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All posts by Jonathan.

What does it take to win a Social Security disability claim based on a mental health impairment in 2022?

In my Social Security disability law practice I am seeing an increasing number of case inquiries from men and women struggling with mental health issues like depression, anxiety, and PTSD. This surge in inquiries is in addition to our case inquiries from potential clients who are dealing with more organic mental illnesses like schizophrenia or the after effects of traumatic brain injury.

Like many others, I suspect that the Covid pandemic is a trigger for increasing numbers of depression and anxiety related claims. Onsite work is stressful both because of concerns about becoming infected and because fewer workers are being asked to do more.

Remote work has changed the social dynamic of employment. More people work alone with only occasional electronic interaction with co-workers or customers. Rambunctious school aged children may or may not be home, depending on whether a school system had to close for a week or month.

Every day I speak to several very stressed out potential clients to tell me that they simply do not have the mental energy or capacity to remain in the workforce. Some have quit while others have been fired for excessive absences or lack of productivity. Continue reading →

Can You Apply for Social Security Disability When You are Still Working?

working while disabled

What are the rules about working while at the same time applying for Social Security disability. Some of the rules are very clear, while others not so much.

Let’s start with the “bright line” rules. Social Security defines disability in terms of how your medical or mental health issues prevent you from engaging in something called substantial gainful activity (“SGA”) because of a medical condition or conditions that have lasted or are expected to last twelve consecutive months or result in death.

As you can see SSA’s definition of disability does not focus on your diagosis – instead it focuses on how your medical problem would impact you in a work setting. I frequently get emails from potential clients asking “do I qualify for disability” due to my:

  • herniated disc
  • diabetes
  • severe depression
  • PTSD
  • congestive heart failure
  • multiple sclerosis
  • fibromyalgia

My answer is always the same. You do not win disability based on your diagnosis – you only win if the medical records proves that because of your medical issues you would not be able to engage in SGA.   To put this another way, SSA’s focus in a disability case is on your capacity for work, not your medical condition alone.

Continue reading →

“I’m 34 Years Old with Serious Medical Problems but Still Hanging on at Work. Should I Quit and File for Social Security Disability?”

should I file for disabilityAs a Social Security disability attorney, I frequently receive emails like pose this question – from a man or woman in their 30’s or early 40’s with a long standing medical condition that makes work a real struggle.

Sometimes the issue is chronic pain – in the back, the knees or even a generalized body pain (like fibromyalgia). Sometimes the underlying medical condition is a chronic disease like diabetes or kidney disease that saps one’s energy and makes it difficult to function reliably day after day.

I even hear from potential clients who are cancer survivors – the cancer may have been removed surgically but the struggles with long term effects of chemotherapy or radiation remain.

More recently I am hearing from Covid “long haulers” – people who contracted Covid in 2020 and who continue to struggle with cognitive loss, low energy and occasional breathing issues.

And almost every younger person I correspond with has some level of anxiety or depression about how facing a future with likely lifelong medical complications, and stress about how they will support themselves or their families.

Should You Quit Work to File for Disability?

So, if you find yourself in one of these situations, what should you do? Keep working? Quit and file for disability? Work part time and file for disability? Here are my thoughts about the reality of pursuing disability if you are under 50 and still hanging on at work. Continue reading →

Are Social Security Judges Denying Disability Claims by Relying on Bogus Data?

why disability judges deny claimsRecently a television station in Charlotte, North Carolina ran a story about the Social Security disability decision making process called “Obsolete Jobs” Prevent People from Receiving Disability Payments (click on link to view story).  The story recounted the struggles of a Charlotte man who with a severe and painful back injury who was denied at his disability hearing by a judge who concluded that he has the capacity to perform a variety of non physically demanding jobs that exist in the economy.

Since the underlying question in every disability hearing asks whether the claimant has the capacity to perform even a simple, entry-level job, judges rely on vocational expert witnesses to identify jobs that a “hypothetical person” with the same impairments as the claimant could perform. Continue reading →

Disability Approval Rates Trending Up

Social Security recently released its annual “waterfall chart” showing approval and denial rates for disability claims at various stages in the disability application process.

2020 Waterfall chart

As you can see, SSA approved 39% of applications filed without requiring any appeals at all.  This means that 39% of disability applications applied and were approved within 3 to 4 months.

For those ending up at hearings, SSA judges approved 49% of all claims.  This is up significantly from the 43% and 44% we saw just a few years ago.  The trend is certainly favorable over the past few years – hopefully, for the sake of deserving claimants, this continues.

You may find the idea of labeling yourself as  “disabled” troubling and this is understandable.  But if you cannot work anymore because of a chronic and severe medical problem, you very well may meet SSA’s definition of disability.  If our office can be of help to you in navigating these confusing waters please let us know.

Online Forums Often Contain Inaccurate or Incomplete Information

online forumsI sometimes look at online forums to see what type of questions people are asking about Social Security disability. Often the questions are good but the answers posted by well-meaning, but not knowledgeable respondents can be a little disheartening.

Often times the folks to post responses are basing their statements on what they have heard or what they think to be true but the net result is that these forums contain a lot of misinformation.

