WORK TO DO AFTER THE HEARING

Many people assume that a Social Security disability case is over when the hearing has been held.  This isn't always the case.  Often there is post hearing work that should be done to achieve the best chance of a favorable decision.

Everyone at a disability hearing works under pressure.  This includes the claimant, the representative, the vocational expert and even the administrative law judge.  Hearings are generally limited to less than one hour.  The judge will ask questions that place the claimant under stress to answer correctly.  The representative or attorney will be asked to respond to procedural issues or points of law that place him or her under pressure.  The judge must constantly conduct the hearing so that it follows Social Security laws, rules and regulations.  Further, the judge must form accurate hypothetical questions for the vocational expert based on the medical and vocational evidence in the file and upon the claimant's testimony.  The vocational expert then has less than a minute to respond to complicated hypothetical questions with very complicated sets of facts.

After the hearing is over and the pressure is off - facts and responses will come to mind that may not have occurred during the hearing.  Therefore, it is fitting for the representative to submit a concise post hearing brief or letter that brings up points of law, facts that may have been missed during testimony or more detailed answers to the judge's questions.  There may be challenges or clarifications that need to be made toward the vocational expert's testimony.

Finally, if there is new evidence, it should be submitted as promptly as possible after the hearing.  As a rule, it will take the judge about 45 days to reach a decision - after the hearing is over.  That provides a window of opportunity to clear up any questions or concerns that came up during the hearing.  Obviously, if you know that post hearing work is in order you should inform the judge during the hearing and ask for a specific period of time to leave the record open for submission of new evidence.

PREPARE VOCATIONAL EVIDENCE

We spend a lot of time talking about medical evidence for a Social Security disability claim.  More should be said about preparing vocational evidence for Social Security.  What do I mean by vocational evidence?  It should include an understanding of the following factors.

PAST RELEVANT WORK:  Social Security will consider past work performed during the past fifteen years if that work was performed long enough for the claimant to learn how to do the work.

Concerning Past Relevant Work:  Was it skilled, semi-skilled or non-skilled?  What was the exertion level?  How was it performed?  Why can't the claimant do that work now?

EDUCATION is part of vocational evidence.  A very limited education (7th grade or below) reduces the claimant's ability to transition to other work.  Conversely, a college degree may help the claimant to find skilled work and make a finding of disabled less likely.

RESIDUAL FUNCTION CAPACITY:  This can be thought of in both medical and vocational terms.  It simply means, "What can the claimant still do in spite of his or her impairments?"  If the RFC is not provided by the claimant's doctor, Social Security will determine an RFC based on their consultant's interpretation of the medical record.  Believe me, you don't want that.  You want your doctor to establish the RFC if possible.

SPECIAL TRAINING, SKILLS OR REHABILITATION:  Since the claimant stopped working, has (s)he completed any additional job training, acquired new work skills or undergone any vocational rehabilitation?  

Keep in mind that to be found disabled and qualified for benefits, the claimant must show the inability to (a) perform any past relevant work and (b) perform any other work which is being performed in significant numbers in the local or national economy.  These two key findings are laden with vocational implications that the claimant or his attorney must sort through prior to a hearing.  Failure to prepare for vocational impact on the case would be like a student showing up to take a test for which he has not studied.  It could be a very sad day.
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 Charles W. Forsythe has represented hundreds of claimants in disability cases before administrative law judges in Alabama and Tennessee.  He is founder of the Forsythe Firm in Huntsville, AL but also works in Nashville, Chattanooga, Florence, Anniston and Birmingham.  Representatives can charge no fee for their service until after a case has been won and back pay has been collected for the claimant.  Any authorized fee is paid out of the back pay settlement.
Contact Mr. Forsythe at (256) 799-0297 or visit The Forsythe Firm's Website

FAST DISABILITY DECISIONS AVAILABLE (FOR SOME)Compassionate allowances permits Social Security to approve claims quickly (often in a week or less) for applicants suffering from one of 200 incurable diseases. On December 6, 2012, Social Security Commissioner Michael Astrue met in the Hart Senate Office Building in Washington D.C. to announce reaching the milestone of 200 diseases that now qualify for a speedy compassionate allowance approval. In order to qualify, an applicant must have one of the 200 illnesses on the list. There are still many incurable and tragic diseases that are not on the list and thus do not qualify for the rapid award of benefits. However, the program does provide very quick approval for thousands of applicants each year who suffer from one of the 200 conditions listed. To see the complete list of diseases which qualify for a speedy compassionate allowance disability award, go to the following website: http://www.ssa.gov/pressoffice/pr/compassionate-allowances200conditions-pr.html

Compassionate allowances permit Social Security to approve claims quickly (often in a week or less) for applicants suffering from one of 200 incurable diseases.

