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.

I think you need to find out whether the absence of a VE or ME is unusual in your jurisdiction.   What does your lawyer say?

I also think that an unfavorable decision issued without the testimony of a VE and/or ME should be looked at carefully by an appellate specialist.  Since disability hinges on vocational capacity I am of the opinion that an unfavorable decision issued without VE testimony may give you an appeal angle.

Post from: Social Security Disability Blog

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.

Either way, you should speak with your attorney about filing the appropriate appeal.  Your appeal needs to be filed within 60 days, so don't delay.   You should also speak with your attorney about filing a new claim for benefits.

Appellate work and new filing strategies should not be pursued without the aid of an attorney.   With regard to the appeal, there are some lawyers who specialize in post-ALJ hearing appellate work.   If your lawyer does not regularly handle appeals, you should ask for a referral.  Whatever you do, don't wait until the last minute.

As far as why your case was denied, there could be many reasons that your judge relied upon:

• did you have a definitive diagnosis of RA from a rheumatologist, or did your internist or an emergency room physician suggest that you might have RA?
• is there evidence of substance abuse that served as a "material contributing factor" to your inability to work?
• was the judge arbitrary and unreasonable?
• are there medical reports in your file that suggest you are a malingerer, a drug seeker, or that you are exaggerating your limitations?
• did your lawyer fail to develop testimony that painted a true picture of your limitations?
• was there a lack of convincing support from your treating doctors?

Every case has some strengths and some weaknesses.   The judge is supposed to set out clearly his reasons for turning you down.   A good appellate lawyer will identify weaknesses in the judge's reasoning and find an angle to attack the logic of the decision.

I can only imagine how frustrating it must be to receive an unfavorable decision when your medical condition truly limits your ability to function.  Best of luck to you.

Post from: Social Security Disability Blog

Rheumatoid Arthritis Claimant Gets Denied – What Can She Do Next

This morning I received a slightly different question about attorneys, which I will reproduce here:

I hired a law firm to help me with my disability appeal. I am at the ALJ stage and needed help filing that appeal, representing me at the hearing. It is going on 3-4 weeks of talking with the lawyers clerk about filing for me. They say they filed one day, then the next say they are going to be filing, this has gone on 4 times now. Although I have not talked to the actual attorney that will be representing me, I don't mind as long as the person I do talk to knows what they are doing and are truthful about it. What advice can you give me to handle this situation? Should I fire this firm and find another? I appreciate your suggestions, thoughts, advice.

Thanks,
Leighann

My response: Leighann's question raises a somewhat different issue than delays.  Here, the problem is lack of communication.  Since short (60 day) deadlines are involved, I think that Leighann has the right to be concerened about missing the deadline.

Bear in mind that not missing deadlines is topic #1 in any malpractice or lawyer discipline seminar.  Every law firm should have a solid calendaring system to insure that no deadlines are missed.

Given the run-around that Leighann has been getting, it may be time for becoming a bit more forceful in her communications.  I would advise her to get the name of the paralegal who is assisting her, then write a letter to the paralegal, with a copy to the lawyer who is the actual representative.  The letter should express her concerns (like she did in her email to me) and ask for a copy of the filed appeal paperwork.   Both copies of this letter should be sent by registered mail, return receipt requested.

I don't know the law firm at issue, but if they handle Social Security cases regularly, I would be surprised if they did not have the appeal deadlines of their cases under control.  However, nothing gets the attention of a lawyer like a registered letter from a client inquring about possible missed deadlines.

Post from: Social Security Disability Blog

What to do if You are Getting the Run-around from your Lawyer's Office

I don't deal a lot with SSI issues on this blog mainly because I don't take a lot of SSI cases.  If you do not know, there are a number of disability programs adminstered by Social Security – Title II Social Security Disability (also called SSDI) is one program, and Title XVI Supplemental Security Income (SSI) is the other.

SSDI pays benefits to claimants who are disabled and who have a qualifying earnings record.  To oversimplify, you qualify for SSDI if you have worked for five out of the last ten years.  There are exceptions to this general rule, but basically SSDI applies if you have worked and paid enough Social Security taxes to be "insured" for the SSDI program.

SSI, by contrast, pays benefits to claimants who are disabled but do not have sufficient earnings or assets to qualify for SSDI.  An SSI claimant can be a disabled child, a 20 year old with a serious medical problem and minimal work experience, or a 50 year old housewife who worked for 15 year back in the 1970's and 80's but has not worked at all in the last 10 years.

Up until last year, I rarely took SSI cases because Social Security would not withhold attorney's fees on past due benefits.  Unfortunately, when did take SSI cases, we would win, and the claimant would get a lump sum check, but would not pay me the 25% owed.  As I got busier, I made the decision not to take SSI cases because they were not worth the risk.

Last year, Social Security finally corrected this glitch in the payment process and now they do issue direct payments to attorneys.  However, I am still very careful about taking SSI cases because of the offsets involved.

