders who made the ultimate sacrifice in all of our Nation’s wars and conflicts including, Word War II, the Koren War, Vietnam, Iraq, and Afghanistan. 

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The reason that it is not 100% certain that the offices will reopen on March 30 is mostly because no one knows how the pandemic will play out in the months to come.  If levels of transmission, COVID related deaths and hospitalizations are high, it is likely that the reopening will be delayed.

What will a reopening look like?  We anticipate that the reopening will be phased in rather than happen all at one time.  As of this time, the final details are still being worked out, however, what we do know is that visitors are likely to be required to wear masks to protect other visitors and the Social Security staff.  The Social Security staff will be given more telework privileges, meaning that Social Security staff will be allowed to work from home (just like they are doing now).

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Many disabled people do not have internet.  If they have internet, often the internet is not quick.  Others who have internet find that their only connection is through a smart phone or tablet instead of a computer.  While Social Security’s website works well, it is very difficult to use it effectively on a phone rather than a computer.  An alternative to connecting to the internet through a phone is to use a computer at a library.  Using a library computer has the disadvantage of being, well, public.  There are people around you who may read what is on your screen.  There are also considerations of how to secure private information while being on-line.  Finally, there are concerns of printing document receipts to prove that a submission to Social Security occurred. On top of these are the issues of transportation to the nearest public library, the library’s hours of operations, the immediate availability of computers and the basic knowledge of how to operate a computer.

Calling Social Security is sometimes the best option.  The advantages of calling the Social Security office include less wait time and knowledge of your case.  The wait time to speak with a representative is less now than before the COVID-19 Pandemic shutdown.  The person at the local Social Security office can look at your on-line file and immediately answer the questions.

Which is the best number to call when trying to speak to a person at Social Security? Social Security advertises its national toll-free number, 800 772-1231 as the number to call for help.   Most times, however, the best place to call is the Social Security office closest to you.  Social Security trained the people working at the local Social Security office.  They can access your Social Security file on-line.  Almost always, these people can answer questions about the status of your case.  How do you find this number?

TIP: on a smart phone or computer, search for “Social Security Office Locator.”  A site will appear with the option to enter your zip code.  Do that and then push the “Locate” button.  The closest Social Security office will appear along with its phone number.

Local Social Security offices are not the only offices effected by the COVID-19 Pandemic.  The Healing Offices are closed to the public.  As a result, there are no hearings being held before administrative law judges by “face-to-face” hearings or by video hearings.  Social Security offers an alternative to face-to-face or video hearings by offering a “phone hearing.”  What is a phone hearing?

Phone Hearings.  As the name implies, a phone hearing takes place on a phone.  There is no video.  The administrative law judge cannot see you.  You cannot see the judge or any other witnesses who testifies.  Everyone can hear the other (assuming that there is a good phone connection).  The hearing begins with a phone call from the hearing monitor to the claimant, the claimant’s representative, and the vocational expert.  The judge will already be on the line.  Once all the persons are on the line, the judge begins with preliminary matters: the persons on the phone line must be alone and in a quiet room.  The judge announces that no person, other than the judge, records the hearing.  The judge places all persons testifying under oath.   The claimant must agree, on the record, to a hearing by phone.  The judge always wants to know whether all evidence is in the record.  Then the judge asks the claimant questions.  The questions are like the questions asked during a live or video hearing.  The claimant’s representative asks questions.  Then the judge and the claimant’s representative question the vocational expert.  At the conclusion of the testimony of the vocational expert, the hearing is over.  The judge “takes the matter under advisement.”  Rarely does the judge inform the claimant that the claimant won the case.  The judge never tells the claimant, at the conclusion of the hearing that the claimant lost the hearing.  At a later point, the judge sends a written decision to the claimant and the claimant’s representative.

Should a claimant agree to a phone hearing or wait until the hearing offices are open to have a live or video hearing before the judge?  There are advantages to a phone hearing: the hearing is now instead of at some unknown future date; there is no travel to the hearing; the decision will come sooner than during pre-COVID-19 Pandemic days because fewer people are agreeing to have phone hearings; and the possibility of an award of benefits now. There are also drawbacks to a phone hearing: no visual contact with the judge; phone connections are not always the best; there is no way to have the judge make an assessment of the manner, appearance and conduct of the claimant during the hearing.  It is interesting to note that Social Security prefers hearings to be live or by video rather than by phone.  Only in extraordinary circumstances are phone hearings allowed.

Opting for a phone hearing is an important decision.  Consult with your representative before deciding to agree to a phone hearing.

Stay safe!

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