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 →

Video Hearings vs. Traditional Disability Hearings: Why Video Hearings Might Be Your Best Bet

Jonathan
April 12, 2010
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In previous posts, I have discussed at length what actually happens at a Social Security Disability hearing. However, I have failed to discuss the topic of video hearings (i.e. teleconference hearings via satellite), which are occurring more and more frequently these days as part of the SSA’s overall plan to reduce the Social Security Disability backlog. While most of you will experience a more traditional hearing in which you are actually in the room with the Judge and/or expert witnesses, some of you will undoubtedly experience the hearing in this alternative video conferencing type format, so it’s a good idea to know what it’s all about.

The ins and outs of video hearings

In all honesty, there exists only one significant difference between a typical disability hearing and one that is conducted via video, and that is the presence of an actual Administrative Law Judge (or ALJ). Instead of being physically present in the room where the claimant and his/her attorney are, the Judge may be hundreds of miles away. Although separated by miles, however, the ALJ is still able to see, communicate and observe your demeanor in real time. The ALJ is even able to zoom in or out, depending upon his or her preference. This capability allows the ALJ to view the proceedings from a multitude of angles. This is why regardless of the avenue in which a disability hearing is conducted, the guidelines for how you should present yourself remain the same. Here are a few tips on testifying and presenting your case at a video hearing:

Tell the truth
Do not exaggerate symptoms or pain level
Be able to describe a typical day in your life
Dress appropriately for your medical condition

The advantages and disadvantages of video hearings

Video hearings provide two major benefits: first, hearing dates are typically set sooner. To the disability applicant who has been waiting over a year for a hearing, the ability to have a hearing date sooner is a welcomed invitation that most applicants eagerly accept. Secondly, the location of the hearing is often closer to the location where the claimant resides. For those individuals whose medical condition prevents them from traveling long distances, video conferences are often a preferred choice if the claimant might otherwise have to travel many miles just to get to the hearing. Bottom line: video hearings provide convenience.

Typically with any advantage there is a likewise disadvantage. But as far as I can tell, the only disadvantage to a video conference stems mainly from personal preference; some claimants might simply prefer good old-fashioned hearings in which they are face to face with and in the actual room with the Judge deciding their case. Ultimately, some claimants may not feel comfortable testifying via video, whether it’s because they are not used to it or are simply principled against it. But having been involved with many video hearings, I can say that it is easy to get used to very fast – even within minutes. So I recommend having an open mind about the video hearing if you come to find out that yours will indeed be taking place via satellite.

A final point that should be made is that the claimant is the final decision maker in whether a hearing is conducted via video hearing or not. It is your choice. While some attorneys and clients welcome the idea of video hearings because it speeds up the disability process, there are those attorneys and/or clients that do not feel comfortable with the ALJ not being physically present in the same room as the claimant. So, if you are opposed to a video conference and prefer a traditional disability hearing, simply voice your objection and a hearing date will be scheduled when available. However, please keep in mind that when a hearing has to be rescheduled, it can take up to several months to reset the hearing date. So if you are already tired of waiting, it is probably a good idea to go to your video hearing and get it over with!

Video Hearings vs. Traditional Disability Hearings: Similarities and Differences

How are video hearings and traditional hearings similar?

Both types of hearing are done in real-time.
Your representative/attorney is present with you at all times.
The rule for cross-examining a witness is the same.

How do video hearings and traditional hearings differ?

The Administrative Law Judge is many miles away from the location where the claimant and representative are located.
The ALJ assigned to a case may or may not be a Judge common to the area. Administrative Law Judges are typically assigned to certain geographical areas. As a result, experienced representatives typically have prior hearing experience with a select group of judges. In video conferences, the judge assigned to an applicant’s matter is pooled from any number of locations. As a result, a representative’s knowledge of the assigned Judge may be limited. An advantage of being familiar with a judge is that the attorney knows his/her demeanor. They have an idea of what the judge expects and how he or she has a tendency to rule. This can be a major advantage in preparing for and presenting a case.
The Vocational Expert and/or Medical Expert may or may not be present at the location where the judge is conducting the hearing.
Traditional hearings take longer to schedule, whereas video hearings are scheduled more quickly.

