We have determined that your condition is not severe enough to be considered disabling.  In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….

Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.

An article in today’s Wall Street Journal entitled Doctor Revolt Shakes Disability Program, the Journal describes a system where Social Security administrators are pressing consulting physicians to work faster and to process more files to deal with a growing claims file backup.

Consulting physicians, many of whom are retired doctors looking to earn extra money are being asked to evaluate medical records outside their areas of specialty (such as a case where a pediatrician was asked to review a complex small fiber neuropathy case, or where an eye doctor was asked to review an orthopedic case).  SSA has also cut the case consulting fee for these doctors from $90 per hour to $80 per hour.

As a result of these changes, consulting doctors are leaving the program, further stressing the system and increasing delays.  One former consulting physician recalled that he was fired when he refused to complete a report about a medical issue outside his area of specialization.

What does this internal upheaval at Social Security mean to you?  I think it is fair to say that any progress SSA has made in reducing delays will be difficult to maintain given the increasing number of filings and the difficulty that the agency has in training and deploying trained personnel.

In my office, I no longer assume that Social Security claims adjustors will have time to track down and request copies of my clients’ medical records, or that they will have time to read these records.   In my office, we are taking more responsibility to obtain these records and to summarize them for the adjudicators, consulting doctors and, ultimately the judges.  If I can make the decision-maker’s life a little easier by giving him a reason to approve my deserving clients’ cases, then everyone will benefit.

Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970′s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him.

After being denied at several more appeals levels the case eventually made it to the 1st Circuit Court of Appeals which found in Dr. Frusher’s favor.  Unfortunately, Dr. Frusher had passed away by the time of the Circuit Court’s ruling, but his wife continued the appeal.  His widow will receive past due benefits amounting to 30 years of past due benefits.  Congratulations to the Rhode Island law firm of Marasco & Nesselbush for its stellar work in this case.

What does this case mean to other claimants?

This case addresses the issue of reopening of claims.  In an SSDI claim, a claimant can reopen for any reason a prior claim if a second claim was filed within 1 year from the date of the notice that the prior claim was denied at the initial application.

Example:  Tom files Claim #1 on March 1, 2008, and it is denied July 12, 2008.  Tom does not appeal, but files a new claim on April 3, 2009.

Tom can move to reopen Claim #1 because it was filed within 1 year of July 12, 2008 (the date of Claim #1 denial).  Tom would have to show some reason to reopen (i.e. there was evidence in existence that was not considered by SSA in claim #1) but he would not have to show “good cause.”

If Tom filed Claim #2 on August 1, 2009, he could not move to reopen “for any reason” since Claim #2 was filed more than 1 year after the initial denial of Claim #1.

Tom could ask SSA to reopen Claim #1 within four (4) years of the initial denial if he can show “good cause” (the time limit is 2 years in an SSI case).  In my experience, Social Security judges consider “good cause” to be a very high standard and they rarely reopen on that basis.

The Frusher case is rare because Claim #1 was reopened well after the 4 year statute of limitation.   SSA does allow a claim to be reopened “at any time” in the case of fraud or similar fault.   The 1st Circuit found that Dr. Frusher’s failure to appeal was both not his fault (because of his mental illness) and that SSA acted wrongfully in denying him the opportunity to appeal.

What should you learn from all of this?

• when you file for disability benefits, you are generally better off pursuing your appeal as opposed to dropping your case and starting over
• if you do drop your appeal, or fail to appeal timely, generally it does not benefit you to wait to reapply
• if you are confused about your insured status for SSDI or about your appeal rights, contact a lawyer sooner rather than later

In three of these instances, neither my client nor I received notice of a reconsideration denial.  In another case, my client received the denial but did not inform me (my client has significant mental limitations and did not know what to do with the denial notice).

In two of these cases, my client’s case was dismissed and they have to start over with a new application.  In the other two cases, we were able to get the appeal filed within the 60 day deadline.

When I called Social Security they claimed that that had mailed the notices (in 2 of the cases) or that my name was not associated with the case as the lawyer (I have a registered mail receipt proving that I mailed my entry of appearance and notice of representation).

In two other cases, I did not receive my fee because someone in the payment center did not see my Form 1695 (request for direct payment of fees).  In these cases, my client will see his monthly benefit check reduced by SSA to correct their mistake.

It seems that document mismanagement at the Social Security Administration is getting worse, not better.  For those of you who represent claimants, are you seeing the same problems?

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.

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.

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… and much more. They just can’t teach you that in law school.

I will be teaching a class about how to set up and build a Social Security disability practice.   The doors to SPU will open on March 20, 2009 and when you enroll you will have access to practice building training in a variety of disciplines, including bankruptcy, commercial litigation, personal injury, malpractice, criminal defense, trusts and estates and more.  In addition, Susan has lined up several highly respected experts in essential practice development areas such as marketing, blogging and office technology.

