The
Social Security Act provides benefits for workers who are disabled. It
does not provide benefits to workers who cannot find a job. There is
huge distinction.
The
following are EMPLOYMENT PROBLEMS,not covered by the Social Security
Act; therefore, no benefits are payble for any of these situations:
- Nobody will hire me.
- There are no jobs open in my neighborhood.
- My job skills are ancient and no longer in demand.
- The economy has tanked.
- The work I used to do is now performed by machines (automation).
- The type of jobs I could once get have moved to Mexico or Asia.
- Employers only see me as a liability.
I repeat that the above type of reasoning relates to unemployment and has nothing to do with disability or Social Security.
I must have a strategy to win Social Security disability and my strategy must focus on Why I am Disabled,
not Why I Can't Get a Job.
Why
I am disabled must, therefore, focus on what I can and cannot do in
terms of work related activities. How long can I sit? How long can I
stand/walk? How many pounds can I lift? For how long can I stay
focused? Is my memory in any way impaired? Do I have limitations in
stooping, bending or reaching? Am I able to understand, remember and
carry out instructions? Can I work up to 2 hours without a break? Can I
persistently work 8 hours a day, 5 days a week without being absent
more than 1 day per month? What medical evidence proves that I have
some of those limitations? Can I get a Medical Source Statement (MSS)
from my doctor which supports those limitations?
Without a strategy that deals with Why I Am Disabled,
the system will let me down, every time. Social Security is like any
other court in the land, in that, you must prove certain facts using
allowable evidence, according to the governing regulations. It takes a
strategy to do that. And these days it takes a pretty solid strategy.
Find out more about Social Security disability.
Your
doctor cannot approve you or sign you up for Social Security
disability. However, your doctor can and should play an important role
in providing evidence for full and fair evaluation of your disability
claim.
You
should ask your doctor to provide a Medical Source Statement for you,
such as form HA-1151 for physical impairments or HA-1152 for mental
impairments. Why is this form so important to a successful Social
Security disability claim.
It's
important because it goes to the heart of what Social Security needs to
approve your claim. That is, your limitations in the ability to
perform work related activity. Your medical records alone do not show
these limitations. In short, a Medical Source Statement gives your
doctor's opinion as to how much you can lift and carry, how long you can
sit, walk and stand; and may evaluate your ability to concentrate or
react appropriately to other people.
Let's
say Sara goes to her doctor with a complaint of chronic back pain. The
doctor examines her and prescribes a muscle relaxer and a light duty
pain pill with instructions to return in 30 days if the pain is not a
lot better. Here is what the doctor's medical record will probably say:
Ms.
Jones is a pleasant 51 year-old female who presents today for some pain
in her lower back, which she has experienced for about 3 months. She
is a well nourished lady in no apparent distress. Respiration is
clear. Reflexes in all lower extremities (LE) are normal. I am going
to prescribe some Flexeril and Naproxen to try. She will return in 4
weeks if not improved.
The
above notation is virtually useless in a Social Security disability
claim. It presents no severity of symptoms, no limits for lifting,
standing, walking, sitting, bending, etc. In short, it gives Social
Security no reason to believe that the patient cannot work every day in
just about any capacity. It says that she has some back pain. That's
all. And that is not nearly enough.
Ask
your doctor to provide you with a Medical Source Statement that gives
the specifics of your functional limitations. Not all doctors will do
so, but this form can make the difference between an award an a denial
of your claim.
Social Security will NOT ask your doctor for this statement; they will only ask for medical records, which as explained are woefully inadequate to get you approved. It is up to the claimant or her representative to obtain this form from the doctor.
Only about
one-fourth of applications for Social Security disability benefits are
approved without a hearing. Below are some of the serious mistakes that
claimants make. If you are filing for Social Security disability, know
these mistakes and avoid them for the best chance of winning benefits:
1. Believing that the Social Security doctor will find that you are disabled. This
is very unlikely. The doctor Social Security sends you to will spend
no more than 15 -20 minutes with you and will perform a very limited
examination. He has no incentive to find you disabled, since he is paid
by Social Security. You may have better luck with your own doctor.
