Frequently Asked Questions
Social Security Disability Law
How do I apply for disability
benefits?
You can apply for benefits and can
complete some or all of the forms online at www.socialsecurity.gov/applyfordisability.
You can also call Social Security’s toll-free
number: 1-800-772-1213 to schedule a telephone appointment
or you can call your local Social Security office to
schedule an in-person or telephone appointment.
If the local Social Security offices listed in our
website are not right for you, you can find the Social
Security office nearest to you or most convenient to
you at www.socialsecurity.gov/locator/.
People who are deaf or hearing impaired may call Social
Security’s toll-free "TTY" number, 1-800-325-0778,
between 7 a.m. and 7 p.m. Monday through Friday.
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After I apply, what is the
process?
Introduction:
Social Security Administration employs a well known
five step sequential analysis. Step 1 of the sequential
analysis is the question: are you working? If a claimant
is working and earning at a level of “substantial
gainful activity,” s/he is, by definition, not
disabled. At Step 2 of the sequential analysis, if the
claimant is not working, a decision is then made as
to whether the claimant has a “severe impairment.”
At Step 3, a determination is made as to whether the
claimant meets or equals in severity a listed impairment.
If s/he does, the claimant will be found disabled. After
Step 3 but prior to Step 4, a determination as to the
claimant’s “residual functional capacity”
is made. Once “residual functional capacity”
is established, at Step 4, a determination is made as
to whether the claimant can return to her/his “past
relevant work.” If the claimant can return to
her/his “past relevant work,” unless a GRID
rule applies, s/he will be found not disabled. If it
is determined at Step 4 that the claimant cannot return
to her/his “past relevant work,” at Step
5 a determination is made as to whether the claimant
retains the “residual functional capacity”
to perform any other type of work which exists in significant
numbers in the regional or national economies.
Initial:
After Social Security personnel completes the application
process, the “initial” application is sent
to Disability Determination Services (DDS) to make disability
determinations. The DDS claims examiner assembles the
claimant’s medical records, with the help of the
claimant’s attorney if one is involved, and the
case is sent to a DDS reviewing physician for a disability
determination. A Notice of Initial Determination is
then sent to the claimant.
Reconsideration:
If denied, the claimant then has the right to file
a “Request for Reconsideration.” The file
will then be returned to DDS to a new claims examiner
for additional development of the medical record, if
necessary, and for a second disability determination
by the DDS reviewing physicians. A Notice of Reconsideration
is then sent to the claimant.
Hearing:
If denied again at the reconsideration level, the claimant
then has the right to Request a Hearing before an Administrative
Law Judge at the Office of Disability Adjudication and
Review. The average delay from the filing of a Request
for Hearing to the scheduling of the hearing varies
but currently is approximately sixteen (16) to eighteen
(18) months at the Providence Office of Disability Adjudication
and Review. At the hearing, the ALJ often employs the
services of medical and vocational experts to provide
expert opinion evidence as to the claimant’s medical
condition, residual functional capacity, and ability
to work, including statistical data regarding the existence
and incidence of jobs the claimant could perform, despite
his/her impairment. After the hearing is held, the average
processing time for the issuance of a decision is anywhere
from one to six months.
Appeals Council:
If the ALJ issues an Unfavorable Decision, the claimant
can file a Request for Review with the Appeals Council.
The Appeals Council is located in Falls Church, Virginia
and handles all Requests for Review of Unfavorable Decisions
(at the hearing level) for the entire country. If Marasco
& Nesselbush appeals your case to the Appeals Council
we will write a detailed Memorandum of Law, supporting
your appeal.
District Court:
If the Appeals Council affirms the ALJ’s Unfavorable
Decision, the claimant has the right to file a complaint
for relief in the United States District Court (USDC)
for the district in which s/he resides. Again, Marasco
& Nesselbush will always write a Memorandum of Law
supporting your appeal.
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How does Social Security decide
if I am disabled?
After taking your Social Security disability application,
either SSDI or SSI, your case will be transferred to
an agency called Disability Determination Services (DDS).
