SOCIAL SECURITY DISABILITY (SSDI) - IMPROVING THE ODDS

In our experience with Social Security disability claims, there are some factors that seem to increase a claimant's odds of being approved for benefits.  Here are some of them:

• a long, steady employment history;
• being age 50 or above (though not required to get benefits);
• failed work attempt(s) after the disability onset, demonstrating the desire to continue working;
•  proper written statements from one or more treating doctors (not just any statement, the proper statement)

 Doctors may provide 2 types of evidence.  One is objective evidence, the other is opinion evidence.  Most Social Security cases go to trial with only the routine medical records from the doctors.  This can't be relied on to produce an award.  Opinion evidence, on the other hand, provides the doctor's opinion about how the claimant is limited in the ability to perform work activities (sitting, standing, walking, lifting, bending, concentrating, remembering, regular attendance, etc.).  Opinion evidence is a little harder to come by and is sadly lacking in most cases that get denied.  It can make a huge difference.

For instance, it isn't enough to have medical records proving that the claimant has arthritis. The claimant is required to prove that his or her medical condition is severe enough to prevent full-time, remunerative work on a full-time basis. 

We often see useless doctor's statements like this:  "Mr. Charlie Brown has been a patient of mine for 10 years and it is my opinion that he is disabled and cannot work at any job."  The problem with such a pronouncement is that it actually violates the federal regulations.  The conclusion about disability is reserved to the Commissioner of Social Security and doctors may not determine who is disabled (20 CFR 404.1527; 416.927, etc.).

What may properly be stated by a doctor?  The answer is, his or her opinions as to the patient's specific limitations or restrictions.  How long the patient can sit, stand or walk; how much can he/she can lift?  What limitations are there in such things as concentrating, remembering, making decisions, reaching, stooping, kneeling, bending, etc.  How many days per month would the patient be expected to miss work because of a medical impairment?  These are examples of things that are permitted and the doctor's opinion in these specific areas are admissible as evidence (although Social Security is not bound by the doctor's opinion).  But the doctor may not conclude that a person is disabled or make a vague statement like, "He is not able to work."

In Huntsville, the Forsythe Firm has helped hundreds of claimants get Social Security disability payments.  We offer free initial consultations and evaluations without obligation.  We are full service disability advocates and can be involved in every stage of your Social Security disability claim--from application through appeal. We never charge a fee unless you win and receive back pay.

PHONE: (256) 799-0297   WEBSITE:   www.forsythefirm.com

DISABILITY: THE ESSENTIAL QUESTIONS

1)  At what age may I apply for Social Security disability (SSDI)?  Answer:  Adults may apply any time before your full retirement age.  (If you were born in 1948, for example, your full retirement age is 66).  Children may apply any time prior to age 18.  There are special rules for adults who became disabled prior to age 22.

2)  What monthly benefit may I expect from SSDI?  Answer: The benefit amount will vary based on your average wages and work history.  The maximum monthly benefit in 2016 is $2,639.  The average monthly benefit is $1,166.

3) Can my spouse or dependent children also receive benefits?  Answer:  Yes, dependents may qualify for benefits based on the wage earner's disability. Dependent grandchildren may also be eligible. A spouse who is caring for a disabled wage earner's dependent children under age 16 may also qualify. 

4)  Will I get Medicare insurance with my disability benefits?  Answer:  Yes but there is a waiting period.  Medicare starts 29 months after the official onset date of disability for SSDI claims. Note that this is 29 months from the disability onset, not from the date of your decision.  SSI beneficiaries get Medicaid and there is no waiting period for Medicaid.

5)  If my doctor tells me I am disabled and cannot continue working, are disability benefits automatic?  Answer:  No.  You must still apply and prove to Social Security that you are disabled according to their rules.  Many times, such individuals are denied and must appeal in order to get benefits.  Appeals must be filed within 60 days of denial.

6)  I saw my doctor today and he does not think I will be able to continue working much longer.  May I apply for Social Security disability now and keep working until I am approved?  I want to have my claim approved before I stop working.  Answer:  No, the system does not permit this.  You must not be working at substantial gainful activity when you apply for disability benefits.  If you are, you will be denied at Step 1, regardless of the medical evidence.

