ssdi appeal question...

[leatherman]

over 3 years after I applied and still waiting.

many, perhaps even most, decisions take 3 yrs or slightly longer. If someone didn't warn you about this terribly long wait, they should have.

best wishes on a positive decision soon!

[BT65]

Mark, sorry you're waiting so long. I hope you get good news soon!  Waiting sucks!

[mitch777]

many, perhaps even most, decisions take 3 yrs or slightly longer. If someone didn't warn you about this terribly long wait, they should have.

best wishes on a positive decision soon!

I expected a long ride but at the time of my application the wait time was under three years. Apparantly it is that way now. No wink needed. I thank you for the support but please understand that I comprehend how this works by now.

Mark, sorry you're waiting so long. I hope you get good news soon!  Waiting sucks!

Yes it sucks. Thanks Betty. Hoping for the best but am not prepared for the worst.

Having a down day I guess. I would like to know what we can count on to move at this point as far as income is concerned. I did NOT expect that it would take this long after my hearing in January. It's a bit out of the norm and am pissed at the system.

Are we working on the house to sell only to find out that another appeal would delay everything another 1 1/2 years? I/we just want to move on.

Just a heads up folks... if you need to appeal the judgement at this point it takes that amount of time and you will be facing the same judge that turned you down at the hearing. Them's the rules. 

[DodgerDawg]

Congrats on your 4,000th post!

Perhaps the strategy is to have you croak before they have to grant SSDI.

Hopefully this nightmare ends soon.

DD

[mitch777]

Congrats on your 4,000th post!

Perhaps the strategy is to have you croak before they have to grant SSDI.

Hopefully this nightmare ends soon.

DD

I hadn't noticed my new landmark post. lol. And yes, that is the strategy I think.


I re-read my previous post and I should have put in a "lol" after responding to Mikie's post. Without it it came off kinda rude. 

[bmancanfly]

Every time I see this thread come to the top of the active threads list I think that you must have finally  been approved.

Sorry you're still waiting this long.  What a sad joke. 

[mitch777]

Every time I see this thread come to the top of the active threads list I think that you must have finally  been approved.

Sorry you're still waiting this long.  What a sad joke. 

I think they think I am a super hero and believe I can fly. Sorry to disappoint you but it's nice to have such great support along the way.

My health and energy has gone down hill since the beginning of this thread and the stress involved didn't/ does not help. No LTS should be put through this process. It's cruel and demeaning. My life is on hold in so many ways.

I should change the title of this thread to reflect my journey but I don't know how. Maybe Joe could help.

Maybe it should read "My journey as a LTS to attain disability"?

[mitch777]

I was denied. 

[Jeff G]

I was denied. 

Im so sorry Mark ... hopefully all is not lost and something can be done.

[Miss Philicia]

 

So what is the next step from your lawyer Big G?

[wolfter]

OH Mark, that's just awful.  I know you've answered this before;  Is this the 2nd or 3rd denial?

take care buddy.

[Wade]

Mark,
So sorry to hear this, it really sucks !
I don't understand what it is they want you to prove,
Like you said they must think your superman.
30 years with this virus ,it's hard enough getting out of bed sometimes
let alone holding down a full time job !

[Wade]

Mark,
So sorry to hear this, it really sucks !
I don't understand what it is they want you to prove,
Like you said they must think your superman.
30 years with this virus ,it's hard enough getting out of bed sometimes
let alone holding down a full time job !

[mitch777]

The SSA has a 5 step process to determine if one is eligible. They are in a specific order. If you fail the first question they stop there. The first question is all about the person proving that he was not working. That is where it stopped with me.

Apparently there is a box to check off on my tax returns asking if I was actively involved in the business. The sole purpose of this question is it could affect my taxes if there was a loss which there never was. My accountants software program defaults to check off yes. He knew I was ill but he didn't know until this year that I had filed for disability. Since the "box" was irrelevant to my taxes he never thought to change it.

Now WHO looks at every line of a 15 page tax return? Not me. I look at the figures to make sure that they make sense and that's about it.

Next he sees that I was claiming my car as an expense during the past several years and assumed it was me driving. Having an employee use my car for business purposes is a legitimate business expense. The money saved on taxes was minimal but that's beside the point. He made the assumption that I was driving and working.

