USE IMPAIRMENTS TO SHOW DISABILITY

Unless you have a terminal or catastrophic illness, getting disability benefits is not about having a particular disease.  It is about how your impairments limit your ability to function in the workplace.

Social Security considers impairments in two broad categories:  exertional impairments and non-exertional impairments. 

(a) Exertional limitations (sometimes called "strength" limitations) are:  sitting, standing, walking, lifting, carrying, pushing and pulling.

 

(b) Nonexertional limitations.

 

When the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect only your ability to meet the demands of jobs other than the strength demands, Social Security considers that you have only nonexertional limitations or restrictions. While you may still be found disabled, you will not meet any of the grid rules with non-exertional impairments.

 

Some examples of nonexertional limitations or restrictions include the following:

 

(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; or

(vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.

(2) If your impairment(s) and related symptoms, such as pain, only affect your ability to perform the nonexertional aspects of work-related activities, you will not be considered under the Medical-Vocational Guidelines of Appendix 2, Subpart P.  That is, you cannot meet a grid rule.

 

If I am representing you, I will determine whether you have exertional (strength) limitations that may meet one of the grid rules and, therefore, direct a finding of disability.  This will apply to claimants who are at least fifty years of age.

 

I will also determine if you have non-exertional limitations--postural, psychological or environmental--that may limit your ability to sustain full-time work.

 

In many cases, a claimant has a combination of both exertional and non-exertional limitations. 

 

If exertional (strength) limitations alone allow disability under one of the grid rules (only for ages 50 or above), I will try to use these limitations to get an award.

 

If you are under age 50, or if your primary limitations are non-exertional, I will try to show that the combination of your limitations are so severe that you cannot sustain any full-time work that is available in the national economy.

 

Social Security decision making is a very technical and complicated business.  In order to map out a possible route to success, you need to know the rules of the road.

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The Forsythe Firm

7027 Old Madison Pike - Suite 108

Huntsville, AL 35806

"Across from Bridge Street"

PH (256) 799-0297 

 

SOCIAL SECURITY QUIETLY MAKES IT HARDER TO GET BENEFITS

A new study confirms what we already knew:  Social Security has quietly made it much more difficult to get disability benefits, including Medicare.

"If you make it harder, people just run out of gas," said Richard Browdie, chief executie of the Benjamin Rose Institute on Aging in Cleveland.  "There are a whole bunch ofnew impediments, and I think the process has become overly restrictive," Browdie says.

Starting around 2010, Social Security singled out the better paying judges, the ones who awarded a higher percentage of claims on appeal, and "retrained" them.  In fact, these judges were taught how to deny claims instead of approving them.  The result was that awards dropped from 69 percent in 2008 to 49 percent in 2015. This re-education program cost claimants billions of dollars in lost benefits.

By 2017, the approval rate for appeals dropped to 42 percent--a whopping 27 percent decline in approvals in the ten-year period.

In addition to "retraining" administrative law judges (teaching them how to deny claims), Social Security also adopted more restrictive regulations and policies designed to give judges more power to deny claims.

For example, the old rules required that a claimant's treating doctor's opinion be given more weight than the opinion of a doctor who had never seen or treated the claimant, i.e., a Social Security doctor.  Effective May 27, 2017, the rule was revised to allow the administrative law judge discretion to accept the opinion of any doctor--even one who has never met or examined the claimant.

I am now presenting opinions from claimants doctors who have treated them for 15 or 20 years and say that their medical restrictions prevent them from being able to work, only to have judges accept the opinion of a Social Security who have examined the claimant one time, briefly at that, and say the claimant has "no restrictions" and can work at 300,000 different jobs.  These doctors are paid by Social Security.

All this to say that Social Security is in a fiscal panic, fueled by two things:  (1) Actuaries who predict that the Social Security trust fund will lose its ability to pay out full benefits by 2027, and (2) media outcries that Social Security is full of fraud and abuse and that it has become "the new welfare."  Politicians and bureaucrats get scared silly when the media cries wolf!  They react by illogical reactions, such as gutting the Social Security disability program--the only lifeline for millions of poorly educated, poorly trained Americans who depend on unskilled manual labor to earn a meager living.  When these individuals become unable to perform arduous physical work because of medical impairments, they have nothing left but Social Security disability.

We lose sight of one fundamental truth in all this:  that Social Security disability is a government mandated insurance program that workers actually pay for.  A Social Security tax (called FICA) is deducted from every paycheck a worker earns at a rate of approximately 7.5 percent of gross wages.  The employer matches it with another tax of 7.5 percent.  So, for every dollar a worker earns--during his or her entire working lifetime--15 cents of it is contributed to the Social Security trust fund.  When a worker becomes disabled, he is not asking for a handout, or welfare, or a free government benefit.  He is asking the federal government to pay up on an insurance policy they forced him to purchase and pay for.

The government is glad to take 15 percent of the worker's wages but has become increasingly reluctant to give any promised benefit in return.  It's equivalent to an insurance company taking hour premiums for 30 years, then refusing to pay off when you have a legitimate claim under the policy.