7)  I am 64 years old and retired. I worked for more than 40 years. I've been receiving Social Security early retirement benefits for about 2 years. I've been healthy until now. Recently, however, I was diagnosed with a severe illness for which there is no cure.  Since I am already receiving Social Security retirement, may I file a disability claim?  

Answer:  Yes, you may.  You are under full retirement age and it appears you have adequate work credits to support a claim.  Also, I assume your recent impairment will last for 12 months or more (the duration requriement), so you may file a disability claim and try to prove disability. As long as you are not working, your present income does not matter for a Title 2 (SSDI) claim.  If your claim is successful, your monthly benefit will be increased to the amount you would have received at full retirement age (payable from the onset date of your disability).  Also, you may qualify for earlier Medicare coverage, in the event you are not yet 65 when your case is decided.  You may continue to receive your retirement benefits while your disability claim is being decided.  Even if you eventually do not get a favorable decision on the disability claim, it will have no impact on your retirement benefits, which you will continue to receive.  So, you risk nothing by filing for disability.  A final thought:  At age 62, it may be easier to win a disability claim, compared to a younger individual, thanks to the medical-vocational guidelines.
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If you have a Social Security disability question that was not answered here, or on one of our many blog posts, please call the Forsythe Firm in Huntsville, AL at (256) 799-0297.
There is no charge or obligation for a consultation.

YOU MUST COMPLETE THE "FUNCTION REPORT" CORRECTLY

Social Security disability is awarded base on a claimant's limited ability to function.  It is not awarded based on diseases, but on functional limitations.

The primary way Social Security evaluates your functional ability is by a detailed questionnaire that they refer to as "the ADL (Activities of Daily Living) questionnaire.  The official name of the document is the "Function Report."

The Function Report is an 9-page document with Sections A-D and it contains approximately 60 questions.

I understand the temptation to ignore this form (just not bother with it) or to fly through it quickly because you feel it is a waste of time.  This is a crucial mistake.  You should spend a lot of time with this form.  In fact, this form should be your constant companion for a couple of days until it is completed lovingly, comprehensively, thoughtfully and very, very completely.

The Function Report will ask you things like:

• Do you cook your own food? How long does it take you? What do you cook?
• Do you spend time with others?
• What are your hobbies? How often do you do them?
• Do you go places on a regular basis?
• When you go out, how do you travel?
• Do you get along well with others?
• Do you need help caring for others or pets?
• Do you need help with bathing, getting dressed, or feeding yourself?
• How do your illnesses, injuries conditions affect your sleep?
• Are there things you used to do that your disability now stops you from doing?

Social Security will use your answers to these questions to determine (a) how your illness or injury affects your activities of daily living, and (b) are your allegations of symptoms consistent and credible.

If your application is denied (about 70% will be), the judge who hearings your appeal with use this same Function Report to evaluate consistencies in your symptoms and the credibility of your complaints.  This Function Report literally stays with you from the day your file your claim until the appeal is decided, perhaps 24 months later in some cases.

If you are unable to understand or complete the Function Report in loving, comprehensive detail--get someone who can help you:  a relative, your pastor, a friend, etc.  If you are represented by an attorney or advocate, he/she will understand this form and help you complete it correctly.  But for heavens sake, do not ignore the form or (just as bad) fly through it checking boxes just to say you finished it.  (That's how I used to do my homework, with equally dismal results, I might add). 

USING "OPINION" EVIDENCE TO WIN YOUR DISABILITY CASE

There are 2 types of medical evidence in a disability claim:  objective medical evidence and opinion medical evidence.

Objective medical evidence consists of things like X-rays, laboratory tests, MRIs or CAT scans.  These are found in your doctor's records.

Opinion evidence is quite different.  Opinion evidence is where your doctor or professional renders an opinion on how your medical condition affects your ability to perform certain functions.  

For example, an MRI may show that you have 2 herniated discs in your lumbar spine.  This is objective evidence.  It is what it is.  The doctor may then give an opinion as to how long you can sit, stand or walk.  That is opinion evidence.  If your doctor states:  "The patient would be limited to lifting no more than 10 pounds occasionally, sitting no longer than 30 minutes, standing no longer than 15 minutes at a time, or walking no more than 300 feet," that is opinion evidence.

