HOW TO WIN SOCIAL SECURITY DISABILITY

Persistence is the one word that comes to mind when we think of claimants who have won Social Security disability benefits.  There are many other factors, of course, involved in preparing, presenting and appealing a disability claim.  But if we had to pick only one characteristic that our winning clients have, it would be persistence.  They don't give up.

Our firm puts a great deal of time and effort into preparing the initial application for Social Security disability.  There is a great deal of paperwork and most of it will have a direct bearing on how the claim gets considered.  For example, the Work History Report, if not completed properly, can give a totally false impression about the kind of work the claimant did in his or her past jobs.  This can lead to the false conclusion that he/she can still perform most of that work.

The Function Report is another form that can get a case off on the wrong foot.  Claimants should consider carefully how they answer questions or provide information on this form.  The one problem I most often see with the Function Report is lack of specific details.  "How far can you walk before having to stop and rest?" should be answered with a specific distance, not a generalization.  "What do you do from the time you get up until the time you go to bed?" should paint a picture of the claimant's limited functioning.  

If Social Security or the Disability Determination Service (DDS) sends additional forms to be completed, they should be filled out and returned within about ten days.  The same precautions as I stated above should be followed.

Try to obtain a Medical Source Statement (MSS) from your doctor as early as possible in the claim process.  This is a special form that lists your restrictions in work related activities, such as sitting, standing, walking, lifting, reaching, bending, etc.  It is almost never included in routine medical records and Social Security will never ask your doctor for this form.  It is up to the claimant or his representative to obtain this statement (form) from your doctor.  It is absolutely vital to the success of your claim.

Finally, if the claim is denied - persistence requires that we file an appeal within the 60 day time limit allowed by law.  It is actually at this stage where most Social Security disability claims are won.  In Alabama, 51 percent who appear at a hearing win.  In Tennessee 60 percent are awarded.  The current national average is about 48 percent (down sharply from one year ago).

If you have been denied Social Security disability and have a hearing in your future, we strongly recommend that you obtain adequate representation.  While your hearing is still the most likely place to win disability benefits, it will not be a cake walk.  Hardly anyone now tries it without representation.  And there's no reason to.  A representative cannot charge you a fee unless you win.  And any fee will be withheld from your back pay and paid directly by Social Security.  So there is no risk of running up a big legal bill and not getting any money.

MENTAL DISORDERS & DISABILITY BENEFITS

Social Security will consider mental impairments or illnesses on an equal basis with physical impairments when it comes to awarding disability benefits.  Any number of psychological impairments may qualify.  A few of the more common ones include bipolar disorder, anxiety, depression, panic disorder, schizophrenia, retardation or delayed development, obsession-compulsive disorders, and many more.

Social Security is required to use the same sequential process to evaluate mental or psychological disorders.  Very briefly - and without explanations - here is an outline of the five-step sequential process.

1. Is the claimant now working (earning at least $1,010 per month before taxes)?
2. Does the claimant have a severe and medically determinable impairment?
3. Does the claimant meet a listing?  If not, what is his/her residual functional capacity?
4. Can the claimant perform any of his/her past relevant work (work done in the past 15 yrs.)?
5. Is there any other work that a claimant of that age, education, skill level, work experience and residual functional capacity can do?

Those are the five important elements of any Social Security disability case.  Keep in mind that the state agency which makes the initial determination about disability often interprets data in an unfavorable manner resulting in a 75 percent denial rate (which varies state by state).  Therefore, most claims are not won at the first stage but many can be won at the second stage - which is an appeal involving a hearing before a US administrative law judge. 

Are disability cases involving mental impairments more difficult to win than cases involving physical impairments?  My experience is that they are not.  The evidence will obviously be different but the principles remain the same.  One of the clues is to have a good "trail" of medical evidence and treatment by a physician, preferrably a psychiatrist.

Try to obtain a Medical Source Statement form from your doctor as early in the claim process as possible.  Social Security will not attempt to get this form from your doctor.  It is up to the claimant or representative to get the statement.  In mental health cases, Form HA-1151 can be used for this purpose.

