Just this past week, I have tried two disability cases in which my client stopped working but did not apply for disability for 5 years (in one case) and for 10 years (in the other). These cases were tried before different judges but in both instances, the judge expressed a great deal of concern with the claimant’s delay in filing for benefits.
I rarely see delays in applying like this so I was a little surprised by the reaction I got from these two judges. Here are my thoughts as to why Social Security judges may be concerned (and possibly even a little suspicious) if you wait several years after you stop working to apply for benefits:
Concern about truthfulness – I sense that Social Security judges have a hard time believing that disabled individuals do not know about the Social Security disability program. They may believe that a claimant is working “under the table” for cash, volunteering or caring for children.
Concern about medical evidence – it is somewhat rare for a Social Security claims file to contain medical evidence going back ten to fifteen years. Judges may give you the benefit of the doubt if you claim that your condition existed 3 years ago but the evidence only shows 2 years of diagnosis and treatment. They will not assume that your condition existed 10 years ago based on last year’s medical records.
I am not saying that you cannot win if you waited 5 or more years to apply for benefits, but I would say that you need to think about why you waited, and you should be prepared to explain why to the judge. This is especially true if you had young children at home during this time period or if you have some connection to a cash type business.
“I sense that Social Security judges have a hard time believing that disabled individuals do not know about the Social Security disability program.”
I believe this notion from the ALJ’s is a far cry from reality. Whether one knows “about” the disability program certainly does NOT mean they “KNOW” the program. I had to stop working in 2001 because my impairment became too challenging for me to handle on my own. I had to move back in with my parents who lived in a different state than where I was living. I was only 32 when I moved back home. Even though I was no longer able to work, I certainly didn’t automatically think “hey, I want to give in to my disease and go live off the government.” Maybe I was lucky in that I wasn’t financially forced to make any kind of decisions. I had built up a decent amount of earnings from my short work career, I now had no substantial bills anymore, no debt, and I certainly didn’t have an expensive lifestyle.
Although I missed feeling productive and was no longer in total control of my own life, I tried to not let that rule me. My disease became worse each year. I was still undiagnosed until late 2003 when I finally found out what I had. I was diagnosed with a slowly progressive disease called Ankylosing Spondylitis. My primary care doctor (for whatever reason) waiting 4 years to suggest I see a rheumatologist. This didn’t surprise me because it took 14 years of me constantly complaining of neck/back/hip pain before he sent me to a chiropractor who was the hero in all this because he instantly suspected Ankylosing Spondylitis. Maybe part of the reason I didn’t think about disability for so long was because the medical professionals I depended on for the benefit of my health took a back seat to paying attention to all my symptoms.
I started seeing my rheumatologist in late 2007. She was very sorry for me in that I had waited so long before I was diagnosed because by the time I reached her, about 80% of my vertebrae were fused not including my sacrum joints. The only thing she could do now is help me control the pain and find a biologic that would minimize future fusion. My condition is life-long with no cure, and the fusion will never reverse and will more than likely continue to fuse for the rest of my life.
She was the first person to mention applying for disability, but this wasn’t until the middle of 2009. I’m not sure why she didn’t mention this sooner. I had always pictured “disability” was for the very old crowd who depended on wheelchairs and others to help feed and bathe them. I certainly didn’t want to place myself in the same category. I certainly didn’t know anything about disability law, deadlines, or the absolutely convoluted disability application process. There is simply not enough information out there for people in those early stages of applying for disability. Even know, I wish the local SSA employee would have educated me about the importance of a RFC (residual function report) because I wasn’t able to submit those until 6 months after my initial application. By then, I had already been denied twice.
I believe the local SSA offices should have videos for people to watch before applying for disability. My particular local SSA employee was certainly not very helpful when I had a list of questions.
So, the point of my rant is that I am sure there are many people who don’t really know about the disability program and/or they don’t instantly think/want “to live off the government”. I would imagine there are many men who are stubborn who want to do for themselves as much as possible (and in the meantime they are eating up what work credits they may have left). It’s just a bad situation from the very beginning.
So for me, I stopped working in 2001 and didn’t apply until the end of 2009 for all the reasons listed above. Certainly the ALJ’s can find some credibility in my reasons, then again, I don’t think anyone can predict what ALJ’s are thinking these days and even what set of rules they are using because it seems as if all the rules are applied according to a roll of the dice.