Opinion evidence is used to form "residual functional capacities," that is, what is the most work like activity that an individual can perform on a sustained basis?  This will be use by decision makers to determine what type of jobs, if any, the claimant would be able to perform.  This, in turn, will determine whether the claimant meets the rules for Social Security disability benefits.

We should note here that broad, general conclusions by doctors are not useful.  For example, the statement, "It is my opinion that this patient is not able to perform any type of work and is totally disabled," is not useful.  This conclusion is reserved solely to the Commissioner of Social Security under the federal regulations (20 CFR 404.1527(d); SSR 06-03(p); SSR 96-6(p), etc.).  

A doctor's statement that addresses the patient's ability to sit,stand, walk, lift, carry, push, pull, concentrate, make decisions or perform other specific work related functions can be very useful opinion evidence.

 

5 THINGS THAT WILL WIN DISABILITY BENEFITS

5 THINGS THAT WILL WIN SOCIAL SECURITY DISABILITY BENEFITS:

1)  Admissible objective medical evidence from acceptable medical sources.

2)  Admissible opinion evidence from acceptable medical sources.

3)  Proper use of the Medical-Vocational Guidelines from 20 CFR 404, Subpart P, Appendix II, the "Grid Rules."

4)  Elimination of the potential for past relevant work, considering the most recent 15 years of your work history.

5)  Elimination of the potential for "other work" as it exists in the national labor force.

Winning Social Security disability cases involves strategic use of combined medical and vocational evidence.  A claimant cannot just submit his medical records, tell his story and trust to luck that he will be approved.  Not with the average national award rate at 42 percent.

STEP 5 IN A DISABILITY HEARING: WHERE MOST CASES ARE LOST

Toward the end of a Social Security disability hearing, there is a kind of side show that takes place between the judge and the vocational expert.  Most claimants are totally unprepared and surprised by this amazing side show.

The judge will use the claimant's medical record and testimony taken during the hearing to pose a series of hypothetical questions to the vocational expert.  Something like this, for example:

Judge:  Assume we have an individual of the same age, education and work experience as the claimant.  Assume this person could perform a full range of light work, as defined by the regulations. Further assume that this person can sit for at least 6 hours out of an 8 hour day, can stand and/or walk in combination for at least 4 hours out of an 8 hour day but would only be able to reach above shoulder level with the dominant right arm on an occasional basis.  Further assume that this individual would be off task less than 10 percent of an 8 hour workday and would be absent less than 1 day per month on a persistent basis.  Could such an individual perform any of the claimant's past relevant work?

Vocational Witness (Reply):  No, Your Honor. The claimant's past relevant work as a truck driver was at the medium exertion level. I also think the limitation that makes past relevant work impossible is your limitation to reaching above shoulder height only occasionally.  I think this rules out past relevant work.

Judge:  Are there any other jobs that exist in the national economy that such an individual could perform?

Vocational Witness (Reply):  Yes, Your Honor.  Such an individual could work at the following:

1.  Assembler:  DOT Code 729.684-054.  This is light work with an SVP of 2.  There are 75,000 jobs in the U.S.
2. Laundry Worker:  DOT Code 361.684-014.  This is light work with an SVP of 2.  There are 68,000 jobs in the U.S.
3. Wire Worker:  DOT Code 728.684-022.  This is light work with an SVP of 2.  There are approximately 125,000 jobs in the U.S.

And so it goes.  What just happened is this:  The vocational witness gave the judge sufficient justification to deny the claim at Step 5 because the claimant can perform several other jobs that exist in the national economy.  This is where most cases are lost at hearing.

What needs to happen here?  The vocational witness should be questioned about a wide range of issues concerning these jobs.  The issues are technical and often complicated.  A series of hypothetical questions should be provided by the claimant's representatives to show that this testimony is not credible and cannot be relied upon to deny the claim.  Unfortunately, the claimant is shocked and has little idea of what to expect and probably no idea of how to question the vocational witness effectively.  Case lost.

An experienced representative or advocate, who has faced hundreds of vocational experts, will be prepared to ask the right questions during his/her examination of the witness.  This may potentially save the case.   

