I recently received the following question from a blog reader who asked a very interesting question:
I just had my second hearing with administrative judge and wanted to add a very brief fact into testimony and was wondering if it is acceptable to write the judge directly. I do have a lawyer, but I am unsure that some of my letters of issues that I want to clarify are not being seen by the judge.
Here are my thoughts: first, if you have a lawyer I think that any communication from you needs to come through your lawyer. Judges generally do not accept direct communications from disability claimants – more likely than not, the judge’s office would return your submission to you, and, most likely copy your lawyer with a form letter advising you to use your lawyer to submit all documents.
Second, unless the information you want to add is extremely significant I would hesitate to try to update your hearing testimony. Social Security judges are very busy and when you try to add a document after the record has closed at your hearing, it will require someone at the hearing office to manually pull your file. This could result in a delay in the issuance of your hearing decision. Further, judges usually “close the record” after the hearing so it is doubtful that your added information would be considered anyway. You have had two hearings – I suspect that your judge has a fairly clear understanding of the facts of your case.
I would discuss with your lawyer what the best options are here. If the “very brief fact” is extremely significant and your lawyer agrees that it makes sense to try to reopen the record, then he can try to do so in a post-hearing brief or submission of evidence. On the other hand your lawyer may advise you that the hassle factor for the judge outweighs the importance of the information and he may advise you to let the matter rest while you wait for a decision.
Filed under Administrative Law Judges, Disability hearings by 
If you have received a claim denial notice from Social Security, you are familiar with the language used in these denials:
We have determined that your condition is not severe enough to be considered disabling. In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….
Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.
More on Claim Review Doctors at Social Security Overworked, Underqualified and Underpaid
Filed under Consultative Examinations, Delays, Disability Lawyers by
A federal circuit court of appeals has awarded a widow 30 years worth of past due benefits on her late husband’s claim. The case involved the claim of Dr. Richard Frusher, a Rhode Island resident who applied for benefits based on mental illness in 1975.
Social Security denied his claim in 1975 and again in 1978. Disheartened, Dr. Frusher and his family gave up.
Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits. Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970′s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him. More on Appeals Court Awards Claimant 30 Years Worth of Past Due Benefits
At some point in your Social Security disability case – usually during the initial application evaluation, but possibly later – Social Security will send you out for a “consultative examination” with one or more doctors. In my experience, the physical medicine consultative evaluations are fairly useless – Social Security tends to contract with “industrial clinics” who handle worker’s compensation claims and those reports often minimize symptoms.
Mental health evaluations, by contrast, often help your case – perhaps because psychologists and psychiatrists are generally not biased from being part of an adversarial workers’ compensation system and because mental health professionals often see a need for on-going therapy for many that they see. To put this another way, physical medicine doctors face insurance company pressure and financial incentive to fix a problem as fast as possible, whereas mental health professionals are not looking for a “cure” as much as they are looking for gradual improvement over time, and thus on-going visits.
I have read literally thousands of physical and mental health consultative examination reports and as a rule the mental health evaluation reports usually offer some help, while the physical medicine reports either hurt my client’s case or offer no conclusions at all.
You may be wondering why you are being scheduled for either a physical, a mental evaluation or both? The Social Security law requires the Commissioner of Social Security (and by extension, the employees of the agency) to help “develop” your medical record. Consultative evaluations, therefore, would satisfy SSA’s statutory requirement even when considering the claims of applicants who have little or no medical treatment (due to lack of money or other causes). More on Why does Social Security Want You to See a Psychiatrist if You Have a Physical Injury?
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For as long as I have been in practice, I have advised my clients that if they received an unfavorable hearing decision, they could file an appeal with the Appeals Council and, at the same time, file a new claim for benefits.
As of July 28, 2011, this “double filing” option is no longer available.
SSA has issued a “ruling” called SSR 11-1p which says in part:
Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.
Social Security concluded that this new rule was needed because of the administrative complications of coordinating appeals with new claims. More on If You Appeal an Unfavorable Hearing Decision, You Can No Longer File a New Claim as Well
Filed under Delays, Disability hearings by
My colleague (and fellow Tulane Law School alumni!) Gordon Gates, a Social Security disability lawyer who practices in Maine and New Hampshire, recently wrote me to let me know about a free e-book that he has generously made available to you on his website. Entitled “Ten Steps to Prepare for Your Social Security Disability Hearing,” this booklet is both an easy read and a valuable reminder about specific things you can do to improve your chances of winning a favorable decision.
Because the disability decision making process can take so long – 1 to 2 years in most places – it can be easy to forget what your lawyer may have advised you in a meeting 6 or 8 months ago. Gordon’s book remedies this problem by setting out clearly and concisely 10 essential reminders about what you should keep in mind.
In my Atlanta law practice, I usually communicate with my clients by email more so than by phone and I have been sending out the link to Gordon’s free download on a regular basis.
Obviously, no book, no matter how good, will substitute for a supporting treating doctor and hundreds of pages of strong medical records. However, if you and your attorney follow the advice set out in this helpful little book, you will greatly reduce your chances of being unprepared when you finally get your hearing date. Again, the download is free and you will find the information contained within very useful.