Final assessment on Video Hearings

In closing, if you are given the option of having a video hearing in your matter versus the traditional hearing where all parties are present in one room, consider your options carefully and then discuss your thoughts and concerns with your representative. Most seasoned representatives feel comfortable in either situation. Choosing to have your hearing conducted via video will more than likely result in you receiving a decision more quickly. For most, this is exactly what is needed since it can take so long to get to the hearing level in the first place. My advice: be open-minded; there is really nothing to fear about a video hearing.

Vocational Expert FAQ: Everything you need to know about the VE

You have received notice of your hearing date from the SSA. You are going through all the paperwork when you come across a piece of correspondence indicating that a vocational expert (VE) witness will be present at your hearing. ‘What is a vocational expert witness?,’ you may wonder. In case you have never heard of the VE, you have come to the right place. Below find everything you need to know about the vocational expert witness.

What is a vocational expert?

In September 1962, the vocational expert program was established. Since then, vocational experts have testified in approximately 25,000 disability cases at the appellate level. In a disability hearing, the expertise of a vocational expert is customarily used and is the result of an Administrative Law Judge’s request. In fact, vocational experts (VEs) appear more in disability hearings than medical experts (MEs). Vocational experts are professionals with vocational expertise who evaluate residual functional capacity ratings to ascertain if there are jobs in the national economy that a disability applicant can do. In essence, vocational experts testify about work abilities. A vocational expert is not an agent of the Social Security Administration. As an independent party, vocational experts are to remain completely objective and impartial in expressing their opinions.

What is the role of the vocational expert?

Incorporating their knowledge and experience, vocational experts are able to provide an overview of the types of work a claimant has performed over time. In most cases, vocational experts review fifteen years of an individual’s work history.

Why is a vocational expert needed to testify?

Most often, the Administrative Law Judge solicits the testimony of a vocational expert because he/she has questions that need to be answered and feels that the claimant’s testimony alone will not be sufficient to provide the answers needed. Having a vocational expert testify should not be inferred as being good or bad. Again, a vocational expert’s presence and testimony often indicates the personal preference of the ALJ. While some judges rarely request the appearance of a vocational expert, some do regardless of how clear-cut and simple a case may be.

How is ‘work’ defined? Are there different levels of ‘work’?

Yes, the types of work are broken down into four categories. They are as follows:

Heavy work – having the ability to lift or carry one hundred pounds occasionally and fifty pounds frequently, and to stand and walk six to eight hours per day.

Medium work – having the ability to lift or carry fifty pounds occasionally and twenty-five pounds frequently, and to stand or walk six to eight hours per day.

Light work – having the ability to lift or carry twenty pounds occasionally and ten pounds frequently and to stand or walk six to eight hours per day; or,

Sedentary work – having the ability to lift no more than ten pounds at a time and occasionally lift or carry small articles. Sedentary work usually refers to work that is done while sitting. The claimant must also have the ability to sit up to two hours out of an eight-hour day to be able to perform sedentary work.

In considering the above descriptions, it is important for the disability applicant to understand the meanings and usage of the words ‘occasionally’ and ‘frequently.’ Occasionally is the ability to lift or carry less than one-third of the time in an eight-hour period. Frequently is an individual’s ability to perform at the same level at least one-third of the time in an eight-hour day.

What types of training and qualifications are required of a Vocational Expert?

Different from medical experts, which are an additional source of experts available to aid Administrative Law Judges in rendering decisions, the training and qualifications of a vocational expert are varied. While some vocational experts may have a background in psychology, others may have experience in vocational education, counseling or rehabilitation.

Is the disability claimant privileged to communications between the Administrative Law Judge and Vocational Expert?

