Ginsberg Law Offices

Atlanta North Judge Gets Raw Deal from Social Security Administration

Today’s Atlanta Journal-Constitution printed a front page article entitled Ruling: Judge Slighted Duties. The article reports the finding of an administrative law judge that Atlanta North ALJ Kelly Jennings can be removed from his position as an ALJ because he simultaneously served as an active duty lawyer for the Army.

In addition to firing Judge Jennings, Social Security is also going to attempt to collect over $300,000 in back pay. The ALJ considering this case concluded that because he was working for the army, Judge Jennings was not able to give his Social Security cases his full attention, thus contributing to the backlog in the Atlanta North office.

Excuse my use of the vernacular here, but this ruling against Judge Jennings is a load of crap. First and foremost, I find it incredible that any trier of fact would attempt to blame the Atlanta North backlog on one judge. The problem in Atlanta North does not lie at the feet of the judges; instead, the problem has to do with the lack of staff and Social Security’s slow embrace of technology. Judges are part of the puzzle, to be sure, but if the case files are not put together, if the hearings are not scheduled, if there are not enough writers to prepare draft decisions, and if thousands upon thousands of claims are being filed, there are going to be delays.

I try cases in the downtown Atlanta hearing office, as well as in Rome, Columbus, Macon and Savannah. The Atlanta North office has been the slowest in adopting the paperless exhibit files (exhibits are on CD) the paper files that we do use are usually not numbered or properly prepared for hearings. If Judge Jennings was able to process 10x as many cases as he did, none of this would change. Nothing in the AJC article suggested that Judge Jennings rate of productivity was any less than any of his colleagues.

I also wonder if the ALJ considering this issue took the time to speak to any of the lawyers that appeared before Judge Jennings. In my experience, Judge Jennings was always prepared for hearings and his processing time for issuing decisions was no different than any of the other Atlanta North judges. As an aside, Judge Jennings was considered to be more on the conservative side when it came to approving cases, so I am not writing this out of self interest. However, he was never arbitrary and his approach was always consistent, meaning that going in to a case I pretty much knew what I needed to present my case. In cases that he granted, Judge Jennings would frequently include specific direction to Social Security to review a claim in two or three years. I think he felt a responsibility to the taxpayers to insure that anyone who would be collecting benefits truly deserved them.

Finally, as noted above, Judge Jennings “other” job was as a lawyer for the Army. This was known to everyone at Atlanta North – I remember one occasion in particular, when Judge Jennings had to postpone hearings because he had an active duty deployment. Here, then, we have an individual serving his country in a time of war who is being unfairly singed out as the reason for a backlog problem that is, in truth, the result of widespread and systematic inefficiency.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing? Is that good news or bad news? A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled? my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing. Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation. Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office. The judge, who may be located hundreds or thousands of miles away, appears by video camera. The hearing reporter and expert witnesses may be local or they may be with the judge. You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia. I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices. For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried. At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person. However, that has not been a problem. I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.

How I Prepare Clients to Testify at a Social Security Disability Hearing

In my law practice, I generally schedule a pre-hearing meeting with my clients prior to any hearing before a Social Security Administrative Law Judge. The purpose of this pre-hearing meeting is for me to spell out the issues that will be addressed at the hearing, to the question and answer process with my client and to answer any questions that my client may have about the hearing process. The pre-hearing meeting also gives me a sense of how my client might testify so that I can adjust my questions accordingly.

I thought it would be helpful to readers of this blog for me to set out briefly what I discuss with my clients in the pre-hearing conference because this discussion really goes to the heart of how to win a case.

1. Main issue – the main issue in your case is going to focus on your capacity for working. Although there are several arguments we can make to win your case, most hearing level cases are won by arguing that your capacity for work has been so reduced by your medical conditions that you would not be a reliable worker in even a simple, non-production oriented, sit-down job.

2. During the hearing, we will identify the specific work type of activities that you cannot perform. For example, if you have a knee problem that prevents you from walking more than 30 minutes in any 3 hour period, this walking limitation would impact categories of jobs that require frequent walking or standing.

