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"

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?

You earn credits based on earnings during the approximately 10 year period prior to filing for disability.  If you wait too file or if you allege disability as of a date where your credits have run out, you cannot recover disability benefits (you could recover SSI, but SSI benefits are usually lower than SSDI and SSI will be offset by household income or assets).

When you file for benefits, Social Security calculates something called your "date last insured."  As long as the judge or adjudicator finds you disabled on or before your date last insured, you will receive disability benefits.  If you are found disabled after your date last insured, you will not qualify for SSDI benefits.

In my law practice, one of my first tasks with any new client is to determine that client's date last insured.  I have learned the hard way that if I am successful in proving disability, but the onset date used by the judge is after the date last insured, my client won't receive any benefits and I won't get paid for my efforts.

My colleague Social Security lawyer Tomasz Stasiuk in Colorado, recently posted a very well written explanation of the date last insured issue.  Take a minute and read Tomasz' post because it clearly discusses and explains the major issues related to your date last insured.

Post from: Social Security Disability Blog

What is my "Date Last Insured?"

Obviously, you should not attempt to treat yourself of starting taking vitamin supplements without first speaking to your doctor.  The point here is that if you are a diabetic or a patient afflicted with any other chronic condition, you should use the power of the Internet to learn about new developments and treatments – both in the United States as well as elsewhere in the world.

Google, Yahoo and numerous other free services allow you to subscribe to alert services whereby you can receive an email notificaiton if a news story appears that includes specific "key phrases" you choose.  You can and should also learn about RSS feeds – another way to keep up to date with information.   I use the Google Alert service to keep up with developments in the Social Security disability area among other topics. 

If you have a favorite trusted source for medical or health care information, please comment on this post – I'll create a page on this blog with a repository of those links.

Technorati Tags: diabetes and thiamine deficiency, health care information on the Internet, Google Alerts, RSS feeds

Post from: Social Security Disability Blog

Free, Personalized Health Information Available on the Internet

I find this site especially helpful in its discussions of the medical listings published by Social Security disability.   Cases that clearly meet the listings are often approved early – the ones that don't meet a listing end up in front of a judge where we argue for disability under a "functional capacity" theory or under a "grid" theory.

If your case meets a listing, you can avoid the two year delays and the hassle of filing appeals and endless paperwork.  Dr. Holden's discussion of the listings helps demystify the complicated medical jargon found in the actual text of the listings themselves.

Compare for example the actual listing for chronic heart failure in the listings with Dr. Holden's explanation of chronic heart failure.  You will see that the Disability Doc's explanation contains definitions of medical terms, it describes the symptoms and it describes the tests needed to prove that you meet this listing. 

It appears that Dr. Holden is adding pages about various listings over time. Right now, he has explanations of several of the most commonly seen listings, including cardiovascular disease, genitourinary diseases, Down's Syndrome, some cancers and some musculoskeletal problems, blood disorders. 

Realize that most physicians are focused on treating you, not on issuing narrative reports that track Social Security listings.  I think that you will find the articles and discussions on the Disability Doc's web site very useful in helping you understand the Social Security listings and other Social Security issues from an insider's perspective.

Technorati Tags: disability doc, Dr. Keith Holden, Social Security listings

Post from: Social Security Disability Blog

Recommended Blog: Disability Doc