As a general rule, I think it is possible to identify most winning disability cases at case intake and in my practice, I am usually fairly accurate in choosing strong cases and thanks to excellent work by my paralegal staff, we are usually successful in our representation.

I do sometimes accept cases that are somewhat more marginal with the idea that I might be able to argue for a closed period or because I expect my client’s medical condition to deteriorate prior to the hearing date.  In addition, as I have commented before on this blog, the judge assigned to the case can make a huge difference in the result.  I have won many cases for claimants that very likely would have gone the other way if a different judge had been assigned.  Although SSA tends to minimize this issue, the fact is that the approval rate by judges within the same hearing office can vary greatly.  Although I think that most judges try to be fair there are one or two who appear to believe that they have a personal mission to balance the federal budget by denying claims, no matter how serious the claimant’s impairment.

Recently, I took a few minutes to analyze some of the unfavorable decisions that I have received over the years.  I was looking for patterns so that I could update my case selection criteria and so I can better prepare my clients for hearings.  Here is what I found:

1) Social Security judges do not like or believe claimants with current alcohol or drug abuse problems.  Social Security rules provide that when alcohol or drug abuse is a "material contributing factor" to disability, then that disability is not compensible by Social Security.   To put this another way, the judge has to decide whether the claimant would still be disabled if he discontinued the substance abuse.  That type of a determination is very difficult to do and when faced with that choice, most judges will decide against the claimant.

Judges tend to be somewhat more sympathetic in the case of a claimant who was a drug or alcohol abuser but who has since become sober.  In those situations, it is sometimes possible to amend the "onset date" of the disability to a date when the claimant was clearly sober.

Unfortunately, many substance abusers either lie about their sobriety or they greatly exaggerate their efforts to wean themselves from drugs or alcohol.  Usually, lab reports from medical records or observations from the doctor ("Mr. X smelled strongly of alcohol") will create an inconsistency. 

The best course of action, therefore, would be to admit if there has been a problem, and to offer a truthful date as to when the problem ended.

2. A second problem area in unfavorable decisions relates to part time work.  I have previously written that Social Security sees disability claims in black and white – with no gray area.  This is especially trun in cases where a claimant is trying to work.   If you are doing anything part time during the time you claim to be disabled, it is likely that a judge will conclude that you could work longer hours at a less demanding job.

For example, I had a client who had worked as a cable installer for many years, until he finally had to stop because of severe degenerative disc disease in his hips.  Cable installation is a very physically demanding job, requiring a lot of climbing, crawling, lifting and reaching.  At the hearing, the claimant testified that all he knew how to do was to install cable and that because he needed the money he was still taking one or two jobs a month lasting two or three days each, and that he was paid in cash.  He testified that he had earned about $10,000 over the past year.

The judge accepted that he could not return to full time cable installation, but was troubled by the $10,000 part time work.  The medical record clearly supported the claimant’s allegation that he could not perform cable installation full time.  However, the doctor, like the judge, saw the part time work as evidence that the claimant could do some level of work.   The judge followed that line of reasoning and concluded that the claimant could perform a range of jobs less demanding than the cable installation.

3. Lies and misrepresentations constitute another problem area for claimants.   Before meeting with the judge I always advise my clients to tell the truth and to go in with the attitude that they would work if they could work.  Unfortunately some claimants ignore my advice and proceed to testify that every part of their body hurts and that there is no way they could do anything. 

Learn from this that you should tell the truth, and do not try to change your testimony to what you think the judge wants to hear.  All day long, Social Security judges hear from people claimant to be disabled and they can usually spot the phonies as well as the legitimate claimants.

[tags] unfavorable social security decision, substance abuse, material contributing factor, alcohol and social security disability, social security disability attorney [/tags]