May 26, 2013

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

November 9, 2012 by 7 Comments

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...]

Filed Under: Administrative Law Judges, Fibromyalgia and disability, Strategies for winning Tagged With: , ,

SSDI Claimants Can Expect to be Asked About Unemployment Benefits

July 9, 2012 by 9 Comments

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...]

Filed Under: Administrative Law Judges, Disability hearings, Strategies for winning Tagged With:

Use a Cane? Get a Prescription

June 1, 2012 by Leave a Comment

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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Filed Under: Administrative Law Judges, Disability hearings, Grid rules, Strategies for winning Tagged With: ,

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

April 12, 2012 by 4 Comments

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...]
Filed Under: Administrative Law Judges, Disability hearings, Vocational Experts Tagged With: ,

Will Filing for Unemployment Hurt Your Social Security Disability Case?

February 4, 2012 by 3 Comments

unemployment and social security disabilityIn my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability.  On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be  “unable to engage in substantial activity?”

Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt. [Read more...]

Filed Under: Administrative Law Judges, Depression and disability, Disability hearings, Returning to work, Work attempts Tagged With: ,

How do You Contact the Judge to Update Your Hearing Testimony?

December 8, 2011 by Leave a Comment

I recently received the following question from a blog reader who asked a very interesting question:

I just had my second hearing with administrative judge and wanted to add a very brief fact into testimony and was wondering if it is acceptable to write the judge directly.   I do have a lawyer, but I am unsure that some of my letters of issues that I want to clarify are not being seen by the judge.

 

writing the judge after hearing
by ProgressOhio under CC BY  with wpseopix.com

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Here are my thoughts:  first, if you have a lawyer I think that any communication from you needs to come through your lawyer.  Judges generally do not accept direct communications from disability claimants – more likely than not, the judge’s office would return your submission to you, and, most likely copy your lawyer with a form letter advising you to use your lawyer to submit all documents.

Second, unless the information you want to add is extremely significant I would hesitate to try to update your hearing testimony.  Social Security judges are very busy and when you try to add a document after the record has closed at your hearing, it will require someone at the hearing office to manually pull your file.  This could result in a delay in the issuance of your hearing decision.  Further, judges usually “close the record” after the hearing so it is doubtful that your added information would be considered anyway.  You have had two hearings – I suspect that your judge has a fairly clear understanding of the facts of your case.

I would discuss with your lawyer what the best options are here.   If the “very brief fact” is extremely significant and your lawyer agrees that it makes sense to try to reopen the record, then he can try to do so in a post-hearing brief or submission of evidence.   On the other hand your lawyer may advise you that the hassle factor for the judge outweighs the importance of the information and he may advise you to let the matter rest while you wait for a decision.

Filed Under: Administrative Law Judges, Disability hearings Tagged With:

Class Action Lawsuit Filed Against Social Security Judges for Bias

April 14, 2011 by 11 Comments

unfair judgeOne of the “dirty little secrets” well known to Social Security lawyers relates to the importance of which judge is assigned to hear your case.   The tendencies of the judge assigned to your case is perhaps the most important factor as to whether you will win or lose.

I have no doubt that I could present the same client and the same arguments to two different judges in the same hearing office and win an approval on one case but a denial in the other.   Social Security actually publishes statistics setting out the number of approvals and denials by judge – some judges approve as few as 30% of the cases they hear, while others approve 65% to 70%.

While some variation in approval rates would be expected, I think that a system where your odds go from 30% to 70% depending on the judge suggests a significant problem.  In my view, judges whose approval or denial rate exceeds the national or regional average by a certain percentage should be reviewed by their superiors. [Read more...]

Filed Under: Administrative Law Judges, Disability hearings Tagged With: ,

Hearing Delays Result in Increased Danger to Judges

November 21, 2010 by Leave a Comment

Recently, I represented a claimant afflicted with cancer who clearly met Social Security’s definition of disability – she had a medically determinable condition that precluded substantial gainful activity and her condition had lasted 12 consecutive months and was longstanding in nature.   The judge assigned to this case is a no-nonsense person who took no more than 5 minutes to conclude the hearing.

Angry claimant threatens Social Security judgeIn the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.”   This time, however, he closed the case without saying anything.   After the recording equipment was turned off, he asked my client to leave the room but asked me to stay.  He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case.  I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”

Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings.  The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch.  As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.

In state and federal courts, you find baliffs and court personnel who provide security to judges.  In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room. [Read more...]

Filed Under: Administrative Law Judges, Delays, Disability hearings Tagged With: , , , ,

Discover How Disabled Veterans Can Optimize Social Security Disability Benefits

October 18, 2010 by 17 Comments
Utah Social Security and Veterans Disability Attorney

Joel Ban

Attorney Joel Ban, a Utah lawyer who handles both Social Security disability and Veterans Disability claims recently posted a concise and informative article on his blog describing the similarities and differences between the two programs.  Joel points out that a VA disability rating of 70% or higher can help your Social Security claim – this confirms my experience that Social Security judges will give weight to VA disability findings.

Joel was kind enough to give me permission to reprint his article in its entirety, which I have done below.

VA Disabiltiy and Social Security DisabilityThis article is an overview of the highlights of the major topics for Veterans who have both Veterans Disability claims as well as Social Security Disability claims. A lot of Veterans may have both Social Security and Veterans Disability Claims going on either at the same time or may have received one benefit before applying for the other. VA compensation, aka service connected disability is not based on income so you can definitely receive VA compensation and Social Security Disability (SSDI) at the same time. There is also VA pension which is a needs based program, very similar to Supplemental Security Income (SSI). VA pension will be paid to Veterans if they have very little or no income and are disabled based on non service disabilities. It is possible to receive SSI and VA pension at the same time. Based on your circumstances its best to qualify for both VA compensation and Social Security Disability since they generally are the more generous benefits, however its important to be aware of these other needs based programs.

Major Differences between the Programs

Major differences between Social Security Disability and Veterans Disability is that you don’t need a total disability in order to be eligible for VA compensation. In fact, most Veterans who receive VA compensation do not receive a total disability rating. Veterans can receive a compensable rating as low as the 10% level and can have a rating as low as 0%. In many cases it makes sense to go for a 0% rating even though its not compensable. The reason for this is that it will mean that the Veteran at least has a service connected disability that will likely deteriorate into a more serious problem and later morph into a compensable disability. Many Veterans have trouble proving service connection but with a 0% rating the Veteran will have already crossed this hurdle. Social Security Disability, conversely does not compensate claimants based on a partial loss of employability. You are either disabled or not disabled under this program. [Read more...]

Filed Under: Administrative Law Judges, Disability hearings, SSDI and VA benefits, Strategies for winning Tagged With: , , , ,

These Questions Always Get Asked at Hearings

July 31, 2010 by 3 Comments

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing.   Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

I want my client to understand the hearing procedure so he can focus on what he needs to say.  The less uncertainty about the process – the better.

In Atlanta, which is my primary area of  practice, we have two live hearing offices and one video hearing location.   Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently.  While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions.   This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing.   I know what I will want to ask, and here are the areas of questioning that I cover.   In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

  • state your full legal name and social security number
  • state your mailing address
  • how tall and you and how much do you weigh?
  • how far did you go in school and have you had any education or vocational training beyond high school?

Work background

  • are you now working?
  • have you tried to work since your onset date?
  • describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job? [Read more...]
Filed Under: Administrative Law Judges, Disability hearings, Disability Lawyers, Strategies for winning, Vocational Experts Tagged With: , ,