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?
• identify the last job you worked prior to your onset date – what were your job duties and what were your dates of employment?  why did you leave this job?
• what was the job before that – what were your job duties and dates of employment.  Why did you leave this job?
• going in date order, identify your past work going back for the past 15 years

Medical issues

• the medical record suggests that you have been diagnosed with __________ how does this condition/disease affect your capacity to work?
• how long have you had this disease/condition?
• when did it start and how has it progressed?
• if you were going to describe __________ to someone who was not familiar with this disease/condition, how would you explain what it is like to live with it?

Specific activity limitations (if applicable)

• how long can you stand before you have to sit down?
• how long of a break must you take before you can stand/walk again?
• how long or how far can you walk?
• how long can you sit before you have to stand up and move around
• if you had a job that required standing and walking and you could take a break every ___ minutes, how many minutes or hours total during an 8 hour workday could you stand and/or walk?
• if you had a job that required sitting and you could take a break every ___ minutes, how many minutes or hours total during an 8 hour workday could you sit?
• how much can you lift on a frequent basis – frequent meaning at least 2/3 of a workday?
• how much can you lift occasionally – occasionally meaning up to 1/3 of a workday?
• how much can you carry on a frequent basis – frequent meaning at least 2/3 of a workday?
• how much can you carry occasionally – occasionally meaning up to 1/3 of a workday
• are you able to bend, crawl or stoop?
• can you safely climb ladders, ropes or scaffolds?
• do you have any balance or other issues that would prevent you from working at unprotected heights?
• do you have any need to take unscheduled bathroom breaks? if so, why and how often?

Activity limitations arising from non-physical problems (i.e. mental health or pain)

• do you have any need to take other unscheduled breaks (i.e. crying spells)?  if so, how often?
• do you have any trouble getting dressed, or dealing with personal hygiene?
• do you have any issues getting along with family, friends, co-workers or supervisors?  If so, please describe these problems?
• do you have any memory problems
• do you have any problems with concentration
• do you experience pain – if so, where in your body?   when your pain is at its worst, how bad is it (use scale of 1-10)  how often is your pain at that high level?  do you experience  pain at a lower level?  how often?  does this lower level pain interfere with activities
• are there activities/hobbies that you used to enjoy that you can no longer do?

Drug and alcohol use (if applicable)

• the record indicates that you have had some trouble with alcohol use/marijuana use/street drug use.  is that still a problem?  when was the last time you used?  what type of program did you attend to address this problem?

This is not intended to serve as a list of every question that you may be asked.   However, at a minimum, you should be able to answer the above questions.  There is no excuse, for example, if you are surprised by the question:  "how far can you walk?"  The wrong answer is "I have never really thought about it – I just don't know."  The right type of answer is "I can walk to my mailbox, which is about 20 yards.  Because of the pain in my back, I have to stop and lean against a wall for about 5 minutes before I can walk back.  I always walk with a cane because I am unsteady on my feet."

My "big picture" point here is simple – you have to prepare for your hearing.  Judges are busy and they don't have a lot of time.  Preliminary matters like your work background and education should not eat up valuable hearing time.  I have seen instances where a judge will not include a limitation in his hypothetical question to a vocational expert because the claimant (my client) was so vague about his symptoms.

Judges understand that your symptoms may not follow a rigid schedule – for example if you experience seizures, and the question is "how often do you experience major seizures?" the answer may be "as many as 4 in a bad month and at least 1 every month, but on average 2 bad seizures a month."

As a rule, it is not a good idea to answer:

• I don't really know
• it depends
• sometimes
• not very much
• not very far
• not too long
• its hard to say

Instead, discuss with your lawyer how to offer a truthful answer to an "it depends" situation.  The more specific you can be, the better your results will be.

Post from: Social Security Disability Blog

These Questions Always Get Asked at Hearings

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client's last day of work if my client had changed from full time to part time, if the job had become a "make work" situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee's disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony.

In other cases, a claimant may choose an onset date going back 5 or more years, sometimes long before that claimant stopped working.  In these cases I recommend to my client that we amend the onset date proactively, at the beginning of the hearing or in a written pre-hearing memo.  I believe that judges appreciate attorneys and claimants who are prepared to narrow the issues and to avoid wasting time.

If the judge was to randomly select another date, such as July 27, the Appeals Council could reverse the decision on the basis of an absence of evidence.  Unfortunately, for some judges a claimant's testimony is not enough if there is no other evidence supporting that testimony.

More and more often, I am seeing Social Security judges proposing an amended onset date during a hearing.  In such a situation, I will ask to step outside with my client to discuss.  Usually, I can predict when this type of thing may happen and I will discuss a possible onset date change with my client during out pre-hearing conference.

