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Will Filing for Unemployment Hurt Your Social Security Disability Case?

unemployment and social security disabilityIn my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability.  On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be  “unable to engage in substantial activity?”

Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt. Continue reading →

How Gaps in Medical Treatment Can Result in an Unfavorable Decision

Last week, I wrote a post describing a case that will be denied because of my client’s poorly worded testimony.  Today, I want to continue this theme and talk about a far more common basis for hearing denials – gaps in medical treatment or absence of medical treatment.

I save hearing decisions in the cases I try.  Fortunately I usually choose decent cases and I don’t have too many unfavorables, but not every case turns out to be a winner.  Interestingly, when looking at the unfavorables as a group, certain trends emerged.  Perhaps the most common thread had to do with gaps and inconsistence in medical treatment.

Here is the actual wording from one such decision in a case involving a woman with depression and anxiety:

Although the claimant’s anxiety is severe, she has had no significant amount of mental health treatment.  Even though she has been in the Atlanta area, she has had no psychiatric treatment.  Had she obtained treatment, her anxiety would not be severe.  Her husband is working, so there is no apparent reason she could not seek mental health treatment if she chooses to do so.

In this particular case, the medical record was not particularly strong and the claimant’s treating doctor was unwilling to provide us with a completed functional capacity form.  I find it interesting that the judge would focus on what was not there, rather than what was there.  Could there be legitimate reasons why an individual would not seek mental health treatment?  Is it fair to assume that the husband’s insurance would cover psychological or psychiatric treatment, or that the deductibles would be affordable?

I think that the lesson to learn from cases like this relates to the need for every claimant to build a “paper trail” of medical treatment records.  Judges expect you to see your doctor regularly and to seek specialized help when necessary.  If you don’t have a lot of money,you need to explore all options – local emergency rooms, public hospitals, free clinics.  I think that the days are over when a claimant can win a hearing with a medical record that is less than an inch thick.

I am certain that there are many deserving claimants out there who truly are disabled, but who will be denied because the medical record is sparse.  This may not be fair, but this is how the system works.

How Poorly Presented Testimony Can Result in an Unfavorable Decision

Although I generally write about successful cases, I think that you can also learn from cases that don’t go so well.  I tried a case recently that turned out to be snakebit.  Just about everything that could have gone wrong did go wrong and this is one of the few cases where a judge announced in open court that he did not find my client believeable or credible at all.

Interestingly, my client does have significant medical problems and a long and solid work history of over 20 years with the same employer.  He is also well educated with a college degree and he earned a very good living in the accounting field.  After he stopped working, he made at least three attempts to return to work but was unable to do so because of significant pain.  He has a clear diagnosis of an orthopedic problem and his treating doctor is recommending multiple joint replacements.  All in all, this gentleman meets the profile of what I would consider to be a viable case.  What, then, went wrong?

Firstly, my client did not present himself as a person who was searching for relief.  He last worked in 2005 and thereafter he had only two visits to an orthopedic surgeon.  Although his doctor stated during both of these visits that surgery was needed, my client did not pursue treatment.  Instead, he stayed at home and sought to control his pain with over the counter medications.

I think that the judge questioned my client’s allegations of pain – there was no attempt to pursue physical therapy, there was no course of pain management, and my client was very vague about what he did during the many months that he was at home.  I believe that the judge saw my client as a man who sat at home watching TV, making no effort to explore options that might improve his condition.

When the question was asked why he had not had his surgery, my client responded that he was “waiting for the result of this hearing” before having surgery.  This was clearly not a good answer.  The implication of this answer is that my client could have had the surgery and pursued a recovery but instead, he decided to wait at home and collect Social Security.  This demonstrates the wrong attitude.

Although I tried to rehabilitate my client by getting him to testify about his fear of surgery and possible complications, the judge remained focused on my client’s linkage of his disability hearing to his surgical options.  Social Security judges cannot hold it against a claimant for refusing to undergo invasive surgery but a judge can hold it against a claimant whose decision not to pursue surgery was motivated by a desire to collect from SSA.

My client tried to raise the issue of money – that surgery was expensive, but the judge shot that down by pointing out that my client had very good insurance coverage through his wife and that his out of pocket cost for surgery was nominal.

The judge did not even raise an issue that I saw in the record – namely that my client smokes 3 packs of cigarettes a day, which means that (1) he spends money on a harmful habit that could otherwise be applied to his out of pocket medical costs; (2) he lowers his chances at a successful surgical outcome as smokers frequently experience longer recovery times and less favorable results; and (3) there was no suggestion in the record that my client is trying to stop smoking.

The judge’s disgust with my client was very evident, and the judge did not even go through the exercise of asking any questions of the vocational witness.  I expect that the decision will be an unfavorable decision based on a finding that my client lacked credibility.

What could my client have done differently?

First and foremost, he should have made some good faith effort to seek relief from his symptoms.  If he was not ready for surgery – and most judges understand if you hold off on major surgery that does not guarantee results – he should have sought pain management treatment or physical therapy to strengthen himself.

My client could have used his condition as a diabetic and as a smoker to improve his chances.  Diabetics often have trouble recovering from surgery and he could have referenced his diabetes as a reason for not wanting surgery.   Had there been evidence that he was trying to stop smoking he could have referenced his difficulty in quitting despite a sincere effort as another reason to delay surgery.

Finally, my client should have presented himself as a person who was applying for disability because he was not able to work despite a true desire to support himself and his family.  Workers do not leave high paying jobs with pensions and benefits to sit at home and collect Social Security.  He should have made it clear that Social Security was his last resort and that he would return to work immediately if his condition warrented.

Alas, even cases with potential do not go as planned.  I think that my client is an example of a person who very well might be unable to work, but he presented himself so unconvincingly that he will not receive benefits.

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