Social Security judges see more back pain cases than any other impairment. Because of this, you need to do whatever you can to make your case stand out. If you come to your hearing with vague complaints that your lower back "hurts all the time," that you "can't lift very much" and that you "can't sit very long" you are going to lose. Judges expect to see MRI or CT scan reports, support from a treating doctor, on-going treatment records, and specific testimony from you about what you can and cannot do.
In this video I discuss how I approach back pain cases and some specific steps you can take to improve your chances at winning.
One of the biggest complaints I hear from my clients has to do with the delays that plague the Social Security disability system. Why should a claimant have to wait 2 to 3 years to get a decision on his application?
When you file your claim, there are 5 different points in time where you can be approved:
- initial application
- reconsideration appeal
- administrative law judge hearing
- Appeals Council review
- District Court appeal
For most claimants, the Appeals Council and District Court appeal do not come into play. Very few cases are taken to these levels of appeal and even fewer are approved.
Thus, for all practical purposes, most claimants should be concerned about getting approved at the "State Agency" level – initial application and reconsideration, or at the "Administrative Law Judge" level – the hearing.
In terms of the time frames involved, a decision on your initial application will be made within 4 to 6 months after you apply. If you are denied, and file a reconsideration appeal, that decision will be made within another 4 to 6 months. The initial and reconsideration phases of your case, therefore, will be complete within 8 months to 1 year after you apply.
If you are denied at reconsideration and you request a hearing, you are likely to see a 12 to 18 month wait. As you can see, it takes twice a long to get a hearing as it does to get a decision from the State Agency.
If you want to get approved early, your best shot is to do so at the initial application process. Relatively few cases are approved at reconsideration so if you are going to be approved by a State Agency adjudicator, the place to put your focus is at the initial application time.
About 60% of cases denied at reconsideration are approved at a hearing, but, again, you won't see a judge for at least 2 to 3 years from the date you apply.
I wish I could tell you that Social Security makes it easy to get approved at the initial application phase. The truth of the matter is that the State Agency adjudicators are overworked and understaffed and in order to win approval there, your file must be complete and it must clearly support your claim for disability.
It is important that the medical information in your file be unambiguous and supportive – to a certain degree you do not have control over this because you have no control over what your doctor writes in his notes, and the medical tests you take (i.e., the MRI's, CT scans, even x-rays) will reveal what they reveal.
However, you do have control over the forms you fill out and how you present your claim. The video below discusses some common sense steps you can take to significantly improve your chances at a fair look by the State Agency adjudicator. I see far too many files that could have been approved early but the information was poorly presented that the adjudicator must have felt that it was just easier to deny the claim and let the judge worry about it 2 years later.
Filed under Applying for disability by 
I frequently get emails from blog readers all over the country who appeared at a disability hearing several weeks or months previously and they are concerned that they are hearing nothing from the judge. Sometimes these folks will call the hearing office and the receptionist will tell them that their decision is "in writing."
Obviously, if you have been waiting 12, 18 or more months, it can be very frustrating to finally get your hearing, then find yourself waiting weeks or months for a decision with no way to get a status update.
Unfortunately, there is no much you can do about this state of affairs. Social Security personnel – and especially the judges – are overworked and their offices are understaffed. In most cases the judges rely on "writers" to actually produce the written decisions and if the writers are backlogged, the decisions will be backlogged as well.
Even your attorney probably won't be able to do much. When we call the ODAR offices, the front desk receptionist tells us the same thing he tells you – "the decision is in writing – we don't know when it will be issued."
In my office I will email the judge if the decision is not released after five months or so. Sometimes that gets results and sometimes it does not.
Filed under Delays, Hearing process by
Sometimes the evidence in a Social Security disability claim does not support a finding of on-going disability. Sometimes the medical record documents improvement in your condition and sometimes there simply is not evidence – often because you may not have the money to afford treatment. While some judges will give disability claimants the benefits of the doubt, other judges will not and you should have a "plan B" if your judge expresses concern about whether your medical record supports your claim.
Sometimes it can make sense to consider asking the judge for a "closed period of disability." In this video, I explain what closed period is and why it can sometimes be a good strategy. I also discuss a recent case I tried in which my client will be approved for a closed period.
Filed under Closed period of disability, Wining Case Arguments by
Over the past few months, I have noticed a disturbing trend in many of the Social Security hearing offices where I appear. Many of the case files do not contain comprehensive medical records or forms that translate medical problems into specific work limitations. Why? Many of the free and low cost medical and mental health clinics that used to service disability claimants have closed up shop. It seems to me that some of the judges that hear disability cases are turning down deserving cases on the basis of a thin medical file when the reason for lack of treatment is financial, not a function of the claimant's motivation.
Filed under Consultative exams, Hearing process by
Podcast Notes: Social Security judges are busy people, and they do not have time to dig for information. Your hearing offers you the opportunity to explain to a Social Security Administration judge why you are unable to work, and your hearing will last no more than 60 minutes. The only issue that the judge really cares about involves your capacity for work – everything else is peripheral, so it does not make sense to waste valuable time pondering background information like your work history and medication lists.
