August 28, 2015

Episode 59 – What Does it Mean When the Judge Continued my Case?

Episode 59 Show Notes

In this episode I answer a question from Cheryl, who used the “Send a Voice Message to Jonathan” button on this site to contact me.  Cheryl wants to know if it is a positive or negative sign that the judge continued her recent hearing so she and her lawyer could obtain additional medical records.  She also wants to know how long she may have to wait for a reset hearing.

Resources mentioned in this episode include:

If you have a comment about my answer or about hearing continuances, please post your comment on Twitter, using hashtag #ssdradio59.

Episode 58 – How to Explain Your Daily Activities to the Judge

“What do you do with yourself on an average day?”  You can expect to hear this question from your Social Security disability judge.   Does the judge expect you to testify that you spend your days moaning in pain, zonked out on pain medications and unable to dress yourself or prepare simple meals?  Is it okay to state that you drive to the store or to pick up your kids from school?

At what point does normal daily activity start to look like a work equivalent, and thus result in a conclusion that you are not disabled?

My experience has been that if a judge rules against you, he will point to your testimony about daily activities as evidence that you do have the capacity to perform simple, entry-level work.  This means that you need to think about how you will answer questions about your daily routine so that the judge understands how that routine is impacted by your medical condition.

I advise my clients to include limitations in their explanation of activities, for example:

“I do go to the grocery store but I only go when I know that the store won’t be crowded so I can get in and out quickly.  I use the motorized cart to go up and down the aisles and I let the grocery bagger take my bags to the car.  When I get home, my neighbor’s kids unload the bags and take it into my kitchen and they help put the groceries in the refrigerator or pantry.”

“I have to prepare my own meals but I do not cook anymore because last time I tried, I fell asleep and almost burned the house down. Now I make only cold sandwiches and whatever I can microwave.”

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Social Security Disability Hearing Tip: Make Yourself More Believable

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As you prepare for your Social Security disability hearing, put yourself in the shoes of your judge.  Every day 5 to 7 claimants come before you asking for disability benefits.  Every one of them says that they cannot work and that they are in pain 24/7.

As a judge you know that if you approve someone, that person will likely collect benefits from the government for years, and sometimes for many years.  Your supervisors locally and in Washington are pressuring you to limit your approvals because the SSD trust fund is running out of money and members of Congress are telling anyone who will listen that the Social Security disability program is rife with fraud and incompetent (or corrupt) judges.

You also know that judges with higher than average approval rates are getting squeezed out – and you need this job because it pays well and provides great benefits.

How do you decide which claimants are truly deserving of one of these coveted favorable decisions?

As an attorney for clients seeking disability benefits, I serve as an advocate – I want my clients to win.  But from the minute I accept representation I try to look at each of my cases as if I was the judge.  Is the medical evidence compelling?  Does the claimant given up trying to get better in favor of an “attitude of entitlement?”  Is there evidence in the file to suggest that this claimant is not entirely truthful?

In this video, I talk a lot about credibility and believability and demonstrate through an example about how the same fact pattern can either enhance your status or damage your case – all a function of how you present those facts.

Make no mistake, Social Security has made it much more difficult to win approvals – so you and your lawyer need to be equally prepared by avoiding mistakes that raise even a small question in your judge’s mind.

The 15 Minute Social Security Disability Hearing: Good News or Big Problem?

What should you do if your Social Security disability hearing lasts only 15 minutes?  Does a short hearing mean that you won?  Does an quick hearing mean that the judge plans to deny your case?   How should you and your lawyer prepare for this rare but possible situation?

In this video I discuss the 15 minute hearing – what it likely means and how to best protect yourself if the judge is new and his/her reputation is unknown.

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Strategy for Winning Claims Arising from Long Term HIV Infection

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Social Security disability claimants seeking SSDI or SSI benefits based on a long term HIV infection can be approved if they present evidence of complications that will preclude competitive work.   Remember that Social Security defines disability in terms of how your impairment would likely impair your capacity to perform the demands of minimally demanding work.

SSA’s treatment of HIV claims has changed significantly over the past 15 years.  In the 1990s and early 2000’s, most judges felt that HIV was a precursor to AIDS and generally treated HIV infections and AIDS as one in the same.   These cases were usually approved fairly quickly.

About 10 years ago, judge took notice of advances in medical science that allowed people infected with HIV to suppress
the virus and lead apparently normal lives.  HIV was then treated similar to Hepatitis – an active, un-curable condition but one that need not prevent a claimant from working for years at a time.

AIDS, by contrast, was usually approved based on Listing 14.08.

Over the last 4 to 5 years, however, Social Security judges have become more open to the idea that HIV often does
create complications that, when considered as a whole, can prevent an afflicted person from working.  Complications that seem to resonate most with judges include:

  • chronic infections
  • non-healing fissures in the body
  • boils
  • fatigue
  • weight loss
  • pain
  • depression

In my practice I have had success representing claimants with HIV who exhibit these symptoms and medication side effects
and who have support from a treating physician.

You can find more information about strategies I use in HIV claims as well as many other types of impairments on my law firm web site.