Reducing the Spread of COVID-19 (Coronavirus) Learn More.
Now offering video conferencing and text messaging.

Justia Lawyer Rating
Martindale-Hubbell 2019
Family Friendly Business 2022
State Bar of New Mexico
Super Lawyers
40 Years NOSSCR

Social Security Disability Insurance (SSDI) Claims

Social Security Disability Insurance (SSDI) benefits are available for an individual over the age of 18 who is found to meet the requirements for disability. Social Security disability is the inability to do any substantial gainful activity because of any medically determinable physical or mental impairment or combination of impairments which can be expected to result in death, or has lasted or can be expected to last 12 continuous months or more.  In order to meet the definition of disability, the claimant must have a severe impairment that renders the individual unable to perform past work or any other substantial gainful work in the national economy.

In order to qualify for SSDI, the claimant must have earned fully insured status. If you are insured for SSDI you have worked long enough and paid Social Security taxes. In general, you must have earned 20 quarters of coverage within the last 40-quarter period to earn fully insured status. Individuals who are disabled prior to age 31 can qualify with less quarters. You can check your insured status by opening an SSA.gov account and view your earnings statement. In order to receive SSDI benefits, a disability must be proven before the insured status expires.

Disabled adult children, widows or widowers, and minor children may qualify for SSDI benefits on the earnings record of their parent or spouse.

Attorneys at Martone Law Firm are experienced with assisting claimants with obtaining SSDI benefits.  Contact Martone Law Firm today to find out how we can help you with your claim for SSDI.

Initial Disability Application

Social Security provides several ways to file a claim for disability benefits. A claimant may visit a local Social Security office to file a claim in person, call Social Security’s 1-800 line to file a claim by phone, or submit an application online. This is often a difficult process for a disability claimant. There are long wait times at Social Security or there is a problem with submitting the online application. A disability claimant must have detailed information about his or her medical conditions, providers, medications, work history, and functional limitations.  .

At Martone Law Firm we assist claimants with the initial application in the convenience of our office either in person or by telephone with our experienced legal staff.

Once a complete application has been received, Social Security determines if the non-medical requirements for disability benefits are met. This may involve checking a claimant’s insured status or whether they meet the threshold income and resource limits. It also includes whether or not all the forms have been properly completed and signed. Social Security may deny a claim for non-medical reasons, which include not signing the release form, not being insured for SSDI, or having too much income or resources to qualify for SSI.

If all information needed to process the claim has been provided, Social Security then refers the claim to Disability Determination Services (DDS) for a medical determination. DDS often sends out numerous forms for the claimant to complete, including work history, work activity, function reports, and other questionnaires specific to a particular medical condition. Sometimes a claimant will be sent for a consultative examination with one of Social Security’s contract physicians. Once DDS makes a medical determination, the case is returned to Social Security for action on the claim. It generally takes 3 to 6 months for the initial determination, but this can vary depending on the number of claims being processed. If Social Security notifies you that your claim has been denied, you have only 60-days to request review.

At Martone Law Firm we assist our clients with filing the initial application, ensuring that all necessary forms are completed, and track the status of the claim for a determination. Contact Martone Law Firm today to find out how we can help you file the initial claim for disability benefits.

Disability Appeals

At Martone Law Firm we assist claimants at all levels of the appeals process. Social Security generally allows only 60-days to appeal an unfavorable determination and many claimants are discouraged when they receive the denial letter and are reluctant to appeal or do not understand the appeals process.  Missing a deadline to appeal an unfavorable decision is detrimental to your claim for disability. An unrepresented claimant may miss a deadline to appeal and instead start their claim over, resulting in a reduction of potential back benefits or bar their claim completely if the date last insured for SSDI is expired.

After the initial determination, Social Security allows 60-days to request a reconsideration. At the reconsideration level, additional information about the claimant’s conditions is provided and Disability Determination Services (DDS) makes another medical determination. It generally takes 3 to 6 months for the reconsideration process, however, this may vary depending on the number of claims being processed. DDS generally sends duplicate forms from the initial determination to get updates on the person’s conditions, work activity if any, and functional limitations. You may also be sent for a consultative examination with one of Social Security’s contracted physicians. If the reconsideration determination is a denial of the claim, Social Security allows 60-days to request a hearing.