Yes, claimants and their attorney are both able and should receive a copy of any written correspondence between the vocational expert and the Administrative Law Judge assigned to the applicant’s case.

Are vocational experts subject to cross-examination?

Any witness who is called by an opposing side and presents testimony is subject to cross-examination. This process affords the disability attorney to ask new questions or to seek clarification on answers already interjected. Vocational experts are no exception to the cross-examination rule. Since a vocational expert has proffered an opinion as to an applicant’s job capabilities, he/she is subject to cross-examination.

Is there any way to know whether a Vocational Expert will be present at my hearing?

A couple of weeks prior to a hearing, your attorney and/or representative should receive a witness notice. The witness notice will list all individuals the Administrative Law Judge has requested testify in your matter. If your attorney has not received a witness list, your attorney should call the ALJ’s office and ask about experts. A word of caution, claimants should never personally contact any expert witness.

When do vocational experts normally testify during the hearing?

The vocational expert can obtain information primarily in three different ways. First, information is gathered when reviewing the claimant’s file prior to hearing. Second, the vocational expert obtains additional information through the oral testimony of the claimant as well as other individuals who testify during the proceedings. The third avenue and probably one of the most important means in which a vocational expert accumulates information is through observing the disability applicant during the hearing. Observation may yield clues regarding appearance, responsiveness, general intelligence, communication skills, and other claimant characteristics. It is during this time that vocational experts will note any physical capacities, such as the use of limbs or prostheses, or physical endurance. As a result, the vocational expert is usually the last to testify.

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.

Your Credibility – A Key Factor in Winning Your Claim

Jonathan
February 24, 2010
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In a previous blog post, I set out several discussion points that I raise with my clients in our pre-hearing conferences. One of those discussion points has to do with “credibility” – are you a believable witness?

While I think that the quality and nature of your medical record functions as the most important factor as to whether your case will be approved, your credibility is almost as important.

When I refer to credibility, I am speaking of whether you come across as truthful and believable. Credibility is not something you can manufacture – if your medical condition is not serious and you could perform work, you will face a difficult time winning. However, it is possible for a truthful, legitimately disabled person to lose because he or she did not appear believable in his/her testimony.

Realize that every claimant that a judge meets during the day is asserting that he/she is disabled. Therefore, your demeanor and your testimony must come across as believable in order to be successful at the hearing. Here are some tips on how to come across as a credible witness at a Social Security Disability hearing.

1. Dress Appropriately

Chosen court attire often aids in determining the credibility of the claimant. Wherein State and Federal courts require a minimum of casual dress, Social Security hearings are generally less formal. Although informal, how a claimant dresses should be such that it conveys respect to the Administrative Law Judge (ALJ). Torn blue jeans and tank tops are examples of clothing that should be avoided at a disability hearing. This is not to say that you have to dress formal; donning formal clothing is unnecessary, and in fact, can send a conflicting message to the judge. For example, an applicant wearing high heels although she insists that she cannot walk without pain will definitely make any testimony she gives less credible. A rule of thumb is to dress conservatively but comfortably.

2. Be specific in your answers

An individual’s ability to answer with informative responses to questions posed by a judge will result in the individual’s testimony being credible. For instance, during a hearing, it is common for the ALJ to ask the applicant questions regarding his/her physical ability. Questions like “How far can you walk?”; “How much weight can you carry?”; and “How long can you sit?” are all questions that an applicant can expect to be asked of him/her during a hearing. It is extremely hard for a judge to consider the profound effect of an individual’s impairment if the applicant responds to a judge’s inquiry with “I don’t know.” If an applicant fails to be specific, then the judge will more than likely consider answers of this type not credible.

