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Category Archives for Disability hearings

Does Trial Work Period Start as of Onset Date or After Expiration of 5 Month Waiting Period?

I just got a fully favorable ruling from an ALJ, but the onset date has been amended.  Without going into a huge amount of confusing detail, I was supposed to get a partially favorable for a closed period, instead I now have a fully favorable with onset date starting Nov. 15, 2007.  To prevent losing my house, I had to start working some.  I am wondering if my trial period starts aftr the 5 month waiting period which would begin in April, or would the trial working period begin with the onset date?
–Jim

Jonathan Ginsberg responds: Jim, I believe that the trial work period starts as of your onset date.  The 5 month waiting period only has to do with payments.  I wrote about trial work periods on a fixed page on this blog – take a look by clicking on the link.

You should also speak with your lawyer about whether to appeal the decision.  If the judge stated on the record that he identified a closed period, and you start working, you may find yourself with a continuing disability review or an action to terminate benefits.

You only have 60 days to appeal a decision and you could lose your right to the closed period lump sum if you do not appeal.  Maybe it makes sense to appeal and maybe not.  I just think you need counsel about this issue and that you need to be proactive.

Can a Rare Medical Condition Like Dupuytren’s Disease Qualify Me for Disability?

I recently responded to a question on Yahoo Answers about a disease called Dupuytren’s Disease.  Dupuytren’s is a disease of the connective tissue in the palm of the hand.  The tissue becomes rigid and immobile, causing the patient’s hands to become fixed in a bent condition.

The person asking the question wanted to know if Dupuytren’s would qualify a claimant for Social Security disability.  My response was that it might depending on how severe the condition was and whether the claimant had one or more treating doctors who would help by completing a functional capacity form.

The question itself was phrased as follows: "is Dupuytrens considered a disability under the Social Security Administration?"  As I typed out my answer it occured to me that the person posting the question was asking the wrong question.  Social Security disability is not "about" any particular disease or condition.  Further, the issue is not whether Social Security recognizes a particular condition, the correct question is "how does my medical condition limit my capacity to perform work like activities."  I have been involved in cases where the medical record is quite vague – sometimes different doctors do not agree on the diagnosis and sometimes the doctor will acknowledge that there are is no test that can be run to definitively document a disease or condition.

Therefore, if you have a rare or unusual disease like Dupuytren’s Disease, you may very well qualify for Social Security disability.  You and your lawyer may need to educate your judge about the condition and you will definitely need support from your doctor.   The important point here is identify the main issue in your Social Security claim and to create a theory of your case that will convince a judge that despite your best efforts, you simply cannot work.

I Have Multiple Medical Problems – Should I Focus on All of Them? Just One?

I have more than one disability, should I focus  just one or provide  info  on all to help my case? Fibromyalgia, heart problems, sleep apnea and extreme fatigue, and bi-polar depression.
–Darlene

Jonathan Ginsberg responds:  Darlene – good question.  At the initial and reconsideration stages, your claim will be reviewed by an Adjudicator who works for your State of residence under a contract with the Social Security Administration.  Adjudicators work hard, but they are not trained or paid to serve as judges.  They are equivalent to an insuarnce claims adjustor.

Multiple medical problems will make it difficult for an adjudicator to decide your claim favorably.  Therefore, I would suggest that you focus on one problem and try to find a doctor who will support your claim that this one serious problem rises to a listing level.  I would mention and include the other problems but I would focus on the one issue that seems most serious.

Note that fibromyalgia by definition is not a listing level problem because there is no listing for fibromyalgia.  Read more about the Social Security listings here.

If your case is denied at the initial and recon stages, and you go before a judge, you will most likely have a lawyer to help develop a strategy.  In my practice I tend to focus on one or two primary problems as I have found this approach works best.

Can I Work After My ALJ Hearing But Before A Decision is Issued?

An attorney named John wrote me with the following question.  The email address he used was not valid so I decided to answer his question on my blog.  The question:

I have a client who would like to know if he can work while waiting for his SSDI benefits to be approved?

Here is my response:  John, I think that any work would be evaluated under the 9 month trial work period rules (see https://ssdanswers.com/how-much-can-i-earn-and-still-collect-ssdi/ ).   However, I think that working carries some risk.  The Judge can look at a current earnings record and if he/she sees work activity that could result in a second hearing or, even worse, lead a judge to deny.

