November 28, 2015

Unconventional, Non-Medical Evidence That Can Help You Win

Think Outside The Box appearing behind torn brown paper.

With approval rates on the decline at hearing offices throughout the country, disability lawyers and their clients have to find creative and compelling evidence to make their cases stand out.

In my practice I regularly look for evidence beyond medical records and medical source statements. Often times you can find very convincing evidence in the form of employee files, school records, statements from former co-workers and supervisors and claimant maintained pain diaries.

Now, to be sure, judges are most concerned about your medical record and how your medical issues impact your capacity to work. However your doctor’s main concern when keeping medical records tends to focus on medical issues alone – rarely will medical records contain the specific vocational capacity observations or opinions that judges rely upon.

We can ask your doctor complete a functional capacity evaluation or narrative report (often at a cost of several hundred dollars) but some doctors do not wish to get involved in disability matters and others don’t feel equipped to make vocational capacity conclusions.

This is where unconventional evidence comes in. [Read more…]

Local TV Station Highlights Problems with Social Security Hearing Process

This is the video segment about Social Security disability delays, hosted by investigative reporter Randy Travis of Atlanta’s Fox 5 TV.   Travis highlights what most Social Security disability lawyers already know – that the judge assigned to your case could mean more than the medical records in terms of whether or not you receive benefits.

In the Atlanta downtown hearing office, there are judges who approve less than 20% of cases, and judges who approve more than 70%.   So two identical claimants – each with the exact same medical issues – would likely get different results based solely on the luck of the draw.

And you are going to wait – often two years or longer – before you even get the chance to appear before that judge.

While there are other problems with the SSD process, Mr. Travis’ report highlights two of the biggest issues – the wildly divergent approval rates by judges within the same hearing office and the outrageous delays.

Atlanta News, Weather, Traffic, and Sports | FOX 5

Hearing Strategies for Claimants with Multiple Medical Problems

multiple medical problems and social security disabilityGreg writes:  “I have seen many if not all of your YouTube videos and have to say you probably are the best disability lawyer on there. My case is rather unusual in the sense that I do not have one injury, I have three. I have a bad back, one herniated disk that causes a lot of pain for me and three bulging disks that are bad in their own right. My right hip is bad and needs replacement, I am on year 6 since it’s discovery. I also have two feet that have chronic pain from bad plantar fasciitis that have both been operated on with little to no success.”

“How on earth do I and my lawyers tackle this in a manner in which I can get approved ??? Should I have my primary doctor do a functional test on me for all three injuries or have each specialist do a functional test on each injury? Secondly is an MRI going to sway a judge more than an X-ray when these days X-ray specialists write their findings and send it to the treating doctors themselves.”

“Any advice would be much appreciated, and keep up your great work with helping us needy and injured.”

–Thanks, Greg

Greg, here are my thoughts. First, thanks for the kind words about my YouTube channel. I do put a lot of effort into creating these videos and I appreciate your positive feedback.

As far as your medical issues are concerned, I would defer to your lawyer who obviously can review and assess your medical problems. Speaking generally, however, my experience has been that it would likely be an uphill battle to base your disability case on planar faciitis since that condition is usually not totally disabling. It can eliminate categories of jobs that require more than minimal standing and walking but probably not sitting jobs. [Read more…]

How Does a Social Security Judge Decide if I have “Transferable Skills” for Grid Rule Purposes?

transferable skillsThis is a good question – the short answer is that judges will look to vocational expert witness testimony to determine whether a claimant has acquired transferable skills.

Your question got me thinking that it might be helpful to review how the grid rules work and to take my readers through a grid rule analysis, so, here you go:

The grid rules, or “medical vocational guidelines” can qualify you for Social Security disability benefits even if you have some capacity to work, but you are not likely to find work because of limited skills and a limited education.

In order to qualify for a finding of disability under the grid rules you must have exertional limitations. This means that your medical issues must impact your physical capacity. Thus, a person asserting disability based on depression, or bi-polar disorder, or schizophrenia could never qualify under the grid rules 1

You can look at the grid rules here.

The grid rules look at several factors: your age, your education, the skill level of your past work and whether or not your past work generated any transferrable skills. SSA lays out these factors in a table divided by grid lines – thus the name.

When a judge applies the grid rules he first must make a decision about your capacity for work. If you are limited to sedentary work, you are more likely to be found disabled under the grid rules than if you are limited to light or medium work.

