These Questions Always Get Asked at Hearings

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing. Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

I want my client to understand the hearing procedure so he can focus on what he needs to say. The less uncertainty about the process – the better.

In Atlanta, which is my primary area of practice, we have two live hearing offices and one video hearing location. Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently. While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions. This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing. I know what I will want to ask, and here are the areas of questioning that I cover. In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

state your full legal name and social security number
state your mailing address
how tall and you and how much do you weigh?
how far did you go in school and have you had any education or vocational training beyond high school?

Work background

are you now working?
have you tried to work since your onset date?
describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job? Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability. What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled. Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work. This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date? Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record. For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date. Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →

Diabetes and Social Security Disability Case Study Posted

This afternoon, I tried an SSDI case involving a 53 year old woman claiming disability based on diabetes and associated complications. In reviewing the record it appears to me that my client had been diabetic for several years prior to her diagnosis and has most likely suffered permanent vision and nerve damage. Unfortunately her medical care has been suboptimal and while she has been compliant with treatment the record does not contain enough for me to make an argument based on the listing at 9.08. Instead I went with a functional capacity argument.

You can read the case study on my Georgia Social Security disability web site.

Does It Matter Where I File My Application for Benefits if I Plan on Moving?

Jonathan
November 13, 2009
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I recently received a question from a woman named Carol who wants to know if she should wait to file for benefits because she is planning on moving to a different state. She writes:

I own a condo in central Florida. My parents live in north Florida near the Georgia border. I plan on moving to Macon, Georgia (Macon is about 100 miles south of Atlanta in the middle of the state). Should I file now? Should I file now and use my parent’s address? Should I wait until I move to Macon to file?

Application for Social Security benefits Here are my thoughts: I would advise you to file now and to use your current address as your home address. If you are concerned that your mail may not get forwarded you can use your parent’s (permanent) address. In general it is not a good idea to wait to file. If you wait you may lose the right to claim some of your past due benefits, or in a worst case scenario, your coverage for Title II benefits could run out. If you are not working, and expect to be out indefinitely, I generally advise potential clients to file sooner rather than later.

Now – what about the location where you would file? At the initial and reconsideration level of appeal, your case will be processed by a State Agency adjudicator. Adjudicators follow fairly rigid protocols and I have not seen any documentation to suggest that an adjudicator in one state is more or less likely to approve a claim than an adjudicator in another state. Those statistics may exist but I have never seen then.

The initial and recon appeal will eat up between 6 months and a year, by which point you would presumably be in Macon. When you move you would notify Social Security and your file may be transferred to a State Agency adjudication office nearer to where you live. Then again, it might not be transferred. I think it is certainly possible that filing an address change, thereby triggering Social Security to move your file could add to a delay in the processing of your case, but my experience has been that the State Agency adjudicators are expected to complete their evaluation within a set period of time. I don’t know that having the file moved will significantly add to a delay. This is especially the case now that Social Security disability files are electronic – physical files are no longer involved so transferring a case is an electronic process.

The biggest wildcard when you change venues will involve the hearing offices. Some hearing offices house judges who approve very few cases. Other hearing offices tend to trend more favorably to claimants. On the other hand the tendencies of the specific judge assigned to your case are much more important than the hearing office statistics. You can research statistics about the ratios of approval by specific judges. Local lawyers who practice in a particular hearing office can also be a good source of advice.

Ultimately I don’t know that I would spend a lot of effort “judge shopping.” If you have a good case with compelling medical evidence and support from a treating physician, you stand a good chance at winning, while weak evidence will not convince even a judge who tends to favor claimants. Further, if you ask Social Security to change your hearing office venue at the last minute you will face delay as hearing calendars are often filled months in advance. If you hire one lawyer for location 1, then switch, you may end up paying more than 25% of your past due benefits as lawyer 2 will want to be paid.

At the very least, if you are thinking about hiring a lawyer in central Florida, let him or her know about your possible move – you want to make your case less complicated, rather than the other way around.

Onset Dates, Consultative Exams and Cynical Judges

Jonathan
November 12, 2009
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When you appear before a Social Security judge for a hearing, there are four possible outcomes:

you will be approved
you will be denied
your case will be continued to another date for a supplemental hearing
the judge will issue a “partially favorable” decision

Over the past couple of years I have noticed an increase in the number of partially favorable decisions I am receiving. I think this is because my clients, especially low income clients, do not have access to regular medical care and judges are using consultative exam reports to move the alleged onset dates.