A DDS Claims Examiner will seek to obtain your medical
records, and your case will be reviewed by a DDS doctor
who will decide if you meet the criteria to be considered
disabled. To be considered disabled:
- You must be unable to do the work you did before
and Social Security must decide that you cannot adjust
to any other work which exists in the regional or
national economy because of your medically determinable
physical or mental impairment.
- Your disability must last or be expected to last
for at least one year or to result in death.
Social Security pays only for total disability. No
benefits are payable for partial disability or short-term
disability; however factors such as your age, education,
literacy, and the type of work you did in the past are
all factors which impact the decision of whether you
will be considered “totally disabled.” For
instance, if you did heavy work in the past, but now
you are limited to light work, you may be found totally
disabled even though you can perform light or sedentary
work. For adults, Social Security uses a five-step evaluation
process to decide whether you are disabled under Social
Security law.
Call Marasco & Nesselbush for more information
about the complex analysis of whether you meet Social
Security’s criteria for disability.
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What if I do not have medical
insurance?
In order to support your claim, it is extremely important
that we are able to obtain medical records or medical
evidence. If you do not have health insurance, you may
be eligible for “Medical Assistance” through
the Rhode Island Department of Human Services. Please
contact your local welfare office for guidelines and
the application.
Local welfare offices:
| Providence |
203 Elmwood Avenue |
401-222-7000 |
| Pawtucket |
24 Commerce Street |
401-729-5400 |
| Woonsocket |
450 Clinton Avenue |
401-235-6300 |
| Warwick/South County |
195 Buttonwoods Avenue |
401-736-6511 |
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When should I get an attorney
involved?
You can engage expert legal counsel at any point in
the process of applying for Social Security disability.
Some claimants want to engage legal counsel as early
in the process as possible to ensure that things are
done right from the start so as to maximize their chances
of winning as soon as possible. Others prefer to wait
to see if they can win on their own. Although Marasco
& Nesselbush prefers to be involved from the beginning
so we can maximize and optimize your results, there
is really no “right answer.” At Marasco
& Nesselbush we are happy to represent clients at
whatever stage they feel comfortable. However, in our
opinion, clients should NOT attend an administrative
hearing at the Office of Disability Review and Adjudication
without an attorney.
Marasco & Nesselbush is extremely helpful and successful
in obtaining Social Security disability benefits for
disabled claimants. National statistics show that claimants
with legal representation have a substantially
greater likelihood of receiving an award of disability
benefits than claimants who proceed without an attorney.
Applying for Social Security disability benefits can
be a difficult, daunting and overwhelming process. A
missed deadline may mean that you have to start the
process over again. A missed deadline or unfavorable
decision after your “date last insured”
has expired may mean that you are forever precluded
from applying again. Do not let this happen to you.
Do not be a victim of the system.
Marasco & Nesselbush can and will ease your way
during the application and appeal processes. In addition
to obtaining your medical records, we at Marasco &
Nesselbush have developed effective strategies to obtain
important medical opinion evidence to support your disability
claim. We will communicate with your physician(s) to
obtain helpful medical and legal evidence of your disability.
Over the years, we have developed valuable physician
questionnaires to enable your doctor(s) to meaningfully
and easily support your claim for disability benefits.
We will advise you regarding the application process,
we will appeal a denial, if any, we will review your
case to determine if you qualify for an expedited decision,
we will prepare you and accompany you to your hearing
before the Administrative Law Judge and, once approved,
we will continue to advocate for you until you receive
your retroactive and monthly benefits. Without Marasco
& Nesselbush, you may be unnecessarily denied, your
case may take longer than it needs to, or you may not
receive all the benefits to which you are legally entitled.
Do not let any of these things happen to you. Call us
for a free consultation. We make a difference.
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How much does Marasco &
Nesselbush charge to represent me?
We charge no fee unless and until we win your case
and obtain Social Security disability benefits for you.
When we win, our fee is twenty-five percent (25%) of
retroactive benefits. The Social Security Administration
will automatically withhold our twenty-five percent
(25%) fee, and will send you, the claimant your remaining
seventy-five percent (75%) of your retroactive benefits.