Q.  Is there always a vocational witness at a hearing?  
A.   I have never attended an adult's hearing where there was not a vocational witness called by Social Security.

Q.  Does the vocational witness' testimony always hurt the case?
A.  No.  But in my experience, the vocational witness will give testimony that can deny the claim in 75 to 80 percent of hearings.  

PROVING YOU HAVE A DISEASE VS. PROVING A DISABILITY

Proving that you have a disease or an impairment is different from proving that you are disabled.  poving that you have a disease or an injury will not qualify you for Social Security benefits, unless you meet one of the published Listings, you qualify for a compassionate allowance, or you have a terminal disease.  Otherwise, proving that you have a particular disease or injury may not be enough for disability.

For example, you may have X-rays, MRIs and CAT scans that prove you have arthritis or degenerative disc disease in your back.  However, this does not automatically qualify for any disability benefit.

You must go a step further and show that the arthritis or DDD is so severe that it prevents you from doing at least one of the basic activities required of full-time work.  Basic activities of work includes such things as sitting, standing, lifting, carrying, bending, kneeling, crouching, crawling, reaching, handling, concentrating, following simple instructions, etc.  It will not be assumed that you cannot do these things just because you have arthritis or degenerative disc disease.

Your age has a lot to do with the type of case you present.  If you are age 55 or over, it may only be necessary to prove that you cannot perform the activities of your past relevant work (the work you have performed in the past 15 years).

If you are under age 50, it will be necessary to prove that you cannot perform any full-time work, even sedentary unskilled work.  This is where most claims are lost.

Judges will often find (at Step 4) that you are unable to perform any past relevant work.  This is especially true if your past work was at a medium or heavy exertion level, such as construction, heavy equipment operator, or a job that involved a lot of standing, walking and lifting.  However, they will also likely find that you could still perform light or sedentary work, such as a silverware wrapper, document preparer, garment tagger, inspector or hand packager.  There goes the case.

How do you best prepare for this?  If you have not spent years learning about exertion levels, residual functional capacities, demands of various jobs, categories of jobs in the outdated Dictionary of Occupational Titles (DOT), and other such occupational matters, it is best to use an advocate or attorney who has.  This won't guarantee a victory but it sure gives you a much better chance that you would have on your own.  Most claimants don't know the kind of technical side show they will be subjected to when it comes to testimony about the types of jobs they can perform.  Take someone with you who does!

WHAT DISABLED VETS NEED TO KNOW ABOUT SOCIAL SECURITY BENEFITS

Veterans who became disabled after October 1, 2001 may apply for Social Security disability benefits, regardless of where the disabling impairment occurred.

Social Security's website states the following:

Active duty status and receipt of military pay does not, in itself, necessarily prevent payment of Social Security disability benefits.  Receipt of military payments should never stop you from applying for disability benefits from Social Security. If you are receiving treatment at a military medical facility and working in a designated therapy program, or on limited duty, the government will evaluate your work activity to determine your eligibility benefits.

Even if you are told by someone at a Social Security office that you do not qualify for disability benefits because you still receive active duty pay, you are "still working," etc., be sure to check this with another qualified source.  Social Security personnel are generally well trained, hard working and well meaning individuals who do excellent work.  But, like in all other areas of life, mistakes are sometimes made.  That's why you have attorneys and advocates to assist you with protecting your rights under the Social Security Act and to make sure that you get all the benefits you are entitled to, even when a mistake is made.

If you need to just check out a Social Security disability claim, or appeal an unfavorable decision, please feel free to contact the Forsythe Firm here in Huntsville for a no cost, no obligation discussion.  (256) 799-0297. 

• Location:  7027 Old Madison Pike NW, Suite 108 (across from Bridge St.)
• Our Firm:  Private advocates with focus on Social Security disability. 
• Experience:  We regularly help thousands of claimants with Social Security matters, including claims, appeals, medical evidence, forms....
• While not affiliated with Social Security or the US Government (We work for you), we are Direct Pay Eligible with the Social Security Admin.
• FEES:  No consult fees, no upfront cost.  Pay a fee only if you are approved, and only after you are awarded back pay.  

 

THE SOCIAL SECURITY OBSTACLE COURSE

Social Security disability was set up under the Social Security Act to provide income for workers who became disabled before reaching retirement age.  The program, for the most part, doesn't work.  There are too many obstacles placed in the way.  Here are a few of them.

