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All posts by Jonathan.

The WRONG Answers to the Question: “Why Can’t You Work”

As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?

This question concerns itself with your capacity to perform work or work-like activities.  Other factors like the job prospects in your town, your transportation issues, etc. are not relevant.  As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

lose-win

Far too often, disability claimants hurt their chances greatly by giving the “wrong” answer to this ultimate question.   In a future post I’ll print out some examples of “good” answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers.   As a claimant you must take the time to understand how the disability process works and what the judge needs to hear.   If you get the answer to this “ultimate” question wrong, you will not be approved.

Here are Stan’s Five “Case Killers,” in no particular order:

Top Five Bad Answers to Question: WHY CAN’T YOU WORK?

In no particular order of “badness”, here are the top five”case killing” responses to the Administrative Law Judge Question: “Why can’t you work?”

1. “I can’t find a job. No one will hire me with my medical background”
The ALJ wants to know why you think you can’t work. Implicit in this answer is a belief by the claimant that she can work, and that the problem is not being able to get a job. Social Security Disability benefits are intended to protect workers who cannot work due to a mental or physical condition. There are not intended to address the difficulites of finding a job.

2. “My long-term disability insurance company told me to file for social security disability”

This can be an easy mistake to make. Again, the ALJ wantsto know why you think you cannot work. Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company. Continue reading →

Understanding How Social Security Classifies Your Past Work

warehouseworkerLike many federal bureaucracies, Social Security has developed its own language for describing many of the concepts that underlie a disability evaluation.  Since disability considers your capacity to work by looking at both your past work and about other jobs, a description of your past work is an important part of your case evaluation.   You should try to become familiar with some of these terms prior to your hearing.

At Social Security hearings, judges often call vocational witnesses to classify your past relevant work.   Generally Social Security is concerned with your past relevant work over the past 15 years.  Short durations jobs of less than 3 months are usually considered unsuccessful work attempts (UWA) and don’t count as past relevant work.

Vocational witnesses identify both the “exertional level” of your past relevant work as well as the “skill level” of that work.   Jobs are classified exertionally as:

  • sedentary
  • light
  • medium
  • heavy
  • very heavy

More explanation about what these exertional levels mean – page on this blog;  post from Colorado disability lawyer Tomasz Stasiuk

Jobs are classified by skill level as:

  • unskilled
  • semi-skilled
  • skilled

Vocational experts use a resource called the Dictionary of Occupational Titles (D.O.T.) to classify the exertional and skill level of every job that (in theory) exists in the national economy of the United States.  You can read the D.O.T. online by clicking on the link. Continue reading →

Heart Disease Case Study Posted

I invite you to visit my Georgia Social Security disability web site to read my latest heart disease disability case study report about a case I tried last week on behalf of a client with a longstanding cardiac disease complicated by decreased kidney function and diabetes.  Like many of the cardiac disease cases that I try, there were three viable theories of disability that could apply: (1) a listing argument; (2) a functional capacity argument and (3) a grid rule argument.

stethoscope and medical report 2I presented all three to our judge, and the judge decided to approve based on….(you’ll have to read the case study to find out).

Not surprisingly the judge looked very favorably on my client’s long, consistent work history.  The judge even put on the record his opinion that my client would never have stopped working but for his medical issues.  As I note in the case study, the medical record in this file was a little sparse – but a solid work history can go along way to greatly enhance a claimant’s credibility.

One of the arguments I had at the ready (although I did not have to use it) was the “frequent restroom break” problem associated with a drug called Lasix, that helps clear fluid from the bodies of patients with congestive heart failure.  Many of my clients are surprised to learn that I often win cases on the work performance problem of needing to go to the restroom several times an hour.   Although excess restroom breaks don’t sound like a medical issue, the practical import of this problem is excess missed time from work.

Can an Alcoholic Ever Qualify for Disability?

A number of years ago, Congress passed a number of changes to the Social Security disability laws that made disability claimants ineligible for benefits if alcohol or drug abuse was a material contributing factor to their disability.   As a result, most claimant’s lawyers are very reluctant to accept as clients individuals who are active alcoholics or whose doctors discuss in medical records abuse of narcotic medications.

Are there any circumstances when an alcoholic or drug abuser might still qualify for disability?