As noted above, SSI claims are only payable to claimants with limited assets and income.  Social Security will count as income something called "in kind" services, which can be room and board, welfare payments, or support from family.  Also SSI will reduce your benefits if you are living in a household with a spouse or family member who works.  That is why the 50 year old married housewife who lives with her employed husband may qualify medically, but will not recover any benefits because of the "deeming" of household income.

Obviously, SSI claimants have to live somewhere and they need funds for food and transportation as well.   Therefore, in many cases there is an offset of benefits.  Since SSI benefits are set by law and the maximum monthly SSI benefit (for 2008) is $637, it doesn't take too much in kind support or deeming to reduce that benefit down to nothing.  As a matter of business, I just can't take on cases where I work for 2 to 3 years, appear at a hearing and expend hours of my time and paralegal time, only to end up with $400 or $500 or, in some cases, nothing.

With that background stated, let me address Elana's question, which is:

I have a gentleman that lives with daughter and pays $500.00 for rent which he reported to SS. His daughter was asked to complete a form which asked the market value of room.  She put $1,000.00 market rent.  Now SSI benefits were reduced by the value of the $500.00 as income to the man.  How can he correct this.  I thought of obtaining an appraisal by a Real Estate Agent of the rental market value of the room.  If less than $1,000.00 submit this document to SS along with the request for reconsideration.  Do you think this would work?  Do you have any other suggestions to try to correct the market value of the room? I appreciate your input.  Thank you.

Here is my response: In this situation, the claimant is dealing with an offset of his benefits.  Based on the information that the claimant's daughter provided, she is "giving" her father $500 of value in the form of room and board.  Social Security is reducing his benefit by that in kind support.  Assuming that the father is getting the maximum $637 from SSI, the $500 reduction leaves him with only $137 per month to live on.

Now, the father and daughter need to argue to Social Security that the actual market value of the father's room is something less than $500.

I think that Elana is on the right track regarding what to do.  I would gather documentation from local real estate professionals.  This could take the form of a notarized statement, or documentation of comperable rental units in the area.

The father needs to look carefully at the documentation he has received from SSI.  I believe that when SSI computes an offset they provide written notice.  He needs to see if that written notice provides for any appeal rights or deadlines.

In any case, I would contact the local SSI office and ask to speak to a supervisor to discuss correcting this error.  Hopefully SSI will be cooperative.  If not, you may need to file for reconsideration of the deduction – my only question is whether the father has missed any applicable deadlines to do so.

Post from: Social Security Disability Blog

Correcting a Rent Offset in an SSI Claim

Jonathan Ginsberg responds: As a disability claimant, you have the right to terminate the representation of your attorney.  The attorney doesn't need any special form to withdraw from representation – all he needs to do is write a letter to Social Security advising them that his attorney relationship with you has ended.   I do not practice in North Carolina but I suspect that under the Bar rules there, your lawyer has an affirmative obligation to withdraw if you have terminated him.  In order to avoid confusion, you should send your lawyer a letter using certified mail, return receipt requested, asking him to notify Social Security that he is no longer your representative.

I would also suggest that you look carefully at the fee contract you signed with your lawyer.  Often the standard fee agreement used by most disability lawyers also allows the lawyer to ask Social Security to approve a fee based on time expended.  Further, be aware that if "Lawyer 1" has filed a form 1696 Appointmetn of Representative, any subsequent lawyer you hire – "Lawyer 2" – will need to file a fee petition setting out exactly what he did and how much time he spent.  The fee petition process is much more time consuming and intrusive than the simple 25% fee agreement system.  I mention this because some lawyers will not take a case if a prior lawyer withdrew and will not waive fees.

Finally, make sure that there is no confusion as to who has the duty to file appeals or respond to communication from the Appeals Council.  You do not want to miss an appeal or file double appeals forms because this issue was not cleared up.

It is unfortunate that your relationship with your lawyer deteriorated.  It is much easier to part ways on a friendly basis.  At this point, however, you may best be served by communicating with your lawyer in writing only and by spending a few extra dollars on certified mail.

Post from: Social Security Disability Blog

How Do I Fire my Disability Lawyer?

Jonathan Ginsberg responds:  D, there is no simple answer to your question.  It appears that you have two claims in process – an appeal to the Appeals Council (the Appeals Council is located in Falls Church, VA, which is what I assume you mean by "the Hearing Stage in Virginia") and a 2006 claim filed in Georgia, where you now live.

Claim #1 will cover the time period from alleged onset through the date of the first administrative law judge hearing and Claim #2 will cover the time period from the day after your administrative law judge hearing and on-going.

Here are a couple of observations:

1)  Social Security claims take a long time.  The two Atlanta hearing offices are the slowest in the country – it can take two years or longer between the time you request a hearing and the time a hearing is scheduled.  Your attorney has no control over this.  It is not fair, it is not right, but this the current situation in the Social Security Administration.

Let me also say that there is an effort by SSA to deal with these delays – they are increasingly using video hearings from a National Hearing Center to reduce the backlog – see this press release from SSA.

