(Transcript)

Cindy Speaker: Welcome to our Facebook Live broadcast today. I have with me attorney Valeen Hykes. She’s a Social Security Disability Attorney with Michael J. O’Connor and Associates. Valeen, thanks for being with us today.

Valeen Hykes: Thank you for having me.

Cindy Speaker: Valeen, before we get into the process of social security disability, tell us a little bit about what types of disabilities would qualify someone to even consider filing for social security.

Valeen Hykes: There’s actually two types. They basically look at the physical and mental disabilities of somebody. Usually it’s often not just one of them. Usually it’s a combination of both of them together. So physical and mental disabilities is something that they’ll look at in determining whether somebody is eligible for benefits or not.

Cindy Speaker:  Okay. The disabilities, when we get into this more will you go into a little bit more of the severity and what types of stipulations have to be fulfilled in order to qualify?

Valeen Hykes: Oh, absolutely. I can offer you a little bit now, some things that we’re looking at, some disabilities that we’re really looking at when we’re looking at a social security claim would be problems with neck, some neck pain, back pain, COPD, chronic obstructive pulmonary disease. Social security’s actually recognizing the diagnosis of fibromyalgia more often now. Migraines, headaches, arthritis, especially arthritis with long term steroid use. On the mental side of it a lot of claims that we see are with depression, anxiety, posttraumatic stress disorder, bipolar and also even schizophrenia.

Cindy Speaker: Okay. This is really broad categories here or disabilities.

Valeen Hykes: It is. Very broad. Yes.

Cindy Speaker: Let’s start out by, help us understand the process.

Valeen Hykes:  The process is long and there’s no way around that. Whether you’re representing yourself or whether there’s an attorney representing you, it is a long process. I usually recommend that clients apply as soon as they feel that there may or potentially need to be a need for benefits. The way that you do that is you file your initial application. Usually once you file your initial application it takes about 120 days for the Social Security Administration to review that. Then if you’re granted benefits, one of the very lucky few who are granted benefits at that point, that’s great. You don’t have to go on and file an appeal.

Even if you are granted benefits at that initial application stage, it can be a lengthy process because you’re waiting 120 days just to get that decision. Then after you get that decision, you’re going to get something that’s called a Notice of Award. That Notice of Award is going to tell you when you’re going to get paid and how much you’re going to get paid and when you can expect that.

If you do go on and have to file an appeal, you have 60 days from that initial application denial to file that appeal. Usually once you file that appeal, you could be waiting anywhere from 16 all the way up to some areas are waiting up to 22 months right now for a hearing.

Cindy Speaker: Wow.

Valeen Hykes:  Yes. In very few circumstances, you can get that expedited. That’s probably one of the most stressful parts of my job is explaining to clients how long of a wait it is. Unfortunately unless you have a VA disability rated, or service connected disability, there’s a risk of imminent death or you are without food, water, shelter, usually those types of dire need requests go unnoticed unless it’s something as severe as that. Other than that you’re waiting again even after you get that hearing you could be waiting two to three months after you’re in front of a judge to even get a decision.

Cindy Speaker: Wow. One of the first things I’m thinking about is when you have someone who is seriously disabled needs these types of benefits this is a very difficult, I mean, it sounds frankly overwhelming, an overwhelming process. I know that your an attorney. Is it helpful to have an attorney involved? I assume it is. But at what point? Should you have the attorney help you with the initial application or do you wait until you’re partway into the process? What do you recommend?

Valeen Hykes:  Absolutely, I would recommend getting an attorney involved in the very beginning. While it wasn’t something I did from the start, we have started accepting initial applications and have had a lot of success with them. I do feel, and I don’t have any statistics to back this up, but I do feel that the claims are taken very seriously because they do know, the Social Security Administration knows how the attorneys in these types of cases get paid and they understand that we can only take cases that have a good chance of success. I think trying to get somebody involved at that initial stage is very important.

Cindy Speaker:  Okay. What types of things does the disabled person and/or their family begin to prepare this paperwork and prepare for this process? What types of things do they need to know to have ready? What types of things are the Social Security Administration going to request?

Valeen Hykes:  Some of the things that they take into consideration, the very basic information of course, is your age. They do take a look at your education. I tell everybody that nobody expects to go through this process and they always kind of want to over, I guess, overstate their education, but sometimes the less education the better. The reason I say that is because usually you have less transferable skills. The less amount of education you have, the less transferable skills the less likely it is for them to place you in some type of a job that you may not have done in the past.

Cindy Speaker: Right.