You may be surprised to learn that the answer to this question is “yes.”   If the alcoholic or drug user can prove that he/she has a mental or physical condition that leaves that claimant unable to work, and that this other condition exists independently of the alcohol or substance abuse, he/she can win.  In such a case, the claimant’ s disability would remain even if substance abuse was absent from the picture.   Such a distinction can be difficult to prove, but it can be done, especially if the claimant has a long treatment record from a treating physician and that physician is prepared to go  on record drawing those lines. Continue reading →

24 Month Waiting Period for Medicare Benefits in Approved SSDI Cases Causes Hardship

You may be aware that when you qualify for SSDI benefits you also become eligible for Medicare.   However, your Medicare eligibility is not immediate – instead, Medicare coverage does not begin until 24 months after you first become eligible to receive an SSDI payment.

Here is an example:  Tom applies for SSDI benefits in March, 2008, alleging an onset date of January 7, 2008.  Tom’s case is denied administratively and he appears at a hearing in August, 2009 and the judge issues a favorable decision issued on September 2, 2009.

Tom will become eligible for SSDI benefits as of July, 2008.  This is because SSDI imposes a five month waiting period on payment of benefits.  January, 2008 does not count in this 5 month period because it is a partial month, so the waiting period includes February, March, April, May, and June, 2008.  Tom’s eligibility, therefore, begins as of July, 2008.  His Medicare, however, does not kick in until July, 2010.  This is the 24 month Medicare delay.

Why is there a 24 month delay in starting Medicare?   According to a recent article in the Dallas-Ft. Worth News:

When Congress extended Medicare coverage to people with permanent disabilities in 1972, it also established the waiting period. Lawmakers added the wait to hold down the cost of the new government benefit, avoid overlapping with private insurance and make sure Medicare would be available only to people whose disabilities were long-lasting.

However, as a number of public interest groups point out, the private insurance landscape has changed significantly since 1972.   Far fewer disabled persons have coverage, meaning that disabled citizens who are deemed “disabled” by Social Security may have to forgo medical care and treatment for up to two years.

Of course, the primary obstacle in efforts to eliminate or reduce the 24 month waiting period is money. Eliminating the wait would cost the federal government $6.8 billion the first year and $110 billion through 2019, according to the Congressional Budget Office.  With record deficits already in place it seems unlikely that Congress will take steps to add to the shortfall.

In Social Security disability cases, therefore, your onset date is critically important because it will determine your eligibility for Medicare.  The further back in time you can push your onset the sooner you become eligible for Medicare.

Approved Claimant Returns to Work – Are there any Defenses to a Continuing Disability Review or Termination Action by SSA

How should you prepare for a Continuing Disability Review (CDR) or notice of proposed termination?  It depends on how vulnerable you are to losing.   I received the following question from one of my readers:

I received a letter from SSA saying that they are reviewing my current SSDI benefit and possible to end my benefits due to substantial work between 2004 and now.   I would like to have your advisement how I should handle this and what options I can do to keep my SSDI benefits.   I only have Medicare insurance and living with AIDS.   Also, I am deaf.

My response: Social Security is saying that you engaged in “substantial activity” from 2004 to the present.  “Substantial activity” is a term of art and refers to activity that is work or work like activity.   Substantial activity can be work for pay, volunteer work, school or other similar activites.

In a CDR context, Social Security is most likely looking at your earnings record.  As you know, when you work your employer files copies of all W-2’s and 1099’s generated on behalf of employees.  If you were working and your employer was withholding taxes as the law requires there is a written record of your earnings.

I have posted a table on this blog setting out what you can earn and still fall below SGA (substantial gainful activity).   Social Security will look at your earnings month by month to calculate how many months you exceeded SGA.  You could, in theory, could be asked to repay SSA for each month that you received earnings over SGA and also collected SSDI. Continue reading →

Are Claimants Required to Submit Unhelpful Medical Records?

There is no such thing as the “perfect” case.  Even the most deserving claimants may end up with a doctor who they don’t like or with whom they do not get along.  This is especially true in “pain” cases when narcotic medicines may be prescribed.  There are also doctors out there who do not believe in the concept of disability – as far as they are concerned no one is fully disabled and these doctors will not cooperate with a Social Security claimant at all (needless to say, it is helpful if you discover this trait in your treating doctors early enough in your case to find another doctor!).

