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 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.
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 →
This is the video segment about Social Security disability delays, hosted by investigative reporter Randy Travis of Atlanta’s Fox 5 TV. Travis highlights what most Social Security disability lawyers already know – that the judge assigned to your case could mean more than the medical records in terms of whether or not you receive benefits.
In the Atlanta downtown hearing office, there are judges who approve less than 20% of cases, and judges who approve more than 70%. So two identical claimants – each with the exact same medical issues – would likely get different results based solely on the luck of the draw.
And you are going to wait – often two years or longer – before you even get the chance to appear before that judge.
While there are other problems with the SSD process, Mr. Travis’ report highlights two of the biggest issues – the wildly divergent approval rates by judges within the same hearing office and the outrageous delays.
Greg writes: “I have seen many if not all of your YouTube videos and have to say you probably are the best disability lawyer on there. My case is rather unusual in the sense that I do not have one injury, I have three. I have a bad back, one herniated disk that causes a lot of pain for me and three bulging disks that are bad in their own right. My right hip is bad and needs replacement, I am on year 6 since it’s discovery. I also have two feet that have chronic pain from bad plantar fasciitis that have both been operated on with little to no success.”
“How on earth do I and my lawyers tackle this in a manner in which I can get approved ??? Should I have my primary doctor do a functional test on me for all three injuries or have each specialist do a functional test on each injury? Secondly is an MRI going to sway a judge more than an X-ray when these days X-ray specialists write their findings and send it to the treating doctors themselves.”
“Any advice would be much appreciated, and keep up your great work with helping us needy and injured.”
Greg, here are my thoughts. First, thanks for the kind words about my YouTube channel. I do put a lot of effort into creating these videos and I appreciate your positive feedback.
As far as your medical issues are concerned, I would defer to your lawyer who obviously can review and assess your medical problems. Speaking generally, however, my experience has been that it would likely be an uphill battle to base your disability case on planar faciitis since that condition is usually not totally disabling. It can eliminate categories of jobs that require more than minimal standing and walking but probably not sitting jobs. Continue reading →
The Michigan Court of Appeals recently issued an interesting decision in a case called In re Robby Lampart about the right of a state agency to go after a claimant’s Social Security disability to enforce a criminal restitution order. In a tightly written opinion which you can read here, the Michigan appellate judges held that a trial court could not use its power of contempt (i.e., putting a defendant in jail) to coerce that defendant to use Social Security funds to pay his obligations.
Usually, of course, the payment dispute involves child support rather than criminal restitution. My sense is that if other courts adopt the Lampart court’s reasoning in child support cases, custodial parents would not be able to use contempt actions to incarcerate disabled non-custodial parents although they could use contempt actions to find out what other assets that non-custodial parent might have.
Here’s what happened in the Lampart case.
Lampart’s mother, Diana Alexandroni, was ordered to pay criminal restitution of $28,210 at rate of $250 per month. The trial judge ordered Ms. Alexandroni to submit to a wage garnishment of $62.50 per week from her job with the funds payable to the State of Michigan. Continue reading →
This is a good question – the short answer is that judges will look to vocational expert witness testimony to determine whether a claimant has acquired transferable skills.
Your question got me thinking that it might be helpful to review how the grid rules work and to take my readers through a grid rule analysis, so, here you go:
The grid rules, or “medical vocational guidelines” can qualify you for Social Security disability benefits even if you have some capacity to work, but you are not likely to find work because of limited skills and a limited education.
In order to qualify for a finding of disability under the grid rules you must have exertional limitations. This means that your medical issues must impact your physical capacity. Thus, a person asserting disability based on depression, or bi-polar disorder, or schizophrenia could never qualify under the grid rules [1. Such a person could, however, qualify for disability based on a listing or using a functional capacity argument.]
The grid rules look at several factors: your age, your education, the skill level of your past work and whether or not your past work generated any transferrable skills. SSA lays out these factors in a table divided by grid lines – thus the name.
When a judge applies the grid rules he first must make a decision about your capacity for work. If you are limited to sedentary work, you are more likely to be found disabled under the grid rules than if you are limited to light or medium work.