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All posts by Jonathan.

How Long Do I Have To Wait for My Hearing Decision?

Dear Jonathan,
Hello. I have a question concerning my court hearing please.   On May 17th, 2007, I went to my disability hearing. 2 months later I contacted them to find out my status and they told me the decision was made the day I went to court. I continued to wait and still heard nothing. So I called again today, and they told me there was not a decision made yet. Now I am confused, and I have no money and I’m a single parent. My disbility is social anxiety and depression. I really don’t think I can work at this time, but I don’t know what to do. I first applied for this July 2004. I have a lawyer, but she doesn’t know whats going on. Please help.
Thank you, Barbara

Jonathan Ginsberg responds: Barbara, thank you for your question.  Here is what I think is going on.  In most hearing offices throughout the country, judges are required to follow a procedure set out in operations manuals created for them by the Social Security Administration.   Although you would think that a judge can control how his courtroom operates, Social Security judges do not have as much control or authority as State or Federal Court judges.

In a Social Security disability case, the judge takes notes during the course of your hearing and most likely fills out a checklist provided to him.   Included on these checklist forms is a place where the judge selects either "favorable," "unfavorable," or "partially favorable."  After the hearing, the judge gives his checklist and notes to a "decision writer" who will prepare the actual written decision.  The written decisions is Social Security disability cases follow a very structure format.  In other words, hearing decision issued by a judge in hearing office #1 is going to look very similar to a hearing decision issued by a judge in hearing office #2.

In many hearing offices, decision writers are overworked and have backlogs of work.   Because of this, there may be a delay of several weeks to several months before the decision writer is able to produce a draft decision for the judge’s review.   The judge may then review the written decision and compare its text to his notes and checklist forms.  Most judges want to do a good job and they want their written decisions to make sense and to clearly explain their reasoning.

If your case has unusual issues or if the judge needs to hold the record open for evidence or a written brief, the process may take several months.  Some judges may also be very particular about any written decision that goes out under that judge’s signature and that can add weeks or months to the delay.

I know a couple of judges who may take a year or longer to issue a decision, although that is unusual.  Most hearing decisions are issued within two to three months after the hearing.

In your case, I suspect that the judge did make his decision at the time of your hearing, and that the written hearing decision has been prepared in draft form but has not been reviewed by the judge.  

Unfortunately there is not much you can do to force the judge to speed up the process.  If the delay goes on beyond five or six months, your lawyer may want to write a polite letter asking about status and advising the judge that you have a finanical hardship and need a decision. 

[tags] social security disability hearing decision, social security judge, ODAR [/tags]

Is Settlement Advance Funding Available to Social Security Disaiblity Claimants?

With delays in Social Security disability cases reaching three years, it was inevitable that settlement advance funding would be adapted to include Social Security disability cases.  Yesterday, a company called AnyLawSuits.com purchased a site review from me through Reviewme.com, which is a marketplace that allows website owners to purchase blog reviews.  I thought that AnyLawSuits.com’s concept is interesting because they say that any advance issued to a claimant would not have to be repaid if the claimant lost his disability case.

In the personal injury field, settlement advances are usually loans whereby a funding source loans money against an expected settlement.   The lender makes its money by charging an interest rate as compensation for its risk.  Assuming the interest rate is reasonable, settlement advance funding can help cash poor plaintiffs  cover their bills while waiting for their settlement to arrive.

It appears that Social Security disability lump sum funding would work in a similar way.   If , for example, your estimated lump sum receipt after attorney’s fees is $25,000, the settlement lender may advance you a percentage of the expected settlement  with the understanding that you will repay the advance + interest when your lump sum arrives.  Further, if you lose your case, you would not have to repay the advance.

AnyLawSuits.com’s web site doesn’t offer any details about how the advance arrangement works. They do not reveal how they decide how much to loan or what the interest rate would be.   At the bottom of their web page there is a link to a company called Alpine Funding.   It appears that AnyLawSuits.com has a broker relationship with Alpine Funding whereby AnyLawSuits.com earns a commission for any settlement loan they place.

The Alpine Funding site explains that you would have to sign some sort of assignment of your check, but I wonder how enforceable such an assignment would be given that Social Security checks cannot be garnished or seized by judgment creditors.  In addition, Social Security lump sum checks are paid directly to the claimant, unlike insurance claim checks which are sent to the plaintiff’s lawyer.  Alpine Funding’s site is also silent as to what percentage of the anticipated settlement might be loaned or the interest rate to be charged.

I also find it interesting that AnyLawSuits.com’s web site specifically says that they do not advance on SSI or SSD cases.  Why, then, would they purchase a review on my Social Security disability blog with a notation that they offer "social security legal funding?"

