There is no question that Social Security has made it much more difficult to qualify for disability benefits. Statistically, hearing approval rates have dropped from 62% in 2010 to 45% in 2015, which is a significant drop. There is one hopeful sign: approval rates by judges nationally in 2014 were also 45% which suggests that the trend is not getting worse.
No doubt our elected representatives in Washington, D.C. have been putting pressure on Social Security officials to keep approval rates down. The disability trust fund came close to running out of money in 2016, but at the last minute was shored up when Congress transferred funds into the disability funds from other accounts. There is also a widespread perception that judges have been too lenient in approving claims, and there have been a few high profile cases of outright fraud (although these cases capture a lot of attention they represent only a tiny fraction of awards).
In my practice I definitely sense that administrative law judges give much more scrutiny to claims of younger individuals – Social Security defines “younger individual” as anyone under the age of 50. No doubt, SSA administrators regularly remind judges that a 30 year old approved claimant will be drawing on the trust fund for another 30 years, whereas a 55 year old claimant will likely draw on the fund for only 7 or 8 years.
So, if you are under the age of 50, you will have more of an uphill battle. However, disability judges regularly approve younger claimants if the medical and other evidence directs a finding of disability. Here the most important factors that I consider when evaluating a claim by a younger individual: Continue reading →
Intentionally or not, the Social Security Administration has done a good job selling the idea that winning disability benefits is extremely hard. Bloggers (including me) write about the long delays and the arbitrary nature of decisions and the possibility of drawing a judge who would not approve a deathbed claimant.
Clearly, claimants without compelling medical evidence are having an increasingly difficult time winning. Ten years ago, judges were much more likely to accept your testimony about your work activity limitations – now, judges are looking for extensive medical evidence.
I often hear from, or end up representing disability claimants who have been denied at the administrative (initial application or reconsideration) and who are about ready to give up. Ironically, many of these claimants have cases that are likely to be approved because the medical evidence is so compelling.
Recently, I received an email from a gentleman named Kevin who was turned down at reconsideration, and wants to know what I think about his chances. I don’t have access to his specific medical records but, after reading his case summary, I would be shocked if he was denied. I would guess that 95% + of judges that I might see would approve this case after submission of a brief or after a brief hearing.
As I have discussed before in writing and on video, the state agency adjudicators are not judges and they do not have the experience or authority to make value judgments. Adjudicators are looking for listing level impairments without any reservations. Continue reading →
Social Security disability hearings generally last less than an hour, but the agency’s hearing backlog currently averages over 18 months in many locations. When you add the 8 to 12 months it takes for SSA to conduct its administrative review, most disability claimants won’t see the inside of a courtroom for over 2 years from the date they apply for benefits.
If you are waiting 2 to 3 years for your chance to spend an hour with a judge, you cannot afford to waste time or come to your hearing unprepared. Nevertheless, far too many disability claimants waste or misuse the precious time they have with the judge by testifying ineffectually. Continue reading →
Back in May, 2014 I released a video about trick questions from Social Security disability judges and I continue to receive a great deal of feedback and comments on that video. In the 2014 video I talked about one type of trick questions but there are many examples you should know about – thus this new video.
My experience has been that disability judges are not trying to treat you unfairly with their questions, but instead, use their experience and knowledge to ask probing and incisive questions. More specifically they want to assess your credibility by asking questions to which they already know the answer so they can see how you respond.
Many of these questions relate to your medical record – comments you may have made to your doctor about work attempts, stopping bad habits like smoking or marijuana use, or even about how you are feeling on a particular day. You may have forgotten about that quick conversation you had with your doctor 2 years ago, but there is a good possibility that your doctor wrote down the substance of what you said. Continue reading →
When your Social Security disability hearing is scheduled, you can help your cause by thinking about Peyton Manning while you prepare for your hearing date.
Manning, as you probably know, recently retired from the National Football league after 18 seasons, capped off by a league championship this past February.
But Peyton’s greatness and success on the football field is not especially relevant to your disability case. Instead, his focus and drive in coming back from a serious neck injury and four (4) neck surgeries, including a disc fusion, are worthy of review.
Peyton could have retired after his September, 2011 surgery. Following this surgery and continuing to this day, he has no feeling in the fingertips of his throwing hand. When he first started rehabbing, he could barely throw a football 10 yards and was in constant pain.
Had Peyton retired in 2011 or 2012 no one would have questioned his decision, nor would his status as a hall of famer been challenged. Continue reading →
When you apply for disability benefits, one of the first questions that Social Security will ask you is “when did you become disabled?” or “what onset date do you want to use?” Social Security calls this date your alleged onset date and it will be used throughout the course of your disability claim.
