April 21, 2014

Knee damage cases can be winners in Social Security hearings but only if the degree of damage is severe and all non-surgical treatment has failed.

In this video I talk about the type of diagnosis you will need to have and why a diagnosis calling for a single or bilateral knee replacement is usually necessary.

http://www.ssdradio.com/2014/03/24/knee-pain-disability/

Why Do Social Security Judges Ask Hypothetical Questions to Vocational Witnesses at Hearings?

Transcript of video:

Hi there. This is Jonathan Ginsberg; I’m a Social Security Disability attorney in Atlanta, Georgia. I want to talk to you about hypothetical questions that the judge is going to ask the vocational expert at your Social Security Disability hearing.

If you haven’t yet gone to your hearing, what you’ll find is that the judge will in many cases have a vocational witness there. The vocational witness is typically a person with experience, knowledge, education about jobs in the economy, and is going to testify for the judge about jobs that you might be able to do given the limitations that may exist in your record. [Read more...]

Failed Back Syndrome Social Security Disability Claims

In this video I talk about failed back syndrome, which describes a medical condition where you are no longer a surgical candidate and your only treatment option is long term pain management.

 

When Should You Consider Amending Your Onset Date

When you file for disability, the Social Security intake clerk will ask you for a specific date when your disability began.  Similarly, if you file online, you will have to choose a date when you became disabled.  In Social Security terminology, this date will be known as your alleged onset date (abbreviated AOD).

Like many elements of Social Security claims, SSA offers no real guidance about how to choose an onset date.  Ideally, your onset date should be that date when you no longer have the capacity to perform substantial activity (full time work) because of a medical condition or conditions.

Most of the time, SSA personnel will advise you to choose a date after you stopped working – typically the day after you terminated your employment.   This “last day of work” choice usually works but what if you stopped working full time 6 months earlier and your last 6 months of part time work resulted in numerous absences.  Similarly, what happens if you stopped working because your company went out of business and your medical issues did not become a problem until 4 months after you stopped working?

In this video I talk about the idea of amending your onset date.  Social Security allows you to change the date when you claim that your disability began.  Sometimes this change will reflect the reality of your situation and other times it will reflect the medical record and what your lawyer believes he can argue successfully on your behalf.

Thinking about your onset date and considering possible changes ahead of time should be the main takeaway from this video.  Given that Social Security judges are under tremendous pressure to approve only deserving claims, you are more likely to face pressure from the judge to change your onset to reduce your past due benefit award.  Sometimes it will make sense to compromise and sometimes it is better to stand firm.

Should I Agree to Amend my Disability Onset Date? from Jonathan Ginsberg on Vimeo.

Social Security Disability Hearing Questions Which are Always Asked

Social Security disability hearings follow a fairly consistent pattern.  Although every judge has his or her own practices, by in large, the information required will be roughly the same, regardless of the judge.

Since your hearing is your only opportunity to interact face to face with a judge, it just  makes sense to prepare for those questions that always come up at hearings.   You will hurt your chances at an approval if you do not prepare – the last thing you want to do is hem and haw trying to come up with an answers.  You are going to be nervous anyway so always prepare ahead of time with your lawyer.

In this video I talk about those questions that always seem to come up.   Though this video should not be used as a substitute for a pre-hearing conference with your lawyer, it should help you start with your preparation.

Can I Bring an Observer with me to my Social Security Disability Hearing?

You may feel scared or intimidated as the date of your Social Security disability hearing approaches. Would it be ok if you brought a friend or relative into the hearing room to give you moral support. In this video I explain hearing office policy regarding witnesses and observers.

Can I Bring an Observer with me to my Social Security Disability Hearing from Jonathan Ginsberg on Vimeo.

Why do Vocational Witnesses Appear to Testify at Social Security disability hearings?

Vocational Witness testimony in Social Security disability cases from Jonathan Ginsberg on Vimeo.

In this video, I talk about vocational witness testimony in a Social Security disability case.  Vocational witnesses appear and testify at many Social Security disability hearings.  At first, this may seem odd, as you have most likely never met this person and now he or she will be giving testimony about your hearing.

