Hello Attorney Ginsberg, My name is Melissa and I have been fighting for my disability since june 2000. I have been turned down alot in the past. I recently had another hearing before the ALJ in charelston wv. My symtoms are as follows. Bypolar, Major depression, with drawyal , Nerve problems, My back is totally messed up, Anxiety, Nerve damage in my legs from the back damage, Mood swings I can be happy one minute sad the next, I had a lot of trauma in my life as I was growing up, Lost my mom with cancer in 1992, My dad got killed in 2000, I was also married to an abusive husband for 10 years. I have no income comming in. I Have alot of medicine that my doctor had me on for my ilesses but I cant afford them no cause I dont have a medical card to cover my medicine. My question to you is do you think the ALJ will award me my disability? There was a social secrurity woman in the room with us . She was trying to name off some kind of jobs she thought I could do. The only one she could find is car washer and the judge and my lawyer said that I wouldnt be able to perform that job either and the woman agreed with them and he asked me some questions about my past relationships and dad and mom I couldnt handle it I started crying , I also have constant crying spells. The judge told me I would get my decision in 2 to 4 weeks through the mail. In your opinion do you think I won my case. Thank you Melissa

Melissa – if the vocational witness testified that there are not any jobs you can do, then there is a good chance that you will be approved.  It certainly sounds like you have been through a lot and I wish you the best.

I chose your letter to add to my blog because I wanted to discuss with my readers something I often speak about – the attitude a claimant brings into a case.

Clearly, Melissa has been through a lot and based her description of symptoms she would most likely have a difficult time working.  However, when you go to a hearing, it is important to present to the Judge and the vocational witness the attitude that you would prefer to be working and that the idea of filing for Social Security is distasteful to you.

From the tone of her letter it is apparent that Melissa considers herself disabled and has concluded that hear mental health problems have left her unable to work.  In psychological terms, Melissa has become “invested” in her disability.

The problem with this is that “disability” is a legal conclusion that must be reached by the judge.  Judges prefer to see claimants who do not want to be disabled and would rather be working.  They are trained to be wary of people who are clearly looking for a check.  Notice that Melissa says “I have been fighting for my disability since June, 2000.”  The obvious question – why isn’t Melissa fighting to get herself better so she can get back to work.

I am not sure how Melissa’s case will turn out nor am I suggesting that she is not deserving, but if she is turned down it may be because her motivations are clearly directed at getting disability money and that type of attitude is not a good one to bring before a Social Security judge.

I live in West Virginia. I work as a clerk in a Library. I am 47 yrs old have COPD,emphasyma, on oxygen at night Dr said I will have to go on it during the day also high blood pressure, seizures, having dizzy spells so bad I cannot even drive, Dr is going to check for heart problems, xanax, seizure medication causes bad side effects. What are my chances of getting disabilty?
–Crystal

Crystal, since your main impairment has to do with breathing, the first place I would look is the SSA “bluebook” to see if you meet a listing. The listing for respiratory diseases is here. I would print out this listing and take it to your doctor and ask him if he feels that you qualify. Even if you do not meet a listing, you may still qualify for disability based on the limitations on your capacity for work.

The only problem I see here is that you are currently working, which means that, by definition, you are not disabled. My sense is that at age 47 with all of the problems you have and support from your doctor you would have a good chance at approval.

–Jonathan

How do you get an administrative law judge’s narrow minded, biased opinon reversed or how do get that opinon nullified? –Thelma

Jonathan’s response: Thelma, I assume from the tone of your email that things did not go your way at the hearing. You have the right to appeal the unfavorable decision, but you must do so within 60 days following your receipt of the unfavorable decision. The appeal goes to the Appeals Council.

I would strongly advise getting an appellate specialist to file your appeal. Many Social Security trial lawyers are not appeals lawyers – you should ask around for someone comfortable with appeals. A judge’s bias can be grounds for appeal, although that can be a hard road to pursue.

The appeal record will contain a tape of the hearing and if the judge acted inappropriately, that can be brought up in the appeal. One issue to consider – if your appeal is granted, the case is often remanded back to the same judge for a new hearing. Your appeal should request that the case be assigned to a different judge. –Jonathan

Hello, This is great to be able to get a question answered without going through a lot of red tape. My question is i have been on Disibility due to several medical resons. i have been receiving ss disability only. i would like to know what ssi is and if i would qulify. I receive 728.00 monthly. i have purchased a home last year through metro and receive help toward the mortgage through metro, but as you can see surviving on this income is very hard. I receive 10.00 per month in food stamps. i have medicare part d. and i’m on spend down with medicade of 177.00 per month if i need other medical such as a denist. which i cann’t afford. again i don’t know what ssi is and if i would qualify Thank you

Shirley

Jonathan Ginsberg responds: Shirley, thank you for your question. Unfortunately, I do not have the answer you want. SSDI (Disability) and SSI are two of the disability programs operated by the Social Security Administration. SSDI is for people who have paid into the system enough to be “insured” for Disability. SSI (Supplemental Security Income) is basically a welfare program that pays a small monthly benefit to people who do not have enough credits to qualify for SSDI.

SSI benefits are subject to offset from other sources of income as well as resources. Also, the SSI benefit is set by statute – whereas SSDI payments are usually larger and represent a calculation arising from funds paid in to the system. If you are getting $728, it is likely that your SSDI will totally offset your eligibility for SSI. Basically, SSA pays you the higher of the two benefits for which you are eligible. Usually that is going to be SSDI.

You can certainly call your local SSA office to ask, but I suspec that you will be disqualified for SSI because of your SSDI income.

–Jonathan