Hi, I am 51 with 3 teens under age 18 at home. In Sept,2002 I was rear ended and had to have 2 cervical operations. I have been in excruitating pain in my neck and upper back at every movement, every bump I go over and every neck movement.

I have numbness in both feet and left hand. When I walk, my left arm and left cheek on my face goes numb.I am going before the law judge in a week and when you look at me, I physically look great. When I sit still and look foward, I am in no pain. I am not sure how to help the judge understand the severity of my pain because when you look at me, I look fine.

Even lifting a 5 lb bag of sugar hurts. I am a nurse and have been since 1974. I have not worked all that time but alot of it. I can no longer be the nurse I always wanted and was not ready to end my career now. How will the judge ever see my side when so many physically visable patients are asking for help.
–Di

Jonathan responds: Di, thanks for your very important question. This issue comes up a lot because many people have the perception that a person who meets the requirements for SSDI disability must somehow “look” disabled.

In my view, your case is won or lost with the medical records and the opinion statements of treating doctors. Social Security regulations specifically bar judges from engaging in “sit and squirm jurisprudence,” and if a judge was sloppy enough to base his decision on his observation that a claimant “did not look disabled” that decision could be reversed on appeal.

As I have stated on many occasions, the secret to winning cases at hearings is to have documentation from your treating physician or physicians that translates your medical problems into specific work limitations. In almost every case, I modify and submit to the doctor a functional capacity evaluation form. This form asks the doctor for his opinion about the claimant’s capacity in performing various physical tasks and about the impact of pain.Notice that I do not ask the doctor if the claimant is “disabled” as “disability” is a legal concept that is decided by the judge. Instead, my goal is to identify as many specific work activity limitations as I can so that when the judge poses a hypothetical question to the vocational expert, there are so many limitations in the hypo that the vocational witness’ response will be “no jobs.”

Realize as well that disability is not just about your inability to return to your past job as a nurse. Instead, you will need to prove that you cannot perform any job, even a simple, unskilled, sit-stand job. Examples that I frequently hear from vocational witnesses include “surveillance system monitor,” “parking lot attendant,” “ticket taker at a movie theatre,” “hand packer,” and “textile inspector.”

In my experience the type of limitations that win cases arise from reliability issues – i.e., if your treating doctor says that you would likely miss a lot of time from work or need to take unscheduled breaks, most vocational witnesses will conclude that there is no competitive work you can do.

Pain is considered a “non-exertional” impairment in that it exists independent of any activity you might perform. In vocational terms chronic and severe pain creates job issues in that you cannot concentrate, maintain a sufficient pace of work, and you would likely miss too many hours or days.

Every lawyer has his/her favorite arguments in this regard and you should speak to your lawyer prior to the hearing to make sure that the two of you are on the same page.
Jonathan

Hi my name is Brenda and I have diabetes, diabetic neuropathy, asthma, and I am depressed. I take medicine for all of my problems. What i wanted to ask is how does the SSI people know who is disabled or not just by looking at them? I am only 26 years old and I have 100% neuropathy in both of my legs and my doctor says that i have a pinched nerve in my neck that i will have to have surgery on to fix it. All of my problems are seen from the human eye, but I am in severe pain 24/7.
Thanks Brenda

Jonathan responds: Thanks for your email. Here is my take on your situation. First, because of your age and healthy appearance, you are going to need the strong support of a treating doctor. You will need your doctor to identify specific work limitations arising from your medical problems. Brittle diabetics (insulin dependent diabetics who cannot control their sugar despite the insulin) are at risk for problems like neuropathy, vision issues and other complications. I would want a clear statement from your treating doctor that your condition is irreversible and the prognosis is not good.

You did not say if you were working, but I assume that you are not.
–Jonathan

Mr.Ginsberg,my spouse is 36 yrs.old and was recently diagnosed with osteoporosis,yes i know awfully young,but anyway,she has been a stay at home mom for the past 15 yrs.She also has a deteriating disc in her neck,and also arthritis.

I keep running into the same problem of her not working the past 15 yrs.It’s like she is being penalized for staying home and raising our 2 children.What I don’t understand is she gets her statement each year about her social security that she has put in and what she would receive.

My question is,”isn’t there a way of receiving portions of that money somehow with her combined conditions.” She has tried to do a few different jobs in the past year and has been unable to.
–Jeff

Jonathan responds: Jeff, you raise a very legitimate question and one that I get a lot. Unfortunately I cannot give you the answer you want to hear. Social Security disability looks at the ten year period prior to the onset of disability (they look at a shorter period for younger workers). If you do not have enough credits within that 10 year period, you are not “insured” for Title II disability.

She would basically need to earn around $4,000 a year for the next five years to become eligible. I have posted an article about the disability earnings requirement on this web site. This means that while your wife “worked” in raising your kids, for Social Security purposes she has no earnings during the 10 year period of time and thus does not qualify for Title II benefits. The only possible benefit available to her might be SSI, but if you work, your earnings would likely offset her eligibility. Social Security retirement, by the way, looks at a person’s lifetime earnings, not just the past 10 years.