SSA sees things in black and white.  I am therefore not a fan of work prior to the issuance of a decision.  I have  a case right now in which I won but the SSA investigation office found evidence of work and the decision has been reversed and the case remanded for another hearing.  I think that I will have an uphill battle in that case.

Give Social Security Judges Clear Answers to Simple Questions

Recently I tried a disability case that demonstrates the importance of testifying clearly about your activity limitations.  My case involved a gentleman with chronic  back pain.  During our pre-hearing meeting in my office two weeks prior to the hearing, I reviewed with my client the likely questions that would be asked by the judge at the hearing.  Among the questions that we discussed were questions about his capacity for walking, standing and sitting.

My client explained to me that the answer to those questions depended on a number of factors, including the type of activity he was performing and, most importantly, whether he was well rested.  In other words, if he was well rested and had been lying down for two days, then tried to perform an activity requiring a lot of walking, he would have the capacity to walk for up to two hours at a time.  On the other hand, if he tried to perform walking activity two days in a row, his capacity on day two would only be 30 to 45 minutes.

While this type of answer makes sense to me, I don’t think that it worked very well at the actual hearing.  The judge asked the question "how long can you walk?" and my client went into a 10 minute discussion about how he could walk longer if he was rested, and less time if he wasn’t and that he hadn’t really tried to walk and he wasn’t sure exactly what his limits were because he always stopped if he back started hurting, etc., etc.

I think that a better approach would have been to forget about maximum capacity after two days rest and to interpret the question as looking into his capacity on a Thursday or Friday after a full week’s work.  His best answer would have been "I can walk about 45 minutes then I have to stop because of severe back pain. I need to stay off my feet for at least 30 to 45 minutes before I could walk again.  During the course of the day, I could not walk more than 2 hours total and those 2 hours would put me in bed before the end of the day."

At Social Security hearings, judges are trying to decide what capacity you have for work activity.  Answers need to be fit on a form.  Too many "it depends" or "I’m not sure" create confusion and, as a rule, confused minds say "no."

[tags] hearing strategy, walking capacity, social security disability, odar [/tags]

How Long Do I Have To Wait for My Hearing Decision?

Dear Jonathan,
Hello. I have a question concerning my court hearing please.   On May 17th, 2007, I went to my disability hearing. 2 months later I contacted them to find out my status and they told me the decision was made the day I went to court. I continued to wait and still heard nothing. So I called again today, and they told me there was not a decision made yet. Now I am confused, and I have no money and I’m a single parent. My disbility is social anxiety and depression. I really don’t think I can work at this time, but I don’t know what to do. I first applied for this July 2004. I have a lawyer, but she doesn’t know whats going on. Please help.
Thank you, Barbara

Jonathan Ginsberg responds: Barbara, thank you for your question.  Here is what I think is going on.  In most hearing offices throughout the country, judges are required to follow a procedure set out in operations manuals created for them by the Social Security Administration.   Although you would think that a judge can control how his courtroom operates, Social Security judges do not have as much control or authority as State or Federal Court judges.

In a Social Security disability case, the judge takes notes during the course of your hearing and most likely fills out a checklist provided to him.   Included on these checklist forms is a place where the judge selects either "favorable," "unfavorable," or "partially favorable."  After the hearing, the judge gives his checklist and notes to a "decision writer" who will prepare the actual written decision.  The written decisions is Social Security disability cases follow a very structure format.  In other words, hearing decision issued by a judge in hearing office #1 is going to look very similar to a hearing decision issued by a judge in hearing office #2.

In many hearing offices, decision writers are overworked and have backlogs of work.   Because of this, there may be a delay of several weeks to several months before the decision writer is able to produce a draft decision for the judge’s review.   The judge may then review the written decision and compare its text to his notes and checklist forms.  Most judges want to do a good job and they want their written decisions to make sense and to clearly explain their reasoning.

If your case has unusual issues or if the judge needs to hold the record open for evidence or a written brief, the process may take several months.  Some judges may also be very particular about any written decision that goes out under that judge’s signature and that can add weeks or months to the delay.

I know a couple of judges who may take a year or longer to issue a decision, although that is unusual.  Most hearing decisions are issued within two to three months after the hearing.

In your case, I suspect that the judge did make his decision at the time of your hearing, and that the written hearing decision has been prepared in draft form but has not been reviewed by the judge.  

Unfortunately there is not much you can do to force the judge to speed up the process.  If the delay goes on beyond five or six months, your lawyer may want to write a polite letter asking about status and advising the judge that you have a finanical hardship and need a decision. 

