Brian Gillette was recently interviewed by WKQA Radio in Eastern Virginia. Below is a transcript of his in studio interview with Ron Broughton from the Legal Brief radio show about the topic of social security and disability law. During the interview Ron asks Brian some great questions.
Announcer: Welcome to this week’s edition of the Legal Brief, bringing you the legal leaders in our local community covering bankruptcy, corporate and business, divorce, employment law, and estate planning to name a few. And now, with this week’s edition of the Legal Brief, here’s your host.
Ron Broughton: And a pleasant good afternoon. I’m Ron Broughton and this is Legal Brief. Our first guest today is attorney Brian Gillette with the Gillette Law Group. Brian focuses his law practice on social security and disability law. The Gillette Law Group is located at 1315 Jamestown Road, Suite 102 in Williamsburg, Virginia, and his phone number is 757-220-4529. I’ll give this information out again at the end of this segment. Brian, welcome to Legal Brief.
Brian Gillette: Thank you for having me.
Ron Broughton: Good, great, great. Hey, is this social security disability, millions of questions to be asked, but the first question is is there a relationship between social security disability and social security retirement programs? If so, what is it?
Brian Gillette: Yes, Ron. Each program, the benefits you receive vary based on how much you’ve worked and paid into the system over the years when you were working.
Ron Broughton: Are there any different disability programs within social security and if so, what are they?
Brian Gillette: There are several different types of disability benefit programs. The main two types are disability insurance benefits and supplemental security income benefits.
Ron Broughton: Okay, could you explain the difference between social security disability benefits and supplementary security income benefits, which is SSI, right?
Brian Gillette: Right, that’s SSI. Sure. Disability insurance benefits is the most common type of social security disability benefit. Individuals who have worked in recent years, typically five out of the last 10 years and are now disabled are entitled to monthly disability insurance payments from the Social Security Administration. The amount of those benefits varies based upon how much was paid into the system and averages about $1,200 a month. Your spouse and your children may also be eligible for benefits. Supplemental security income, on the other hand, are benefits paid to disabled children and adults with low income and few resources. It provides monthly income to meet basic needs for food, clothing, and shelter. This year in 2017, it maxes out at $735 a month for an individual and it’s also reduced by other income that an individual may have, including living in someone else’s home and not paying rent. It’s a federal program funded by the general tax revenues and they’re not limited to people who have worked and paid into the system.
Ron Broughton: Tell me, what are the requirements for a claimant who becomes eligible for social security disability benefits?
Brian Gillette: According to the social security act, the definition of a disability is the inability to engage in any substantial or gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. That’s a mouthful.
Ron Broughton: Wow, really. What are the requirements for a claimant to become eligible for SSI different from those from social security disability?
Brian Gillette: Well, for SSI, folks have to have very limited income and resources. For disability insurance benefits, they have to have worked and paid into the system long enough and recently enough to be insured for benefits. Both programs have the same medical requirements for disability, and social security file is a five step evaluation process for determining whether or not someone meets the requirements. The first step is they look at are you engaged in substantial, gainful activity. This year that means if you’re working making $1,170 a month gross, you’re engaged in substantial, gainful activity. With very few limitation or exceptions, that means you’re not qualified for benefits.
Next, they look at do you have a severe impairment. A severe impairment is a physical or mental condition that could cause some symptoms that might impact on your ability to engage in work activities. The third step, they look at do you meet a listing. Listing is a very tough requirement. Social security has very specific requirements for various medical conditions, and if you meet a listing, you get approved, but most folks don’t meet a listing so next they look at what your ability is to engage in work activities. They call that your residual functional capacity. It’s an assessment of your ability to work full time, eight hours a day, five days a week, consistently. They take that residual functional capacity. Then they look at the kind of work that you’ve done over the past 15 years. The work you’ve done over the past 15 years is called your past relevant work. If you can engage in any job you’ve done over the last 15 years, then you don’t qualify for social security disability benefits, even if that’s not the last job you were doing.
