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All posts by Jonathan.

Absence of Political Influence Costs Social Security Disability Claimants

Tom CoburnI have no doubt that a significant percentage of disability claimants denied by Social Security judges do have significant medical or mental health problems that would prevent them from performing competitive work.  Why, then, are these honest but unfortunate men and women receiving denials when they should be receiving fully favorable decisions?

This is a very unsettled time in the world of Social Security disability and there are forces in play that you as the claimant and me as the claimant’s attorney cannot control.

On one hand, we have a President and Congress who are intent on expanding our nation’s social safety net.  Whatever your political leanings, there can be no doubt that the federal government has committed itself to spend trillions of dollars in various social programs.   Politicians of both parties assure us that Social Security and Medicare are sacred and that we will not balance our budget on the backs of seniors and the poor.

At the same time, Congress regularly holds hearings to identify instances where disability claimants have defrauded the system, or where judges have approved 99% of cases brought before them.  I recently highlighted the efforts by Oklahoma Senator Tom Coburn to crack down on fraud and inefficiency in the disability decision making process.  You can view that video here.

The press regularly reports that the disability trust fund will run out of money in 2016 “unless something is done.”  Here is an example of one such article from the Washington Post. Continue reading →

How do I Win for a Medical Condition that Cannot be Seen on a Diagnostic Test

fibromyalgia difficult to diagnoseI get a lot of questions about fibromyalgia and other medical conditions that rely on subjective reporting by patients.  These cases are definitely getting more difficult to win.  Here is a question sent to me by a blog reader that describes an increasingly typical situation:

I'm 41 yrs old and have been suffering for many years with narcolepsy and fibromyalgia.  My sleep disorder actually falls between narcolepsy and idiopathic hypersomnolence.  My family and myself are falling apart because of my disabilities. I've applied for disability in the past and was denied. I'm applying again and wanting to ask you how do i go about applying to prove my disability since its been denied in the past?  How much weight does testimonials from family and friends carry?  How much weight does a signed letter from my doctor saying, i can't work/drive its unsafe, carry?

I am not surprised that you have had a difficult time with Social Security.  As you probably know, Social Security defines disability in terms of your capacity to work a simple, entry-level type of job.  Basically you have to prove that the symptoms of your medical condition or conditions are so intrusive, that you cannot work at any job, full time.

As the person claiming disability you have to prove that you are unable to work – you do this by submitting medical records, and, even better, a functional capacity form completed by your doctor that identifies specific activity limitations.

Continue reading →

Will I Win my Case? I have been Waiting a Long Time and I am Scared

advice about Social Security disability case

Every month, I receive requests for my opinion from concerned and anxious disability applicants about whether a case is good enough to win.   Usually a hearing has been scheduled and the claimant is looking for some reassurance.

The question below is a good example of this type of question.   I am happy to help my blog readers any way I can but I hope you can understand that I can't intelligently answer questions like these because I have no way of knowing what is contained in the medical record.  Further, it would not be appropriate to offer legal advice on a blog, especially to a person who has a lawyer.  I would point out that in my view, a claimant's testimony is less and less important relative to the medical record documents in one's case file.

I am going in December with my attorney for my first meeting with a judge. I have degenerative disc disease, fibromyalgia, arthritis in hands, sleep about 3 hours a night, can't lift anything above 10 pounds, severe low back pain for past four years I have not worked. Can't sit or stand for over 15 to 20 minutes at a time my back has stabbing, burning pain and sometimes runs down back of legs. My right hand will now go to sleep when ever it want to. I have had 17 facet shots under an x-ray machine and probably 35 x rays that show nothing. What is your opinion on this case will I win 100 percent and since I waited 2 years without work before I filed is there maybe a possible way to figure out what I may end up with to live off of? Anything you can tell me will be much appreciated. Is there any books that I can read to help me with this? It is very scary. I was also turned down 3 times by 3 different doctors when I did have insurance to get an MRI which I think I really need in this case.