 Obstacle:  The Application for Benefits.  A typical Social Security benefit application package contains at least 38 pages of forms, questionnaires and documents.  Many people simply cannot complete all these forms in a way that allows benefits to be paid.  Social Security will use some of these forms, such as the Function Report, to deny claims.

Obstacle:  The Consultative Examination.  In some cases, Social Security will order you to attend a "consultative examination" with the doctor of their choice.  This doctor typically spends about 15 minutes with you and performs no lab tests, X-rays or other diagnostic procedures.  In 90 percent of cases, the doctor will find no significant abnormality and will, in effect, pronounce you fit to work.  He will report that you are able to get on and off the exam table without assistance, have limbs that appear normal, have breath sounds that seem OK and that you are "in no apparent distress."  Good to go.  Here comes your denial.

Obstacle:  The Single Decision Maker.  A single decision maker at the Disability Determination Service, who is not a doctor,  will review your medical records and make a decision that you may not be able to perform any of your past work but that there is some other work that you could do.  

Obstacle:  The Burden of Proof.  You are assumed to be able to work until you can prove otherwise.  If you are under the age of 50, it isn't enough to prove that you cannot perform any of your past work (called 'past relevant work').  You must also prove that there does not exist any other job in the United States economy that you are able to perform. This is a very high burden of proof.   Social Security will often argue, for example, that you could do the work of an inspector, garment tagger, ticket taker, egg washer, assembler or hand packager...  They will even argue that you can perform these jobs sitting down and that you can change from sitting to standing any time you need to.

Obstacle:  Interpretation.  Social Security will interpret medical and vocational evidence as it suits them.  If you look out the window and say it's raining, they will say, "Where do you find that in the medical evidence?"  If your doctor gives you a letter stating, "Mr. So-and-So is not able to work," Social Security will say, "The doctor is not allowed to make that decision."  

This is why a huge industry has grown up around Social Security disability.  At least 70 percent of all claims get denied before they are approved.  The appeal process is long, complicated and technical.  Unless you understand Social Security regulations, it can be a maize of terms, processes, interpretations and requirements that you have no hope of understanding. 

 

'RECENT WORK TEST" FOR DISABILITY BENEFITS

If you stopped working more than 5 years ago, you do not have coverage for disability with the Social Security Administration.

You need to recent work to be eligible for disability benefits.  You must have worked at least 20 out of the last 40 quarters, or more simply put, you must have worked 5 out of the last 10 years.

If you stopped working at a job that pays FICA tax more than 5 years ago, you will not be able to get disability benefits, no matter how much you paid into the system.  That money remains in the trust fund (pool) until you reach retirement age.

Your Date Last Insured (DLI) is the date you stopped being insured for disability claims with Social Security.  If a disability begins after the DLI, it is not covered.  This is one more good reason not to delay in filing a claim as soon as you feel you have become disabled.

WHAT IF YOUR APPEAL (HEARING) FAILS?

I've stated here many times that when Social Security denies a disability claim, you must ask for a hearing (appeal).  What happens when you go to the hearing and get denied again?

The next step is to ask for a review by the Appeals Council (AC).  You will use form HA-520 for this.  

The AC will review the judge's decision and the rationale he/she used in reaching the decision.  If it appears that the judge did not give adequate weight to the medical record, or made some other error in reaching the decision, the AC may remand the case back to the administrative law judge for further action, usually a new hearing.

The Appeals Council could, in very rare cases, overturn the judge's decision and award benefits.  However, this happens in less than 2 percent of all cases.  The most common remedy, if the AC does anything at all, is to remand the case back to the judge for another hearing.  This gives the claimant a second chance with the judge.

You may file an appeal with the AC as many times as you like, even after a remand and new hearing--unless the AC finally denies the appeal and let's the judge's decision stand as the "final decision."  At that point, your option is to consider a lawsuit against the Commissioner of Social Security, such suit to be filed by your attorney in a Federal District Court.

FIND A LOCAL ADVOCATE OR ATTORNEY

An industry has grown up around helping claimants get Social Security disability benefits.  That is because most claimants who try on their own are denied.  They spend years trying to get benefits only to be denied.  Finally, they turn to a professional who knows how to help them.

