As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?

This question concerns itself with your capacity to perform work or work-like activities.  Other factors like the job prospects in your town, your transportation issues, etc. are not relevant.  As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

Far too often, disability claimants hurt their chances greatly by giving the "wrong" answer to this ultimate question.   In a future post I'll print out some examples of "good" answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers.   As a claimant you must take the time to understand how the disability process works and what the judge needs to hear.   If you get the answer to this "ultimate" question wrong, you will not be approved.

Here are Stan's Five "Case Killers," in no particular order:

Top Five Bad Answers to Question: WHY CAN'T YOU WORK?

In no particular order of "badness", here are the top five"case killing" responses to the Administrative Law Judge Question: "Why can't you work?"

2. "My long-term disability insurance company told me to file for social security disability"

This can be an easy mistake to make. Again, the ALJ wantsto know why you think you cannot work. Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company. Read more on The WRONG Answers to the Question: "Why Can't You Work"…

I invite you to visit my Georgia Social Security disability web site to read my latest heart disease disability case study report about a case I tried last week on behalf of a client with a longstanding cardiac disease complicated by decreased kidney function and diabetes.  Like many of the cardiac disease cases that I try, there were three viable theories of disability that could apply: (1) a listing argument; (2) a functional capacity argument and (3) a grid rule argument.

Read more on Heart Disease Case Study Posted…

There is no such thing as the "perfect" case.  Even the most deserving claimants may end up with a doctor who they don't like or with whom they do not get along.  This is especially true in "pain" cases when narcotic medicines may be prescribed.  There are also doctors out there who do not believe in the concept of disability – as far as they are concerned no one is fully disabled and these doctors will not cooperate with a Social Security claimant at all (needless to say, it is helpful if you discover this trait in your treating doctors early enough in your case to find another doctor!).

What about unhelpful medical records?  I see this frequently in cases where there was a workers' compensation case.  "Company doctors" often minimize symptoms and generate records indicating that a claimant has the capacity to return to work.   Other times I see unhelpful records in cases where my client just did not "click" with his or her physician or psychiatrist.

One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:

I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. Read more on Are Claimants Required to Submit Unhelpful Medical Records…

I was reading this morning's paper and I saw in the obituary section that retired Social Security judge Albert Feldman passed away this past Wednesday, July 22, 2009.   With your indulgence I would like to take a break from my usual blog posts – that speak about case strategies, changes in the law, etc. to reflect on the influence that this kind, compassionate and extraordinary man had on me, and I suspect many others.

Although my relationship with Judge Feldman lasted for only about 10 years and solely in the context of Social Security hearings, it was not difficult to sense immediately what type of person he was.  To claimants he was, without exception, polite and respectful.  Although I am sure that there must have been times when he would look at a file and recognize immediately that the claimant before him did not qualify for benefits, he was always willing to listen and give every one that appeared before him his or her day in court.

I remember one case in particular – I had a client who had been diagnosed with HIV, who, at the time of the hearing, was suffering debilitating symptoms of full blown AIDS.  Unfortunately, my client's date last insured for Title II disability had run some five years previously and the medical and other evidence clearly indicated that this gentleman did not meet the requirements of disability at that time.   Social Security hearings provide for direct questioning by a judge to the claimant and that day Judge Feldman spent about 20 minutes talking to my client, patiently explaining to him why he did not qualify for Title II disability, and offering suggestions about community resources that might be avialable to him.  At one point the claimant needed a recess to go to the bathroom.   Judge Feldman could have ended the hearing right then and there as he had enough information to render a decision but instead he waited for the claimant to return to continue the hearing.

I remember thinking then, as I reflect now, how compassionate that gesture was.   The judge sensed (correctly) that my client had only months to live and that he deserved the dignity of being heard.   My client, emaciated, with skin lesions and a hacking cough, most likely did not get the time of day from most people.  But here was a federal administrative law judge, struggling with a busy schedule, who took a few minutes extra out of his day to look my client in the eye – human to human – and express empathy and listen to him.  This was the man that was Albert Feldman. Read more on R.I.P. Judge Albert Feldman…

I recently ran across a very timely post on Jim Reed's New York Injury Law blog entitled "When Facebook Isn't a Friend to Your Personal Injury Case."   Jim correctly points out that the default privacy setting on Facebook is essentially "no privacy" meaning that anyone in your geographic area can view your profile, your photos and comments made by and about you.

What does this have to do with your Social Security disability case?

First, remember that the main issue in most Social Security cases is whether you have the capacity to perform simple, entry level, low-stress, sit-down type of work.  Now, take a look at your Facebook profile.   Does it contain photos of you dancing at a wedding, or on the beach?  Are there comments from friends chatting about that family get-together or class reunion?

Some of my disability clients "friend" me and I always find it interesting to look at their profiles.   I am looking at one such profile right now and it reads as follows: Read more on Can Your Facebook Profile Hurt Your Social Security Disability Case…

Back in August, 2007, I wrote a blog post entitled "How Long Do I Have to Wait for my Hearing Decision."   Back then I reported that in most cases, a claimant would have to wait two to three months for a hearing decision.

Fast forward to 2009.  That two to three month period is now four to six months.  Here's why:  about 18 months ago, the Social Security Administration convinced Congress to allocate more money to hire new administrative law judges, and SSA immediately hired around 100 new judges.  At the same time, Social Security put into process its conversion from paper files to electronic files and they created the infrastructure to provide for video hearings.

In Atlanta, where I practice, SSA created a video hearing ODAR office in Marietta, Georgia with three hearing rooms available to handle video hearings.

The good news – Social Security is now equipped to offer claimants administrative hearings.  The bad news:  the hearing offices often do not have enough support staff to process all of the decisions being issued by new judges and judges appearing by video. Read more on I Have to Wait How Long for my Hearing Decision?…

what are your chances of winning a case at a hearing when there is no voc rehab guy or medical specialist to assist the alj in a decision.
–Lamont

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. Read more on Will I Win if the Judge Does Not Use a Vocational Witness or Medical Expert?…

The first few weeks of 2009 have been extremely busy for me.  I have been appearing at 5 or more hearings just about every week this year.  I am trying to manage my caseload by submitting on-the-record requests in as many cases as I can.

Read more on Sample On-the-Record Argument Available for Your Review…

"Do I have a good case?"  Inevitably I hear this question from every client I meet.  I hear it again during my pre-hearing conference and I hear it again immediately after the hearing.

If you have been waiting for disability benefits for 2+ years, you don't care about statistics, about Social Security's re-engineering, new Judges, processes to eliminate backlogs or anything other than whether you won.  And I would consider you perfectly reasonable to take this stance.

At the end of the day, however, I am not the one who makes the decision in your hearing.  My job is to identify the best argument supporting your claim for disability and to ask you the right questions to present that argument to the judge.  Beyond that, you can only hope that your judge is rational, reasonable and that he takes the time to listen to you. Read more on Lack of Consistency Among Social Security Judges a Problem…