May 30, 2017

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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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…]

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.

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

The Information You MUST Have at Your Fingertips When You Appear at Your Hearing

[mc id=”118″ type=”audio”]How to Prepare for Your Hearing[/mc]

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.”

Understanding the “Grid Rules”

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.

[mc id=”85″ type=”file”]Grid Rules video[/mc]