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.
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.