That’s what sometimes people look at is, “Well, I can’t do the job I’ve been doing for the last five years. Well, that’s a start, but they’re also going to look at the other jobs you’ve done over the last 15 years. If you can do any of those jobs, then you’re going to get turned down.
Finally, if you can’t do any of the jobs you’ve done over the last 15 years, they’ll look at are there other jobs you can do with the limitations that you have. These may not be jobs that you’re interested in doing. They may not be jobs that pay near what you were making before. They don’t care about that. What they’re interested in is if you had that job, could you do it eight hours a day, five days a week. If you could, then you’re going to be denied disability. If you can’t, then you’ll qualify for social security disability.
Ron Broughton: Okay, that was a mouthful.
Brian Gillette: It sure was.
Ron Broughton: I want to put this in layman’s terms. I’m an engineer. I can’t engineer a train anymore, but that means that I’m not totally disabled, but I can answer a phone. Is that what you’re saying? If I could work as a receptionist or maybe do something different, but I can’t drive a train anymore.
Brian Gillette: Well, if you can’t do the kind of work you did in the past, like drive a train, but you can do other work, then in many cases you’re not going to be found disabled. There are exceptions, however. Once you turn 50 and then when you turn 55, the rules start changing in your favor. At age 50, if you can’t do the kind of work you’ve done in the past and you’re limited to a sedentary or sit down job and you don’t have any transferable skills that could be used in a sit down job, then the rules say you should be found disabled. At 55, if you can’t do the kind of work you’ve done in the past, you’re limited to what’s called light work. Light work is actually standing up to six hour an eight hour day, lifting up to 20 pounds up to one third of an eight hour work day. If you’re 55, can’t do your past work, you’re limited to light work and you don’t have any transferable skills to light work, then the rules recognize or would direct that you should be found disabled.
Ron Broughton: Thank you, that was great. How and where does a claimant file for social security disability or SSI benefits?
Brian Gillette: Well, right now it’s slightly different for the two. For disability insurance benefits, the one where you’ve paid into the system, you can apply online at the social security website. That’s www.ssa.gov . You can also go to your local social security office, but it’s best not to show up there without an appointment. They probably won’t be able to see you that day. You can also call social security’s 880 number. That’s 800-772-1213. Call them up, tell them you want to apply for benefits, and they’ll make an appointment for you.
For SSI, you cannot file an SSI application on the web. You can get a paper form that you fill out, but probably the best thing to do for that would be to call social security’s 800 number and tell them you want to make an appointment to apply.
Ron Broughton: Can anything be done to speed up the process?
Brian Gillette: That’s a common question that we get.
Ron Broughton: Everybody.
Brian Gillette: Unfortunately, there is more than a million people right now who are waiting for a hearing in a disability claim, and that’s just one of the stages of the social security disability process. There are very limited circumstances where you can speed up the process if your doctors tell you, but unfortunately you don’t want to be in any of these situations. One of them is if your doctor says you have a terminal illness. If you’re terminal, you can ask for your case to be expedited. If you are a veteran with 100% permanent and total disability compensation rating from the Department of Veterans’ Affairs, you are qualified for expedited processing. If you are or were a member of the military who became disabled while on active military service on or after October 1st, 2001, you get expedited processing. If your condition qualifies for something called a compassionate allowance, there are a list of 200 plus conditions that are so severe that social security recognizes that if you’ve got that condition, you should qualify for benefits. Unfortunately, most of those conditions are conditions that are terminal illnesses, incurable illnesses.
The last one, which is the one that we see more often, is if you’re without or unable to attain food, medicine, or shelter, so if you’re living in a homeless shelter, you’re living in a tent in the woods, you need some life saving medical treatment and you’re not going to be able to get it or you’re suicidal or homicidal. As you can see, the limitations or the exceptions that can lead to an expedited hearing or processing of your claim are fairly limited and so it’s really important to put your best foot forward as early on in the process as you can.
Ron Broughton: I’ve got the million dollar question and all of our listeners should be waiting on this one. What are some of the mistakes people make when applying for social security disability?