On December 6, 2012, Social Security Commissioner Michael Astrue met in the Hart Senate Office Building in Washington D.C. to announce reaching the milestone of 200 diseases that now qualify for a speedy compassionate allowance approval.

In order to qualify, an applicant must have one of the 200 illnesses on the list.  There are still many incurable and tragic diseases that are not on the list and thus do not qualify for the rapid award of benefits.  However, the program does provide very quick approval for thousands of applicants each year who suffer from one of the 200 conditions listed.

To see the complete list of diseases which qualify for a speedy compassionate allowance disability award, go to the following website:

 http://www.ssa.gov/pressoffice/pr/compassionate-allowances200conditions-pr.html

 

MUSIC CITY DISABILITY (NASHVILLE)

I work in Nashville regularly.  No, I'm not in the country music industry.  I'm a Social Security disability advocate.

I drive over to Cumberland Bend or down to Franklin regularly to help clients in Social Security disability hearings.  That's because 7 out of 10 disability applications filed in Nashville and Middle Tennessee will be denied.  You will very likely have to appeal your case in order to get your  benefits.

My firm will provide you with an experienced advocate to develop your case then attend the hearing with you.  We win a majority of the Social Security disability cases that we represent. And there is no upfront cost and no fee unless you win your case and collect back pay in the process.

For more information on collecting Social Security disability in Middle Tennessee, please click on the link below.  It will take you to our website for Music City USA and explain how we may be able to help you.

Click here for more information on how we help the disabled in Nashville and Middle Tennessee

Never, Never, Ever Quit

A few months ago a client came to my office to file for Social Security disability.  He had worked hard his entire life and had a legitimate disability.  I helped him file the claim and explained that 70 percent are denied before they are approved.  Sure enough, the examining agency denied the claim several weeks later.  The letter said, "We found that you are not disabled according to our rules."  I filed an appeal immediately.

About two months later I received an amazing telephone call.  Someone at the Office of Disability Adjudication and Review had reviewed the case, reversed the original decision and awarded full benefits, including more than $30,000 in back pay.

That's why you can't afford to give up on a disability claim.  Just because someone at Social Security says you are not disabled doesn't mean that you aren't disabled.  I refer back to a recent study which found that 6 out of 10 denied claims could have been approved if they'd had a different disability examiner.  The system is far from perfect and mistakes will be made.  That's why you can't give up.  Never take Social Security's word for it the first time out!  Push the case up the chain of command one step and see what happens.  You have nothing to lose.  And at that second step the odds of winning your benefits are much, much better - especially if you have adequate representation.

May I quote the words of the great statesman, Sir Winston Churchill?  "Never, never, ever quit!"

CONTINUING DISABILITY REVIEWS: PROTECT YOURSELF

Social Security will conduct Continuing Disability Reviews (CDRs) periodically to determine whether beneficiaries continue to be disabled and whether they should continue to get disability payments and benefits.  These reviews are typically held in two or three year intervals.  The burden of proving that you are still disabled requires some forethought.  Here are simple, effective things you can do.

• Continue to see your doctor(s) regularly and follow prescribed treatment regiments.  Going 12 months or longer without seeing a doctor is sure to cause problems. Social Security's belief is, if you are sick you will seek treatment.
• Keep a journal or notebook in which you write down the exact dates you visit each doctor, what treatment (s)he prescribed, changes to your prescriptions, etc.
• Keep a record of the dates of any medical tests, MRIs, X-rays, etc. and where they were conducted.  You will need this later in answering your review.
• Keep a careful record of any income you receive other than Social Security benefits--such as pension payments, investment income, annuities, bonuses, etc.  Any substantial extra money that shows up under your name may need to be explained.  It won't be a problem as long as it is not "earned income," i.e., substantial amounts of money you received as wages, tips or salary for work you performed.  But you should be able to explain what the money was for.
• If you get a request in the mail from Social Security to provide them with information, don't ignore it.  Complete all forms carefully and return them promptly.  A continuing disability review will not go away because you ignore it.  Just the opposite, ignoring it may cause your check to be terminated, at least temporarily.
• If, after a review, Social Security notifies you that you are not longer disabled and they intend to terminate your benefit, you have the right to appeal.  There are two options for this appeal, as explained below:

1. Option 1:  Appeal the decision in writing within 60 days.  This will NOT keep your check coming in during the appeal.  Your check will stop but will be restarted later if you win the appeal.  If you want to continue to receive your check during the appeal process, use Option 2 below.
2. Option 2:  Appeal within 10 days and ask that your benefit check continue during the outcome of the appeal.  Your check will continue during the appeal process.  However, if you are not successful in the appeal, Social Security may ask you to repay the benefits you received during the appeal.  Note that the deadline for this appeal is 10 days, not 60 days.  Also, you must specifically state in writing that you want to continue receiving your benefits during the appeal (This is not automatic).