As far as whether a particular person will win or not, here is what I would say:

  • do you have support from a treating doctor in the form of a functional capacity evaluation or a narrative report describing activity limitations.   Social Security judges are trying to decide whether you have the capacity to perform a simple, entry-level, "warm body" job – has your doctor identified specific areas of functioning where your reliability is less than acceptable.  If you do not have this type of support from a treating doctor, you are going to have an uphill battle.
  • have you been treating regularly with one or more doctors and are there medical reports and diagnostic reports (such as MRI's, CT scans, etc.) in your file that document your compliance with treatment and lack of success with treatment?
  • is there any evidence in the file to suggest that you are malingering or drug seeking? – these can seriously damage your case
  • assuming you are represented by counsel, what does your attorney think?  Can he explain to you the argument he intends to present to the judge and does he feel that the evidence describes serious limitations that impact your reliability at a job?
  • ask your attorney to tell you the truth – if your case is weak, is there anything you can do to make it stronger?   Obviously, you will win if the judge accepts everything you say about your pain, discomfort, physical and mental limitations – the question: does the medical evidence support what you say?

Can Vocational Witness Testimony Predict the Outcome of Your Hearing?

SSDI hearing decisionsOver the past couple of years, Social Security has changed its procedures to offer less information to claimants and their lawyers.  Staring in January, 2012, for example, SSA began deleting the name of the judge from hearing notices.  Thus, when I meet with my client to prepare for an upcoming hearing, I cannot speak to the likes and dislikes of a particular judge because I do not know who that judge will be.

It is my understanding that the purpose of this particular change was to prevent “judge shopping” whereby a lawyer might tell his client to move rather than appear at a hearing before a judge who rarely grants cases.  It seems to me that claimants and the entire disability adjudication system benefit more by having their lawyers better prepared than SSA benefits from rare instances of judge manipulation.

Another change I have noticed involves SSA directives discouraging judges from announcing their decisions.  In years past, judges would sometimes announce favorable decisions in cases where the evidence was clear.  Now, judges rarely announce their decisions directly even if all of the evidence and testimony points towards a favorable decision.

From my clients’ perspectives, of course, this mystery is extremely frustrating.  Imagine waiting 2 years to get a hearing, then to discover that it may be another 6 weeks before a decision is announced. Continue reading →

SSDI Claimants Can Expect to be Asked About Unemployment Benefits

tough ALJ questionsOver the past several months, I have noted that my SSDI clients are regularly being asked by judges if they have filed for unemployment benefits.  This question used to come up occasionally in the past, but now my clients are almost always asked if they have filed or are receiving unemployment.

The issue is this: when you file for state unemployment, you must assert that you are ready, willing and able to work.  In the past, I would counsel my client to answer the judge’s question by stating that “I am willing and anxious to try to work and I would put forward my best effort to perform any job.  I don’t know if my medical condition would allow me to perform reliably but I would certainly try.”

Given that Social Security’s stated policy is to encourage people with disabilities to return to work, I do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.

However, as is the case with part time work, Social Security tends to view things in an “either-or” fashion.  You are disabled or you are not, and there seems to be no middle ground. Continue reading →

Past Due Benefits Paid Up to One Year Prior to Application Date Only

onset date vs. application dateQuestions related to onset dates, application dates and the date of first payment continue to be one of the more confusing elements of Social Security disability.  A recent question from a blog reader incorporates all of these issues so I thought it might be helpful to use this question as the basis of a blog post:

I STOPPED WORKING IN 2009 I KNOW THIS WILL BE MY ONSET DATE, MY QUESTION IS MY ONSET DATE OF 2009, HOW WILL THIS AFFECT ME WHEN I APPLY FOR SSI BENEFITS SOON, SINCE I DON’T HAVE AN EARLIER ONSET DATE. WILL SOCIAL SECURITY BACK PAY ME FOR 2009 IF I WIN MY DECISION.

Let’s first discuss the question of what is Robert’s onset date.  Generally, most claimants choose as their onset date the date that they last worked, and that is a reasonable choice.  However, your onset date should be the date that you became unable to work.  If, for example, Robert was laid off in May, 2009, and he suffered a major heart attack in October, 2009, the October date would be more appropriate.  In theory, you can choose an onset date prior to your last day of work, but doing so is an uphill battle and judges are reluctant to approve a claimant for disability for a time period when he was working full or close to full time.