You, the claimant, will then begin receiving your full,
monthly Social Security disability check(s) each month,
into the future, with absolutely no additional fees
to Marasco & Nesselbush. Our fee is a one-time payment,
made automatically by the Social Security Administration,
of 25% of your retroactive benefits. There may also
be a cost to obtain medical evidence supporting your
claim. Costs for obtaining your medical records are
generally low and are different from legal fees for
doing the legal work on your case. Marasco & Nesselbush
always tries to obtain your medical records or other
medical evidence for either no cost or for as low a
cost to you as possible.
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Does the Social Security Administration
withhold past-due benefits to directly pay attorney’s
fees?
Yes. Currently, the Social Security Administration
(SSA) withholds 25 percent of a claimant's past due
benefits for both SSDI and SSI benefits for direct payment
of attorney’s fees. If the attorney and client
agree to a fee other than the 25% or greater than the
amount of past-due benefits, and if SSA authorizes the
fee, then the claimant is responsible for paying the
difference to the attorney. This can happen but rarely
does. Generally, it happens in cases which involve relatively
small amounts of retroactive benefits, and the attorney
wants to charge a minimum fee to be adequately compensated.
However, although some cases fall outside the norm,
the norm is 25% and generally our fee is the norm of
25% of retroactive benefits.
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What is the difference between
Social Security disability and SSI disability?
The Social Security Administration is responsible for
two major programs that provide benefits based on disability:
Social Security Disability Insurance (SSDI) which is
based on prior work under Social Security and Supplemental
Security Income (SSI). Under SSI, payments are made
on the basis of financial need.
Social Security Disability Insurance (SSDI) is financed
with Social Security taxes paid by workers, employers,
and self-employed persons. To be eligible for Social
Security Disability Insurance benefits, the worker must
earn sufficient credits based on taxable work to be
"insured" for Social Security purposes. Disability
benefits are payable to blind or disabled workers,widow(er)s,
or adults disabled since childhood, who are otherwise
eligible. The amount of the monthly disability benefit
is based on the Social Security earnings record of the
insured worker.
Supplemental Security Income (SSI)
is a program financed through generalrevenues. SSI disability
benefits are payable to adults or children who are disabled
or blind, have limited income and resources, meet the
living arrangement requirements, and are otherwise eligible.
The monthly payment varies up to the maximum federal
benefit rate, which may be supplemented by the State
or decreased by countable income and resources.
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What is Supplemental Security
Income (SSI)?
The SSI program provides monthly income to eligible
individuals who are age 65 or older, or are blind or
disabled, and have limited income and financial resources.
The SSI payment for an eligible individual is approximately
$600 per month and $900 per month for an eligible couple.
However, the rates change yearly. Current information
about the SSI individual and couple’s rates is
available at www.ssa.gov.
If you are married, and only one person is eligible,
a portion of your spouse's income may be counted. In
addition, your financial resources (savings and assets
you own) cannot exceed $2,000 ($3,000 if married). You
can be eligible for SSI even if you have never worked
in employment covered under Social Security.
Generally, to be eligible for SSI, an individual also
must be a resident of the United States and must be
a citizen or a noncitizen lawfully admitted for permanent
residence. Also, some noncitizens granted a special
status by the Department of Homeland Security (DHS)
may be eligible.
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What are “quarters
of coverage” or “credits” and how
do I earn them?
This concept applies only to Social Security Disability
Insurance (SSDI). Quarters of coverage or credits are
the "building blocks" Social Security uses
to find out whether you have the minimum amount of covered
work to qualify for Social Security benefits. If you
stop working before you have enough credits to qualify
for benefits, your credits will stay on your record.
If you return to work later, you can add more credits
so that you can qualify. No benefits can be paid if
you do not have enough credits.
You can earn up to a maximum of four (4) quarters or
credits for each year by working in jobs covered by
Social Security or by operating your own business as
a self-employed person, as long as you pay tax into
the Social Security system.
