April 24, 2014

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...]

Social Security Disability Again the Subject of Congressional Inquiry

Social Security disability costs too highCBS News reports this morning that the House Oversight and Government Reform Committee will begin hearings on Thursday, June 27 about the role of administrative law judges in awarding benefits.

Critics of the current disability system point to SSA’s own statistics which show that judges currently approve slightly more than half of the claims brought before them (this is down from a 60% approval rate in 2010).  Claims approved at hearings were previously rejected twice by state employees called adjudicators.

Critics also claim that too many judges are approving undeserving cases simply to clear out growing backlogs – the judges complain of quotas – which may delay a hearing date for longer than 12 months.

Others contend that long term unemployed workers claim disability when their unemployment benefits run out 1 [Read more...]

  1. This was the premise of a controversial NPR report entitled Unfit for Work: the Startling Rise of Disability in America – see my video about this story here.

How do I Win for a Medical Condition that Cannot be Seen on a Diagnostic Test

fibromyalgia difficult to diagnoseI get a lot of questions about fibromyalgia and other medical conditions that rely on subjective reporting by patients.  These cases are definitely getting more difficult to win.  Here is a question sent to me by a blog reader that describes an increasingly typical situation:

I'm 41 yrs old and have been suffering for many years with narcolepsy and fibromyalgia.  My sleep disorder actually falls between narcolepsy and idiopathic hypersomnolence.  My family and myself are falling apart because of my disabilities. I've applied for disability in the past and was denied. I'm applying again and wanting to ask you how do i go about applying to prove my disability since its been denied in the past?  How much weight does testimonials from family and friends carry?  How much weight does a signed letter from my doctor saying, i can't work/drive its unsafe, carry?

I am not surprised that you have had a difficult time with Social Security.  As you probably know, Social Security defines disability in terms of your capacity to work a simple, entry-level type of job.  Basically you have to prove that the symptoms of your medical condition or conditions are so intrusive, that you cannot work at any job, full time.

As the person claiming disability you have to prove that you are unable to work – you do this by submitting medical records, and, even better, a functional capacity form completed by your doctor that identifies specific activity limitations.

[Read more...]

SSDI Claimants Can Expect to be Asked About Unemployment Benefits

tough ALJ questionsOver the past several months, I have noted that my SSDI clients are regularly being asked by judges if they have filed for unemployment benefits.  This question used to come up occasionally in the past, but now my clients are almost always asked if they have filed or are receiving unemployment.

The issue is this: when you file for state unemployment, you must assert that you are ready, willing and able to work.  In the past, I would counsel my client to answer the judge’s question by stating that “I am willing and anxious to try to work and I would put forward my best effort to perform any job.  I don’t know if my medical condition would allow me to perform reliably but I would certainly try.”

Given that Social Security’s stated policy is to encourage people with disabilities to return to work, I do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.

However, as is the case with part time work, Social Security tends to view things in an “either-or” fashion.  You are disabled or you are not, and there seems to be no middle ground. [Read more...]

Use a Cane? Get a Prescription

walking cane and SSDIThis year, I have represented three clients who use a cane either all of the time or most of the time but whose use of this assistive device was discounted by the judge because the cane was not prescribed by a physician.

The issue in your Social Security disability case is whether you can perform even a simple, entry-level type of job.  Our goal, therefore, involves identifying specific limitations that would impact your ability to perform work.

If you cannot walk without a cane or walker, it stands to reason that you would not be able to perform jobs requiring:

  • more than very occasional standing
  • more than occasional walking
  • balancing
  • climbing ladders, ropes or scaffolds
  • kneeling, bending and stooping
  • crouching and crawling

Further your need for a walking cane would support allegations of pain and other activity limitations (such as lifting and carrying) associated with back or knee injuries.

In short, if the judge accepts that you need a cane to walk, he will eliminate from consideration all jobs except sedentary (sit down) types of jobs.

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Why Do Social Security Judges Call Vocational Expert Witnesses to Testify at Social Security Hearings?

vocational expertIn most Social Security disability hearings, judges call on expert witnesses called “vocational experts” to help them evaluate your capacity for working.  As a general rule,  Social Security defines “disability” in terms of a claimant’s ability to perform the tasks of a simple, entry level job, therefore it makes sense that the judge will need to identify the specific activity limitations that arise from your medical and/or psychological problems and he will need a way to determine if these limitations impact your capacity for work.

Judges make this evaluation by posing “hypothetical questions” to the vocational expert witness.  A typical question may sound something like this:

Mr. Vocational Expert, I want you to assume the following about a hypothetical person who is the same age as our claimant, with the same educational background and the same work history.  This person is limited to light work with the following limitations:

  • he can sit for 45 minutes at a time, then needs to stand and stretch for up to 10 minutes
  • he can sit for a total of 2 hours during a day
  • he can stand for 6 out of 8 hours during a day but should have the ability to change position at will [Read more...]