DISABLED WOMAN RECEIVES A $91,000 CHECK PLUS MONTHLY BENEFITS, THANKS TO DILIGENT WORK BY THE FORSYTHE FIRM!
This disabled individual had been battling with Social Security for years, trying to receive benefits. She had been denied twice and was currently bogged down in red tape, waiting on another hearing when she came to the Forsythe Firm.
One of our partners represented this individual and took the case before a federal administrative law judge. After working for months to put together what we thought would be a winning case, we were not only able to get the current claim approved but the judge reopened the old case and paid it, too.
"It's especially gratifying to see this happen for someone who is so deserving and who has waited so long for justice," said a member of the Huntsville firm who represented the claimant. "Just imagine the tremendous difference this will make in this person's life!"
HELPING HONEST, HARD WORKING PEOPLE GET THE DISABILITY BENEFITS THEY DESERVE. WE WORK TO GET YOU MAXIMUM BENEFITS AS QUICKLY AS POSSIBLE. Phone (256) 799-0297.
Thursday, August 30, 2018
NON-EXERTIONAL RESTRICTIONS CAN BE DISABLING
Social Security looks at your ability to perform both exertional and non-exertional tasks when they decide if you still have the ability to work. A lot of times, people only look at the exertional demands of work and don't go any further. This is a mistake.
There are 7 exertional demands of work:
There are 7 exertional demands of work:
- Standing
- Walking
- Sitting
- Lifting
- Carrying
- Pushing
- Pulling
(i) You have difficulty functioning because you are nervous, anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating;
(iii) You have difficulty understanding or remembering detailed instructions;
(iv) You have difficulty in seeing or hearing;
(v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes (called "environmental" restrictions; or
(vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.
The non-exertional restrictions may also be disabling and qualify for a disability benefit because they can prevent the ability to work on a regular and continual basis.
For example, being off task greater than 10 percent of the time because of pain, anxiety, depression or other mental impairments may be disabling.
Being absent 2 or more days per month due to your medical condition(s) may be disabling.
The inability to use the upper extremities and hands for handling, grasping or reaching can be disabling.
So, in crafting a good Social Security disability claim, your representative will want to look at the total picture--and use both exertional (strength) and non-exertional limitations to make the case that you cannot sustain full-time work.
___________
THE FORSYTHE FIRM
Huntsville, AL 35806
CALL US: (256) 799-0297
E-Mail Us: forsythefirm@gmail.com
TRANSLATING MEDICAL PROBLEMS INTO VOCATIONAL IMPAIRMENTS
For most people, getting disability benefits depends on the fact that you can't work. By definition, if you can work you aren't disabled.
So, in a Social Security disability claim it is essential to translate medical problems into vocational problems.
For example, you have arthritis in your lumbar spine, knees and other joints. This causes pain, inflammation and stiffness. Those are medical conditions. But how is your ability to do work-like activity restricted? How does back and knee pain limit your ability to sit, stand and walk? What restrictions are placed on your ability to lift, push and pull?
We must realize that back pain is going to have different effects on different jobs. With significant back pain you may not be able to perform a job with lots of standing, walking, bending and lifting. But a sedentary job where you can sit most of the time may not be affected the same way.
Many times, back pain can restrict how long an individual can sit. Sedentary work, the easiest of all work, requires the ability to sit for about 6 hours per day and to stand and/or walk up to 2 hours per day. If you can show that back pain prevents your ability to sit a total of up to 6 hours in a day, you may be found unable to perform sedentary work.
In a disability hearing, we want to first establish what your medical conditions are: arthritis, bulging or herniated discs, cervical or lumbar radiculopathy, stenosis, etc. Next, we want to carefully describe the symptoms caused by these conditions. Finally, we want to establish how these symptoms interfere with your ability to function in an employment setting: how long you can sit, stand, walk; how much you can lift, push and pull.
This helps the judge to establish your Residual Functional Capacity (RFC). This in turn helps the judge decide what kind of questions to ask the vocational expert.
Here is a typical hypothetical question as it might be asked of the vocational expert in a hearing:
I want you to assume an individual who has the same age, education and past work experience as the claimant. I want you to further assume an individual who is capable of sustaining work at the light exertion level. Specifically, she can lift up to 10 pounds frequently and 20 pounds occasionally; can sit for up to 6 hours per 8-hour day, and she can stand and/or walk with usual breaks for up to 6 hours per 8 hour day. She can frequently stoop, balance and reach. She can frequently feel, handle and grasp. She can occasionally climb ramps and stairs but never ropes, ladders or scaffolds. She should avoid hazards, including but not limited to unprotected height and moving, dangerous machinery. Given these restrictions, could the individual perform any of her past relevant work or any other work?
This hypothetical is rather unrestricted. While the judge realizes that there are some medical impairments, he seems convinced that there are no major obstacles to work in the light range of jobs (lifting no more than 20 pounds). This claim is going to have a difficult time being approved.
What we would like to do is establish more severe limits on standing, walking, reaching, lifting, pushing and pulling, so that the judge includes more restrictions in his hypothetical question. One way to achieve that is by getting the claimant's doctor to provide a Medical Source Statement, detailing what the doctor believes the claimant's restrictions are. If the doctor, for example, states that the claimant cannot lift more than 10 pounds, can't stand more than 4 hours per day and can't stand/walk more than 3 hours per day, we have something to work with.
Vocational functionality is one of the many pieces of the puzzle that has to work for a claim to be approved. I think you can see that it is not enough just to prove that you have arthritis in the back and knees. The simple question is, "Can you still work, even with some arthritis in the back and knees?" If Social Security believes that you can, your claim is on its way to a denial.
The first thing I look at in a new case is, "OK, what are the medical conditions?" Then, "OK, how does this prevent you from doing your past work?" Third, "How does this prevent you from doing other types of work?" Knowing the rules and how the judge will apply them is a great advantage. It helps us to draft a case that uses both medical and vocational evidence to prove that you cannot work 8 hours a day, 5 days a week on a "regular and continuous basis."
____________
THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US: (256) 799-0297
E-Mail us: forsythefirm@gmail.com
So, in a Social Security disability claim it is essential to translate medical problems into vocational problems.
For example, you have arthritis in your lumbar spine, knees and other joints. This causes pain, inflammation and stiffness. Those are medical conditions. But how is your ability to do work-like activity restricted? How does back and knee pain limit your ability to sit, stand and walk? What restrictions are placed on your ability to lift, push and pull?
We must realize that back pain is going to have different effects on different jobs. With significant back pain you may not be able to perform a job with lots of standing, walking, bending and lifting. But a sedentary job where you can sit most of the time may not be affected the same way.
Many times, back pain can restrict how long an individual can sit. Sedentary work, the easiest of all work, requires the ability to sit for about 6 hours per day and to stand and/or walk up to 2 hours per day. If you can show that back pain prevents your ability to sit a total of up to 6 hours in a day, you may be found unable to perform sedentary work.
In a disability hearing, we want to first establish what your medical conditions are: arthritis, bulging or herniated discs, cervical or lumbar radiculopathy, stenosis, etc. Next, we want to carefully describe the symptoms caused by these conditions. Finally, we want to establish how these symptoms interfere with your ability to function in an employment setting: how long you can sit, stand, walk; how much you can lift, push and pull.
This helps the judge to establish your Residual Functional Capacity (RFC). This in turn helps the judge decide what kind of questions to ask the vocational expert.
Here is a typical hypothetical question as it might be asked of the vocational expert in a hearing:
I want you to assume an individual who has the same age, education and past work experience as the claimant. I want you to further assume an individual who is capable of sustaining work at the light exertion level. Specifically, she can lift up to 10 pounds frequently and 20 pounds occasionally; can sit for up to 6 hours per 8-hour day, and she can stand and/or walk with usual breaks for up to 6 hours per 8 hour day. She can frequently stoop, balance and reach. She can frequently feel, handle and grasp. She can occasionally climb ramps and stairs but never ropes, ladders or scaffolds. She should avoid hazards, including but not limited to unprotected height and moving, dangerous machinery. Given these restrictions, could the individual perform any of her past relevant work or any other work?
