Applying for Disability in Delaware
How to apply and qualify for SSD, SSI in Delaware (DE)
Note: If you have already filed a claim and been denied for disability, or are wondering what to do in the event of a Social Security denial, proceed to the reconsideration and hearing appeal sections below.
Level I: Disability Application - In a typical year, an individual filing for disability in Delaware may expect approximately a 30 percent chance of approval on a Social Security Disability or SSI disability application.
Since the corollary to this is that up to 70 percent of all claims are denied disability benefits at this level, claimants should be prepared for the prospect of filing one or more appeals, and may wish to consider locating a disability representative to assist them with their appeals, but certainly by the time their case requires a hearing before a federal judge.
Hearings afford the best opportunity for winning benefits for claimants who are initially denied, but when cases are brought before administrative law judges, the burden of case preparation falls entirely to the claimant and their representative if they have one.
Disability claims in Delaware are filed under one of two programs: the Social Security Disability program, or the SSI disability program. In many instances, an individual's case will involve a claim for disability benefits filed in both programs. This is known as a concurrent claim.
Qualifying for disability in Delaware
The eligibility qualifications for disability are the same in each program. What is the criteria and how does a person qualify for SSD or SSI?
In order to win disability benefits, a person must establish that they have at least one severe, medically determinable impairment. The impairment may be of a physical or mental origin.
Both types of impairments may be listed on the application for disability. In fact, on a high percentage of claims, individuals lists both physical and mental impairments.
For example, depression, asthma, and attention deficit, or degenerative disc disease and fibromyalgia.
By "medically determinable", the Social Security Administration means that the impairment must be diagnosed by a medical professional who is qualified to render treatment and prescribe medication. This generally means that records from a licensed medical physician will be acceptable while records from a holistic practitioner or chiropractor will not.
To satisfy the SSA requirements for disability, the individual's condition must also last for a durational length of not less than one year. Individuals who have disabling conditions that do not last at least this long are subject to being denied on the basis of duration.
Note: a potential claimant whose condition has not already lasted a full year should not put off applying for disability. Disability examiners routinely make projections as to whether or not a condition will last a full year or longer.
Finally, to meet the qualifications for disability under SSDI and SSI, an adult claimant's condition must also prevent them from the ability to engage in work activity that earns a substantial and gainful income, either in the performance of work they have done in the past (past work potentially includes any work done in the last 15 years), or in any other type of work that they might transition to if, under different circumstances, they were not disabled.
To meet the disability criteria as a child, the work consideration is obviously not a part of the process.
Children filing for disability in Delaware are evaluated on the basis of whether or not they have a severe impairment, whether or not their conditions last a year a longer, and in place of the work consideration, they are evaluated on the basis of whether or not they can engage in age-appropriate activities as compared to their peers.
For children who are attending school, therefore, Social Security will typically evaluate school records and testing results in addition to medical records.
Level II: Request for Reconsideration - The request for reconsideration is the first appeal in the SSA disability system. This appeal is handled in an identical manner to the application for disability and the qualifications and criteria are the same.
How is a reconsideration appeal conducted? If an SSDI or SSI disability application is denied, a claimant will be sent a formal notice.
The notice of denial will indicate a date of the denial in the upper right hand corner of the page. The claimant effectively has 65 days from this date to request the reconsideration. This is a total of 60 days plus an additional 5 for the mailing and receipt of documents.
Once the appeal request has been received by the Social Security office, it will be forwarded back to disability determination services, only this time to a different disability examiner. This examiner will conduct an evaluation of the claim that is practically identical to the process used on the application. It is for this reason that reconsideration appeals are typically denied. In fact, in most states, the rate of denial is significantly higher than on the initial claim.
However, the reconsideration is well worth going through because if it is denied, the claimant may then request a hearing.
Level III: Request for Hearing before an Administrative Law Judge - Hearings are conducted at ODAR, the office of adjudication and review, formerly known as OHA, the office of hearings and appeals. A claimant can request a hearing only after a disability application and reconsideration appeal have been denied.
At the hearing level, the qualifications, requirements, and criteria for approving a disability claim are the same. Why, then, is the approval rate typically higher, sometimes in a given year remarkably higher?
Hearings are the first level of the Social Security and SSI process in which a claimant will actually appear before the individual making a decision on their claim, in this case a federally appointed judge.
Hearings also differ in very substantial ways such as the following facts:
1) At the disability hearing level, development of the case is no longer done by SSA. In fact, after the reconsideration level, all record gathering becomes the responsibility of the claimant. However, this also ensures that in many instances, evidence that is favorable to the case is not missed. And disability representatives typically make strong attempts to obtain qualified statements from a claimant's treating physician, whereas SSA never takes this step as a matter of policy;
2) The hearing involves face-to-face contact with the judge and allows the claimant the chance to present a rationale, or theory of the case to the judge for approval;
3) The claimant's representative, a disability attorney or non-attorney disability representative, can cross-examine expert witnesses that appear at the hearing at the discretion of the judge.
Note: At present, there is a single disability hearing office in Delaware. The Dover DE hearing has a disability award rate of 33.6 percent which is substantially lower than the national average rate of 50 percent for disability awards at the Social Security Hearing level. The approval rate for hearings in DE is also substantially below the approval rate for SSA region 3.
About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.
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