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Ginsberg Law Offices

Month: November 2008

What Happens to my Case if I Return to Work While Waiting for my Hearing?

With delays in the hearing process reaching 2 years, I frequently get questions from potential clients about the implications of returning to work.  Here is a typical question:

i’m 57 yrs old & have filed for ssd due to herniated discs & arthritis of the knee. what happens to my case if i return to work before i get a hearing? i don’t know how long i’ll be able to work , but i got to try.

Jonathan Ginsberg’s response: If you have read this blog and educated yourself about Social Security, you know that the main issue in any Social Security case turns on whether you can perform some type of work reliably 8 hours a day, 5 days a week with normal breaks.  If you are working, by definition, you are not disabled.

Attempting to work while your case is pending may or may not be a problem.  If you try to work and last only a few days or even a few weeks, the judge will see that as an “unsuccessful work attempt” that demonstrates your sincere desire to work and your inability to do so.

Once you stay at a job for more than 3 months, however, it starts to look like you have the capacity to perform “substantial activity.”

Remember that Social Security’s definition of disability looks to whether you have missed or are likely to miss 12 consecutive months because of your impairment.  I have represented several clients who missed 12 months, and then returned to work and we argued for a “closed period” of disability.   If you are out of work for less than 12 months, you are not likely to be approved so you and/or your lawyer should pay attention to the timing of events in your case.

I generally advise my clients that they will earn more money and they will be more fulfilled if they are able to work and I encourage them to do so.  However you need to be realistic about your capabilities – you do not want to go back to work just long enough to damage your Social Security case but not long enough to support yourself over the long run.

How Do You Evaluate Whether Your Child’s SSI Case is Viable?

I recently received the following email from a reader of this blog:

I am just wondering if I am wasting my time, my son has been diagnosed adhd for about 4 years now, I think its more but we havent gotten there yet. He is in regular classes but is also in resource at school, he also had to be held back a grade due to his problems the first year being diagnosed. Would he possibly qualify at all for disability benefits.

Jonathan Ginsberg’s response: In order to win a child disability case, you will need to show that your child meets a Listing.  The Listings for children are different than the Listings for adults.  You can review the childhood disability listings by clicking on the link.

The Listing for ADHD may be found at Listing 112.00 Mental Disorders-Childhood.   I can tell you from experience that you will have an uphill battle with an ADHD claim.  There are a lot of parents out there who are filing disability claims on behalf of children and basing their claims on ADD or ADHD.  That is not to say that ADD or ADHD is not real or that it is not debilitating for your child.   I just want you to know that judges and medical experts called at hearings will be skeptical.

I would not recommend pursuing an ADHD claim on your own – you will be benefit greatly by consulting with an experienced disability lawyer.  Best of luck to you.

Is it Possible to Get an Early Favorable Decision in a Fibromyalgia Case?

Yesterday, I met with a fibromyalgia disability client in a pre-hearing session.  A hearing is scheduled in my client’s case in about 10 days and I met with my client and her husband to discuss what I call the “theory of our case” so my client would have a clear idea about what we were trying to prove.  In addition I use the pre-hearing meeting to practice questions and answers so that my client can avoid easily correctable mistakes.

During our meeting, my client mentioned how frustrating it has been for her to wait over 2 years to get a hearing and she asked me if this type of delay was typical.  My initial response was that fibromyalgia cases were rarely approved at the administrative (initial application or reconsideration) levels because there is no “listing” for fibromyalgia and adjudicators at the State Agencies did not have the expertise or authority to issue early approvals.

After my client left, I thought more about my response – is it possible for a fibromyalgia claimant to get an early approval from a State Agency adjudicator?

I think that it is possible, but a claimant would need strong support from her treating physician.  As I have discussed before on these pages, there are several “theories” or arguments under which a claimant can win his/her case.  The Listing argument constitutes the most straightforward theory.  If your condition meets or equals a Listing, you have consistent and extensive medical treatment records, and your doctor will prepare a narrative or complete a form that tracks the listing, and you make the adjudicator aware that a listing is involved, you greatly improve your chances at an early approval.  Do not, by the way, assume that the adjudicator will recognize your case as a “listing level” case – you need to make that argument clearly when you submit your paperwork.

If there is no listing that describes your condition (such as fibromyalgia), you will need to argue for disability based on another theory.  If you are 50 years old or older with a physical impairment, a limited education and a limited work skill background, you should look at the “grid rules” to see if you can be found disabled based on the grids.  Grid based decisions do not call for judgment and State Agency adjudicators will issue favorable decisions in grid cases.  Here, too, you need to point out that your case is a “grid” case and identify the specific grid.

Fibromyalgia cases can fit within the grids, although my experience has been that most fibromyalgia patients are high acheiving, Type A individuals who often have too much education and work skills to fit neatly within the grids.

If you do not meet a listing or a grid, you’re remaining argument will be a “functional capacity” argument.  It has been my experience that State Agency adjudicators do not often approve cases arising from functional capacity limitations because reaching a conclusion about a claimant’s “residual functional capacity” is a legal decision that requires judgment and adjudicators are not given much authority to make quasi-judicial decisions.

However, if you submit a completed functional capacity evaluation from a treating  physician (or two, or three) along with treatment notes, along with a request that the adjudicator take that functional capacity evaluation to the non-examining State Agency medical consultant and/or the adjudicator’s supervisor, there is a chance that your fibromyalgia case can be flagged for special review.

I hope you have picked up on a theme in what I have written about dealing with the State Agency adjudicators.  You cannot and should not assume that they will find a reason to approve your case.  You need to politely suggest a direction for their actions.  You need to lay out very clearly your argument for disability and you need to explain why a particular item of evidence is particularly relevant.  Finally, you need to realize that the State Agency adjudicators are overworked and underpaid and that they are given limited authority.  Do not hesitate to ask your adjudicator to take your file to a supervisor or to a medical or psychological consultant in the State Agency office.

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