Your job during a CDR is to demonstrate to Social Security that your medical condition has not substantially improved and that you are still not able to perform full-time remunerative work because of your impairment(s).  Social Security will rely upon (a) written statements from you and (b) evidence from your doctor(s) and medical providers to make the decision.  Again, a lack of treatment may be used to indicate medical improvement.

If you cannot afford a professional to assist you with your CDR paperwork, consider a family member, close friend, a community organization or a social service organization that may be able to help.  Finally, realize that most continuing disability reviews do not result in the termination of benefits.  CDRs are quite routine and need not cause undue alarm as long as they are responded to appropriately.  If a CDR does result in an unfavorable decision (stopping benefits), that decision may be appealed, as explained above.

Continuing Disability Reviews (CDRs)

Continuing disability reviews (CDRs) are becoming more of a topic these days among attorneys and the Social Security disability claimants they represent.  When you are awarded a disability benefit, Social Security schedules a future CDR in the computer.  It may be one year in the future or three years, but it will be coming along.  The purpose of a CDR is to determine whether you are still eligible to receive disability benefits.  If Social Security determines that there has been significant medical improvement which allows you to return to work it will terminate your benefits after providing a written notice.  Usually it gives at least a 60 day notice before the checks stop.

Beneficiaries have 60 days in which to appeal cessation of benefits.  However, they only have 10 days to request that their benefits continue pending the outcome of the appeal.  So it is vital that all beneficiaries under the claim give written notice to Social Security that they want their benefits to be paid pending the final outcome of the appeal.  This request must be in writing.

Then what happens?

Beneficiaries (persons receiving benefits) will file a request for reconsideration and give Social Security any evidence they have to support their position that they are still disabled.  You have the right to ask for a face-to-face appearance with Social Security before your reconsideration decision is made.  If the decision is unfavorable, you may ask for a hearing before an administrative law judge.

If your final decision is unfavorable, Social Security can ask you to repay all of the money you received during the appeal (or after your "last regular" benefit check).  However, you may ask for a waiver of the repayment.  If you can prove that your need all of your income for necessities of living, Social Security may waive any overpayments.

As you can see, being the subject of an unfavorable CDR can be quite painful and serious.  Unfortunately, it is often difficult to find an attorney or representative who will help you appeal an unfavorable CDR decision because there is no back pay involved and it is difficult for the representative to be paid for his or her service.  What usually happens is that the claimant agrees to set aside a percentage of the ongoing benefit in an escrow account.  When the appeal is over, the representative can petition Social Security for permission to use money in the escrow account toward his or her fee.  Since representatives often bill $250 per hour or more, unfavorable CDRs can become expensive burdens for Social Security disability beneficiaries.  Fortunately, the majority of continuing disability reviews do not result in an attempt to terminate benefits.

I will be posting a second article on this blog site about what you can do to prevent problems with a CDR.  Look for it on this site, as it contains practical things you can do to prevent problems when (not if) your claim gets reviewed for continuing disability eligibility benefits.

EARLY EVIDENCE GETS EARLY REVIEW!

There is usually a wait of several months to obtain a hearing after a Social Security disability appeal is filed.  However, there are plenty of reasons to submit all your evidence in the case as early as possible.

I recently appealed a Social Security decision and asked for a hearing.  I filed the request for hearing in September in the routine manner.  In December the case was reviewed and approved without a hearing.  The appeal was thus resolved in less than 90 days and my client received checks before Christmas! 

It doesn't always happen that way, obviously, but when there is plenty of evidence, it is always best if you can submit it right away.  In fact, I find there are at least two advantages to submitting medical evidence early:

One, it provides a more likely opportunity for an early review of the case.  Two, it gives the representative or attorney an opportunity to write a thorough brief for the Office of Disability Adjudication and Review (ODAR).

Incidentally, this also points out how unfavorable decisions are often bad decisions to start with.  When ODAR can review a claim that was denied and approve it within 90 days, it was a poor decision to begin with.  So, never accept the first denial.  Appeal - always. 

A final but vital tip:  Always try to get a Medical Source Statement (MSS) from your doctor.  This is a special form that lists specific functional limitations--such as restrictions in sitting, standing/walking, lifting, bending, etc.  It is up to the claimant or his representative to obtain this form.  Social Security will not try to obtain it for you.  The MSS can provide an excellent basis to ask for an early review of your claim.

Often, the early bird gets the.....review!