Starting in 1978, employers report earnings just once
a year. Credits are now based on your total wages and
self-employment income during the year, no matter when
you do the actual work. You might work all year to earn
your 4 credits, or you might earn enough for all 4 in
a much shorter length of time, e.g a month or a couple
of months of work.
The amount of earnings it takes to earn a credit changes
each year. In 2006, you earn one credit for each $970
of your earnings. So if you have earned at least $3,880
during the year, you get the maximum 4 credits.
During your lifetime, you will probably earn more credits
than the minimum number you need to be eligible for
benefits. If eligible for Social Security benfits, your
monthly benefit amount is derived from your average
earnings over your working years. (NOTE: You do not
earn credits for pension payments or for interest or
dividends on savings and investments. You do not pay
Social Security tax on that kind of income.)
About your credits for last year and this year:
When the Social Security Administration prepares a Social
Security Statement at your request, your earnings
for last year may not be on record yet and this year's
earnings will not be reported until next year. Therefore,
Social Security uses the earnings information you gave
them on your request form to assume that you have up
to additional 8 credits for those years (1-4 credits
per year, depending on the earnings amount). Social
Security uses your latest posted earnings for either
last year or the year before to give you these credits.
If you do not have any earnings on record for either
year, or you do not tell them about your earnings on
your request form, SSA does not give you any assumed
credits for this period.
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How many credits are required
to be eligible for disability?
Again, this is an SSDI concept. It does not apply to
SSI. The number of work credits you need to qualify
for SSDI benefits depends on your age at the time you
become disabled. Also, the credits must have been earned
within a certain time period. Generally, you need 20
credits earned in the last 10 years, ending with the
year you become disabled. Generally, you must have worked
five out of the last ten years.
Younger workers may qualify with fewer credits. For
example:
- A worker who becomes disabled before age 24 needs
to have earned six credits in the three-year period
ending when disability starts.
- A worker who becomes disabled between ages 24 and
31 needs to have credits for half the time between
age 21 and the time disability starts. If disability
starts at age 27, the worker would need credit for
three years of work (12 credits)) out of the past
six years between age 21 and age 27.
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How much will I receive in
SSI benefits?
The amount of your SSI benefit depends on where you
live. The basic SSI check is the same nationwide. However,
many states add money to the basic check. Current information
about SSI rates is available at www.ssa.gov.
If a state provides a supplement which Social Security
includes in the SSI check then your application for
SSI in that state includes the state supplement. Following
is a list of States that supplement the basic SSI amount
with a link to more information about that State:
If you get SSI, you also may be able to get other help
from your state or county. For example, you may be able
to get Medicaid, food stamps, or other social services.
For information about the services available in your
community, call your local
Department of Human Services.
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What is a "resource"
in the SSI program?
Resources are the things you own such as cash, real
estate, personal belongings, bank accounts, stocks and
bonds that you can use for your support.
To be eligible for SSI a person must have $2,000 or
less in countable resources. A married couple must have
$3,000 or less in countable resources. If you own resources
over the SSI limit, you may be able to get SSI benefits
while trying to sell the resources.
Not all of your resources count toward the SSI resource
limit. For example:
- the home you live in and the land it's on do not
count.
- your personal effects and household goods do not
count.
- life insurance policies may not count, depending
on their value.
- your car usually does not count.
- burial plots for you and members of your immediate
family do not count.
- up to $1,500 in burial funds for you and up to $1,500
in burial funds for your spouse may not count.
- if you are blind or have a disability, some items
may not count if you plan to use them to work or earn
extra income.
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Is it true that a person
can own a home and still be eligible for SSI benefits?
Yes, a person who owns a home and lives in that home
can be eligible for SSI benefits.
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Can I receive Social Security benefits and SSI?
You may be able to receive SSI in addition to monthly
Social Security benefits, if your Social Security benefit
is low.
The amount of your SSI benefit depends on where you
live. The basic SSI check is the same nationwide. Current
information is available at www.ssa.gov.
Following is a list of all states that supplement the
basic SSI amount with a link to more information about
that state:
If you get SSI, you also may be able to get other help
from your state or county. For example, you may be able
to get Medicaid, food stamps, or some other social services.