If a claimant is denied benefits by an Administrative Law Judge after a hearing, there is another 60-day appeal window to request review by the Appeals Council. The Appeals Council consists of adjudicators and judges in Falls Church, Virginia who evaluate all requests for review from claimant’s who have been denied benefits by an Administrative Law Judge. The most common reasons the Appeals Council accepts cases for review are an error of law, or the decision is not based on substantial evidence. The Appeals Council will also review a case if there appears to be an abuse of discretion by the Administrative Law Judge, there is a broad policy or procedural issue that may affect the general public interest, or the Appeals Council receives new and material evidence that related to the period on or before the date of the hearing decision and there is a reasonable probably that the additional evidence would change the outcome of the decision.  The Appeals Council generally does not consider new information, unless it is specifically related to the time period reviewed by the Administrative Law Judge and there must be a good reason why the information was not available at the hearing.   .

If the Appeals Council denies review, the claimant has 60-days to file a civil action in U.S. District Court (federal court), which is explained further in another section.

There may be good reasons why a claimant was unable to appeal within the 60-days and therefore allow for a late appeal to be processed. Some examples of good cause to miss a deadline to appeal are you were seriously ill, there was a death or serious illness in your immediate family, you did not get a copy of the decision, or some other unusual, unexpected, or unavoidable circumstance beyond your control prevent you from appealing.

Attorneys at Martone Law Firm can assist you with identifying whether you have good cause for missing the deadline and get your claim back on track without starting over and losing potential benefits. Contact the Martone Law Firm today to find out how we can help you appeal your unfavorable determination.

Administrative Disability Hearings

If you disagree with a reconsideration determination you may ask for a hearing. At the Office of Hearings Operations, administrative law judges (ALJs) conduct hearings and issue decisions on appeals that have been denied at the initial and reconsideration levels of review.  After you request a hearing the ALJ will send you a notice telling you the date, time, and place for your hearing. Before the hearing you can look at the information in your file and submit new information. Any new information must be received by the ALJ no later than 5 business days before the hearing. At the hearing, the ALJ explains the issues in your case and questions you and other witnesses. After the hearing the ALJ issues a written decision.

Attorneys at Martone Law Firm are local and familiar with all the ALJs in New Mexico. We have represented claimants at thousands of disability hearings. Each ALJ conducts his or her hearing procedures a little differently, and an experienced attorney can assist you with the best practice for presenting your case to a particular ALJ. We meet with you prior to your hearing to review all the evidence in your file, gather additional evidence, and prepare you for the questioning at the hearing.

Contact Martone Law Firm today to find out how we can help you prove your disability at an Administrative Hearing.

Civil Actions in United States District Court Against Social Security Administration

If you disagree with the decision of the Appeals Council or the Appeals Council does not review your case, you can file a civil action in a Federal district court. The civil action is filed in U.S. District Court of the district where you live within 60 days of the Appeals Council decision.  .

In District Court, a magistrate judge will review legal arguments made as to why the administrative law judge made legal errors in evaluating your claim or did not have substantial evidence to make the unfavorable determination. At this point in the appeal process, Social Security attorneys argue in favor of affirming the denial. Then the court makes a determination based on all the evidence and legal arguments presented whether to reverse and remand for another administrative hearing, or reverse and award benefits, or affirm the decision.

Attorneys at Martone Law Firm have decades of experience arguing appeals in the U.S. District Court of New Mexico.  We are familiar with the magistrate judges that review these cases, and can present effective legal arguments on your behalf. Attorneys at the Martone Law Firm carefully evaluate each claim in order to determine the best course of action for each client to obtain benefits.

If you received a denial from the Appeals Council contact Martone Law Firm today to find out if your case should continue to U.S. District Court.

Treating Sources for Disability

The proof of a disability begins with objective medical findings in the treating provider’s chart. A physician’s statement that his or her patient is disabled or unable to work does not provide the necessary information to win a disability claim. The medical chart must include documented clinical signs, symptoms, findings, and medical opinions to support any conclusions. It is important for a treating source to provide support for any opinion and that the opinion is consistent with information from other medical and nonmedical sources about the individual’s conditions.