If you are a new lawyer, or if you are a more seasoned lawyer contemplating starting your own practice, I can’t think of a better resource to shorten the learning curve than SPU.   Over the years I have taught continuing legal education courses about Social Security and most of the questions I get have to do with the practical side of lawyering – what books or computer programs should I get?  How do I get paid?  How do I spot good cases?  SPU goes a long way in filling this gap.

On a more personal level, SPU reminds me quite a bit of work done by my parents many years ago in a completely different industry.  My dad, Max Ginsberg of blessed memory, was a talented journalist and writer who had worked at the Atlanta Journal for over 20 years, ending up as the editor of the business section in the late 1950′s.  When he married my mother and they decided to have children, they recognized that the newspaper business was a bit too transient and economically limiting to support a family.  An opportunity arose for them to purchase a trade magazine in the pharmaceutical industry and in their early 40′s they embarked upon this new venture.

One of my mom’s favorite quotes is “the only thing certain in life is change” and such was the case in the pharmaceutical industry in the 1960′s and 70′s.   Small town independent drug stores were being bought up by chains and hundreds of new drugs were being introduced to the market.   My folks saw these changes as well as efforts by state legislatures to require pharmacists to take continuing education courses to keep up with new medicines and technologies.  In the early 1970′s they introduced the nation’s first distance learning continuing education program for pharmacists in the pages of their magazine, the Southern Pharmacy Journal.

Just as Susan Cartier Liebel has found experts in various legal and law related fields to teach courses at SPU, my dad found experts in the pharmaceutical field to write articles and design tests to keep pharmacists up to date about developments in that industry.  My mom, Mary Ginsberg, entered the world of administrative regulation, obtaining certification for their program to count for continuing education credits in all 50 states.   I spent many after school afternoons in their office helping my mom grade continuing education tests, sending out certifications and reporting to various state pharmaceutical boards.

My parents were responsible for helping to educate thousands of pharmacists about new medicines, drug interactions and new drug store technologies.     Their students became better professionals, learning at home from experts in that field.  Perhaps your life was affected by a pharmacist who spotted a potential drug interaction or questioned a prescription thanks to information gleaned from a continuing education article published in the Southern  Pharmacy Journal.  I can’t help but think that I am now participating in an venture that will have a similar effect in the law business.

The business of lawyering is changing.  Gone are the days when a young lawyer could sign on with a large firm, work hard for seven or eight years, make partner then expect a comfortable and rewarding career and a financially secure retirement.   Partnerships at big firms are no longer guaranteed.  Large firms expect 80 hour weeks from associates with no guarantees of anything.   Layoffs are common.  In many ways the law firm business is decentralizing, with more and more lawyers choosing to practice as solos or in small firms.   I have no doubt that Susan’s innovative program will serve the needs of lawyers, and will result in better lawyering for the benefit of the general public and I am extremely pleased to participate in this endeavor.

Jonathan Ginsberg with Social Security CD

Over the past year, Social Security has made meaningful strides in reducing hard copy paperwork and improving the efficiency of the disability adjudication process.  One of the most noticeable changes has been the gradual elimination of cardboard and paper files, which are being replaced by compact disks.  Social Security personnel now scan medical records and burn the files to compact disc.   Employees at the hearing office mail the discs to the attorney for pre-hearing review.  From the perspective of an attorney the CD system avoids the hassle of scheduling time to review the files or hiring someone to physically photocopy the files.

The only “fly in the ointment” has to do with the format of the files on the CD.  Instead of using a PDF format that everyone else in the free world uses, Social Security has decided to use a format called a TIFF format.  TIFF files are larger, harder to print and require a different type of file reader.

Although files in PDF format would have made a lot more sense, I sincerely applaud Social Security for what appears to be a success in reducing the blizzard of paper that has long been associated with disability claim files.

This morning I received a slightly different question about attorneys, which I will reproduce here:

I hired a law firm to help me with my disability appeal. I am at the ALJ stage and needed help filing that appeal, representing me at the hearing. It is going on 3-4 weeks of talking with the lawyers clerk about filing for me. They say they filed one day, then the next say they are going to be filing, this has gone on 4 times now. Although I have not talked to the actual attorney that will be representing me, I don’t mind as long as the person I do talk to knows what they are doing and are truthful about it. What advice can you give me to handle this situation? Should I fire this firm and find another? I appreciate your suggestions, thoughts, advice.

Thanks,
Leighann

My response: Leighann’s question raises a somewhat different issue than delays.  Here, the problem is lack of communication.  Since short (60 day) deadlines are involved, I think that Leighann has the right to be concerened about missing the deadline.

