At the end of a hearing can the judge tell you he wants to send you to a doctor because of a medication you are now taking even though it is not the reason you have filed for disability and not give you a decision at the end of the hearing? And than make another hearing date 6 months later?
–Sheryl

Jonathan Ginsberg responds: Yes, the judge can send you out for a post-hearing consultative examination for the purpose of understanding more about your condition. Although you did not specify what the medication is, it is possible that the judge felt that the medical record in your case did not explain why you are taking that medication.

For example, if the medication is for a mental health condition, but your medical record contains no mental health treatment, the judge may feel that he needs additional medical support in order to grant your case. Similarly, if the medication is used to treat alcohol or drug abuse, the judge will want to know more about that as well. Your attorney should be able to explain to you why your hearing is being continued to another date.

Most Social Security judges do not announce their decisions at the end of the hearing. Social Security courtrooms are not secured by baliffs or other security personnel and judges typically issue their decisions in writing. Good luck.

I have been granted a fully favorable decision in a closed period disability case. I was injured, disabled and out of work for 35 months. My questions is, once awarded, how long until payment, and also, do my children get disability for the time I was out?
–Jill

Jonathan Ginsberg responds: Congratulations on your favorable decision. Usually it takes 4 to 6 weeks for Social Security to process the decision and to issue you a check. If you have eligible dependents, they will get paid as well.

For those who do not know, a “closed period” means that you have been found disabled for a period of time, but not on-going. The closed period ends when a claimant either returns to work or when her medical condition improves to the point where she no longer meets the definition of disability.

[tags] closed period benefits, dependents benefits, favorable decision, Social Security disability [/tags]

My mother has a disablity claim in Georgia. She was denied last year 2005 and found a lawyer to help her with her case. I was just told that now they only go back 7 months from the time you start to receive your benefits. From my understanding you get your benefits back from when you originally made your claim. Could you explain this to me.Thanking you in advance Gabrielle J

Jonathan Ginsberg responds:  Gabrielle, what you are asking about is the “five month waiting period” in Title II Disability claims.  Here is how it works:

First, you need to understand several terms that I am going to use:

Date of Application – the date you actually file your application

Alleged Onset Date – the date you contend that you became disabled

Second, understand that in Title II disability cases, you can recover past due benefits for up to 12 months prior to your Date of Application

Example 1: Joe files an application for Title II benefits on March 15, 2006, alleging an Onset date of August 17, 2003.  If the judge finds him disabled as of August 17, 2003, he would be eligible for past due benefits as of March 15, 2005.

Now, let’s see how the five month waiting period works.

Example 2: Tom files an application for Title II benefits on March 15, 2006, alleging an Onset date of September 3, 2005.  If the judge finds him disabled as of September 3, 2005, he would be eligible for benefits on March 1, 2006.  Why?  Because the the five month waiting period says that Joe does not get paid for the first five full months of his disability.  Here, September, 2005 is a partial month and does not count.  The first five full months are October, November, December, January and February.

Let’s return for a second to Example 1.  What happened to the five month waiting period?  In Example 1, the five month waiting period began on August 17, 2003 and it covered September, October, November, December 2003 and January, 2004.  Remember, however that in Example 1, Joe can only get paid for the year prior to his application.  His five month waiting period ran in total prior to his eligibility for actual payment.

I try to keep the five month waiting period in mind when I advise my clients regarding their Alleged Onset dates.  Sometimes, a judge will want to amend the onset date forward because the evidence may not support the Alleged Onset Date set out in my client’s application.  I can generally live with amending an onset date to a date 18 months prior to the date of application. 18 months preserves my client’s 12 months of past due benefits and it accounts for five full months and one partial month of the “five month waiting period.”

By the way, SSA has a five month waiting period because Congress felt that many/most workers had either short term disability or accumulated vacation to cover their expenses during the first five months.  The five month waiting period is basically a cost saving measure to save SSA money.

SSI claims are different in that there is no five month waiting period, but there is also no 12 month lookback.  Your eligibility for SSI benefits starts as of the date of your application.

Finally, it is possible to “re-open” an old application to push back your Application Date – reopening will be the subject of another post in this blog.

[tags] five month waiting period, alleged onset date, Title II, Social Security disability, filing an application for Social Security disability, SSDI [/tags]

I would like to ask you a couple of questions regarding this post about “A good functional capacity form can overcome bad testimony”. I have various back and leg problems for which I am being treated with Meds and lumbar epidural injections, by an orthopedic specialist. I also have carpal tunnel in both wrists and this specialist has recommended surgery. But I am scared of surgery (having never had one before).

