Applying for Disability in New York
How to apply and qualify for SSD, SSI in New York (NY)
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 - Approximately 60 percent of all disability claims filed under the Social Security Disability and SSI disability programs in New York fail to meet the SSA disability qualifications and are denied.
These statistics vary from year to year and denial rates of 70 percent are not uncommon. The majority of disability claimants will find it necessary to file an appeal in order to ultimately win their benefits.
How does the disability evaluation process work?
After a disability application has been completed in a Social Security field office--meaning that the claimant has undergone a disability interview, completed a disability report form, and supplied all necessary information regarding their condition and symptoms, history of medical treatment, and work history information (substitute school information for a child applicant)--the claim is transferred to a disability examiner in the state disability processing agency.
In most states, this agency is referred to as DDS, or disability determination services. At DDS, the disability examiner who is assigned to the claim will immediately begin to gather the medical records from the treatment sources listed on the disability application.
The examiner, of course, will not be able to obtain records from treatment sources that are not listed. And, in some cases, if the claimant fails to list the proper name of the medical facility, the examiner may have increased difficulty in obtaining the records in a timely manner, and perhaps not at all.
This, of course, illustrates why a claimant should provide a detailed history of their treatment when the claim is filed. This should includes the names of treating physicians, dates of treatment, names of hospitals, clinics, and private practices, and also the addresses of treatment facilities.
The medical history should go back at least as far as the alleged onset date for the claimant's disability. Social Security will not be able to approve benefits with a fully favorable onset date (which can have a direct impact on how much back pay is received) unless the disability examiner can obtain medical record documentation as far back as when the disability is claimed, or alleged, to have begun.
Most claimants will benefit from writing down their full medical treatment history before going to the Social Security office for their disability application interview. Writing down this information in advance will often improve the accuracy of the information and allow the disability examiner to A) obtain the medical records faster and B) not miss essential information from the claimant's treatment history.
Note: The time used to obtain medical records constitutes the single largest delay in the processing of a disability claim.
The Social Security definition of disability
To satisfy the Social Security Administration definition of disability and qualify for disability in New York, a claimant will need to prove that their condition, or set of conditions (which may be physical, mental, or a combination of mental and physical conditions) will last at least one full year.
Additionally, for adults, the SSA definition of disability requires a degree of severity in the claimant's overall condition that results in the inability to engage in work activity that earns at least the income limit for what SSA defines as substantial gainful activity.
This includes jobs that have been performed in the claimant's history of past work, and also jobs the claimant has not done but for which their skills and training might otherwise qualify them.
To see the definition for SGA and the current income limit: How much can you earn and still qualify for disability).
There are two ways of being approved for disability
Once the medical records have been obtained by the examiner, they will be read and evaluated. The examiner will first look to see if the claimant has a condition that qualifies for approval in the listing manual, also known as the Social Security list of impairments.
If the claimant does not have a listing-level condition (most claimants do not), the examiner will then look for evidence of physical and/or mental limitations that interfere with daily activities and the ability to perform basic work activities.
The limitations that are noted by the disability examiner will be used to give the claimant what is known as an RFC, or residual functional capacity, assessment. This is essentially a rating of what the claimant can still do, despite their condition.
The RFC rating--what the person can still do--is then compared to the demands of their past work. At this point, it becomes obvious that it is just as important to supply detailed work history information as it is medical treatment information.
If the claimant is currently limited enough that they cannot go back to a past job, and are also found incapable of being able to switch to some type of other work they may be found disabled and awarded benefits.
Filing for disability as a child
For childen who file for disability in New York, the SSD and SSI definition of disability stipulates that the condition or set of conditions possessed by the child must present limitations severe enough to prevent the ability to engage in age-appropriate activities. If the child is school-age, the focus of the claim will be largely on determining whether or not the child can perform academically at the same level as their same-age peers.
The criteria and requirements involved in applying for disability benefits in New York are the same as for all other states since the Social Security system is federal and standardized.
Meeting the definition of disability will require proving that the condition A) has lasted (or will last, according to a projection based on the medical evidence) for one full year and B) is severe enough to prevent the performance of work activity (or age-appropriate activities if the claimant is a child).
Level II: Request for Reconsideration - A claimant who has been denied on a disability application in New York should immediately file an appeal and not file a new disability claim.
