Applying for Disability in West Virginia
How to apply and qualify for SSD, SSI in West Virginia (WV)
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 - Individuals filing for disability in West Virginia usually face a one-in-four chance of being approved for disability benefits. Three quarters of all claimants will be denied in West Virginia, meaning that to be approved for disability benefits they will need to file one or more appeals within the Social Security Administration's disability appeal system.
Because the application for disability and the reconsideration appeal are handled by disability examiners (who work at DDS--disability determination services--the agency that makes medical determinations for the Social Security Administration), both levels tend to have high rates of denial.
At the second appeal level, however, the decision-maker is a federal ALJ, or administrative law judge. Judges review the same medical evidence as examiners, but do not have their decisions subject to review by supervisors or quality control units. This may account for why their rates of approval are substantially higher.
Getting approved at a disability hearing, however, may be more likely also due to the fact that the claimant will be more likely to have disability representation.
In addition to the fact that a claimant may interact with the decision-maker--an ALJ--at a hearing, a claimant's disability attorney or non-attorney disability representative will ordinarily have procured updated medical record documentation, supporting statements from a claimant's treating physician or physicians, and assembled a theory of the case, i.e. argument for approval, that is supported by the evidence of record as well as the Social Security Administration's regulations and rulings.
Qualifying for disability in West Virginia
The processing of qualifying for disability in West Virginia is the same as in all other states. Qualifying for disability benefits will mean satisfying the Social Security Administration's unique definition of disability.
To qualify for either SSD or SSI disability benefits, the evidence that is gathered by the Social Security Administration must show that a claimant has one or more severe medical conditions that may be physical or mental or both. The condition, or conditions, must be severe enough that an adult claimant cannot engage in work activity that earns a substantial and gainful income. This period of disability must last a minimum length of at least one full year.
If the claimant is a child, the evidence must show that the child has significant limitations in doing the same activities as children of the same age, i.e. they must be found incapable of performing age-appropriate activities. If the child is school-age, this will mean that, in addition to reviewing medical records, Social Security will review the child's academic records, including grade reports, IEPs, and the results of IQ and achievement testing.
Getting approved for disability in West Virginia
An application for disability may be approved by a disability examiner (at the disability application or reconsideration appeal levels) or an administrative law judge (at the hearing level) in one of two ways.
The first manner of approval involves only the medical records. If the adjudicator reviews the medical evidence and finds that the claimant has a condition that is contained in the listings, i.e. the Social Security Disability list of impairments, and which meets the requirements of the listing, they may be approved for disability.
Note: Most claimants who receive an approval are not approved in this manner as requirements of a listing tend to be very specific. Furthermore, the majority of medical conditions are not referenced in the listings.
The second manner of approval involves both the claimant's medical records and their work history information as well, assuming they are an adult claimant (for a child filing for disability in West Virginia, substitute academic school records in place of the work history). In this type of medical vocational allowance, the claim is subjected to a multi-step sequential evaluation process.
Under the sequential evaluation process, if the claimant has a severe medical condition that has lasted a year or longer, and which has prevented the performance of their past work and the performance of any other type of work activity at an SGA-earnings level (SGA is substantial gainful activity), the claimant may be approved to receive disability benefits provided they also meet the non-medical qualifications and criteria for Social Security Disability or SSI disability.
Applying for disability in West Virginia
A claimant filing for disability in West Virginia may contact a local Social Security office or attempt to file online.
Filing at a local office would be the preferred option since the online filing process does not allow an SSI claim to be taken, nor does it allow for direct one-to-one contact to be made with a Social Security office CR (claims representative) who may answer questions about the application and appeals process.
Contacting a local office will result in an appointment for a disability application interview being set. Individuals who have difficulty with transportation or mobility may arrange to have their disability interview done over the phone. This may also be requested for claimants who simply prefer a phone interview.
The purpose of the application interview is for the claimant to supply Social Security with the information that will be needed to process the claim. For the most part, this will involve the claimant's medical history and work history.
Note: For the sake of accuracy and providing all relevant information, claimants are advised to write down their medical treatment history and work history prior to the appointment for the disability application interview.