Generally I advise my clients to choose the earliest possible onset date when their medical condition prevented full time work.  Your disability onset should be a date prior to the date that your SSDI insurance runs out. Continue reading →

Use a Cane? Get a Prescription

walking cane and SSDIThis year, I have represented three clients who use a cane either all of the time or most of the time but whose use of this assistive device was discounted by the judge because the cane was not prescribed by a physician.

The issue in your Social Security disability case is whether you can perform even a simple, entry-level type of job.  Our goal, therefore, involves identifying specific limitations that would impact your ability to perform work.

If you cannot walk without a cane or walker, it stands to reason that you would not be able to perform jobs requiring:

  • more than very occasional standing
  • more than occasional walking
  • balancing
  • climbing ladders, ropes or scaffolds
  • kneeling, bending and stooping
  • crouching and crawling

Further your need for a walking cane would support allegations of pain and other activity limitations (such as lifting and carrying) associated with back or knee injuries.

In short, if the judge accepts that you need a cane to walk, he will eliminate from consideration all jobs except sedentary (sit down) types of jobs.

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Why Do Social Security Judges Call Vocational Expert Witnesses to Testify at Social Security Hearings?

vocational expertIn most Social Security disability hearings, judges call on expert witnesses called “vocational experts” to help them evaluate your capacity for working.  As a general rule,  Social Security defines “disability” in terms of a claimant’s ability to perform the tasks of a simple, entry level job, therefore it makes sense that the judge will need to identify the specific activity limitations that arise from your medical and/or psychological problems and he will need a way to determine if these limitations impact your capacity for work.

Judges make this evaluation by posing “hypothetical questions” to the vocational expert witness.  A typical question may sound something like this:

Mr. Vocational Expert, I want you to assume the following about a hypothetical person who is the same age as our claimant, with the same educational background and the same work history.  This person is limited to light work with the following limitations:

  • he can sit for 45 minutes at a time, then needs to stand and stretch for up to 10 minutes
  • he can sit for a total of 2 hours during a day
  • he can stand for 6 out of 8 hours during a day but should have the ability to change position at will Continue reading →

Will Filing for Unemployment Hurt Your Social Security Disability Case?

unemployment and social security disabilityIn my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability.  On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be  “unable to engage in substantial activity?”

Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt. Continue reading →

How do You Contact the Judge to Update Your Hearing Testimony?

I recently received the following question from a blog reader who asked a very interesting question:

I just had my second hearing with administrative judge and wanted to add a very brief fact into testimony and was wondering if it is acceptable to write the judge directly.   I do have a lawyer, but I am unsure that some of my letters of issues that I want to clarify are not being seen by the judge.

 

writing the judge after hearing
by ProgressOhio under CC BY  with wpseopix.com
.

Here are my thoughts:  first, if you have a lawyer I think that any communication from you needs to come through your lawyer.  Judges generally do not accept direct communications from disability claimants – more likely than not, the judge’s office would return your submission to you, and, most likely copy your lawyer with a form letter advising you to use your lawyer to submit all documents.

Second, unless the information you want to add is extremely significant I would hesitate to try to update your hearing testimony.  Social Security judges are very busy and when you try to add a document after the record has closed at your hearing, it will require someone at the hearing office to manually pull your file.  This could result in a delay in the issuance of your hearing decision.  Further, judges usually “close the record” after the hearing so it is doubtful that your added information would be considered anyway.  You have had two hearings – I suspect that your judge has a fairly clear understanding of the facts of your case.

I would discuss with your lawyer what the best options are here.   If the “very brief fact” is extremely significant and your lawyer agrees that it makes sense to try to reopen the record, then he can try to do so in a post-hearing brief or submission of evidence.   On the other hand your lawyer may advise you that the hassle factor for the judge outweighs the importance of the information and he may advise you to let the matter rest while you wait for a decision.

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