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Ginsberg Law Offices

Month: May 2008

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 Graduate Student Work Stipend Cause Paraplegic to Lose SSDI Benefits?

My April 26, 2008 post about attending college and applying for Social Security disability generated a large number of emails and questions.  A reader sent me this question which is about the impact of a stipend and part time job on an SSDI recipient who has already been deemed disabled.

I recently was injured and now am a paraplegic.  Before my injury I was an airline pilot but can no longer fly because of my disability.  I am returning to school to learn a new profession.  My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?”  Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week.  It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties.  I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit.  Any information would be greatly appreciated.

Here are my thoughts:  as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00).  At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity.  It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case.  If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity.  If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity –  it would be difficult to argue otherwise.  So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this.  Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI.   If you earn less than $670 per month, no problem.  If you earn more than $670 in a given month, that month counts as a "trial work period."  You still get your regular benefit check, but you use up one of your 9 trial work period months.  You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems.  SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review. 

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