Attorneys at Martone Law Firm are local and experienced with working with treating providers to get the information needed and presented in a way that is favorable to the claim. In addition to presenting impairment-specific forms to complete, and guidance on a narrative statement about a patient’s limitations, attorneys at Martone Law Firm have experience with preparing a treating source to testify at a hearing about his or her patient’s limitations.

Beginning March 2017, Social Security laws were changed to affect the way an opinion from a treating source is considered. Social Security no longer elevates the opinion of a treating source by giving it controlling weight and instead considers all medical opinions, whether by your treating source or a non-examining consultant using the same factors. The most important factors for providing a persuasive medical opinion are supportability and consistency. Social Security also considers the relationship with the claimant, including length of treatment, frequency of examinations, purpose of treatment, extent of the treatment, and examining relationship, as well as the source’s specialization in considering a medical opinion.

Social Security benefits provide minimal cash assistance but more importantly provide access to the health care system through Medicare and Medicaid. A disability claimant may be more interested in getting comprehensive medical coverage in order to continue with treatment than they are with the cash benefit. Continued medical care may provide the individual with the opportunity for recovery and the ability return the workforce in the future.

If you are a medical provider and would like to know more about how you can effectively advocate for your patients, you may contact our office to schedule a workshop to meet the needs of your business. See our Workshops for Professionals practice area.

If you are a disability claimant, attorneys at Martone Law Firm work closely with you in determining whether you have a treating source who can provide a persuasive medical opinion and obtaining the necessary information to support your claim.

Contact Martone Law Firm today to see how our local experience working with treating providers can help you prove a disability claim.

Role of Experts in Disability Claims

Vocational Experts are present at a hearing and may be called to provide testimony about an individual’s past work and the ability to perform other work that exists in the national economy. The issue is not whether a person would be hired for a particular job, or whether they would enjoy the work, or whether it pays well, but rather whether a person has the capacity to perform any other type of work that exists in the United States.

Information about mental, physical, educational, and vocational limitations is critical to a disability claim. Social Security’s regulations in this area are complex. Whether or not you qualify for disability may depend on an analysis of vocational factors and the law in this area is complex. It is important to have an attorney with experience in evaluating vocational information and cross-examining a vocational expert witness at a hearing.

At an administrative hearing, the vocational expert is often asked to identify the person’s past work. It may be critical to a claim that the past work be identified accurately. This becomes more important for individual’s over the age of 50. Social Security acknowledges that as a person ages, their ability to adapt to new skills, tools, and work settings diminishes. For example, a 55-year old with past work as heavy equipment operator with less than high school education is in a different position vocationally than a 40-year old who has worked as an administrative assistant and has a graduate degree.  Other factors, such as composite jobs or transferable skills require an attorney experienced with the vocational factors used to analyze a person’s vocational background and can elicit testimony from the vocational expert favorable to the claim.

Attorneys at Martone Law Firm cross-examine vocational experts on a regular basis, and we are often familiar with the particular individual selected to testify. It is a benefit to have a local and experienced attorney by your side at the hearing.

Medical Experts can be called to testify at a hearing if there is an issue with establishing a remote onset date of disability or whether or not the individual meets a listed impairment. If a medical expert is contacted to testify, that person is provided with information about the claimant’s impairments and asked at the hearing by the Administrative Law Judge his or her opinion on the individual’s functional limitations as of a certain date. It is important to have an experienced attorney at a hearing that can respond quickly to testimony from a medical expert that is unfavorable to the claimant or elicit testimony that better assists the evaluation process.

Attorneys at Martone Law Firm are experienced with cross-examining medical experts at hearings, and will make sure that the Administrative Law Judge has all the information needed to fairly adjudicate your claim.

Medical Treatment for Disability Claims

Social Security considers any and all medically determinable impairments. But it is not enough to have a diagnosis alone. For example, someone may be diabetic but their condition is controlled with medications and with appropriate treatment he or she is able to function well. Another individual, however, may be diabetic with difficult to control blood sugars despite being insulin dependent, have painful neuropathy in the hands and feet, and may experience serious vision changes.

