I tried a case today that illustrates both the interrelationship between workers’ compensation and disability, and how bad workers’ compensation advice can mess up an SSDI case.

My client is a 43 year old man with a strong work history and a solid medical case for disability.  He had undergone a lumbar fusion back in the mid-1990’s and in 2001, he reinjured his lumbar spine, resulting in a second fusion at two disc levels, performed in 2003.

Since the injury happened on the job, my client’s employer picked up the claim and he has been receiving weekly workers’ compensation benefits ever since.

He applied for SSDI in 2003 (alleging an onset of August, 2001) and his hearing was held today (August, 2006).

What’s wrong with this picture?

First and foremost, it appears to me that his workers’ comp claim has grown stale.  Back in late 2003, his treating doctor concluded that he had reached MMI (maximum medical improvement).  The insurance carrier sent him to its preferred facility for a functional capacity rating and concluded that he could not return to his past work, but could return to work at something less than full "light" work (light work includes jobs that require standing and walking up to 6 out of 8 hours in a day, frequent lifting of 10 lbs and occasional lifting of 15 lbs.).

My client’s authorized treating doctor agreed with the FCE result and issued a disability rating in excess of 30%.

Normally, at this juncture, an aggressive workers’ comp claimant’s lawyer will inquire of the treating doctor about future medical costs as well as for an opinion about the disability rating, then try to settle the case.  My wife, Jodi Ginsberg, who represents claimants in Georgia workers’ compensation cases, would no doubt have pursued a much more aggressive approach in getting this case settled.

In fairness to my client’s workers’ comp lawyer, I do not know if my client has been unreasonable in his settlement expectations or perhaps uncooperative in following his lawyer’s advice about on-going medical care.

Here, however, it appears that no one looked into the future medical cost issue and only a half-hearted settlement demand was made.  The insurer made a lowball offer, which the claimant rejected, and he continued to receive workers’ comp. benefits.

Two years have passed since the claimant received his disability rating and no effort has been made to get him to long term pain management or to use the leverage of escalating medical costs to convince the workers’ comp carrier to increase its settlement offer.  If anything, the value of the case has decreased because my client has only seen his doctor once a year in 2005 and 2006 – which essentially tells the workers’ comp carrier that there will not be any substantial future medical costs.

On the SSDI side, the last significant medical information we have is a conservative workers’ comp functional capacity evaluation that suggests that the claimant can do some type of work.  There has been no pain management involvement and my client has done nothing proactive to either seek additional surgery, physical therapy, epidurals or medical pain management.

In chronic pain cases, judges expect SSDI claimants to make an on-going effort to get better – either through surgery, medication, physical therapy, epidurals or even psychological therapy.   We have none of that here, and I am concerned that the judge will conclude that there is not enough medical evidence to support my client’s claim for disability benefits.

[tags] SSDI and workers’ compensation, conservative medical care, pain management, epidurals, FCE [/tags]

At my hearing, the judge announced that he was going to find me disabled.  It has been several weeks since the hearing – when can I expect to receive the decision and when do I get my money?
-Donald

Jonathan Ginsberg replies: Donald, as you might imagine, I get this question a lot.  Social Security judges usually do not announce their decisions after a hearing, but some judges will tell a claimant that a favorable decision will be forthcoming.

Unfortunately, there can be a long wait between the verbal announcement and your receipt of the written decision.

After the judge makes his decision, he will give his notes to a writer to prepare the written decision.  In hearing offices with large backlogs, the writers will be backlogged.  In a best case situation, the writer will have the decision back to the judge for signature in about 3 weeks.  If your hearing office is severely backlogged, the written decision may be delayed by many months.

Please believe me when I tell you that your attorney can do nothing to speed up the process of the issuing of your written favorable decision.  I currently have several cases that will be favorable decisions that have been sitting in the writer’s office for over 6 months.  My client calls weekly asking for a status update and all I can tell her is that we have to wait – there is nothing I can do to speed up the written decision.

Once the decision is issued, your case will be processed by a division of SSA called the MODS.  The MODS perform the calculations to determine exactly how much you will receive.  This verification process can take about two to three weeks – then your checks will be issued.

[tags] hearing decision delays, social security judge, favorable decision, MODS, payment of Social Security claims [/tags]

In 1998 I started experiencing serious symptoms of depression, crying spells, etc. I am a veteran 7.5 yrs, so I went to the VA clinic in Decatur Ga. They diagnosed me with Major Depressive Disorder. I have been under a Dr’s care since then and have since then been diagnosed with PTSD, I have other health issues too. I got a letter from a VA Dr stating I was unable to work in 1999.