My question is: Will my turning down surgery for CTS help or hurt my case? I also have a good RFC form completed by my primary Dr, who is in the same building as all of my other Drs, and has access to all of my records. Also, I am very overweight and was wondering, if I had a gastric bypass done and lost weight before my ALJ hearing, would that help or hurt my case? Thank you in advance, Faye

Jonathan Ginsberg responds: Generally, a Social Security judge will not “punish” you for refusing to undergo surgery. Every surgery involves complications and carpal tunnel surgery, in particular, is not always 100% successful. However, there are some judges who take the position that a claimant needs to take advantage of every possible cure. Once I had a judge go into graphic detail about his wife’s hemorrhoid surgery in his question to my client about why my client had refused the surgery.

I would say that you should try to get a sense of how the judge who will hear your case thinks about a claimant’s refusal to undergo surgery. At the very least, you should have reasons for your refusal, i.e. concerns about the likelihood of success, concerns about anesthesia, lack of access to post surgical physical therapy.

With regard to the gastric bypass surgery, I think you need to pursue whatever action is in your best interest health wise. Note that if you undergo gastric bypass surgery, you damage your argument that you are afraid of surgery in general. Obesity used to be a listing level impairment but it no longer is. However, obesity can be a factor that Social Security can consider as a reason why your back and leg problems are worse. And, since gastric bypass surgery is most likely more dangerous than carpal tunnel surgery I don’t think that any judge would fault you for refusing to go that route.

I think that the big picture question you raise is – to what extent do Social Security judges expect a claimant to pursue remedial treatment. I think that there is an implied obligation to take reasonable action but in my view, surgery, with its inherent risks, is over the line. However, if you refuse surgery, you need to have well thought out reasons why you are refusing the surgery and you have to have a record showing your pursuit of non-surgical alternatives.

–Jonathan

[tags] carpal tunnel surgery, obesity, gastric bypass surgery, Social Security disability, non-surgical alternatives [/tags]

A January 21, 2006 email from Linda McMahon, SSA’s Deputy Commissioner for Operations, suggests that Medicare Part D issues are draining personnel time away from disability processing departments. The 800 number call centers are swamped as are Social Security district offices.  With the SSA personnel focused on Medicare, delays in the SSDI processing continue to increase.

In addition, according to Representative Henry Waxman of California, Congress actually cut $200 million from SSA’s budget, further hampering SSA’s capacity to offer timely service.

These cuts and distractions all come at a time when SSA is rolling out another “new” disability determination process and is attempting to convert its paper filing system to electronic case files.

While I applaud Commissioner Barnhart for her efforts to cut the delays and improve the disability ajudication process, I hope that she has not bitten off more than she can chew.

[tags] Social Security delays, disability determination, Jo Anne Barnhart, FY 2006, Rep. Henry Waxman, Medicare Part D, Social Security 800 number [/tags]

Within the past two weeks, I tried two fibromyalgia cases. Both cases will be approved, but for very different reasons. With one exception, I used very different strategies for both.

I have already written about the first case, which was a video hearing before an out of State judge. My client in that case was a poor witness, given to constant complaining. She claimed to be disabled by fibromyalgia, although she also had documented carpal tunnel syndrome and some documentation for irritable bowel syndrome.

In this case, I focused first on the carpal tunnel, which was the condition most clearly supported by objective medical evidence. My client was prepared to testify extensively about her fibromyalgia pain – in her mind, fibromyalgia was her primary impairment. My view, however, was that her complaints of generalized pain were not entirely credible based on her very spotty work record and because of concerns in the medical notes about her sincerity.

My second case involved a 45 year old woman who more clearly met the profile of what I often see in fibromyalgia cases. A high school graduate only, this lady always seemed to end up in charge of whatever company or organization where she was employed. For example, one of her jobs was as a salesperson for a medical device company. She ended up joining doctors in the operating room to oversee implantation of the devices and she was given the assignment of creating a new division for her company. At the time she stopped working, she was making well over $100,000. Needless to say, an individual who is earning six figures would not stop working to sit at home and wait for a $2,000 Social Security check.
In this case, I had a very credible claimant with a stellar work history. As one of the expert witnesses testified, she was an overachiever whose fibromyalgia might have been triggered by her unyielding work ethic. I had her testify about her pain and about her difficulties in adjusting to a drastic reduction in income and her feelings of worthlessness. In this claimant’s case, I wanted the judge to get a sense of my client and to hear her complaints.

In both of these fibromyalgia cases, I made sure to have solid supporting functional capacity forms in the record. In the second case, I asked my client’s primary care doctor, Philip Huff, M .D. for a functional capacity form just a few days before the hearing and because he believed in my client, he took time out from his day to get this form completed quickly.

