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.

WHAT IS A 'PARTIALLY FAVORABLE' SOCIAL SECURITY DECISION?

You attended a hearing on your Social Security disability claim.  A few weeks later, you receive a Notice of Decision in the mail that says you have received a Partially Favorable decision.  Does this mean that you are only partially disabled, not fully disabled?

ANSWER:  No.  Social Security does not make awards for partial disability.  You are either disabled or not disabled.  There is no such category as "partially disabled" within Social Security law.

A "partially favorable" decision means that the administrative law judge has found you to be disabled.  However, he or she has changed some material fact in your application.  Most often, this change involves the established onset date--the date you were found to have become disabled.  For example, in your application you may have alleged that you became disabled on June 1, 2012.  After reviewing the facts of the case, the judge may have decided that you did not become disabled until September 1, 2012.  Therefore, he will amended the onset date to September 1, a material change in the application. 

This change will affect the amount of your back pay.  In short, you will not be paid for the months June - August, 2012, a loss of 3 months of  benefits.The amount of your monthly benefit will not be affected.  You are still considered disabled, but for not as long a period as you originally claimed.  Since you lost part of your period of disability, thus part of your back pay, the decision is partially favorable.  In other words, it is not as favorable to you as it would have been if the judge had found that you became disabled in June instead of September.

I often encounter well meaning public officials who believe that a "partially favorable" decision means that the claimant is only "partially disabled."  This is not the case because, as I have said, Social Security never makes any award for a "partial disability."  You are either disabled or you are not disabled - nothing in between.  The date on which you became disabled is an example of why a decision might be "partially favorable.:"

The confusion is complicated by the fact that some agencies, such as the Veterans Administration, do make partial disability awards.  A VA claim decision may find that a veteran is 50 percent disabled, or 80 percent disabled, for example.  However, Social Security will never make such an award.  With Social Security, it is all or none.

SOCIAL SECURITY DISABILITY: WHAT YOU WISH YOU HAD KNOWN

You Must File a Timely Application.  You must apply for Social Security disability benefits within 5 years after you stop working.  Your insured status will expire, making a new claim impossible.  If there are gaps in your work history, you may have even less time to file a new claim.  Don't wait too long to file after you stop working.

You Must Have Enough Quarters of Work.  You become an insured person under the Social Security Act by working and paying FICA taxes.  Most adults need 20 quarters of work to be covered.  These 20 quarters generally must have been accumulated within the most recent 10 year period prior to filing a claim.  Very young individuals might need less than 20 quarters of work.

Your Disabling Condition Must Last At Least 12 Months.  Short term disability lasting less than 12 consecutive months is not covered by Social Security.  You must have an impairment that has lasted, or can be reasonably expected to last at least 12 months.

You Cannot Be Working When You Apply.  You may not be working at "substantial gainful activity" during the period you wish to receive disability benefits.  In 2015, Social Security classifies substantial gainful activity as earnings/wages of at least $1,090 per month.

You Must Have Medical Treatment.  Under Social Security regulations, a disabling impairment must be medically determinable.  Medical records must be available to support the impairment.  Medical treatment should be consistent and recent.

You Cannot Depend on a Social Security Doctor's Examination.  Social Security may send you to a doctor with whom they contract to perform an examination.  This exam will be brief and superficial.  In our experience, these exams fail to help the claimant 99% of the time.  Social Security will use this exam to deny your claim.

You Need Support From Your Own Doctor.  According to Social Security regulations, much weight will be given to opinions of your own treating doctor(s).  Your doctor should provide support and this includes more than just routine medical records. Try to get your doctor to provide you with a Medical Source Statement that lists your functional limitations, such as restrictions in sitting, standing, lifting, bending, kneeling, etc.  Mental restrictions, such as concentration and memory, should also be documented.

You May Need To Be Examined By a Specialist.  20 CFR 404.1527 provides that extra consideration may be given to a doctor who is a specialist practicing in his/her field of medicine.  For instance, if you have a bad back you may need an orthopedic specialist.  For arthritis or fibromyalgia, you would need to consult a rheumatologist.

You Must File An Appeal Within 60 Days If You Are Denied.  Only about 30 percent of applications are approved by Social Security at the initial level.  The other 70 percent must be appealed.  The 60 day deadline is absolute.  If you do not appeal within the 60 days your claim dies and there is no appeal.  Do not wait on medical evidence or anything else.  File your appeal immediately, then work on whatever needs to be done to shore up the case.

Most Appeals Are Handled By a Professional Disability Advocate or Attorney.  Social Security appeals comprise a highly specialized field and require knowledge, skill and experience.  Contact a professional advocate, such as the Forsythe Firm, to help you with the appeal.  We offer free claims evaluation and never charge a fee unless you win.  We will also help insure that you receive maximum benefits, including back payments.

VETERANS MAY GET EXPEDITED DISABILITY PAYMENTS

Veterans may get expedited claim processing for Social Security disability benefits.

To get expedited processing, veterans must self identify and have a 100 percent permanent disability rating from the Veterans Administration.