For information about the services available in your
community, call your local social services department
or public welfare office.
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Will my Social Security benefits
change when I turn full retirement age?
When you reach full retirement age, your Social Security
checks will automatically continue, but will be called
retirement benefits instead of disability benefits.
What is Your Full Retirement Age?
Year of Birth |
Full RetirementAge |
1937 or earlier |
65 |
1938 |
65 and 2 months |
1939 |
65 and 4 months |
1940 |
65 and 6 months |
1941 |
65 and 8 months |
1942 |
65 and 10 months |
1943--1954 |
66 |
1955 |
66 and 2 months |
1956 |
66 and 4 months |
1957 |
66 and 6 months |
1958 |
66 and 8 months |
1959 |
66 and 10 months |
1960 and later |
67 |
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Do I have to pay income tax
on my Social Security benefits?
The answer is "maybe."
Some people who get Social Security benefits have to
pay income taxes on them. This will apply to you only
if you have other substantial income in addition to
your benefits (for example, wages, self-employment,
interest, dividends and other taxable income that you
have to report on your tax return). No one pays taxes
on more than 85 percent of his or her Social Security
benefits and some pay on a smaller amount, based on
these IRS rules:
- If you file a federal tax return as an "individual"
and your combined income* is between $25,000 and $34,000,
you may have to pay income tax on 50 percent of your
Social Security benefits. If your combined income
is above $34,000, up to 85 percent of your Social
Security benefits is subject to income tax.
- If you file a joint return, you may have to pay
taxes on 50 percent of your benefits if you and your
spouse have a combined income* that is between $32,000
and $44,000. If your combined income is more than
$44,000, up to 85 percent of your Social Security
benefits is subject to income tax.
- If you are married and file a separate tax return,
you probably will pay taxes on your benefits.
*On your 1040 tax return, your "combined income"
is the sum of your adjusted gross income, plus nontaxable
interest, plus one-half of your Social Security benefits.
Every January you will receive a Social Security Benefit
Statement (Form SSA-1099) showing the amount of benefits
you received in the previous year. You can use this
statement when you complete your federal income tax
return to find out if your benefits are subject to tax.
Although you're not required to have federal taxes withheld
from your Social Security benefits, you may find it
easier than paying quarterly estimated tax payments.
For more information about your taxes, see Internal
Revenue Service (IRS) Publication
554, Tax Information for Older Americans, and Publication
915, Social Security Benefits and Equivalent Railroad
Retirement Benefits. Both publications have worksheets
to help you figure out whether your benefits would be
taxable.
You also can call the IRS toll-free number, 1-800-829-3676
to ask for copies of these publications.
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Is there a time limit on
Social Security disability benefits?
No. Your disability benefits will continue as long
as you remain disabled, as long as your medical condition
has not improved, and as long as you still cannot work.
Yourcase may be reviewed at regular intervals to make
sure you are still disabled.
If you are stillreceiving disability benefits when
you reach full retirement age, they will automatically
be converted to retirement benefits.
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If I go back to work, will
I automatically lose my disability benefits?
No,the Social Security Administrationhas several work
incentives that may help you to return to work without
losing your benefits.
For more information about Social Security's work incentives
you should: call SSA’s toll-free number at 1-800-772-1213;
or contact your local Social Security office; or visit
SSA’s special “Worksite.”
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How do workers' compensation
payments affect my disability benefits?
Disability payments you receive from workers' compensation
and/or another public disability payment may reduce
you and your family's Social Security benefits.
Your Social Security disability benefit will be reduced
so that the combined amount of the Social Security benefit
you and your family receive plus your workers' compensation
payment and/or public disability payment does not exceed
80 percent of your average current earnings. (Note that
the unreduced benefit amount is counted for income tax
purposes.)
A workers' compensation payment is one that is made
to a worker because of a job-related injury or illness.
It may be paid by federal or state workers' compensation
agencies, employers, or insurance companies on behalf
of employers.
Public disability benefits (PDB) may affect your Social
Security benefit. Those benefits in Rhode Island are
called Temporary Disability Insurance (TDI) benefits.