This hypothetical is rather unrestricted. While the judge realizes that there are some medical impairments, he seems convinced that there are no major obstacles to work in the light range of jobs (lifting no more than 20 pounds). This claim is going to have a difficult time being approved.
What we would like to do is establish more severe limits on standing, walking, reaching, lifting, pushing and pulling, so that the judge includes more restrictions in his hypothetical question. One way to achieve that is by getting the claimant's doctor to provide a Medical Source Statement, detailing what the doctor believes the claimant's restrictions are. If the doctor, for example, states that the claimant cannot lift more than 10 pounds, can't stand more than 4 hours per day and can't stand/walk more than 3 hours per day, we have something to work with.
Vocational functionality is one of the many pieces of the puzzle that has to work for a claim to be approved. I think you can see that it is not enough just to prove that you have arthritis in the back and knees. The simple question is, "Can you still work, even with some arthritis in the back and knees?" If Social Security believes that you can, your claim is on its way to a denial.
The first thing I look at in a new case is, "OK, what are the medical conditions?" Then, "OK, how does this prevent you from doing your past work?" Third, "How does this prevent you from doing other types of work?" Knowing the rules and how the judge will apply them is a great advantage. It helps us to draft a case that uses both medical and vocational evidence to prove that you cannot work 8 hours a day, 5 days a week on a "regular and continuous basis."
____________
THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US: (256) 799-0297
E-Mail us: forsythefirm@gmail.com
WHAT IS A C.E. EXAM? WILL IT HELP YOU TO BE APPROVED?
Social Security bases their disability decisions on medical evidence. If you have little treatment, or no recent treatment, they may send you out to be examined by one of their contracted doctors. This is called a consultative examination (CE).
The consulting doctor who examines you is limited by several things:
1) He doesn't know anything about your medical history, at least not by personal experience. This doctor has had no opportunity to treat you, prescribe any medications, see your response to treatments, etc.
2) He will examine you only this one time.
3) His time with you will be severely limited. You visit may only last 30 minutes or so.
4) The doctor will usually not be able to perform any medical tests, X-rays or other imaging studies because Social Security won't pay for them.
5) It will be a bare bones examination--just enough to verify basic medical facts.
Quite often, the consultative examination will NOT result in an approval for disability benefits.
You are much better off if you can provide records from your own treating physician(s). Social Security would like to see at least one year of records previous to the date you claim to have become disabled. So, by all means, if you are able to see your own doctors regularly, this is a much better option for you.
I can't tell you how many times one of our clients has been sent for a consultative examination by a Social Security doctor, only to be disappointed when their claim was denied. Then, at appeal, we will argue that the consulting doctor's opinion is entitled to no weight because he only saw the claimant one time for 30 minutes and could not possibly have come to understand all the complex medical problems that were going on.
The moral of the story is: Don't depend on one of Social Security's doctors to help you get benefits. These doctors tend to fail in offering anything helpful to you, the claimant.
I'm not sure the doctor in the photo below is a Social Security doctor. But you get the idea.
The consulting doctor who examines you is limited by several things:
1) He doesn't know anything about your medical history, at least not by personal experience. This doctor has had no opportunity to treat you, prescribe any medications, see your response to treatments, etc.
2) He will examine you only this one time.
3) His time with you will be severely limited. You visit may only last 30 minutes or so.
4) The doctor will usually not be able to perform any medical tests, X-rays or other imaging studies because Social Security won't pay for them.
5) It will be a bare bones examination--just enough to verify basic medical facts.
Quite often, the consultative examination will NOT result in an approval for disability benefits.
You are much better off if you can provide records from your own treating physician(s). Social Security would like to see at least one year of records previous to the date you claim to have become disabled. So, by all means, if you are able to see your own doctors regularly, this is a much better option for you.
I can't tell you how many times one of our clients has been sent for a consultative examination by a Social Security doctor, only to be disappointed when their claim was denied. Then, at appeal, we will argue that the consulting doctor's opinion is entitled to no weight because he only saw the claimant one time for 30 minutes and could not possibly have come to understand all the complex medical problems that were going on.
The moral of the story is: Don't depend on one of Social Security's doctors to help you get benefits. These doctors tend to fail in offering anything helpful to you, the claimant.
I'm not sure the doctor in the photo below is a Social Security doctor. But you get the idea.
Don't depend on these guys to help you get benefits!
Wednesday, August 29, 2018
DO YOU REALLY NEED A SOCIAL SECURITY ATORNEY?
Not having an attorney or professional advocate can send negative messages that you may never know about but which may hurt your chance of being paid.
Also, being unrepresented can harm your chances because of several other reasons:
1) Your hearing will probably be delayed a few months if you appear without an attorney. It is standard practice for judges to delay a hearing so the claimant can find representation. This delay can be from 3 to 6 months. Once delayed, it takes time to get back on the docket.
2) You don't know how to craft your case to take advantage of pre-published Social Security rules that would approve you--such as Listings or Medical-Vocational Guidelines (grid rules).
2) You may miss opportunities for approval posed by your age, your past work or your limited education.
3) Social Security decision makers can adopt a Residual Functional Capacity (RFC) that permits you to perform more work than you are actually able to perform. This will get you denied.
4) You may fail to get the one piece of medical evidence that could get you approved. An example would be failure to get a medical source statement.
5) The judge at your hearing may amend your Alleged Onset Date (AOD). This can cost you thousands of dollars in back pay and delay Medicare by as much as two years. When this happens you get a "Partially Favorable" decision instead of a "Fully Favorable" decision.
6) Social Security's vocational expert (present for all hearings), will probably conclude that there are some really easy jobs in the nation's economy that you can still do, despite your impairments. These experts will typically testify that you can't do your past work but you can still be employed as a small parts assembler, an inspector or a pickle pusher. So, you lose at Step 5 of the sequential evaluation process. An attorney knows how to challenge this testimony.
A good thing about representation is that it costs you nothing unless you win. It still costs you nothing unless you recover back pay. Talk to an experienced Social Security disability attorney or non-attorney professional advocate. I think you will be glad you did. Some things are OK to go it alone. Social Security disability is not one of them.
____________
E-Mail Me: forsythefirm@gmail.com
Call us: (256) 799-0297
Also, being unrepresented can harm your chances because of several other reasons:
1) Your hearing will probably be delayed a few months if you appear without an attorney. It is standard practice for judges to delay a hearing so the claimant can find representation. This delay can be from 3 to 6 months. Once delayed, it takes time to get back on the docket.
2) You don't know how to craft your case to take advantage of pre-published Social Security rules that would approve you--such as Listings or Medical-Vocational Guidelines (grid rules).
2) You may miss opportunities for approval posed by your age, your past work or your limited education.
3) Social Security decision makers can adopt a Residual Functional Capacity (RFC) that permits you to perform more work than you are actually able to perform. This will get you denied.
4) You may fail to get the one piece of medical evidence that could get you approved. An example would be failure to get a medical source statement.
5) The judge at your hearing may amend your Alleged Onset Date (AOD). This can cost you thousands of dollars in back pay and delay Medicare by as much as two years. When this happens you get a "Partially Favorable" decision instead of a "Fully Favorable" decision.
6) Social Security's vocational expert (present for all hearings), will probably conclude that there are some really easy jobs in the nation's economy that you can still do, despite your impairments. These experts will typically testify that you can't do your past work but you can still be employed as a small parts assembler, an inspector or a pickle pusher. So, you lose at Step 5 of the sequential evaluation process. An attorney knows how to challenge this testimony.