Attorneys at Martone Law Firm assist claimants with any diagnosis that results in functional limitations. Medical records are key to proving a disability. A disability claimant should be getting regular treatment for their alleged disabilities, including taking prescriptive medication as directed, following through with recommendations for therapies, testing, etc., and reporting his or her symptoms to their providers at each visit.

At Martone Law Firm we assist with identifying and obtaining the necessary medical treatment information to prove your claim. There may be situations where a claimant is unable or unwilling to get regular medical care. Attorneys at Martone Law Firm are experienced in obtaining information to support a claim whether or not the claimant has a treating physician. For example, in the case of an intellectual disability there may be no treatment to restore the individual’s ability to function, or a person with a mental disorder may not recognize the need for treatment, or the individual does not qualify for Medicaid and cannot afford out of pocket medical costs. Contact us today to find out how we can assist you with getting the treating information needed to support your claim for disability benefits.

Medication Side Effects

People with disabilities are usually on several prescriptive medications to manage their conditions. These medications often have side effects that can be as bothersome as the illness they are used to treat but are necessary for reducing the illness or containing it. For example, and individual receiving chemotherapy treatment often has side effects of fatigue and confusion, or a medication may cause digestive issues requiring frequent bathroom visits. Social Security considers the side effects of medications as symptoms that must be considered when evaluating a disability claim.

All symptoms and limitations, whether they are caused by a disease, an injury, or side effects from medication should be documented in the medical records. It is important for a patient to tell his or her provider about all side effects at every appointment. This is so your provider will know, and also the symptoms will be documented in the medical records. It is important for the patient to explain not only what the side effects are, but also tell how those symptoms affect the person’s daily life. For example:

  • Do you have difficulty focusing and concentrating after taking a medication?
  • Are memory problems an issue?
  • Has there been excessive weight gain affecting mobility or mental status? Or a decrease in appetite causing drastic weight loss?
  • Are you having digestive problems? Diarrhea? Constipation? Frequent urination? Nausea? Vomiting?
  • Does fatigue create a need for naps or rest several times a day?

Attorneys at Martone Law Firm review all your medical records in preparation for a hearing and will discuss with you how to present information about this important element in your disability claim.

Proving a Mental Health Impairment

Many people with mental health conditions can function adequately for a period of time until a there is a flare of their condition and their symptoms overwhelm them. For example:

  • Bipolar disorder may cause the person spend excessively, engage in risky behavior, alienate friends and family, and may even attempt suicide.
  • Post-traumatic Stress Disorder (PTSD) may cause symptoms that manifest later in life but originated from something in childhood.
  • Depression may cause someone to isolate themselves and not be motivated to leave his or her home.
  • Anxiety may cause problems focusing, being around other people, or panic attacks that cause an inability to function for periods of time.

It is important for patients to be open and honest with their providers so that proper treatment is offered and their records are documented with the functional limitations. Often, there is a combination of physical and mental impairments that limit a person’s ability to function.

What is difficult to prove about a mental health condition is there is no x-ray, lab test, or procedure to show the extent of the person’s limitations. The diagnoses are often based on information the patient reports to their provider.

Treatment notes are an important aspect of proving a mental impairment and the resulting functional limitations. Although psychotherapy notes are protected from by HIPPA, when they are submitted to Social Security for consideration they often provide probative value to the claim. For example, a claimant may get counseling on a regular basis but in response to a request for information the provider only sends information regarding the diagnosis, frequency of treatment, and list of medications prescribed. This information may establish that the person has a medically determinable mental impairment but provides little information about how that person is able to function in spite of their impairment.

The key to a successful disability claim based on mental health is documentation of symptoms and how those symptoms affect the person’s daily life.

Attorneys at Martone Law Firm have experience with working directly with mental health providers to get the detailed information needed to prove a disability.

Client Reviews
★★★★★
I have referred several of my clients to the Martone Law office for excellent disability case representation. I have professionally worked with Attorney Feliz Martone on many of these cases. I have found her to represent and advocate for my clients in a very caring, strong, and effective manner. I will continue to refer clients in need of excellent representation to the Martone Law Office. Patricia Martinez Burr