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:
- Assembler: DOT Code 729.684-054. This is light work with an SVP of 2. There are 75,000 jobs in the U.S.
- 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.
- 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 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!
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.
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.
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.
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.
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"