If anyone reading this decides to try AnyLawSuits.com, I would advise you to be very, very careful and to consult with your lawyer before signing anything.  I would also be interested in hearing about anyone’s experience with "settlement advance" funding in Social Security disability cases.  I can see how settlement advance funding would be attractive to a cash strapped Social Security disability claimant but like any financial proposal directed to a customer with cash flow problems, the terms of the deal are likely to be weighed heavily in favor of the lender.

[tags] settlement advance funding, anylawsuits.com, advance of social security disability lump sum [/tags]

 

Free, Personalized Health Information Available on the Internet

I read an interesting article on the BBC News feed that spoke about a link between diabetes complications and a Vitamin B-1 (thiamine) deficiency.   According to the article, diabetics expel Vitamin B-1 from their bodies at a rate 15 times that of non-diabetics.  Thiamine apparently helps ward off common diabetic complications such as heart disease and eye problems.

Obviously, you should not attempt to treat yourself of starting taking vitamin supplements without first speaking to your doctor.  The point here is that if you are a diabetic or a patient afflicted with any other chronic condition, you should use the power of the Internet to learn about new developments and treatments – both in the United States as well as elsewhere in the world.

Google, Yahoo and numerous other free services allow you to subscribe to alert services whereby you can receive an email notificaiton if a news story appears that includes specific "key phrases" you choose.  You can and should also learn about RSS feeds – another way to keep up to date with information.   I use the Google Alert service to keep up with developments in the Social Security disability area among other topics. 

If you have a favorite trusted source for medical or health care information, please comment on this post – I’ll create a page on this blog with a repository of those links.

[tags] diabetes and thiamine deficiency, health care information on the Internet, Google Alerts, RSS feeds [/tags]

Social Security Hearing Delays in the News Again

The staffing and case backlog crisis at the Social Security Administration was the subject of a front page article in USA Today on Monday, July 30, 2007.  The article noted that SSA has over 745,000 cases pending with the average wait for a hearing at 17 months.  In Atlanta, Georgia, where I practice, the wait time exceeds 30 months (2 1/2 years) – and this is consistent with what I am seeing in my practice.

The backlog has doubled over the past six years and could reach 1 million cases by 2010.  For those of us involved in the Social Security system – private attorneys, claimants and SSA personnel, the delays in the disability decision making process are well known.  My clients frequently call to ask if there is anything I can do to speed up the process – sadly there is not much I can do.

Further, as I have reported previously in this blog, you can actually hurt your case if you try to work part time or undertake any activity that suggests that you can work.

[tags] social security delays, disability hearings, Michael Astrue [/tags]

 

 

Working After a Disability Award – Trial Work Periods and the Extended Period of Disability

A gentleman named Ken asks the following question about trial work for disability claimant:

I am a self taught guitar player, not professional by any means, I could not do this for a living. But I do get paid periodically to play with a partner at bars and restaurants and such. This is fleeting at best, and most of the time there is nothing going on.  Right now I’m making around $500 to $600 a month, but next month I could be making
nothing, and that usually will last for months.What is my situation with ssd (I am collecting ssd for stomach ailments and nerve problems) Do they average out what you might make in just 6 months, over the course of a full year?

Jonathan Ginsberg responds:   Ken, your question has to do with two provisions of Social Security law – the "trial work period" and the "extended period of disability."   Here’s how they work:

After you are found to be disabled, Social Security wants you to try to work.   During any 60 month (5 year) period after your disability starts, you can and should try to work.  If you earn less than $640 in a particular month, there is no problem.  If you earn more than $640 in any calendar month, that month counts as a "trial work period month."  You can have up to nine (9) trial work period months in any 60 month period.

Once you show nine trial work period months, your classification changes to something called the "extended period of disability."  During this period, you will receive your check for any month in which your earnings fall below $900 ($1,500 if your disability is based on blindness).   So, for example, if you earned $1,200 in June and $50 in July, they would count June as a month where you earned "SGA" (substantial gainful activity) but July would not count.

At the end of the 36 months your extended period of disability stops as do your disability payments.

If, however, during a five year (60 month) period from the start of your extended period of disability, your condition worsens and you cannot work, SSA will restart your benefits immediately without requiring you to file a new application.  However, if SSA later determines that you are not disabled, you will be expected to pay back the restarted benefits

My advice, therefore, is to keep very good records of your earnings.  I have been involved in cases where SSA miscalculated or showed too much earnings for a particular month in the extended period of disability.

Note also that the dollar figures for trial work periods and extended periods of disability may change from year to year.  To the best of my knowledge, the above figures are accurate for 2007.

You can read more about trial work periods or extended periods of disability in the official SSA publication 05-10095.

[tags] extended period of disability, trial work period, SGA work [/tags]

Should I Apply for Disability if I Have Just Started to Miss Work?