How do you fight back?  You do just that, you fight.  When your claim is denied, you lawyer up--and file a legal appeal.  In Alabama, you have the following 3 legal appeals available to you when Social Security refuses to pay your disability claim:

APPEAL 1:  Ask for a hearing by an administrative law judge.  True, the award rate here has fallen from 69 percent in 2008 to a mere 42 percent in 2017 but this is still your best chance of getting your benefit.

APPEAL 2:  If the retrained judge denies your claim, ask for a review by the Appeals Council (AC).  There are still some rules that judges must follow and if they fail to do so, your case may be remanded by the AC.

APPEAL 3:  If the Appeals Council will not give you relief, you have the right to file a lawsuit in Federal District Court against the Commissioner of Social Security.  This is really your last practical appeal.

The tightening of Social Security rules has had a trickle down effect on disability attorneys and advocates--legal champions who fought to get their clients benefits.  For example, the largest advocacy group in the nation, Binder and Binder in New York filed for bankruptcy and laid off most of its staff. Hundreds of other attorneys simply stopped handling Social Security cases because it became so difficult to win a case and get paid. 

But...there are still some good advocates and attorneys who will fight for the rights of the disabled--and there always will be.  Make no mistake, the effort to get disability benefits is a fight.  You must realize this and go into the process with the best disability advocate you can find.

DENIED? FILING A NEW APPLICATION IS A MISTAKE

Social Security disability applications are reviewed and approved/denied by the Disability Determination Service, or DDS for short.  The DDS reviews your medical records, work history and other information and decides whether you meet the rules to receive benefits.  They deny about 7 out of 10 applications.

If you get denied, it makes no sense to file a new claim.  The same agency (DDS) that denied you will look at the same information, apply the same rules, and deny you again.  Each application you file will waste 3 to 5 months of your time and you are no closer to being approved than you were to start with.

So, what's the better way?

The better way is to appeal as soon as you are denied.  The goal is to get your claim OUT of the DDS and before a judge.  This requires an appeal.

CAUTION:  The law only gives you 60 days to appeal.  After that, you cannot appeal unless you can show good cause for filing a late appeal--and this is very difficult to do.

A denial by the Disability Determination Service (DDS) is unfortunate but it is also an opportunity.  It is an opportunity to get out of DDS completely and before an administrative law judge, where there are better odds of approval.

An appeal puts you in line for a hearing, which will probably be about 2 years in the future.  If your claim is eventually approved, you may be able to receive back pay for the time you waited.

Filing new application after new application is spinning your wheels.  You are stuck and getting nowhere.  File an appeal, move up the chain of command and increase your odds of being approved.

DENIALS AND THE NEXT MAJOR STEP

It is certainly discouraging to apply for disability benefits and be denied.  But it happens to over 75 percent of claimants.

Filing a new application will just get you denied over and over.  Your goal is to eventually get your case in the hands of a judge who can make a new and more favorable decision.

How do you do that?  Appeal the denial within 60 days of the date on the denial letter.  Request a hearing before an Administrative Law Judge (ALJ).  After 60 days you lose the right to appeal.  In some cases, you may also lose the right to file a new claim.

Filing an appeal is a relatively easy task that most people can do.  Ask the Social Security office for form SSA-501 - "Request for Hearing By An Administrative Law Judge."  It's a one-page form that can be completed in 3 minutes. 

Once you file the appeal (Request for Hearing), there is a lot of work to be done.  Now, you have to figure out how to win your hearing.  That involves keeping your medical records updated and figuring out how to use Social Security regulations to win your case.

IMPORTANT:  If your application is denied, do not file a new claim.  File an appeal.

Your Goal:  Get your case before a judge.  This is where most Social Security disability cases are awarded.

Need help?  Call us at (256) 799-0297.

WHY SOME DOCTORS WON'T HELP YOU WITH A DISABILITY CLAIM

You have applied for Social Security disability.  Your attorney wants to get a form completed by your doctor detailing your restrictions and limitations in the ability to perform certain work-like activities.  Your doctor says, "We don't fill out those forms," or "we don't like to get involved."


Why do so many doctors take this unhelpful approach with their patients?

REASON 1:  Doctors don't understand how important their input is to Social Security.  They often assume that supplying their routine medical records is all that is needed.  It isn't, because medical records say nothing about the patient's ability to lift, sit, stand, bend, reach, push, pull or walk.

REASON 2:  Doctors often think that the form requested will require a long, complicated or special examination.  This is not true.  What Social Security wants is the doctor's professional opinion, based strictly on his/her treatment, past examinations and observations.

REASON 3:  Doctor's mistakenly think that Social Security may subpoena them or call them to come in and attend a hearing or provide more testimony.  This is an unfounded fear.  Social Security never (and I mean "never") calls in doctors.  If they want a doctor to come in, they have their own medical experts who are paid by Social Security.

