Ginsberg Law Offices

Free Resource for Disability Claimants: 10 Steps to Prepare for Your Social Security Disability Hearing

My colleague (and fellow Tulane Law School alumni!) Gordon Gates, a Social Security disability lawyer who practices in Maine and New Hampshire, recently wrote me to let me know about a free e-book that he has generously made available to you on his website. Entitled “Ten Steps to Prepare for Your Social Security Disability Hearing,” this booklet is both an easy read and a valuable reminder about specific things you can do to improve your chances of winning a favorable decision.

Because the disability decision making process can take so long – 1 to 2 years in most places – it can be easy to forget what your lawyer may have advised you in a meeting 6 or 8 months ago. Gordon’s book remedies this problem by setting out clearly and concisely 10 essential reminders about what you should keep in mind.

In my Atlanta law practice, I usually communicate with my clients by email more so than by phone and I have been sending out the link to Gordon’s free download on a regular basis.

Obviously, no book, no matter how good, will substitute for a supporting treating doctor and hundreds of pages of strong medical records. However, if you and your attorney follow the advice set out in this helpful little book, you will greatly reduce your chances of being unprepared when you finally get your hearing date. Again, the download is free and you will find the information contained within very useful.

SSI is Different than SSDI

I regularly get phone calls or emails from potential clients who tell me that they “want to apply for SSI.” In some respects “filing for SSI” has become a shorthand phrase for someone who wants to file for disability, but, in truth, there is a huge difference between SSI and SSDI.

SSDI stands for “Social Security Disability Insurance” and refers to benefits payable to claimants who have enough credit hours to be considered “insured” for disability. The monthly payment is a function of what you have paid in to the system. In my practice the average SSDI monthly payment is around $1,50o.

SSI stands for “Supplemental Security Income” and refers to welfare benefits payable to claimants who do not have enough credits to be insured for disability. The maximum monthly payment is set out in the law – and for 2011 is $674 per month for an individual.

Last week, for example, I received a long email from a concerned woman who was writing on behalf of her father. Apparently, her father had worked at a very physical job for over 20 years before suffering a stroke in 2002. This gentleman filed for Social Security disability in 2002 and was denied at a hearing, which I will assume was held at some point in 2003.

After being denied, this gentleman did not file anything else. He remained at home, unable to work because of the ongoing complications from the stroke as well as depression and anxiety. Continue reading →

Can I Discharge my Social Security Disability Overpayment in a Bankruptcy?

In my law practice, I handle both Social Security disability cases and consumer bankruptcy matters. As such, I regularly get calls from other attorneys and potential clients about issues where these two practice areas overlap.

One of the most common questions I get has to do with the question of whether a Social Security disability overpayment may be discharged in a bankruptcy. Overpayments occur when disability claimants continue to receive benefits even when they have returned to work or are otherwise not eligible for payment.

Often, the person receiving the payment does not know that he/she is not eligible. Social Security has a number of programs designed to encourage disabled claimants to return to work, and most of these programs provide for several months of continuing disability payments while a claimant tries to return to work. Continue reading →

Understanding the Social Security Disability “System”

My colleague, San Francisco California Social Security disability attorney Geri Kahn, publishes an interesting and thoughtful Social Security disability blog that I read regularly. This past April, she published a post that should be required reading for all disability applicants. Entitled “Four Misconceptions About the Social Security System,” Geri succinctly discusses several issues that lead to a great deal of frustration for both claimants and their attorneys.

One of the points Geri discusses really resonates with me. She answers the question “I have back pain and cannot work so why do you recommend that I see a psychiatrist?”

Great question.

For years, my practice has been to add an allegation of depression and/or anxiety to every Social Security appeal I file. In my view it would be extraordinary if anyone with a history of regular work would not be depressed and anxious if he/she:

no longer has a regular work routine
experiences financial pressure because of lack of income
feels a sense of worthlessness because he/she can no longer contribute (this is especially true for men)
recognizes that he/she will not be able to engage in social, athletic and recreational activities at pre-impairment levels
has to deal with stress and anxiety inherent to anyone with chronic pain
has to deal with disrupted and sometimes damaged family relationships
has to deal with physical and emotional changes associated with strong pain medications
experiences new medical issues associated with his/her chronic medical condition (i.e., obesity, constipation, high cholesterol, etc.)

As a disability claimant, you may not even realize the impact your back condition has had on your life. As attorneys, we look at you as a whole person to understand more fully why you can no longer work. Not only will such a more expansive view of your damaged health benefit your case, it may help you better understand what you are going through as well.

Working After Being Awarded Disability – What is the “Ticket to Work?”

With disability claims taking 2 to 3 years to wind through the disability adjudication system, I often get the question from my clients “is it okay if I try to work” or “is it okay if I work part time?” Generally my answer to this question involves an explanation that in my view, Social Security decision maker (judges and adjudicators) tend to see work in black and white terms. If you try to work and fail within about 3 months (this is called an “unsuccessful work attempt”), your effort can be helpful evidence to show that you are motivated but unable to perform. If your attempt lasts longer than 3 months or if you work a part time job ongoing, then your work efforts will generally hurt your disability claim.

Social Security disability ticket to work program What about work efforts after winning your disability case? Generally you will earn more money and be more fulfilled as a person if you can work, as opposed to sitting at home collecting disability benefits. Obviously, Social Security would prefer that you leave the rolls of disability claimants, and statistically, 90% of disability recipients would like to go back to work (although less than 1% actually do, perhaps because they do not know how). So what are the rules?

