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

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

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

I have been working in the medical field for over 13 years and more.  I am on short term disability. Can I apply for ssi due to my job may have caused my problem from lifting patients, pushing, pulling heavy patients to machines and other duties.  This job was very stressful and I am taking anti depressants and I am  seeing a psychiatrist.

Here are my thoughts: Helena certainly has the right to file for Social Security disability.  However, I would advise her to speak to her workers'  compensation lawyer prior to doing so.   Workers' compensation claims can involve a significant amount of money when they settle and filing for disability can impact the value of your workers' compensation claim.

The value of a workers' compensation claim often turns on the uncertainty that exists in terms of the claimant's prognosis for returning to work as well as uncertainty about the claimant's future medical treatment.  When you file a Social Security claim you are basically saying that you cannot work, and you will be bringing Medicare into the discussion in terms of future medical care.  Medicare's involvement also may affect your settlement because Medicare may demand that part of your settlement be set-aside to cover future medical care.

Long term and short term disability claims may also be impacted by a Social Security claim.

Bottom line – I would try to involve your lawyer as a point person to advise you about the various benefits to which you may be entitled and to help you decide about the timing or wisdom of pursuing these benefits.

Post from: Social Security Disability Blog

Should I File for Social Security if I Also Have a Pending Workers' Comp and LTD Claim

Jane, my girlfriend of 25 years (54 yrs old) has been diagnosed with Type I Diabetes for 35 years. She has had a number of problems over the years (uncontrollable diarrhea, Retinopathy, Neuropathy) all of which were more or less under control until recently. She has suffered a massive hemorrhage in one of her eyes and is completely blind in one eye. The eye may be able to be helped by surgery but one thing is for certain it will never be as good as it was 3 weeks ago.  Jane has been employed as a land surveyor (self employed last 10 yrs) for 30 years and it is very difficult to carry on with the physical impairments brought on by diabetes.  Given her age I would very much like to get her on a government sponsored disability program so as to supplement my earnings while waiting for SS retirement to kick in at age 62. Do you think I have any chance of this? Given your experience which of the numerous symptoms of diabetes are the easiest to document for a SSDI claim?

Here are my thoughts: under Social Security's definitions, Jane is "closely approaching advanced age" and has a skilled work background, and quite possibly transferrable skills.   Her educational background is not mentioned but I will assume that she has a college education.  As such, it is unlikely that any of the medical-vocational guidelines (the grid rules) will apply.

I would therefore analyze her case as being one that either meets or equals the diabetes listing, or I would use an argument that her functional capacity for work has been so impaired by her diabetes and complications that she would not be a reliable worker.

In my experience, because Social Security judges see so many instances of diabetes it is very difficult to win a "listing" argument unless the retinopathy or neuropathy has become extremely severe and irreversible.  I have won a few diabetes listing cases but only when my client is a "brittle diabetic" who cannot keep his blood sugar under control with insulin or even an insulin pump.

Jane's hemorrhage suggests that the retinopathy has become severe, but I would not assume that the hemorrhage alone is sufficient to win a listing argument.

Based on what you write, I am thinking that a "functional capacity" argument would give her the best odds for winning.  Functional capacity arguments look to reliability factors – such as the need to take unscheduled breaks, missed time from work, the need for unscheduled bathroom breaks, loss of capacity concentrate and focus, etc.   If you can find a treating doctor to support her claim by filling out a functional capacity checklist that identifies significant work activity limitations, she has a good argument.

I think that her long and consistent work history works in her favor as does her perseverence in fighting through uncomfortable symptoms.

