Ginsberg Law Offices

Multiple Sclerosis Patient Seeks Strategy to Win SSDI Case Early

Jonathan
March 19, 2011
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Here is a question I received from a multiple sclerosis patient who is preparing to apply for Social Security disability and is hoping to win her case early.

Jonathan,
First, I want to thank you for putting valuable information about the SSDI process online. I was diagnosed with MS in 1993. I recently left work on an early disability retirement after a 24 year career with the State of ABC. My question is this – if I have MS and my medical records document cognitive dysfunction, isn’t it feasible that I would be approved with my initial application to SS? Although I did very well in the beginning of the journey, as I have gotten older, (I’m only 44), my disease has started progressing over the last few years. Will the fact that I have taken an early disability retirement from the state weigh favorably towards my case?

Here are my thoughts: the first question I would ask is “are you insured for Title II Social Security disability?” In some states, employees do not contribute into the Social Security system- instead, they contribute to a state disability program. For example, I sometimes get calls from teachers who may have worked for years, but who are not insured for Title II disability because their school system opted out of Social Security. If you cannot tell from looking at an old paystub, I would advise you to contact your human resources office to confirm that you have been making payments into the Social Security system. You can also call Social Security at 800-772-1213 to inquire as to whether you have been earning credits. You can also request an earnings and benefit statement (Form 7004) from Social Security directly.

If you are not insured for Title II SSDI, then you might still be eligible for SSI, but that will depend on household income and the value of assets that you own.

Assuming you are eligible for Title II disability, your best chance at an early approval would be to request help from your treating doctor to show that you meet or equal the multiple sclerosis listing, which is found at Listing 11.09. When you read this listing, it does refer to cognitive issues by referring to Listing 12.02 which describes “organic mental disorders.”

I would print out the entire Multiple Sclerosis listing and the listings referenced in 11.09 and take the printout to your doctor’s office. If your doctor or someone in his office is willing to write a narrative report describing your symptoms, course of treatment and state that your symptoms meet or equal what is contained in the listing, you greatly improve your chances at an early decision. Your doctor should track the language of the listing as closely as possible, using the language of the listing wherever possible. Further, since the disabling symptom you describe has to do with cognitive dysfunction, you may need to have a psychiatrist or a neuropsychologist evaluate you and write a narrative report that tracks Listing 12.02.

I take a similar approach when I am representing an MS client – although instead of a narrative report, I create a checklist for the doctor to complete and submit that to the Social Security judge along with copies of all medical records. Often times, by the way, Social Security will provide the neuropsychological exam as a “consultative evaluation” that they pay for, however, if you can provide your own, you obviously have more control of the process. Continue reading →

What to Expect When Social Security Schedules You for a Medical Exam?

Earlier this month I received an email asking about initial application procedures from a gentleman who had visited my Georgia disability web site. This person had not yet applied and he wrote to ask me what he should expect when he did apply.

After discussing with him the ways he could apply – either by phone, in person at his local Social Security office, or online at ssa.gov, he asked me what was going to happen after he started his application. I explained that once his claim was opened, his file would be sent to a disability adjudicator and that he should expect to hear from the adjudicator to set up an in-person or telephone interview.

Today, I heard back from this gentleman asking another very good question about the initial application process. I believe that he has been through his initial interview and that his claim is now being processed. Since his question is relevant to just about everyone who files for benefits, I thought I would answer it in my blog rather than by an email.

The applicant told me that he had applied in person and that his adjudicator had scheduled him to meet with a private doctor for a medical exam. Is this a good sign or not? What should he expect at this meeting? Here are my thoughts:

The exam that has been scheduled is called a “consultative examination.” These examinations are conducted by doctors who have contracted with the Social Security Administration to do this kind of work for a designated fee. Continue reading →

What To Do if your Doctor is Not Cooperative

Jonathan
December 28, 2010
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If you haven’t already noticed, physicians are working harder for less money. I expect this trend to continue, especially with the government getting more involved in setting prices for services. In the Social Security disability world, we rely on doctors to provide medical records and to assist attorneys in identifying specific work limitations that limit patients. These limitations often form the basis of a functional capacity argument for disability.

In other words, if a treating doctor is willing to go on record to say that his patient would likely need unscheduled breaks, or cannot use his left arm for reaching over shoulder level, or needs to extend his legs while sitting, those limitations can be used to argue that certain categories of jobs (or, better – all jobs) would not be possible for this particular claimant.

In my practice, I have created “functional capacity” forms that I either send to doctors or that I give to my clients to bring to their doctors. A good form that contains numerous limitations can result in a favorable decision, even from a judge who does not approve a high percentage of cases. As a wise old judge once told me “if you have a compelling functional capacity form, I usually have no choice but to approve that case.”

Continue reading →

Hearing Delays Result in Increased Danger to Judges

Jonathan
November 21, 2010
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Recently, I represented a claimant afflicted with cancer who clearly met Social Security’s definition of disability – she had a medically determinable condition that precluded substantial gainful activity and her condition had lasted 12 consecutive months and was longstanding in nature. The judge assigned to this case is a no-nonsense person who took no more than 5 minutes to conclude the hearing.