[tags] social security disability hearing decision, social security judge, ODAR [/tags]

Is Settlement Advance Funding Available to Social Security Disaiblity Claimants?

With delays in Social Security disability cases reaching three years, it was inevitable that settlement advance funding would be adapted to include Social Security disability cases.  Yesterday, a company called AnyLawSuits.com purchased a site review from me through Reviewme.com, which is a marketplace that allows website owners to purchase blog reviews.  I thought that AnyLawSuits.com’s concept is interesting because they say that any advance issued to a claimant would not have to be repaid if the claimant lost his disability case.

In the personal injury field, settlement advances are usually loans whereby a funding source loans money against an expected settlement.   The lender makes its money by charging an interest rate as compensation for its risk.  Assuming the interest rate is reasonable, settlement advance funding can help cash poor plaintiffs  cover their bills while waiting for their settlement to arrive.

It appears that Social Security disability lump sum funding would work in a similar way.   If , for example, your estimated lump sum receipt after attorney’s fees is $25,000, the settlement lender may advance you a percentage of the expected settlement  with the understanding that you will repay the advance + interest when your lump sum arrives.  Further, if you lose your case, you would not have to repay the advance.

AnyLawSuits.com’s web site doesn’t offer any details about how the advance arrangement works. They do not reveal how they decide how much to loan or what the interest rate would be.   At the bottom of their web page there is a link to a company called Alpine Funding.   It appears that AnyLawSuits.com has a broker relationship with Alpine Funding whereby AnyLawSuits.com earns a commission for any settlement loan they place.

The Alpine Funding site explains that you would have to sign some sort of assignment of your check, but I wonder how enforceable such an assignment would be given that Social Security checks cannot be garnished or seized by judgment creditors.  In addition, Social Security lump sum checks are paid directly to the claimant, unlike insurance claim checks which are sent to the plaintiff’s lawyer.  Alpine Funding’s site is also silent as to what percentage of the anticipated settlement might be loaned or the interest rate to be charged.

I also find it interesting that AnyLawSuits.com’s web site specifically says that they do not advance on SSI or SSD cases.  Why, then, would they purchase a review on my Social Security disability blog with a notation that they offer "social security legal funding?"

If anyone reading this decides to try AnyLawSuits.com, I would advise you to be very, very careful and to consult with your lawyer before signing anything.  I would also be interested in hearing about anyone’s experience with "settlement advance" funding in Social Security disability cases.  I can see how settlement advance funding would be attractive to a cash strapped Social Security disability claimant but like any financial proposal directed to a customer with cash flow problems, the terms of the deal are likely to be weighed heavily in favor of the lender.

[tags] settlement advance funding, anylawsuits.com, advance of social security disability lump sum [/tags]

 

How Does a Judge Resolve Unclear or Conflicting Medical Evidence in a Disability Hearing?

Mr. Ginsberg,
I am a dwm 45, no children, no criminal record, no drug/alcohol problems. I have been diagnosed to have Major Depression, Generalized Anxiety, Schizoid Personality Disorders. I have had 23 jobs in the last ten years with several gaps of unemployment. I have had two psychological tests with conflicting results but were all deemed valid/reliable. I just had my ALJ hearing two months ago and in addition to my ongoing psychiatry treatment for the past two yrs, has ordered a mental CE, waiting for the results and a final decision. My treating psychiatrist this month sent a letter to my disability judge stating that I am a ‘diagnostic puzzle’ and have tried all pharmacological agent groups with no success. He also stated that he has been treating me for the past two yrs. He suspects I have a pervasive developmental disorder. He concluded the letter by stating that there have been no signs of malingering and I have been very compliant.

After my hearing, my disability rep. told me that I have a 50/50 chance of winning. My question to you Mr. Ginsberg, is what does the ALJ do when there are conflicting test results but they are all reliable/valid? Does he flip a coin to make a decision?

–Mike
 
Jonathan Ginsberg responds:  Mike, thank you for your question.  Your case illustrates why judges have a very difficult job.  I like to say that the word "judge" is both a noun and a verb.  The best judges look at the evidence but they also observe and listen to the claimant.   Not every claimant falls into a net category.
 
Some judges are better at this task than others.  I know some judges who will deny any case where there is conflicting or confusing evidence, while there are others who take a holistic approach to judging and they try to picture you (the claimant) trying to get through an 8 hour workday, five days a week.  Fortunately most judges try to do the right thing and will look at you as a whole person, rather than as the human manifestation of a large paper file.
 