Valeen Hykes:  They’re also going to take a look at your work history. They’re going to take a look at the jobs you’ve held in the past to try to determine if you can perform any types of those duties or if you have some skills that are transferable to other types of positions. Some other things that they want to take a look at of course are your symptoms or I’m sorry your diagnoses and then of course the symptoms as a result of those. Are you having headaches? The severity of your pain. Basically your activities of daily living and what difficulties are you having with doing those.

Cindy Speaker: Okay. That’s something that has to be done, I mean, is this a very detailed process? I would think that some people that are dealing with difficult illnesses, this would be really tough for them to kind of figure out. How much detail are they going to require?

Valeen Hykes: It’s very detail oriented. It’s funny that you should say that because oftentimes I have clients who are so overwhelmed, who just can’t seem to get this paperwork together. A lot of times it’s the majority of our claims. I say that because we have people who have come to us maybe in the beginning with a physical disability, however, because of that physical disability and the way it’s impacted them and how it’s changed their life so dramatically they start to suffer from mental conditions.

Cindy Speaker:  Sure.

Valeen Hykes: Those mental conditions of course make them unable to do certain types of paperwork, makes them anxious. Sometimes just kind of completely puts them in a different world. It may be somebody who is only ever, never done sedentary type of work, not used to doing paperwork. It is very question intensive, very paperwork intensive. There are a lot of questions that they ask you and require certain forms to be sent back and sometimes it can be a daunting experience.

Cindy Speaker: Let me ask you this, Valeen. When you see the claims denied, is it sometimes because the paperwork was not detailed enough? Is that part of the problem?

Valeen Hykes: Absolutely.

Cindy Speaker:  It is? Okay.

Valeen Hykes: I would say not even going into their diagnoses some things it will come down to then the way that they’ve described their past work. If we have somebody who is 55 or older, there’s a different set of rules that goes into play. I just had a hearing the other day where the judge was asking, “Okay. Well, you do this type of work. You’re a bus driver, but are you also not required to make sure that handicapped people can get on and off the bus safely? Are you not required to lifted certain amounts of weight?” They think that just because they’re behind the wheel that that’s not part of their job and I basically feel that we got this gentleman benefits because we were able to clarify that.

Cindy Speaker: Yeah. Interesting. Let’s talk a little bit about SSD versus SSI. I’m familiar with SSI in that I hear about it, but I don’t really know exactly how they differ.

Valeen Hykes:  Okay. Social Security Disability is basically dependent on your work experience. So you work long enough and you earn credits which make you eligible for benefits so basically your employment is what determines your eligibility for Social Security Disability. Now for the supplemental benefits, that’s more based on need. Maybe a minor, somebody who has never worked a day in their life or has a very not a very strong work history we’ll say.

Cindy Speaker:  Okay.

Valeen Hykes:  Now they both of course work on the same rules for the disability part of it, but the actual income, financial aspect of it is what really differentiates between the two. With SSI, they’re going to take your income and your assets into consideration and determine your eligibility. With disability, they’re not going to take any of that into consideration because basically you paid into the system through your work.

Cindy Speaker:  Okay. What does SSI stand for?

Valeen Hykes:  That is the supplemental benefits, Supplemental Social Security Benefits. I’ll tell you. I call is SSD and SSI, but I will tell you I do shorten it to supplemental. You throw me a curve ball here. But, yeah, supplemental benefits is what I usually refer to it.

Cindy Speaker:  We’re used to just calling it SSD and SSI.

Valeen Hykes: Exactly.

Cindy Speaker: What about if the person has been on unemployment compensation? Does that factor in and would they go off unemployment to go on SSD or how’s that work?

Valeen Hykes:  I get this question often. Usually it’s in the form of an email saying oh, no what do I do? I have no way to live. I don’t know what to do. I’ve never expected to have to apply for social security. They may be in a position where they don’t have short term disability. They may not have long term disability benefits so their only option is to apply for unemployment. My caution about that is that it’s a completely different standard than social security. With social security you have to prove that you’re unable to perform any type of work so you can’t do your past work or you can’t do any other type of job that can be found in the national economy. Whereas with unemployment compensation, you’re basically making a representation that you’re able and available to work.

Cindy Speaker:  Okay.

Valeen Hykes: As you can see completely different standards there. There are times where I will say to a client, “I understand you have no other option but to apply and get these unemployment benefits. I know that there is a certain cutoff period where you can get the unemployment.” My recommendation is usually just make sure that once you’re getting close to that hearing that you’re not showing up for the hearing and you’re still on your unemployment benefits. That’s not going to look good in front of a judge that you’re making those two different representations.

