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 →
I have changed how I prepare PTSD disability claims involving combat veterans. Over the past few years I have represented dozens of “wounded warriors” – men and women who have served our country in Iraq, Afghanistan and elsewhere in the middle east. Perhaps you or a loved one find yourself applying for disability based on PTSD along with other degenerative physical issues such as chronic back or knee pain.
Many of the soldiers I represent served multiple tours of duty – often I represent retired military clients who served on active duty for 5, 8, 10 years or more.
In the past, an ex-military Social Security disability claimant who had served in combat duty, with a PTSD diagnosis from the VA and a 90% or 100% VA disability rating was almost certain to qualify for SSDI. For a variety of reasons, disability claimants meeting this profile are being questioned more by SSD judges and are getting turned down more often than before.
I think I understand why combat veteran PTSD claims are being denied and I have changed how I prepare my clients for their hearings.
First, judges are seeing more of these claims, so the stories they hear are less “shocking.” I’m not exactly sure how eyewitness reports of seeing your best friend’s body could become anything less than horrifying, but that is what is happening.
I also sense that SSD judges believe that the VA hands out 100% service connected disability awards based on PTSD to pretty much any combat veteran. I don’t necessary think this is true but I have seen a significant increase in 90-100% VA disability ratings. VA disability ratings are not binding on Social Security. Continue reading →
Over the last few months, I have represented ten different clients claiming disability based on irritable bowel or inflammatory bowel diseases and every one of these cases was approved. My experience has been that disability judges recognize how IBS or IBD can significantly impact your ability get through a workday and thus preclude reliable work.
Since the main issue in any SSDI or SSI claim asks whether you have the capacity to reliably perform even a simple, entry-level job, medical issues that impact reliability will be considered disabling.
In irritable bowel or inflammatory bowel diseases like Crohn’s disease, ulcerative colitis, schistosomiasis, and amebic colitis cause work performance problems such as:
- need to take frequent unscheduled restroom breaks
- unscheduled time away from work station to use the restroomneed for a work station near and always open restroom
- gastric pain that interferes with attention and concentration
- excessive missed days from work due to symptoms
- medication side effects
Continue reading →
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 →