2. Don't fail to ask your own doctor to complete a Medical Source Statement. This
is a form which explains what specific limitations you have in
performing work related functions, such as sitting, standing, walking,
lifting, bending, concentrating, etc. This is in addition to routine
medical records and does not require a special examination.
3. Filing for disability while you are still working. You
cannot file for disability while you are working at "substantial
gainful activity" or SGA. In 2015, this amounts to work that pays you
at least $1,090 per month. In 2014, the SGA limit was $1,070 per
month. Work that pays less than the SGA amount may not disqualify you.
4. You have to prove that your disability will last at least 12 consecutive months (or that it has already lasted that long). There is no short term disability with Social Security. 12 months is the minimum duration for a qualifying disability.
5. Failing to get medical treatment. All
disability awards must be based on "medically determinable
impairments." You will need your doctor to examine you, diagnose your
problems and determine how severe your symptoms are. Medical doctors
and clinical psychologists are "accepted medical sources" with Social
Security. Chiropractors, counselors and nurse practitioners are not.
6. Failure to get psychological problems diagnosed and treated. Social
Security must consider psychiatric or emotional problems as well as
physical problems - but they must be diagnosed by a psychiatrist or
clinical psychologist, or at least by your family doctor.
7. You must apply while you have Social Security coverage. Not
everyone has Social Security disability coverage. You become covered
by working and paying a special tax called FICA tax, which is required
to be withheld on every worker. However, you must earn enough quarters
of work to be covered. Also, when you stop working, you eventually lose
your disability coverage with Social Security. This usually happens
after 4 years of no work. If there are gaps in your work, your coverage
may expire in less than 4 years. The date you stop being covered is
called your "date last insured" or DLI.
8. You have to appeal unfavorable decisions within 60 days. Being
denied is not the exception, it's the rule. Be prepared to file a
request for hearing within 60 days after you receive a denial letter
from Social Security. This 60 day rule is very strict. If you wait too
long you cannot appeal the claim and must start all over.
9. Avoid trying to represent yourself (pro se representation). Social
Security law is a highly technical and specialized field. The US
disability program is governed by thousands of pages of rules and
regulations. If you don't meet the rules or follow the correct
procedures you can be denied and this may cost you thousands--even
hundreds of thousands of dollars over the years. Consider getting a
specialist to represent you and arrange a "contingency fee" situation
where the representative gets paid only if you win.
10. Failure to prepare the vocational (work) aspects of your claim. There
are two important parts of a Social Security disability claim: the
medical aspect is the best known part. However, there is an equally
important vocational aspect to the claim. Past work will be classified
and a vocational expert will be asked to determine whether there are any jobs
in the US economy that you could still perform, in spite of your
physical and/or mental limitations. Failure to adequately prepare the
vocational aspect of your claim will result in a denial, just like
failure to prepare the medical part of the claim will get you denied.
11. Failing to get a Medical Source Statement from your doctor. This is not the same thing as routine medical records, which Social Security will obtain for you. Social Security will NOT ask for a medical source statement. Common forms used for this purpose are forms HA-1151 for physical impairments or HA-1152 for mental impairments. It is up to the claimant or his representative to get this form completed by the doctor. It can make the difference between approval or denial of your claim.
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When Social
Security denies a disability claim, there are appeals that can be made
to get a another chance. In 40 states, the next step is called
"Reconsideration." That's really a waste of time but it is required in
those 40 states (Alabama is not one of them).
"Reconsideration"
simply means that a different disability examiner will review your
claim to be sure the one who denied your claim didn't make a mistake.
Guess what? In about 97 percent of cases, nothing changes at
"reconsideration." After you are denied again at reconsideration, you
may now move on to a request for hearing by an administrative law judge.