He also mentioned that I claimed part of our property at home for the business, which we do. The entire upstairs of the garage is used for storage. He didn't connect the dots as to what he felt the problem was there. There IS no problem! It's another perfectly acceptable way to file my taxes and I have NO idea what his issue is in regards to that. WTF?

That's it folks. Denied over a box checked yes and bad assumptions on his part about my tax return regarding my car.

I am so pissed!

My attorney plans to ask for reconsideration but I find nothing written in the SSA rules that permits this. Hopefully I am wrong but I doubt it.

Anyway, after being turned down the third time we can still appeal one last time.

The rules must have changed a bit as the options with an appeal to the Appeals Council are:

1) deny your appeal
2) return the case to the original judge OR another administrative law judge
3) issue it's own decision
4) dismiss the case

I'm hoping for #3 after they realize what this guy based his bad decision on.

Anyway, my life has been turned upside-down. The business is still failing, moving seems to be out of the question until this gets resolved, and I simply can't work!!!

Everything is on hold.

He had two signed affidavits, one from Kenny and the other from a long-term employee as well as my testimony to prove that I had not worked at the store in the past 4 years. Did I say I was pissed? Grrr...

I could get more signed if needed. Grrr...

I have no idea how long it will take from this point. From what I have read it could take another year or longer. Grrr...

My head is still spinning over this. 

Thanks guys.

btw Wade, it's almost 33 years now and I'm counting! lol.

[britchick]

mitch777

I have followed your story as long as I've been a member of the board.I'm really sorry about the result.I truly believe that the system is designed to make people try to give up.I'm glad that you will appeal the decision.I know that it's so difficult to keep going to through this process but you are in my thoughts.Time for the accountant to add a letter of support to your application too.

britchickxx

[bmancanfly]

Damn,  that sucks.  I'm so sorry you're having so much trouble getting approved Mitch.  You certainly deserve approval.

Have you tried contacting your Congressmen?  Sometimes they can help.  I've heard varying stories about it's relative effectiveness but at this point it couldn't hurt.  This thread has been going on so long I can't remember if you have already tried that or not.

[mitch777]

Thanks britchick. My accountant is great and when I called him yesterday he immediately said he would write a letter. He has already written two in the recent past but this judge still has no clue about what tax forms are all about.

I remember your support from the early stages of this long thread and it is much appreciated!

bman,

I tried the congressman route twice. Both times they have not been in the least encouraging as to how they could help. They said that they could not intervene with a judges decision so I gave up.

Thanks again and yes, this thread has been going on forever.


On a positive note...
My attorney contacted them today and asked for a re-arguement. They seemed open to the idea so maybe we can finally get this guy to understand that I have not materially participated in work for the past 4 years.

If this goes through I plan on getting as many MORE affidavits as possible to prove my point. I guess my testimony and two affidavits weren't enough. Ugh.

Anyway, if we can convince him of that truth it might save loads of time with an appeal assuming that he accepts the overwhelming medical evidence that was already provided.

I really hate being in limbo and would like to plan a future without this kind of stress.

[tednlou2]

Mark,

I am sorry and I only imagine how much stress this causes.  Would a more experienced lawyer have anticipated this and either had you take steps to remove yourself totally from the business, or be very specific in the hearing about the tax forms?  Would someone more experienced have asked to see how your file taxes?  Would the tax filing had been different, if you were married and  the result likely different?

How does this work, with someone who owns a business?  Do you make income?  Do you file no income, but the default checked box just screwed it up?

[mitch777]

Mark,

I am sorry and I only imagine how much stress this causes.  Would a more experienced lawyer have anticipated this and either had you take steps to remove yourself totally from the business, or be very specific in the hearing about the tax forms?  Would someone more experienced have asked to see how your file taxes?  Would the tax filing had been different, if you were married and  the result likely different?

How does this work, with someone who owns a business?  Do you make income?  Do you file no income, but the default checked box just screwed it up?

Thanks Ted.

So many questions!

I wish I could have found a better lawyer but those who deal primarily with disability cases al turned me down because I was self-employed.

The judge did not bring up the issues in my tax form that he stated in my denial letter at the hearing so there was no chance to even rebut them.

I have no idea if filing a joint return would make a difference but down the road and now it remains more beneficial to stay "single" due to ADAP.

Of course I make income and need to report it on my taxes like everyone else. If I didn't make an income from the business I would shut the door for good. That day may be coming soon and that is why I am so anxious about this denial.

