December 15, 2018

How do You Prove that You are Disabled

If you decide to apply for Social Security disability, you have to prove to the Social Security Administration that you are disabled.  In the last episode, I explained how SSA defines the term “disabled.”  In this episode, I discuss the three arguments, or theories of disability, you must use to convince SSA that you meet the definition. [Read more…]

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.

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.

How to Win Your Back Pain Case in a Social Security Disability Hearing

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.

What is a “Closed Period of Disability” and Should You ask for it?

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.

Can a Lawyer Help You File Your Initial Claim for Benefits?

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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?

How to Argue for Disability When Your Medical Condition Produces Good Days and Bad Days

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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.

Episode 23 – What is Best Strategy for Claimant With Multiple Medical Problems

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I received the following email from a gentleman named Richard who graciously agreed to permit me to respond to his questions on this blog/podcast.

You have, what I believe to be be, the most informative, no BS, Attorney site I have seen in my 3 mo quest for information…enough of the “smoke up the….”….

I have MRI, X-ray, and medical records that show back problems. I have been seeing a liver specialist. for over a year due to liver disease (he has yet to find source), I have shingles pain flares, and migraine headaches. Depression dating back several years. I have SEVERE diarrhea, that leads to incontinence, and I take 9 diff. medications a day.

All this caused me to leave my career in law enforcement 2 years ago. To top it off, I attempted suicide 02/08…About 3 mos ago, I filed for SSD. My question is this….I have kept a “pain Journal” that I show my pain management doctor, for the last 6 mos. It shows how I feel on any given day, and what i can and can’t do, in my own
words. Some days are good, some days are horrible. Should I send that to DDS?

–Richard

Podcast notes and resources:

1. Social Security listings – the fastest way to win a disability case is to show that your condition meets a listing.

2. Functional capacity argument – identify specific problems that impact your work capacity

3. Mental health vs. physical medical problems – which makes for a stronger case?

4. Pain journals – when are they useful?