In my experience, judges appreciate you and your attorney if you can quickly review background information and proceed quickly to the heart of the matter. In fact, I generally ask leading questions (questions that suggest the answer) when I cover background information and not once has a judge interrupted me.
Here is the background information that you need to have at your fingertips:
Past work over the last 15 years – you should know the dates of employment, your job title, and prepare a brief description of what you did. This information can also be submitted in writing on a form but the judge may want to hear it directly from you.
Current medications list – you should have a list of the medicines, both prescription and non-prescription, that you take, who prescribed those medications, and when you started taking each one. Further, if your doctor has been modifying your prescriptions in an effort to control your condition, a timeline would be helpful. Finally, you should make note of any side effects that apply.
Know the "onset date" set out in your application for benefits and why you chose that date. Was it an accident? Was this your last day of work? Why this date?
Have a clear understanding of why you believe you meet Social Security's definition of disability. Discuss this with your lawyer and write out a statement if necessary.
Prepare answers to questions about your capacity to perform specific exertional activities, like standing, walking, sitting, crawling, crouching, climbing, reaching, using your hands, etc. Avoid "not very much" or "not too long."
Filed under Hearing process, Preparing for your hearing by
In my disability practice I regularly get calls and emails from potential clients who have not yet filed an application for benefits. Is there anything that a disability lawyer can do for you when you first apply? Is there any reason to wait to apply? In this episode I try to answer these questions.
Here is the email that prompted me to address this topic:
Dear Jonathan: I have been putting off filing a disability claim because I keep thinking that I will be able to go back to work. I am a 48 year old woman, my career is as an executive assistant. I have not been able to hold a full-time job since 2002. I have been living with anxiety and panic disorder, in varying degrees, for most of my life, in addition to depression. I would like to file a strong initial claim and hope that I am not denied. I have been researching for a lawyer to represent me. I don't want to work with a large firm. Your website has been the most informative that I have found. Are you able to help me file the initial claim?
Filed under Listing argument, Wining Case Arguments by
I received the following condition from a young lady named Sarah, who is living with a blood disorder called Diamond Blackfan Anemia. This condition requires blood transfusions about every three weeks and results in good days and bad days over the course of a month.
She writes: I have Diamond Blackfan Anemia, which is a bone marrow failure condition that requires chronic blood transfusions as my blood levels continue to drop each day. Additionally I am on many medications for other complications from this condition. I am 30 years old and have always worked, but it is now getting to the point where I can no longer do so. My doctors have recommended I apply for SSDI and not work anymore. My boss has cut my hours and I begin the process soon.
I am concerned about the kinds of questions I will be asked: "How far can you walk?" "How long can you sit?", etc. The truth is, right after I have a transfusion, it's not a problem at all. I am even able to exercise during those days. But I get transfusions every three weeks. In the 10 days or so before a blood transfusion, I can't do much of anything. I miss work frequently due to fatigue. The transfusions themselves take a day or two to recover. My question is, how do I answer these questions without hurting my chances of getting on disability?
I think that this question is relevant to any number of conditions that produced "good days" and "bad days." I think that the best strategy is to discuss the limitations that arise from your condition as they would affect your performance of work functions over the course of a month. For example, in this case, Sarah might say "my condition requires me to obtain a blood transfusion approximately every 3 weeks. Immediately after the transfusion I feel fairly good and I have sufficient energy to perform my job duties. But by the end of the 2nd week after my transfusion, my energy level drops dramatically, I become extremely fatigued and I have a difficult time concentrating or getting through a workday without taking numerous unscheduled breaks.
In this particular case, Sarah should also reference Listing 7.02, which provides that a person who requires a blood transfusion once every 2 months or more often would qualify for disability on the medical record alone.
In this episode, I answer two questions that relate to activities in the State Agency adjudication offices:
Question 1 is from a gentlemen named Ron, who writes "we received a letter from SSA it states that the medical requirements have been met for disability benefits. then states we realize you stopped working on 10/05/2006 when they apply the SS rules to the medical evidence we find your condition did not prevent you from working until 3/19/2007. they says they have not made a decision about meeting non- medical requirements and they will shortly, what could that mean?"
Related reading about SSA date calculations: http://bit.ly/ssa-dates
Question 2 is from a gentleman named Anthony who asks about the non-examining physicians who assist the State Agency adjudicators evaluate your medical records – "during 2002-2003 (possibly before & after), in the State of Florida there was much fear that Medical Disability Examiners were going to be outsourced… and/or were about to be outsourced —- can you comment via your reply?"
Filed under Non-medical qualifications for Title II by
Social Security recognizes that individuals who are 50 years old or older, and who have a limited education and limited work skills will have a more difficult time entering into the workforce. The "grid rules" (officially called the medical-vocational guidelines) provide a structure whereby judges can find a claimant disabled even if that claimant can still do certain kinds of work.
Unless you are illiterate or unable to communicate in English, the grid rules apply to claimants who are 50 years old or older and who have a physical impairment. I have published a web site specifically about the grid rules – the address is http://www.gridrules.net.
The following video demonstrates how the grid rules work and how you can use free resources on the Internet to see if the grid rules apply to you. You will need to click on the video icon, which will open a full screen video.
Filed under Preparing for your hearing by
Jonathan Ginsberg
