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All posts by Jonathan.

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 →

Did You Choose the Correct Onset Date for Your Social Security Disability Claim?

What onset date should you use for your Social Security disability claim? Choosing the earliest possible onset date can benefit you in many ways – you may qualify for additional months of past due benefits – which can put hundreds or thousands of dollars in your pocket.

The earlier your onset date, the earlier you qualify for Medicare. When you are awarded SSDI, you become eligible for Medicare two years after the date you first become eligible for disability payment. So choosing an earlier onset date can qualify you for Medicare that much earlier.

In some cases, an early onset date can qualify you for SSDI when at first glance you only qualified for SSI. Remember that to qualify for SSDI, your disability must begin – your onset date – before your date last insured for SSDI. So an earlier onset date may put you back into SSDI status. Continue reading →

The Disability Judge Denied Your Claim – What Can You do Next?

If the Social Security disability judge denies your case and sends you a decision marked “unfavorable” you will feel angry, offended and frustrated. After all, disability cases can take two to three years from the date of your application to the date you receive the denial.

During that time, you have been unable to work, most likely struggling financially and basically putting your life on hold waiting for a decision in your case.

Now, after talking to you for around 45 minutes (the length of a typical hearing), the judge has decided that he/she just doesn’t believe your testimony about the severity of your symptoms, or how these symptoms would likely impact you at a simple job.

Even worse, under recent Social Security rules, the judge is allowed to discount the opinion evidence from your long time treating doctor(s) in favor of a medical-vocational assessment by a SSA staff doctor who never even met you, or a doctor who met you for an hour as part of a consultative evaluation.

If you should get an unfavorable decision, what should you do? Continue reading →

Do You Really Need a Suicide Attempt or Inpatient Psych Hospitalization to Win Your Depression Disability Claim?

If you are pursuing Social Security disability benefits and your primary impairment is depression, you will need more and stronger evidence to win your case.

Over the past few years I have noticed a trend in my law practice whereby judges are less likely to award benefits in depression cases unless your medical record contains evidence of suicide attempts, in-patient psychiatric hospitalizations or other symptoms that could be life threatening.

Unlike medical conditions like back pain arising from a herniated disc, irritable bowel syndrome associated with a diseased colon, cancer that requires surgery, radiation and chemotherapy, or blood clots that require you to keep your legs elevated, severe depression cannot be imaged using an MRI, CT scan or ultrasound. Psychologists and psychiatrists test for depression based on conversations with patients and their long term relationships with their patients. Continue reading →

How Your Former Co-Workers or Supervisors Can Help You Win Social Security Disability Benefits

Statements from your former co-workers or supervisors about problems you had performing the duties of your past jobs can be very persuasive evidence to a Social Security administrative law judge.

Since the main issue in your disability case has to do with whether you have the capacity to perform simple, entry-level work, it stands to reason that personal observations from former co-workers or supervisors – people who actually saw you in the workplace – would be very relevant evidence.

Presumably your claims file contains solid medical evidence. At a minimum, your medical record should include one or more diagnoses and medical records documenting treatment. Functional capacity evaluations from long time treating doctors (ideally medical specialists) help the judge understand how and why your medical issues would prevent you from reliably performing any type of job.

Your hearing testimony should demonstrate that you are honest and truthful and motivated to return to work if you could.

In addition to these standard building blocks for your case, statements from people who actually observed you struggling at a job can greatly strengthen your case and sometimes make the difference between winning and losing. Continue reading →

The Disability Judge Ruled that One of Your Medical Impairments is “Non-Severe.” What Does this Mean and Why is it Important?

Recently I have noticed a trend at many of cases I am trying on behalf of applicants for Social Security disability. After listening to testimony, but before posting questions to the Vocational Expert, the judge will say something like this: “counselor, I am going to find that the [allegations of depression; breathing problems and COPD; knee damage and reduced range of motion in the left lower extremity; etc.] are non-severe impairments and thus will not be included in questions I ask to the vocational expert. Do you have any objections to this?”

What does this mean to you if you are the claimant appearing at a hearing like this?

The term “non-severe impairment” is a term of art in the Social Security world. When judges evaluate claims, or, more accurately, elements of claims, they are required by law to analyze your case using something called the “five step sequential evaluation process.” Continue reading →

Will You be Approved for Disability Based on Your Diagnosis?

I frequently receive emails and comments on my YouTube channel from folks who want to know if they will be found disabled due to a particular diagnosis. “Will I be found disabled by Social Security if I have a herniated disc/carpal tunnel syndrome/major depression/cirrhosis of the liver, etc., etc.

I am not the only one who gets these questions. A retired judge who I appeared before many times and who knows Social Security disability law as well as anyone answers questions on Quora and he gets this question – apparently from the same person – over and over.

The judge’s answer and mine is the same – you do not win or lose your Social Security claim based on your diagnosis. The right question to ask is whether your symptoms and medication side effects leave you without the capacity to reliably perform simple, entry level work.

Social Security defines disability in these terms. When you appear at a hearing, every question the judge or your attorney asks is focused on your work capacity.

You could have four herniated discs, congestive heart failure and uncontrolled diabetes, but if you are working or can work an 8 hour day, you will not be found disabled. Continue reading →

Are You Guaranteed a Disability Approval if you Meet a Listing?

Are you guaranteed a favorable decision from Social Security disability if your diagnosis is included in Social Security’s Blue Book of Listed Impairments? Not necessarily, and here’s why.

Social Security’s Blue Book identifies fourteen “body systems.” For example, listing 1 discusses the musculoskeletal system and within this listing are a number of diagnoses that reflect impairments to your spine, bones and joints. Listing 4 discusses the cardiovascular system and listed within are diagnoses related to heart and circulatory functioning.

Visit my website MeetaListing.com to look at all of the listings and explanations about how to use the Listings to win.

I regularly get emails and comments on my YouTube channel from claimants who are upset that they were denied even though they feel strongly that they met a listing. Why were these cases not approved. Continue reading →

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