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 →
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
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 →
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 →
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 →
Social Security disability judges are increasingly reluctant to award benefits to fibromyalgia claimants unless these claims meet a certain profile. Let me tell you about this profile – what is currently working for me in disability hearings I try here in the Atlanta area hearing offices. Continue reading →