This is also a case where a functional capacity evaluation might be appropriate.  As I regularly point out on this blog and elsewhere, Social Security disability is about your capacity to function in a work environment.  To that extent a neat and clean diagnosis is not essential.  Even if your treating psychiatrist cannot label your condition, he should be able to comment about limitations that arise from your mental health condition as a whole.  Assuming that reliability, attendance, interaction with co-workers, supervisors and the public would be impaired, he could offer an opinion that would help a judge assign an appropriate vocational profile.
 
You might also think about searching for a psychiatrist or psychologist who can be more definitive in his/her diagnosis.  There is no question that judges prefer a solid diagnosis and it may be that your case is too complex for your current physician and/or therapist.
 
If you lose, you have the right to appeal as well as to file a new application.  If your current medical record turns out to be insufficient to win your case, you and your lawyer might think about how to build a stronger record for the next attempt.
 
Good luck and let me know how it turns out.
 
[tags] functional capacity evaluation, conflicting evidence, diagnostic puzzle [/tags]
 

Perceptive Judge Overcomes Poorly Prepared Vocational Witness

Yesterday, I appeared with a client at a video hearing with a judge from West Virginia.  This was actually our second hearing – the first hearing was held in August, 2006.  My client applied for benefits in July, 2003, which means that his case has been pending over 3 1/2 years.  During that time, my client and his wife had to file bankruptcy and he has exhausted all of his pension and 401(k) money.

My client worked for a large airline for almost 20 years and back in 2001, he began experiencing severe pain (neuropathy) in his feet and legs.  He subsequently fell and broke his left hip and he currently needs a knee replacement.  He is also severely depressed and basically spends his days trying to find a comfortable position.

At the initial hearing, the judge was not convinced that my client’s physical condition was severe enough to justify benefits and he was concerned that there was not enough documentation about my client’s mental health condition.  Therefore, following the hearing, the judge referred my client out for a psychological evaluation.

My client attended the psychological evaluation and in early December, the judge sent me a copy of the psychologist’s report.   As discussed extensively on this blog, the main issue in any Social Security case relates to a claimaint’s capacity to perform work.  The assessment completed by the consultative psychologist proved to be very relevant evidence.

At this, the second hearing, the judge took no testimony from my client, but he did ask several questions of the vocational expert witness (VE).  The first question – if the claimant’s psychological profile is as set out in the psychologist’s report, could he perform any type of work.  Let me interject here to say that 99% of vocational witnesses would answer “no,” because (1) the “poor” in “dealing with work stresses” and the cumulative effect of four “fairs” in other vocationally significant categories would make any kind of vocational adjustment pretty much impossible.

This VE, however, testified that 20% of sedentary jobs would remain available.  Before I had a chance to cross-examine (I would have asked him about the cumulative effect of the “fairs” and about his understanding of the word “poor”), the judge gave two more hypothetical questions, each with significant limitations.  It was fairly clear that the judge saw this as a case he was going to pay, but he needed acceptable vocational testimony.

The judge eventually got the testimony he wanted and he will pay this case.  This is a good example of how a knowledgeable judge was able to get past the inexperience of a new or overly conservative vocational witness.  This case also demonstrates how much authority a Social Security judge has in deciding which way he will take a case.

 

Pre-hearing Conference to Expedite Hearing Decision

I have a question. My attorney’s paralegal called me last week and told me that my attorney and an administrative law judge will meet to discuss my case (without me) in an effort to make a decision quicker. She said that if the law judge ruled in favor of my case, that would be it. She said, if he or she ruled against me we would wait for our hearing as we have been waiting for the past two years. Does this make sense? Have you heard of this? thank you.

–Sheila

Jonathan Ginsberg responds:  Sheila, what you are describing is something called a "pre-hearing conference."   Pre-hearing conferences are a little unusual in Social Security cases, but certainly not improper.  A pre-hearing conference can be requested by a lawyer to speed up the process or it can be requested by the judge.   Sometimes judges will flag certain cases for pre-hearing because they look strong enough to be granted "on-the-record" without the need for a hearing.

In my experience, judges will use a pre-hearing conference to approve a case or to narrow the issues.  For example, the judge may be prepared to approve your case, but he may want to change the onset date for your disability.

Generally, it is good news if the judge wants to hold a pre-hearing conference.  Your lawyer can tell you what happened and hopefully, you will be on the road to an earlier approval.

[tags] pre-hearing conference, administrative law judge, on-the-record decision, Social Security, Social Security disability, SSI [/tags]

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