What about unhelpful medical records?  I see this frequently in cases where there was a workers’ compensation case.  “Company doctors” often minimize symptoms and generate records indicating that a claimant has the capacity to return to work.   Other times I see unhelpful records in cases where my client just did not “click” with his or her physician or psychiatrist.

One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:

I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. Continue reading →

Social Security Ordered to Repay 80,000 Social Security Recipients After Funds Illegally Withheld

The San Francisco Chronicle reports that a federal district court judge has ordered the Social Security Administration to repay over $500 million improperly withheld from over 80,000 disability and retirement recipients from 2007 through 2009.

According to lawyers who filed a class action suit, SSA ordered its staff to withhold benefits from anyone who was named in an arrest warrant for a federal or state felony.   The problem: many of the affected claimants were not aware of any warrants, in many cases the charges were dropped, and in other cases, SSA erred in identifying the individuals affected.

SSA should have limited its program of withholding benefits to those on the run who are attempting to avoid prosecution or punishment.

Why You Should Hate the Idea of Applying for Disability Beneifts

“I am disabled and cannot work.”   Although this is a very short sentence, it’s implications are quite profound.  For many of my clients the decision to apply for benefits and assert in writing and verbally that they can no longer earn a living is perhaps the most psychologically difficult part of the disability process.

As humans, we are programmed to believe that things will get better.  For many people, the decision to file for disability is a kind of defeat – a recognition that their physical or mental condition probably won’t improve.

In my view, clients who hate the concept of disability are my best clients.  When you walk into that hearing room, you should have the attitude that “I don’t want to be here, and I am only here because I have no other choice.”   Judges pick up on body langauge, verbal and non-verbal cues.  If your judge senses an “attitude of entitlement” your chances for a favorable decision go way down.

Whenever possible, include in your testimony statements reflecting your desire to return to productivity.   Talk about the fulfillment that work brought you.  Discuss the financial hardship that not working has brought upon your family.  Speak about hobbies and activities that you can no longer do because of your medical condition.

Remember – your job at a hearing is to paint a picture – and the picture you want to paint should reflect a person who is a fighter, not a “taker.”

Avoid statements like “no one would hire me,” or “I can’t do anything since I became disabled.”   Your job is to provide the judge with an accurate description of your symptoms, not to make conclusions about your work capacity.   The work capacity determination is the judge’ s job, not yours.

Disability hearings often turn on the claimant’ s credibility – if the judge finds you believeable and a truthful witness, you are most likely headed for a positive result.

R.I.P. Judge Albert Feldman

I was reading this morning’s paper and I saw in the obituary section that retired Social Security judge Albert Feldman passed away this past Wednesday, July 22, 2009.   With your indulgence I would like to take a break from my usual blog posts – that speak about case strategies, changes in the law, etc. to reflect on the influence that this kind, compassionate and extraordinary man had on me, and I suspect many others.

Although my relationship with Judge Feldman lasted for only about 10 years and solely in the context of Social Security hearings, it was not difficult to sense immediately what type of person he was.  To claimants he was, without exception, polite and respectful.  Although I am sure that there must have been times when he would look at a file and recognize immediately that the claimant before him did not qualify for benefits, he was always willing to listen and give every one that appeared before him his or her day in court.

I remember one case in particular – I had a client who had been diagnosed with HIV, who, at the time of the hearing, was suffering debilitating symptoms of full blown AIDS.  Unfortunately, my client’s date last insured for Title II disability had run some five years previously and the medical and other evidence clearly indicated that this gentleman did not meet the requirements of disability at that time.   Social Security hearings provide for direct questioning by a judge to the claimant and that day Judge Feldman spent about 20 minutes talking to my client, patiently explaining to him why he did not qualify for Title II disability, and offering suggestions about community resources that might be avialable to him.  At one point the claimant needed a recess to go to the bathroom.   Judge Feldman could have ended the hearing right then and there as he had enough information to render a decision but instead he waited for the claimant to return to continue the hearing.

I remember thinking then, as I reflect now, how compassionate that gesture was.   The judge sensed (correctly) that my client had only months to live and that he deserved the dignity of being heard.   My client, emaciated, with skin lesions and a hacking cough, most likely did not get the time of day from most people.  But here was a federal administrative law judge, struggling with a busy schedule, who took a few minutes extra out of his day to look my client in the eye – human to human – and express empathy and listen to him.  This was the man that was Albert Feldman. Continue reading →

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