I am currently working on a federal court case in which my client completed 8th grade but believes that she really only has an education at the 3rd or 4th grade level. She claims that the teachers just passed her along to the next grade to get her out of their class. The issue of education arises in Social Security Disability cases as a vocational factor – when Social Security has already determined that you cannot perform your past work but is considering what other kind of work you can do.
Social Security’s method for evaluating education is found in 20 C.F.R. Section 404.1564. They understand that if a long time has passed since you have received your education, the skills and knowledge you obtained may no longer be useful. They will use a person’s numerical grade level to determine educational abilities unless there is evidence to contradict it. So, for example, in my case it will be important to look at the school records and determine whether my client actually passed any of the classes she was taking or was absent or tardy so much such that she was not there and thus could not have learned the material despite the fact that she was passed. Also, it will be important to check if she was in special education classes while she was in school.
The government shut down is not helpful to the Social Security Administration (“SSA”), to say the least. The Agency already takes a long time to process claims and now they will be further behind.
As to how the shut down impacts your case, it depends on where you are in the process. The SSA has prepared a SSA contingency plan which lists the activities that SSA is still doing as well as the services that they have stopped providing. If you are filing an initial application or request for reconsideration, you may still do so. You will find it faster to file it online. Although the SSA is still accepting applications and appeals, they are operating the field offices with fewer employees so it is best to file online. As to how fast your case will be adjudicated, it is a guess. The normal processing time is two to six months. According to the Agency’s Contingency Plan, the State Disability Determination Services (DDS) is still operating. Your case should therefore be processed within that time frame.
If your Request for Reconsideration is denied, you may file a Request for a Hearing in front of Administrative Law Judge. Unfortunately nothing is likely to happen after that until the government is funded. According to the contingency plan, the Office of Disability Adjudication and Review is not scheduling hearings.
If your case has already been scheduled for a hearing, you will still likely have it but it is not clear if all the exhibits will be in the file or how you will be able to see the file. Although the judges are still holding hearings, they do not have support staff. The tasks normally performed by support staff such as preparing the exhibit file, sending out notices, putting the file in order, and developing the record, are not being done. There is a fundamental unfairness to proceeding with a hearing with an unprepared record. I would caution anyone with a hearing now to find an attorney and not proceed with a hearing until you have seen the record and you are sure that it is complete.
After a hearing, it is again unclear when a decision will be forthcoming. There is no one to write it or send it out.
The contingency plan does not discuss staffing at the Appeals Council. Even when they are working, an appeal takes two years. It is unlikely they are working with a full labor force. If you have an appeal pending, it is going to take longer.
Let’s hope that the government shut down is resolved soon before the waiting times become atrocious.
I will be giving a free workshop tomorrow, Wednesday May 22, 2013 at the Global Center for Success in Vallejo on navigating through the Social Security Disability application process. I will be covering the following topics:
- Overview of the application process
- What you need to know before applying for Social Security Disability
- Tips on how to obtain evidence to help your case
- The differences between SSDI and SSI
- SSI resource limit
- Statistics on approval and denial rates
- Procedures for appealing
The workshop is open to the public and will take place from 10:00 a.m. to 12:00 p.m. For more information, please see the attached Flyer.