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

Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits.  It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals.

There are now 88 medical conditions that qualify for compassionate allowance.  About half of these conditions are forms of cancer, while the other have are made up of rare diseases, many of which affect children.  Among the more common conditions that now qualify for an early approval:

• early onset Alzheimer's Disease
• mixed dementia
• idiopathic pulmonary fibrosis
• mucosal melanoma

A full list of all of the compassionate allowance conditions may be found by clicking on the link which will take you to Social Security's internal Program Operations Manual System (POMS).

If you or a loved one are afflicted by any of the conditions described under the compassionate allowance program, it is very important that you make that fact known to the adjudicator who is assigned to your claim.  You should not assume that the state agency adjudicator is familiar with the compassionate allowance list.

Post from: Social Security Disability Blog

Social Security Adds More Conditions to "Compassionate Allowance" Program

Imagine you have a condition like migraine headaches, and you are trying to win disability benefits. Well, in this case, it may be difficult to prove something like migraines can prevent you from working. This is where the doctor comes in to save the day. If you are able to see some kind of migraine specialist or neurologist whose office notes from your visits illustrate the severity of your migraines, you are that much closer to winning your disability claim. This is why it is always recommended that you seek the services of a doctor who specializes in your condition, whatever that condition may be. A specialist’s notes may be seen by the SSA as even more credible and as stronger evidence backing up your claim.

Cardiologists, rheumatologists, neurologists and orthopedic surgeons are examples of those physicians who specialize in certain areas of medicine, and such specialty doctors should definitely be consulted with over the course of your claim. They can provide certain testing, are knowledgeable of certain procedures, and have the right skills to render a better diagnosis of your condition and judgment of how it impacts your ability to work. Having that firm diagnosis of a condition and backup from a doctor can prove so valuable in your case.

Another reason doctors play an important role in disability claims is probably because of the strict standards doctors operate under today. I read an interesting article in the Chattanooga Times Free Press, dated April 7, 2010, which is titled Doctors face board specialty ‘expiration dates’ and which discusses just how strict the standards are today for practicing doctors. The article states that prior to the 1990s, doctors who had received specialized training in certain areas were only required to obtain certification ONCE. There were no additional requirements for retesting. In essence, once a doctor was certified, he or she was certified for the duration of his or her practice. Now, however, doctors constantly face the requirement of having to take tests and participate in continuing education to renew their board certification.

This seems like good news for the disability claimant, not just because doctors are held to higher standards, but because the work and opinions of doctors are highly regarded by the SSA. Social Security Judges certainly seem to put a premium on quality medical records. But aside from that, just knowing our doctors’ skills are up to date is a reassuring factor.

To sum up, doctor support is very important in a disability claim, and this is especially the case when it comes to board-certified specialists. Their diagnoses and treatment plans not only can speed up a disability process, but also can assist in winning one as well.

Post from: Social Security Disability Blog

The importance of doctor support in a disability claim (and why this is the case)

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

Pain is subjective and can be hard to describe

All individuals have experienced some degree of pain at some point throughout life. The intensity of pain can range from a dull headache, to an agonizing toothache, to the more severe type of pain commonly associated with chronic conditions such as migraine headaches, Fibromyalgia, and Reflex Sympathetic Dystrophy (RSD). Although pain is a symptom and we easily recognize it when we experience it, pain is nevertheless hard to describe. Fellow Blogger Tomasz Stasiuk, whose Colorado Social Security Disability Blog contains a wealth of information about the disability claims process, made note of this fact in his December 2009 article on how to describe pain in a Social Security Disability case.

As Thomas suggests, pain can be hard to describe because 1) it is subjective and cannot be felt by others and 2) it is not a visible condition. Thus, a judge assigned to your case may not fully understand the extent your pain if you merely state you have pain. Stating you have pain is not enough;  in order to strengthen your chances of winning your disability case, you must learn how to effectively describe your physical pain so that the caseworkers, physicians, and even the ALJ (Administrative Law Judge) assigned to your case can understand what you experience each day and how your pain limits your functioning.

