Back in August, 2007, I wrote a blog post entitled "How Long Do I Have to Wait for my Hearing Decision."   Back then I reported that in most cases, a claimant would have to wait two to three months for a hearing decision.

Fast forward to 2009.  That two to three month period is now four to six months.  Here's why:  about 18 months ago, the Social Security Administration convinced Congress to allocate more money to hire new administrative law judges, and SSA immediately hired around 100 new judges.  At the same time, Social Security put into process its conversion from paper files to electronic files and they created the infrastructure to provide for video hearings.

In Atlanta, where I practice, SSA created a video hearing ODAR office in Marietta, Georgia with three hearing rooms available to handle video hearings.

The good news - Social Security is now equipped to offer claimants administrative hearings.  The bad news:  the hearing offices often do not have enough support staff to process all of the decisions being issued by new judges and judges appearing by video. More on I Have to Wait How Long for my Hearing Decision?

Social Security disability cases often interface with workers' compensation and short term or long term disability cases.  I recently received a question from a lady named Helena, who asks the following:

I have been working in the medical field for over 13 years and more.  I am on short term disability. Can I apply for ssi due to my job may have caused my problem from lifting patients, pushing, pulling heavy patients to machines and other duties.  This job was very stressful and I am taking anti depressants and I am  seeing a psychiatrist.

Here are my thoughts: Helena certainly has the right to file for Social Security disability.  However, I would advise her to speak to her workers'  compensation lawyer prior to doing so.   Workers' compensation claims can involve a significant amount of money when they settle and filing for disability can impact the value of your workers' compensation claim.

The value of a workers' compensation claim often turns on the uncertainty that exists in terms of the claimant's prognosis for returning to work as well as uncertainty about the claimant's future medical treatment.  When you file a Social Security claim you are basically saying that you cannot work, and you will be bringing Medicare into the discussion in terms of future medical care.  Medicare's involvement also may affect your settlement because Medicare may demand that part of your settlement be set-aside to cover future medical care.

Long term and short term disability claims may also be impacted by a Social Security claim.

Bottom line - I would try to involve your lawyer as a point person to advise you about the various benefits to which you may be entitled and to help you decide about the timing or wisdom of pursuing these benefits.

Many Social Security disability claimants have been diagnosed with diabetes.  What does it take to win?  Here is a question I received from a reader of this blog:

Jane, my girlfriend of 25 years (54 yrs old) has been diagnosed with Type I Diabetes for 35 years. She has had a number of problems over the years (uncontrollable diarrhea, Retinopathy, Neuropathy) all of which were more or less under control until recently. She has suffered a massive hemorrhage in one of her eyes and is completely blind in one eye. The eye may be able to be helped by surgery but one thing is for certain it will never be as good as it was 3 weeks ago.  Jane has been employed as a land surveyor (self employed last 10 yrs) for 30 years and it is very difficult to carry on with the physical impairments brought on by diabetes.  Given her age I would very much like to get her on a government sponsored disability program so as to supplement my earnings while waiting for SS retirement to kick in at age 62. Do you think I have any chance of this? Given your experience which of the numerous symptoms of diabetes are the easiest to document for a SSDI claim?

Here are my thoughts: under Social Security's definitions, Jane is "closely approaching advanced age" and has a skilled work background, and quite possibly transferrable skills.   Her educational background is not mentioned but I will assume that she has a college education.  As such, it is unlikely that any of the medical-vocational guidelines (the grid rules) will apply.

I would therefore analyze her case as More on What Factors Does Social Security Consider in a Diabetes Disability Case

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.

Can you SSDI benefits be seized to pay past due child support?  Yes, according to Social Security Ruling 79-4, the Social Security Administration can withhold a percentage of a claimant's benefits in an amount equal to what SSA could withhold to pay delinquent income tax debt.

No interest or penalties may be withheld, and before the first withholding may commence, SSA must give the claimant 60 days notice.

There is a question in my mind as to whether SSI benefits may be seized to pay delinquent child support.  The web site esocialsecurityappeal.com states that a "custodial parent has no right to any of the proceeds from SSI."    Tim Moore, the editor of DisabilitySecrets.com also states that SSI recipients will not have their monthly disability benefits and past due benefits seize.  According to Mr. Moore, the rationale to protect SSI from levy relates to the nature of SSI as a welfare benefit:  "since SSI is essentially a public welfare benefit and does not derive  not from a claimant's earnings record, SSI benefits cannot be taken for other purposes, just as food stamps and AFDC funds, likewise, cannot be seized." More on Social Security Disability and Child Support

Many disability claimants are not ready to give up on the idea of working.   Social Security recognizes this and offers a number of programs designed to help disabled claimants transition back into the work force.