Many claimants make the mistake of either allowing their appeal period to expire and then being forced to file a new claim, or skipping the appeal process entirely and choosing to file a new disability application. For the vast majority of cases, either scenario will constitute a mistake since a new claim will likely be denied again, usually for the same reasons.
Following the appeal process, by contrast, will usually result in a case being heard by an administrative law judge at a hearing. At an ALJ hearing, the odds of approval tend to favor the clamant, particularly if the case has been properly prepared for presentation and is underpinned by a strong "theory of the case" (rationale for approval) that takes into account the claimant's medical and vocational background and the rules and regulations that support the case.
Before a hearing may be requested, however, the case must go through the reconsideration appeal phase. Most reconsiderations are denied at an even higher rate than disability applications. Fortunately, reconsiderations tend to be processed more quickly than initial claims, simply because most of the development work has already been done at the prior level.
The request for reconsideration is made by contacting the Social Security Administration office where the disability application was filed. The field office will mail out the appropriate forms to be completed and returned by the claimant (including the disability report form and one or more medical release forms). The claimant should be careful to include information regarding any recently received medical treatment.
The claimant should also be careful to submit the appeal in a timely manner to avoid a situation where the appeal is not accepted and the claimant is forced to start over with a new claim.
SSA allows claimants 60 days from the date of the initial claim denial to submit the reconsideration appeal. In addition to the 60 day period, SSA also allows an additional 5 days for mailing of documents. However, the appeal paperwork must be received at the Social Security office by the 65th day, not simply mailed and postmarked.
The qualifications for disability are the same at this appeal level. Nothing, in fact, changes between the application and reconsideration levels, other than the fact that a different disability examiner handles the claim. Since the process used in the two different levels is practically identical, it is not surprising, then, that the majority of reconsideration appeals are denied.
Note: The request for reconsideration appeal step is currently suspended in the state of New York as New York is one of 10 prototype states testing a system in which denied claims move immediately to the hearing level upon appeal. Reconsideration may be reinstated at some point and many consider this likely. In the meantime, a claimant who is denied on a disability application should request, and prepare, for a hearing before a federal administrative law judge.
Level III: Request for Hearing before an Administrative Law Judge - The disability hearing is the second Social Security appeal available to claimants in New York and may be requested only after a reconsideration appeal has been denied.
A hearing must be requested within 60 days of the date of the prior denial, but, ideally, should be requested immediately after receiving notification of the denial of the reconsideration appeal to avoid unnecessary case processing delays, as well as the possibility of a missed appeal deadline.
Basic facts about disability hearings
1. Who makes the decision at a disability hearing? - Social Security hearings are conducted not by disability examiners or any other functionary of the Social Security Administration, but, rather by administrative law judges who are trained to render decisions on SSD and SSI claims.
In essence, disability judges perform the same function as examiners. They review medical evidence, vocational evidence, determine what they believe to be the claimant's existing physical limitations and/or mental function limitations, and assess the claimant's RFC, or residual functional capacity.
Likewise, as disability examiners do, they ascertain whether or not a claimant has a condition that may meet the disability requirements of a Social Security listing. If not, they further ascertain if the claimant may be approved, after employing a five step sequential evaluation process, on the basis of a medical vocational allowance.
Social Security judges functionally very similarly to disability examiners, which is logical considering that the rules, regulations, guidelines, and requirements of the SSDI and SSI programs do not change, regardless of the level of the claim.
How, then, are judges different from examiners? And, more importantly, what makes a disability hearing conducted by a judge so very different from what occurs at the lower levels of the system, meaning the disability application and reconsideration appeal phases?
Aside from the obvious (disability examiners do not meet with claimants and claimants at the lower levels do not ordinarily take part in gathering evidence for a case), judges at disability hearings do the following:
A. They may chose to have expert witnesses appear at the hearing. If so, the witness may be a vocational expert who can provide opinion as to the claimant's work history, skills, and potential employability. The witness may also be a medical expert who may provide an opinion on the claimant's functional limitations and level of functional capability. Very often, of course, the judge in a disability case may decide to have both a medical and a vocational expert appear.
Witnesses at hearings may be cross-examined by either a claimant, or the claimant's representative if they have one present (who may be a disability attorney, or a non-attorney disability representative).
