I recently reached out to my colleague attorney Stanley Denman, a Dallas – Ft. Worth, Texas disability attorney. This is a transcript of our conversation about mistakes to avoid and tips for winning disability claims.

Jonathan Ginsberg:  What are the biggest mistakes you have seen Social Security disability claimants in Texas make over the years?

Stanley Denman:  As you know, no one plans to be disabled, and few disability claimants have an experience with the process of applying for and winning social security disability benefits.  So it’s not surprising that disability claimants make a lots of mistakes – we all would! In my opinion, these are the biggest ones:

• “Any lawyer will do.”  Texas disability claimants often hear that “you have to get a lawyer” to win disability benefits.  They wrongfully assume that the “J.D.” after the lawyer’s name is all that matters. Social security does not grant disability claims just because a lawyer is involved.  In fact, an inexperienced and inattentive lawyer can hurt more than help in winning a case.

• Failing to Understand That Ongoing Medical Care is Crucial.  The scenario is all too familiar to us both, Jonathan: medical insurance linked to a job ends with the job termination unless COBRA rights are available and exercised.  And many newly disabled and unemployed persons cannot afford the high medical premiums under COBRA. But we both know that a Social Security disability claimant without continuing medical care rarely wins, and that Social Security is not forgiving on this issue.  An administrative law judge may truly feel sorry for the claimant who has no money to continue medical coverage, but this sad reality is unlikely to turn a “denied” into an “approval.” Disability claimants must often make radical changes (i.e., sell the second car, or send a non-working spouse back to work) and re-prioritize their budgets to pay for medical insurance.
  

• Failing to Understand Disability Approval is a Long, Long Road.  Texas disability claimants (just like Georgia disability claimant, I am sure) are shocked and astounded by how long they can expect to wait for disability approval and payment.  Many, however, cling to the hope that their case will be different, and that an approval may come any day. While this is always possible, disability claimants need a long-term plan on how to survive.  I worry that the constant “status checking” and monitoring of their claim adds to a disability claimant’s frustration, and might even be bad for their mental health.

Jonathan Ginsberg:  We are both seeing the percent of disability applicants that are denied at the administrative law judge hearing going up.  What can you tell someone who is disabled but nevertheless discouraged by this trend?

Stanley Denman:  Yes it is true that Social Security disability denial rates are going up in Texas.  In the Dallas/Fort Worth hearing offices we have seen a number of ALJ retirements and replacement by new ALJs.  In general, very few of these judges are paying beyond 50-60% of claims, and several have abysmal approval rates.  But qualified, truly disabled persons are still approved every day. People need to realize that the 50-60% of those not approved include people who in fact have no significant medical problem and would not be approved by even the most claimant-friendly judge.  Truly disabled Americans should not be discouraged by a tightening of case approvals. 

Jonathan Ginsberg: As you know, I live and practice Social Security disability in Georgia, and you are in Texas.  Both of our states have rejected the expansion of Medicaid under the Affordable Care Act (the “ACA”).  How have Texas social security disability claimants been affected by the state of Texas’ failure to expand Medicaid under the ACA? 

Our respective states have taken an action that has hurt disability claimants in both Georgia and Texas.  As you know, the expansion of Medicaid under the ACA was intended to bring medical insurance coverage to the “bottom rung” of the income ladder through Medicaid expansion, (i.e., those with no income).  Obviously disabled people unable to work are likely a part of this group with no income that could benefit from ACA Medicaid expansion. But when the U.S. Supreme Court ruled it unconstitutional for the federal government to force state governments to expand Medicaid under the ACA, it left a big hole at the bottom of the ACA’s scheme to bring medical coverage to all.   

For those seeking disability in Texas who are eligible for a premium subsidy, we have seen a benefit, though high deductibles are a continued problem.

Jonathan Ginsberg: As a Social Security disability attorney in Texas what is your approach to winning a disability claim?

Stanley Denman: Probably much the same as yours.  You have written 2 blog posts in particular Jonathan that nicely focus on what an effective strategy should look like: (i) Why you Need an Elevator Speech for Your Disability Claim and (ii) Why You Should Avoid Labels at Your Social Security Disability Hearing.   

Winning a disability case usually turns on one or two symptoms and limitations.  While every symptom and problem is important, focusing on the one or two “keystone” problems that win the day is crucial.  Analogizing a short elevator “pitch speech” to a winning answer to the “why-can’t-you-work” question highlights the need to keep testimony crisp and on point.  Our hearing preparation meeting focuses on honing this key part of the claimant’s hearing testimony.

In my experience claimants often respond to questions from the administrative law judge with an emphasis on the name of their diagnosed malady or disease.  It is as if some assume that the administrative law judge will award benefits upon hearing they suffer from a malady with a scary “label.” But as you know, the administrative law judge has already reviewed the medical record, and she knows the diagnosis.  The judge wants to know the impact that diagnosis has on the ability to work.

So when a claimant answer the “why-can’t-you-work?” questions by saying, “I have Fibromyalgia,” he has substituted a “label” for responsive and helpful hearing testimony. In preparation for our Texas disability client hearings, we ask our clients to speak only of the limitations and problem they are experiencing, (unless of course the administrative law judge asks point blank about the diagnosis).  Sometimes when our clients are having trouble purging the “labels” from their practice testimony, we ask them to “pretend” they have no diagnosis – that there are no “labels” for their physical or mental problems. This often helps them emphasis their symptoms and limitations and their impact on work-related activities.