I filed for SSI in 2000. I have been denied 4 times and finally the last time, I appealed in 2004 & hired a major legal company.  Supposedl y I am waiting for a hearing, but I am not sure if I should continue to let this major legal firm work for me or hire someone else. If I hire som eone else, will I have to start over?

Jonathan Ginsberg responds: Paulette, the short answer to your question is that if you changed attorneys you would not have to start the disability process over again.  Your new lawyer would simply take over and represent you in court.

As a rule, I strongly recommend that you avoid changing lawyers.  Firstly, your current lawyer has no control over the long delay in your hearing being scheduled.  I practice in the Atlanta area myself and scheduling delays of more than two years are not uncommon.

Secondly, if you change attorneys you may end up paying more than 25% of past due benefits.  Whether you win or lose both lawyers will have the right to petition the Social Security judge for the right to charge a fee.  Social Security will withhold only 25% of past due benefits, but if one of the lawyers wants to pursue collection, you may end up paying a total that is more than 25%.

In that regard, I rarely accept cases where there has been another lawyer.  If there has been another lawyer, Social Security will require me to file a fee petition (which is time-consuming and a headache), instead of simply filing a fee agreement.  Also, since I know most of the disability lawyers in town, I would reluctant to take someone else’s case unless that other lawyer waived his fee and had no objection.

So, while you can change lawyers, I don’ t necessarily think that you should just because you are unhappy with delays that are out of your lawyers’ hands.

[tags] social security delays, georgia social security disability lawyer, changing lawyers disability case [/tags]

Although narcolepsy is not very common, I have found that Social Security judges will be receptive to a claim for disability arising from narcolepsy if there is a longstanding medical treatment record and support from a treating condition.  As you may know, narcolepsy is a neurological condition that is characterized by excessive daytime sleepiness.

Another common manifestation of narcolepsy is something called cataplexy, which is a sudden loss of voluntary muscle control caused by emotional extremes, such as laughter, fright, shock or anger.  In mild cases, a cataplexy sufferer will experience a partial loss of muscle control or weakness in the arms or legs.  In more serious cases, a person will appear to be unconscious.

Because there is no "listing" for narcolepsy, I rely on a "functional capacity" argument to prove my client’s case.

For Social Security disability purposes, I use a three part strategy in narcolepsy cases.  First, I would ask my client’s treating physician to fill out a functional capacity evaluation form.  Over the years I have developed a number of residual functional capacity forms that are specific to various diseases and conditions and my narcolepsy functional capacity form includes check boxes for the various symtoms of the disease and checkboxes for the reliability problems that narcolepsy patients have.  Examples of reliabiltiy problems include unscheduled breaks from work, limitations in performing around hazadous machinery, and problems performing duties that require contact with the public.

Second, I would contact former co-workers and supervisors who had worked with my client to ask for statements.  Ideally, I would have one or more of these witnesses appear at the hearing, but if that was not possible, I would ask for written statements.  Usually, I would draft the statement after speaking to the witness then ask the former co-worker to review and sign before a notary.

Third, I would defintely want a witness to appear to testify at trial.  Obviously, I do not want my client driving to the hearing since driving is inconsistent with narcolepsy.  I also think that narcolepsy results in symptoms of which the claimant himself might not be fully aware.  A spouse, parent or sibling could describe how narcolepsy creates daily living problems.

I also think that most judges would expect that a narcolepsy patient would have a long treatment record showing on-going efforts to get relief.  In other words, the judge would expect that the narcolepsy is not responding to treatment plus it needs to generate significant work limitations.

Because judges do not often see narcolepsy cases, I think that disability claimants and their lawyers will be expected to present a strong case that will involve some level of educating the judge.

[tags] narcolepsy and disability, narcolepsy and social security disability, sleep apnea, cataplexy, non-restorative sleep and disability [/tags]

As a general rule, I think it is possible to identify most winning disability cases at case intake and in my practice, I am usually fairly accurate in choosing strong cases and thanks to excellent work by my paralegal staff, we are usually successful in our representation.

