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Category Archives for Strategies for winning

Strategies for Winning Multiple Sclerosis Disability Claims

Over the past couple of months, I have taken a number of MS cases to hearings before different judges. So far, we are looking at favorable decisions in all of them. However, the evidence considered by the various judges has been anything but consistent.

I summarized the various case strategies that I use in multiple sclerosis cases on my Georgia Social Security Disability web site so I will not repeat that detailed summary here.  A couple of points that do jump out at me:

  • because MS is a disease that progresses through a series of flare-ups and remissions, it is not uncommon for my client to experience periods of functioning that could allow for minimally physically demanding work. I get past this issue by eliciting testimony from my client that stress from attempting to work (including preparing for work, traveling to work and performing work) can cause a remission period to shrink, and that my client’s functioning during a remission period is enhanced by staying in a comfortable, familiar home environment
  • ideally, an MS case file should contain doctor or ER visits in intervals of 3 months or less. However, if you cannot afford treatment or otherwise do not go to your doctor that often, a personal diary detailing symptoms can serve as viable evidence
  • judges recognize that MS is a degenerative condition that does not improve over time. There are a number of neuromuscular diseases related to MS that may comprise your diagnosis. It is important to have your doctor reference that your associated disease falls within the MS family

I also found that in each of the cases I tried, my clients came across as exceedingly credible – people that had long, consistent work histories and who clearly would prefer to land back in the work force. In many ways, your credibility as a claimant serves as the foundation for your case and the combination of believable testimony, a definitive diagnosis with known, serious symptoms and a solid work history makes for a disability case that will likely succeed.

What Strategy Should Narcolepsy Claimant Use to Win Benefits?

Back in 2006, I wrote a blog post entitled “Narcolepsy as a Basis for Social Security Disability.”  In that post, I noted that there is no “listing” for narcolepsy, meaning that a successful claim would have to rely on a “functional capacity” argument and that you may need more than strictly medical evidence to persuade your judge.

Recently, I received an email from a gentleman named Michael who asked for some additional information:

I have narcolepsy and even the maximum doses of medications don’t help. I keep losing jobs and will be losing my current job due to this. I do exceptionally well at my job when I feel alright, but I spend at least twenty hours of the day not functional. I’m currently telecommuting full-time and I still can’t stay awake and clear long enough each day to do my work. When I work on-site at a job, people accuse me of being an alcoholic or drug addict because I look terrible and slur my words and fall asleep several times per day. The only thing that prolongs my jobs is that when I’m feeling alright, I am sharper than most and unusually productive. So, they smell my breath and check my arms for tracks and I try to convince them that I’m just tired and that usually suffices for a while, but once again I’m losing my job. I am getting worse as I get older and I can’t maintain myself or watch my own child or regularly brush my teeth, etc. It’s a horrible situation and I’m looking at losing everything (job loss) and I don’t think I will be able to recover my finances this time because my narcolepsy is getting so bad. How could I get disability for this? What happens if a treatment comes around that works, can I get back off disability? If I can somehow start a business and hire other people to do the work in order to get off disability, would I be penalized for trying to get off disability? Even working full-time telecommuting, I get accused of being drunk or using drugs because I randomly sound drunk or on drugs even over the phone. It is so frustrating. Please advise as to what options I have, if any, and thank you for writing something up on the web about this.

Here are my thoughts: Yes, narcolepsy can be the basis for a Social Security disability claim.  Please refer to my August, 2006 blog post referenced above.   If a new treatment is developed, you may absolutely terminate your disability – in fact, if you return to work you are required to notify the Social Security Administration. Continue reading →

How Do You Evaluate Whether Your Child’s SSI Case is Viable?

I recently received the following email from a reader of this blog:

I am just wondering if I am wasting my time, my son has been diagnosed adhd for about 4 years now, I think its more but we havent gotten there yet. He is in regular classes but is also in resource at school, he also had to be held back a grade due to his problems the first year being diagnosed. Would he possibly qualify at all for disability benefits.

Jonathan Ginsberg’s response: In order to win a child disability case, you will need to show that your child meets a Listing.  The Listings for children are different than the Listings for adults.  You can review the childhood disability listings by clicking on the link.

The Listing for ADHD may be found at Listing 112.00 Mental Disorders-Childhood.   I can tell you from experience that you will have an uphill battle with an ADHD claim.  There are a lot of parents out there who are filing disability claims on behalf of children and basing their claims on ADD or ADHD.  That is not to say that ADD or ADHD is not real or that it is not debilitating for your child.   I just want you to know that judges and medical experts called at hearings will be skeptical.

I would not recommend pursuing an ADHD claim on your own – you will be benefit greatly by consulting with an experienced disability lawyer.  Best of luck to you.

Can I File for Disability if I am Working 20 Hours Per Week?