Those benefits are paid under a federal, state, or local
government law or plan. A PDB is not usually based on
a work-related disability. They differ from workers'
compensation benefits because the disability that the
worker has may not be job-related. Examples are civil
service disability benefits, military disability benefits,
state temporary disability benefits, and state or local
government retirement benefits which are based on disability.
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Do disabled children qualify
for Social Security disability benefits?
There are two Social Security disability programs that
include disabled children.
Under the Supplemental Security Income (SSI) program,
a child from birth to age 18 may receive monthly payments
based on disability or blindness if:
Under the Social Security Disability Insurance (SSDI)
program, an adult child (a person age 18 or older) may
receive monthly benefits based on disability or blindness
if:
- He or she has an impairment or combination of impairments
that meets the
definition of disability for adults; and
- the disability began before age 22; and
- the adult child's parent worked long enough to be
insured under Social Security and is receiving retirement
or disability benefits or is deceased.
Under both of these programs, the child must not be
doing any
"substantial" work, and must have a severe
medical condition that has lasted or is expected either
to last for at least 12 months or to result in death.
More information regarding childhood disability benefits
is available at www.ssa.gov.
For more information about childhood disability benefits
for children with severe disabilities, call Marasco
& Nesselbush.
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What should I do while my
case is pending and I have no money?
You may be eligible to apply for Temporary Disability
Insurance. Please contact your local the Department
of Labor and Training. You also may be eligible for
General Public assistance, “Bridge Fund.”
Please contact the welfare office.
Rhode Island local offices:
| Providence |
203 Elmwood Avenue |
222-7000 |
| Pawtucket |
24 Commerce Street |
729-5400 |
| Woonsocket |
450 Clinton Avenue |
235-6300 |
| South County/Warwick |
195 Buttonwoods Avenue |
736-6511 |
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Can I collect unemployment
while my disability claim is pending?
This is a complex question. Theoretically, one must
be ready, willing and able to work to collect unemployment
benefits. Accordingly, if you are disabled,
theoretically you are not ready, willing and able
to work. However, the attorneys at Marasco & Nesselbush
have strategized some legal arguments which may enable
a client to receive unemployment benefits while applying
for Social Security disability and which may dissuade
a judge from holding your receipt of unemployment benefits
against you when deciding your disability case. Call
Marasco & Nesselbush if you need legal advice regarding
this complex issue.
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Can I collect Temporary Disability
Insurance while my disability claim is pending?
Absolutely. In fact, if you are eligible for Temporary
Disability Insurance benefits, Marasco & Nesselbush
recommends that you collect these benefits as they may
support and sustain you during the usually long process
of applying for and being approved to receive Social
Security disability benefits.
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Can an attorney help me win
my case?
Absolutely.
Marasco & Nesselbush is extremely helpful and successful
in obtaining Social Security disability benefits for
disabled claimants. National statistics show that claimants
with legal representation have a substantially
greater likelihood of receiving an award of disability
benefits than claimants who proceed without an attorney.
Applying for Social Security disability benefits can
be a difficult, daunting and overwhelming process. A
missed deadline may mean that you have to start the
process all over again. A missed deadline or unfavorable
decision after your “date last insured”
has expired may mean that you are forever precluded
from applying again. Do not let this happen to you.
Do not be a victim of the system.
Marasco & Nesselbush can and will ease your way
during the application and appeal processes. We will
obtain your medical records and will communicate with
your physicians to obtain helpful medical and legal
evidence of your disability. We will advise you regarding
the application process, we will appeal a denial, if
any, we will review your case to determine if you qualify
for an expedited decision, we will prepare you and accompany
you to your hearing before the Administrative Law Judge
and, once awarded, we will continue to advocate for
you until you receive your retroactive and monthly benefits.
Without Marasco & Nesselbush, you may be unnecessarily
denied, your case may take longer than it needs to,
or you may not receive all the benefits to which you
are legally entitled. Don’t let any of these things
happen to you. Call us for a free consultation. We
make a difference.
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