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.

The post Social Security Disability Hearing Questions Which are Always Asked appeared first on ssdRadio.

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

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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:

Mr. VE, assume we have a hypothetical person who is the same age (age 38) as our claimant, with the same education and work experience.  Assume further I find that this person is limited to light work with the following restrictions:

• this person can sit no more than 15 minutes at a time and stand no more than 15 minutes at a time
• no bending, crawling, kneeling, stooping or kneeling
• occasional use of ramps
• no use of ladders, ropes or scaffolds
• because of pain and narcotic medication side effects, this person would need to be lying down up to 1/3 of the workday 3 days a week

Based on these limitations could such a person return to the claimant’s past work?

Obviously, you can gues that the VE will testify that no jobs – past work or otherwise – exist with this set of limitations.  I can tell you from experience that if the judge accepted this set of conditions as being applicable, you would be found disabled.

Now assume that the medical record does not support the degree of limitation you assert during your testimony and the judge is thinking that you are exaggerating somewhat.   Consider this question:

Mr. VE, assume we have a hypothetical person who is the same age (age 38) as our claimant, with the same education and work experience.  Assume further I find that this person is limited to light work with the following restrictions:

• this person can sit for up to 4 hours at a time, and stand for up to 6 hours at a time
• occasional bending, crawling, kneeling, stooping, crouching
• unlimited use of ramps, ladders, ropes and scaffolds
• mild to moderate level of pain that would disqualify this person from complex, multi-step tasks
• able to perform simple, one or two step tasks

Based on this hypothetical, a person could perform numerious unskilled  jobs and would not be found disabled.  The VE would identify at least 3 sample jobs that fit the limitations of this hypothetical question.  If the judge’s conclusions are reflected in this hypothetical, you would be denied.

I hope you can now see why it is so important that (1) you testify clearly as to your specific limitations and (2) that you have strong support from a treating doctor that identifies several functional limitations.

The post Why do Vocational Witnesses Appear to Testify at Social Security disability hearings? appeared first on ssdRadio.

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.

The post Big Changes Coming Soon to the Social Security Disability Decision Making Process? appeared first on ssdRadio.

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 post Has Social Security Instructed its Judges to Deny More Claims? appeared first on ssdRadio.

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.

The post Work Attempts Before and After a Finding of Disability appeared first on ssdRadio.

In this video I discuss how I approach back pain cases and some specific steps you can take to improve your chances at winning.

The post How to Win Your Back Pain Case in a Social Security Disability Hearing appeared first on ssdRadio.

1. initial application
2. reconsideration appeal
3. administrative law judge hearing
4. Appeals Council review
5. 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.

The post How to Win Your Disability Claim Early appeared first on ssdRadio.

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.

The post Should I Be Concerned About the Judge’s Delay in Issuing my Hearing Decision appeared first on ssdRadio.

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.

The post What is a “Closed Period of Disability” and Should You ask for it? appeared first on ssdRadio.