A common question that I see has to do with part time work.  As I have written previously, I am not a big fan of part time work, as you will see from my answer to this question that I recieved by email:

I have had fibromyalgia for many years, an autoimmune disease requiring weekly chemo injections, herniated discs in my back. I have been on FMLA for 2 years – ran out of time 4 months early this time – will be losing my insurance at work at the end of this month as I cannot afford the expense of Cobra ($650.00) per month.  I am only  able to work around 20 hrs a week which is a struggle.  I cannot quit working completely as I will have no income to support myself at all.  All of this info to answer this question – do I have to be out of work to file for disability? – J

Jonathan Ginsberg responds: J, thank you for your question.  Here is the issue in a nutshell.  At the outset, if you call Social Security to apply (800-772-1213), the first question you will be asked by the operator is whether you are working.  If you respond “yes,” there is a chance that the operator will not even take your claim, especially if you are earning more than minimum wage.

Assuming that the Social Security operator does take your claim, here is what you will face:

First, you may have a problem with your date last insured for Title II Disability.  As you may know, you have to be “insured” for Disability.  Except in the case of claimants in their 20’s Social Security looks at your earnings record during the 10 year period prior to your becoming disabled.  You need work credits that amount to five out of the last ten years.  Logically, if you are working full time, your “insured” status follows you for approximately 5 years after you stop working.  When you work part time, however, you may very well lose ground and in a worst case situation, your date last insured may have already run, meaning that you would not be eligible at all for Title II.  Unlikely, but a possibility.  You definitely need to find out your “date last insured” for Title II.

Second, I think that part time work muddies the waters.  The legal definition of disability for Social Security purposes is whether you are unable to engage in substantial activity (i.e. work) because of a medically determinable condition or conditions that has lasted 12 consecutive months, is likely to last 12 consecutive months or result in death.  When you are working part time, you create a lot of questions for Social Security.  Is your work “substantial” (this is a legal determination)?  when is your onset date?  could you perform a less demanding task 40 hours a week?

The disability adjudicators who work for the State Agencies (the initial application and reconsideration appeal decision-makers) do not have the training or authority to find your disabled when there are so many legal determiantions that have to be made.  This means that your case will end up before a judge at a hearing at some point in the future (18 months to 3 years down the road).  Judges see folks all day, every day who are not working at all.  While they admire the work ethic of someone who is working part time, the issue usually comes down to whether that claimant could perform a lighter, less demanding job full time.  I can’t cite any statistics, but I’d be surprised if the approval rate for claimants working part time is more than 20%, as opposed to around 50% for claimants as a whole at hearings.

So, in my view, part time work makes it less likely that you would be approved.  Every case is different, of course, and you should speak with an attorney who practices where you live for legal advice.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing?  Is that good news or bad news?  A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled?  my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing.  Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation.   Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office.  The judge, who may be located hundreds or thousands of miles away, appears by video camera.  The hearing reporter and expert witnesses may be local or they may be with the judge.   You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia.   I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices.  For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried.  At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person.  However, that has not been a problem.  I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.

Case Studies and Case Strategies

Over the past few months, I have added a new section to my Georgia Social Security Disability Attorney web site called “Case Strategies and Case Studies.”   The purpose of this section is to set out strategy summaries for the cases I am trying before Social Security Administrative Law Judges.

For each medical or mental health condition, I will set out my general approach to the issues associated with that condition and I will add case studies where I will discuss specific cases – what went right, what went wrong and why I did what I did.

The most recent addition to this section is a strategy/case study on HIV/AIDS cases.  This is my most recent and most complete case study section on the site.   You will also see case studies about arthritis, back pain, depression, fibromyalgia, multiple sclerosis and seizure disorder.  I will be updating this section of my web site as frequently as I can.

If you find these case studies and strategy papers helpful, please “vote” for these articles using the social bookmark links I have at the bottom of the web site pages.

How I Prepare Clients to Testify at a Social Security Disability Hearing

In my law practice, I generally schedule a pre-hearing meeting with my clients prior to any hearing before a Social Security Administrative Law Judge.  The purpose of this pre-hearing meeting is for me to spell out the issues that will be addressed at the hearing, to the question and answer process with my client and to answer any questions that my client may have about the hearing process.   The pre-hearing meeting also gives me a sense of how my client might testify so that I can adjust my questions accordingly.

I thought it would be helpful to readers of this blog for me to set out briefly what I discuss with my clients in the pre-hearing conference because this discussion really goes to the heart of how to win a case.

1. Main issue – the main issue in your case is going to focus on your capacity for working.  Although there are several arguments we can make to win your case, most hearing level cases are won by arguing that your capacity for work has been so reduced by your medical conditions that you would not be a reliable worker in even a simple, non-production oriented, sit-down job.

2.  During the hearing, we will identify the specific work type of activities that you cannot perform.  For example, if you have a knee problem that prevents you from walking more than 30 minutes in any 3 hour period, this walking limitation would impact categories of jobs that require frequent walking or standing.

3.  When I ask you about your ability to perform various tasks – sitting, standing, walking, lifting, carrying, stooping, climbing, etc., don’t answer with generalities.  Saying “I can’t walk very far” or “I can’t lift very much” doesn’t tell the judge anything.  Saying “I can only walk50 yards before I have to stop and rest,” or “it takes all my strength to carry a gallon of milk from the refrigerator to the table” does convey specific information that can be translated into a job requirement.