3. When I ask you about your ability to perform various tasks – sitting, standing, walking, lifting, carrying, stooping, climbing, etc., don’t answer with generalities. Saying “I can’t walk very far” or “I can’t lift very much” doesn’t tell the judge anything. Saying “I can only walk50 yards before I have to stop and rest,” or “it takes all my strength to carry a gallon of milk from the refrigerator to the table” does convey specific information that can be translated into a job requirement.

4. In almost every disability hearing, the judge will have a vocational expert there to testify. The vocational witness is there to identify the skill level and exertional level of your past work, and to answer hypothetical questions from the judge about other jobs. The more specific limitations we can persuade the judge to include in that hypothetical, the better your chances.

5. Your credibility is one of the main things that the judge will be deciding. Factors that enhance your credibility are a long work history, (unsuccessful) work attempts, and a sense that you would much rather be working than waiting for disability.

6. The medical record in your case will ultimately be the most important factor in determining whether you have a good case. If your record contains reference to drug seeking behavior or malingering, you will most likely not win.

7. Recognize that I cannot lead you when I ask questions. Give detailed and specific answers to my questions.

8. If I ask you about pain, you can use a 1 to 10 scale, with 1 being a mild headache and 10 being a kidney stone. Don’t say that your pain is always at a 10. A better answer – “my pain is always at a 5, but three or four times a week it spikes up to an 8 or a 9 – if I over do it physically or if I am under a lot of stress.”

9. If you are going to testify that you can’t sit for more than 15 minutes because of back pain, don’t come to the hearing and sit quietly for 45 minutes. It is ok to stand up and move around during the hearing if you are uncomfortable.

Will Graduate Student Work Stipend Cause Paraplegic to Lose SSDI Benefits?

My April 26, 2008 post about attending college and applying for Social Security disability generated a large number of emails and questions. A reader sent me this question which is about the impact of a stipend and part time job on an SSDI recipient who has already been deemed disabled.

I recently was injured and now am a paraplegic. Before my injury I was an airline pilot but can no longer fly because of my disability. I am returning to school to learn a new profession. My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?” Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week. It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties. I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit. Any information would be greatly appreciated.

Here are my thoughts: as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00). At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity. It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case. If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity. If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity – it would be difficult to argue otherwise. So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this. Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI. If you earn less than $670 per month, no problem. If you earn more than $670 in a given month, that month counts as a "trial work period." You still get your regular benefit check, but you use up one of your 9 trial work period months. You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems. SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review.

Skilled Worker With Circulation and Respiratory Problems Considers Disability

Hi. Last year I had a stint and have been on medication since. My employer is eliminating my position (a technical, computer related job) in order to force me to retire. I have circulation issues in my legs and breathing issues and bruise extensively . Do I have any chance of qualifying for disability?

Jonathan Ginsberg responds: Here is how I would analyze your situation. Based on what you have written, I would develop two different theories of disabiltiy. Theory one would ask whether you meet a listing. If you look at the adult listings, Listing 4.00 (Cardiovascular System) and Listing 3.00 (Respiratory System) would seem to hold the most promise. If you look at Listing 4.00, there are sublistings for Chronic Venous Insufficiency (4.11) and Peripheral Arterial Disease (4.12). I would discuss with your cardiologist whether or not your condition rises to listing level.

Similarly, you could look at the sublistings for respiratory problems. My concern here is that the respiratory listings look to specific breathing tests and the resulting measurements. My experience has been that breathing issues need to be pretty severe to meet a respiratory listing.

Theory two would be to argue that your functional capacity for work has been so reduced by your multiple medical problems that you would not be able to sustain competitive work as a result of these problems. Generally, when arguing for disability based on functional capacity, you implicitly acknowledge that your condition does not rise to listing level severity, but you contend that the overall impact of your conditions, side effects of medications, associated fatigue and depression – all taken as a whole – leave you unable to work.

In order to win a functional capacity argument, you will need help from a treating physician who would be willing to go on record (by completing a functional capacity form) about the specific limitations arising from your condtion.

Without knowing anything about the severity of your condition or what the medical records say, I would not be in a position to evaluate your case, but assuming that you have medical support and that your job reliability and attendance would be a problem, I think you would have a reasonable agrument for disability.