Bear in mind that not missing deadlines is topic #1 in any malpractice or lawyer discipline seminar.  Every law firm should have a solid calendaring system to insure that no deadlines are missed.

Given the run-around that Leighann has been getting, it may be time for becoming a bit more forceful in her communications.  I would advise her to get the name of the paralegal who is assisting her, then write a letter to the paralegal, with a copy to the lawyer who is the actual representative.  The letter should express her concerns (like she did in her email to me) and ask for a copy of the filed appeal paperwork.   Both copies of this letter should be sent by registered mail, return receipt requested.

I don’t know the law firm at issue, but if they handle Social Security cases regularly, I would be surprised if they did not have the appeal deadlines of their cases under control.  However, nothing gets the attention of a lawyer like a registered letter from a client inquring about possible missed deadlines.

Jonathan Ginsberg responds: As a disability claimant, you have the right to terminate the representation of your attorney.  The attorney doesn’t need any special form to withdraw from representation – all he needs to do is write a letter to Social Security advising them that his attorney relationship with you has ended.   I do not practice in North Carolina but I suspect that under the Bar rules there, your lawyer has an affirmative obligation to withdraw if you have terminated him.  In order to avoid confusion, you should send your lawyer a letter using certified mail, return receipt requested, asking him to notify Social Security that he is no longer your representative.

I would also suggest that you look carefully at the fee contract you signed with your lawyer.  Often the standard fee agreement used by most disability lawyers also allows the lawyer to ask Social Security to approve a fee based on time expended.  Further, be aware that if “Lawyer 1″ has filed a form 1696 Appointmetn of Representative, any subsequent lawyer you hire – “Lawyer 2″ – will need to file a fee petition setting out exactly what he did and how much time he spent.  The fee petition process is much more time consuming and intrusive than the simple 25% fee agreement system.  I mention this because some lawyers will not take a case if a prior lawyer withdrew and will not waive fees.

Finally, make sure that there is no confusion as to who has the duty to file appeals or respond to communication from the Appeals Council.  You do not want to miss an appeal or file double appeals forms because this issue was not cleared up.

It is unfortunate that your relationship with your lawyer deteriorated.  It is much easier to part ways on a friendly basis.  At this point, however, you may best be served by communicating with your lawyer in writing only and by spending a few extra dollars on certified mail.

What happens, therefore, if you decide to file for bankruptcy while you are waiting for your Social Security decision?  What happens if your SSDI or SSI case is approved the week after you file for bankruptcy?  Can you keep your past due “lump sum?”  Does your attorney get paid?

If you have a pending Social Security application, you need to let your bankruptcy lawyer know about it.  Bankruptcy lawyers hate surprises and pending Social Security benefits are certainly relevant to a bankruptcy evaluation.

Under the current bankruptcy law, Social Security benefits are not countable for means test purposes but they may be countable for budget purposes.  So, if you do get approved for benefits while your bankruptcy is still active, you may need to amend your budget.

In my view, bankruptcy works best when there are no changes during the course of your case – whether you file Chapter 7 or Chapter 13.  The addition of, say, $1,500 per month to a bankruptcy budget will change things and you need to know in advance what this change will mean.

The question on the mind of most Social Security applicants has to do with the lump sum payment – which represents months or years of “past due benefits.”  Can you keep this lump sum?  The answer is “it depends.”  It depends on your State’s exemption laws and the practice and procedure in your local bankruptcy court.

In the Northern District of Georgia, where I practice bankruptcy, I have successfully argued that my client’s Social Security disability payments are exempt assets pursuant to Georgia’s exemption statute, which makes exempt a “debtors right to receive a Social Security benefits.”   I take the position that the monthly benefits would have been exempt and that the debtor should not lose his lump sum check because Social Security took two to three years to issue payment.

Every State has its own exemption rules.  And every bankruptcy filing jurisdiction has most likely reached a consensus about this issue.   I suspect that in some jurisdictions, the trustee will ask for some of the lump sum.  Perhaps there are some where the entire lump sum is in play.  The point – ask your bankruptcy lawyer.  It may change when your file and what bankruptcy chapter you choose.

Similarly, you need to tell both your Social Security lawyer and your bankruptcy lawyer about both cases.  Your Social Security lawyer is entitled to get paid for his efforts.  He may need to file a special application in bankruptcy court to be approved as special counsel.  He may also need to file a motion for approval of his fees.

The bottom line: advise both your bankruptcy lawyer and your disability lawyer about your respective cases.  Ask your lawyer to sketch out in writing what you can expect.  I can imagine nothing more frustrating than to hang on for three years waiting for that past due benefit check, only to find that a trustee has grabbed it.