The "yes" box is an issue but my accountant is amending three years of returns (the most he can do) to un-check that box as it was an error on his part, but to be fair he had no idea that I was not working at all for the past 4 years. I doubt that 95% of people that have that box to check would ever notice it. This guy didn't understand how I had to file my taxes from the beginning and now all of a sudden he thinks he is a tax expert.

He used one form or another of the word "presume" several times in the denial letter and each and every presumption was incorrect without me or my attorney given a chance to rebut his assumptions. I think I am repeating myself here. Brain on overload. 

[Buckmark]

Mark,

Geez, I don't even know what to say.  It's just so hard to believe you were denied.  The judge really does seem obsessed with your tax returns.  The whole "self-employment" route seems fraught with peril (and yet you would think nice conservative judges would appreciate the situation of an entrepreneur).   I don't know why the judge can't see everything else.  I'm hoping that with your lawyer's and accountant's help, that will tip the scales in your favor.

Regards,

Henry

[OneTampa]

I am late here Mark, but I am also sad to read that you were denied.   

I can only imagine how you feel.

Hope you are able to put a response strategy in motion.

Take care,

OT

[mitch777]

I have not been on the forums for awhile but wanted to thank you Henry for your comment. Maybe this judge is a homophobe and it trumps the business aspect in his conservative mind. Who knows?

His ignoring the entire picture... my testimony, 2 afidafits, and my waist deep medical file, a medical appointment once a week for four years.... I guess that means diddly squat to this guy.

I know I must go forward and I will but this is still hitting me hard. Here I am painting (wearing my supersonic neck brace) where I can in preparation for a move that may end up far from my expectations due to him.

The approval percentage was around 80-85% at the ALJ Hearing level when I entered into this nightmare and has dropped to around 45-50% since. I am probably repeating myself here but this guy's approval rate was the lowest at 24%. I feel crushed, defeated, and cheated.

I have so little energy but am learning that it's best just to take out my frustrations by working at whatever level I can to distract me for now at least from this madness.

Three days or so after getting the denial letter Moo Goo dislocated one or both of her knees. The cost of surgery is out of the question. When it rains...

So....
Exhaustion and not being a bundle of cheer lately has kept me away. I don't expect anything to change soon.

Another whine from poor ole me. lol.

And thanks OT. Everything is under control. Strategy is in place. Will it work? I have no idea.

[mitch777]

Another day, another denial.

The judge denied me once again. The re-arguement was denied on the same basis of his original denial.

He must still believe that I am working even after 3 more affidavits and explaining all of the tax report concerns. Unbelievable.

Now it's on to my final appeal. That could take more than a year.

Productive most of my life, employing many over the past 28 years, nearly 33 years Poz, and then this. I find it shameful.

[Jeff G]

Im so sorry to hear this Mark … fingerers crossed on the appeal.

[mitch777]

Thanks.

[tednlou2]

Mark,

I'm sorry to hear he still doesn't get it. 

[initforlife]

I'm sorry lets hope it gets turned around soon and you get approved. finger crossed for ya!

[mitch777]

Thanks Ted and init. Looking forward to being distracted soon in Memphis.

[mitch777]

So this doesn't look good:


3. Appeals Council
If you lose at your disability hearing, you can request that the Appeals Council review your case. The Appeals Council randomly selects cases for review and has discretion to grant, deny, or dismiss your request for review. The Appeals Council is not a place where you are likely to find success. If you file late, request a dismissal, or die, the Appeals Council may dismiss your claim without reviewing it. Even if none of these scenarios occur, the Appeals Council can dismiss your case without review unless it finds one of the following:
an abuse of discretion (for example, your hearing was cut short) or an error of law (for example, a claimant was not permitted to cross-examine a witness) by the ALJ
the ALJ decision is not supported by substantial evidence, or
a broad policy or procedural issue is raised by the case (such as the ALJ not notifying a claimant that an expert witness would be present at the hearing).
The Appeals Council usually looks for a flaw in the ALJ decision before granting a review. In those situations, your chance of winning is only 2% to 3%. For most people, the only reason to file a request with the Appeals Council is to exhaust all the SSA administrative appeal avenues, which you must do before you sue the SSA in federal court.
4. Federal Court Review
The next step in the appeal process is filing a lawsuit in U.S. district court. If you don't yet have an attorney representative, you will almost certainly need one now. (You can use Nolo's Lawyer Directory to find a Social Security attorney in your area.)
Federal judges hear disability cases without juries. The judge is supposed to review the case only for legal errors, but in reality many judges rule on factual questions, too. District court judges reverse ALJs or the AC in at least a third of all cases, often saying that the SSA did not give sufficient weight to a treating doctor's opinion, did not consider pain and other symptoms, or should have asked for assessments of abilities from treating doctors.
Although you have a fair chance of winning an appeal in federal court, it is not an attractive option. Suing the SSA is expensive and time consuming. Even if you win, it might take years to reach that level of the appeals process. Consequently, not all disability attorneys are willing to file a disability case in federal court and fewer than 1% of disability claimants actually take their cases to court.