One final thought – the Americans With Disabilities Act (the ADA) requires larger employers to make "reasonable accomodations" for individuals with disabilities. Here, you imply that your employer is not willing to take these steps. Therefore, it might be worth a call to an employment attorney to evaluate the viability of an ADA claim.

Long Term Disability Insurance Carriers Faulted for Forcing Claimants to Apply for SSDI

Earlier this week, the New York Times published an enlightening article about the practice of Long Term Disability (LTD) carriers requiring LTD beneficiaries to apply for Social Security disability. This practice is commonplace and the reason for it is simple economics. Most employer paid LTD policies provide that (1) any SSDI benefits received will offset the LTD carrier’s policy obligations and (2) the claimant must “repay” the LTD carrier any lump sum received for past due SSDI benefits.

An example will illustrate my point. I have a client “Tom” who has a severe degenerative back condition and depression. This is not a workers compensation situation because there was no specific “injury” at work – instead, Tom’s back problems arose from years of physical labor as well as a prior motorcycle accident. Tom applied for and received LTD benefits in the amount of $1,800 per month. The LTD policy obligates Tom to apply for Social Security disability. If Tom is approved, his SSDI benefit will be $1,500 per month. Under the terms of the policy, the LTD carrier will use SSDI to offset its obligation – instead of paying Tom $1,800, it will only pay him $300. In addition, the LTD carrier will demand that Tom sign over his past due benefit check as that check represents payment for months that the LTD carrier was paying benefits.

As you might imagine, this scenario does not make Tom happy. He has to go through the hassle of applying for SSDI benefits, testifying at a hearing and dealing with the stress of the SSDI process only to see a big check from SSDI ($20,000+) go right out the door. Most LTD carriers will not demand repayment of my attorney’s fees – they will only ask for the portion of the past due benefit check that Tom actually receives.

Several years ago I made some inquiries about the fairness of this policy and the LTD carrier’s position is that its premium structure is based on the expectation that a certain percentage of LTD beneficiaries will qualify for SSDI and therefore reduce the carrier’s exposure. Fair enough explanation although I wonder how clear this offset policy is made to employees who are pitched to sign up for LTD policies by their employers.

By the way, many private LTD policies do not include this offset or SSDI repayment language – but if you are a prospective LTD purchaser you should ask the question.

In any case, the New York Times piece raised the question of whether this mandatory SSDI application policy was gumming up the works for Social Security disability case processing and adding to the already lengthy delays. The Times quoted a Social Security spokesman as saying that approximately 18% of SSDI claimants acknowledged privately that they were unqualified, because they could still work and that iIt is probable that many of these claimants were required to apply” by LTD carriers. The spokesman went on to say that Social Security processes approximately 2.5 million applicants each year – 18% would equal around 450,000 applicants are wasting everyone’s time and causing delays for everyone.

I would suspect – although the Times does not say this – that many of these unwilling applicants do not hire lawyers, meaning that they would be considered “unrepresented claimants” by Social Security. As any Social Security judge would tell you, unrepresented claimants take up more time and resources because their cases often require extra development and resets.

SSA is apparently floating the idea of changing its rules to treat LTD referred claims differently than regular claims. There are also a number of “whistle blower” lawsuits that have been filed against LTD carriers for “dumping” unqualified applicants at Social Security’s doorstep.

It will be interesting to see how this all plays out.

Why Do Physicians Charge to Write Medical Narrative Reports?

Why is it a doctor will say they will help you to get disability because they believe you are disabled but then require extra money just to write an attorney a letter?
–Shannon

Jonathan Ginsberg responds: Shannon, there is nothing inconsistent in a doctor’s desire to help you and that doctor’s need to earn a living and to provide for his family. Like lawyers and other service professionals, doctors earn their livings by selling their expertise and time. Writing letters uses up time and I, personally, have no issue with a physician asking for a reasonable fee when he performs a service for you – especially a service that you and your lawyer will use in a court proceeding.

Why You Should Avoid Changing Lawyers in the Middle of Your Disability Case

Jonathan
March 8, 2008

From time to time, I receive emails or blog comments from disability claimants who are frustrated with the slow pace of the disability adjudication process and who want to change lawyers. They often express frustration at how long it takes to even get to a hearing and they think that their lawyer should be doing more to move the process along.