10 states, of
which Alabama is one, does not require the "reconsideration" step and
allows you to move directly from denial to a request for hearing. This
saves time, since the "reconsideration" step usually takes 3 to 4
months.
Reconsideration does not:
- allow you to meet with someone face to face to discuss your claim
- take your case before an administrative law judge
- send you for more medical examinations (usually)
- allow your attorney or representative to appear on your behalf
On the other
hand, a hearing does allow you to personally appear before an
administrative law judge with your representative. You are allowed to
present your case and any additional medical evidence you may have.
What are the odds of getting something changed - Reconsideration vs. Hearing?
- At reconsideration, there is only about a 3 percent chance of getting a better decision.
- At a hearing, about one half of denials are reversed and benefits are awarded (national average).
- Claimants who are represented have a drastically better chance of awards at hearings.
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"Do you want to be the only
inexperienced person in the room? If you walk into a Social Security
disability hearing unrepresented, you will be."
Social Security disability hearings are handled by administrative law judges. They have a law degree and usually practiced law for years before becoming a judge. Their job is to conduct the hearing according to all the laws, rules and regulations.
The vocational witness will have a master's or doctor's degree and years of experience as a vocational rehabilitation counselor. She has probably attended thousands of Social Security disability hearings.
If there is a medical expert (ME), he/she will have a Doctor of Medicine (MD) degree, or equivalent.
Into this frightening crowd of professional persons sits the claimant, with no training in Social Security disability rules, regulations or procedures. The claimant doesn't usually have a clue about what procedures will be followed, what his burden of proof is or what kind of evidence is accepted.
The claimant cannot be expected to know the myriad of technical terms and their meanings: SGA, PRW, RFC, AOD.... What are the demands of sedentary work as opposed to light work? How do non-exertional limitations play into all this? How many days per month may I be absent for medical treatment and still hold a full-time job?
"Is it unfair, and totally illogical, to expect the claimant to handle his Social Security disability hearing successfully alone."
"The
vocational expert is a highly trained professional and so is the
administrative law judge. If the unrepresented claimant is not a
well trained and experienced professional, he/she will be the only
person in the hearing who is not. This is a recipe for disaster. "
In nearly all adult disability hearings, judges will call a vocational expert to testify. These experts are typically vocational rehabilitation counselors. They have two functions at a Social Security disability hearing:
One function is to categorize your past work experience and classify it as to exertion and skill level. For instance, if your past work was a general cashier as performed in a grocery store or other retail outlet, it would be classified under DOT code 211.462-014, as light work with a Specific Vocational Preparation (SVP) of 2, which is unskilled work. SVP is determined by how much training it takes to prepare for the job. The lower the SVP number, the lower the required skills.
A second function of the vocational expert is to answer the judge's hypothetical questions concerning what types of work a claimant may still be able to perform in spite of certain exertional or non-exertional restrictions. The vocational expert will usually list a number of available jobs (available, meaning they exist in significant numbers in the US economy). She will usually also estimate how many jobs exist in each category. For example, she may testify that the claimant is capable of performing work as a retail sales clerk and that there are currently approximately 975,240 of these jobs in the US economy.
Here is the basis for the judge denying a claim, based on vocational testimony:
Scenario 1: The vocational expert testifies that the claimant can perform one or more of his past jobs. This would lead the judge to issue what is called a Step Four denial: the claimant can return to one or more of the jobs he performed in the past 15 years. Therefore, the claim would be denied.
Scenario 2: The vocational expert testifies that the claimant cannot return to any previous work; however, he can perform other work which exists in significant numbers in the US, regional or local economy. (I will discuss the "availability of other work" below).