Brian Gillette: Ron, seriously I could do at least an hour on this one question alone.
Ron Broughton: I know each and every listener should be definitely listening to these answers.
Brian Gillette: I’ll try to give you some of the top ones. One of them is not getting any medical treatment. While you can explain to the folks making the decision at social security why you haven’t gotten any medical care, I can tell you that’s not a winning strategy. Just because you don’t have any health insurance, don’t have any money, doesn’t mean you can get away without getting any medical treatment because the medical treatment, first of all, you need to get the treatment so you can get improvement in your situation as best you can. The two main things you use to prove your claims are your medical records and the opinions of the doctors that are treating you for the conditions that are affecting your ability to work.
If you cut your arm and you were bleeding out, couldn’t get it to stop bleeding, you’d find a way to find yourself in front of a doctor. Well, if your health is, if your physical or mental conditions are so bad that you can’t be working, that’s an emergency. You need to be getting treatment for that. You need to be looking into community clinics, community service boards. Sometimes folks in Virginia get referrals up to MCV in Richmond, to the state medical school. If you really have an emergency situation, you can go to the emergency room. There’s something called the Governor’s Access Plan for folks with serious mental illness which is an extension of Medicaid that helps provide insurance for both mental health treatment and physical treatment and some folks qualify for Medicaid. That’s a big one. If you’re going to get approved for disability, you need to be getting treatment for the conditions affecting your ability to work.
Some other ones, not describing accurately your symptoms and limitations to your doctors when you go in to see them. Sometimes folks have a habit of somebody, the doctor, will come in. “How you doing?”
“Oh, I’m doing fine.”
We say that in every day conversation, but the reason the doctor’s asking you how you’re doing is they’re a doctor.
Ron Broughton: Why are you here.
Brian Gillette: Yeah, they’re trying to figure out what’s going on with you. If you just say, “Fine,” the next thing you know you’ll be, 10 minutes later, you’ll be holding a prescription and wondering what happened. Again, those medical records are going to say, “Oh, he’s doing fine.” It’s important that if you’re having a problem that’s affecting your ability to work that you’re telling your doctors about it.
Another one is not following your doctor’s advice regarding treatment. The social security folks expect you to do your part to get better if you can. If you’re not following your doctor’s advice and you don’t have a good reason for it, that’s going to be held against you. Sometimes people have valid reasons for being concerned about following their doctor’s advice, but you need to have a conversation with your doc about that. You need to talk to the doc, tell them about your concerns, see if there’s some alternate treatment that you can get, but just going in, seeing the doc, getting prescribed treatment and then not following through on it, that send the signal that your condition must not be that bad or you must be doing better.
Some other problems, you want to be seeing a specialist if you can if you’re having problems like seizures or headaches. You want to keep a diary of that, make sure your doctor knows how often you’re having those problems. Sometimes people wait too long to apply. If you wait too long, you may lose out on benefits because, for example, for disability insurance benefits, you can only get past due benefits for up to one year prior to when you applied for benefits. If you wait to apply too long, you may be missing out. Also, sometimes medical records or educational records that could be helpful in your claim are destroyed. If you wait to apply until years later and then go looking for them, they may not be there anymore. Your doctors who were very supportive of you applying for disability may die or retire. Then they aren’t available to give opinions about what your limitations are.
A big one is people get denied and they don’t appeal on time. Then they just go and file again, but they’re starting over at the beginning. There’s an initial application. You apply. You get denied or you get approved. If you appeal, that’s called a request for reconsideration and then if you get denied again, you can ask for a hearing with a judge. Well, the hearing with your judge is your best shot at getting approved. Recently approval rates in front of a judge have been about 45%. On initial applications, approval rates are around one third, reconsideration more like 13, 14%. If you apply, get turned down, don’t appeal, apply again, you never get to the judge where you have your best shot at proving your claim.
Ron Broughton: When you make these claims, who actually makes the decision or is there a certain jurisdiction or judge that makes that? Who is it?