The Forsythe Firm  is experienced in Social Security disability cases involving psychological illness.  There is no fee for our service unless you win your claim AND collect back benefits. Reach us at (256) 799-0297.

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VOCATIONAL EVIDENCE IN A DISABILITY CASE

Vocational evidence in a Social Security disability case is to be ignored or minimized at your own peril.  I think sometimes so much emphasis is placed on medical evidence that the vocational evidence is neglected.  Here are examples of what is meant by "vocational evidence."

• What is your level of education and training?
• What kind of work have you done for the last 15 years?
• How was the past work categorized:  skilled, semi-skilled or unskilled?
• What is your exertional level:  sedentary, light, medium, heavy or very heavy?
• What kind of jobs, if any, are you still able to perform?

Those things are important because of the very definition of the word disability used by Social Security.  Under Social Security law, you are disabled if you have a serious medically determinable impairment that keep you from working, or is expected to keep you from working, for 12 months or more--or is expected to end in death.

In a nutshell, if Social Security finds that you are able to perform any of your past relevant work, you are not disabled.  Further, if it finds that you can perform "any other work" available in the national or local economy, you are not disabled.  Therefore, vocational evidence has equal importance with medical evidence.

Medical evidence is used to determine that you have one or more serious impairments.  Vocational evidence must be used to show that the impairment(s) prevent you from working. If an individual has a high school education or more, with vocational skills that can be transferred to other skilled or semi-skilled work, disability will be harder to prove.  On the other hand, if an individual has a limited education (7th grade or less), has no past relevant work--or only unskilled work, the benchmark for a finding of disability will be lower.  The medical + vocational evidence must come together to = disability.  Failure to properly develop this formula is one reason so many Social Security disability claims fail.

Learn how a Disability Advocate may be able to help you with Social Security here.

                            

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WHAT HAPPENS AT A SOCIAL SECURITY HEARING?

A Social Security disability hearing occurs when your claim has been denied at the initial level. The first decision will be made by a state agency contracted by Social Security - usually called the Disability Determination Service or DDS. In Alabama, this agency is located in Birmingham. If your claim is denied there, as 70 percent are, you have 60 days to ask for a hearing. It is at the hearing level that more disability claims get approved than at any other stage in the process.  (In other words, the hearing has the best odds of any step in the Social Security system).  Hearings are informal face-to-face proceedings before a US administrative law judge (ALJ). They are held in small conference-like rooms, typically with the following persons present:

• the administrative law judge (ALJ)
• the claimant
• the claimant's attorney or representative
• a Social Security employee who makes a recording of the proceeding
• a vocational expert, called by Social Security to give job related testimony

The ALJ will place the claimant and vocational expert (VE) under oath. He/She will state the pertinent issues in the case. The judge will then question the claimant or may let the representative question the claimant first. The gist of this questioning is to determine why the claimant is not able to work. Some questions commonly asked by the ALJ include:

• Describe what you did at your past job(s).
• Can you drive a car? How did you get here today?
• Why haven't you seen a doctor more often for your condition?
• How do you spend your day?
• What are your limitations on (bending, lifting, carrying, standing, sitting, remembering...)

After a round of questioning, the ALJ will turn to the vocational expert (VE) for testimony. The judge will offer 1 to 3 hypothetical questions, using residual functional limitations that seem to define the claimant's condition. Considering the claimant's residual functional capacity, age, education and past experience, can he do any of his past relevant work? If the VE responds "Yes," the representative must object or the hearing ends unfavorably. If the claimant CAN do any of his or her past relevant work, there is no disability. If the VE says, no, the claimant cannot do any of his past relevant work, the judge will move on to the final step.

Considering the RFC given at the above step, is there any other work in the national economy which exists in significant numbers that the claimant can do? If the VE says, "No, there is no other work that the claimant could perform," then a finding of disabled should occur. However, if the VE finds some jobs that the claimant could perform, that is a negative finding. Then, the representative must cross examine the VE to refute or weaken the testimony. This is a critical area where the representative earns his or her pay.

