Recently a young man wrote me to ask my opinion about whether he qualifies for some form of Social Security disability. In his very thoughtful email he asks a number of questions that I suspect a lot of folks are wondering about.
After practicing in this area of law for 20+ years I can generally sense fairly quickly whether someone has a viable case. In my last blog post I discussed what I look for generally in a mental health disability claim. So now I thought I would explain – step by step – how I analyze potential client inquiries using this case as an example.
Obviously I will not use this gentleman’s real name and I will change the facts a little to preserve his anonymity. Continue reading →
Are you pursuing Social Security disability benefits based on a mental health condition such as:
A significant number of disability applicants list mental health problems as either a primary or secondary impairment that prevents that applicant from working. From my perspective as a disability attorney who speaks with hundreds of honest, sincere claimants every year, I think that mental health disorders are both extremely common and widely untreated in the general population. In short, there are a lot of folks out there who are really suffering and far too few get treatment that could really improve their lives. Perhaps you fall into this situation. Continue reading →
When you pursue disability benefits, you will be asked to fill out numerous forms by Social Security. You will find that many of these forms are repetitive – they seem to ask for the same information over and over.
Having spent a good deal of time with SSA’s forms (I wrote a book about how to fill them out properly), my guess is that this redundancy arises from the overall dysfunction at the Social Security Administration. Someone, in some far away office somewhere in the country, was given the assignment of heading up a team to update SSA’s disability forms. Government agencies rarely simplify anything so this nameless bureaucrat and his/her comrades no doubt spent months changing the format and the fonts, and adding questions to the forms.
Since there are only so many ways to ask you for an explanation why you believe you are disabled, the new forms ask for the same information 5 or 6 different ways.
With a few exceptions discussed below, I am not convinced that anyone with any decision making power actually reads your responses to these forms but you have to fill them out. Continue reading →
You probably would not be surprised to discover that the most common impairment cited by Social Security disability applicants involves back pain. Because disability adjudicators and judges see so many back pain cases, you cannot simply walk into a disability hearing and testify that your back really hurts and that you cannot lift very much, walk very far, or sit very long, and expect to win.
Instead, Social Security disability judges expect to see evidence in the form of diagnostic test results (such as an MRI or CT scan), treatment notes from one or more physicians – ideally specialists – dating back months or years, evidence that conservative treatment like physical therapy or epidural injections have failed, and evidence that you are either a surgical candidate or that you have been referred for long term pain management.
In addition to evidence related to your back pain, Social Security judges look at evidence about other conditions such as depression, anxiety, diabetes, heart problems, and non-medical factors like your age, education, and work history.
Because so many folks have questions about back pain disability cases, I thought it would be helpful to describe the types of musculoskeletal pain cases that are getting approved at the end of 2017 and into 2018, and which types of cases are not being approved. Continue reading →
In order to win disability benefits from Social Security, you (and your lawyer) have the burden of proving that you meet SSA’s definition of disability – that you are unable to engage in substantial gainful activity because of a medical or mental health condition that has lasted or is expected to last 12 consecutive months or result in death.
There are three (3) ways you can prove that you meet this definition:
meet a Social Security listing
fit within a “grid rule”
prove that your capacity to function at even a simple, entry-level job has been so compromised by your multiple medical issues and/or medication side effects that you would not be a reliable employee
I want to explain why you need an “elevator speech” for your Social Security disability case.
If you are not familiar with the term elevator speech, it comes from the world of job search. Imagine that you are in need of a job and you find yourself in an elevator with the CEO of a company that would be a perfect fit for your skills and education. You have a 45 second elevator ride to introduce yourself to the CEO, tell him (or her) who you are, and how you would be the ideal candidate for a job at his company.
45 seconds is not a lot of time – you need to cut out the fluff and convince this busy CEO why you would be a benefit to his company.
You should use this same approach when you are communicating with Social Security and especially when you are testifying to a judge. They have something you want – the power to award you life changing disability benefits. So it stands to reason that you need to make the claims adjudicator or the judge’s life easy by demonstrating how you fit SSA’s definition of disability.
Focus on Social Security’s Definition of Disability
Fortunately, you don’t have to guess about what they need – Social Security tells us in clear terms that in order to qualify for disability you have to prove that you are unable to reliably perform the duties of even a simple, entry-level job because of a medically determinable condition. You also have to prove that your job limiting condition has lasted or is expected to law at least 12 consecutive months or result in death. Continue reading →
WXIA TV in Atlanta recently ran a story about a 53 year old U.S. Navy veteran who was approved for VA benefits but denied for Social Security. Retired Navy vet Daniel Norfleat from Covington, Georgia was deemed 90% disabled and unemployable by the VA for PTSD, a heart attack, a stroke and knee surgeries. Mr. Norfleat applied for Social Security disability and was approved, but SSA changed his onset date.
Norfleat appealed and his case went before a Social Security administrative law judge. The ALJ not only refused to change the onset date but she reversed the finding of disability entirely and ruled that Mr. Norfleat has the capacity to work at a full time job. This despite opinions to the contrary from 15 different doctors and prescriptions for 24 pills a day for pain, depression and insomnia.
Under new rules released by Social Security, their judge no longer has to explain why she disagrees with the VA’s decision. These new rules also provide that Social Security no longer has to give controlling weight to opinions about employability issued by treating physicians. See my video here about these new evidentiary rules. Continue reading →
Can you get more money from Social Security disability if your physical or mental health condition takes a turn for the worse after you are approved for disability benefits.
Unfortunately, the answer to this question is “no.” The amount of your SSDI benefit is based on a calculation that looks to the amount of Social Security taxes you paid into the system. If you are found disabled and unable to work by Social Security, you get a monthly payment based on SSA’s formula. A deterioration of your medical condition will not cause your monthly benefit to increase.
If your medical or mental health condition improves to the point where Social Security concludes that you can perform the duties of a simple, entry-level job, SSA can cut you off, and the termination impacts your total monthly check – there is no partial disability in the Social Security disability system. Continue reading →
What should you do if you receive a notice from Social Security that they have reviewed your case and determined that your medical condition has improved such that you are no longer disabled, and that your benefits will be cut off as of a certain date?
This type of termination is being processed under something called a continuing disability review (CDR) and we are seeing more and more of these CDR termination notices.
First of all, do not panic. Under Social Security’s rules you will have an opportunity to contest SSA’s termination decision. You can also choose to continue receiving your benefits while the CDR evaluation process drags on – this can take a year or longer. Continue reading →
Effective March 27, 2017, Social Security has changed its long-standing policy about how it treats medical records and opinion evidence form your treating physician. Prior to March 27, 2017, evidence from your treating physicians would be given “controlling weight” by a Social Security adjudicator or judge.
Now, records and opinions from your long time treating doctors will be given no special weight. Instead, medical opinions from your treating doctor, consultative doctors and even non-examining medical consultants will be evaluated equally based on “persuasiveness.”
What does this change mean to you?
At first glance, this rule change seems to make no sense at all. Clearly a physician who has treated you for 10 years would have a more educated opinion about your capacity for work than a consultative doctor who met you once 2 years ago for 45 minutes, or a Social Security in house doctor who only knows you through his review of your medical records.
And, yes, there is a danger that a judge who has made up his mind not to approve your case will now have an easier time justifying a denial of your case. Continue reading →