Your ability to effectively describe your pain to your doctors is also important. This is because their reports and records will be evaluated by the SSA.  I have seen many medical records where during an office visit, a client replied only by saying “Fine” after being asked by the doctor “How are you doing?” In such cases, the client's chart might reflect something like: “Patient stated that she is doing fine today.” The word “fine” does not win a social security disability case. In fact, some adjudicators will often seize on something like this to justify denying a claim. Choose your words cautiously – even while at the doctor – especially if your words relate to describing how you are feeling.

Tips on how to effectively describe your pain

As mentioned above, fellow blogger Tomasz Stasiuk has written on this topic as well and has offered some great tips on how to effectively describe pain in a disability case.  Because his tips are so useful, I am republishing them here (with minor additions) for your convenience. The following are some guidelines suggested by Tomasz Stasiuk to help claimants be able to effectively describe their pain.

Nature of the pain: What is the pain like? Is it sharp or dull? Is the pain aching, shooting or throbbing? Does the pain burn? Is it a constant ache that progresses to spasms as it evolves? On a scale from one-to-ten, how does your pain rate?

Location: Where is the pain physically located on your body?

Frequency and Duration: It is painful all the time or just some of the time? How long does the pain last? Do you feel better in the morning? Alternatively, does it start bad in the morning and continue to worsen until you go to bed?

Triggers: What events trigger your pain, if any? Do events such as walking result in pain? Does looking at a computer screen for an extended period of time result in migraine headaches?

Effects of pain: Does the pain affect how much you can lift? Does the pain affect your ability to interact with your children or spouse? How long can you sit, stand or walk? Does your pain affect your ability to read any type of written correspondence, whether it be a book or letter?

Effects of medications: Do your medicines help? Does the pill or injections relieve all of the pain or just some of the pain? What do the medications help with? What pain does the medication not relieve?

Keeping a journal of your symptoms and pain may be useful

Again, pain must be described in other words than by just saying “I hurt.” As noted in earlier posts, keep a journal handy and write down your daily symptoms and experiences with pain. Something like: “A day in the life of X (your name).” It does not have to be in some fancy, formal writing style. Notes jotted down are just fine. Be sure to include things such as pain level, daily limitations, and medicines taken (and side effects). It can be hard to remember on your own how you feel each day. The disability process is long and enduring. Do yourself a favor and start journaling today.

Post from: Social Security Disability Blog

Helpful Tips for the Disability Claimant: Knowing How To Describe Pain

While I think that the quality and nature of your medical record functions as the most important factor as to whether your case will be approved, your credibility is almost as important.

When I refer to credibility, I am speaking of whether you come across as truthful and believable.   Credibility is not something you can manufacture – if your medical condition is not serious and you could perform work, you will face a difficult time winning.  However, it is possible for a truthful, legitimately disabled person to lose because he or she did not appear believable in his/her testimony.

Realize that every claimant that a judge meets during the day is asserting that he/she is disabled. Therefore, your demeanor and your testimony must come across as believable in order to be successful at the hearing. Here are some tips on how to come across as a credible witness at a Social Security Disability hearing.

1. Dress Appropriately

Chosen court attire often aids in determining the credibility of the claimant. Wherein State and Federal courts require a minimum of casual dress, Social Security hearings are generally less formal. Although informal, how a claimant dresses should be such that it conveys respect to the Administrative Law Judge (ALJ). Torn blue jeans and tank tops are examples of clothing that should be avoided at a disability hearing. This is not to say that you have to dress formal; donning formal clothing is unnecessary, and in fact, can send a conflicting message to the judge. For example, an applicant wearing high heels although she insists that she cannot walk without pain will definitely make any testimony she gives less credible. A rule of thumb is to dress conservatively but comfortably.

2. Be specific in your answers

An individual’s ability to answer with informative responses to questions posed by a judge will result in the individual’s testimony being credible. For instance, during a hearing, it is common for the ALJ to ask the applicant questions regarding his/her physical ability. Questions like “How far can you walk?”; “How much weight can you carry?”; and “How long can you sit?” are all questions that an applicant can expect to be asked of him/her during a hearing. It is extremely hard for a judge to consider the profound effect of an individual’s impairment if the applicant responds to a judge’s inquiry with “I don’t know.” If an applicant fails to be specific, then the judge will more than likely consider answers of this type not credible.