Filed under Disability hearings, Internet disability resources by
I regularly get phone calls or emails from potential clients who tell me that they “want to apply for SSI.” In some respects “filing for SSI” has become a shorthand phrase for someone who wants to file for disability, but, in truth, there is a huge difference between SSI and SSDI.
SSDI stands for “Social Security Disability Insurance” and refers to benefits payable to claimants who have enough credit hours to be considered “insured” for disability. The monthly payment is a function of what you have paid in to the system. In my practice the average SSDI monthly payment is around $1,50o.
SSI stands for “Supplemental Security Income” and refers to welfare benefits payable to claimants who do not have enough credits to be insured for disability. The maximum monthly payment is set out in the law – and for 2011 is $674 per month for an individual.
Last week, for example, I received a long email from a concerned woman who was writing on behalf of her father. Apparently, her father had worked at a very physical job for over 20 years before suffering a stroke in 2002. This gentleman filed for Social Security disability in 2002 and was denied at a hearing, which I will assume was held at some point in 2003.
After being denied, this gentleman did not file anything else. He remained at home, unable to work because of the ongoing complications from the stroke as well as depression and anxiety. More on SSI is Different than SSDI
Filed under SSI issues, Starting the disability process by
In my law practice, I handle both Social Security disability cases and consumer bankruptcy matters. As such, I regularly get calls from other attorneys and potential clients about issues where these two practice areas overlap.
One of the most common questions I get has to do with the question of whether a Social Security disability overpayment may be discharged in a bankruptcy. Overpayments occur when disability claimants continue to receive benefits even when they have returned to work or are otherwise not eligible for payment.
Often, the person receiving the payment does not know that he/she is not eligible. Social Security has a number of programs designed to encourage disabled claimants to return to work, and most of these programs provide for several months of continuing disability payments while a claimant tries to return to work. More on Can I Discharge my Social Security Disability Overpayment in a Bankruptcy?
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My colleague, San Francisco California Social Security disability attorney Geri Kahn, publishes an interesting and thoughtful Social Security disability blog that I read regularly. This past April, she published a post that should be required reading for all disability applicants. Entitled “Four Misconceptions About the Social Security System,” Geri succinctly discusses several issues that lead to a great deal of frustration for both claimants and their attorneys.
One of the points Geri discusses really resonates with me. She answers the question “I have back pain and cannot work so why do you recommend that I see a psychiatrist?”
Great question.
For years, my practice has been to add an allegation of depression and/or anxiety to every Social Security appeal I file. In my view it would be extraordinary if anyone with a history of regular work would not be depressed and anxious if he/she:
- no longer has a regular work routine
- experiences financial pressure because of lack of income
- feels a sense of worthlessness because he/she can no longer contribute (this is especially true for men)
- recognizes that he/she will not be able to engage in social, athletic and recreational activities at pre-impairment levels
- has to deal with stress and anxiety inherent to anyone with chronic pain
- has to deal with disrupted and sometimes damaged family relationships
- has to deal with physical and emotional changes associated with strong pain medications
- experiences new medical issues associated with his/her chronic medical condition (i.e., obesity, constipation, high cholesterol, etc.)
As a disability claimant, you may not even realize the impact your back condition has had on your life. As attorneys, we look at you as a whole person to understand more fully why you can no longer work. Not only will such a more expansive view of your damaged health benefit your case, it may help you better understand what you are going through as well.
Filed under Back problems and disability, Strategies for winning by
With disability claims taking 2 to 3 years to wind through the disability adjudication system, I often get the question from my clients “is it okay if I try to work” or “is it okay if I work part time?” Generally my answer to this question involves an explanation that in my view, Social Security decision maker (judges and adjudicators) tend to see work in black and white terms. If you try to work and fail within about 3 months (this is called an “unsuccessful work attempt”), your effort can be helpful evidence to show that you are motivated but unable to perform. If your attempt lasts longer than 3 months or if you work a part time job ongoing, then your work efforts will generally hurt your disability claim.
What about work efforts after winning your disability case? Generally you will earn more money and be more fulfilled as a person if you can work, as opposed to sitting at home collecting disability benefits. Obviously, Social Security would prefer that you leave the rolls of disability claimants, and statistically, 90% of disability recipients would like to go back to work (although less than 1% actually do, perhaps because they do not know how). So what are the rules?
I have set out the specifics about returning to work after being approved for disability on a special topic page on this site. Click on the link to learn more about this.
You may not be aware, however, that Social Security has several programs available to you that help you try to return to work without penalizing you for trying. Perhaps the most developed program in this regard is called the “Ticket to Work.”
My colleague, Chicago Social Security disability attorney Aaron Rifkind, has written a clear and informative article about the Ticket to Work program. Aaron also publishes an excellent Social Security disability blog, which I read regularly. As Aaron notes, the Ticket to Work program is: More on Working After Being Awarded Disability – What is the “Ticket to Work?”
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