Call Today: 1-800-890-2262

Ginsberg Law Offices

What Strategy Should Narcolepsy Claimant Use to Win Benefits?

Back in 2006, I wrote a blog post entitled “Narcolepsy as a Basis for Social Security Disability.”  In that post, I noted that there is no “listing” for narcolepsy, meaning that a successful claim would have to rely on a “functional capacity” argument and that you may need more than strictly medical evidence to persuade your judge.

Recently, I received an email from a gentleman named Michael who asked for some additional information:

I have narcolepsy and even the maximum doses of medications don’t help. I keep losing jobs and will be losing my current job due to this. I do exceptionally well at my job when I feel alright, but I spend at least twenty hours of the day not functional. I’m currently telecommuting full-time and I still can’t stay awake and clear long enough each day to do my work. When I work on-site at a job, people accuse me of being an alcoholic or drug addict because I look terrible and slur my words and fall asleep several times per day. The only thing that prolongs my jobs is that when I’m feeling alright, I am sharper than most and unusually productive. So, they smell my breath and check my arms for tracks and I try to convince them that I’m just tired and that usually suffices for a while, but once again I’m losing my job. I am getting worse as I get older and I can’t maintain myself or watch my own child or regularly brush my teeth, etc. It’s a horrible situation and I’m looking at losing everything (job loss) and I don’t think I will be able to recover my finances this time because my narcolepsy is getting so bad. How could I get disability for this? What happens if a treatment comes around that works, can I get back off disability? If I can somehow start a business and hire other people to do the work in order to get off disability, would I be penalized for trying to get off disability? Even working full-time telecommuting, I get accused of being drunk or using drugs because I randomly sound drunk or on drugs even over the phone. It is so frustrating. Please advise as to what options I have, if any, and thank you for writing something up on the web about this.

Here are my thoughts: Yes, narcolepsy can be the basis for a Social Security disability claim.  Please refer to my August, 2006 blog post referenced above.   If a new treatment is developed, you may absolutely terminate your disability – in fact, if you return to work you are required to notify the Social Security Administration. Continue reading →

What Happens to my Case if I Return to Work While Waiting for my Hearing?

With delays in the hearing process reaching 2 years, I frequently get questions from potential clients about the implications of returning to work.  Here is a typical question:

i’m 57 yrs old & have filed for ssd due to herniated discs & arthritis of the knee. what happens to my case if i return to work before i get a hearing? i don’t know how long i’ll be able to work , but i got to try.

Jonathan Ginsberg’s response: If you have read this blog and educated yourself about Social Security, you know that the main issue in any Social Security case turns on whether you can perform some type of work reliably 8 hours a day, 5 days a week with normal breaks.  If you are working, by definition, you are not disabled.

Attempting to work while your case is pending may or may not be a problem.  If you try to work and last only a few days or even a few weeks, the judge will see that as an “unsuccessful work attempt” that demonstrates your sincere desire to work and your inability to do so.

Once you stay at a job for more than 3 months, however, it starts to look like you have the capacity to perform “substantial activity.”

Remember that Social Security’s definition of disability looks to whether you have missed or are likely to miss 12 consecutive months because of your impairment.  I have represented several clients who missed 12 months, and then returned to work and we argued for a “closed period” of disability.   If you are out of work for less than 12 months, you are not likely to be approved so you and/or your lawyer should pay attention to the timing of events in your case.

I generally advise my clients that they will earn more money and they will be more fulfilled if they are able to work and I encourage them to do so.  However you need to be realistic about your capabilities – you do not want to go back to work just long enough to damage your Social Security case but not long enough to support yourself over the long run.

How Do You Evaluate Whether Your Child’s SSI Case is Viable?

I recently received the following email from a reader of this blog:

I am just wondering if I am wasting my time, my son has been diagnosed adhd for about 4 years now, I think its more but we havent gotten there yet. He is in regular classes but is also in resource at school, he also had to be held back a grade due to his problems the first year being diagnosed. Would he possibly qualify at all for disability benefits.

Jonathan Ginsberg’s response: In order to win a child disability case, you will need to show that your child meets a Listing.  The Listings for children are different than the Listings for adults.  You can review the childhood disability listings by clicking on the link.

The Listing for ADHD may be found at Listing 112.00 Mental Disorders-Childhood.   I can tell you from experience that you will have an uphill battle with an ADHD claim.  There are a lot of parents out there who are filing disability claims on behalf of children and basing their claims on ADD or ADHD.  That is not to say that ADD or ADHD is not real or that it is not debilitating for your child.   I just want you to know that judges and medical experts called at hearings will be skeptical.

I would not recommend pursuing an ADHD claim on your own – you will be benefit greatly by consulting with an experienced disability lawyer.  Best of luck to you.

