July 28, 2014

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability.  What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony.

In other cases, a claimant may choose an onset date going back 5 or more years, sometimes long before that claimant stopped working.  In these cases I recommend to my client that we amend the onset date proactively, at the beginning of the hearing or in a written pre-hearing memo.  I believe that judges appreciate attorneys and claimants who are prepared to narrow the issues and to avoid wasting time.

If the judge was to randomly select another date, such as July 27, the Appeals Council could reverse the decision on the basis of an absence of evidence.  Unfortunately, for some judges a claimant’s testimony is not enough if there is no other evidence supporting that testimony.

More and more often, I am seeing Social Security judges proposing an amended onset date during a hearing.  In such a situation, I will ask to step outside with my client to discuss.  Usually, I can predict when this type of thing may happen and I will discuss a possible onset date change with my client during out pre-hearing conference.

Whenever I sense that a judge wants to amend the onset date, I will take a close look at the exhibit file to identify my client’s “date last insured” (also called his DLI).  The DLI represents that last date that a claimant is insured for Title II disability purposes.  If the onset date is changed to some date after the DLI, then that claimant would not be eligible for SSDI benefits.   SSDI insurance requires (in most cases) work for 5 out of the 10 years prior to onset.  As such, coverage usually extends about 5 years after you stop working.  In any case, SSA calculates the DLI and includes this date in the Exhibit file.

If the judge proposes an amended onset date to some date after the DLI, I will usually not recommend that my client accept the proposed amended onset date, even though I know that by refusing the judge’s offer, the case will most likely be denied and we will have to deal with the Appeals Council.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. Recently the judge did change my onset date and I lost 3 years of backpay, but I wasn’t given an actual date as to when payments would start, so it seems like although I got the disability I have nothing to show for it.

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