Whenever I sense that a judge wants to amend the onset date, I will take a close look at the exhibit file to identify my client's "date last insured" (also called his DLI).  The DLI represents that last date that a claimant is insured for Title II disability purposes.  If the onset date is changed to some date after the DLI, then that claimant would not be eligible for SSDI benefits.   SSDI insurance requires (in most cases) work for 5 out of the 10 years prior to onset.  As such, coverage usually extends about 5 years after you stop working.  In any case, SSA calculates the DLI and includes this date in the Exhibit file.

If the judge proposes an amended onset date to some date after the DLI, I will usually not recommend that my client accept the proposed amended onset date, even though I know that by refusing the judge's offer, the case will most likely be denied and we will have to deal with the Appeals Council.

Post from: Social Security Disability Blog

What Does it Mean When a Judge Wants to Change Your Onset Date

You can read the case study on my Georgia Social Security disability web site.

Post from: Social Security Disability Blog

Diabetes and Social Security Disability Case Study Posted

I own a condo in central Florida.  My parents live in north Florida near the Georgia border.  I plan on moving to Macon, Georgia (Macon is about 100 miles south of Atlanta in the middle of the state).   Should I file now?  Should I file now and use my parent's address?  Should I wait until I move to Macon to file?

Here are my thoughts: I would advise you to file now and to use your current address as your home address.  If you are concerned that your mail may not get forwarded you can use your parent's (permanent) address.  In general it is not a good idea to wait to file.  If you wait you may lose the right to claim some of your past due benefits, or in a worst case scenario, your coverage for Title II benefits could run out.  If you are not working, and expect to be out indefinitely, I generally advise potential clients to file sooner rather than later.

Now – what about the location where you would file?  At the initial and reconsideration level of appeal, your case will be processed by a State Agency adjudicator.  Adjudicators follow fairly rigid protocols and I have not seen any documentation to suggest that an adjudicator in one state is more or less likely to approve a claim than an adjudicator in another state.  Those statistics may exist but I have never seen then.

The initial and recon appeal will eat up between 6 months and a year, by which point you would presumably be in Macon.  When you move you would notify Social Security and your file may be transferred to a State Agency adjudication office nearer to where you live.  Then again, it might not be transferred.  I think it is certainly possible that filing an address change, thereby triggering Social Security to move your file could add to a delay in the processing of your case, but my experience has been that the State Agency adjudicators are expected to complete their evaluation within a set period of time.  I don't know that having the file moved will significantly add to a delay.  This is especially the case now that Social Security disability files are electronic – physical files are no longer involved so transferring a case is an electronic process.

The biggest wildcard when you change venues will involve the hearing offices.  Some hearing offices house judges who approve very few cases.  Other hearing offices tend to trend more favorably to claimants.   On the other hand the tendencies of the specific judge assigned to your case are much more important than the hearing office statistics.  You can research statistics about the ratios of approval by specific judges.  Local lawyers who practice in a particular hearing office can also be a good source of advice.

Ultimately I don't know that I would spend a lot of effort "judge shopping."  If you have a good case with compelling medical evidence and support from a treating physician, you stand a good chance at winning, while weak evidence will not convince even a judge who tends to favor claimants.  Further, if you ask Social Security to change your hearing office venue at the last minute you will face  delay as hearing calendars are often filled months in advance.  If you hire one lawyer for location 1, then switch, you may end up paying more than 25% of your past due benefits as lawyer 2 will want to be  paid.

At the very least, if you are thinking about hiring a lawyer in central Florida, let  him or her know about your possible move – you want to make your case less complicated, rather than the other way around.

Post from: Social Security Disability Blog

Does It Matter Where I File My Application for Benefits if I Plan on Moving?

1. you will be approved
2. you will be denied
3. your case will be continued to another date for a supplemental hearing
4. the judge will issue a "partially favorable" decision

Over the past couple of years I have noticed an increase in the number of partially favorable decisions I am receiving.  I think this is because my clients, especially low income clients, do not have access to regular medical care and judges are using consultative exam reports to move the alleged onset dates.

Here is an example of what I mean:  a couple of weeks ago, I tried a case before a judge who is generally considered to be very reluctant to approve cases.  At the time of the hearing my client was a month shy of her 52nd birthday.  She had a 10th grade education and past work as a short order cook.  She alleged disability due to uncontrolled diabetes, numbness in her feet and hands, vision issues and pain.

She last worked 3 years previously, when she was 48 years old.

In reviewing this case, I saw it as a "grid rule" case.   Grid rule 201.10 provides that a 50 year old claimant with less than a high school education, semi-skilled work but no transferable skills who was limited to sedentary work due to an exertional limitation would qualify for disability.

My client had very little money and had last seen a doctor almost 2 years previously.   In addition to the older medical records, there was a consultative examination report from February, 2008 that supported my argument.  My client turned 50 in October, 2007.