I recently received a letter from a such a claimant.  He describes himself as a 53 year old male was was approved for SSDI as of June, 2006.  The basis of his claim is major depression.  He states that in June, 2007 he decided to try to return to work as a commissioned insurance agent.   From June of 2007 through April, 2009, he has earned $10,000 in commissions, but these commissions have not yet been distributed to him.   He states that the work effort has been very difficult and at this point he has decided to discontinue his active work as an insurance agent.

The issue facing him has to do with the $10,000.   He is concerned that if Social Security sees a $10,000 distribution, it might trigger a termination.  What should he do? More on Will a Work Attempt Cause Me to Lose My Benefits

I received a question from one of my blog readers asking about date calculations.   I wish I could tell you that understanding Social Security's date calculations and acronyms was easy but I can' t say that.  I will try to offer some explanation about this confusing area.

i got an amended date signed by the judge but the  social ser, office only went back to 2005 when i had the hearing  and not the amended date that i was told they would go too. can you help me undersatnd this date stuff.
–Sandra

My reponse: Sandra, for sake of this blog post, I am going to talk mainly about SSDI benefits.  I'll touch on SSI but I'll make SSI date calculations the subject of a later post.

So that everyone is on the same page, when I speak about SSDI, I am talking about Title II disability - the kind of disability that you receive if you have worked and paid money into the system.  In order to qualify for SSDI, you have to be "insured" and have enough credits.  I am going to assume that Sandra has enough credits and that there is no issue regarding her eligibility for SSDI.

When you apply for SSDI, you will be asked about the "onset date" for your disability.  Since you are contending that you no longer have the capacity to work, I usually find that a good onset date is the day that you left your last full time job.   You can voluntarily change your onset date - sometimes I discover that my client chose a date that was many months after he was able to work and I amend the onset date to an earlier date.   In other cases, I find that my client used an onset date that was two or three years before she stopped working - in that case I might recommend that we amend the onset date forward as it is hard to argue that my client is disabled when she was still working full time. More on Am I Getting the Right Amount of Money - Understanding Social Security's Date Calculations

what are your chances of winning a case at a hearing when there is no voc rehab guy or medical specialist to assist the alj in a decision.
–Lamont

My response: Lamont, I think that yes you can win if the judge does not use a VE or an ME.   Here is how I would analyze:

First, what is the custom in your hearing office?  In Atlanta, where I practice, all but one or two judges regularly use vocational expert witnesses.  There are a couple of judges who almost never use them.   If a judge who always uses a VE hears a case without VE testimony, it most likely means that the issue is fairly clear cut one way or the other.

In the Atlanta hearing offices, judges rarely use medical experts - in my practice I would estimate that ME's appear about 15% of the time.  The absence of an ME would be of less concern to me here in Atlanta. More on Will I Win if the Judge Does Not Use a Vocational Witness or Medical Expert?

I just got unfavorable decision for my SSI Disability and I can hardly walk or use my hands. I have RA and my doctor said I was permanently disabled. So why am I being denied?
- LaTrica

My response: LaTrica, firstly you should understand that there is an appeal you can filed to challenge the unfavorable decision.  In most jurisdictions, the appeal would be to the Appeals Council in Falls Church, Virginia.   In some limited jurisdictions the appeal would be directly to federal district court. More on Rheumatoid Arthritis Claimant Gets Denied - What Can She Do Next

I am pleased to announce that I have been asked to join the faculty of an innovative and new online learning center called Solo Practice University.    Founded by Susan Cartier Liebel, a lawyer and editor of the Build a Solo Practice blog, SPU offers lawyers training about how to go into business - something definitely not taught in law school classrooms.

Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.

Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school.

I will be teaching a class about how to set up and build a Social Security disability practice.   The doors to SPU will open on March 20, 2009 and when you enroll you will have access to practice building training in a variety of disciplines, including bankruptcy, commercial litigation, personal injury, malpractice, criminal defense, trusts and estates and more.  In addition, Susan has lined up several highly respected experts in essential practice development areas such as marketing, blogging and office technology.

If you are a new lawyer, or if you are a more seasoned lawyer contemplating starting your own practice, I can't think of a better resource to shorten the learning curve than SPU.   Over the years I have taught continuing legal education courses about Social Security and most of the questions I get have to do with the practical side of lawyering - what books or computer programs should I get?  How do I get paid?  How do I spot good cases?  SPU goes a long way in filling this gap. More on Jonathan Appointed to Faculty of Solo Practice University