SSDI judges use vocational witnesses because the main issue they are deciding has to do with your capacity to work.  Basically, during the hearing, the judge will be trying to identify specific limitations that arise from your medical or mental health condition.  More specifically, the judge will be concerning himself with limitations that will impact your capacity to work.

For example, suppose that you hurt your back and you testify that you experience severe pain 3 to 4 hours per day and that the pain is so severe that you cannot sit or stand but have to lie down and take narcotic pain medication until you fall asleep.  If the medical record supports your testimony and the judge finds you credible, he might ask the VE a question like this:

[Read more...]

Big Changes Coming Soon to the Social Security Disability Decision Making Process?

Oklahoma Senator Tom Coburn has released a comprehensive deficit reduction plan for the United States called Back in Black.  Included in this almost 600 page plan is a subsection related to Social Security disability called Social Security Disability Programs:  Improving the Quality of Benefit Award Decisions.   Senator Coburn notes that if current financial trends continue,  the SSDI and SSI programs will run out of money in 2015 or 2016.   While no one expects Congress to let this happen, the immediacy of the SSDI program's default has caught the attention of lawmakers in the House and Senate.

Senator Coburn argues that "significant stress on the [Social Security disability] trust fund is due in part to the fact that the number of individuals receiving disability benefits continues to rise at an unprecedented rate. "  He quotes a study from the Center for American Progress which reports that the disability program "provides strong incentives to applicants and beneficiaries to remain permanently out of the labor force, and it provides no incentives to employers to implement cost-effective accommodations that enale employees with work limitations to remain on the job.”  Further “too many work-capable individuals involuntarily exit the labor force and apply for and often receive” Social Security disability.

Over a two year period, Senator Coburn and his staff reviewed SSDI hearing decisions from Virginia, Alabama and Oklahoma.  His report concludes that a significant number of the hearing decisions were flawed because of poor hearing practices, improper evaluation of evidence by hearing judges, outdated job lists (referring to the Dictionary of Occupational Titles), and inconsistent use of consultative examinations.

The Coburn Committee’s recommendations include:

  • presence of government representatives at hearing to oppose claims
  • increasing hearing decision reviews
  • enhanced ALJ training
  • “reform” of the grid rules
  • revision of consultative evaluation processes

While Senator Coburn’s recommendations have not yet been formally adopted by the Social Security Administration, it seems likely that Congress and SSA officials will implement some of these changes to reduce the drain on the disability trust fund.

Has Social Security Instructed its Judges to Deny More Claims?

secret memo to social security judgesOver the past few months, lawyers in the Social Security disability legal community have been talking about a rumor that Social Security administrators in Washington have sent out a memo to judges working in hearing offices throughout the country instructing them to cut back on the number of approvals being issued in disability cases.   Historically, about 60% of cases taken to hearing have been approved – but according to this rumor, Social Security wants the approval rate to be around 30%.

There is no question that the Social Security disability trust fund is running out of money and judges in the local hearing offices are aware of this issue.

I have found no evidence that a memo has been sent, but I do note that all of the judges before whom I appear are requiring more and better evidence.  Specifically, I am looking for the following when I accept a case and from my discussions with colleagues throughout the country, they are doing likewise:

  • on-going treatment records – ideally records documenting several years’ worth of treatment
  • a definitive diagnosis – your doctor needs to be able to identify specifically the medical condition or conditions that impact your work capacity
  • support from your treating doctor in the form of a functional capacity form or narrative report – if your doctor does not want to get involved, or otherwise won’t cooperate, your case will be more difficult to win
  • efforts by my client to try to work – under Social Security’s definitions, an unsuccessful work attempt is one that lasts less than 3 months.  If you try to work but cannot, I think you enhance your credibility by showing that you are fighting against the idea of being disabled, not embracing it
  • older claimants – 45 or older

Work Attempts Before and After a Finding of Disability

Social Security has a stated goal of encouraging disabled claimants to return to work. However, as a practical matter, work attempts are treated very differently depending on where you are in the process. While you are waiting for your decision, work attempts can help your case (if these attempts are short and unsuccessful) or they can cause a judge to conclude that you are not disabled and do have the capacity for work.

After you are found disabled, my experience has been that Social Security is much more forgiving in terms of both the length of your work attempts and the type of work you may try.