Is it Possible to Get an Early Favorable Decision in a Fibromyalgia Case?

Yesterday, I met with a fibromyalgia disability client in a pre-hearing session.  A hearing is scheduled in my client’s case in about 10 days and I met with my client and her husband to discuss what I call the “theory of our case” so my client would have a clear idea about what we were trying to prove.  In addition I use the pre-hearing meeting to practice questions and answers so that my client can avoid easily correctable mistakes.

During our meeting, my client mentioned how frustrating it has been for her to wait over 2 years to get a hearing and she asked me if this type of delay was typical.  My initial response was that fibromyalgia cases were rarely approved at the administrative (initial application or reconsideration) levels because there is no “listing” for fibromyalgia and adjudicators at the State Agencies did not have the expertise or authority to issue early approvals.

After my client left, I thought more about my response – is it possible for a fibromyalgia claimant to get an early approval from a State Agency adjudicator?

I think that it is possible, but a claimant would need strong support from her treating physician.  As I have discussed before on these pages, there are several “theories” or arguments under which a claimant can win his/her case.  The Listing argument constitutes the most straightforward theory.  If your condition meets or equals a Listing, you have consistent and extensive medical treatment records, and your doctor will prepare a narrative or complete a form that tracks the listing, and you make the adjudicator aware that a listing is involved, you greatly improve your chances at an early approval.  Do not, by the way, assume that the adjudicator will recognize your case as a “listing level” case – you need to make that argument clearly when you submit your paperwork.

If there is no listing that describes your condition (such as fibromyalgia), you will need to argue for disability based on another theory.  If you are 50 years old or older with a physical impairment, a limited education and a limited work skill background, you should look at the “grid rules” to see if you can be found disabled based on the grids.  Grid based decisions do not call for judgment and State Agency adjudicators will issue favorable decisions in grid cases.  Here, too, you need to point out that your case is a “grid” case and identify the specific grid.

Fibromyalgia cases can fit within the grids, although my experience has been that most fibromyalgia patients are high acheiving, Type A individuals who often have too much education and work skills to fit neatly within the grids.

If you do not meet a listing or a grid, you’re remaining argument will be a “functional capacity” argument.  It has been my experience that State Agency adjudicators do not often approve cases arising from functional capacity limitations because reaching a conclusion about a claimant’s “residual functional capacity” is a legal decision that requires judgment and adjudicators are not given much authority to make quasi-judicial decisions.

However, if you submit a completed functional capacity evaluation from a treating  physician (or two, or three) along with treatment notes, along with a request that the adjudicator take that functional capacity evaluation to the non-examining State Agency medical consultant and/or the adjudicator’s supervisor, there is a chance that your fibromyalgia case can be flagged for special review.

I hope you have picked up on a theme in what I have written about dealing with the State Agency adjudicators.  You cannot and should not assume that they will find a reason to approve your case.  You need to politely suggest a direction for their actions.  You need to lay out very clearly your argument for disability and you need to explain why a particular item of evidence is particularly relevant.  Finally, you need to realize that the State Agency adjudicators are overworked and underpaid and that they are given limited authority.  Do not hesitate to ask your adjudicator to take your file to a supervisor or to a medical or psychological consultant in the State Agency office.

How Does a VA Disability Rating Help my SSDI Case?

I recently received the following email from a reader of this blog.

I have a claim going now for SSDI and have not recieved a decision yet however after reading your blog I am very curious about your experience with VA disability and SSDI. I am 100% disabled and receive VA disability. How does or can this affect my SSDI claim?

Jonathan Ginsberg responds: Generally, a disability finding by the VA will be of great benefit in your Social Security case.  The Social Security law provides that judges must consider VA findings as evidence in your favor.  It has been my experience that any SSDI case that also has a 100% VA disaiblity finding has been a winner.  Even cases where the VA disability rating is less than 100% are usually approved.

May an Incarcerated Felon Receive Social Security Disability Benefits?

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

Assuming that Social Security will accept an application for disability benefits from a claimant who is incarcerated, I do not believe that the adjudication process actually stops during the incarceration.  I have actually attended hearings held in prison.  The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant.  Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.  Bottom line – it is an uphill battle for many reasons.

Will Child be Eligible for Dependent’s Benefits When “Out of the Picture” Father is Approved

I get a lot of questions from mothers who are caring for the children of fathers who are out of the picture.  Susan’s situation is a fairly common one so I will answer it here:

My 11 year old daughter’s father has just been approved for disability. I’m not sure if it is SSI or SSD. He applied 16 months ago, he is now over $4000 behind on child support. Will she be entitled to any of the back pay he will receive? How do I go about applying to see if she is eligible to draw a check off of him now that he is on disability?