4. In almost every disability hearing, the judge will have a vocational expert there to testify.  The vocational witness is there to identify the skill level and exertional level of your past work, and to answer  hypothetical questions from the judge about other jobs.  The more specific limitations we can persuade the judge to include in that hypothetical, the better your chances.

5. Your credibility is one of the main things that the judge will be deciding.  Factors that enhance your credibility are a long work  history, (unsuccessful) work attempts, and a sense that you would much rather be working than waiting for disability.

6. The medical record in your case will ultimately be the most important factor in determining whether you have a good case.  If your record contains reference to drug seeking behavior or malingering, you will most likely not win.

7. Recognize that I cannot lead you when I ask questions.  Give detailed and specific answers to my questions.

8.  If I ask you about pain, you can use a 1 to 10 scale, with 1 being a mild headache and 10 being a kidney stone.  Don’t say that your pain is always at a 10.  A better answer – “my pain is always at a 5, but three or four times a week it spikes up to an 8 or a 9 – if I over do it physically or if I am under a lot of stress.”

9.  If you are going to testify that you can’t sit for more than 15 minutes because of back pain, don’t come to the hearing and sit quietly for 45 minutes.  It is ok to stand up and move around during the hearing if you are uncomfortable.

Will Attending College Hurt My Chances for Social Security Disability?

What types of activities can you participate in while you are waiting for Social Security to decide your claim?  I received this question from a blog visitor:

Hello.  I attend college, but my health has been declining for some time. I have a degenerative nerve disease, deteriorating discs in my lower back (not related to nerve disease), a sleep disorder, depression and ADHD. I filed a claim, and it is in appeal right now. Will continuing to attend college courses hurt my case?

Here is my answer:  in my view, your attendance at college will hurt your disability case.  Remember, the underlying question in a Social Security case has to do with your capacity for performing work or work like activity.  If you are able to attend college courses, fulfil homework and long term assignment obligations and concentrate sufficiently to pass college level courses, many judges will conclude that you probably have the capacity for performing a simple, sit down job.

Even if your college schedule is part time, I think that you will be fighting an uphill battle.  I have written many times before that Social Security sees things in black and white.  A part time college course schedule suggests that your condition is manageable and that you most likely would have the capacity for unskilled work.

I have tried several cases before judges in which my client was enrolled in college courses and I can’t think of a single instance where we received a fully favorable decision.  So, everything else being equal, my experience has been that college course attendance will hurt your chances for SSDI.

Why Do Physicians Charge to Write Medical Narrative Reports?

Why is it a doctor will say they will help you to get disability because they believe you are disabled but then require extra money just to write an attorney a letter?
–Shannon

Jonathan Ginsberg responds:  Shannon, there is nothing inconsistent in a doctor’s desire to help you and that doctor’s need to earn a living and to provide for his family.  Like lawyers and other service professionals, doctors earn their livings by selling their expertise and time.  Writing letters uses up time and I, personally, have no issue with a physician asking for a reasonable fee when he performs a service for you – especially a service that you and your lawyer will use in a court proceeding.

Last Minute Lawyer Substitution – Is This a Problem?

This is completly frustrating! I wrote a dire need letter to my congressman and got an expidited hearing scheduled for March 5, 2008.  I am homeless, without a job for 3 years, and have a bipolar diagnoses along with other serious physical problems.  I called my lawyer the day before the actual hearing, and was informed he retired.  Someone whom I’ve never met is representing me.  I don’t even know what he looks like.  Isn’t this a fine how-do-ya do!  I was not notified and had I not called his office, I would have been completely uninformed.  How can I expect this replacement lawyer to represent me when we have never met?  What is your suggestion?
–Steve

Jonathan Ginsberg responds:  Steve, it sounds like you have a difficult choice to make.  I would certainly not be happy to learn that my lawyer had retired and transferred my file to someone else without any notice to me.  Most lawyers I know would at least make an effort to contact their clients if closing their practice.  You do say that you are homeless – is it possible that your lawyer was not able to get in touch with you?

With regard to the new lawyer, he may very well be very capable.  On the other hand I would be concerned that he never made any effort to contact you.  From my perspective the fact that the new lawyer has never met you is less important than knowing whether he has thoroughly reviewed your file.  What you don’t want to happen is ending up at a hearing where the medical records are not updated and the lawyer does not have a clear theory of your case.   Periodically lawyers from other States will hire me to represent a client in a Georgia hearing.  As long as I am familiar with the file and know what I want to prove, I can spend an hour with the client prior to the hearing and be sufficiently prepared.

I would suggest that you contact the new lawyer and try to meet with him today or a minimum of an hour before the hearing.  Ask him if the file is  updated and if he has a working theory of your case.  I would also ask him to level with you – if the case is not ready to try or if he is not ready, I’d rather ask for a continuance and wait a couple more months than to lose a winnable case because the file wasn’t updated or the lawyer wasn’t ready.

At the end of the day, you want to win – it doesn’t matter who the lawyer is.  The records in your file and the opinion of your doctors is far more important.  These factors are where I would put my focus.  Good luck and let me know how it turns out.

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