Applying for Disability in Virginia
How to apply and qualify for SSD, SSI in Virginia (VA)
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 - According to statistical data, an application for disability benefits in Virginia will have approximately a 30 percent chance of approval. In any given year, between 60 and 70 percent of all individuals applying for disability in the state will be denied at the disability application level.
The great majority of individuals who file for disability will find it necessary to file one or more appeals in order to ultimately win their benefits.
The approval rate for cases takes into account all claims regardless of the claimant's condition(s), age, or gender. Having said this, adults who apply for disability in Virginia will have a higher chance of meeting the qualifications for Social Security Disability or SSI benefits since the approach taken by the Social Security Administration is to assume that, as a person ages, their opportunities for finding new types of employment will decrease.
However, younger individuals may still win disability benefits, and routinely do. For younger individuals--and claimants of all ages--it will be essential that the Social Security Administration is made aware of all medical treatment, going back at least as far the alleged onset date for the individual's disability.
Proving the earliest possible onset date, of course, has a direct impact on A) how much disability back pay a person may receive and B) how long it takes for a person to become eligible to receive medicare coverage.
Filing for disability
Social Security Disability and SSI disability claims may be initiated in three separate ways: 1) At a local Social Security office, 2) Online using the Social Security Administration website, or 3) Initated over the phone using the SSA teleclaims unit.
For the majority of claimants, it will be more practical and more efficient to contact a local Social Security office, set an appointment for a disability application interview, and have the claim done there.
The purpose of the disability interview will be for the CR (the Social Security Claims Representative, the person who handles the intake portion of the claim) to gather all the information that is needed to make a decision on the case. For the most part, this will concern the claimant's medical treatment history.
Providing the medical history
Medical evidence is needed to prove two fundamental aspects of a case. First, that the claimant is currently disabled (so that continuing monthly benefits can be received). And, second, that the claimant is found disabled back to the time they state that their disability began.
When supplying the history of medical treatment during the application interview (with a Claims Representative at a local Social Security field office), the claimant should be careful to include all dates of treatment, the names of their treating physicians, and the correct names of treatment facilities such as hospitals and clinics.
Supplying the correct name of the facility is especially important since the disability examiner who will process the case will refer to a database of treatment providers in order to request the claimant's medical records. If the examiner cannot locate the correct medical treatment provider based on the information provided at the time of the disability application, they will be unable to obtain those records.
Because the medical treatment history information is so important, claimants may find it practical to make a list of treatment providers and treatment dates prior to visiting the Social Security office for the disability interview. This often ensures that the information is more complete and more detailed.
The amount of time it takes to obtain medical records typically constitutes the single largest delay on any disability claim, which underscores the importance of proving full and detailed information concerning the history of medical treatment.
Who makes the disability determination
After the claim is taken, it will be transferred to a disability examiner at DDS, or disability determination services. This is the state agency that performs disability determinations for both Social Security Disability and SSI Disability claims.
The examiner's first task will be to obtain the claimant's medical records from the various treatment sources listed at the time of application. In fact, requests for medical records are usually the very first case action performed on the day that the examiner receives the case from the Social Security office.
The medical records may take several weeks, or in some cases months, to receive. Once they have been received, though, the disability examiner will begin the process of deciding the claim.
Social Security has two methods of approving disability claims
The disability examiner will use the medical evidence with two goals in mind:
The first is to determine whether a person may be approved on the basis of meeting or equaling a listing in the Social Security Disability list of impairments. The second is to determine whether a person may be approved on the basis of a medical-vocational allowance--a type of case decision in which it is determined that the claimant cannot return to their past work or switch to some form of other work and are, therefore, disabled and eligible to receive disability benefits.
Most claims, though, are not approved on the basis of a listing. For these cases, the examiner will make an RFC assessment (what the claimant is still capable of doing) and compare this assessment to the demands of their past work. If the examiner determines that their current level of functioning no longer makes it possible for them to do their past work, they will have satisfied one of the basic requirements for disability (the inability to perform past work).
However, qualifying for disability also means that the claimant's condition must be severe enough that it prevents them from doing other types of work for which they might ordinarily be suited based on their age, education, skills, and functional limitations. If it is determined that they cannot do other work as well, they will qualify for disability.
Denials on disability claims in Virginia
The majority of disability claims are denied at the disability application level. This is true in all states, not just Virginia. Though in some situations there are technical reasons for a claim being denied, most claims that are denied at the application level are denied because a review of the medical evidence determined that the claimant did not have a listing-level medical condition, and, further, that they either possessed the ability to return to their past work, or perform some type of other work.
Individuals who are denied will receive mailed notification informing them of the denial, as well as their appeal rights. In nearly all cases, it will be to the claimant's advantage to file an appeal within the two month appeal period. The first appeal is the request for reconsideration.
Level II: Request for Reconsideration - The reconsideration appeal is filed in the event that the application for disability is denied. Formally known as the request for reconsideration, it must be requested within 60 days of the date of denial of the disability application.
In addition to the 60 days given for the official deadline, Social Security also gives claimants an additional 5 days for mailing time. However, claimants should keep in mind that for the appeal to be timely, it must actually be received by Social Security by the 65th day (from the date of the denial, which is stamped in the upper right hand corner of the denial letter), not simply mailed and postmarked by that date.