There are many excellent attorney and non-attorney advocates who are skilled in assisting you with the difficult Social Security disability process, including hearings and appeals.  My one piece of advise would be this:  Seek out a local North Alabama advocate or attorney who lives in your community and has an office close to you.  Avoid going to California, New York or Los Vegas, where you must deal with your representative over the telephone or by mail.

Every city and small town in Alabama has many attorneys or advocates who are trained and experienced in handling federal administrative law, the branch of law that deals with government agencies, such as the US Social Security Administration (SSA).  You can walk into one of these offices, meet your representative face to face, ask questions, get advice, or talk about your claim or hearing.  You cannot do that with the big corporate boys in Los Vegas or Chicago.  They may or may not even return your calls.

A local representative is more likely to emphasize getting to know you as a person (not just a claim number), preparing your case or appeal himself or herself, and attending the hearing with you, rather than sending someone from out of town whom you have never meet before.

Some questions you may want to ask your representative before you hire him or her:

• Are you experienced in dealing with Social Security disability claims?
• Have you appeared before administrative law judges?
• Are you qualified to receive direct payment of fees from Social Security?
• Do you have a local office where I can meet with you and discuss my case?
• Will I have access to my actual representative, or will I deal with someone else? 

The Forsythe Firm
Social Security Disability Counselors
7027 Old Madison Pike NW
Huntsville, AL 35806
(256) 799-0297         "Across from the Bridge Street Mall"

  

HOW TO GET A FREE DISABILITY CLAIM EVALUATION - NOW

The Forsythe Firm in Huntsville, AL is offering free, no obligation evaluations of Social Security disability claims.  We will evaluate your claim before you file, recommend the best approach and tell you the strengths and weaknesses of your claim.  Every claim is different.

Factors that must be considered in any claims analysis include:

1. Your age
2. Your education
3. Your past work history and experience
4. Your medical conditions - both physical and mental
5. How much medical treatment you have received and are now receiving?
6.  Do you meet a Listed Impairment (not required)?
7.  Can you qualify for a Compassionate Allowance and faster approval?
8.  Are you a disabled veteran?

How does a free case evaluation work?  First, we will speak with you on the telephone and take some basic information.  Next, we will probably set up a free office consultation at our Huntsville Office (near Bridge Street).  We will review your medical and job information and help you make a decision whether you have a viable claim for Social Security benefits.  We will not pressure you in any way.  We will explain your options, how we work, how long it will take, etc.  If you decide for us to represent you, and if we decide to take your case, you will only pay us a fee if you win your claim and collect past due benefits.  If you lose or if you collect no past due or retroactive benefits, you never pay us a dime, no matter how much we worked on your case.

You may start by telling us about your condition by answering a few simple questions on our website.  This information is confidential, to be reviewed only by one of our trained advocates or partners.  Just click the link below and answer a few basic questions.  We will contact you for more information.

Click HERE to go to our website.    Then, click on the "Tell Us About Your Claim" tab in the center of our home page.

You may also call us at (256) 799-0297.

GETTING DISABILITY - THE MEDICAL EVIDENCE

The federal regulations reserve Social Security disability benefits to individuals who an prove disability with objective medical evidence.  Generally, you must be able to provide medical records from doctors, psychologists, clinics, hospitals or other acceptable medical professionals that show.......

• the existence of impairments
• the severity of impairments
• the duration of impairments (how long symptoms have lasted)

There are two types of medical evidence.  Objective medical evidence may include imaging studies, laboratory reports, EKG, and comprehensive examinations by a qualified doctor.  Subjective medical evidence refers to opinions of professionals who have viewed the objective evidence and given a professional opinion concerning your symptoms, diseases or injuries.

It isn't enough for a claimant to allege back pain, for instance.  It isn't enough for a doctor to make a note in her chart that the patient has complained of back pain.  Most helpful would be an X-ray or MRI study showing the probable source and cause of back pain, such as a bulging or herniated disc, foraminal canal stenosis,  degenerative disc disease, etc.  Then, your doctor might offer an opinion as to how the disease (or injury) would limit your ability to sit, stand, walk, bend, crouch, crawl, lift, etc.