2) With regard to the case at the Appeals Council.  If you have a case at the Appeals Council or in Federal Court, expect to wait and wait and wait.  You could be looking at five years or longer.  Recognize that at the Appeals Counsel or federal court, the judges are looking at possible errors of law or analysis by the hearing judge.  Appellate judge rarely substitute their decision for the decision of the ALJ.  Instead, they are looking for situations where the hearing judge used the wrong standard or the wrong analysis.  Usually a successful appeal concludes with the appellate judge sending the case back to the ALJ for a new hearing to be decided under the correct standard.

3) My guess is that your claim #2 will be decided much sooner than claim #1 and that any money to be paid will be paid in claim #2 long before payment in claim #1.

Post from: Social Security Disability Blog

Two Disability Claims Pending and Nothing is Happening – What Can I Do?

Jonathan Ginsberg responds: Jim, I believe that the trial work period starts as of your onset date.  The 5 month waiting period only has to do with payments.  I wrote about trial work periods on a fixed page on this blog – take a look by clicking on the link.

You should also speak with your lawyer about whether to appeal the decision.  If the judge stated on the record that he identified a closed period, and you start working, you may find yourself with a continuing disability review or an action to terminate benefits.

You only have 60 days to appeal a decision and you could lose your right to the closed period lump sum if you do not appeal.  Maybe it makes sense to appeal and maybe not.  I just think you need counsel about this issue and that you need to be proactive.

Post from: Social Security Disability Blog

Does Trial Work Period Start as of Onset Date or After Expiration of 5 Month Waiting Period?

Jonathan Ginsberg responds:  Barbara, at the very least it would appear that there was a lack of communication between you and your lawyer.  As you know, Social Security gives you only sixty days to file an appeal after the date on your denial notice.  You have also learned from this experience that lawyers do not have to go through any formal process to withdraw from representation.  Unlike state or federal court, where a lawyer has to file a motion to withdraw, a Social Security lawyer need only send you a letter and send the Social Security Administration a letter and his representation is over.

In your situation you might want to file the appeal anyway and ask that it be accepted for "good cause."  Include a letter with your appeal stating that there was a communication mix-up with your lawyer and request that your late filed claim be accepted.  At the same time go ahead and start a new application.

For others reading this, take heed that you should ask your lawyer to send you a copy of any appeals filed so that you will know what is going on.  Further, keep track of your appeal deadlines.  If you don't have a copy of a filed appeal in hand as you approach the appeal deadline, and you can't get hold of your lawyer or someone in his office, go ahead and file your own appeal paperwork – if you lawyer is not communicating with you he will have to straighten out any duplicate filings.

Post from: Social Security Disability Blog

Lawyer Claims He Withdrew But I Did not Know About it and Missed a Deadline

However they moved my onset date to Jan. 1 2006 and did not explain why. I had worked the first 3 months of the 05 and made about 26,000 dollars. When I applied thru the Hospital that took care of me, they also applied  for Medicade and SSI.

Now I cannot get an answer from the SSI people if they are going to pay me for the months of Jan-May '05. It seems to me to be ploy to keep me from appealing the AJL decision until the 60days are over and then deny me the SSI benefits. Can you give me your 2cents worth on what you have seen the SSA do to people in this situation?

–Bob

Jonathan Ginsberg responds:  Bob, a couple of thoughts occur to me.  First, when you say that someone at the hearing office changed your onset date, you need to make sure that you are not confusing the "five month waiting period" with a changed onset date.  In a Title II disability case, you do not get paid for the first five full months of disability.  In your case, if the onset was May 5, then you would not get paid DIB benefits for the remainder of May, June, July, August, September, or October of 2005.   Your first check would be for November, 2005.

If your onset was moved to January 1, 2006, then you would not get paid until June, 2006 as the five month waiting period would start in January.

A claimant can, by the way, get paid SSI during that five month waiting period – although, remember, SSI is an income and resource dependent program – if your spouse works or if you have any sort of significant resource, you may not be eligible for SSI at all.

Let's assume that someone in the AJL's office identified this case as an on-the-record candidate and did, in fact, change your onset date from May 5, 2005 to January 1, 2006.  Often this happens because the staff attorney at the ODAR (Office of Disability and Review) did not see specific evidence in your record that your condition was "disabling" until January 1, 2006.  Some judges (and by association their staff) will not assume anything into a record.  Logically, if a person has a third heart attack, a reasonable person would assume that the patient was not particularly healthy between the time of heart attack #1 and #3.  However, if the medical record does not specifically talk about activity limitations until the time of #3, then some judges will conclude that the patient's condition did not get really bad until heart attack #3.  It is silly and ridiculous, but it happens.

You can appeal a favorable decision but the risk is that a hearing judge might reverse the decision entirely.  Obviously, if you do appeal, you will want to get a narrative report or a form filled out by one or more treating doctors to support your May 5 onset date.

By accepting the amended onset date, you are giving up six months of benefits.   You have to decide if the risk of an outright reversal and the time and energy investment is worth the risk.  Generally I am not inclined to appeal a partially favorable decision but I have had clients do so.

Post from: Social Security Disability Blog

Claim Approved "On the Record" With Amended Onset Date – Should I Appeal the Changed Onset?