The reconsideration appeal is requested by contacting the Social Security field office where the initial claim was filed. The field office will then mail out the necessary appeal paperwork to the claimant. In cases where the claimant is represented by a disability attorney or non-attorney disability representative, the representative will receive a copy of the denial letter and submit the appeal themselves.
As with the initial claim, the qualifications process is the same in that once the appeal forms are received from the claimant, the Social Security office will send the case to DDS, or disability determination services. This time the case is assigned to a higher level disability claims examiner, but the process is practically identical.
In many cases, the decision at this level will occur faster since most of the development for the case (the gathering of evidence and the researching of the claimant's vocational work history) will have already been done.
It is not unusual for decisions at this Social Security appeal level to be made within 30-60 days.
In some cases, of course, there will be a need to send the claimant to a CE, or consultative exam, if the claimant's medical records have become aged (older than 90 days) and the claimant has not returned to one of their doctors recently for additional treatment.
In Virginia, the rate of denial at the reconsideration appeal level is normally much higher than at the disability application level. This is the norm in most states and it is to be expected for two reasons. Reconsiderations are handled by the same disability agency (DDS) and also undergo an evaluation by a disability examiner--the only major difference is that the reconsideration involves a different examiner than the first.
While reconsiderations are typically denied, however, the rate of approval at the second appeal level, the request for a disability hearing, is usually quite higher.
Level III: Request for Hearing before an Administrative Law Judge - The disability hearing is the second Social Security appeal available to claimants and may be requested only after a reconsideration appeal has been denied.
Like all appeals, the 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. Where are disability hearings in Virginia held? - Hearings for Social Security Disability and SSI are held at something known as ODAR, the office of disability adjudication and review. ODAR was once called OHA, which stood for the office of hearings and appeals, which made more sense and was less of a tongue twister. A state may have one or several hearings offices. Virginia currently has four.
Even so, there may be a certain amount of travel time involved in getting to a hearing so claimants who receive an appointment notice for a hearing may wish to prepare in advance by making sure they have good directions for getting to the hearing office.
Most ALJs, or Social Security administrative law judges, hold hearings every 20-30 minutes (some have been known to schedule them ten minutes apart) and it should be apparent from this that arriving at a hearing late may not be an option.
2. What happens if you arrive late at a disability hearing? In most cases, the claimant will call ahead to their disability attorney or disability representative who will then contact the hearing office on their behalf. In some instances, it may be possible for the judge to find an open time slot so the hearing can still be held. However, it may be necessary to have the hearing rescheduled.
If so, it may be a matter of weeks or even months for a rescheduled hearing to take place. For this reason above all else, a claimant should arrive promptly on-time at the hearing office.
Claimants who live close enough to their hearing may wish to make a "dry run" to the hearing office to make sure they know how to get there and to gauge traffic patterns and levels at the time of day that their hearing is set for.
3. Who makes the decision at the hearing? As we have already stated, hearing decisions are made by ALJs, or administrative law judges. ALJs are federal employees. However, unlike disability examiners (who are actually state, not federal, employees) who have their decisions on cases subject to the involvement of others, such as their immediate supervisors and internal and external quality control, judges are completely independent.
This may contribute to judges making significantly more approvals on disability claims than disability examiners at the disability application and reconsideration appeal levels.
4. What are the chances of being approved at a hearing? - Judges typically award benefits to roughly half of the cases they hear. This percentage may be as low as 40 percent for claimants who are not represented at a hearing and as high as 60 percent, or greater for claimants who appear with Social Security representation.
5. Why does a disability attorney or representative improve the chances of winning? - Unlike an unrepresented claimant, a disability representative or attorney does not simply "show up" at a hearing. They prepare the case in advance.
This preparation includes gathering updated medical records which is necessary because after the case is concluded at the reconsideration appeal level, SSA no longer does this. At the hearing level, all case development and acquisition of evidence is left up to the claimant or their attorney if they are represented.
Additionally, a representative will usually attempt to secure a medical source statement from a claimant's treating physician. This is a qualified opinion from the individual who is best suited to provide one (a treating physician is a doctor who has a history of treating a patient and is, therefore, able to comment on the claimant's functional limitations and outlook). At the lower levels, a statement from a physician may be entirely ignored by a disability examiner which is simply not the way the system is intended to run, but it happens regularly.
At the hearing level, however, judges give weight to the opinion of your own doctor, and if the physician statement is in alignment with what the rest of the doctor's records have to say, the doctor's opinion may be given controlling weight for the case.
Finally, a disability lawyer or representative will be able to analyze why the case was previously denied, ascertain if there were errors made by prior decision makers, and do what was not done before: find an interpretation of the medical and vocational (job related) evidence that allows for an approval to be made. This is known as offering a theory of the case, one that permits an approval to be made under the medical-vocational grid rules.
Note: The hearing approval statistic for Virginia indicates a higher chance of being denied versus being approved. However, this statistic is an average for the state. Individual Social Security hearing offices in Virginia approve as high as 50.3 percent of cases heard by administrative law judges and as low as 39.7 percent of cases. Processing times vary from a low of 288 days to a high of 437 days.
Hearing office approval rates and processing time
Charlottesville VA - Disability Award Rate: 44.7 percent; 288 days to process claim
Norfolk VA - Disability Award Rate: 50.3 percent; 303 days to process claim
Richmond VA - Disability Award Rate: 39.7 percent; 355 days to process claim
Roanoke VA - Disability Award Rate: 54.3 percent; 437 days to process claim
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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