Let’s analyze how the grid rules work in practice. [Read more…]

  1. Such a person could, however, qualify for disability based on a listing or using a functional capacity argument.

How to Explain Earnings After Your Disability Onset Date

If your earnings record shows salary earned after the date you say you became disabled, you can be sure that the judge in your Social Security disability hearing will ask for an explanation.

Example:  you say you became disabled on April 3, but your earnings record shows income in May, June and July.

In this video I explain  how I advise my clients to respond to questions about post-onset earnings in three common scenarios:

  • unsuccessful work attempts
  • accrued earnings or benefits that are paid after the last date you were physically present at work
  • part time work

No matter what the reason, always discuss with your lawyer work, work attempts or payments received after the date you claim that your disability began.

Fibromyalgia and Social Security Disability: Can You Still Win?

Social Security disability judges are increasingly reluctant to award benefits to fibromyalgia claimants unless these claims meet a certain profile.  Let me tell you about this profile – what is currently working for me in disability hearings I try here in the Atlanta area hearing offices. [Read more…]

Is it Possible to Recover Past Due Benefits for a Disabiling Condition that Began 20 Years Ago

how far back can I go to collect disabilityI recently received an email from a blog reader who tells me that she has recently been approved for SSDI based on a stroke.  However, she was diagnosed with another disabling medication condition 20 years ago but never applied.  Is there anything she can do about the older medical condition and recovering 20 years worth of past due benefits.

Here is my analysis: first, this is a difficult question to answer because I do not have all of the facts.  For example there are circumstances where an informal communication with Social Security could be considered an application.  There are also cases where even an unintentional misstatement by a Social Security employee could toll the statute of limitations.  [Read more…]

Reaction to 60 Minutes Disability Segment: Truth or Fantasy?

what is state of Social Security disability systemThis past Sunday, 60 Minutes aired a segment called Disability USA, in which correspondent Steve Kroft reported on the “alarming state of the federal disability program” which has exploded in size and is about to run out of money.  Kroft interviewed Senator Tom Coburn (who is also a medical doctor), several current and former Social Security employees and former associate attorneys for a national law firm that advertises heavily 1.

The gist of the story is that hundreds of thousands of able-bodied people have been approved for disability and are costing taxpayers millions of dollars.  Further, the story suggested that disability lawyers are culpable in the outsize growth of the disability program because they advertise heavily.  Further, there was an implication that at least some disability lawyers game the system with inappropriate and/or illegal relationships with doctors and judges.  Several of the judges and SSA employees interviewed opined that the disability program has devolved into a last resort unemployment program rather than one focused on people with serious disabilities.

I have no doubt that fair minded American taxpayers who have no experience with the disability program were and are appalled at a system which appears to be out of control and rife with fraud and manipulation. [Read more…]

  1. I have previously written and spoken about Senator Coburn’s efforts to expose fraud and inefficiency in the SSA disability program

Functional Capacity Evaluations: Helpful or Hurtful?

Social Security FCEHere is a question I received from a blog reader:

I have been told I should qualify for disability because of my permanent restrictions set by my FCE. I was put in a light category. What do you think?

Here is my response:

First, let’s clarify what a functional capacity evaluation is and why it is important to Social Security.  Functional capacity evaluations (abbreviated FCE) are a set of tests and evalautions designed to objectively determine your capacity to perform the physical demands of work 1.  A physical FCE will categorize you as:

  • able to perform heavy work
  • able to perform medium work
  • able to perform light work
  • able to perform sedentary work
  • unable to perform sedentary work

Social Security has defined each of these terms – click here for the definitions.

An FCE can be preformed by a rehabilitation supplier, a physical therapist or a physician.  A formal FCE may involve one or two days of testing along with interpretation by a trained health care provider.  An informal FCE may involve a checklist form completed by your doctor. [Read more…]

  1. Here is Wikipedia’s definition of an FCE

Stong Case Undermined by Simple Problem (Maybe)

Weakness Word on Breaking Weak Chain LinksI tried an interesting case this week that illustrates the importance of presenting a complete case to your judge.

My case involved a man in his early thirties with a significant hip problem.  He had been born with a bone deformity in his hip that was surgically repaired during his childhood and he was able to work a variety of physically demanding jobs during his 20’s.

By age 30, however, he was experiencing severe hip pain such that he could not drive a truck or perform his job.  He met with a surgeon and underwent hip replacement surgery.  I should note that surgeons rarely recommend hip replacement surgery for individuals younger than 50 because artificial hips rarely last more than 15 years and current medical technology does not allow for more than two hip replacement over one’s lifetime. [Read more…]