Interestingly, many of my clients tell me that this question caught them off guard – what date should they choose? Sometimes, as we approach a hearing date I may discover that we have to change, or amend, the onset date. But, as you will see, it is much better to choose the right onset date early on as opposed to changing it later.
What is the “Best” Onset Date for Your Disability Claim?
Social Security will find that you are disabled if the symptoms arising from your medical problems make it impossible for you to work. Thus, your onset date ought to be the day when you could no longer perform the duties of any type of work even a simple, entry-level job. Continue reading →
With approval rates on the decline at hearing offices throughout the country, disability lawyers and their clients have to find creative and compelling evidence to make their cases stand out.
In my practice I regularly look for evidence beyond medical records and medical source statements. Often times you can find very convincing evidence in the form of employee files, school records, statements from former co-workers and supervisors and claimant maintained pain diaries.
Now, to be sure, judges are most concerned about your medical record and how your medical issues impact your capacity to work. However your doctor’s main concern when keeping medical records tends to focus on medical issues alone – rarely will medical records contain the specific vocational capacity observations or opinions that judges rely upon.
We can ask your doctor complete a functional capacity evaluation or narrative report (often at a cost of several hundred dollars) but some doctors do not wish to get involved in disability matters and others don’t feel equipped to make vocational capacity conclusions.
This is where unconventional evidence comes in. Continue reading →
This month I received two questions via the Speakpipe app on my blog about outside earnings and Social Security disability. The first gentleman is applying for disability and wants to know how much he can earn without jeopardizing his case, while the second gentlemen wanted to know how much an approved claimant (his son) could earn without jeopardizing his SSDI award.
Neither gentleman left an email for personal reply so I am using my blog to respond.
The raw number that applies to both of these questions is the current SGA (substantial gainful activity) figure. For 2015, the figure is $1,090 per month. For 2014, the SGA number was $1,070 per month. This number will change every year. Here is the current link to the page on SSA’s web site which shows the current SGA figure. If this link changes you can search “SGA and Social Security disability” to find the current number.
So now you know that the earnings limit for both disability applicants and approved disability claimants is the same – the current SGA number. However, that is not the end of the story. My experience has been that SSA treats disability applicants quite differently from approved disability claimants. Here’s what I have observed: Continue reading →
Is it really easier to win a World Series ring than to win Social Security disability benefits? Atlanta’s Fox 5 reports on the sad case of former Yankees second baseman Brian Doyle who has been denied twice by Social Security despite a bout with leukemia and a serious case of Parkinson’s Disease.
Atlanta’s Fox-5 recently reported a story about Mr. Doyle who has been waiting months and months for a hearing with a Social Security judge despite battling leukemia, two neck fusions and a diagnosis of Parkinson’s Disease.
With all of the chatter by political types about “rampant fraud” and abuse, the reality is that deserving claimants like Brian Doyle continue to suffer because of Social Security’s delays and inefficiencies.
And there is no guarantee that Mr. Doyle will be approved. Approval rates in the downtown Atlanta hearing office range from less than 20% to over 65% so whether this obviously disabled gentleman gets approved will rely as much on the luck of the judicial lottery as his medical records. Mr. Doyle is represented in his case by a very capable lawyer, my good friend Greg Rogers, so hopefully this deserving claimant will get some good news soon.
Link to the Fox 5 story
You have probably heard that the Social Security disability trust fund will run out of money in 2016 and that all beneficiaries will face an across the board cut if Congress does not act. There are a number of relatively painless accounting moves Congress can make to shore up the system and the inability of our elected representatives to take action arises more from political grandstanding than concern about the numbers or concern about the truly interested parties – disabled people who have worked and paid money into the system but who are now unable to work.
One thing that everyone can agree upon is that the system needs help.
- Social Security recently announced that the $300 million computer system they purchased to run its massive bureaucracy does not work so that will have to be redone.
- The disability system uses a labor market analysis resource called the Dictionary of Occupational Titles to help judges understand if you have the capacity to function in the working world. Unfortunately the D.O.T. was last updated in 1991 and includes such occupations as typewriter repairperson, telegram messenger and horse-and-wagon driver.
- The approval rate among judges within the same hearing office can vary wildly. For example in the Atlanta downtown hearing office, there is one judge who approves 3% of cases assigned to him while another judge two doors over approves 66% of his cases. How would you like to see Judge 3% on your hearing notice?
Unfortunately with all the political grandstanding, the academics are coming out of the woodwork with their observations and solutions. This past week Professor Mark Warshawsky and economics grad student Ross Marchand published an editorial in the Wall Street Journal basically asserting that disability claimants can easily game a fraud riddled system.
While The Warshawsky/Marchand piece fits a certain narrative it is so riddle with factual errors that one questions what research standards now apply in academia. Continue reading →