Post from: Social Security Disability Blog

What Factors Does Social Security Consider in a Diabetes Disability Case

I summarized the various case strategies that I use in multiple sclerosis cases on my Georgia Social Security Disability web site so I will not repeat that detailed summary here.  A couple of points that do jump out at me:

• because MS is a disease that progresses through a series of flare-ups and remissions, it is not uncommon for my client to experience periods of functioning that could allow for minimally physically demanding work. I get past this issue by eliciting testimony from my client that stress from attempting to work (including preparing for work, traveling to work and performing work) can cause a remission period to shrink, and that my client's functioning during a remission period is enhanced by staying in a comfortable, familiar home environment
• ideally, an MS case file should contain doctor or ER visits in intervals of 3 months or less. However, if you cannot afford treatment or otherwise do not go to your doctor that often, a personal diary detailing symptoms can serve as viable evidence
• judges recognize that MS is a degenerative condition that does not improve over time. There are a number of neuromuscular diseases related to MS that may comprise your diagnosis. It is important to have your doctor reference that your associated disease falls within the MS family

I also found that in each of the cases I tried, my clients came across as exceedingly credible – people that had long, consistent work histories and who clearly would prefer to land back in the work force. In many ways, your credibility as a claimant serves as the foundation for your case and the combination of believable testimony, a definitive diagnosis with known, serious symptoms and a solid work history makes for a disability case that will likely succeed.

Post from: Social Security Disability Blog

Strategies for Winning Multiple Sclerosis Disability Claims

Recently, I received an email from a gentleman named Michael who asked for some additional information:

I have narcolepsy and even the maximum doses of medications don't help. I keep losing jobs and will be losing my current job due to this. I do exceptionally well at my job when I feel alright, but I spend at least twenty hours of the day not functional. I'm currently telecommuting full-time and I still can't stay awake and clear long enough each day to do my work. When I work on-site at a job, people accuse me of being an alcoholic or drug addict because I look terrible and slur my words and fall asleep several times per day. The only thing that prolongs my jobs is that when I'm feeling alright, I am sharper than most and unusually productive. So, they smell my breath and check my arms for tracks and I try to convince them that I'm just tired and that usually suffices for a while, but once again I'm losing my job. I am getting worse as I get older and I can't maintain myself or watch my own child or regularly brush my teeth, etc. It's a horrible situation and I'm looking at losing everything (job loss) and I don't think I will be able to recover my finances this time because my narcolepsy is getting so bad. How could I get disability for this? What happens if a treatment comes around that works, can I get back off disability? If I can somehow start a business and hire other people to do the work in order to get off disability, would I be penalized for trying to get off disability? Even working full-time telecommuting, I get accused of being drunk or using drugs because I randomly sound drunk or on drugs even over the phone. It is so frustrating. Please advise as to what options I have, if any, and thank you for writing something up on the web about this.

Here are my thoughts: Yes, narcolepsy can be the basis for a Social Security disability claim.  Please refer to my August, 2006 blog post referenced above.   If a new treatment is developed, you may absolutely terminate your disability – in fact, if you return to work you are required to notify the Social Security Administration.

SSA encourages disabled claimants to try to return to work.  You are eligible for a trial work period of up to 9 months in which you continue to collect your full benefit even while working, and you are eligible for an extended period of disability, which expedites your return to disabled status if you are unsuccessful in your return to work (after your 9 month trial work period).  You can read more about trial work periods and the extended period of disability by clicking on the link.

I would be careful about the home based business idea.  As I have said on many occasions, Social Security sees disability in black and white terms – either you are or you are not.  If you perform part time work, or if you manage a profitable business part time, you will have an uphill battle convinciing Social Security that you are not engaged in "substantial work."

Let me also suggest to Michael that he look into his rights under the Americans With Disabilities Act.  Under this law, covered employers are required to make "reasonable accommodations" for workers with certain medical conditions.  I am not an ADA lawyer but I think that this law may have some applicability here.

Bottom line – for Michael, he may very well have a viable narcolepsy disability claim.  That claim will have the best chance of success if he is not working while the claim is pending and if he gathers medical, employment and personal observation evidence to support his claim.