"It is really by demonstrating significant limitations on the ability to perform common work related activities that you qualify for disability benefits."

How severe must the limitations be?  The answer lies in the combination of several key facts:  the claimant's age, level of education and past work experience.  For most claimants under the age of 50, the impairment must prevent the ability to perform any full-time work.  The rules are somewhat less stringent for persons over age 50. For example, a claimant who is over age 55, has a limited education and past relevant work that is unskilled may only have to demonstrate that he cannot perform any of his past work.  A younger individual will likely have to prove the inability to perform any and all work which exists in the US economy.

If you are suffering from a medical condition that you feel may lead to disability, it is extremely important to get prompt medical attention, continue to see your doctor(s) regularly and try to follow the recommended treatment plan. It is also important to tell the doctor(s) about all your symptoms and explain any problems you are having with such things as prolonged sitting, standing, walking, bending, lifting, concentration, fatigue....etc. 

 

VA RATINGS AND SOCIAL SECURITY DISABIILTY

If you are a disabled veteran with a 70 percent or higher VA disability rating, there is an excellent chance you may also qualify for Social Security disability benefits.  The Social Security process is totally separate from the VA process, however a high VA disability rating only helps your Social Security claim.

Because of the similarity between a VA finding of unemployability and what it means to be disabled under the Social Security disability program, it is the rule in many federal circuit courts that VA disability ratings are entitled to “great weight.” (See McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); and De Loatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983).) And one circuit court said that VA disability ratings were entitled to “substantial weight.” (Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985).) In addition, Social Security Ruling 06-3p says that the decision and the evidence used to make the VA decision “may provide insight into the individual’s mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules." 

The Forsythe Firm in Huntsville welcomes veterans who need guidance in applying for Social Security disability benefits or appealing a recent unfavorable decision.  We are local advocates with experience and a good track record in these cases.  There's never a fee unless you are successful (and this includes getting retroactive or back pay)!

We are close to Redstone Arsenal at 7027 Old Madison Pike NW, Suite 108--directly across from Bridge Street.  (256) 799-0297.

SHOWING YOU CANNOT DO THE MENTAL DEMANDS OF UNSKILLED WORK

Unskilled work is the easiest work available from a mental perspective.  Sedentary work is the easiest work available form a physical or exertional perspective.  Yet, even unskilled sedentary work has mental demands which the worker must be able to sustain for 8 hours a day, 5 days a week or an equivalent schedule.  The inability to sustain the mental demands of work, even unskilled sedentary work, is justifiable reason to find that the person is disabled.
 
In Social Security disability cases, decision makers will often deny a claim on the supposition that the claimant can still perform unskilled, sedentary work.  Examples of such unskilled sedentary work might be a surveillance system monitor, or a document preparer.

The mental demands of unskilled sedentary work are defined by SSR 96-9p and SSR 85-15 in the federal regulations.  Those demands include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.

The loss of any of the above abilities will substantially erode the occupational base for sedentary unskilled work and will, therefore, justify a finding of disability (and the award of benefits).

Note that in order to work, a person must be able to meet the mental demands of full time, remunerative work "on a sustained basis."  A sustained basis means 8 hours a day, 5 days a week, or an equivalent schedule.

The customary breaks that would be afforded during full-time unskilled work would be two 15 minute breaks and a 30 minute lunch (meal) break during an 8 hour work day.  If additional breaks are required due to a physical or mental impairment, that may very well erode the occupational base and justify a finding of disability.  Other factors that could erode the occupational base would be excessive absences (more than 1 or 2 days per month), being off task for an excessive amount of time during the day, or being unable to deal with changes in a routine work setting.

These allegations must be supported by objective medical evidence.  It is helpful if a treating doctor or medical professional acceptable to Social Security provides additional opinion evidence as to the existence of and severity of any limitations.

KNOWING SOCIAL SECURITY'S DEFINITION OF "WORK"

Is there work that you are able to do?  If so, you are probably not disabled under Social Security rules.  So, let's consider what Social Security means by the term 'work.'

Work refers to the ability to sustain work activity for 8 hours a day, 5 days per week, or an equivalent schedule.  Anything less than that is not work under Social Security rules.