B. Judges tend to give credence to the opinions of a claimant's treating physician. If the opinion of the claimant's doctor is fully supported by the remainder of the evidence in the medical record, meaning that the doctor is not simply providing an unrealistic statement, perhaps solely to assist the claimant's bid for disability benefits, then the doctor's opinion may even be granted controlling weight for the case.
The inclination of disability judges to respect the opinion of a claimant's treating physician (which, in actuality, is guided by Social Security rulings) is in stark contrast to the tendency of disability examiners at the application and reconsideration appeal levels to practically ignore statements provided by a claimant's own doctor.
Note: Disability examiners make no attempt to obtain a statement from a claimant's physician. In direct contrast to this, disability examiners have the evidence of a disability claim, and their findings, reviewed by a DDS medical consultant, essentially an on-staff doctor who has no history of treating or even meeting the claimant, yet whose medical opinion will essentially guide the outcome of the case and the decision that the claimant receives.
2. Are Social Security judges more inclined to approve a disability claim than a disability examiner? - While there are individual judges who are noted for maintaining consistently high rates of denial (and, likewise, there are judges who are noted for approving nearly every case they hear), when one reviews the statistics in every single state, it becomes clear that the chances of being approved at a hearing are substantially higher than at the two preceding levels.
This fact alone, of course, does not change the fact to win a disability case, the case must be well-supported by the evidence (both medical and vocational) to the extent that it is plain that the claimant
A) Has a severe medical disability and
B) The impairment, or set of impairments, either satisfy the requirements of a Social Security listing or are severe enough in their limiting effects so as to make it impossible for the claimant to engage in work activity at a level for which they could be expected to earn a substantial and gainful income.
3. How long will it take to get a hearing date? - Ordinarily, from the time a claimant submits a request for hearing before an administrative law judge, until the time that the hearing is actually scheduled, a number of months will have elapsed. Depending on the backlog that may exist at a particular hearing office, it may take anywhere between 6 months to well over a year to get a hearing date. In recent years, waits for hearing dates were commonly two years or longer.
This delay, however, will not be something that the majority of claimants are unaccustomed to since prior to the time that a hearing is requested, in most cases at least a year will already have elapsed in the processing of the disability application and requestion for reconsideration appeal.
Claimants who are not represented by a disability attorney or non-attorney disability representative during this period of waiting may wish to begin looking for a representative.
Statistics are fairly clear in pointing out that claimants who show up at federal hearings with representation are significantly more likely to win disability benefits than claimants who show up at a hearing alone with no knowledge of how to present their case, present the facts of the case, and argue for an approval based on the SSA requirements for disability and the various rules and federal regulations that guide decisional outcomes on claims.
Getting representation only after a hearing appointment notice has been received will not usually allow a reprenstative to do what is needed to prepare for the hearing, which includes obtaining a copy of the Social Security file, reviewing the evidence in the file, reviewing the prior decisions made on the case, and then working to obtain additional evidence that bolsters and supports the chances for receiving a Social Security Disability or SSI award letter.
Note: There are multiple hearing offices in New York and the approval and denial rates listed here are averages supplied by the DIODS extract prepared by the Office of Disability Programs. The disability award rate for the various hearing offices in New York range from 42.4% to a high of 63.3%. Since more than 40 percent of hearings are typically denied in New York, claimants should consider hearing preparation as a top priority.
The rate of approval at the hearing level in New York is in line with the national average, meaning that approximately half of all cases heard by an ALJ (administrative law judge) will be denied. The percentage of denied cases will be higher when a claimant is not represented. (Disability award rates for the various hearing offices in New York are listed near the bottom of the page).
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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Rates of Approval for Individual Social Security Hearing Offices in New York
Albany NY hearing office - disability award rate of 63 percent
Bronx NY hearing office - disability award rate of 48.8 percent
Brooklyn NY hearing office - disability award rate of 60.7 percent
Buffalo NY hearing office - disability award rate of 56.9 percent
New York NY hearing office - disability award rate of 47.7 percent
Queens NY hearing office - disability award rate of 51 percent
Rochester NY hearing office - disability award rate of 44.2 percent
Syracuse NY hearing office - disability award rate of 42.4 percent
White Plains NY hearing office - disability award rate of 48.6 percent