At the beginning of the hearing, I advised the judge that we were prepared to amend our onset date to my client's 50th birthday in October, 2007.

I just received the decision and what did the judge do?  He issued a partially favorable decision, approving my client as of February, 2008 – the date of her consultative examination.   I think that any reasonable observer would recognize that my client's condition did not change between October and February.  The net result is only 2 months of past due benefits – but that means about $1,500 to my client.

In my view, the judge's actions were absurd and perhaps a little mean spirited.  During the hearing he made it known that he was not happy with the claimant's pack a day smoking habit (he noted that if she saved the money she spent on smoking she could afford to visit her doctor).

The point here is that when you don't find a way to go to your doctor, or enlist the help of a treating doctor to identify your work limitations, you may find that your judge will pick a date later than the onset date you alleged.  In fact, I know many judges who will always choose onset dates that correspond with a particular medical report.

I think that tying an onset date to the date of a medical report can be a logical choice but such a practice should not be applied mechanically as it was in this case.

You need to be aware of this tendency and make every effort to develop a thorough and convincing medical evidence file so you won't be subject to what could be the arbitrary choices of your judge.

Post from: Social Security Disability Blog

Onset Dates, Consultative Exams and Cynical Judges

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.

3. "My unemployment insurance ran out"

This is a real case killer, because it makes you look like you are just working the system.

4. "I don't have a car/way to get to work"

Social security disability benefit eligibility has nothing to do with whether you have reliable transportation, or even if your impairment keeps you from driving. Now, if you have an impairment that means you can't drive you have to talk about how that impairment would keep you from working once you are at the job. How you get there is irrelevant.

5. "They eliminated my job/they outsourced it to Mexico," etc.

Unfortunately, the issue is not whether you job is available. The issue is whether you could perform the job, whether it is in fact in existence. A little strange, I know, but….

Here are a couple more that I can add:

6. "My doctor said that I am not able to lift more than 5 lbs. or sit for more than 3 hours"

The judge can read your medical record and what your doctor said.  You are the claimant – what do you think and why?

7. "I can't stand for long periods of time, sit for too long or lift very much.  There is no way I could do any kind of work."

When you testify you must be specific  Generalizations like "too long," "too much" or "not very much"  or "I don't know I have never tried" don't help.  Before the hearing you need to prepare specific answers about how long you can stand, how far you can walk, how much you can lift, etc.  Your lawyer can give you a breakdown of these "exertional" activities.   Answer questions about exertional activities using pounds, feet, and specific times.

8. "If somebody would give me a job where I could work alone and sitting down, I probably could work"

If you say this, you are basically saying that you can perform a simple, sit-down type of job.  At the very least your testimony should be consistent with the notion that there is no full time work you can do.

Post from: Social Security Disability Blog

The WRONG Answers to the Question: "Why Can't You Work"

I presented all three to our judge, and the judge decided to approve based on….(you'll have to read the case study to find out).

Not surprisingly the judge looked very favorably on my client's long, consistent work history.  The judge even put on the record his opinion that my client would never have stopped working but for his medical issues.  As I note in the case study, the medical record in this file was a little sparse – but a solid work history can go along way to greatly enhance a claimant's credibility.

One of the arguments I had at the ready (although I did not have to use it) was the "frequent restroom break" problem associated with a drug called Lasix, that helps clear fluid from the bodies of patients with congestive heart failure.  Many of my clients are surprised to learn that I often win cases on the work performance problem of needing to go to the restroom several times an hour.   Although excess restroom breaks don't sound like a medical issue, the practical import of this problem is excess missed time from work.

Post from: Social Security Disability Blog

Heart Disease Case Study Posted

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. The psychologist and my new psychiatrist say not to put the former psychologist's name on the Review form: ssa-454-bk.  Am I allowed legally to leave her name off? What consequences whould there be. There is nothing on the form that says I can't omit information (no perjury warning). What are my rights, and if I put her on the form will my new psychiatrists' opinions outweigh the old?

Here is my response: I do not believe that a claimant (or a claimant's attorney) has any obligation to submit unhelpful medical records.   This issue periodically comes up on listservs that go to claimant's lawyers and the general consensus among most attorneys seems to be that an attorney's obligation is to represent his clients zealously, meaning that there is no affirmative burden for that lawyer to submit unhelpful information.  I do know some lawyers, however, who take the opposite position, but it appears to me that they are in the minority.

In my opinion, this does not mean that you can lie during a hearing.  If a judge sees a reference to the unhelpful doctor in other records and asks you about it, you should tell the truth.  Unless the missing records constitute a huge black hole in your records, as a practical matter hearing judges usually do not have the time or inclination to hold up a decision to get those records.

Post from: Social Security Disability Blog

Are Claimants Required to Submit Unhelpful Medical Records

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.