Here is an example of what I mean: a couple of weeks ago, I tried a case before a judge who is generally considered to be very reluctant to approve cases. At the time of the hearing my client was a month shy of her 52nd birthday. She had a 10th grade education and past work as a short order cook. She alleged disability due to uncontrolled diabetes, numbness in her feet and hands, vision issues and pain.

She last worked 3 years previously, when she was 48 years old.

In reviewing this case, I saw it as a “grid rule” case. Grid rule 201.10 provides that a 50 year old claimant with less than a high school education, semi-skilled work but no transferable skills who was limited to sedentary work due to an exertional limitation would qualify for disability. Continue reading →

The WRONG Answers to the Question: “Why Can’t You Work”

Jonathan
October 4, 2009
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As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?

This question concerns itself with your capacity to perform work or work-like activities. Other factors like the job prospects in your town, your transportation issues, etc. are not relevant. As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

Far too often, disability claimants hurt their chances greatly by giving the “wrong” answer to this ultimate question. In a future post I’ll print out some examples of “good” answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers. As a claimant you must take the time to understand how the disability process works and what the judge needs to hear. If you get the answer to this “ultimate” question wrong, you will not be approved.

Here are Stan’s Five “Case Killers,” in no particular order:

Are Claimants Required to Submit Unhelpful Medical Records?

There is no such thing as the “perfect” case. Even the most deserving claimants may end up with a doctor who they don’t like or with whom they do not get along. This is especially true in “pain” cases when narcotic medicines may be prescribed. There are also doctors out there who do not believe in the concept of disability – as far as they are concerned no one is fully disabled and these doctors will not cooperate with a Social Security claimant at all (needless to say, it is helpful if you discover this trait in your treating doctors early enough in your case to find another doctor!).

What about unhelpful medical records? I see this frequently in cases where there was a workers’ compensation case. “Company doctors” often minimize symptoms and generate records indicating that a claimant has the capacity to return to work. Other times I see unhelpful records in cases where my client just did not “click” with his or her physician or psychiatrist.

One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:

I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. Continue reading →

R.I.P. Judge Albert Feldman

I was reading this morning’s paper and I saw in the obituary section that retired Social Security judge Albert Feldman passed away this past Wednesday, July 22, 2009. With your indulgence I would like to take a break from my usual blog posts – that speak about case strategies, changes in the law, etc. to reflect on the influence that this kind, compassionate and extraordinary man had on me, and I suspect many others.

Although my relationship with Judge Feldman lasted for only about 10 years and solely in the context of Social Security hearings, it was not difficult to sense immediately what type of person he was. To claimants he was, without exception, polite and respectful. Although I am sure that there must have been times when he would look at a file and recognize immediately that the claimant before him did not qualify for benefits, he was always willing to listen and give every one that appeared before him his or her day in court.

I remember one case in particular – I had a client who had been diagnosed with HIV, who, at the time of the hearing, was suffering debilitating symptoms of full blown AIDS. Unfortunately, my client’s date last insured for Title II disability had run some five years previously and the medical and other evidence clearly indicated that this gentleman did not meet the requirements of disability at that time. Social Security hearings provide for direct questioning by a judge to the claimant and that day Judge Feldman spent about 20 minutes talking to my client, patiently explaining to him why he did not qualify for Title II disability, and offering suggestions about community resources that might be avialable to him. At one point the claimant needed a recess to go to the bathroom. Judge Feldman could have ended the hearing right then and there as he had enough information to render a decision but instead he waited for the claimant to return to continue the hearing.

I remember thinking then, as I reflect now, how compassionate that gesture was. The judge sensed (correctly) that my client had only months to live and that he deserved the dignity of being heard. My client, emaciated, with skin lesions and a hacking cough, most likely did not get the time of day from most people. But here was a federal administrative law judge, struggling with a busy schedule, who took a few minutes extra out of his day to look my client in the eye – human to human – and express empathy and listen to him. This was the man that was Albert Feldman. Continue reading →

Top Five Bad Answers to Question: WHY CAN’T YOU WORK?