I have set out the specifics about returning to work after being approved for disability on a special topic page on this site. Click on the link to learn more about this.

You may not be aware, however, that Social Security has several programs available to you that help you try to return to work without penalizing you for trying. Perhaps the most developed program in this regard is called the “Ticket to Work.”

My colleague, Chicago Social Security disability attorney Aaron Rifkind, has written a clear and informative article about the Ticket to Work program. Aaron also publishes an excellent Social Security disability blog, which I read regularly. As Aaron notes, the Ticket to Work program is: Continue reading →

Multiple Sclerosis Patient Seeks Strategy to Win SSDI Case Early

Jonathan
March 19, 2011
Leave a comment

Here is a question I received from a multiple sclerosis patient who is preparing to apply for Social Security disability and is hoping to win her case early.

Jonathan,
First, I want to thank you for putting valuable information about the SSDI process online. I was diagnosed with MS in 1993. I recently left work on an early disability retirement after a 24 year career with the State of ABC. My question is this – if I have MS and my medical records document cognitive dysfunction, isn’t it feasible that I would be approved with my initial application to SS? Although I did very well in the beginning of the journey, as I have gotten older, (I’m only 44), my disease has started progressing over the last few years. Will the fact that I have taken an early disability retirement from the state weigh favorably towards my case?

Here are my thoughts: the first question I would ask is “are you insured for Title II Social Security disability?” In some states, employees do not contribute into the Social Security system- instead, they contribute to a state disability program. For example, I sometimes get calls from teachers who may have worked for years, but who are not insured for Title II disability because their school system opted out of Social Security. If you cannot tell from looking at an old paystub, I would advise you to contact your human resources office to confirm that you have been making payments into the Social Security system. You can also call Social Security at 800-772-1213 to inquire as to whether you have been earning credits. You can also request an earnings and benefit statement (Form 7004) from Social Security directly.

If you are not insured for Title II SSDI, then you might still be eligible for SSI, but that will depend on household income and the value of assets that you own.

Assuming you are eligible for Title II disability, your best chance at an early approval would be to request help from your treating doctor to show that you meet or equal the multiple sclerosis listing, which is found at Listing 11.09. When you read this listing, it does refer to cognitive issues by referring to Listing 12.02 which describes “organic mental disorders.”

I would print out the entire Multiple Sclerosis listing and the listings referenced in 11.09 and take the printout to your doctor’s office. If your doctor or someone in his office is willing to write a narrative report describing your symptoms, course of treatment and state that your symptoms meet or equal what is contained in the listing, you greatly improve your chances at an early decision. Your doctor should track the language of the listing as closely as possible, using the language of the listing wherever possible. Further, since the disabling symptom you describe has to do with cognitive dysfunction, you may need to have a psychiatrist or a neuropsychologist evaluate you and write a narrative report that tracks Listing 12.02.

I take a similar approach when I am representing an MS client – although instead of a narrative report, I create a checklist for the doctor to complete and submit that to the Social Security judge along with copies of all medical records. Often times, by the way, Social Security will provide the neuropsychological exam as a “consultative evaluation” that they pay for, however, if you can provide your own, you obviously have more control of the process. Continue reading →

What to Expect When Social Security Schedules You for a Medical Exam?

Earlier this month I received an email asking about initial application procedures from a gentleman who had visited my Georgia disability web site. This person had not yet applied and he wrote to ask me what he should expect when he did apply.

After discussing with him the ways he could apply – either by phone, in person at his local Social Security office, or online at ssa.gov, he asked me what was going to happen after he started his application. I explained that once his claim was opened, his file would be sent to a disability adjudicator and that he should expect to hear from the adjudicator to set up an in-person or telephone interview.

Today, I heard back from this gentleman asking another very good question about the initial application process. I believe that he has been through his initial interview and that his claim is now being processed. Since his question is relevant to just about everyone who files for benefits, I thought I would answer it in my blog rather than by an email.

The applicant told me that he had applied in person and that his adjudicator had scheduled him to meet with a private doctor for a medical exam. Is this a good sign or not? What should he expect at this meeting? Here are my thoughts:

The exam that has been scheduled is called a “consultative examination.” These examinations are conducted by doctors who have contracted with the Social Security Administration to do this kind of work for a designated fee. Continue reading →

What To Do if your Doctor is Not Cooperative

Jonathan
December 28, 2010
View all 10 comments

If you haven’t already noticed, physicians are working harder for less money. I expect this trend to continue, especially with the government getting more involved in setting prices for services. In the Social Security disability world, we rely on doctors to provide medical records and to assist attorneys in identifying specific work limitations that limit patients. These limitations often form the basis of a functional capacity argument for disability.

In other words, if a treating doctor is willing to go on record to say that his patient would likely need unscheduled breaks, or cannot use his left arm for reaching over shoulder level, or needs to extend his legs while sitting, those limitations can be used to argue that certain categories of jobs (or, better – all jobs) would not be possible for this particular claimant.

In my practice, I have created “functional capacity” forms that I either send to doctors or that I give to my clients to bring to their doctors. A good form that contains numerous limitations can result in a favorable decision, even from a judge who does not approve a high percentage of cases. As a wise old judge once told me “if you have a compelling functional capacity form, I usually have no choice but to approve that case.”

Continue reading →