Except in very limited cases, I think that changing lawyers in mid-stream is almost always a bad idea and here’s why:

First, you must realize that your lawyer has no control at all over the long delays in the [tag-tec]Social Security disability[/tag-tec] decision making process. Social Security backlogs are at record levels throughout the country. Hearing offices are understaffed and judges have very little help. Social Security tells us that over the past 10 years, the number of claims being processed has doubled, while the number of judges has declined by 10%.

In Atlanta, where I practice, I regulaly see cases that have been sitting in the hearing office for two, three, even four years. SSA is sending some of the older files to judges in other States, but the long delays continue.

If there was anything that a lawyer could do to move things along, I would be doing it. Like most Social Security lawyers, I don’t get paid until I win a case – there is no advantage to me or any lawyer to delay the process.

Years ago, we could sometimes get a case moved to the front of the line by claimant "dire need." We could claim dire need based on a pending foreclosure, homelessness, serious illness, etc. We could also sometimes get a case moved to the front of the line by advising our clients to pressure their Senator or U.S. Representative’s office. At this point, those strategies don’t really work any more. Your Congressperson as well as the local Social Security office realize that everyone seeking benefits has a certain degree of hardship and they are very reluctant to put one dire need case in front of another.

My point here is that your attorney cannot control Social Security’s backlog, nor can you expect for him to secure special treatment for you. If another disability lawyer tells you that he has a secret technique to move your case to the front of the line, my guess is that you will be sorely disappointed.

Along these same lines, a second reason to stick with your current lawyer relates to the fee application process. When you hire a replacement lawyer, the "simple" fee agreement process option disappears, leaving you, your prior lawyer and your new lawyer with a much more complicated option.

Social Security has set out two different methods for lawyers to get paid. The first method is called a fee agreement process and the second is called the fee petition process. The fee agreement process is simple – if you and your lawyer enter into a contingency contract based on past due benefits that calls for payment of 25% or less of past due benefits, with a cap of $5,300, Social Security will automatically withhold and pay the lawyer 25% of past due benefits up to $5,300 without any need for the lawyer to file a detalied time and billing statement.

On the other hand, if the fee contract does not provide for a contingency or if there are more than one lawyer claiming a fee, then any lawyer claiming a fee will have to file a detailed fee petition, setting out time records, expenses claimed and other billable time.

Almost every contingency fee contract I have ever seen provides that in the event that the client terminates the attorney, the attorney has the right to ask for fees representing work actually done. Legal services are not free. A "no fee unless you win" contract is a trade off – the client can retain counsel without paying up front fees, and the lawyer takes the risk that the judge will not approve the case in exchange for a percentage of the recovery that may or may not equal to the amount of time expended in the case. If, however, the client terminates the contract prior to the time that the case goes before the judge, the lawyer can and will ask Social Security to approve a fee based on the time actually expended by the lawyer.

So, if you terminate your lawyer in the middle of your case, that lawyer will most likely file a fee petition asking for fees representing time expended. The new lawyer will not be permitted to enter in to a 25% fee agreement, and he, too will have to file a fee petition to get his fees approved.

What is the practical impact of all this? You may end up paying more than 25% of your past due benefits as a fee, since any and all of your lawyers will be claiming a fee based on time expended. Another issue – many busy disability lawyers don’t want to mess with fee petitions. Fee petitions require a lot of time and often the time claimed will end up less than what the attorney would have earned under a 25% contingency. Fee petitions can be filed whether or not a case is approved by the judge – as a practical matter, however, disability claimants have very little money and if the case is not approved there is no way to actually collect. In my practice, for example, I almost never accept cases where there has been another lawyer who will be claiming a fee – I have enough less complicated cases in my file cabinet and I don’t need the hassle.

If your prior lawyer will waive any claim for fees, the new lawyer can use the expedited fee agreement process.

In my experience, many lawyers will be reluctant to take on a client who has fired a prior attorney. Our law school professors and our malpractice carriers advise us to avoid clients who have fired prior counsel because those clients are the ones who are most likely to be unhappy with a lawyer’s work, regardless of the outcome.

Therefore, unless your lawyer is clearly incompetant, ill or dead, I would urge any disability claimant to stay the course with his present counsel.