3. Don't over-exaggerate your pain

Physical pain is common to most disabilities.  An individual’s disability caseworker as well as any ALJ expects disability applicants to list pain as a chief complaint.  As such, it is common during the hearing for the Judge to inquire as to the level of pain that a claimant experiences on a routine basis.  Again, although a degree of physical pain is expected, stating pain consistently at level 10 is considered an exaggeration and will result in that portion of the individual’s testimony not being considered.  The basis for this decision is that a consistent pain at level 10 would result in a mental deficiency.  It is unlikely that the individual experiencing pain at level ten 24 hours a day, 7 days a week, would be able to be present during a hearing, much less offer supporting and competent testimony.  A rule of thumb for describing pain is to state the pain experienced in percentages.  For example, an individual may experience pain at level five, seventy-five percent of the days, while the other twenty-five percent is at a level 10.  It is also helpful to describe any events that trigger an increase in pain.  For instance, individuals with RSD, a nerve condition, experience an increase in pain during cold weather. Doing this will also help you to come across as being specific.

So, before you attend your Social Security Disability hearing, just remember that credibility is an important element and be thinking of ways to appear credibly. Without credibility, even a deserving claimant's chance of receiving benefits is compromised.

Post from: Social Security Disability Blog

Your Credibility – A Key Factor in Winning Your Claim

Question:

How exactly does the SSA determine the effects of a claimant's symptoms on his or her ability to function in the workplace?

My answer:

As you know, symptoms arising from your condition can severely affect your daily functioning. But in the SSA’s eyes, merely stating that you have symptoms that interfere with your abilities is not enough to win approval. The SSA, in deciding your claim, has to go a step deeper to determine how your symptoms effect your functioning. In doing this, the SSA will consider the following:

• How the symptom affects the daily activities of the claimant; a claimant’s ability to function; his/her limitations as a result of the symptom
• Location, duration, frequency and intensity of the pain or other symptom
• Side effects of any medication being taken, as well as the type of medication and the dosage taken
• Treatments, outside of medication, for the relief of pain or other symptoms
• Avenues which a claimant uses or has used to relieve pain or other symptoms

A good lawyer should also be able to draw conclusions about what functional limitations arise from your symptoms. Without being able to translate your medical symptoms into work limitations, I can say that you will have a tough time winning your claim. Work limitations are the bread and butter of a winning case.

One last point about extracting functional limitations from your symptoms: It is important that physicians note in a claimant’s medical records how any symptom experienced by the claimant affects his/her ability to function on a day-by-day basis. This supportive documentation will only substantiate an individual's disability claim and leave little to no room for misinterpretation about how your symptoms affect your functioning.

Post from: Social Security Disability Blog

Q & A: How does the SSA determine what my functional limitations are?

Question:

I recently applied for disability and was denied. Now, I am in the appeals process and want to make sure that the medical records I submit contain the right information.  How much and what kind of information is needed in my medical reports? If my medical reports are too vague, can this hurt me?

My answer:

As mentioned in other posts, until you are afforded a hearing in your case, medical records are all you have. Your documents represent you. They tell your story – a story that needs to fully represent your medical condition. When medical records are vague and/or critical test results are missing, either one or two things could happen. First, your case or hearing can be prolonged until such time as the needed tests have been completed and the record supplemented, or 2) You will receive an additional denial. As a claimant, you do not want either of these two things to happen. This process already takes long enough without additional delays and denials.

Although we often assume that medical reports submitted by our treating physicians have all of the required information, it is critical that claimants know what the SSA is expecting to ensure that their medical records are complete and/or provide the necessary information. If you receive copies of your medical records, take the time to review them and see what types of records are being given to the SSA. Again, continued delay and/or the receiving a second denial should be no one’s objective.

