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"

At Social Security hearings, judges often call vocational witnesses to classify your past relevant work.   Generally Social Security is concerned with your past relevant work over the past 15 years.  Short durations jobs of less than 3 months are usually considered unsuccessful work attempts (UWA) and don't count as past relevant work.

Vocational witnesses identify both the "exertional level" of your past relevant work as well as the "skill level" of that work.   Jobs are classified exertionally as:

• sedentary
• light
• medium
• heavy
• very heavy

More explanation about what these exertional levels mean – page on this blog;  post from Colorado disability lawyer Tomasz Stasiuk

Jobs are classified by skill level as:

• unskilled
• semi-skilled
• skilled

Vocational experts use a resource called the Dictionary of Occupational Titles (D.O.T.) to classify the exertional and skill level of every job that (in theory) exists in the national economy of the United States.  You can read the D.O.T. online by clicking on the link.

The D.O.T. classification of your past work can also be important in a determination as to whether you meet a grid rule.  I have also described how I use the grid rules in cases on my Georgia Social Security web site.

While you are not expected to know how the Dictionary of Occupational Titles works, it will help if you discuss ahead of time with your lawyer how you should describe your past work.   For example you may have had a job title that suggests a particular job, whereas the work you actually performed represents a different job in terms of the D.O.T.

Post from: Social Security Disability Blog

Understanding How Social Security Classifies Your Past 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

As humans, we are programmed to believe that things will get better.  For many people, the decision to file for disability is a kind of defeat – a recognition that their physical or mental condition probably won't improve.

In my view, clients who hate the concept of disability are my best clients.  When you walk into that hearing room, you should have the attitude that "I don't want to be here, and I am only here because I have no other choice."   Judges pick up on body langauge, verbal and non-verbal cues.  If your judge senses an "attitude of entitlement" your chances for a favorable decision go way down.

Whenever possible, include in your testimony statements reflecting your desire to return to productivity.   Talk about the fulfillment that work brought you.  Discuss the financial hardship that not working has brought upon your family.  Speak about hobbies and activities that you can no longer do because of your medical condition.

Remember – your job at a hearing is to paint a picture – and the picture you want to paint should reflect a person who is a fighter, not a "taker."

Avoid statements like "no one would hire me," or "I can't do anything since I became disabled."   Your job is to provide the judge with an accurate description of your symptoms, not to make conclusions about your work capacity.   The work capacity determination is the judge' s job, not yours.

Disability hearings often turn on the claimant' s credibility – if the judge finds you believeable and a truthful witness, you are most likely headed for a positive result.

Post from: Social Security Disability Blog

Why You Should Hate the Idea of Applying for Disability Beneifts

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

1. Are You Working?
2. Is Your Condition “Severe”
3. Does Your Condition Meet a Listing?
4. Can You Perform Your Past Relevant Work?
5. Can You Perform Any Work

Hundreds of words have been written about each step of this process and the Appeals Council and District Courts produce voluminous written opinions that explain what each of these words mean and how they should be applied.
As a busy attorney dealing with disability cases on a day to day basis, I don't have the time or patience to deal with the minutia of Social Security jurisprudence. I worry about what it takes to win.

With apologies to the drafters of Social Security's POMS – Programs Operation Manual System, it has been my experience that there are 3 ways to win a case:

1. Meet a listing
2. Prove that your functional capacity for work (i.e. Residual Functional Capacity) is less than sedentary
3. Meet a grid rule

You can read more about how I apply these three "theories of disability" in a back case by clicking on the link.

In my experience about 15 of cases that end up at hearings are decided under a listing theory and about 15% are grid rule cases.  That leaves approximately 70% of the cases that I try as RFC cases.  Note that my percentages may be similar or different that what you might experience where you live.

In my view, Social Security disability practice fits fairly neatly into this three theory box.  I use this approach in every case in my office and I am always able to fit the facts of any particular case into one, two or all three of these arguments.

For this reason, it was a little troublesome when I received the following email from one of my readers:

I have a lawyer handling my disability case. My problem is that she doesnt seem to know some of the disability language. For instance she didn't know what a RFC form was. She wanted to know where I get this language from.I told her that i research disability on the internet andthats where I get a lot of information. She said there is no such thing and that my doctor will make a narrative report on me. Is there any such thing as an RFC form or is the language different now?