This is another example of why disability claimants need to have a sense as to whether their treating doctor will help in an SSDI case and especially in a fibromyalgia disability case. Some doctors do not want to get involved in assessing work or activity functioning and some are not convinced that fibromyalgia even exists. My client was fortunate in this case to treat with a physician who was willing and able to help.

[tags] fibromyalgia, fibromyalgia and social security disability, fibromyalgia and SSDI, Dr. Philip Huff, OHA, Social Security disability hearing [/tags]

A news report from the Cleveland Plain Dealer in its June 17, 2006 edition suggests that delays in Social Security claim adjudication will continue to worsen. According to the article, Congress is proposing a cut of $200 million from SSA’s budget. Social Security Administration Commissioner Jo Anne Barnhart testified to a Congressional Committee that SSA needs to hire 100 judges to staff hearings offices throughout the country, but it will be unable to do so. Also possible are week long unpaid furloughs for SSA employees.

Cleveland has the distinction of having the nation’s fourth worst hearing office backlog of over 11,000 cases – with claimants facing close to a 20 month wait for a hearing after the request for hearing is filed.

Cleveland’s problem with delays is echoed in Atlanta (where I practice) and in hearing offices throughout the country. I am seeing more and more claimants losing their homes to foreclosure and their cars to repossession. My colleague Bernie Shapiro, who practices in Massacussetts and New York, reports that SSA’s transition to electronic hearing processing has caused delays in the processing of payments to both attorney and to claimants. I am also noticing that my fee payments (when they do arrive) are usually for the maximum $5,300 – meaning that the size of past due benefit payments to claimants is rising because we are all waiting longer for cases to be heard.

It looks like the delays will be getting worse before they get better.

[tags] Social Security delays, OHA, past due benefits, Cleveland office of hearings and appeals, hearing office backlog [/tags]

I am in need of an agressive ssi lawyer. I filed for ssi in 1995 finally after several appeals a partially favorable decision for onset date of 8/8/2003. I filed a review in district court but ssa has lost the cassette tape of last hearing so the dc remanded back to ssa to develop the record. I have my complete case and I am tired of SSA losing my case file. My protective filing date is October 27, 1995. HELP!!!! I can not find a SSI lawyer in California who cares.
–Wendy

Jonathan Ginsberg responds: Wendy’s case illustrates a number of points about problems in the Social Security adjudication process. First of all, this case is old – her protective filing date is in 1995. Even worse, SSA has lost her file. This means that her lawyer is going to have the difficult task of getting copies of records. In any ten year period of time, doctors retire and close their practices, hospitals get bought out and renamed, records are lost. Just trying to put the file back together will be a daunting task.

My advice for Wendy would be to try to find a lawyer who specializes in appellate work and who is used to taking non-mainstream cases.

It is also possible that any judge who gets this case might be willing to give Wendy some benefit of the doubt because of the long an tortuous road this case has taken – in other words, it would be difficult to turn her down after twelve years of fighting.

[tags] social security lost file, district court remand, develop the record [/tags]

Recently, I tried a SSDI case where my client was, in my opinion, a very poor witness. Every question I asked generated complaints of unbearable pain. This claimant was clearly “invested” in her disability and had no intention or desire to ever try to work again. Several of her (many) treating doctors had expressed reservations about exactly how serious her condition really was. Anyone reading through the record in this case could not help but have concerns that this claimant was exaggerating.

Still, I was able to win this case. I had three things in my favor. First, there was one medical condition (carpel tunnel in the wrists) that was clearly documented and that two respected doctors had identified as causing some work impediment. I started my questioning with this impairment even though it alone was not sufficient to win. My thought was that dealing with this supportable argument first, I would help build some credibility for my client. I followed the questions about carpel tunnel with a few questions that touched on her other body systems. I frequently cut her off when she started to ramble about how much pain she was in.
Second, the judge in this case was appearing by video from another State. Normally, I do not like video hearings because video hearings lack the “one on one” personal interaction that generally helps claimants. Here, it helped de-emphasize my client’s poor presentation.

Third, and most important, I had a good functional capacity form from a treating physician – her general practioner. Despite whatever misgivings the judge might have had, when it came time for him to pose a question to the vocational witness, he used the work activity limitations set out on my form. Thus, the favorable decision.

As I frequently point out, the main issue in any Social Security case has to do with work capacity. Even if the claimant is a poor witness and even if the record is not entirely supportive, a strong functional capacity opinion from a treating doctor will frequently carry the case.

–Jonathan

[tags] poor witness, SSDI claim, carpel tunnel syndrome, video hearing, functional capacity form, residual functional capacity, fibromyalgia [/tags]