A good thing about representation is that it costs you nothing unless you win. It still costs you nothing unless you recover back pay. Talk to an experienced Social Security disability attorney or non-attorney professional advocate. I think you will be glad you did. Some things are OK to go it alone. Social Security disability is not one of them.
____________
E-Mail Me: forsythefirm@gmail.com
Call us: (256) 799-0297
Tuesday, August 28, 2018
BACK PAIN AND SOCIAL SECURITY DISABILITY
The human spine is made up of 33 moving parts. And it is probably the most overworked part of the body. No wonder, then, that we have back pain. Social Security awards more benefits for musculoskeletal problems than for all other impairments. Back pain can certainly be disabling.
How will Social Security evaluate a claim based on back pain?
First, Social Security will want objective medical evidence showing the cause or source of the pain. Ideally, this will be an MRI which can picture problems like herniated or bulging discs, canal stenosis, osteophyte formations, or other forms of degenerative disc disease. Social Security will not pay benefits merely because of a subjective complaint of back pain.
Second, they will look to see if your symptoms could reasonably be caused by the medical condition(s) specified in your medical records. In other words, does your doctor diagnose an impairment that could reasonably result in a lifting limitation, difficulty in stooping, reaching, standing, walking or sitting? In short, how does your medical impairment translate into your ability to perform work related activities? The maximum you can still do, even with your condition(s), is called your "residual functional capacity" or RFC.
Third, Social Security looks at the kind of work you have done over the past 15 years prior to filing a disability claim. Do you have back problems that would interfere with your ability to perform all of your past work? The harder your past work was, the more likely you can't do it.
If you are under age 50 (in some cases 55), they will consider other work that you might be able to do. For example, if your past work required standing for 8 hours a day,frequent bending, and lifting up to 50 pounds, they might conclude that you can no longer perform that work. But, since you are a younger individual, you may be able to perform easier work--such as a small parts assembler, inspector or laundry folder. If so, the claim will be denied.
Your attorney's job is to craft a case which proves (a) you can't perform your past relevant work and (b) there is no other work in the national economy that you could perform based on your
So, the approach to winning an SSDI claim based on a back impairment is calculated and pre-determined. We know before hand exactly what we must prove and what is required to prove it. We understand that the judge will be using a mandatory five step process to evaluate the claim. He will be checking off rules and regulations as he conducts the hearing. That's why a claimant walking into a hearing without this technical knowledge is almost certainly doomed to failure, especially if it isn't an obvious worst-of-the-worst illness.
An experienced Social Security advocate or attorney can provide valuable services, not the least of which is evaluating your claim early on to see if it has a chance. Also, he/she will pull the required evidence, evaluate it and craft the case to take advantage of published listings and medical-vocational guidelines that Social Security uses to decide whether you can get benefits or not.
___________
Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US: (256) 799-0297
EMAIL US: forsythefirm@gmail.com
Representing with Respect
Free Consultations by Appointment
How will Social Security evaluate a claim based on back pain?
First, Social Security will want objective medical evidence showing the cause or source of the pain. Ideally, this will be an MRI which can picture problems like herniated or bulging discs, canal stenosis, osteophyte formations, or other forms of degenerative disc disease. Social Security will not pay benefits merely because of a subjective complaint of back pain.
Second, they will look to see if your symptoms could reasonably be caused by the medical condition(s) specified in your medical records. In other words, does your doctor diagnose an impairment that could reasonably result in a lifting limitation, difficulty in stooping, reaching, standing, walking or sitting? In short, how does your medical impairment translate into your ability to perform work related activities? The maximum you can still do, even with your condition(s), is called your "residual functional capacity" or RFC.
Third, Social Security looks at the kind of work you have done over the past 15 years prior to filing a disability claim. Do you have back problems that would interfere with your ability to perform all of your past work? The harder your past work was, the more likely you can't do it.
If you are under age 50 (in some cases 55), they will consider other work that you might be able to do. For example, if your past work required standing for 8 hours a day,frequent bending, and lifting up to 50 pounds, they might conclude that you can no longer perform that work. But, since you are a younger individual, you may be able to perform easier work--such as a small parts assembler, inspector or laundry folder. If so, the claim will be denied.
Your attorney's job is to craft a case which proves (a) you can't perform your past relevant work and (b) there is no other work in the national economy that you could perform based on your
- age
- education
- past work experience
- residual functional capacity (RFC)
So, the approach to winning an SSDI claim based on a back impairment is calculated and pre-determined. We know before hand exactly what we must prove and what is required to prove it. We understand that the judge will be using a mandatory five step process to evaluate the claim. He will be checking off rules and regulations as he conducts the hearing. That's why a claimant walking into a hearing without this technical knowledge is almost certainly doomed to failure, especially if it isn't an obvious worst-of-the-worst illness.
An experienced Social Security advocate or attorney can provide valuable services, not the least of which is evaluating your claim early on to see if it has a chance. Also, he/she will pull the required evidence, evaluate it and craft the case to take advantage of published listings and medical-vocational guidelines that Social Security uses to decide whether you can get benefits or not.
___________
Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US: (256) 799-0297
EMAIL US: forsythefirm@gmail.com
Free Consultations by Appointment
Monday, August 27, 2018
WHAT WILL YOU BE ASKED AT YOUR DISABILITY HEARING?
You have waited two years for your disability hearing and the court date is finally almost here. What kind of questions will you be asked? What should you expect?
First, be aware that the administrative law judge has a set "track" to run on. He or she will analyze your case just as they analyze all other cases. There will be a certain set of questions to be asked and answered.
In my experience, questions at a Social Security disability hearing fall into about 4 broad categories. (No two hearings are exactly alike):
1. Background Questions. When is the last day you worked, even if it was part-time? Judges cannot make a decision without this information, so you should know it before you go into the hearing. Who do you live with? How are you getting by financially? Do you have medical insurance?
2. Past Work Experience. At Step 4 of the sequential evaluation process, the judge must decide whether you can return to any of the jobs you have performed in the past. Social Security is permitted to look back only 15 years. It will be important to describe (a) your job title, what you did all day at each of your past jobs, (b) how much you hand to stand/walk or be on your feet during an average day at work, and (c) what is the maximum weight you had to lift at each job? This will help the vocational expert to classify each job you have held in the past 15 years.
3. Medical Impairments/Conditions. Why do you believe you are not able to work? Be prepared to discuss symptoms (how you feel) more than medical terms (diagnosis). It's fine to say that you have degenerative disc disease in your back. But it's more important to tell how this condition affects your ability to do things, like sitting, standing, lifting, walking, pushing, pulling, lifting your arms above your shoulders, etc. In what ways do your medical conditions render you unable to work?
4. Activities of Daily Living. You will be asked what you do during a typical day at your house. Do you drive, shop, cook, clean the house, do the laundry. Do you have hobbies you are still able to do? Do you help the kids with homework? Can you bathe, shower and dress without assistance? What kind of things do you need help with? Do you take vacations? Where do you go? How far can you walk without resting? Do you use Facebook or play computer games? Do you take care of your own finances (pay the bills, keep up with the checking account, etc.)?
All of these questions are designed to give the judge an idea of how active you are, what your limitations are concerning everyday activities, and would you be able to do some kinds of work at the sedentary or light exertion levels.
One mistake you should not make is simply to answer questions "Yes" and stop, when that doesn't tell the whole tale. Look at the following scenario and see what's wrong with it:
"Can you drive?" Yes.
"Do you shop?" Yes
"Do you do yard work?" Yes.
"Do you clean your house?" Yes.
"Do you cook?" Yes.
What's wrong is obvious. You give the impression that you have absolutely no problems doing all of the normal activities of daily living. You aren't limited in any way.
You may need to explain, something like this: "I can drive some days but on some days I can't because of my pain." Or, "I can drive short distances but can't sit long enough to drive for more than 15 or 20 minutes." (I am assuming that this, and all other examples used here, are truthful).
You may to say, "I can clean my house by working about 30 minutes at a time; then I have to rest a little while before I can continue."
I recently represented a client who said, "I can cook but not like I once did. I throw some food in the microwave and my daughter keeps a check on it while I sit down. I can't stand over a stove for an hour or two each day any more because of my low back and leg pain." This is a good answer.
These details help the judge understand exactly what your limitations are and don't leave him thinking, "This person is doing just fine."
And let me throw in my 3 cardinal rules for testifying in court:
1) Always, always be truthful. Avoid exaggerations.
2) Never, ever answer a question you don't understand. Get it clarified first, then answer.
3) Use words with defined meanings. Avoid "Once in a while," "sometimes," "a little bit," and "not very often." Specify by saying things like "About twice a week," or "Ten or fifteen minutes," or "Not more than 10 pounds."
I always sit down with my client and talk about the hearing before it happens. What do we expect? What are the possible problems? What kind of questions am I going to ask you. What will the judge probably ask you. Here is what's in the medical record. These are the symptoms we need to focus on...etc.
E-Mail Me: forsythefirm@gmail.com
CALL US (256) 799-0297
First, be aware that the administrative law judge has a set "track" to run on. He or she will analyze your case just as they analyze all other cases. There will be a certain set of questions to be asked and answered.
In my experience, questions at a Social Security disability hearing fall into about 4 broad categories. (No two hearings are exactly alike):
1. Background Questions. When is the last day you worked, even if it was part-time? Judges cannot make a decision without this information, so you should know it before you go into the hearing. Who do you live with? How are you getting by financially? Do you have medical insurance?
2. Past Work Experience. At Step 4 of the sequential evaluation process, the judge must decide whether you can return to any of the jobs you have performed in the past. Social Security is permitted to look back only 15 years. It will be important to describe (a) your job title, what you did all day at each of your past jobs, (b) how much you hand to stand/walk or be on your feet during an average day at work, and (c) what is the maximum weight you had to lift at each job? This will help the vocational expert to classify each job you have held in the past 15 years.
3. Medical Impairments/Conditions. Why do you believe you are not able to work? Be prepared to discuss symptoms (how you feel) more than medical terms (diagnosis). It's fine to say that you have degenerative disc disease in your back. But it's more important to tell how this condition affects your ability to do things, like sitting, standing, lifting, walking, pushing, pulling, lifting your arms above your shoulders, etc. In what ways do your medical conditions render you unable to work?
4. Activities of Daily Living. You will be asked what you do during a typical day at your house. Do you drive, shop, cook, clean the house, do the laundry. Do you have hobbies you are still able to do? Do you help the kids with homework? Can you bathe, shower and dress without assistance? What kind of things do you need help with? Do you take vacations? Where do you go? How far can you walk without resting? Do you use Facebook or play computer games? Do you take care of your own finances (pay the bills, keep up with the checking account, etc.)?
All of these questions are designed to give the judge an idea of how active you are, what your limitations are concerning everyday activities, and would you be able to do some kinds of work at the sedentary or light exertion levels.
One mistake you should not make is simply to answer questions "Yes" and stop, when that doesn't tell the whole tale. Look at the following scenario and see what's wrong with it:
"Can you drive?" Yes.
"Do you shop?" Yes
"Do you do yard work?" Yes.
"Do you clean your house?" Yes.
"Do you cook?" Yes.
What's wrong is obvious. You give the impression that you have absolutely no problems doing all of the normal activities of daily living. You aren't limited in any way.
You may need to explain, something like this: "I can drive some days but on some days I can't because of my pain." Or, "I can drive short distances but can't sit long enough to drive for more than 15 or 20 minutes." (I am assuming that this, and all other examples used here, are truthful).
You may to say, "I can clean my house by working about 30 minutes at a time; then I have to rest a little while before I can continue."
I recently represented a client who said, "I can cook but not like I once did. I throw some food in the microwave and my daughter keeps a check on it while I sit down. I can't stand over a stove for an hour or two each day any more because of my low back and leg pain." This is a good answer.
These details help the judge understand exactly what your limitations are and don't leave him thinking, "This person is doing just fine."
And let me throw in my 3 cardinal rules for testifying in court:
1) Always, always be truthful. Avoid exaggerations.
2) Never, ever answer a question you don't understand. Get it clarified first, then answer.
3) Use words with defined meanings. Avoid "Once in a while," "sometimes," "a little bit," and "not very often." Specify by saying things like "About twice a week," or "Ten or fifteen minutes," or "Not more than 10 pounds."
I always sit down with my client and talk about the hearing before it happens. What do we expect? What are the possible problems? What kind of questions am I going to ask you. What will the judge probably ask you. Here is what's in the medical record. These are the symptoms we need to focus on...etc.
E-Mail Me: forsythefirm@gmail.com
CALL US (256) 799-0297
NEW MEDICARE CARDS ARE HERE
Many of our clients are reporting that their new Medicare cards have arrived.
The new cards are almost identical in appearance to the old cards, except they do not have your Social Security number. Instead, they have a unique Medicare identification number
New Medicare cards are being mailed in phases, so not everyone gets a new card at the same time. If your address on file with Social Security is correct, you don't need to do anything to get a new card. No one will call you about getting a new card.
Upon receipt, you should notify all of your medical care providers of your new card and new Medicare number. (Most offices will want a copy of the new card).
The new Medicare card issue has generated some scams around the country. If someone calls you asking for your Social Security number, address or other personal information-claiming that they are from Medicare or Social Security--beware! Social Security already has this information and does not call people to get it. Avoid giving out this information on the phone, even to people who claim they are from Medicare or Social Security. You should not be called in order to get a new Medicare card. The government is not making that type of call.
The new cards are almost identical in appearance to the old cards, except they do not have your Social Security number. Instead, they have a unique Medicare identification number
New Medicare cards are being mailed in phases, so not everyone gets a new card at the same time. If your address on file with Social Security is correct, you don't need to do anything to get a new card. No one will call you about getting a new card.
Upon receipt, you should notify all of your medical care providers of your new card and new Medicare number. (Most offices will want a copy of the new card).
The new Medicare card issue has generated some scams around the country. If someone calls you asking for your Social Security number, address or other personal information-claiming that they are from Medicare or Social Security--beware! Social Security already has this information and does not call people to get it. Avoid giving out this information on the phone, even to people who claim they are from Medicare or Social Security. You should not be called in order to get a new Medicare card. The government is not making that type of call.
Sunday, August 26, 2018
PROTECT YOUR CREDIBIITY AT YOUR HEARING
Most of the time claimants who run into trouble at a Social Security hearing do so because they violate two important rules:
1) They don't understand the question before they try to answer it, or
2) They don't tell the complete truth.
There's a lot of pressure at a disability hearing. Your check is riding on the outcome. You are not accustomed to appearing before judges and "people in suits and ties," as one of my clients recently said. You are naturally nervous.
So, it's extremely important to understand each question before you try to answer it. Does the question refer to how much lifting was required on your previous job--or how much you can lift now? Very different answers. Is the question about hobbies you used to enjoy before becoming disabled, or hobbies you still can participate in now? Very different answers.
If there is any doubt about the meaning of a question, don't try to answer it. Ask for the question to be repeated or clarified so it makes sense to you. Judges will be happy to repeat or explain a question if you ask them to.
Now, about the other thing that can cause trouble for you in a hearing: being less than honest. Exxaggeration would fall into this category. Trying to avoid some admission that you find embarrassing or that you feel might hurt you case falls into this category.
Do you smoke? In 99 cases out of 100, smoking is immaterial to a disability claim. It simply doesn't make any difference if you smoke. The problem comes when a claimant says, "No, I don't smoke" when he actually does. Or, she says, "I used to smoke but I quit," when she really still smokes regularly. And in 99 cases out of 100, the judge already knows the answer to this question before he asks it. He has read it in the medical file. I am reading a file right now where the doctor mentions "active smoker - 1 pack per day" at least 40 times. And the doctor has noted "smoking cessation counseling" 10 or 15 times. The judge sees this, too, and expects an honest answer.
"Do you drive?" the judge may ask. "How often do you drive?" The claimant may exaggerate and say, "I don't drive more than once a month, and I never drive more than 5 miles from home. I stay right close to home." Chances are, if this isn't true, the judge knows that it isn't true. He may have seen where you have taken a vacation or trip which required driving a much longer distance. By not telling the truth, you have voided your credibility, which is the most precious commodity you brought into the hearing. So, again, the truth is always the best answer.
If an answer just seems too unusual to be believed, it probably won't be. That's why I caution clients not to rate their pain as a constant 10 on the 0-to-10 scale. Frankly, it's hard to make a judge believe that you suffer 10/10 pain most of the time. It's just difficult to believe and will usually be seen as an exaggeration. Also, any such claim will be compared to what's in the doctor's records. If the doctor isn't rating the pain at a constant 10 level, it will not be taken seriously.
E-Mail Me: forsythefirm@gmail.com
Call Me: (256) 799-0297
1) They don't understand the question before they try to answer it, or
2) They don't tell the complete truth.
There's a lot of pressure at a disability hearing. Your check is riding on the outcome. You are not accustomed to appearing before judges and "people in suits and ties," as one of my clients recently said. You are naturally nervous.
So, it's extremely important to understand each question before you try to answer it. Does the question refer to how much lifting was required on your previous job--or how much you can lift now? Very different answers. Is the question about hobbies you used to enjoy before becoming disabled, or hobbies you still can participate in now? Very different answers.
If there is any doubt about the meaning of a question, don't try to answer it. Ask for the question to be repeated or clarified so it makes sense to you. Judges will be happy to repeat or explain a question if you ask them to.
Now, about the other thing that can cause trouble for you in a hearing: being less than honest. Exxaggeration would fall into this category. Trying to avoid some admission that you find embarrassing or that you feel might hurt you case falls into this category.
Do you smoke? In 99 cases out of 100, smoking is immaterial to a disability claim. It simply doesn't make any difference if you smoke. The problem comes when a claimant says, "No, I don't smoke" when he actually does. Or, she says, "I used to smoke but I quit," when she really still smokes regularly. And in 99 cases out of 100, the judge already knows the answer to this question before he asks it. He has read it in the medical file. I am reading a file right now where the doctor mentions "active smoker - 1 pack per day" at least 40 times. And the doctor has noted "smoking cessation counseling" 10 or 15 times. The judge sees this, too, and expects an honest answer.
"Do you drive?" the judge may ask. "How often do you drive?" The claimant may exaggerate and say, "I don't drive more than once a month, and I never drive more than 5 miles from home. I stay right close to home." Chances are, if this isn't true, the judge knows that it isn't true. He may have seen where you have taken a vacation or trip which required driving a much longer distance. By not telling the truth, you have voided your credibility, which is the most precious commodity you brought into the hearing. So, again, the truth is always the best answer.
If an answer just seems too unusual to be believed, it probably won't be. That's why I caution clients not to rate their pain as a constant 10 on the 0-to-10 scale. Frankly, it's hard to make a judge believe that you suffer 10/10 pain most of the time. It's just difficult to believe and will usually be seen as an exaggeration. Also, any such claim will be compared to what's in the doctor's records. If the doctor isn't rating the pain at a constant 10 level, it will not be taken seriously.
E-Mail Me: forsythefirm@gmail.com
Call Me: (256) 799-0297
IS FIBROMYALGIA DISABLING? CAN YOU PROVE IT?
For
years, fibromyalgia was a “diagnosis of exclusion.” Doctors seemed to diagnose fibromyalgia when
everything else was ruled out but there didn’t seem to be any objective
evidence for fibromyalgia. There still
are no laboratory tests for diagnosing fibromyalgia. Because of a lack of objective medical
evidence (all you had was the doctor’s opinion), proving disability was
extremely difficult. I don’t know of an
attorney or claimant who won a disability case when fibromyalgia was the only
alleged impairment. Social Security
seemed to pretty much ignore the illness or silently categorize it as a mythical
disease for which they were unwilling to pay disability benefits.
Things
changed a bit in July 2012 with Social Security Ruling 12-2p, which recognizes
fibromyalgia as a legitimate and medically determinable illness. It recognizes that there are now objective
methods that doctors can use for a diagnosis, rather than just excluding all
other diseases.
There
are actually two different sets of diagnostic criteria from the American
College of Rheumatology (ACR): The first
set of criteria came out in 1990, the second in 2010. The 1990 criteria required the presence of
tender points. However, the updated
criteria (2010) do not require the identification of any tender points.
Who
must diagnose fibromyalgia under Social Security’s rules? A licensed physician (doctor of medicine,
doctor of osteopath) must make the diagnosis of fibromyalgia. These are what
Social Security considers “acceptable medical sources.” It cannot be diagnosed by a nurse practitioner,
or chiropractor. (Social Security has
recently declared that licensed Physician’s Assistants are acceptable medical
sources. Moreover, the treatment record
must support the diagnosis of fibromyalgia. The record must contain evidence of
generalized widespread pain for a minimum of three months and that other causes
have been ruled out (e.g., blood tests to rule out lupus, rheumatoid arthritis,
etc.).
I
still see professionals who believe that there must always be a finding of 11
tender points before a fibromyalgia diagnosis is considered legitimate. This is using the old (1990) criteria; but as
I have pointed out, the 2010 criteria do not require tender points if all the
other criteria are met. In most cases,
though, tender points will be present.
How does fibromyalgia factor into
the 5 step disability evaluation process?
At
Step 2 of the sequential evaluation process, Social Security may consider
fibromyalgia as a “medically determinable impairment.” This doesn’t win any benefits, but gets the
claimant past Step 2 so the claim doesn’t die at this step. Thanks to SSR 12-2(p).
It
is next to impossible to argue that fibromyalgia is disabling because it
prevents the performance of exertional work related activities (standing, walking,
carrying, lifting, pushing or pulling).
So, we must argue that it is disabling due to non-exertional
activities: fatigue, inability to
concentrate, time off task, or lack of persistence and pace—that is, lost
productivity). The question is: How do we prove that to a Social Security
disability judge?
We
need the treating physician to provide a written opinion about how the symptoms
of fibromyalgia restricts non-exertional work related abilities. I use a form called a Medical Source
Statement. Some people call the form a
Residual Functional Capacity (RFC) form.
By any name, it’s the same thing.
CAUTION: Letters from your doctor
usually don’t work so well. The reason
is that our form covers all of the bases.
But a letter your doctor sits down and writes himself simply will not
hit all the very specific areas we need to prove the case to a skeptical
judge.
Do
the Opinions of All Doctors Carry the Same Weight?
Technically,
the answer to that is “yes” since Social Security changed their rules on March
27, 2017. However, I still find that the
following doctors will usually have more weight in their opinions IF their
treatment notes supports the opinions given in their Medical Source Statement
or RFC form.
·
A doctor who has treated you for months or
years for fibromyalgia
·
A doctor who is a specialist, preferably a
rheumatologist
·
A doctor who has had ample opportunity to
observe how fibromyalgia has affected your ability to function (mentally as
well as physically)
IS IT STILL DIFFICULT TO
WIN DISABILITY BASED ON FIBROMYALGIA ALONE?
Yes,
it is. The very fact that we can’t
usually prove that this disease severely restricts exertional functioning makes
it difficult. We may not be able to prove
that fibromyalgia severely restricts standing, walking, lifting, carrying,
pushing or pulling. So, Social Security
will come down to Step 5 (the final step) of their evaluation process and
conclude that even a person with fibromyalgia can perform some jobs, usually at the light or sedentary exertion levels. This is enough to deny the claim and
especially so if the claimant is below age 50.
IN SUMMARY
If
I tackle a fibromyalgia case where there are no other impairments, I need the
treating physician to provide me with a Medical Source Statement that opines a
severe restriction in one or more of the following:
·
Inability to concentrate or focus for up to
2 hrs. at a time or 8 hrs. per workday.
·
Off task due to pain or fatigue more than
10 percent of an 8-hr. workday
·
Need for extra rest breaks beyond the ones
customarily provided at work
·
Likelihood that the claimant would be
absent more than 2 days per month
This
would be a good piece of medical evidence; however, it still does not guarantee
a win because judges are not required to accept the doctor’s opinion at face
value. But it forms our best chance.
Let
me conclude by saying that I have absolutely no doubt that fibromyalgia can be
a disabling disease. I have seen it
first hand in members of my own family.
But with a disability claim before the federal government, it isn’t what
you know or believe, it’s what you can prove.
_______________
Charles W. Forsythe
The Forsythe Firm
Huntsville, AL
Friday, August 24, 2018
ARE YOU DISABLED UNDER THE LAW? THE 5 RULES
The Social Security Administration requires you to meet the specific qualifications and requirements under law. Getting paid a benefit isn't about whether you believe you are disabled, or even if your doctor labels you as disabled. It's about meeting specific rules and regulations established by the federal government. If you meet these rules, you can get a benefit. If you cannot, you will not get a benefit.
The Social Security Administration (SSA) will use the following mandatory 5 steps (in strict order) to determine if you qualify for an SSDI benefit.
1. Are you now working at substantial gainful activity (SGA)? In 2018, if you have employment income of at least $1,180 per month, you cannot be paid an SSDI benefit. The case dies at Step 1 and can go no further, no matter how sick you are. Social Security is not for persons who are working.
2. Do you have a severe medically determinable impairment, documented by medical records, that could reasonably produce symptoms severe enough to prevent working? Has this impairment lasted, or is it expected to last for at least 12 consecutive months--or to end in death? If not, the case stops here. (Social Security has no short-term benefit for impairments lasting less than 12 months)*.
3. Do you meet one of Social Security's published Listings? These listings are for individuals who have multiple severe symptoms which are obviously disabling. Most claimants will not meet a listing, but may go on to be approved at steps 4 or 5. Also, while at step 3, the decision maker must determine what the claimant's 'residual functional capacity' is. In other words, what is the most the claimant is able to do in terms of work-like activity, in spite of the impairment?
4. Are you able to perform any one of your 'past relevant" jobs? A past relevant job is any job you performed during the past 15-year period and performed it at SGA levels. If you are found able to perform any one of your past relevant jobs, you are not disabled and will not be paid a benefit. If you cannot perform any past job and are age 50 or over, you may be approved here. Or, you may go on to the final step before a decision is made.
5. If you cannot perform any of your past relevant work--and especially if you are under age 50--the final question becomes: Are there ANY jobs (of any type) in the national economy that you could perform, given your age, education, residual functional capacity and past relevant work history? If Social Security can identify at least one job that exists in significant numbers in the US economy that you could perform, a denial will generally ensue.
The final step includes the ability to perform even sedentary, unskilled work. If you are found able to perform work that is typically "sit down" work and that requires very little training or education, you will be denied at the final step. I see claimants denied because SSA finds that they can do the work of inspector, assembler, laundry folder or ticket taker.
So, you see, there is a very strict method to all of this. The judge knows exactly where he or she is going with questions during the hearing. It isn't a matter of just convincing the judge that you don't feel like working. It's a matter of convincing the judge that you meet all 5 of the specific rules to get a benefit. And let me say, frankly, the odds are usually stacked against you.
Behind these 5 steps, there are thousands of rules, regulations, definitions and requirements. The claimant who doesn't know the rules has little or no chance of meeting them. So take someone to the hearing with you who knows the rules and how to use them. "Yes, it's that important."
*Note: You do not have to wait 12 months to file a claim. It's just that your medical impairment must be expected to last for at least 12 months. In other words, no short-term impairments will qualify.
__________
The Forsythe Firm
Huntsville, AL
(256) 799-0297
E-Mail us: forsythefirm@gmail.com
"Representing with Respect"
The Social Security Administration (SSA) will use the following mandatory 5 steps (in strict order) to determine if you qualify for an SSDI benefit.
1. Are you now working at substantial gainful activity (SGA)? In 2018, if you have employment income of at least $1,180 per month, you cannot be paid an SSDI benefit. The case dies at Step 1 and can go no further, no matter how sick you are. Social Security is not for persons who are working.
2. Do you have a severe medically determinable impairment, documented by medical records, that could reasonably produce symptoms severe enough to prevent working? Has this impairment lasted, or is it expected to last for at least 12 consecutive months--or to end in death? If not, the case stops here. (Social Security has no short-term benefit for impairments lasting less than 12 months)*.
3. Do you meet one of Social Security's published Listings? These listings are for individuals who have multiple severe symptoms which are obviously disabling. Most claimants will not meet a listing, but may go on to be approved at steps 4 or 5. Also, while at step 3, the decision maker must determine what the claimant's 'residual functional capacity' is. In other words, what is the most the claimant is able to do in terms of work-like activity, in spite of the impairment?
4. Are you able to perform any one of your 'past relevant" jobs? A past relevant job is any job you performed during the past 15-year period and performed it at SGA levels. If you are found able to perform any one of your past relevant jobs, you are not disabled and will not be paid a benefit. If you cannot perform any past job and are age 50 or over, you may be approved here. Or, you may go on to the final step before a decision is made.
5. If you cannot perform any of your past relevant work--and especially if you are under age 50--the final question becomes: Are there ANY jobs (of any type) in the national economy that you could perform, given your age, education, residual functional capacity and past relevant work history? If Social Security can identify at least one job that exists in significant numbers in the US economy that you could perform, a denial will generally ensue.
The final step includes the ability to perform even sedentary, unskilled work. If you are found able to perform work that is typically "sit down" work and that requires very little training or education, you will be denied at the final step. I see claimants denied because SSA finds that they can do the work of inspector, assembler, laundry folder or ticket taker.
So, you see, there is a very strict method to all of this. The judge knows exactly where he or she is going with questions during the hearing. It isn't a matter of just convincing the judge that you don't feel like working. It's a matter of convincing the judge that you meet all 5 of the specific rules to get a benefit. And let me say, frankly, the odds are usually stacked against you.
Behind these 5 steps, there are thousands of rules, regulations, definitions and requirements. The claimant who doesn't know the rules has little or no chance of meeting them. So take someone to the hearing with you who knows the rules and how to use them. "Yes, it's that important."
*Note: You do not have to wait 12 months to file a claim. It's just that your medical impairment must be expected to last for at least 12 months. In other words, no short-term impairments will qualify.
__________
The Forsythe Firm
Huntsville, AL
(256) 799-0297
E-Mail us: forsythefirm@gmail.com
"Representing with Respect"
WILL SOCIAL SECURITY HELP YOU WHILE YOU ARE WAITING?
It's a well know fact that you may have to wait 2 years or longer to get a final decision on your Social Security disability claim. A question we often get is, "Will Social Security help me with a temporary payment while I am waiting?" Or, "Can I get SSI while I'm waiting on them to settle my claim?"
The answer to both questions, unfortunately, is No.
Social Security will not pay any benefit until your claim has been fully adjudicated and they have found you to be disabled and entitled to a benefit. SSI has the same medical requirements as SSDI. So, medical eligibility for SSDI and SSI will be determined at the same time. You won't be eligible for one until the other has also been decided.
So, where does one turn for help during this long, difficult waiting period? Not to Social Security, that's for sure. Claimants needing immediate financial help with food, rent, mortgage, medical treatment, etc. must piece together assistance from many different agencies--a little here, a little there.
For help with delinquent mortgage payments, I recommend you contact Hardest Hit Alabama, phone 1-877-497-8182 or go to this internet link:
http://www.hardesthitalabama.com/contact.aspx
For medical care, there are free or reduced cost clinic around Alabama that may help. My office can provide a list of these, free upon request. You may also check with your local county health department for routine care such as immunizations, etc.
Local community organizations offer assistance with food, clothing and emergency medications. You can contact resources by dialing 211 on any telephone in Alabama. Tell the operator what our emergency needs are and you will be directed to someone who can help.
Regular food allowances may be provided through your county's Department of Human Resources (DHR).
Unfortunately, there are is not one single source to handle all your needs while you wait for a disability hearing or resolution. Financial survival can be a struggle when you are caught up in the complicated, time consuming mess that is Social Security disability. Talk to your attorney or representative to be sure your case is moving along as fast as it can. Usually it is, it's just that Social Security is a very slow, deliberate process and no one can put a hurry in it.
_____________
Charles W. Forsythe
The Forsythe Firm
7207 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL US: (256) 799-0297
"Representing with Respect."
FORSYTHE FIRM WEBSITE
E-Mail Me: forsythefirm@gmail.com
The answer to both questions, unfortunately, is No.
Social Security will not pay any benefit until your claim has been fully adjudicated and they have found you to be disabled and entitled to a benefit. SSI has the same medical requirements as SSDI. So, medical eligibility for SSDI and SSI will be determined at the same time. You won't be eligible for one until the other has also been decided.
So, where does one turn for help during this long, difficult waiting period? Not to Social Security, that's for sure. Claimants needing immediate financial help with food, rent, mortgage, medical treatment, etc. must piece together assistance from many different agencies--a little here, a little there.
For help with delinquent mortgage payments, I recommend you contact Hardest Hit Alabama, phone 1-877-497-8182 or go to this internet link:
http://www.hardesthitalabama.com/contact.aspx
For medical care, there are free or reduced cost clinic around Alabama that may help. My office can provide a list of these, free upon request. You may also check with your local county health department for routine care such as immunizations, etc.
Local community organizations offer assistance with food, clothing and emergency medications. You can contact resources by dialing 211 on any telephone in Alabama. Tell the operator what our emergency needs are and you will be directed to someone who can help.
Regular food allowances may be provided through your county's Department of Human Resources (DHR).
Unfortunately, there are is not one single source to handle all your needs while you wait for a disability hearing or resolution. Financial survival can be a struggle when you are caught up in the complicated, time consuming mess that is Social Security disability. Talk to your attorney or representative to be sure your case is moving along as fast as it can. Usually it is, it's just that Social Security is a very slow, deliberate process and no one can put a hurry in it.
_____________
Charles W. Forsythe
The Forsythe Firm
7207 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL US: (256) 799-0297
"Representing with Respect."
FORSYTHE FIRM WEBSITE
E-Mail Me: forsythefirm@gmail.com
Thursday, August 23, 2018
THE TWILIGHT ZONE: WHY IS MY CASE TAKING SO LONG?
"Why is my attorney taking so long to get something done?" is a question we frequently hear. Two or three times a week, someone calls me wanting to know if I will take their disability cases because they have been waiting for months and nothing seems to be happening. They feel that their attorney is neglecting them.
Of course, this is not the case. Once you file an appeal and ask for a hearing, it's not your attorney who sets the hearing date, it is the Office of Hearings Operation. The judges schedule the hearing according to open dates on their dockets.
A wait of 18 to 24 months is typical. During this time period there isn't anything happening at Social Security. You have entered what I call the "twilight zone" of dead empty space. Nothing is happening but a long, silent, maddening wait.
Your lawyer can't do anything to make the US government move any faster. (We'd all like to)! We can't change the fact that there are over 1 million claimants waiting on a hearing. Or that there are only 1,200 administrative law judges in the United States. We can't change the fact that Social Security schedules hearings strictly in the order in which appeals were filed--strictly first come, first served.
Waiting is especially difficult if you are one of those claimants with past due mortgages, unpaid rent or you need expensive medical treatment that you can't afford. Since most Social Security disability claimants fall into one of these circumstances, the administration will not usually move one case ahead of the others.
Your lawyer or representative is just as frustrated with this long wait as you are. If we file an appeal in 2018, we know that we will work it until sometime in 2020 before it settles and that we won't be paid one cent for 24 to 36 months. We don't like that at all but there's nothing to be done about it.
Will changing lawyers help? No, not at all. It will not make your wait longer and it will not make the wait shorter. I think switching lawyers comes to mind because it is the only thing the claimant can control. However, it is usually not in the best interest of the case. Changing representation just because you feel the wait has been going on too long is generally a bad idea. Once you understand that the representative has no control over the waiting time, it becomes easier to see that switching attorneys makes no sense.
You should notify your representative if:
E-Mail Me: forsythefirm@gmail.com
Call Me: (256) 799-0297
Of course, this is not the case. Once you file an appeal and ask for a hearing, it's not your attorney who sets the hearing date, it is the Office of Hearings Operation. The judges schedule the hearing according to open dates on their dockets.
A wait of 18 to 24 months is typical. During this time period there isn't anything happening at Social Security. You have entered what I call the "twilight zone" of dead empty space. Nothing is happening but a long, silent, maddening wait.
Your lawyer can't do anything to make the US government move any faster. (We'd all like to)! We can't change the fact that there are over 1 million claimants waiting on a hearing. Or that there are only 1,200 administrative law judges in the United States. We can't change the fact that Social Security schedules hearings strictly in the order in which appeals were filed--strictly first come, first served.
Waiting is especially difficult if you are one of those claimants with past due mortgages, unpaid rent or you need expensive medical treatment that you can't afford. Since most Social Security disability claimants fall into one of these circumstances, the administration will not usually move one case ahead of the others.
Your lawyer or representative is just as frustrated with this long wait as you are. If we file an appeal in 2018, we know that we will work it until sometime in 2020 before it settles and that we won't be paid one cent for 24 to 36 months. We don't like that at all but there's nothing to be done about it.
Will changing lawyers help? No, not at all. It will not make your wait longer and it will not make the wait shorter. I think switching lawyers comes to mind because it is the only thing the claimant can control. However, it is usually not in the best interest of the case. Changing representation just because you feel the wait has been going on too long is generally a bad idea. Once you understand that the representative has no control over the waiting time, it becomes easier to see that switching attorneys makes no sense.
You should notify your representative if:
- you become homeless (have no place to stay)
- require emergency medical treatment you can't afford
- are diagnosed with a terminal illness and are told that you have less than 1 year to live
E-Mail Me: forsythefirm@gmail.com
Call Me: (256) 799-0297
Wednesday, August 22, 2018
GRIDS AND LISTINGS
Social Security publishes two important standardized sets of criteria that may direct a finding of disability automatically.
THE LISTINGS are found at 20 CFR 404, Subpart P, Appendix 1. The Listed impairments are organized by body systems (musculoskeletal, neurological, digestive, cardiovascular, etc.). To meet or equal a listing, the claimant must meet the detailed and specific medical criteria set forth for each impairment. I talk to a lot of claimants who read these listings and say, "I meet all of these, so I will qualify for benefits." It's not that simple. there must be objective MEDICAL EVIDENCE proving that you meet the criteria. Very few claimants have an impairment severe enough to meet a Listing. Listings are considered at Step 3 of the consideration process. Even if you don't meet a Listing, you may still be approved at Step 4 or Step 5. So, the Listings are relevant only to the most severely impaired claimants, not the average claimant.
GRID RULES are found at 20 CFR 404, Subpart P, Appendix 2. The grids combine the following factors to determine if a ruling of "disabled" can be made automatically based on:
So, can you be approved without meeting a Listing or grid rule? If you can. But there will be no published Social Security guideline telling the judge to approve you. The decision will rely more on the judge's discretion and evaluation of the rules that apply to your individual case.
If you are under age 50 and do not meet a Listing, you must prove that you are unable to perform any job which exists in the national economy. To use some examples: If you are able to perform the work of small parts inspector, assembler, document collator, parking garage attendant or theatre usher--you will be denied. If you are found unable to perform any full-time work, you will be approved.
So failure to meet a Listing or grid rule just makes the case more complicated; it doesn't mean that you can't be approved.
Here's a word of caution. Don't get on the internet (google) and read the Listings, realize that your symptoms aren't severe enough to meet a Listing, and assume you won't be approved. The Listings approve only the most severe cases (perhaps 1 percent of all disability claims). Grids will approve perhaps 30 percent. The other 69 percent will be approved the hard way--by proving that the claimant cannot sustain a full day of work on a regular and continuing basis, achieved through an analysis of medical records.
All of this may be a bit complicated for the average claimant, and you don't really have to understand Listings and grids if you use an attorney or representative who does. If you call me I will be glad to do an evaluation of your situation and see what kind of case you have (Listing, grid, or "other"). Of course, there is no cost for anything we do unless we agree to represent you, win your case and collect back pay from Social Security. So, questions are free.
____________________
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL ME: (256) 799-0297
E-Mail us: forsythefirm@gmail.com
"Representing with Respect"
_______________
FORSYTHE FIRM WEBSITE - VISIT
THE LISTINGS are found at 20 CFR 404, Subpart P, Appendix 1. The Listed impairments are organized by body systems (musculoskeletal, neurological, digestive, cardiovascular, etc.). To meet or equal a listing, the claimant must meet the detailed and specific medical criteria set forth for each impairment. I talk to a lot of claimants who read these listings and say, "I meet all of these, so I will qualify for benefits." It's not that simple. there must be objective MEDICAL EVIDENCE proving that you meet the criteria. Very few claimants have an impairment severe enough to meet a Listing. Listings are considered at Step 3 of the consideration process. Even if you don't meet a Listing, you may still be approved at Step 4 or Step 5. So, the Listings are relevant only to the most severely impaired claimants, not the average claimant.
GRID RULES are found at 20 CFR 404, Subpart P, Appendix 2. The grids combine the following factors to determine if a ruling of "disabled" can be made automatically based on:
- Residual Functional Capacity
- Age
- Education
- Past relevant work experience
So, can you be approved without meeting a Listing or grid rule? If you can. But there will be no published Social Security guideline telling the judge to approve you. The decision will rely more on the judge's discretion and evaluation of the rules that apply to your individual case.
If you are under age 50 and do not meet a Listing, you must prove that you are unable to perform any job which exists in the national economy. To use some examples: If you are able to perform the work of small parts inspector, assembler, document collator, parking garage attendant or theatre usher--you will be denied. If you are found unable to perform any full-time work, you will be approved.
So failure to meet a Listing or grid rule just makes the case more complicated; it doesn't mean that you can't be approved.
Here's a word of caution. Don't get on the internet (google) and read the Listings, realize that your symptoms aren't severe enough to meet a Listing, and assume you won't be approved. The Listings approve only the most severe cases (perhaps 1 percent of all disability claims). Grids will approve perhaps 30 percent. The other 69 percent will be approved the hard way--by proving that the claimant cannot sustain a full day of work on a regular and continuing basis, achieved through an analysis of medical records.
All of this may be a bit complicated for the average claimant, and you don't really have to understand Listings and grids if you use an attorney or representative who does. If you call me I will be glad to do an evaluation of your situation and see what kind of case you have (Listing, grid, or "other"). Of course, there is no cost for anything we do unless we agree to represent you, win your case and collect back pay from Social Security. So, questions are free.
____________________
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL ME: (256) 799-0297
E-Mail us: forsythefirm@gmail.com
_______________
FORSYTHE FIRM WEBSITE - VISIT
Tuesday, August 21, 2018
HOW YOUR DAILY ACTIVITIES ARE CONSIDERED IN AN SSDI CLAIM
When deciding whether to pay disability benefits, Social Security will consider the claimant's activities of daily living. They will use the reported activity level to determine whether the claimant can perform the demands of work. Social Security obtains an estimate of activity level from 3 sources:
1) Self-reported activities in the Function Report which the claimant fills out at the time of application. This 14-page form will ask about everything from caring for pets to shopping and cleaning your house.
2) Review of doctor's records where the doctor often makes a note about the patient's activities. For example, I see doctor's notes that say things like, "Just came back from vacation in Colorado and has a sore back." Or, "Went to Tunica last weekend and lost $300 and is still upset." I recently read a medical record where the doctor noted: "He has been helping a friend remodel his house."
(3) Direct testimony by the claimant during a hearing. The judge will ask the claimant about things like shopping, lawn work, doing the laundry, cleaning, visiting friends, hobbies...and a long list of activities.
I suspect that judges may also look at self-reported activities in social media...like Facebook. Social media kind of opens our private lives up for the entire world to see. If you play with the grandkids, take trips, go fishing or have an especially beautiful lawn (that requires a lot of back breaking work)...these things seem to get noticed at Social Security, thanks to Facebook, Twitter or social media accounts.
Decision makers will look to see how robust the claimant's daily activities are. If there doesn't seem to be a lot of restrictions in activities, the decision maker may conclude that the claimant can work at some type of job. Simply put, if the activities you report are inconsistent with a severe disability, it will hurt your credibility and your case.
I try to make sure my clients understand the purpose of Social Security disability. It is to provide a minimal income to individuals who have absolutely lost the ability to sustain every type of work available in the national economy. That's a very rigorous standard. Your ability to work will be judged by how many normal activities of daily living you are still able to perform. Social Security is looking for consistency: what you report to them is consistent with your activities day-to-day.
__________
The Forsythe Firm
7027 Old Madison Pike - Suite 108
"Across from Bridge Street"
Huntsville, AL 35806
CALL US: (256) 799-0297
E-Mail Me: forsythefirm@gmail.com
"Representing With Respect"
FIND OUT MORE ABOUT THE FORSYTHE FIRM
1) Self-reported activities in the Function Report which the claimant fills out at the time of application. This 14-page form will ask about everything from caring for pets to shopping and cleaning your house.
2) Review of doctor's records where the doctor often makes a note about the patient's activities. For example, I see doctor's notes that say things like, "Just came back from vacation in Colorado and has a sore back." Or, "Went to Tunica last weekend and lost $300 and is still upset." I recently read a medical record where the doctor noted: "He has been helping a friend remodel his house."
(3) Direct testimony by the claimant during a hearing. The judge will ask the claimant about things like shopping, lawn work, doing the laundry, cleaning, visiting friends, hobbies...and a long list of activities.
I suspect that judges may also look at self-reported activities in social media...like Facebook. Social media kind of opens our private lives up for the entire world to see. If you play with the grandkids, take trips, go fishing or have an especially beautiful lawn (that requires a lot of back breaking work)...these things seem to get noticed at Social Security, thanks to Facebook, Twitter or social media accounts.
Decision makers will look to see how robust the claimant's daily activities are. If there doesn't seem to be a lot of restrictions in activities, the decision maker may conclude that the claimant can work at some type of job. Simply put, if the activities you report are inconsistent with a severe disability, it will hurt your credibility and your case.
I try to make sure my clients understand the purpose of Social Security disability. It is to provide a minimal income to individuals who have absolutely lost the ability to sustain every type of work available in the national economy. That's a very rigorous standard. Your ability to work will be judged by how many normal activities of daily living you are still able to perform. Social Security is looking for consistency: what you report to them is consistent with your activities day-to-day.
__________
The Forsythe Firm
7027 Old Madison Pike - Suite 108
"Across from Bridge Street"
Huntsville, AL 35806
CALL US: (256) 799-0297
E-Mail Me: forsythefirm@gmail.com
"Representing With Respect"
FIND OUT MORE ABOUT THE FORSYTHE FIRM
Subscribe to:
Posts (Atom)