Cindy Speaker:  Right. Not to add more complexity to it, but another question I’m just thinking of as you’re talking is what about if it comes in with, I know that you guys handle worker’s compensation, suppose someone gets disabled through a work injury. So they would go on worker’s compensation. At some point would they switch over to SSD or do they always remain in the work comp system?

Valeen Hykes:  Yeah. No. It doesn’t switch over to SSD. That’s a completely different situation.

Cindy Speaker: Okay.

Valeen Hykes:  A lot of times we do get clients from our worker’s comp who have started with us through worker’s comp because for whatever reason whether it be the work injury solely or the work injury in combination with some other physical or mental impairments where we will find the need to file for social security disability for them. But, no it does not turn over to social security at any point.

Cindy Speaker:  Okay. The next thins is the hearing. Now does every person that applies, are they going to have a hearing or do just some of them have a hearing? How’s that work?

Valeen Hykes: Usually if your benefits are denied, the next step is to go through with the hearing if you choose to appeal the decision.

Cindy Speaker: Okay. So only if you’re denied? I’m sorry.

Valeen Hykes:  If you’re denied.

Cindy Speaker: Only if you’re denied?

Valeen Hykes: Correct.

Cindy Speaker:  Okay. Tell us about the hearing.

Valeen Hykes:  Sure. Let me be clear about that. At the initial application stage you don’t go through with the hearing. It’s literally paperwork that you’re submitting to them. They’re making a decision. If you’re denied at that initial stage, that’s when you would appeal. You have 60 days to appeal and by appeal what you’re doing is basically making a request for a hearing.

Cindy Speaker:  Okay.

Valeen Hykes:  At that hearing it can be it’s basically a conversation. It’s a very informal proceeding. You’re sitting there with hopefully your attorney, the client is there of course, the judge will either be present in the room or by video teleconference, as well as the judge’s secretary who will be taking down some notes, and then a vocational expert. Basically what happens at that hearing is the judge will question you about your activities of daily living. They’re going to go into some background information about your age, your education. They usually go into pretty good depth about your work history, the last time you worked, why you stopped working at that last job, the reasons for that, what problems you had doing your last job. Also, what problems you’ve had doing any of your past work. Usually what they do is they take a look at the last 15 years of your work history to determine if you could do any of that work before looking at any other jobs.

Usually the judge will ask you questions about that. I will usually follow up, I usually always have questions, just because I’m a little bit more familiar with the client than the judge is. The judge is reviewing the medical. They don’t know the client as personally as I will so typically I do have questions to follow up. Then what we do is we turn our attention to the vocational expert.

Cindy Speaker: Okay.

Valeen Hykes:   The vocational expert is somebody who is there and they usually answer questions based on some questions that are posed to them by myself or the judge.

Cindy Speaker:   Okay. So the vocational expert, they’re simply there to answer questions? At some point do you ever get involved with vocational experts trying to help recommend retraining or anything like that? Or is that not really relevant to this?

Valeen Hykes:   Usually what their role is is to they can only answer the questions that are posed to them by either the judge or myself.

Cindy Speaker:   Okay.

Valeen Hykes:   They’re there and they’re listening to the clients, but they can’t assess the client’s credibility or anything like that. Basically the judge will say okay assume that somebody of the same age, education, work history as the claimant here has the following environmental limitations, postural limitations, whatever limitations the judge questions. Then they can only answer the question about whether work can be performed on that specific hypothetical.

Cindy Speaker:  Okay.

Valeen Hykes:   Now if there’s something additional that the judge hasn’t asked them and I feel needs to be asked, usually I’ll follow up with an additional hypothetical or two and say in addition to what the judge has already questioned assume further that this person is also going to be off task from work maybe due to the side effects of pain medication, maybe due to not being able to wake up in the morning because of not getting a good night’s sleep, things like that. Then ask them based on their professional opinion whether somebody of the same age or education would be able to perform any types of work.

Cindy Speaker:  Okay. Overall you’ve talked about a few months here and more months here, but the entire process, what’s the range of months or years that it takes typically to file and then be ultimately approved?

Valeen Hykes: It usually is somewhere around two to two and a half years from start to finish. I have seen plenty of circumstances where it has taken longer, but on the same token I’ve also seen plenty of circumstances where we’ve been able to get them benefits earlier than the 120 days. It really does vary.

Cindy Speaker: Do the benefits kick in retroactively? Are they paid for the-

Valeen Hykes:  They do.