Unfortunately, therefore, it does not appear to me that she would be eligible at this point. If she was able to go back to some type of work for five years she could regain eligibility. I have heard of a situation where a husband “paid” his wife wages for raising the kids and withheld Social Security taxes. I have never personally presented a case like that but I suppose it could work.
–Jonathan

I am 59 years old and I retired in Aug 2003 and now I find that I have a lot of medical problems that I think would not allow me to hold down a job . My question is : Is there a time limit to apply for Social Security Disability benefits? –Darlene

Jonathan Ginsberg responds: Excellent question, Darlene. Although legally and theoretically, there is no time limit, for practical purposes, the answer is “yes.” When you stop working, you stop paying Social Security taxes through your payroll.  You are no longer earning Social Security earnings credits.

For someone your age, in order to be insured, you will need 20 credits posted within the 10 year period prior to your disability onset. If your inability to work began in March, 2006, the ten year period would run March, 1996-March, 2006. Since Social Security disability looks at the last ten years, you will not have enough credits to qualify at some point in 2008.

ou can read more about credits and how they work on the special page I have posted about credits on this blog (look to your right under “pages.”) In theory one can apply for benefits twenty years after onset and still be qualified if the claimant can prove that the disability began twenty years ago.

I can tell you from experience that it is far easier to prove disability with current medical records than to try to go back in time five, ten or more years. So, bottom line – apply sooner rather than later. Also note that the process can take up to three years so there is no time like the present to start.

Jonathan, I am writting in regards to my husbands claim for disability. He is 47 and has been disabled for 5 years, we have been to 3 or 4 hearings with his attorney 3 times he was denied, but the last one we went to was in
September 2005 and we have not heard a word about whether he has been denied or approved.
Can you tell me if there is a website that we can check and see what his statis is on his claim? My husband has not worked in over 5 years, and we have been surviving on my disability check ssa &ssi and it is getting really hard to live on such a small amount each month. Anything you can tell me would be greatly appreciated.
Thank you.  Neva.
Jonathan Ginsberg responds: Neva, I am not aware of any website where you can check on the status of your husband’s claim. Unfortunately, Social Security judges are often shortstaffed and it is not uncommon for a hearing decision to be delayed by several months. Usually, calling the hearing office does not help. At some point (you have to decide when), you may want to seek help from your elected representatives (Senator or Congressperson) to help expedite the processing of your case.

My husband was thrown off his horse two months ago. Since then he has had a plate and 4 screws put in his back and still has one more surgery to complete.  This will be a total of 4 surgeries.  My husband is 37 years old and states that he doesn’t know if he will ever be able to work again.  Where do we go from here?

— Shannon

Jonathan Ginsberg responds:  Shannon, the first step here is to file an application for benefits.  You do this by calling 800-772-1213 to start the process.  Because it has not been a year since the accident, do not be surprised if your claim is denied at the initial application. If you are denied you (or your attorney) woul dneed to file an appeal within 60 days.

Here are the questions I see:  first, is it likely that your husband will be unable to perform any type of job for at least 12 months.  If he is totally out for at least a year he can get a “closed period.”  Although it may be hard to imagine now, he may get better (and hopefully he does) within the next year.  Although a closed peirod does not help you pay your bills now, it would provide a small lump sum for you.

Second, If arthritis sets in and your husband is left in a chronic pain condition, then he would be eligible for on-going disability benefits.

Ultimately, your husband’s doctors would have to support your claim by identifying specific work activity limitations arising from his diagnosis.  I use a functional capacity form questionnaire to help the doctor translate  the diagnosis into work activity terms.

Unfortunately the Social Security disability process can take two, even three years.  I wish I had a good answer for a question I hear frequently – “how am I supposed to survive while I wait.”  All I can say is that you and your family needs to be prepared for a difficult few years while your husband’s claim winds through the system.

–Jonathan

I recently had a fall not a workers comp matter, fell on my own time. Injured my low back, left hip and left shoulder. Have been off work for four weeks straight. Highly unlikely that I will be back to work as a security guard. I have no insurance and therfore, no doctor will take me. How can I explain to the Social Security people that I am unable to do standing, sitting, twisting, bending, picking up, unloading, etc. Suggestion on how to win my case.

–Colleen

Jonathan Ginsberg responds: Colleen, you have correctly identified the issue in your Social Security case – there are physical movements that you can no longer do and these limitations affect your ability to perform work.

Recognize that if you are 50 or younger, the issue is whether you can do any work. Assume that you could not return to work as a security guard. Assume also that you cannot do any job that requires more than minimal standing. Could you do a simple sit down type of job? Is there any work you can do at all. It does not matter that you can’t find one of these jobs and it does not matter that you could not earn enough from one of these jobs to pay your bills. The only issue – if you were magically placed in a worksite, could you perform the job?

If you are over 50, other rules called the “grid” rules may apply and make your burden of proof easier.

The way I would approach a case like yours – ask your doctor to identify specific work activity limitations arising from your physical limitations. and ask the doctor to describe how your pain level interferes with concentration and attention. You will need support from your doctor to “translate” medical findings into specific work limitations. I would try to get the doctor to fill out a “functional capacity” checklist.

You may also want to take a look at my Disability Answer Guide, where I provide sample responses to Social Security’s forms.

–Jonathan

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