Brian Gillette: Initially your case gets sent to something called the state disability determinations service. They gather up your medical records, information about the kind of work you did in the past, and they sometimes will send you to an exam with a doctor. Generally that’s not a good sign. That means you’re not seeing a doctor on your own enough, so they don’t have enough information to make a decision in your claim. Then they have all the medial records and the exam if there is one reviewed by doctors who work for the state disability determination service. They make the initial decision and the reconsideration decision if you are denied and appeal once.
After that, the case goes to a hearing office. In Norfolk, we have a hearing office. There’s another on in Richmond. There’s one down in Raleigh. The judges are called administrative law judges and they are the ones that hold hearings, listen to your testimony, sometimes testimony of family members or others who have information about your situation, and they issue a written decision.
Ron Broughton: If a claimant is denied by the ALJ, what happens?
Brian Gillette: Well, they can appeal to something called the appeals council, which is up in Northern Virginia. The appeals council will look at any arguments that you or your counsel make on your behalf regarding where the judge went wrong in the decision. Typically about 75% of the time the appeals council is going to deny you again. About 23% of the time, they’ll reverse the judges decision and send it back to the judge for a new hearing asking the judge to take a better, a closer look at some issue or other or better explain themselves on something. About 2% of the time, they’ll reverse and award benefits. That whole process sometimes takes two years, just the appeals council process.
Ron Broughton: Wow. ALJ is?
Brian Gillette: Administrative law judge, a special kind of judge.
Ron Broughton: A special type of judge. Tell me, if a claimant is awarded social security disability or SSI benefits, how much money will he or she receive each month?
Brian Gillette: For disability insurance benefits, as I mentioned before, the amount of your benefits depends on how much you paid into the system through your payroll taxes when you were working. Right now the average disability insurance benefit amount is about $1,200 a month, but some folks do receive more than $2,000 a month. With SSI, SSI maxes out for an individual at $735 a month and it is reduced by other income that you have. That includes, sometimes, folks who are getting SSI are living with family members and not paying in rent. They’ll reduce the benefits by about a third.
Ron Broughton: I have an award. How long does it take for a claimant to receive my benefits?
Brian Gillette: Well, monthly benefits usually start within about one to two months. Sometimes the past due benefits are received within three or four months. If you’re getting SSI benefits, your past due benefits are divided up into at least two payments spread six months apart.
Ron Broughton: Once the claimant is awarded benefits, am I entitled to Medicare or Medicaid?
Brian Gillette: If you’re approved for any kind of social security disability benefit other than SSI, you’ll be eligible for Medicare after you’ve been receiving social security disability benefits for two years. If you’re approved for SSI, you’ll also be eligible for Medicaid. It’s possible to get both Medicare and Medicaid if you are entitled to SSI and some other type of social security disability benefit.
Ron Broughton: Okay, does a person need to get an attorney to make a claim for social security disability or SSI benefits?
Brian Gillette: Absolutely not, no attorney. You can do it yourself. Well, you can do it yourself, but I would always say, “If you’re going to walk through a minefield, would you want to follow someone who’d successfully navigated it before?”
Ron Broughton: When you represent yourself and they say, “You have an attorney that’s …”
Brian Gillette: There’s a saying. An attorney that represents himself has a fool for a client.
Ron Broughton: Fool for a client.
Brian Gillette: It’s kind of like, you know, I’m not the handiest fellow. If I had sprung a leak under the sink in my kitchen, I’d call a plumber because they know what they’re doing and they can get it fixed quicker than I can without creating more damage.
Ron Broughton: Thank you. I know a lot of people think they can just … Well, a lot of people think since they’ve been denied the benefits that they do need a lawyer, but I guess you’re saying if you’re sincere and the claim is real, just be persistent.
Brian Gillette: Well, persistence is important. However, it’s important to know what you’re doing. Sometimes it’s the things that you don’t know that you don’t know that hurt you.
Ron Broughton: Yeah, okay. That’s a mouthful. How should a claimant go about choosing an attorney to represent him or her in this type of situation?