In the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.” This time, however, he closed the case without saying anything. After the recording equipment was turned off, he asked my client to leave the room but asked me to stay. He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case. I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”

Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings. The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch. As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.

In state and federal courts, you find baliffs and court personnel who provide security to judges. In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room. Continue reading →

Discover How Disabled Veterans Can Optimize Social Security Disability Benefits

Utah Social Security and Veterans Disability Attorney — Joel Ban

Attorney Joel Ban, a Utah lawyer who handles both Social Security disability and Veterans Disability claims recently posted a concise and informative article on his blog describing the similarities and differences between the two programs. Joel points out that a VA disability rating of 70% or higher can help your Social Security claim – this confirms my experience that Social Security judges will give weight to VA disability findings.

Joel was kind enough to give me permission to reprint his article in its entirety, which I have done below.

This article is an overview of the highlights of the major topics for Veterans who have both Veterans Disability claims as well as Social Security Disability claims. A lot of Veterans may have both Social Security and Veterans Disability Claims going on either at the same time or may have received one benefit before applying for the other. VA compensation, aka service connected disability is not based on income so you can definitely receive VA compensation and Social Security Disability (SSDI) at the same time. There is also VA pension which is a needs based program, very similar to Supplemental Security Income (SSI). VA pension will be paid to Veterans if they have very little or no income and are disabled based on non service disabilities. It is possible to receive SSI and VA pension at the same time. Based on your circumstances its best to qualify for both VA compensation and Social Security Disability since they generally are the more generous benefits, however its important to be aware of these other needs based programs.

Major Differences between the Programs

Major differences between Social Security Disability and Veterans Disability is that you don’t need a total disability in order to be eligible for VA compensation. In fact, most Veterans who receive VA compensation do not receive a total disability rating. Veterans can receive a compensable rating as low as the 10% level and can have a rating as low as 0%. In many cases it makes sense to go for a 0% rating even though its not compensable. The reason for this is that it will mean that the Veteran at least has a service connected disability that will likely deteriorate into a more serious problem and later morph into a compensable disability. Many Veterans have trouble proving service connection but with a 0% rating the Veteran will have already crossed this hurdle. Social Security Disability, conversely does not compensate claimants based on a partial loss of employability. You are either disabled or not disabled under this program. Continue reading →

More on Compassionate Allowances and Quick Determinations

Jonathan
October 17, 2010
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On October 13, 2010, SSA announced new rules effective on November 12, 2010 that will allow SSA personnel to fast track disability claims. Now there are two programs that will allow SSA personnel to quickly approve cases there the medical evidence for disability is overwhelming.

The first program is called the “compassionate allowance” program, and it identifies specific diseases that produce work activity limitations that meet SSA’s definition of disability – in other words, if someone has one of these medical conditions, they would not be able to engage in substantial gainful activity and the symptoms will last 12 consecutive months or result in death. I discussed the compassionate allowance program in a previous blog post, and you can review the diagnoses on the list by clicking on the link.

The second and newer program is called the Quick Disability Determination (QDD) program. This program uses a computer program to analyze the electronic claim files to identify “cases where there is a high likelihood that the claimant is disabled” so that a claims representative within Social Security can approve a case without the need to review the claim with a medical or psychological consultant. In a regular claim adjudication the claims rep, or “Adjudicator” must get a medical or psychological consultant to sign off on an approval, a process that takes time and can yield inconsistent results. Continue reading →

Can Child Claim Auxiliary Benefits if Disabled Parent Refuses to Apply?

Jonathan
August 17, 2010
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I regularly receive questions about auxiliary Social Security disability benefits. Often these questions are from divorced persons who are struggling with the cost of raising a child, while the disabled, non-custodial parent has not been cooperative with regard to auxiliary benefits.

Recently I received the following question:

i have a 15 yr old son. my ex husband is dying of cancer. he has not applied for ss , so i was told by ss that i cannot apply until my ex does. in the meantime we r struggling. help. -S

Here is my response: unfortunately, there is nothing that S can do unless and until her ex-husband applies for disability benefits. Cancer is a listing level impairment and my experience has been that SSA adjudicators and judges are more likely than not willing to grant benefits. Further, some cancers are included in Social Security’s compassionate allowance program. Even if the cancer is treatable, the treatment protocol often lasts 12 months or longer, so a cancer claimant can usually get a closed period even if on-going benefits are not awarded. Continue reading →

These Questions Always Get Asked at Hearings

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing. Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

I want my client to understand the hearing procedure so he can focus on what he needs to say. The less uncertainty about the process – the better.

In Atlanta, which is my primary area of practice, we have two live hearing offices and one video hearing location. Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently. While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions. This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing. I know what I will want to ask, and here are the areas of questioning that I cover. In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

state your full legal name and social security number
state your mailing address
how tall and you and how much do you weigh?
how far did you go in school and have you had any education or vocational training beyond high school?

Work background

are you now working?
have you tried to work since your onset date?
describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job? Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability. What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled. Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work. This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date? Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record. For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date. Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →