HOW TO CONVINCE A JUDGE THAT YOU'RE DISABLED

Most applications for Social Security disability end up before a judge these days.  Not a few--most.

How do you convince a judge that you are disabled and should receive benefits?

First, give the judge complete and current records of medical treatment.  These records should show when the disabling impairment began (onset), how severe the symptoms are (severity) and what treatment or therapies have been tried.

Second, translate the medical problems into occupational problems.  Explain carefully how the medical problem prevents you from working.  Keep in mind that "work" comes in many forms, ranging from sedentary (You sit down all day) to very heavy (You lift over 100 pounds).  Most cases hinge on the ability to perform sedentary or light unskilled work.  So, be prepared to explain problems with functions:  walking, standing, sitting, bending, stooping, reaching, etc.  If there are psychological impairments, talk about memory, concentration, keeping pace, etc.

Third, be sure to explain all the work you have performed in the past 15 years prior to filing for disability.  This is called "past relevant work."  The three most pertinent details about your past work are:

1. A brief description of the jobs - what you did all day.
2. How many hours were you on your feet (standing or walking) during the typical workday at each job?
3. What is the maximum lifting you had to do in each job?

During the hearing you will be asked a ton of questions, including questions about activities of daily living, such as:  driving, shopping, cleaning house, hobbies, personal hygiene, going out with friends....a lot more things.  If you have struggles or difficulty with some of those things, explain the problems.  The judge will often use your daily activity level to assess how you might be able to function in a work environment.

Three simple things I tell my clients to remember during a hearing:

1)  Always be truthful.  Exaggeration will hurt your case.
2)  Never answer a question you don't understand.  Ask for clarification before you attempt to answer.
3)  Use words that have defined meaning, like hours, minutes, feet, yards, days or weeks.  Avoid meaningless terms such as  sometimes, once in a while, a little bit, a lot, not much, etc.

Poor Wording

"I drive once in a while when I feel like it."

"I can walk a little way but not very far.

Improved Wording

"I drive about twice a week."

"I can walk for about 30 yards before needing to rest."

Poor Wording

"I have nausea and vomiting a lot."

"I have a headache every once in a while."

Improved Wording

"I have nausea and vomiting once or twice a week."

"I have a headache 3 or 4 times a month."

Of course, these are examples.  Your statements should be true and should describe your own symptoms.

ADDING 6 MORE MONTHS TO THE WAIT TIME

President Trump is proposing to add 4 to 6 months additional waiting time to Social Security disability appeals in Alabama and 9 other states.

The waiting time is now almost 2 years.

In his fiscal year 2019 budget request, the president proposed an additional stage of administrative review, called Reconsideration, in Alabama and 9 other states that don't already use that longer process.

The Administration argues that a few cases would be approved at the state level, avoiding the need for a hearing before an administrative law judge.  However, statistics from 40 states which already use this slower process indicate that only 1 in 7 denials get approved at Reconsideration.  For the other 6, the wait is just increased by 4 to 6 additional months.

The Administration says this process will reduce the wait time and save the government 3.4 billion dollars a year. 

I can't help but believe the Administration is smarter than this.  How can denying a claim twice make anything faster?  You get denied by the Disability Determination Service.  You file an appeal.  Six months later the Disability Determination Service reviews the denial and denies the claim a second time. Then, you file another appeal and wait 2 more years.  How exactly is this supposed to be faster?  Or does anybody in Washington really believe it's faster?

You can't escape the possibility that the government is just stalling:  tying a big rock behind the runaway Social Security wagon to slow it down some more as it rumbles downhill.  They can't be serious!

What can you do?  Contact your Congressman in Washington DC and tell them that the wait for a disability appeal at 2 years is long enough, thank you!  Tell them you oppose reinstatement of "Reconsideration" in the prototype states that aren't already using the slower system.  Slow enough is slow enough.
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Charles W. Forsythe is a disability advocate at the Forsythe Firm in Huntsville.

SHOULD YOU HAVE A VIDEO HEARING?

Social Security judges now hold a lot of their hearings by video teleconference (VTC).  Should you choose to have a VTC?

If you have a video teleconference, you and your representative will appear at an office near your home town.  However, the judge will be in another city (Florence, Nashville, Franklin) and you will see him/her on a big TV screen.

The hearing process is identical, whether in person or by VTC.  All claimants have the right to an in-person hearing; therefore, you have the right to opt out of a VTC.  However, this opt out must occur according to a time limit specified by Social Security.  It cannot occur after the hearing has already been scheduled.

In my opinion, hearings by video teleconference have pros and cons.  Here are some of them, based on my experience:

Pros

• A VTC may be scheduled sooner.  Average waiting time to get a hearing is now over 20 months.  A VTC may be scheduled a little sooner.
• The procedure is exactly the same during a video hearing as it would be in a face-to-face hearing.  Same questions, same burden of proof, same opportunity to present your case.
• I cannot find any objective evidence that points to a different award rate for VTC hearings vs. in-person hearings.

Cons

• Rarely, technical problems can make it difficult to hear everyone well in a VTC.  This typically only happens when the vocational witness is either on the phone (not present with the judge) or in a third location (not present with the judge or claimant).  If the vocational witness is calling in from home, it is sometimes a problem.
• A VTC increases the chance that a judge in a far away city will hold the hearing, thus your representative may not be familiar with the judge.  Judges have different award rates, so this could be good or bad--just depending on the luck of the draw.
• Some would argue that the judge simply can't see or observe the claimant as well by VTC as would be possible in a live hearing.  I can see some validity to this point of view. 

Ultimately, I think the claimant and representative should have a frank and thorough discussion about a VCT hearing and a decision should be made on a case by case basis.  VCTs are probably not a good idea for all situations; however, in other situations they may be all right.

In the past, I objected to video hearings.  However, I no longer automatically object to them because of the extremely long wait now required to get before a judge.  This is, of course, another important consideration.  Can the claimant afford to wait up to 2 years to get a face-to-face hearing?  For most claimants, the answer is No.  So, the time frame may argue for a hearing by video teleconference.
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Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike, Suite 108
Huntsville, AL 35806
CALL US (256) 799-0297

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THE DEFINITION OF "WORK"

To get a disability check you must prove that you are not able to work.  What is work, according to the Social Security Administration?

Legally, work is the ability to engage in substantial gainful activity on a regular and continual basis for at least 8 hours per day, 5 days per week, or an equivalent schedule.

So, the ability to work cannot be hit or miss.  It cannot be intermittent:  able to work some days but not others.  In other words, the worker must be available on a regular and consistent basis.

Here are some things that Social Security will consider in determining an individual's ability to perform employment:

1.  Concentration.  Can the claimant focus or concentrate for up to 2 hours at a time and for up to 8 hours per day?  If such things as pain, depression or other psychological stressors prevent such attention, the claimant may be disabled.

2.  Persistence.  Is the claimant able to complete an 8-hour workday with only the normal breaks or rest periods?  Normal breaks are one 30-minute lunch period and two 15-minute breaks (usually one in the morning, one in the afternoon).  If more breaks are required, the persistence requirement may not be met.  Most vocational experts will testify that being off task more than about 10 percent of the time will result in no work being available.  Also, absence of more than about 1 day per month may preclude work.

3.  Pace.  Can the claimant perform the required amount of work in the allotted time?  All jobs require a certain amount of work to be performed each day. Even non-production jobs that don't necessarily require a fast pace have certain expectations.  For instance, a secretary who can't turn out the required work each day due to a medical or psychological problem may fail the pace test.

Things I Look For in a Disability Case

• How much would the claimant be absent from work?
• How many breaks will be needed during an 8-hr. workday?
• Can the claimant work at a normal pace (keep up with work)?
• Are there problems with memory or concentration?
• Is there a problem getting along with or responding appropriately to co-workers, supervisors or the public?
• Is this individual able to adapt to normal workplace stress and work routines?
• Are there postural restrictions (limited ability to sit, stand, bend, reach, kneel, crouch, crawl, use stairs/ramps, handle, feel, grasp, etc.)?
• Are there any environmental restrictions, such as the need to avoid extreme hot or cold temperatures, dust or fumes, avoid heights, stay away from moving, unguarded machinery?

There are many factors that go into the ability to "work" when you consider Social Security's definition of work.  These areas will all be explored during a hearing.  It's a great opportunity for the claimant or representative to point out why the claimant is not able to meet the demands of full-time competitive employment. 

These reasons must be supported by objective medical evidence, of course.  Therefore, full and complete medical records are an absolute necessity.  A careful pre-hearing analysis of those records is also essential.
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Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike - Suite 108
CALL US:  (256) 799-0297

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DISABILITY HEARINGS: THINGS YOU MUST PROVE

Disability hearings are fact finding missions:  an administrative law judge (ALJ) attempts to establish facts to determine whether a claimant meets the requirements for a Social Security disability benefit.

In order to get the most benefits you are entitled to receive, there are certain facts that must be proven, using objective evidence, at this hearing.  Here are a few of them:

1)  You must prove your alleged onset date or AOD.  This is the date you first became unable to work according to the regulations.  This is a large factor in how much back pay you can receive.

2)  You must prove the severity of your symptoms.  Having a certain diagnosis is not enough.  You need to prove that your illness or condition is so severe that it prevents your ability to work. 

3)  You must prove the frequency of your disabling symptoms.  How often do your symptoms render you unable to work?  For example, migraine headaches which occur several times per month may be disabling.  However, migraines which occur once every 2 or 3 months probably are not disabling.

4) You must prove your "residual functional capacity" (RFC).  This simply means the maximum amount of physical exertion you can still do, in spite of all your medical impairments.  The judge will determine if you are able to perform at any of the following exertional levels:

• Very heavy work (the hardest level)
• Heavy work
• Medium work
• Light work
• Sedentary work (easiest level)

The judge will base your RFC on your testimony at the hearing and, more importantly, on the medical evidence you or your representative submit.

5)  You must prove any non-exertional limitations.  These may include limitations based on postural restrictions (inability to stoop, crouch, crawl, climb, reach, etc.).  Or they may include limitations based on psychological or emotional limitations (difficulty with memory, concentration, reacting with people, etc.).

I think many claimants have the wrong view of what happens at a hearing.  Many believe you simply go before a judge and gain his sympathy.  If the judge believes your story, benefits will be awarded.  That is not the case.  Federal regulations require that you prove your case using objective evidence.  You must be disabled according to Social Security's rules.  The burden of proof to meet those rules rests upon the claimant.

As a colleague once said:  "There is the truth, and there is the truth you can prove."  Not always the same things.
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Charles W. Forsythe
THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH (256) 799-0297

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DISABIITY FOR MENTAL DISORDERS

Social Security will pay for mental disorders if those disorders are so severe that you are unable to perform full-time work, and if the impairment has lasted or is expected to last for at least 12 consecutive months.

Mental or psychological impairments are tougher to prove, however, simply because of their nature.  You can't take an X-ray or get images on a CAT scan.  That's where a specialist comes in.

Social Security will want to see evaluations and treatment by a licensed mental health professional--either a licensed psychologist or psychiatrist.  Records must show the specific symptoms and level of severity.  It isn't enough just to say "depression" or "Bipolar Disorder." 

The real question is:  Why can't this individual work?  Are there problems with mood, memory, concentration, following instructions, being around other people.....or what?

The doctor should specific each symptom's severity as either mild, moderate, marked or extreme.

I like to get the doctor to complete a "treating source statement" which answers the questions Social Security needs to have answered.  This provides very specific and detailed information about the claimant's symptoms, their severity and the functional limitations involved.  Nine times out of ten, this specific information is not contained in the routine notes or medical records on the patient.

What about the opinion of the doctor Social Security sent me to?

These doctors are called consulting examiners.  Social Security sends the claimant for a one-time examination, following which the consultant writes a report.  Unfortunately, these examinations seldom are supportive of the claimant.  These doctors see the claimant one time and don't have the benefit of a long-term treatment relationship.  Also, they cannot see the results of various treatments that have been tried, such as medications.  They get a brief "snapshot" of the claimant at one point in time, and that's all.

I strongly urge individuals who may have a Social Security disability claim in their future (based on psychological problems) to establish care with a psychiatrist or a licensed clinical psychologist and get regular ongoing care.

What's the difference between a psychiatrist and a psychologist?

A psychiatrist is a medical doctor (MD) who specializes in the diagnosis and treatment of mental disorders.  He or she may prescribe medications, as well as offering counseling or psychotherapy.

A licensed psychologist is a doctor who diagnoses and treats mental disorders without prescribing or using any medicine. Psychologists are not medical doctors, therefore, they cannot prescribe drugs.   They approach treatment with counseling or psychotherapy, not with medications.

The claimant's goal in a Social Security disability claim is to prove that they are not able to hold a full-time job because of their psychological problems. 

ON THE RECORD (OTR) REVIEWS

An On-The-Record (OTR) decision is the rare instance where Social Security approves a disability appeal based on what is in the medical file, without holding a hearing on it.

OTR approvals are more likely when there is a catastrophic or terminal illness, or when a medical impairment is severe enough to clearly meet a published Listing.

Naturally, an OTR decision requires excellent and strong medical evidence, since the decision is based entirely on the written medical record, the claimant or representative never appearing before the judge.

I think it is also of great value to have a strong Medical Source Statement in the record, where the claimant's physician lists limitations in the ability to perform specific work-related activities:  such as standing, walking, lifting, bending, reaching, stooping, kneeling..., etc.  Social Security does not obtain these statements. It is up to the claimant or his representative to get them.

A claimant or his attorney may request an On-the-Record review and submit a memorandum showing the supporting evidence.

Here are some questions I am often asked about making a request for an OTR decision:

1.  Can asking for an On-the-Record decision hurt my case?

ANSWER:  No.  If the OTR decision is not granted, the case simply continues in its usual course for a hearing.  In fact, Social Security only responds to OTR requests if they are approved.  It will not influence the judge's decision later.

2.  Will asking for an OTR decision further delay my case?  Will it cause me to lose my place in line while waiting for a hearing?

ANSWER:  No.  Your case remains in line for a hearing without any delay if the OTR request is not granted.

3.  What are the odds of getting an OTR decision?

ANSWER:  Honestly, the odds are rather low.  On-the-Record decisions are granted in cases where a judge sees overwhelming evidence of an obvious disability which makes it impossible for the claimant to work.  Cases which are marginal, borderline or simply "usual" will have to go to hearing to be decided.

4.  Shouldn't everyone apply for an OTR?

ANSWER:  No.  Your representative will be judicious in deciding whether to ask for an OTR.  If every claimant floods the hearing office with OTR requests, they stop being meaningful and very probably judges would stop considering them at all.  OTR requests are for cases that the attorney or representative feels merit an award without the need for a hearing.  Truthfully, these cases are rare.

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THE FORSYTHE FIRM
Social Security Justice
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Huntsville, AL 35806
PHONE (256) 799-0297

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SSDI DSABILITY ADJUDICATION

Unfortunately, Social Security disability often requires legal adjudication before benefits will be paid.  This frequently requires a hearing before an administrative law judge.  Sometimes, an appeal must be made before the Appeals Council. 

In these trying circumstances, you will want the best legal representation possible.  You will want an advocate who is thoroughly knowledgeable of Social Security's rules and regulations while understanding how to navigate the federal procedures and hearings.

Your goal is to settle your case without unnecessary delays while also getting the most benefits you deserve.  You want to avoid mistakes that can cost you time or money.

You will want to pay your representative a fee only if you win your case and only if you collect back pay.  In other words, pay only for success.

At the Forsythe Firm, we handle nothing except Social Security disability cases (including veterans).  We have attended thousands of hearings in several states, including Alabama, Tennessee, Georgia, Mississippi and Kentucky.

If you're going to require assistance with a Social Security disability claim soon, please consider calling on the Forsythe Firm.  Our commitment is to provide you with knowledge of your options, awareness of the challenges that lie ahead--and an absolute commitment to your case.

You may book a free, confidential appointment by calling our office.
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The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PHONE (256) 799-0297

FORSYTHE FIRM: SOCIAL SECURITY DISABILITY

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MEDICARE VS. MEDICAID

When you are approved for Social Security disability benefits, you will usually be approved for either Medicare or Medicaid.  Which one depends on whether you receive SSI (which comes with Medicaid) or SSDI (which comes with Medicare).

Medicaid is a state insurance program and is offered to certain persons with very limited financial resources and low household income.  Medicaid is provided with Supplemental Security Income (SSI) benefits.

Medicare is a federal insurance program available to persons who have reached age 65 or who have been awarded SSDI (Title 2) benefits.  There are no financial or income limits for Medicare.

Medicaid has no waiting period.  It is available as soon as SSI payments are paid. 

Medicare, on the other hand has a 29-month waiting period.  This includes a mandated 24-month Medicare waiting period, plus the 5-month waiting period to receive SSDI payments.  Here is an example of how the Medicare waiting period works.

• Date of established disability under Title 2:  March 3, 2016
• Benefits become payable after 5 full months on Sept. 1, 2016.
• Medicare becomes available 24 months later on Sept 1, 2018.

Note:  If a disabled person reaches age 65 while waiting for Medicare eligibility, Medicare begins the month during which the individual becomes age 65 (even if 29 months of disability have not passed yet).

So, the simple rules are:

Medicaid has no waiting period and becomes available as soon as your SSI (Title 16) payments begin.

Medicaid has a 29-month waiting period and becomes available 29 months following your *established date of disability.  This is usually NOT the same date as your decision or hearing date.
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ALCOHOL OR DRUG ABUSE AND SSDI

If there is alcohol or drug abuse in your background, it will get special attention from Social Security when you apply for disability benefits.  Congress has enacted laws that prevent Social Security from paying benefits for drug or alcohol abuse.

There are a few important facts in Social Security regulations to keep in mind concerning substance abuse and how it affects a claim:

The Issue of Materiality: 

 Not all past drug or alcohol abuse is material to the claim.  Past abuse is material only if:

• It occurred during the relevant period; meaning, it occurred during the period for which you trying to get benefits.

• It has a material effect on your disability, meaning:
• You would not be disabled without the abuse, and
• If you stopped the abuse now you would no longer be disabled.

The following example be helpful.

Take the case of an individual who drank heavily for years and developed severe cirrhosis of the liver. There is little doubt that the disease was caused by alcohol abuse.  However, the liver damage is done and it cannot be reversed.  Even if the individual no longer drinks, the cirrhosis will not get better.  Therefore, alcohol abuse is not a material consideration in this claim.

I advise my clients to admit any drug or alcohol abuse.  It doesn't automatically cause the claim to be denied and being truthful about it helps with credibility.  If serious substance abuse is present, it will nearly always be shown in the medical record and Social Security decision makers will be aware of it.  Denying it just hurts you because it indicates to the judge that you will lie to get approved.

And, whatever you do, make your representative aware of any substance abuse issues.  Knowing about it in advance allows us to prepare.  The worst thing is to be "ambushed" with damaging information at the hearing.

What Social Security needs to know is:  How long ago did the abuse take place and when did it stop?  Did the abuse materially contribute to the disabling impairment?  If the abuse stopped today, would the disabling impairment continue to be present (as in the example of cirrhosis)?

Information is power.  Learn as much as possible about Social Security rules and regulations before filing a disability claim.  It gives you a much greater chance of success.
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THE FORSYTHE FIRM
7027 Old Madison Pike NW
Huntsville, AL 35806
PHONE (256) 799-0297

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WORKING vs. ABILITY TO SUSTAIN WORK

Just because a person can work doesn't necessarily mean they are not disabled.

That may sound strange but let me explain.

The real question is "How much, how often and how regularly an you work?"

You might have days when you can work a full day but on other days you can't work at all.  Or, you might be able to work a few hours each day but never a full eight-hour day. If this is the case, we say that you are not able to "sustain full time work."  And that meets Social Security's definition of disability.

You may meet the legal definition of disability if......

1)  you can work less than an 8-hour day on a regular, sustained basis.

2)   you can work most of the time but would be absent more than 1 or 2 days per month due to a medically determinable impairment.

3)  you can work for several weeks at a time without missing a day but would then be sick and have to miss a week or two because of a flair up in symptoms.

4) you can work 8 hours per day almost every day but would require frequent rest breaks that would interfere with your work schedule.  Most jobs will only permit two 15-minute breaks plus one 30-minute lunch break during the day.  If extra breaks are required, it is excessive and may lead to the inability to hold a full-time job.

5)  you can work 8 hours per day without excessive absenteeism; however, you have pain or other disorders that would cause you to be off task excessively, and therefore not able to sustain the concentration, persistence and pace of full-time competitive employment.

Don't get me wrong:  proving these limitations is very difficult.  It isn't enough just to claim to have these restrictions.  You will need objective medical evidence to prove the existence and severity of a medical impairment that produces the restrictions.  You will probably also need a professional opinion from a treating physician attesting that these limitations are reasonable based on your medical records and treatment.

One of my jobs as a disability advocate is to look at the medical file and find reasonable disabling conditions and work restrictions.  Then, I will gather the necessary information and evidence to prove the restrictions.

I think the mistake a lot of claimants make is to go before a judge believing that they can just explain their problems and the judge will agree with them and pay their claim.  This is not the way it is done.  There are technicalities that must be proven with objective evidence.

Call me if you need help or direction with a disability claim or hearing.  It's what I do.
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THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH (256) 799-0297

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WHAT HAPPENS AT A DISABILITY HEARING?

Over a million people will attend a Social Security disability hearing this year, hoping to get approved for payments.

What typically happens at these hearings?

BRIEF OVERVIEW:  A hearing is a legal proceeding before the Social Security Administration.  It is a fact finding event to determine if the claimant meets the rules established by the US government to receive disability payments.  It is presided over by an administrative law judge (ALJ) and typically lasts 45 to 60 minutes.

WHO ATTENDS?  In addition to the presiding judge, the following individuals usually attend a hearing:

• The claimant
• The claimant's attorney or representative
• A vocational witness (job expert) - called by Social Security
• A hearing clerk

The following things generally occur at a hearing:

• The ALJ explains the purpose of the hearing and how it will be conducted.  He/She introduces everyone present.  The claimant and vocational witness will be placed under oath.

• The claimant's representative will be given the opportunity to make an opening statement.  Usually this is when the attorney will state the claimant's "theory of the case," or "Why we believe the rules and regulations allow this case to be approved."

• The judge interviews the claimant, asks a lot of questions--called the "direct examination."  Your representative should inform you of the types of questions to expect.

• The claimant's attorney or representative will ask the claimant a lot of questions.  The purpose is to be sure the judge understands the claimant's impairments, past work history and why he/she is no longer able to work.

• Next, the judge will ask  the vocational witness (VE) a few hypothetical questions.  The ALJ will pose a hypothetical set of facts, then ask the VE what kind of work would be available for a person in those circumstances.  This is a critical part of the hearing and will have a definite effect on whether or not benefits are awarded.

• The claimant's representative will get to examine the vocational witness and ask any questions necessary.  This is also a vital part of the hearing that may indeed effect the outcome.

• The judge will rule on any objections, issue any final instructions (such as requesting more medical evidence or ordering a consultative doctor's examination, if needed).  The judge will then close the hearing, usually without announcing a decision.  The decision will come in the mail and may take a few months following the hearing to receive.

3 Decisions are Possible After the Hearing

A.  FULLY FAVORABLE:  The claim is approved for payment just as applied for.  This usually allows for the maximum back pay and the earliest possible eligibility for Medicare insurance benefits.  It's everything the claimant wants it to be.

B.  PARTIALLY FAVORABLE:  The claim is approved, the claimant is found disabled, but some part of the claim is not fully favorable to the claimant.  This usually means that the judge moved the alleged onset date that was claimed in the application, finding the disability to have begun at a later date than was alleged.  This will usually have two effects on the claim:  (1)  There will be less back pay than requested, and (2) the date for Medicare eligibility will be further in the future.

C.  UNFAVORABLE:  The judge has denied the claim altogether, found the claimant not to legally disabled under the application and denied payment of all benefits.

Both unfavorable and partially favorable decisions can be appealed by the claimant, who should seek legal advice before deciding how to respond to a denial or partially favorable decision.

WHY AN APPEAL IS SO IMPORTANT IN DISABILITY CASES

Once in a while a disability claim gets approved without a hearing.  But rarely.

Most disability claims at Social Security these days get approved AFTER a hearing or appeal.  That is the number reason to file an appeal; you aren't likely to ever be approved without it.

Other reasons to file an appeal:

1.  It's the only time you will get to meet face-to-face with a decision maker who has the power to approve your claim.  All other decisions are made in your absence -- but you get to appear at your hearing.

2.  You can be represented by legal counsel at your hearing.  Your attorney or legal representative can offer valuable help to you at your hearing (and before the hearing).  Judges depend on representatives to develop the case, gather evidence and inform the claimant of the process and procedure that will occur at the hearing.

3.  It costs you nothing to file an appeal.  Even if you obtain legal representation, you cannot be charged a fee simply for filing an appeal.  Legal fees are paid out of past due benefits collected if you win.  If you lose, no fee is payable.

4.  The appeal is the best way to protect your past due money and other benefits, including Medicare eligibility.  Filing a new claim does not protect your interests under the older, original claim.

5.  A new claim will likely meet the same fate as the old claim--a denial.  The same people will look at the same evidence and give you the same decision--another denial.  Your odds are better with an appeal.

6. Failure to appeal may cause you to run out of options.  You can become uninsured and lose the ability to file new disability claim.  Each person has a "date last insured," which is the date they are no longer covered for SSDI benefits.  So, you can't just keep filing new claims forever.  Eventually, you reach a deadline and can no longer file.

A big word of caution:  There are legal restrictions on filing an appeal. The big one is:  You must appeal a denial within 60 days.  This is a very strict deadline.  Miss it and your claim dies and cannot be appealed.  60 days.  No more.

60 days.

I frequently get calls wanting to appeal a denial that is has missed the deadline by just a few days.  If you miss a deadline by 10 days, you may as well have missed it by a year in most cases.

Too many claimants simply give up when they get a denial letter.  They assume that if Social Security says they are not eligible, that's just the end of it.  It isn't.  It's really the beginning.  The appeal starts the process by which you have the greatest chance of success.
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The Forsythe Firm
Huntsville, AL 35806
PH (256) 799-0297

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SUREST WAY TO GET DISABILITY BENEFITS

Doctors are really the key to getting approved for Social Security disability benefits.

Doctors cannot "sign up" or "approve" anyone for benefits.  They can provide medical evidence that allows Social Security to make a favorable decision, however.

Federal regulations require that disability be proven by objective medical evidence:  tests, laboratory findings, examinations, X-ray or MRI imaging, etc.  It is never enough merely to claim disability; one must prove disability.

Here is the best approach to getting approved for SSDI or SSI benefits:

1)  Tell Social Security about every doctor, hospital, clinic, counselor, psychologist or other medical provider that you have seen within 12 months prior to your disability date.  Social Security only checks the records of the providers you tell them about.  If you fail to list a provider, his or her records are not looked at.

2)  Talk to your doctor and see if he/she will provide a form to Social Security called a "medical source statement."  This form lists all your work related impairments in detail.

3)  Realize that most (up to 70%) of disability claims are denied.  However, these should be appealed and may be won at a hearing.  In fact, most claims that get paid these days are paid after a hearing is held.  You only have 60 days to file an appeal after you are denied.  This rule is very strict.

If you see a disability claim in your future, speak to your doctor.  Ask if he/she will support your claim.  Also ask about whether the doctor will provide you with a Medical Source Statement.^^

^^My office will provide you with a medical source statement upon request (free).
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THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH (256) 799-0297

DEFENDING YOUR ALLEGED ONSET DATE

When you file a new disability claim, you choose the date on which you claim to have become disabled.  This is called the "alleged onset date" or AOD. This date must be defended and proven or it will cost you money. 

This date doesn't become official until a Social Security decision maker agrees with it.  Usually, this happens in a hearing with an administrative law judge (ALJ). So, it is Social Security that sets the actual date of disability.  At that time the alleged onset date (AOD) becomes the "established onset date" (EOD).

It is up to the claimant to prove the date on which he/she became disabled.  This is done primarily with (a) medical records showing a severe impairment on or before the AOD and (b) by employment records showing that the claimant stopped working prior to the AOD.

AOD may be easily established if you became disabled due to a major event:  a heart attack or an accident, as examples.  In other cases, disability may have started less obviously or more gradually.

Another factor to consider is when did you stop working?  You cannot be disabled under Social Security rules while working at substantial gainful activity.**

Why is the alleged onset date so important?

Because this date will determine when your disability payments can begin.  The date plays a huge role in how much back pay you can receive.

Let me use an example here.  John claims that he became disabled on 7/1/16 (his AOD).  Social Security denies his claim and John appeals.  He doesn't get a hearing until June of 2018.  He should present medical evidence that he was continuously disabled all the way back to 7/1/16 or he will lose a substantial portion (perhaps all) of his back pay.

It is a mistake to go into a hearing trying to prove only that you are NOW disabled.  You want to prove WHEN you became disabled. 

Look carefully at your AOD.  Ask these questions:

1)  Had I stopped working at substantial gainful activity by the AOD? 

2)  Can I get medical records showing a significant impairment back to my AOD?

Is the AOD the same as the application date?  No, usually not.  Most people do not file a disability application on the day they become disabled.  They file later.  However, they may go back as much as 17 months prior to the application date.  So the AOD may be much earlier than the date of the application.

** Substantial gainful activity in 2018 is defined as earning wages of at least $1,180 per month.  Working at this level will disqualify a person for Title II or SSDI benefits.

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The Forsythe Firm
Social Security Disability Advocates
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH:  (256) 799-0297

Free consultations     Pay only if you win.

Keep 100% of your monthly checks.
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DISABILTY DEFENDERS

Disability claims often have to be defended with the same vigor a lawyer would use to defend any other case.

Social Security often refuses to pay  disability benefits, using one excuse or another.  The common excuse they make is:  "You are not disabled according to our rules."  And of course they interpret their own rules.

That is an easy cop out for Social Security.  Call a Disability Defender.  Bring Social Security before an administrative law judge who has the power to really analyze the evidence and make a new, hopefully better, decision.

It costs you nothing to hire a representative to defend your case--unless you win.  If you win, the representative gets paid a small portion of your back pay (only) to cover the fee.  You, the claimant, keep 100 percent of monthly benefit checks.

If you have been denied, get a Disability Defender involved to protect your rights.

I personally handle hundreds of cases per year.  If I accept your case there will be

• No upfront fees
• Free consultations
• Free assistance with paperwork, forms...
• Help gathering medical evidence
• Free analysis of your case
• Development of a strategy for your case
• Appearance before judges
• You pay NO FEE, NO MONEY until you win and collect back payments from SSDI.

If you never collect back pay, we cannot send you a bill or collect even one cent in fees or expenses.  Our work has been totally free.  So we defend your case at no risk to you.
____________
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
PH:  (256) 799-0297

SSDI: STEP-BY-STEP PROCESS

STEP-BY-STEP SOCIAL SECURITY DISABILITY (SSDI) PROCESS.

Here are the steps in the life of the Social Security disability claim:

1)  You file an application on line, at the Social Security office, or through a qualified lawyer or advocate.

2)  Your local Social Security field office will assemble an administrative folder that contains all your personal contact information, a signed copy of your application, and the required medical release forms.  This often takes 2 to 4 weeks.

3)  Your case will be sent out to the Disability Determination Service (DDS) in Birmingham.  This is the agency that will investigate your claim to see if "you meet our rules for disability."  The DDS will order medical records from each doctor or medical provider you listed on the application (on a document called "Disability Report - Adult").  They order records only from doctors or entities that you list.  DDS will review your medical records, your job history, education and age.  They may order a special medical or psychological examination by one of the doctors under contract to Social Security, though this only happens in about 20 percent of claims.  An in-house doctor at DDS will review your claim to "sign off" on the decision of the disability specialist who did your review.  This whole process takes about 4 months.  You will get a decision letter in the mail.  In Alabama, almost 70 percent of claims will be denied at this level.

4)  If approved, your claim goes to a payment processing center and they will begin another slow process of setting your claim up to be paid.  This can take anywhere from 30 to 90 days.  SSI (Supplemental Security Income) claims will take even longer.

5)  If you were denied, you must file an appeal and request a hearing before an administrative law judge.  This must be filed within 60 days or you lose the right to appeal.  The appeal process typically takes 2 years or longer before the next decision can be made.

SOCIAL SECURITY & OUTDATED JOB DATA

Before approving your disability claim, Social Security must decide whether there are any jobs in America that you might still be able to perform.

To get job information, Social Security relies on The Dictionary of Occupational Titles (DOT).

At the final decision-making step, Social Security must decide whether the claimant can perform even unskilled sedentary or "sit-down" type of work.  If so, they must deny the claim.

This is where it gets really frustrating.  There are hundreds of sedentary (sit-down) jobs in the DOT that no longer exist.

The DOT was written in the 1930s during the Great Depression.  It was last updated around 1990.  So, at best, it is almost 30 years out of date.

Here is an example of a job in the DOT that no longer exists: Telegraph-service rater, DOT Code 214.587-010.  It's a real job according to the DOT.

However, the last telegraph in the United States was sent on July 14, 2006.  After that, Western Union closed its telegraph operations forever.

It's important that a claimant who goes to a hearing have a representative who can cross examine the vocational expert about his or her testimony concerning jobs that may exist in the national economy.  It is the attorney or representative's job to point out flaws in the DOT and mitigate the vocational expert's testimony.  The case very well may hinge on it; in fact, it usually does.\
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Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US (256) 799-0297

https://forsythefirm.wixsite.com/website

HOW SOCIAL SECURITY WILL EVALUATE YOUR SSDI CLAIM

The law sets out a mandatory five-step sequential process that Social Security must follow to determine if you qualify for benefits.

Understanding this five-step process can greatly help you prepare your claim.

Remember, the process is sequential--so each step must be decided in order.  Step 1 is first and Step 5 is last.

STEP 1:  Is the claimant now working at substantial gainful activity?  If so, the claim dies at step 1 and is denied.  In 2018, if the claimant is working and has wages of at least $1,180 per month (gross), the claim is automatically denied at Step 1.

STEP 2:  Does the claimant have a severe and medically determinable impairment that has (a) lasted for 12 consecutive months, (b) is expected to last for 12 consecutive months, OR (c) is expected to end in death?  If not, the claim dies at Step 2 and a denial is issued.

STEP 3:  Does the claimant have an impairment that medically equals a Listing?  If so, the claim is approved at Step 3.  If not, it proceeds to Step 4.  Before going to Step 4, however, Social Security must determine the claimant's Residual Function Capacity (RFC).  This is defined as the most the claimant can do in terms of work-like activity, in spite of his or her medical impairment.  Generally, it must be determined which of the following represents the most that the claimant can do:

• very heavy work
• heavy work
• medium work
• light work
• sedentary work

STEP 4:  Is the claimant able to perform any of his or her past relevant work?  If so, the claim dies at Step 4 and a denial is issued.  What is past relevant work?

• It is work that the claimant has performed within the 15-year period immediately before filing a disability claim.  Social Security only looks back 15 years for past relevant work. So, you cannot be denied because they think you could still perform work that you did 25 years ago.  It is very important that all jobs the claimant performed within the 15-year relevant period be examined carefully as to the kind of work, the demands of the work, lifting/carrying requirements of each job and the amount of standing/walking that was required for each job in the 15-year period.

STEP 5:  If the claimant survives Step 4, we come to the final step, which especially applies to claimants who were under age 50 at the time they claim to have become disabled.

Step 5's question is:  Is this claimant able to perform any job that exists in the national economy? 

This is where most younger claimants are denied.  Step 5 is the great Eliminator or Disqualifier.  Let's say that a claimant is found unable to perform even one of his past relevant jobs.  However, a vocational expert testifies that he retains the ability to work at an unskilled, minimum wage job that can be performed at the sedentary (sit-down) exertion level.  For instance, the claimant could be a surveillance systems monitor, a ticket taker or a parking garage attendant.  The claim will be denied at Step 5.

Obviously, for a claimant under the age of 50, great care must be taken to prove that even unskilled sedentary work cannot be performed.

This is a very great burden of proof and one that the average claimant simply cannot meet.

SOME THINGS THAT SOCIAL SECURITY CANNOT CONSIDER AT STEP 5:

1. I can't find even a minimum wage job.
2. No one will hire me.
3. I couldn't possibly live on minimum wage.
4. I would have to move to find even one of these low-paying jobs.

It is the ability to work, not the ability to find work, that Social Security must judge.  All these other arguments will have no impact on their decision.

How Past Relevant Work Affects SSDI Claims

In a previous post, I discussed how age affects an SSDI claim.  Now, I want to discuss how "past relevant work" (or PRW) affects a Social Security disability claim:

Definition:  Past Relevant Work is all the work you have performed during the 15-year period prior to filing a disability claim.  It is PRW only if....

1)  It was performed as substantial gainful activity (you earned a certain amount of money from the job).....

2)  You worked at the job long enough to learn how to do the job.  This will vary from job to job because you can learn some jobs more quickly than others.

Some things that may NOT count as Past Relevant Work include:  jobs that lasted only a few days or a few weeks and were not performed long enough to learn the work; jobs that were part-time with only limited earnings that do not rise to level of "substantial gainful activity or SGA."  For example, gross earnings of less than $1,180 in 2018 are not considered substantial gainful activity.  That number changes year to year.

There are five mandatory steps in the disability decision making process, and they are taken in order.  In Step 4, the claimant must prove that he/she cannot perform any of his or her past relevant work.  Failure to prove this will result in a denial of benefits.  So, a careful examination of past relevant work (PRW) is essential.

Here are a few things that must be determined concerning your past relevant work:

1)  What was the exertion level required of each past relevant job?  There are 4 levels--given here from least demanding to most demanding:  sedentary, light, medium, heavy, very heavy. Specifically, exertion level is determined by 2 and 3 below.

2)  How much standing and walking did each past job require?

3)  How much maximum lifting/carrying did each past job involve?

The higher the exertion level, the less likely a claimant can still perform the past work.  For example, it is less likely that a person could continue working as a construction worker (heavy exertion) but more likely he could continue working as a sales executive (light exertion).

Are there non-exertional requirements of a job that may prevent it from being performed?  Yes, of course.  Postural limitations may prevent work:  inability to stoop, kneel, crouch, crawl, handle, reach, etc.  Psychological restrictions may also prevent the ability to perform past work.

In addition to the mechanical discussion of exertion levels or residual functional capacity-- Social Security must also consider the claimant's age and education level.

HOW YOUR AGE AFFECTS YOUR SSDI CLAIM

Social Security's rules are different for people in different age categories.  I want to talk about how age will affect your disability claim.

Social Security divides claimants into the following age categories:

• YOUNGER INDIVIDUAL (Under age 50)
• CLOSELY APPROACHING ADVANCED AGE (50 - 54)
• ADVANCED AGE (55 or over)

Younger individuals are not going to meet a Medical-Vocational Guideline that finds them disabled based on a combination of their age, impairment, education and past relevant work.  Persons under 50 have the highest burden:  they must prove that they are unable to perform any of their past relevant work, as well as any other work which exists in the national economy.  If a younger person is judged able to perform unskilled, minimum wage work that can be performed at the sedentary (sitting down) exertion level, or any other work, they will be found not disabled.

Persons age 50 through 54, may meet a Medical-vocational guideline, especially if they have limited education, no transferable skills and their past relevant work was at a medium or higher exertion level.

Persons age 55 and over will more likely meet a guideline or "grid rule."  If this claimant is judged unable to perform any of his/her past relevant work, he/she will probably be approved, even if other work is available.  Claimants in this advanced age category will have the relatively lowest burden of proof and thus, the greatest chance of being found disabled.

Age is only one of the things Social Security looks at; however, it is a major factor.