Cindy Speaker:  At what point do they start? I mean how far back do they get paid? From the time they apply?

Valeen Hykes: The way that works is we have something called an Alleged Onset Date. Usually that date is determined based on a person’s last date of full time work.

Cindy Speaker:  I see.

Valeen Hykes:  As long as somebody is working full time, let’s say five out of the last 10 years, they’re usually insured for benefits so they’re date last insured is in the future. The Alleged Onset Date like I said is the date that we’re trying to get the judge to find them disabled as of. As long as we’re successful in doing that, we can get their benefits paid retroactively back until that date.

Cindy Speaker:  Okay. If we could let me just talk for a minute about mental disabilities, mental illness and things like that because I think we see so much more of that these days. Is that a more difficult process to get disability or is it about the same as a physical disability?

Valeen Hykes:  I would say it depends on the diagnosis. Whereas if we see somebody who comes through and they’ve been diagnosed with schizophrenia, I would say that’s not a very difficult diagnosis to get benefits for.

Cindy Speaker:  Okay.

Valeen Hykes:  We’re usually very successful in that.

Cindy Speaker: Good.

Valeen Hykes: Due to the severity of the condition. I will tell you when you see somebody who comes through though with just the mental impairments, I would have to say based on experience that it is a bit more difficult to get benefits. Unless, of course, we have somebody who’s come through and they’ve spent weeks or months in some type of a facility for either depression or anxiety, something like that, bipolar disorder. If we have a lot of hospitalizations, it seems to be a bit easier. Also, if we have maybe a mental capacity evaluation where a doctor has basically said that they’re unable to perform work like duties then it could be much easier.

Cindy Speaker: Yeah. Do you see any difference in approval rating with a lawyer versus without? I mean how often they get approved?

Valeen Hykes:  You know what I don’t know. I’m not really up on the statistics on that. Just based on my experience and the number of clients that I have come to me after they’ve tried to get benefits on their own, I would say that statistics must show that you’re much more likely to get a favorable decision if you do have representation. Again, the reason I say that is because there are a lot of social security attorneys out there and there are also a lot of claimants out there and social security knows that it’s not that difficult to get an attorney to represent you especially if you do have a case that they feel is a good case and that they can successfully get you benefits.

Cindy Speaker: Well, based on our conversation I can definitely say if there’s anyone I knew that had some type of a disability that potentially could qualify, I would certainly recommend that they get an attorney involved.

Valeen Hykes:  Absolutely.

Cindy Speaker:  It just makes sense with the complexity of the paperwork, the details that have to be provided. Tell me a little bit about cost if you could. How does that work? Do you charge an upfront fee? Or how is that done?

Valeen Hykes: The way we operate is basically we don’t get paid unless we get benefits for the claimant which is why we can only take cases that we feel have a good chance of success.

Cindy Speaker: Sure.

Valeen Hykes:   If we do get benefits for them our fee only comes out of any of the retroactive portions. Like I was saying that Alleged Onset Date, of course, we try to take that as far back as we can not only for the client but also because we know that our fee is coming from that as well. Our fee is either 25% of that retroactive amount, the maximum amount that we charge is 6,000. That’s set by statute so not much flexibility in that. It’s standard for every attorney who does this.

Cindy Speaker:  Yeah. That’s encouraging because there’s really no barrier for anyone to call an attorney.

Valeen Hykes:  Exactly.

Cindy Speaker: Yeah.

Valeen Hykes: There’s really not. I also like to mention that the only other thing that we get clients who are a little skeptical about is the cost of obtaining the medical records. In Pennsylvania there’s a cap on what the doctors can charge for each request that we make so the cost that we have going back to a client are usually very minimal. I think it’s 27 or 28 dollars for each request that they’re allowed to request from us so usually a very minimal charge for that as well.

Cindy Speaker: Yeah. To anyone that is listening to this if they are disabled, honestly, I think it’s important to get an attorney involved. Valeen, if someone wants to reach your office, how can they do that? What number should they call?

Valeen Hykes:  They can reach me at our Frackville office in Schuylkill County at 570-874-3300. We also have an 800 number. It’s 1-800-518-4529. That’s 1-800-518-4LAW. We have a website as well. You can also reach us at www.OConnorLaw.com.

Cindy Speaker: Very good. Well, listen thanks so much for your time today. It’s great information.

Valeen Hykes: Thank you, Cindy.

Cindy Speaker:  Yeah. Okay, everybody, thanks for joining us today and until next time which will probably be next week, we’ll be live again giving you more information about legal issues that affect you. Thanks so much.

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