I have a question about being able to work.  I recently started having headaches every day and have been seeing a doctor and having tests done. There is no way I can work under these circumstances.  What should I do?
–Richard

Jonathan Ginsberg responds:  Richard, I am sorry to hear about your situation.  Here are my thoughts.  I would advise you to go ahead and file a claim.  Social Security reps often will not accept a claim if you say that you are still working so when you file, I would choose a date that you "last worked" so that they will process the claim.

Realize, however, that if you continue to work – and Social Security records show on-going earnings – your claim will be denied on that basis without any consideration of the underlying medical problem.  I recommend that you apply as early as you can because the process can take so long.  The sooner you start, the sooner you would receive benefits.

The obvious problem – how do you survive for 12 to 24 months while SSA makes its decisions?

Next, I think that you need to work with your doctors to identify a firm diagnosis.  Chronic severe headaches can arise from many causes – migraines, high blood pressure, hormonal changes or other, more serious conditions.   Once you know what you are dealing with you will have a better idea if your condition is treatable or whether it will keep you from working for 12 consecutive months or longer.  Social Security, remember, only pays disability for cases where the medical condition will keep you out of work for 12 months or longer.

Finally, as you pursue treatment ask your doctor if he will support you in a claim for disability.  Some doctors don’t believe in the concept of disability and I have seen good cases derailed by uncompromising doctors.  If you know at the outset that your doctor will not help you, you can decide whether to stay with that physician or seek treatment elsewhere.

[tags] chronic headaches and disability, migraine headaches and social security, when to file a disability application [/tags]

Recommended Blog: Disability Doc

I recently ran across a very useful disability blog called "Disability Doc," published by a medical doctor named Keith Holden.  Dr. Holden has extensive experience in the Social Security world, having been involved in training State Agency adjudicators and consultants.

I find this site especially helpful in its discussions of the medical listings published by Social Security disability.   Cases that clearly meet the listings are often approved early – the ones that don’t meet a listing end up in front of a judge where we argue for disability under a "functional capacity" theory or under a "grid" theory.

If your case meets a listing, you can avoid the two year delays and the hassle of filing appeals and endless paperwork.  Dr. Holden’s discussion of the listings helps demystify the complicated medical jargon found in the actual text of the listings themselves.

Compare for example the actual listing for chronic heart failure in the listings with Dr. Holden’s explanation of chronic heart failure.  You will see that the Disability Doc’s explanation contains definitions of medical terms, it describes the symptoms and it describes the tests needed to prove that you meet this listing. 

It appears that Dr. Holden is adding pages about various listings over time. Right now, he has explanations of several of the most commonly seen listings, including cardiovascular disease, genitourinary diseases, Down’s Syndrome, some cancers and some musculoskeletal problems, blood disorders. 

Realize that most physicians are focused on treating you, not on issuing narrative reports that track Social Security listings.  I think that you will find the articles and discussions on the Disability Doc’s web site very useful in helping you understand the Social Security listings and other Social Security issues from an insider’s perspective.

[tags] disability doc, Dr. Keith Holden, Social Security listings [/tags]

How Does a Judge Resolve Unclear or Conflicting Medical Evidence in a Disability Hearing?

Mr. Ginsberg,
I am a dwm 45, no children, no criminal record, no drug/alcohol problems. I have been diagnosed to have Major Depression, Generalized Anxiety, Schizoid Personality Disorders. I have had 23 jobs in the last ten years with several gaps of unemployment. I have had two psychological tests with conflicting results but were all deemed valid/reliable. I just had my ALJ hearing two months ago and in addition to my ongoing psychiatry treatment for the past two yrs, has ordered a mental CE, waiting for the results and a final decision. My treating psychiatrist this month sent a letter to my disability judge stating that I am a ‘diagnostic puzzle’ and have tried all pharmacological agent groups with no success. He also stated that he has been treating me for the past two yrs. He suspects I have a pervasive developmental disorder. He concluded the letter by stating that there have been no signs of malingering and I have been very compliant.

After my hearing, my disability rep. told me that I have a 50/50 chance of winning. My question to you Mr. Ginsberg, is what does the ALJ do when there are conflicting test results but they are all reliable/valid? Does he flip a coin to make a decision?

–Mike
 
Jonathan Ginsberg responds:  Mike, thank you for your question.  Your case illustrates why judges have a very difficult job.  I like to say that the word "judge" is both a noun and a verb.  The best judges look at the evidence but they also observe and listen to the claimant.   Not every claimant falls into a net category.
 
Some judges are better at this task than others.  I know some judges who will deny any case where there is conflicting or confusing evidence, while there are others who take a holistic approach to judging and they try to picture you (the claimant) trying to get through an 8 hour workday, five days a week.  Fortunately most judges try to do the right thing and will look at you as a whole person, rather than as the human manifestation of a large paper file.
 
