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Discover How Disabled Veterans Can Optimize Social Security Disability Benefits

Utah Social Security and Veterans Disability Attorney
Joel Ban

Attorney Joel Ban, a Utah lawyer who handles both Social Security disability and Veterans Disability claims recently posted a concise and informative article on his blog describing the similarities and differences between the two programs.  Joel points out that a VA disability rating of 70% or higher can help your Social Security claim – this confirms my experience that Social Security judges will give weight to VA disability findings.

Joel was kind enough to give me permission to reprint his article in its entirety, which I have done below.

VA Disabiltiy and Social Security DisabilityThis article is an overview of the highlights of the major topics for Veterans who have both Veterans Disability claims as well as Social Security Disability claims. A lot of Veterans may have both Social Security and Veterans Disability Claims going on either at the same time or may have received one benefit before applying for the other. VA compensation, aka service connected disability is not based on income so you can definitely receive VA compensation and Social Security Disability (SSDI) at the same time. There is also VA pension which is a needs based program, very similar to Supplemental Security Income (SSI). VA pension will be paid to Veterans if they have very little or no income and are disabled based on non service disabilities. It is possible to receive SSI and VA pension at the same time. Based on your circumstances its best to qualify for both VA compensation and Social Security Disability since they generally are the more generous benefits, however its important to be aware of these other needs based programs.

Major Differences between the Programs

Major differences between Social Security Disability and Veterans Disability is that you don’t need a total disability in order to be eligible for VA compensation. In fact, most Veterans who receive VA compensation do not receive a total disability rating. Veterans can receive a compensable rating as low as the 10% level and can have a rating as low as 0%. In many cases it makes sense to go for a 0% rating even though its not compensable. The reason for this is that it will mean that the Veteran at least has a service connected disability that will likely deteriorate into a more serious problem and later morph into a compensable disability. Many Veterans have trouble proving service connection but with a 0% rating the Veteran will have already crossed this hurdle. Social Security Disability, conversely does not compensate claimants based on a partial loss of employability. You are either disabled or not disabled under this program. Continue reading →

More on Compassionate Allowances and Quick Determinations

Compassionate allowances and quick disability determinationsOn October 13, 2010, SSA announced new rules effective on November 12, 2010 that will allow SSA personnel to fast track disability claims.   Now there are two programs that will allow SSA personnel to quickly approve cases there the medical evidence for disability is overwhelming.

The first program is called the “compassionate allowance” program, and it identifies specific diseases that produce work activity limitations that meet SSA’s definition of disability – in other words, if someone has one of these medical conditions, they would not be able to engage in substantial gainful activity and the symptoms will last 12 consecutive months or result in death.  I discussed the compassionate allowance program in a previous blog post, and you can review the diagnoses on the list by clicking on the link.

The second and newer program is called the Quick Disability Determination (QDD) program.   This program uses a computer program to analyze the electronic claim files to identify “cases where there is a high likelihood that the claimant is disabled” so that a claims representative within Social Security can approve a case without the need to review the claim with a medical or psychological consultant.  In a regular claim adjudication the claims rep, or “Adjudicator” must get a medical or psychological consultant to sign off on an approval, a process that takes time and can yield inconsistent results. Continue reading →

These Questions Always Get Asked at Hearings

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing.   Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

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? Continue reading →

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

Doctors play a pivotal role in the social security disability process. Their contributions of expertise and documentation provide insight to an applicant’s mental and/or physical condition, and this insight may prove useful when a social security adjudicator is reviewing a claimant’s file. In essence, what a doctor’s contributions to a claimant’s disability file can influence the ultimate decision made by the Social Security Administrative Law Judge. For this reason, it is often said that medical records and documentation are the backbone of a successful disability claim, but in this post we look beyond that to discuss the logic of why a doctor’s opinions are so important.

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.

Diabetes and Social Security Disability Case Study Posted

This afternoon, I tried an SSDI case involving a 53 year old woman claiming disability based on diabetes and associated complications.  In reviewing the record it appears to me that my client had been diabetic for several years prior to her diagnosis and has most likely suffered permanent vision and nerve damage.  Unfortunately her medical care has been suboptimal and while she has been compliant with treatment the record does not contain enough for me to make an argument based on the listing at 9.08.  Instead I went with a functional capacity argument.

You can read the case study on my Georgia Social Security disability web site.

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

In a recent post on the importance of claimant credibility, I made a point that your ability to effectively describe your physical pain at the hearing may play a role in helping you win your case. Since physical pain is common to many disability cases, I want to elaborate on this point. Not only should you be able to effectively describe your pain at the hearing, but also throughout the claims process and during doctor’s visits as well.

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.

Your Credibility – A Key Factor in Winning Your Claim

In a previous blog post, I set out several discussion points that I raise with my clients in our pre-hearing conferences.  One of those discussion points has to do with “credibility” – are you a believable witness?

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.

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

In this 10th Q & A post, I discuss how the SSA determines what your functional limitations are.

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.

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

Throughout my Q & A Series, I have discussed the importance of medical records many, many times. Hopefully you are starting to get the idea that you can’t win a disability claim without good medical evidence to back up your claim! Now, I’d like to address one last question about what kind of information should be contained within the records that you submit with your claim for disability.

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.

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