***Editor’s Note:  Due to the large number of questions I receive about child support and Social Security disability, I have set up a blog specifically about that topic – please visit my Child Support and Social Security Disability blog**

Jonathan’s response: Auxiliary benefits are payable to the child of an SSDI claimant if:

A.  An application for child’s insurance benefits is filed;
B.  The child is (or was) dependent upon the parent (see below);
C.  The child is not married;
D.  The child meets any of the following conditions:

  1. is under age 18;
  2. is age 18-19 and a full-time elementary or secondary school student; or
  3. Is age 18 or older and under a disability (which must have begun before age 22) ; and

E.  The parent meets any of the following conditions:

  1. Is entitled to disability insurance benefits;
  2. Is entitled to retirement insurance benefits;
  3. Died and was either fully or currently insured at the time of death.

A child is presumed “dependent” upon the worker if
A.  The child has not been legally adopted by someone other than the worker during the worker’s lifetime; and
B.  The child is one of the following:

  1. The legitimate child of the worker;
  2. A child born out of wedlock who would have the right under applicable State law to inherit intestate property from the worker as a child;
  3. The child of a void or voidable marriage;
  4. The child of an invalid ceremonial marriage;

In Susan’s case, she needs to find out if her child’s father has been approved for SSDI or SSI.  If he is receiving SSI only, the child will not be eligible for auxiliary benefits.  If the father is drawing SSDI, then the child would be eligible assuming she is a dependent.  Susan would need to file an application for benefits on behalf of her daughter.  Note that the child’s auxiliary benefits are in addition to the disabled father’s benefit and do not reduce his monthly check.

With regard to past due child support, Susan may be able to garnish the back pay or on-going SSDI benefits of the father if he is delinquent in his child support.  I would suggest that Susan speak with her domestic relations lawyer if she has one, or with her case worker at the child support enforcement office to discuss the procedures for seizing this money.

Hearing Delays Statistics Updated

Social Security has released its latest reports documenting delays in hearing offices throughout the country.  The report, from the Office of the Inspector General, does not contain a comparison to last year’s report but it does appear to me that there has been a slight improvement in reducing delays.  In Atlanta, where I practice there has been a slight improvement from over 900 days delay to 713 day (downtown Atlanta) and 872 days (Atlanta North).

This month’s NOSSCR (National Association of Social Security Claimant’s Representatives) newsletter contains a story about SSA Commissioner Michael Astrue’s efforts to increase the productivity of the judges and to reduce backlogs.  As noted before, I applaud SSA’s transition to electronic file folders and it does appear that Commissioner Astrue’s efforts are beginning to pay off.

I scanned the report from the NOSSCR Forum bulletin, which you can download by clicking on the link here: ssdelays

Social Security Evidence Must be Submitted With Bar Code Cover Sheet

In my last post, I described Social Security’s new “paperless file system” that utilizes scanned documents rather than paper documents.  You may be wondering how written records get into the system.

Social Security uses a bar code system that works as follows:  if you have evidence or documentation that you want to submit to Social Security, you must submit the hard copies by fax to a designated number.  The first page of any such fax must be a cover sheet with a bar code associated with a particular claimant.  Here is what a bar code cover sheet looks like:

Bar Code

Presumably, a Social Security employee at the receiving end uses the bar code to scan the faxed documents into Social Security’s system.  As noted in my previous post, Social Security scans into TIFF format instead of PDF.

If you are proceeding on your own or if you are a lawyer unfamiliar with the new paperless system, make sure to utilize the bar code cover sheet or you risk delay or loss of your documents.

Social Security Hearing Exhibit Files Now on Compact Disk

Jonathan Ginsberg with Social Security CDJonathan Ginsberg with Social Security CD

Over the past year, Social Security has made meaningful strides in reducing hard copy paperwork and improving the efficiency of the disability adjudication process.  One of the most noticeable changes has been the gradual elimination of cardboard and paper files, which are being replaced by compact disks.  Social Security personnel now scan medical records and burn the files to compact disc.   Employees at the hearing office mail the discs to the attorney for pre-hearing review.  From the perspective of an attorney the CD system avoids the hassle of scheduling time to review the files or hiring someone to physically photocopy the files.

The only “fly in the ointment” has to do with the format of the files on the CD.  Instead of using a PDF format that everyone else in the free world uses, Social Security has decided to use a format called a TIFF format.  TIFF files are larger, harder to print and require a different type of file reader.

Although files in PDF format would have made a lot more sense, I sincerely applaud Social Security for what appears to be a success in reducing the blizzard of paper that has long been associated with disability claim files.

Top