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SSDI Claimants Can Expect to be Asked About Unemployment Benefits

tough ALJ questionsOver the past several months, I have noted that my SSDI clients are regularly being asked by judges if they have filed for unemployment benefits.  This question used to come up occasionally in the past, but now my clients are almost always asked if they have filed or are receiving unemployment.

The issue is this: when you file for state unemployment, you must assert that you are ready, willing and able to work.  In the past, I would counsel my client to answer the judge’s question by stating that “I am willing and anxious to try to work and I would put forward my best effort to perform any job.  I don’t know if my medical condition would allow me to perform reliably but I would certainly try.”

Given that Social Security’s stated policy is to encourage people with disabilities to return to work, I do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.

However, as is the case with part time work, Social Security tends to view things in an “either-or” fashion.  You are disabled or you are not, and there seems to be no middle ground. Continue reading →

Past Due Benefits Paid Up to One Year Prior to Application Date Only

onset date vs. application dateQuestions related to onset dates, application dates and the date of first payment continue to be one of the more confusing elements of Social Security disability.  A recent question from a blog reader incorporates all of these issues so I thought it might be helpful to use this question as the basis of a blog post:

I STOPPED WORKING IN 2009 I KNOW THIS WILL BE MY ONSET DATE, MY QUESTION IS MY ONSET DATE OF 2009, HOW WILL THIS AFFECT ME WHEN I APPLY FOR SSI BENEFITS SOON, SINCE I DON’T HAVE AN EARLIER ONSET DATE. WILL SOCIAL SECURITY BACK PAY ME FOR 2009 IF I WIN MY DECISION.

Let’s first discuss the question of what is Robert’s onset date.  Generally, most claimants choose as their onset date the date that they last worked, and that is a reasonable choice.  However, your onset date should be the date that you became unable to work.  If, for example, Robert was laid off in May, 2009, and he suffered a major heart attack in October, 2009, the October date would be more appropriate.  In theory, you can choose an onset date prior to your last day of work, but doing so is an uphill battle and judges are reluctant to approve a claimant for disability for a time period when he was working full or close to full time.

Generally I advise my clients to choose the earliest possible onset date when their medical condition prevented full time work.  Your disability onset should be a date prior to the date that your SSDI insurance runs out. Continue reading →

Use a Cane? Get a Prescription

walking cane and SSDIThis year, I have represented three clients who use a cane either all of the time or most of the time but whose use of this assistive device was discounted by the judge because the cane was not prescribed by a physician.

The issue in your Social Security disability case is whether you can perform even a simple, entry-level type of job.  Our goal, therefore, involves identifying specific limitations that would impact your ability to perform work.

If you cannot walk without a cane or walker, it stands to reason that you would not be able to perform jobs requiring:

  • more than very occasional standing
  • more than occasional walking
  • balancing
  • climbing ladders, ropes or scaffolds
  • kneeling, bending and stooping
  • crouching and crawling

Further your need for a walking cane would support allegations of pain and other activity limitations (such as lifting and carrying) associated with back or knee injuries.

In short, if the judge accepts that you need a cane to walk, he will eliminate from consideration all jobs except sedentary (sit down) types of jobs.

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Why Do Social Security Judges Call Vocational Expert Witnesses to Testify at Social Security Hearings?

vocational expertIn most Social Security disability hearings, judges call on expert witnesses called “vocational experts” to help them evaluate your capacity for working.  As a general rule,  Social Security defines “disability” in terms of a claimant’s ability to perform the tasks of a simple, entry level job, therefore it makes sense that the judge will need to identify the specific activity limitations that arise from your medical and/or psychological problems and he will need a way to determine if these limitations impact your capacity for work.

Judges make this evaluation by posing “hypothetical questions” to the vocational expert witness.  A typical question may sound something like this:

Mr. Vocational Expert, I want you to assume the following about a hypothetical person who is the same age as our claimant, with the same educational background and the same work history.  This person is limited to light work with the following limitations:

  • he can sit for 45 minutes at a time, then needs to stand and stretch for up to 10 minutes
  • he can sit for a total of 2 hours during a day
  • he can stand for 6 out of 8 hours during a day but should have the ability to change position at will Continue reading →

Will Filing for Unemployment Hurt Your Social Security Disability Case?

unemployment and social security disabilityIn my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability.  On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be  “unable to engage in substantial activity?”

Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt. Continue reading →

How do You Contact the Judge to Update Your Hearing Testimony?

I recently received the following question from a blog reader who asked a very interesting question:

I just had my second hearing with administrative judge and wanted to add a very brief fact into testimony and was wondering if it is acceptable to write the judge directly.   I do have a lawyer, but I am unsure that some of my letters of issues that I want to clarify are not being seen by the judge.

 

writing the judge after hearing
by ProgressOhio under CC BY  with wpseopix.com
.

Here are my thoughts:  first, if you have a lawyer I think that any communication from you needs to come through your lawyer.  Judges generally do not accept direct communications from disability claimants – more likely than not, the judge’s office would return your submission to you, and, most likely copy your lawyer with a form letter advising you to use your lawyer to submit all documents.

Second, unless the information you want to add is extremely significant I would hesitate to try to update your hearing testimony.  Social Security judges are very busy and when you try to add a document after the record has closed at your hearing, it will require someone at the hearing office to manually pull your file.  This could result in a delay in the issuance of your hearing decision.  Further, judges usually “close the record” after the hearing so it is doubtful that your added information would be considered anyway.  You have had two hearings – I suspect that your judge has a fairly clear understanding of the facts of your case.

I would discuss with your lawyer what the best options are here.   If the “very brief fact” is extremely significant and your lawyer agrees that it makes sense to try to reopen the record, then he can try to do so in a post-hearing brief or submission of evidence.   On the other hand your lawyer may advise you that the hassle factor for the judge outweighs the importance of the information and he may advise you to let the matter rest while you wait for a decision.

Claim Review Doctors at Social Security Overworked, Underqualified and Underpaid

Social Security medical review system under strainIf you have received a claim denial notice from Social Security, you are familiar with the language used in these denials:

We have determined that your condition is not severe enough to be considered disabling.  In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….

Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.

Continue reading →

Appeals Court Awards Claimant 30 Years Worth of Past Due Benefits

Frusher Social Security appealA federal circuit court of appeals has awarded a widow 30 years worth of past due benefits on her late husband’s claim.  The case involved the claim of Dr. Richard Frusher, a Rhode Island resident who applied for benefits based on mental illness in 1975.

Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970’s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him. Continue reading →

Why does Social Security Want You to See a Psychiatrist if You Have a Physical Injury?

psychiatric testingAt some point in your Social Security disability case – usually during the initial application evaluation, but possibly later – Social Security will send you out for a “consultative examination” with one or more doctors.   In my experience, the physical medicine consultative evaluations are fairly useless – Social Security tends to contract with “industrial clinics” who handle worker’s compensation claims and those reports often minimize symptoms.

Mental health evaluations, by contrast, often help your case – perhaps because psychologists and psychiatrists are generally not biased from being part of an adversarial workers’ compensation system and because mental health professionals often see a need for on-going therapy for many that they see.   To put this another way, physical medicine doctors face insurance company pressure and financial incentive to fix a problem as fast as possible, whereas mental health professionals are not looking for a “cure” as much as they are looking for gradual improvement over time, and thus on-going visits.

I have read literally thousands of physical and mental health consultative examination reports and as a rule the mental health evaluation reports usually offer some help, while the physical medicine reports either hurt my client’s case or offer no conclusions at all.

You may be wondering why you are being scheduled for either a physical, a mental evaluation or both?   The Social Security law requires the Commissioner of Social Security (and by extension, the employees of the agency) to help “develop” your medical record.   Consultative evaluations, therefore, would satisfy SSA’s statutory requirement even when considering the claims of applicants who have little or no medical treatment (due to lack of money or other causes). Continue reading →

If You Appeal an Unfavorable Hearing Decision, You Can No Longer File a New Claim as Well

Social Security Ruling 11-1pFor as long as I have been in practice, I have advised my clients that if they received an unfavorable hearing decision, they could file an appeal with the Appeals Council and, at the same time, file a new claim for benefits.

As of July 28, 2011, this “double filing” option is no longer available.

SSA has issued a “ruling” called SSR 11-1p which says in part:

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

Social Security concluded that this new rule was needed because of the administrative complications of coordinating appeals with new claims. Continue reading →

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