Recently, for example, I saw a post on Reddit asking “at what point in the application process should I hire an attorney?”

My response is here but I wanted to highlight some of the other replies which included inaccurate and incomplete statements. Here are some examples and my comments:

Assertion: there is nothing an attorney can do for you in the first two phases…the first two phases are all about filing paperwork. This is not a lawyers area of expertise

My response: filling out paperwork correctly is one of the main reasons to hire a lawyer. Social Security has its own language with dozens of acronyms and abbreviations. An experienced lawyer knows how to fill out SSA’s paperwork to increase your chances of winning early.

Assertion: when you get to the hearing levels you will need to hire a lawyer. Most lawyers work on contingency. They will get a third of your backpay up to $6,000…

My response: under a standard fee agreement, lawyers earn 25% (not 33%) of past due benefits. With rare exception all attorneys handle SSD cases under a contingency fee (not “most lawyers”). Continue reading →

Is it Enough to Simply Show the Judge You have an Obvious, Disabling Condition?

What if you’re 26 but have Scoliosis mixed with Osteoporscoliosisosis? My back looks like the hunchback of notre dame. My doctor even told me I’d never be able to work a regular job, but that’s been since highschool and my backs got worse. Can I not show the judge how bad my back hunches over? Because clearly they can see I’m disabled if they just saw my back.

Jonathan’s response: I think you should not rely on showing the judge how bad your back hunches over. Your chances of winning disability are much greater if your medical record and opinion evidence from your doctors addresses how your scoliosis and osteoporosis impact your capacity for work.

First, keep in mind that Social Security is not scheduling live hearings at this point. We may go back to in person hearings at some point in 2021 but there will be a backlog and you are likely to wait a very long time to actually appear before a judge. Currently, all SSD hearings are being conducted by telephone. Some judges are starting to hear cases using video (you, as the claimant, would be appearing using your smart phone) but I suspect that the severity of your medical issues would not come through on video like it would in a live hearing. Continue reading →

Will Volunteer Work or Passive Income Result in a Continuing Disability Review

Last month, I published a blog post entitled “How Does Disability Termination Work and am I at Risk of Losing My Benefits?” That post prompted a number of questions about post-approval activities. Are you at risk of a continuing disability review and efforts by SSA to terminate your disability benefits if you work part time after approval? What about situations where you earn passive income? How about volunteer work?

These very legitimate questions come from approved disability claimants who don’t want to sit at home doing nothing but who are rightfully concerned that their activities could jeopardize their benefits.

Here is how I would address these concerns:

The starting point for understanding when and how post-approval activities could put your disability benefits at risk is SSA’s definition of disability. In case you don’t remember, Social Security defines “disability” in terms of how your medical or mental health issues impact your capacity for simple, entry-level type of work. More specifically you were found disabled because you have a medically determinable condition that prevents you from engaging in substantial gainful activity and that has lasted or is expected to last twelve consecutive months. Continue reading →

How Does Disability Termination Work and am I at Risk of Losing my Benefits?

As you probably know, Social Security uses a process called “continuing disability review” (CDR) to evaluate approved SSDI and SSI claimants for medical improvement.

If Social Security determines that your medical or mental health condition has improved to the point where you could return to work, they will move to terminate your benefits. If you receive notice of termination you have the right to appeal and eventually to appear before an administrative law judge for a determination of whether you remain disabled under SSA’s rules.

The appeal process is beyond the scope of this article but I do want to emphasize one important issue – if you do receive notice of termination you have to notify SSA within ten (10) days of that notice if you want your benefits to continue while you appeal. If you do nothing, your benefits will terminate and your appeal (which could take a year or longer) will be for the purpose of restarting benefits.

If you choose to have benefits continue, there will be no “past due benefits” so you will not be able to hire a lawyer to assist you under a contingency fee contract. If benefits are terminated, you should be able to find a lawyer to represent you under a contingency fee, but you will have no income for the next year or so. Continue reading →

What You Need to Win a Mental Health Disability Case if You Treat at the VA

Can you win Social Security disability benefits based on a mental health issue like PTSD, anxiety, depression or bipolar disorder if the only records in your case file are VA (Veterans Administration) medical notes?

My experience over the past few years has been that you can win Social Security disability for mental health claims using VA records but it is becoming increasingly difficult to win benefits with only VA records. This is true even in the case of veterans who have a 100% service connected VA disability rating.

VA Disability Ratings Are Not Binding on Social Security

I have always found it odd that a VA disability determination is not binding at all on the Social Security Administration. VA disability is different from Social Security in that the VA system issues ratings in percentages whereas Social Security is “all or nothing.” You can have a 70% VA rating but there is no equivalent in Social Security – either you are 100% disabled or you are not disabled at all.

You may be frustrated and disappointed that your 100% VA disability rating is not binding in any way on Social Security in disability determinations.’

I fully understand the frustration of military veterans who are struggling with PTSD, depression, anxiety and perhaps a variety of physical problems who cannot understand why they have to go through another disability adjudication process after they have fought the VA for months or years. Continue reading →

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