Unlike what you see on the TV commercials, judges do not usually announce their decision at the end of the hearing.  You will be notified by mail of the judge's decision in 3 to 6 weeks.

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SOCIAL SECURITY DISABILITY - A CHANGING ENVIRONMENT

The past 18 months have brought a rapid change in the Social Security disability environment. Award rates among US administrative law judges have fallen dramatically since the last quarter of fiscal year 2010. Judges that once averaged 60 percent favorable decisions may now average 40 percent or less. That is a drastic change. The result is very simple - it is now more difficult to get Social Security disability benefits. If a case is borderline it is probably going to be denied, whereas a year ago the same case might well have been awarded. What's to blame to this downturn in Social Security disability awards? Everyone has a theory, so here is mine.

First, I think there is a psychological impact of being told day in and day out that the Social Security trust funds are going broke. The latest projection now gives the disability trust fund only until 2016 before it starts paying out more than it brings in. In other words, by 2016 the reserves will have been used up. Most experts say that if nothing is done before 2016, disability benefits would have to be reduced to about 79 percent of the present level.

Second, the media have been exaggerating and sometimes misinforming the public on Social Security disability and stating that it is a large federal give-away program or that persons are getting disability benefits when they are able to work. Some of the items I have read come close to saying that Social Security judges are rubber stamping benefits and giving them to nearly everyone who applies. Of course, that is rubbish, since award rates are drastically down, both at the initial application level and at the hearing level.

Third, it's an election year and the Congress is facing budget deficits across the spectrum and looking to cut costs anywhere it can. Rest assured that pressure is being placed on US administrative law judges to hold back the rising cost of Social Security's disability program.

If you are recently disabled and will depend on Social Security for your financial survival, get help with your claim, especially if you are denied.  If you appeal within 60 days (very important) you still have a good cance of winning your benefits, perhaps with back pay included.

This link will direct you to a Social Security disability advocate for more information.

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WHY A STRATEGY?

Imagine it this way.  There is a huge structure with high walls and barred windows.  Inside there are hundreds of billions of dollars stacked neatly in heaps of crisp, fresh $100 bills.  There are guards posted and they will only release a few of those $100 bills each month and only to those who have gained the right to them.  Hundreds of thousands of people come to the gate of the big house every year, hoping for some survival money.  Seven out of ten get turned away and go away empty handed.  Some come back next month but many do not.

Of course, I am using my imagination to picture the big house as the US Social Security Administration.  While it is not literally piled high with $100 bills, of course, hundreds of thousands of persons do go there hoping to get a payment to sustain their lives with food, utilities, medical treatment - some of the basis necessities.  And seven out of ten do go away disappointed and often desperate.

All of that said to make a point:  there must be a well thought out strategy for approaching the Social Security program if we expect to successfully get through the front gate and receive a benefit.  Even though you've paid into the system for most of your life.  Some of the points of a well-thought strategy must include:

• Am I covered by Social Security disability insurance?
• Why am I disabled?
• Does my medical or mental condition prevent even simple, entry level work?
• How can I prove the severity of my condition(s)?
• Can I make the decision maker believe me?

One of my blog posts from a few months ago was entitled "Things That Don't Matter to Social Security."  I think every claimant should read that article before applying for Social Security disability because it forces us to focus on what does matter in a Social Security disability claim.  It does not matter that I am not employable.  It doesn't matter that nobody will hire me.  It matters not that my job skills are ancient, the economy has tanked, my license has expired, there are no job openings in my hometown or in my field of work; and it doesn't matter that the work I once did is now performed by automation.  

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.  A great industry has grown up around Social Security claimants representation.  Whether that is good or bad depends on your viewpoint.  But the point is that you must have a strategy to win disability benefits and the strategy must focus on the right points--the points that matter.  People walk away from Social Security claims empty handed every day - often people who really have a disability - but had no strategy to prove it.  I promise you, without a strategy the system will let you down.  If you don't have a strategy, please  call someone who can help you develop one.  If your claim is important, it is that important.

Learn more about local Social Security disability advocates here!

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