3. Don’t over-exaggerate your pain

Physical pain is common to most disabilities. An individual’s disability caseworker as well as any ALJ expects disability applicants to list pain as a chief complaint. As such, it is common during the hearing for the Judge to inquire as to the level of pain that a claimant experiences on a routine basis. Again, although a degree of physical pain is expected, stating pain consistently at level 10 is considered an exaggeration and will result in that portion of the individual’s testimony not being considered. The basis for this decision is that a consistent pain at level 10 would result in a mental deficiency. It is unlikely that the individual experiencing pain at level ten 24 hours a day, 7 days a week, would be able to be present during a hearing, much less offer supporting and competent testimony. A rule of thumb for describing pain is to state the pain experienced in percentages. For example, an individual may experience pain at level five, seventy-five percent of the days, while the other twenty-five percent is at a level 10. It is also helpful to describe any events that trigger an increase in pain. For instance, individuals with RSD, a nerve condition, experience an increase in pain during cold weather. Doing this will also help you to come across as being specific.

So, before you attend your Social Security Disability hearing, just remember that credibility is an important element and be thinking of ways to appear credibly. Without credibility, even a deserving claimant’s chance of receiving benefits is compromised.

Q & A: Who is responsible for calling upon and compensating the Medical Expert witness?

Jonathan
December 28, 2009
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Hello and welcome to the 4th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I answer a question asked about the Medical Expert witness (ME).

Question:

I have a disability hearing scheduled for next month in my Multiple Sclerosis disability case. As I have been unable to work for over a year, I have limited financial resources. I have read that an Administrative Law Judge often solicits the testimony of a medical expert on complex medical issues. Here are my questions: Who is responsible for assuring that the medical expert testifies at my Social Security disability hearing? And who compensates the medical expert? Is there any responsibility on my part?

My answer:

This is a great question and one I have not actually been asked. You are correct that Judges (ALJs) often seek the testimony of medical expert witnesses (MEs) in complex medical situations like yours. Since ALJ’s have no direct communication with medical professionals and are not medically trained, testimony from medical experts provide ALJ’s with a more complete and detailed understanding of your medical and/or mental situation prior to his/her issuance of an opinion in your matter.

Here’s how it works: Each hearing office maintains a roster of medical experts who routinely testify as expert witnesses in disability hearings. If you spend enough time at any one Social Security hearing office, then you will likely start to notice the familiar faces of some of these medical experts, many of which are retired doctors who have a wealth of medical knowledge that can be used to help the judge make a well-informed decision.

Since the ALJ is the individual that solicits the expert’s opinion, the SSA incurs the costs of paying the medical expert. So in answer to your question, you are not responsible for compensating the ME. It is all taken care of by the SSA.

Also, since you are pursuing a Multiple Sclerosis disability claim, I would like to tell you and any one else interested that I have been working on a website dedicated solely to the topic of Multiple Sclerosis and Social Security Disability. Because I have seen a lot of MS disability claims over the years, I figured I would share some tips and knowledge on the subject. Please visit the site by clicking on the link, and be sure to let me know what you think!

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:

Understanding How Social Security Classifies Your Past Work

Jonathan
September 29, 2009
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Like many federal bureaucracies, Social Security has developed its own language for describing many of the concepts that underlie a disability evaluation. Since disability considers your capacity to work by looking at both your past work and about other jobs, a description of your past work is an important part of your case evaluation. You should try to become familiar with some of these terms prior to your hearing.

At Social Security hearings, judges often call vocational witnesses to classify your past relevant work. Generally Social Security is concerned with your past relevant work over the past 15 years. Short durations jobs of less than 3 months are usually considered unsuccessful work attempts (UWA) and don’t count as past relevant work.

Vocational witnesses identify both the “exertional level” of your past relevant work as well as the “skill level” of that work. Jobs are classified exertionally as:

sedentary
light
medium
heavy
very heavy

More explanation about what these exertional levels mean – page on this blog; post from Colorado disability lawyer Tomasz Stasiuk

Jobs are classified by skill level as:

unskilled
semi-skilled
skilled

Vocational experts use a resource called the Dictionary of Occupational Titles (D.O.T.) to classify the exertional and skill level of every job that (in theory) exists in the national economy of the United States. You can read the D.O.T. online by clicking on the link. Continue reading →