Brian Gillette: I would say one of the first things is to make sure you’re really talking to an attorney. There are a lot of folks out there I know who get on the internet. They start doing research. The next thing they know they’re talking to somebody in some other state. It may not be an attorney. Believe it or not, you don’t have to be an attorney to represent someone in a social security claim. There are called non-attorney advocates. I would say that you’re going to pay the same fee to a non-attorney advocate as you pay to an attorney because the fees in social security are pretty much standardized because they’re controlled by the Social Security Administration. If you’re going to pay the same fee, I would say why not get an attorney and not a non-attorney advocate.
I would recommend that you look for a law firm where social security disability is a significant part of their practice, not just a sideline. Ideally pick a firm where the lawyers’ focus is on disability law. You should ask the folks you’re talking to how many social security disability hearings they have in a month. A good number is probably between 10 and 20 a month. Less than that then they’re not doing it too much. Too much more than that and maybe they’re overwhelmed and can’t stay on top of all the cases they’ve got.
Online there are places you can go and check reviews, Google, Google reviews. There’s a website called Avvo, www.Avvo.com, where individuals can give ratings or testimonials or reviews of their experience working with different attorneys. Avvo has its own rating system. There’s an organization that any attorney who does a whole log of social security work is going to belong to. It’s called the National Organization of Social Security Claimants’ Representatives or NOSSCR. That’s N-O-S-S-C-R. They have two annual meetings or two meetings each year where there’s a whole lot of educational information that’s shared. There’s one coming up next month in DC that I’ll be attending. In Virginia, you’d ask them if they’re a member of the Virginia Trial Lawyers’ Association, Social Security Law Section. There’s a similar section, I believe, I the Trial Lawyers’ Association in North Carolina.
You want to know can you speak with an experienced local lawyer about your case. Most attorneys will offer free consultations, so don’t wait until you’re denied and lost one or more of your opportunities to win to talk to somebody.
Ron Broughton: How do attorneys charge for assisting a claimant in obtaining social security disability or SSI benefits.
Brian Gillette: That’s a good question. Most folks are interested in that and most folks have some misunderstanding of how it works. Almost all attorneys work on a contingency basis. In other words, they only get paid a fee if they win your case. The Social Security Administration approves all fees in social security claims and they’re typically 25% of the past due benefits up to a maximum of $6,000. $6,000, that sounds like a lot, but it’s only $6,000 if the person is going to be getting $24,000 in past due benefits. The fee is actually calculated by the Social Security Administration, paid directly out of the past due benefits.
Ron Broughton: Oh, so they do the calculation.
Brian Gillette: Right. All fees in social security claims are approved by social security. Typically what happens is when you’re approved, they calculate how much they should have paid you in the past had they been paying you from the time you were determined to be disabled. That’s 25% of the past due benefits up to a maximum of $6,000. They’ll withhold it from your past due benefits and pay it directly to the attorney.
Ron Broughton: Our guest today has been Brian Gillette with the Gillette Law Group. Brian is local and he focuses his practice on social security and disability law. One thing that Brian has brought up during the interview is pretty much see a social security lawyer, an attorney that deals with it, and if you’re dealing with somebody, the Internet is one thing but local you get to see the guy and he can coach you through it. The Gillette Law Group is located at 1315 Jamestown Road, Suite 102, in Williamsburg, Virginia. His phone number is 757-220-4529. Brian, I’d like to thank you for being on Legal Brief and you got any passing words or things to tell us on the way out about social security or the benefits?
Brian Gillette: Well, Ron, I’ll just say to you that it’s a long, frustrating process and sometimes folks give up without giving it their best shot. When you get told twice that you don’t qualify, sometimes you figure, “Well, maybe they’re right.” That’s just at the point where you need to take it one more step and go to the hearing and get yourself someone who can guide you through this and knows what they’re doing to help you put your best foot forward.
Ron Broughton: Don’t give up. If you get turned down a couple of times, get someone local like Brian to represent …