Random? 2-3% chance of approval?

Your thoughts J.R.?

I believe an error of law was committed by the ALJ but what good will that do if they don't even look at my case? Again, random?.

If it indeed pans out that my case is dismissed I will be living a life of poverty going forward. It scares the shit out of me and angers me to no end.

I instructed my attorney to send my entire file to both of my Senators and my Representative to expedite the case so the Appeal Council will pay notice. Waiting for her reply.

I wonder if anyone here has any ideas that I have not thought about. Are there organizations out there to help a person in my position?

Thanks.

[mitch777]

So here is the latest update in my saga...

I received a letter of denial from the Appeals Council today. Unless I want to file a federal law suit against them for their decision which is not likely at all, I must start the whole process over again from square one after almost 4 years of waiting.

All of my backpay possibilities have vanished and it might take another 3+ years to see a judge unless the gods are on my side getting approved in the "second" first go around in the new application.

It also means that it will take longer to get on Medicare as there is a 24 month waiting period from the new date of onset which is the day after I was denied by the ALJ. That means private insurance premiums will still need to be paid for quite some time even if my new application is approved at step one.

And so it goes.

Meanwhile...

The house is being put up for sale this May and we are moving to Palm Springs with no income. The business is on it's last legs so we would need to move in any case. It is slightly cheaper in moving to PS than staying here so why not?

Wish I had better news.

[Jeff G]

Im sorry Mark … tough break . You can stay here at my house when you come to house hunt … at least thats one good thing.

[BT65]

That whole thing sucks Mark.  I don't understand it but I don't often understand judges.  Hopefully once you're in California, you'll be approved quickly! I just have a feeling California is more liberal with their decisions than where you are now. 

Betty

[Wade]

Mark ,
I'm sorry to hear the latest news. Maybe you will have better luck after you move and the obstacles that were in your way are gone.
The Medicare part is what really sucks .

Best , Wade

[mitch777]

Thanks guys. Yep, it all sucks. Nothing to do but move forward at a snails pace.

[bmancanfly]

I'm sorry it didn't go the way you had hoped.  It does really suck.  It's a shame that the Social Security Adm. has made it so much more difficult for  HIV+ people to qualify.

I hope you have better lucky in your new location.

[weasel]

     I am sorry to hear this news .

     That is sucky of them !

     I hope that in a new location  you will get approved and get back pay !

                                                          Hugs ,  Leaf

[mitch777]

Hi everyone,

It's been ages since I posted here but thought I would share some good news.

I WAS GRANTED MY DISABILITY ON JANUARY 30th OF THIS YEAR!!!!! I reapplied this past fall and was granted my disability on round one. I also wanted to thank everyone that took this long journey with me. This thread can now come to a close with a happy ending.

On another note...
We will be making a big move from Connecticut to Palm Springs, California next month. Looking forward to a social life,warmer weather, nearby stores, and all of my doctors within a 10 minute drive. Can't wait!

Mark

[BT65]

Congrats Mark!  I'm jealous about your move, but wish you nothing but the best!

Betty

[mitch777]

Thanks Betty. The grass might not be greener there (probably brown, ha!) but I'm giving it a go. You are welcome to visit anytime!

[bmancanfly]

Congratulations Mitch.  I'm so glad this finally came to a satisfactory ending.  It must be a huge relief.

Good luck in Palm Springs.

[Wade]

ABOUT TIME...!!!!

Good Luck with the move and have fun in Palm Springs 

[mitch777]

Thanks guys!