You are unable to work, for example, if you can......

• work 5 or 6 hours a day but not 8 hours
• work 3 or 4 days a week but not 5 days
• work part-time but not full-time
• work for a few weeks but then have to miss several days due to a flareup
• work for several months but then have to miss a month or two due to illness on a persistent, regular basis
• report to work 5 days a week but have to leave early several times a month because of illness, pain, depression, etc.
• work most days but often have to come in late due to sickness
• work most days but will be absent 3 or more days per month due to illness.

So, the real issue with Social Security is this:  Are you able to work full-time, 8 hours a day, 5 days a week, 52 weeks a year--without missing more than 1 or 2 days per month on a persistent basis?  In other words, can you sustain full time work?  If the answer is no, you are disabled.

Keep in mind that there are many different kinds of work, ranging from very easy work to very difficult work.  Social Security classifies work by its exertion requirement--from sedentary (sitting) to very heavy (lifting 100 pounds or more).  Work is also classified by the skill level required to perform the work:  unskilled, semi-skilled or skilled.

Therefore, it's very difficult to speak of "work" without asking, "What kind of work?"  You may be unable to do some kinds of work but able to do other kinds of work.  Individuals under the age of 50 generally must prove that they cannot perform ANY work available in the national economy.  Persons over the age of 50 may be only be required to show that they are unable to perform their past relevant work (work they performed during the past 15 years).

Other factors that will enter into a decision about your ability to work will include:  education, past work experience, your residual function capacity, and as we just mentioned, your age.

VIDEO HEARINGS? SHOULD YOU ACCEPT OR OPT OUT?

It is no secret that Social Security is backlogged in trying to hold hearings.  And we all know it is taking up to 24 months for a claimant to get a hearing scheduled.  The obvious answer would be for Social Security to hire more administrative law judges; however, Congress simply will not appropriate enough money for that.  So, how does the Social Security Administration react?  By offering claimants the option to have a hearing by video-teleconference (VTC). 

At a VTC, the claimant and representative appear in a hearing center near the claimant's home.  However, the judge may be in another city, even another state.  Witnesses called by Social Security, such as the vocational expert, may be anywhere:  in the room with the claimant, in the room with the distant judge, or even at home and testifying via telephone.

Why would a claimant sign up for a cockeyed arrangement like a hearing by Video-Teleconference?  The main selling point is that it reduces the waiting time and allows a hearing to be scheduled sooner.  I'm not sure this is true in all cases; it might be true in some cases.  But there are downsides to the VTC arrangement for the claimant.  I will admit that I have been involved in some video-teleconference hearings that went smoothly and without objection.  On the other hand, I have been involved in some VTCs that were a nightmare.  You don't know which experience you will have until you get there--and then it is too late.

Here are my main objections to the use of video-teleconference hearings:

One, it's just more impersonal and removed. You aren't able to look people in the eye when you speak to them. And it opens up the possibility of communications problems:  you can't hear the vocational witness because of a poor telephone connection, or similar problems.

Two, and this is my worse fear, you lose the option to appear before a local judge who is known and have a hearing before a judge at the national hearing center in Chicago or some other distant location.  Chances are, I have never met this judge and know next to nothing about him or her.  And the judge's award rates are often much lower than the judges in the local hearing office.  Again, you don't know whether your case is going to the national hearing center or not until it's too late.  Opting out of the VTC hearing at least guarantees that you will get a local judge.

Under current rules, every claimant has a right to opt out of video-teleconference hearings and to  appear in person before a judge.  There are conditions:

1.  You or your representative must opt out of the VTC in writing.
2.  You may only opt out after the request for hearing has been filed and ODAR has sent you the written notice of your right to opt out (which will include a form to opt out of the VTC).
3.  You must opt out within 30 days of receiving the above notice (and obviously before the hearing has been scheduled).

Will opting out of a VTC cause a delay in getting your hearing scheduled?  It may.  I honestly don't believe there is any way to know that for sure on a case by case basis.  While I am aware that my clients are often suffering financially and need closure as soon as possible, I am also aware that I need to give my client the best chance I can of getting an award rather than a denial.  Claimants should know that they have the right to get an in-person hearing, if they follow the rules set forth by Social Security.