This is also a case where a functional capacity evaluation might be appropriate.  As I regularly point out on this blog and elsewhere, Social Security disability is about your capacity to function in a work environment.  To that extent a neat and clean diagnosis is not essential.  Even if your treating psychiatrist cannot label your condition, he should be able to comment about limitations that arise from your mental health condition as a whole.  Assuming that reliability, attendance, interaction with co-workers, supervisors and the public would be impaired, he could offer an opinion that would help a judge assign an appropriate vocational profile.
 
You might also think about searching for a psychiatrist or psychologist who can be more definitive in his/her diagnosis.  There is no question that judges prefer a solid diagnosis and it may be that your case is too complex for your current physician and/or therapist.
 
If you lose, you have the right to appeal as well as to file a new application.  If your current medical record turns out to be insufficient to win your case, you and your lawyer might think about how to build a stronger record for the next attempt.
 
Good luck and let me know how it turns out.
 
[tags] functional capacity evaluation, conflicting evidence, diagnostic puzzle [/tags]
 

Survivor of Traumatic Brain Injury Considers Applying for Disability 35 Years After Accident

In 1972 at age16 I sustained head injuries from a motorboat propeller resulting in lobectomy to my right frontal and parietal lobes. I was left with epilepsy, which has been controlled with medication from ’81 to 2004 when I had 2 seizures after I was let go from my last place of employment. The main reason I was given was a lack of flexibility. I turned 50 on July 17th. I didn’t go to a neurologist as I couldn’t afford to pay a doctor to tell me I had an accident. My medical records consist of my annual check-up so I could continue to get my medication and initial surgical procedure. As I have aged my attention span has shortened as well as my focusing ability. Am I facing too large of an ordeal?

Karl

Jonathan Ginsberg responds:  Karl, thanks for your question.  I think that your case would turn on whether a treating nuerologist would be willing to fill out a functional capacity form that identifies specific work activity limitations.  On one hand, you have been able to overcome your injury with medication for over twenty years.  A judge would therefore want to know what has changed.

I think it is entirely plausible that neurological damage such as that which you describe could get worse over the years, but, again, what you and I think doesn’t really  matter – what does the doctor say.

This is probably a case where a neuropsychological evaluation would be appropriate.  I understand from what you write that finances are an issue – unfortunately I think that is you want to have a realistic chance at winning, you will need help from a treating doctor.

Finally, don’t forget that your "insurability" for Title II Disability will run out approximately four to five years after you stop working (this is called your "date last insured").  When you apply for Disability make sure to find out your date last insured and use the earliest possible onset date – such as your last day of work.

[tags] Traumatic brain injury, neurological injury and social security disability, date last insured, functional capacity, residual functional capacity [/tags]

Perceptive Judge Overcomes Poorly Prepared Vocational Witness

Yesterday, I appeared with a client at a video hearing with a judge from West Virginia.  This was actually our second hearing – the first hearing was held in August, 2006.  My client applied for benefits in July, 2003, which means that his case has been pending over 3 1/2 years.  During that time, my client and his wife had to file bankruptcy and he has exhausted all of his pension and 401(k) money.

My client worked for a large airline for almost 20 years and back in 2001, he began experiencing severe pain (neuropathy) in his feet and legs.  He subsequently fell and broke his left hip and he currently needs a knee replacement.  He is also severely depressed and basically spends his days trying to find a comfortable position.

At the initial hearing, the judge was not convinced that my client’s physical condition was severe enough to justify benefits and he was concerned that there was not enough documentation about my client’s mental health condition.  Therefore, following the hearing, the judge referred my client out for a psychological evaluation.

My client attended the psychological evaluation and in early December, the judge sent me a copy of the psychologist’s report.   As discussed extensively on this blog, the main issue in any Social Security case relates to a claimaint’s capacity to perform work.  The assessment completed by the consultative psychologist proved to be very relevant evidence.

At this, the second hearing, the judge took no testimony from my client, but he did ask several questions of the vocational expert witness (VE).  The first question – if the claimant’s psychological profile is as set out in the psychologist’s report, could he perform any type of work.  Let me interject here to say that 99% of vocational witnesses would answer “no,” because (1) the “poor” in “dealing with work stresses” and the cumulative effect of four “fairs” in other vocationally significant categories would make any kind of vocational adjustment pretty much impossible.

This VE, however, testified that 20% of sedentary jobs would remain available.  Before I had a chance to cross-examine (I would have asked him about the cumulative effect of the “fairs” and about his understanding of the word “poor”), the judge gave two more hypothetical questions, each with significant limitations.  It was fairly clear that the judge saw this as a case he was going to pay, but he needed acceptable vocational testimony.

The judge eventually got the testimony he wanted and he will pay this case.  This is a good example of how a knowledgeable judge was able to get past the inexperience of a new or overly conservative vocational witness.  This case also demonstrates how much authority a Social Security judge has in deciding which way he will take a case.

 

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