Post from: Social Security Disability Blog

What Strategy Should Narcolepsy Claimant Use to Win Benefits?

I am just wondering if I am wasting my time, my son has been diagnosed adhd for about 4 years now, I think its more but we havent gotten there yet. He is in regular classes but is also in resource at school, he also had to be held back a grade due to his problems the first year being diagnosed. Would he possibly qualify at all for disability benefits.

Jonathan Ginsberg's response: In order to win a child disability case, you will need to show that your child meets a Listing.  The Listings for children are different than the Listings for adults.  You can review the childhood disability listings by clicking on the link.

The Listing for ADHD may be found at Listing 112.00 Mental Disorders-Childhood.   I can tell you from experience that you will have an uphill battle with an ADHD claim.  There are a lot of parents out there who are filing disability claims on behalf of children and basing their claims on ADD or ADHD.  That is not to say that ADD or ADHD is not real or that it is not debilitating for your child.   I just want you to know that judges and medical experts called at hearings will be skeptical.

I would not recommend pursuing an ADHD claim on your own – you will be benefit greatly by consulting with an experienced disability lawyer.  Best of luck to you.

Post from: Social Security Disability Blog

How Do You Evaluate Whether Your Child's SSI Case is Viable?

I have had fibromyalgia for many years, an autoimmune disease requiring weekly chemo injections, herniated discs in my back. I have been on FMLA for 2 years – ran out of time 4 months early this time – will be losing my insurance at work at the end of this month as I cannot afford the expense of Cobra ($650.00) per month.  I am only  able to work around 20 hrs a week which is a struggle.  I cannot quit working completely as I will have no income to support myself at all.  All of this info to answer this question – do I have to be out of work to file for disability? – J

Jonathan Ginsberg responds: J, thank you for your question.  Here is the issue in a nutshell.  At the outset, if you call Social Security to apply (800-772-1213), the first question you will be asked by the operator is whether you are working.  If you respond "yes," there is a chance that the operator will not even take your claim, especially if you are earning more than minimum wage.

Assuming that the Social Security operator does take your claim, here is what you will face:

First, you may have a problem with your date last insured for Title II Disability.  As you may know, you have to be "insured" for Disability.  Except in the case of claimants in their 20's Social Security looks at your earnings record during the 10 year period prior to your becoming disabled.  You need work credits that amount to five out of the last ten years.  Logically, if you are working full time, your "insured" status follows you for approximately 5 years after you stop working.  When you work part time, however, you may very well lose ground and in a worst case situation, your date last insured may have already run, meaning that you would not be eligible at all for Title II.  Unlikely, but a possibility.  You definitely need to find out your "date last insured" for Title II.

Second, I think that part time work muddies the waters.  The legal definition of disability for Social Security purposes is whether you are unable to engage in substantial activity (i.e. work) because of a medically determinable condition or conditions that has lasted 12 consecutive months, is likely to last 12 consecutive months or result in death.  When you are working part time, you create a lot of questions for Social Security.  Is your work "substantial" (this is a legal determination)?  when is your onset date?  could you perform a less demanding task 40 hours a week?

The disability adjudicators who work for the State Agencies (the initial application and reconsideration appeal decision-makers) do not have the training or authority to find your disabled when there are so many legal determiantions that have to be made.  This means that your case will end up before a judge at a hearing at some point in the future (18 months to 3 years down the road).  Judges see folks all day, every day who are not working at all.  While they admire the work ethic of someone who is working part time, the issue usually comes down to whether that claimant could perform a lighter, less demanding job full time.  I can't cite any statistics, but I'd be surprised if the approval rate for claimants working part time is more than 20%, as opposed to around 50% for claimants as a whole at hearings.

So, in my view, part time work makes it less likely that you would be approved.  Every case is different, of course, and you should speak with an attorney who practices where you live for legal advice.

Post from: Social Security Disability Blog

Can I File for Disability if I am Working 20 Hours Per Week?