My answer to the reader is "no, Social Security has not changed its language."  An RFC form is a checklist that Social Security personnel use to evaluate a claimant's RFC.   Here is a copy of the RFC form that Social Security uses internally.  In my practice I edit this form to include a number of additional questions that I know will help me win my case.  You can find a copy of my practice form along with suggested responses in my book, the Disability Answer Guide.

Now, a narrative report will work but I think that an functional capacity form is a superior instrument in that it conforms to Social Security's internal procedures and "speaks SSA's language."   Narrative reports – in which a doctor writes a letter that identifies specific limitations and diagnoses – is a document more often seen in personal injury or workers' compensation cases.

I would like to give my reader's attorney the benefit of the doubt – perhaps she is familiar with Form 4734 and doesn't call it an "RFC form."    I would suggest, however, that any claimant or attorney not familiar with the term "RFC" may want to take a few minutes to learn about this concept since it is frequently the basis of Social Security hearing decisions.

A brief, shameless plug:  I am teaching a course about building a Social Security disability practice at Solo Practice University.  If you are a lawyer looking to add Social Security or one of a number of specialties to your law practice I would strongly suggest that you take a look at the SPU web site and consider enrolling.

Post from: Social Security Disability Blog

What "Theories of Disability" Work to Win Cases?

One line of questioning that always comes up relates to my client's capacity to perform various physical activities, such as lifting, sitting, standing and walking.  Physical activities like these are known as "exertional" activities by the Social Security Administration and one's exertional capacity is almost always a factor in questions asked of the vocational witness.

For Social Security purposes, your exertional capacity is defined as follows:

Sedentary: Requires the ability to sit up to six hours in an eight hour work day, lift light objects such as files and paperwork frequently during the day, and objects weighing up to 10 pounds occasionally during the day.

Light: Requires the ability to stand up to six hours in an eight hour work day, lift up to 10 pounds frequently and up to 20 pounds occasionally.

Medium: Requires the ability to stand up to six hours in an eight hour work day, lift up to 25 pounds frequently and 50 pounds occasionally.

Heavy: Same standing as light and medium, lifting heavier than medium.

As you can see, each of these definitions includes some very specific numbers.  When you prepare to testify, you will need to be prepared to discuss your capacities.

Frequently, however, in a pre-hearing meeting I will ask my client "how much can you lift?" and I will get responses like:

• I don't really know – I haven't tried to lift anything heavy recently
• It depends on the day – if I am having a good day I can lift a pretty good amount, but not so much on a bad day
• My doctor says I can't lift anything
• Not very much

I hope you can see that these answers are not very helpful.  More importantly, these answers cannot be included in a question for the vocational witness.   How much is "not very much?"  What does "I can't lift anything mean?"

Instead, when you prepare for testifying at a hearing you need to be prepared to offer specific answers to these questions:

• I can lift 5 lbs. without too much trouble.  However, when I recently tried to lift a gallon of milk, I had to use both hands and I almost dropped it.
• I can lift 10 lbs. without too much trouble.  I don't believe I could lift or push a 20 lb. box at all without really hurting my back.
• I usually have about 2 good days a week in which my back feels fairly loose.  I can carry a 5 lb. bag of sugar without too much trouble.  On a bad day, however, I can barely stand up straight and even 5 lbs. would cause my back to go into spasm.

You need to prepare similarly specific answers to questions about:

• how far you can walk before you have to stop
• how long you can sit before you have to stand up and move around
• how long you can stand without moving much, such as standing behind a counter

The more specific you are the better, such as:

• I can walk for about 10 minutes then I need to sit down and rest because my back will really start hurting and I will feel pain running down my right leg.  After resting for 15 minutes I can get up and walk or stand for about 10 minutes, then I have to rest again.  I would estimate that I could stand and walk for a total of about 90 minutes total during the day.
• After sitting for 15 to 20 minutes, my back starts to tighten up and I have to stand and walk around for about 10 minutes to loosen up.  Then I can sit for another 15 minutes or so.  I would then have to lie down for 20 minutes to get the pressure off my back.   I spend most days moving from sitting to standing to lying down trying to get comfortable.

At the very least, stay away from phrases like "not very far," "not too much weight," and "a lot less than I used to."

In my experience judges often use your estimates of exertional capacity in their hypothetical questions to vocational witnesses.  The more specific you can be, the better.

Post from: Social Security Disability Blog

Hearing Testimony Tip: Know How Much You Can Lift and How Far You Can Walk