By "self identify," we mean that the veteran must inform Social Security of their 100 percent VA disability rating at the time the application is filed.  We recommend sending a copy of both your DD-214 form and your VA awards letter that shows the percentage of disability award.

Does a 100% VA disability award guarantee approval of Social Security benefits?  No.  While a VA award does not automatically qualify for Social Security disability benefits, it does qualify for a much faster processing time--that is, a much quicker answer.  And, since the VA disability evaluation is similar to the Social Security evaluation process, the VA award can work in your favor.

If a vet receives Social Security disability benefits, will it reduce the VA benefits?  No.  Veterans paid into the Social Security trust fund during their military careers and may be entitled to Social Security benefits in addition to VA benefits.

What about veterans with a less than 100% VA award?  May they still be eligible for Social Security disability benefits?  Yes, of course.  

What if a veteran is not able to perform military duties but is still on active duty and is receiving full military pay?  He or she may still be eligible for Social Security disability benefits.  The key issue is whether or not the individual is able to perform the job, not whether he or she is receiving military pay.  Thus, a veteran should apply immediately for Social Security disability and not wait for a discharge from military duty, which would waste unnecessary time and lose benefits.

The Forsythe Firm is honored to review disability cases for veterans and help them decide the best course of action to receive Social Security disability benefits.  Consultations are absolutely without cost or obligation.  We only charge a fee if we represent you, win your case, and also recover past due or retroactive benefits (in a lump sum).  Please contact Charles Forsythe in Huntsville at (256) 799-0297.

Our office is located at the intersection of Old Madison Pike and Governors West directly in front of the Bridge Street Town Centre, near Arsenal Gate 2.


 

WILL SOCIAL SECURITY OBTAIN MY MEDICAL RECORDS?

If you have an initial application for disability benefits pending (have not been denied yet), Social Security will attempt to get your medical records.  Once you are denied and file an appeal, it is up to you or your representative to obtain medical records.

While Social Security attempts to obtain records during the initial application process, we find that they do not always get all the records.  It is a good idea for the claimant's representative to check and be sure all the records that were requested have been received.  Sometimes, it is necessary for the representative to contact medical providers to obtain records that otherwise would be missed.

The old adage among Social Security disability attorneys and advocates is very much true:  "If it isn't in the medical records, it did not happen."

A fundamental principle of Social Security disability is that an impairment must be demonstrated (proved) by objective medical evidence.  Claiming that you have severe symptoms will not be enough to win benefits.  The medical evidence must support the claim or you will not be successful.


Information about Social Security advocates 

SEE A MEDICAL SPECIALIST

When you are trying to get Social Security disability benefits, it is to your advantage to be treated by a doctor who is a specialist in your area of impairment.  For instance, if you are disabled by heart disease, you want to be treated by a cardiologist, if possible.  If you have joint or back problems, you want to be seen by an orthopedic specialist.  For depression or mental impairments, you need to see a psychiatrist or clinical psychologist.

Everything about Social Security disability decisions are regulated.  According to 20 CFR 404.1527, the opinions of doctors who treat you are usually given more weight if they are specialists, treating an illness or injury within their area of specialty.  Thus, a cardiologist is given more weight for a diagnosis or opinion about chest pain than an ear nose and throat (ENT) doctor would be accorded.

Specialized treatment is not always available because of no insurance and limited ability to pay doctor's bills.  Many claimants have to see doctors at community clinics for this reason. 

Also, keep in mind that not all practitioners are "acceptable medical sources" with Social Security decision makers.  Nurse practitioners, chiropractors and counselors are examples of medical professionals who are not "acceptable medical sources" when it comes to providing evidence about disability matters.  Social Security will not generally accept a diagnosis about an impairment from these practitioners unless it is also supported by an "acceptable medical source," such as an medical doctor (MD), doctor of osteopath (DO), etc.

VALUE OF A MEDICAL SOURCE STATEMENT

Applicants for Social Security disability benefits should always try to obtain a Medical Source Statement from their treating doctor.  This is a form on which your doctor gives an opinion about your ability to perform certain work related functions, such as sitting, standing, walking, lifting, bending, concentrating, etc.  Here are some of the benefits of getting your doctor to provide this form:

1. It establishes your residual function capacity, which is what Social Security disability decisions are based on.  Your doctor is in the perfect position to decide what your maximum functional abilities are.
2. It helps to establish the severity of your medical conditions.  Without pinning down how severe your impairments are, it is unlikely you can win benefits.
3. It helps establish the date on which you first became disabled, called "the established onset date."  You can usually get benefits back to this date if you were not gainfully employed after that date.

There are basically two types of Medical Source Statement forms:  HA-1151-BK for physical impairments and HA-1152-BK for mental impairments.  Try to ensure that you are using the newest version of each form.

Remember, federal regulations require Social Security to give more weight to the opinion of your treating doctor than to a consulting doctor who examines you once.  So more weight is given to your doctor than to a doctor you hire for a one-time evaluation.  Your doctor's opinion also gets more weight than the consulting doctor Social Security sent you to.  (20 Code of Federal Regulations 404.1527(c)(2).

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