REASON 4:  Doctors have an unreasonable, illogical fear of all things about Government.  One doctor told one of my clients, "I can't afford to risk losing my medical license."  Reality:  No doctor has ever been put at risk of losing a medical license by expressing an honest opinion about his or her patient's symptoms or limitations.  There is no risk at all.  Social Security may ignore the doctor's opinion but unless there has been a clear crime (a doctor is paid a bribe to render an opinion)--there is no risk of penalty to the doctor.

REASON 5:  The doctor simply doesn't want to take the time to fill out a form, even if it means his patient will not be able to get health insurance and monthly payments that he or she has paid for during their entire working life.  In short, and this is blunt: The doctor doesn't give a ____ whether the patient gets a disability benefit or not.

Fortunately, some doctors really care about their patients and will complete paperwork needed for a fair disability review, especially if you take time to explain why this is needed and that there is no risk to the doctor beyond a little of his or her time. 

THE AGE 50 "SWEET SPOT" FOR SOCIAL SECURITY DISABIILTY

Below age 50?  It's very difficult (not impossible) to get approved for Social Security disability benefits.

Age 50 or above?  Your odds of getting approved just got a lot better.

Why does age make so much difference to Social Security?

The answer is the grid rules, officially known as the Medical-Vocational Guidelines.

Without going into complicated explanations of grid rules, here's the basic logic:

BELOW AGE 50:  a claimant will go all the way to Step 5 in the five-step decision making process.  The question will be:  Is there any work in the national economy that this claimant could perform?

"Any work" includes entry level, low paying, unskilled jobs that require no specific education, training or experience.  Jobs like silverware wrapper, laundry folder, small parts sorter or hand packager.  The ability to do this type of work is enough to get you denied if you are under age 50 -- "a younger individual."

AGE 50 OR OVER (Qualify for the grid rules):  At 50, your age category changes.  At ages 50-54, you are no longer a "younger individual."  You have entered the age category called "Closely Approaching Advanced Age."  These claimants often only go to Step 4 of the five-step sequential process.  The question is "Can the claimant perform any of his/her past relevant work?"  If the answer is no, you may be found disabled.  If your past work was at the medium exertion level, it doesn't matter that you can still perform light or sedentary work.  So, it doesn't matter if you can be a silverware wrapper, laundry folder or hand packager.

Because of the grid rules, your attorney or representative must do the following things at your hearing:

1.  Get the vocational witness to properly classify your past work as far as (a) skill level and (b) exertion level.

2.  Present evidence to help the judge properly establish your 'residual functional capacity' or RFC.  Your RFC is the maximum you can still do in terms of work related functions:  sitting, standing, walking, lifting, bending, reaching, crouching, crawling, kneeling, etc.  Medical records should be used to show that you have limitations in these functions that limit you to, say, sedentary work--so that you cannot perform light, medium or heavy work.

3. Evaluate the grid rules to make them work for you.

The goal for persons age 50 and over is to show that you are not able to perform the demands of your past relevant work (work you have done during the most recent 15-year period).  The grid rules, if used properly, may actually direct the judge to a finding that you are disabled according to Social Security's rules and regulations.
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Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH (256) 799-0297

WHY YOUR DISABILITY ODDS ARE BETTER AT THE APPEAL LEVEL

A Social Security disability case falls into one of 2 broad categories:  the application stage - and the appeal stage.

The application stage is where a state-run agency looks at your medical evidence and makes a decision about whether you are eligible to receive a benefit payment.  This process takes 3 to 4 months and results in denials of almost 8 out of 10 applications.

Once denied, the claimant must file a written appeal, moving the claim to a different department within the Social Security Administration known as the Office of Hearings Operation (OHO).  Here, eventually, an administrative law judge (ALJ) will hold a hearing, look at all the evidence and render a new decision.  The appeal process normally takes about 2 years.

Here's Why You Have a Better Chance With The Appeal:

• You will get a face-to-face meeting with a judge, a man or woman with a law degree and experience adjudicating legal matters.
•  You will get to bring your lawyer or legal representative with you to the hearing.
• You will get to explain your disability.
• Your representative will get to present legal arguments why you meet qualifications for a disability benefit.
• You will get to submit any new medical evidence available.
• You will be able to present your doctor's opinion (if available) at the hearing.

Of all hearings held in the United States, an average of 42 percent will result in awards (approval of benefits).  Most of these awards will include payment of past due benefits or "back pay."

Award rates, however, vary from office to office and from judge to judge.  There may one judge in a certain hearing office who awards 65 percent of cases but another judge in the same office who only awards 17 percent.  But the national average for 2017 was 42 percent favorable decisions.

So, here are two very simple conclusions to bring away from this:

1.  It's very common for a disability application to be denied.  Happens about 80 percent of the time.

2.  If denied, appeal immediately.  The appeal process is your best chance for getting paid. It never costs you money to file an appeal.  If an attorney or qualified advocate assists you, they cannot charge you a fee until AFTER you have won the appeal--and only then if you receive back pay or past due benefits.  The fee must be a percentage of the past due benefits that you have agreed upon in your written Fee Agreement. Fees are strictly regulated by the Social Security Administration.