I do sometimes accept cases that are somewhat more marginal with the idea that I might be able to argue for a closed period or because I expect my client’s medical condition to deteriorate prior to the hearing date.  In addition, as I have commented before on this blog, the judge assigned to the case can make a huge difference in the result.  I have won many cases for claimants that very likely would have gone the other way if a different judge had been assigned.  Although SSA tends to minimize this issue, the fact is that the approval rate by judges within the same hearing office can vary greatly.  Although I think that most judges try to be fair there are one or two who appear to believe that they have a personal mission to balance the federal budget by denying claims, no matter how serious the claimant’s impairment.

Recently, I took a few minutes to analyze some of the unfavorable decisions that I have received over the years.  I was looking for patterns so that I could update my case selection criteria and so I can better prepare my clients for hearings.  Here is what I found:

1) Social Security judges do not like or believe claimants with current alcohol or drug abuse problems.  Social Security rules provide that when alcohol or drug abuse is a "material contributing factor" to disability, then that disability is not compensible by Social Security.   To put this another way, the judge has to decide whether the claimant would still be disabled if he discontinued the substance abuse.  That type of a determination is very difficult to do and when faced with that choice, most judges will decide against the claimant.

Judges tend to be somewhat more sympathetic in the case of a claimant who was a drug or alcohol abuser but who has since become sober.  In those situations, it is sometimes possible to amend the "onset date" of the disability to a date when the claimant was clearly sober.

Unfortunately, many substance abusers either lie about their sobriety or they greatly exaggerate their efforts to wean themselves from drugs or alcohol.  Usually, lab reports from medical records or observations from the doctor ("Mr. X smelled strongly of alcohol") will create an inconsistency. 

The best course of action, therefore, would be to admit if there has been a problem, and to offer a truthful date as to when the problem ended.

2. A second problem area in unfavorable decisions relates to part time work.  I have previously written that Social Security sees disability claims in black and white – with no gray area.  This is especially trun in cases where a claimant is trying to work.   If you are doing anything part time during the time you claim to be disabled, it is likely that a judge will conclude that you could work longer hours at a less demanding job.

For example, I had a client who had worked as a cable installer for many years, until he finally had to stop because of severe degenerative disc disease in his hips.  Cable installation is a very physically demanding job, requiring a lot of climbing, crawling, lifting and reaching.  At the hearing, the claimant testified that all he knew how to do was to install cable and that because he needed the money he was still taking one or two jobs a month lasting two or three days each, and that he was paid in cash.  He testified that he had earned about $10,000 over the past year.

The judge accepted that he could not return to full time cable installation, but was troubled by the $10,000 part time work.  The medical record clearly supported the claimant’s allegation that he could not perform cable installation full time.  However, the doctor, like the judge, saw the part time work as evidence that the claimant could do some level of work.   The judge followed that line of reasoning and concluded that the claimant could perform a range of jobs less demanding than the cable installation.

3. Lies and misrepresentations constitute another problem area for claimants.   Before meeting with the judge I always advise my clients to tell the truth and to go in with the attitude that they would work if they could work.  Unfortunately some claimants ignore my advice and proceed to testify that every part of their body hurts and that there is no way they could do anything. 

Learn from this that you should tell the truth, and do not try to change your testimony to what you think the judge wants to hear.  All day long, Social Security judges hear from people claimant to be disabled and they can usually spot the phonies as well as the legitimate claimants.

[tags] unfavorable social security decision, substance abuse, material contributing factor, alcohol and social security disability, social security disability attorney [/tags]

Yesterday, I appeared at a disability hearing with a client who had gone back to work for a year during the four year wait for her hearing.  Now she is again out of work.  The complications are increased because her insurability for Title II disability ran out in December, 2004.

She applied in March, 2003, alleging an onset date in March, 2003 based on a badly broken foot and diabetes complications.  She was out of work until November, 2004 when she went back to work “to feed her kids.”  She worked on a mostly regular basis through November, 2005, when she broke her other foot.  She has been out of work ever since.

Here are the issues:

1) if the judge decides that she was “disabled” for Social Security purposes during both periods (March, 2003 thru November, 2004 and November, 2005 ongoing), how does he write a decision and what does he do about the year that she did work?

Does he approve the claimant for a closed period of Title II disability from 3/03-11/04 and then issue a separate ruling approving SSI from 11/05 ongoing?
2) is it fair to hold the claimant’s 11/04-11/05 year of work against her?  Fear of living in a shelter with your kids can motivate almost anyone to suffer thru a lot of agony.

If any of my colleagues who practice Social Security law have any thoughts, please share your input.

[tags] working while applying for Social Security disability, SSDI, trial work, unsuccessful work attempt [/tags]