Medical reports, meeting the SSA guidelines, should consist of six primary pieces:

Medical history

Clinical findings (results of ALL physical and/or mental status examinations)

Diagnoses

Laboratory findings (blood pressure, x-rays, urinalysis, CBC, etc.)

Treatment prescribed with response and prognosis; and

Physician’s statement or form providing his/her opinion as to those things a claimant remains able to do despite his/her impairment.

This statement or form should include an analysis of an individual’s ability to perform work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling.

In instances where a mental impairment exists, the physician’s statement or form should describe the claimant’s ability to comprehend, carry out and remember instructions, as well as his/her ability to respond appropriately to supervision, coworkers, and work-related pressures consistent within a working environment.

Again, medical records are the cornerstone in any disability case.  Outside of the claimant’s physical presence during a hearing, medical records and the content that exist within these records are the most important factor in determining whether an individual receives disability benefits or not.

Post from: Social Security Disability Blog

Q & A: How much and what kind of information has to be present in my medical records?

Question:

Outside of doctors, licensed psychologists, licensed optometrists, hospitals, and clinics, are there additional evidence sources that I could submit information from that would help substantiate my disability claim?

My answer:

Yes, other additional sources may help show the extent of your impairment and how this affects your ability to function on a daily basis. Sources of this nature are as follows: previous employers, family members, pastors/rabbis, teachers, social workers, chiropractors, naturopaths, audiologists, and speech and language pathologists. Although I have not exhausted all of the possible sources for additional evidence, the above includes the more common ones.

If you are involved with or are seeing any of the above, and if they can attest to your inability to function in a work environment, then providing information from these sources would most likely aid in supporting your claim for disability. In my practice, my clients will often get employers or family members to write statements on their behalf which confirm that they are unable to work or perform even basic household duties. We will submit these signed statements as notarized affidavits to the Judge, and they will thus become part of your disability case file.  As long as they support the idea that you cannot hold down a job based on your illness(es), they will likely be helpful.

Never underestimate the value of a resource. As a rule, it is better to over submit medical documentation than to have not submitted enough. Always make sure that you have provided a list of these type resources to your attorney and/or representative. Your attorney will know the value of a particular resource. Remember, up until the end of the disability process, you are not able to meet one on one with the judge. Your medical records are your ‘voice’ per se, and they tell your story up until such time as you are afforded a hearing in your case.

Post from: Social Security Disability Blog

Q & A: Can I submit non-medical sources of evidence in my disability claim?

Question:

I recently applied for SSDI, and I want to make sure that the medical records I am providing to the SSA are from "acceptable medical sources." Can you explain in detail what the SSA views as an acceptable medical source?

My answer:

The SSA considers an “acceptable medical source” to be any licensed physician (this includes D.O.s – Doctors of Osteopathic Medicine), licensed or certified psychologists, licensed optometrists, hospitals, clinics, and other health facilities where a claimant has been treated.

Remember, as has been previously mentioned on this blog, claimants are highly encouraged to see a physician/specialist who focuses primarily on their specific impairment. In a previous post about the importance of seeking specialized medical treatment,  for example, an individual suffering from migraine headaches and blurred vision was advised to see a headache specialist or neurologist who could substantiate their claim.

While general physicians are very knowledgeable and skilled (and are deemed to be an appropriate medical source by the SSA), I typically encourage my clients to try and see a specialist whose practice concentrates primarily on their particular impairment. These specialists will have the proper credentials, testing methods, and treatment plans for you, and your seeking their help will only serve to make your claim more credible in the eyes of the SSA.

I would like to address one last question I sometimes get from people suffering from a physical impairment like back  or neck pain. Many such claimants will see a chiropractor instead of, say, a spine specialist. Not to take away from the benefits chiropractors provide, but in my experience chiropractic records are not nearly as useful in a disability claim as compared to records from orthopedic and spine specialists or even those of D.O.s. If you are seeing a chiropractor, my best advice is to also seek a diagnosis or opinion from another type of medical source, so that you will be satisfying the SSA's "acceptable medical source" requirements.

Post from: Social Security Disability Blog

Q & A: What medical sources are considered acceptable by the SSA?