With regard to the medical treatment history, claimants should provide the names and addresses of all medical treatment sources, the names of all treating physicians, and the dates of treatment for each source.
With regard to the work history, claimants should provide their entire work history for the 15 year period prior to becoming disabled. This should include all job titles, detailed descriptions of all work duties associated with each job, and the date ranges for each job.
The medical records obtained from the claimant's treatment sources will be used to determine whether or not a claimant has a condition that satisfies the requirements of a listing, or the types and severity of any functional limitations (physical or mental) that they might possess.
The work history will be used to determine the physical and mental demands of the claimant's past work as well as the skill levels they may possess, which may or may not be transferrable to other types of work, assuming they lack the ability to return to their past work.
Level II: Request for Reconsideration - Disability claims that have undergone an evaluation by a disability examiner at a state disability disability services agency (DDS performs the decision-making process for the Social Security Administration) have a fairly high rate of denial in most states. For this reason, claimants who apply for disability should probably prepare for the possibility of having to utilize the appeal process.
The first appeal following the denial of a disability application is the request for reconsideration. The reconsideration process is identical to the disability application process in the following ways:
1) A disability examiner will review the claimant's medical records and usually their work history information as well.
2) The disability decision will typically take weeks or months. Note: reconsideration decisions are usually much faster than disability application decisions since much of the case development has already been done. It is not unusual to receive a decision at this level in 4-6 weeks.
3) An approval will be made on the basis of the claimant either satisfying the requirements of a listing in the Social Security Disability list of impairments, or on the basis of a medical vocational allowance, a type of approval in which the determination is made the claimant cannot return to work activity at a substantial and gainful earnings level.
The reconsideration appeal versus the disability application
There is no procedural difference in the way a reconsideration appeal is processed as compared to a disability application. Nor are there any differences in the qualifications criteria for disability. To qualify for disability at this level, a claimant or their representative, must demonstrate that they have a severe medical condition that restricts basic daily activities, interferes with basic work activities, and lasts for at least one full year.
To request a reconsideration appeal, a claimant should contact their local Social Security office. If they are represented by a disability attorney or non-attorney disability representative they should contact the representative immediately upon receiving the notice of denial. This is to ensure that both parties have received the denial notification letter and to further ensure that the appeal deadline is not missed.
How long do you have to file an appeal?
As with all appeals, an individual filing a reconsideration will have 60 days, plus an extra 5 days for mailing, to submit the reconsideration. The 65 day period starts from the date of the denial. Note: The appeal cannot simply be mailed and postmarked in the 65 day period, it must be received at a Social security office prior to the expiration of the appeal period.
Note: If an appeal deadline is missed without good cause, the claimant will be forced to file for disability again with a new claim. This will not only consume additional months of processing time but may also result in less disability back pay due to a less favorable date of filing.
Claimants who do not have representation at this time should make a copy of their appeal before submitting it to SSA. They should also conduct a status call to Social Security within 2 weeks of submitting the appeal to verify that the appeal was received.
Qualifying for disability at the reconsideration level
Reconsideration appeals have a higher rate of denial than disability applications. Generally, the rate of denial at this level exceeds 80 percent in most states. This is not surprising when one considers that the criteria and evaluation process are the same at both levels.
Typically, a reconsideration will not be approved unless the claimant's medical condition changes significantly after the denial of the disability application, or strong and new medical evidence is brought into the case, or an error on the part of the first disability examiner is discovered.
Individuals who are denied on a reconsideration (and this is usually the case) should immediately file a request for a disability hearing.
At the hearing level, the chances of approval are substantially in the claimant's favor provided that their case is sufficiently documented and otherwise well-prepared, and also presented to the administrative law judge with a compelling rationale for approval in light of Social Security rules and regulations.
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
Note: Disability award rates in West Virginia vary from 41.1 percent to 62.9 percent. Processing times for hearings also vary between 321 and 404 days. The statistic given above for hearing approvals is an average for the state. The individual Social Security Hearing offices in West Virginia approve cases at the following rates:
The Charleston WV hearing office has a disability award rate of 62.9 percent; The Huntinton WV hearing office has a disability award rate of 56.8 percent; The Morgantown WV hearing office has a disability award rate of 41.1 percent.
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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