Work is "available" if there exists a significant number of the described job in the national, regional or local economy. It must be understood that availability of work, in the Social Security meaning, does NOT necessarily mean that
- the claimant can find or be hired for one of the jobs
- these jobs are open and needing to be filled
- the claimant has any interest in performing this type of work, or
- a potential employer would hire the claimant for any of these jobs.
The best way to prepare for vocational testimony in a Social Security hearing is to recognize the nature and purpose of the testimony and the potential damage it can do to a disability claim. The claimant must be prepared to prove that his physical or mental ailments are so restrictive that he cannot perform any of his past relevant work or any other work. Exertional limitations in standing, walking, lifting, etc. should be proven. Non-exertional limitations such as sitting, concentrating, remembering or following instructions, etc. should be documented. These allegations must be supported by objective medical evidence. The vocational expert should be given the chance to admit, under oath, that a person with the claimant's known restrictions would be unable to perform any work on a full-time, consistent basis. Also, the expert's allegations of the existence of large numbers of jobs should be challenged by the claimant's representative if they seem unreasonable.
The vocational expert is a highly trained professional and so is the administrative law judge. If the unrepresented claimant is not a well trained and experienced professional, he/she will be the only person in the hearing who is not. This is a recipe for disaster. Avoid it by taking a qualified attorney or non-attorney representative with you to the hearing.
When Social Security denies your disability claim, you appeal, then appear at a hearing before an administrative law judge (ALJ). Here are some of the mistakes to avoid when testifying at your hearing.
1. Don't exaggerate or lie to the judge. Judges have heard it all, thousands of times. They have an uncanny way of knowing when testimony doesn't ring true. For example, don't say, "I never drive" if you really drive occasionally. The judge will always follow up with, "When was the last time you drove?"
2.
Don't make statements like, "I know I can't work," or "If I could work, I'd be working now." Let the judge make his/her own conclusions about your ability to work. This conclusion will be made primarily on what is in your medical records.
3. Don't try to explain away clear evidence in your records. This often happens with alcohol or drug use, or with past criminal charges. For example, if the judge states, "You were arrested for possession of marijuana in June of 2010," don't say, "Oh, it wasn't mine. It belonged to my cousin and I got charged and convicted, but it was all my counsin's fault." This always backfires.
4. Don't fail to tell your representatve in advance if you have worked for pay, even for one day, after your alleged onset date (the date you claim to have first become disabled). Also, tell your representative if you received workers compensation, unemployment benefits or sick pay/disabiity pay from your employer. These are problems if your representative doesn't know about them and gets "ambushed" at the hearing.
5. Avoid very general answers to questions, such as "not very far, not very long, not very much, or just a little bit." For example, How far can you walk without needing to stop? A good answer would be in feet, yards or minutes; such as, "I can walk about 100 feet, then I have to stop and rest."
6. Don't criticize the Social Security system or process. Don't say, for example, "I should not even be here. Social Security should have paid my benefits a long time ago."
7. Never compare yourself to other people. For instance, avoid saying, "I know people who have nothing wrong with them who get Social Security disability benefits." Or, "I have a neighbor who is a drug addict and alcoholic and you pay him a benefit." This can only hurt your case.
8. Don't be vague about why you stopped working. The judge will always ask, "Why did you leave your last job?" If you left because you could no longer perform the work, explain that briefly and in some detail. For example, "I could no longer lift the required 20 to 30 pounds and I couldn't stand most of the workday; also, I became unable to reach above my head or grasp and hold items with my hands." Brifely explain any other limitations or problems you were having, such as, concentration, fatigue, inability to understand instructions, excessive absences due to illness or pain, etc.
9. It is a mistake to go into a disability hearing without a Medical Source Statement (MSS) from your doctor. This form is NOT the same as medical records. An MSS form will list very specific limitations that you have in terms of work related activities, such as standing/walking, sitting, lifting, bending, concentrating, etc. It can make the difference between an award and a denial. Social Security will NOT request or obtain this statement for you. It is up to you or your representative to obtain it from your doctor.