Another defining trait that characterized Judge Feldman was his respect for and kind treatment of attorneys.  I have been before a lot of judges over the past 20+ years and by far the most effective and respected judges on the bench are those who treat lawyers with respect and consideration and are able to avoid the intoxication of judicial power.   I recall that when I first started handling Social Security cases I did not have a clear picture in my mind about how to present my case or what I was trying to prove.   I was also not very good at selecting winning cases and many of the claimants I represented in the early days did not have very strong claims.  As is typical of less experienced lawyers, I tried to compensate for my lack of experience with preparation – I would basically memorize the entire file.

In those early days, I was fortunate to appear many times before Judge Feldman.  One day, after perhaps my fourth or fifth appearance before Judge Feldman, he asked me to stay behind following my hearing.  I wasn't sure if I was going to get a lecture or a suggestion to find another area of practice.  Instead, Judge Feldman offered words of encouragement and advice.  He explained that he saw that I was always prepared and that I was very thorough in my presentation and direct examination of the claimant.  However, he felt that I was, perhaps, missing the "big picture" of a Social Security case.  "Social Security disability," he explained, "is not about a claimant's medical problems.  Instead we have to consider how those medical problems prevent your client from working full time."   He continued: "if you can get your client's doctor to complete a functional capacity form that identifies serious work limitations, I will have no choice but to approve your client's case."

I can't begin to tell you how important this advice turned to be in my career as a Social Security lawyer.  For me, at least, I began to understand how to approach Social Security cases.  Whether I would have come to the realization that my focus at a hearing should be less about medical issues and more about work limitations without the shortcut hint from Judge Feldman, I don't know.  But because he took an interest in me, and ultimately in the welfare of my clients, I was able to get my approach on the right track.

Judge Feldman also made the time and effort to make me feel comfortable in his courtroom – a courtesy that he extended to all of the lawyers who regularly appeared before him.  He would greet me by name, ask about my family and about my practice and he always made me feel that I was a necessary part of the disability adjudication process.   Yet once the hearing started, he was all business – judging each case on its merits.  When I was a lawyer new to the Social Security process, such encouragement was a great help to my self confidence and it helped boost my clients' confidence in me.   This type of demeanor is certainly not required or even expected from a busy judge but it was gratefully accepted and will always be remembered.

I have been asked by friends, relatives and even clients why I spend so much time with my blogs and web sites.  Why do I teach about Social Security at CLE seminars or at Solo Practice University?  Part of it, I think, traces back to Judge Feldman.  He spent a few minutes of his life offering guidance to me that helped make me a better lawyer – don't I have an obligation to add to and pass this knowledge on?  I suspect that I am not the only lawyer whose life and career he touched so profoundly.

Judge Feldman retired in 2003 and other than a couple of sightings when he came to visit his colleagues at the hearing office I had not seen him since that time.  Several times I found myself wondering how he was and should I track him down and take him to lunch – but I never did, which I regret.  Now he is gone.  But he leaves behind his good name, a record of compassionate and thoughtful judging, and a positive influence on many lawyers and judicial colleagues.

Judge Albert Feldman – a true "mensch" in every sense of the word.

Post from: Social Security Disability Blog

R.I.P. Judge Albert Feldman

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:

"I am a writer/poet, artist, sculptor, musician, wood artist, wordsmith, businesswoman, mother, ex-wife, retired postalworker, driver, fragrance designer, student, photographer, jokester, painter, and furniture designer."

The profile also lists an "employer" and according this person's profile, she "acts like she is 32," she is most like President Harry Truman, her love meter reads "inferno," and she thinks about sex 1440 times a day!

Now, this particular client has a legitimate disability case and her case was approved several months ago.  Imagine, however, that the judge who was assigned to her case came across this profile during his hearing preparation.   Might he get a different sense of what this person is all about?

I also know from my own snooping around that several of the judges who work in the Atlanta hearing offices do have Facebook profiles.  Do they look for open profiles of claimants that will be appearing before them?  I have no way of knowing if they do now, but I would not potentially put my case at risk unnecessarily.

Remember, too that most disability cases will be subject to a periodic continuing review, and it would not surprise me at all if Social Security begins using web searches to locate information about claimants who may be engaging in activities that may look like work.

I call also report that I get two or three emails a year from unhappy ex-wives or ex-friends who would like nothing better than to mess up a former friend's claim.    A couple of years ago, I represented a claimant who was approved, but then had his approval withdrawn when a former friend sent links to his web site to Social Security, which then triggered an investigation.

So, if you use Facebook or mySpace or any of the hundreds of other social media sites, I strongly recommend that you spend a little time learning about the privacy features, and that you restrict access to your profile to people who you know well.  You should also keep in mind that anything you post or do on-line may reappear, so be very careful about your on-line activities.

Post from: Social Security Disability Blog

Can Your Facebook Profile Hurt Your Social Security Disability Case