Claimant’s attorneys like me were predictably upset by SSA’s new policy.   There was no evidence that judge shopping was a major problem and by concealing the names of the judges it has been more difficult to prepare clients for hearings.

NOSSCR, an organization that many claimant’s reps belong to, advised us to file freedom of information requests.   Apparently enough lawyers filed these FOIA requests that Social Security has relented.   As of April 20, 2013, SSA will once again include the name of the assigned judge on the hearing notice.

This change in policy does not solve the problem of inconsistency in decision making by Social Security judges but it does help the claimant’s bar by improving our capacity to prepare clients for hearings.   Credit to SSA for changing course on a fundamentally bad policy.

The post SSA Reverses Policy on Withholding the Identity of Hearing Judges appeared first on GA Social Security.

These orders for short term reviews are something of a new phenomenon.  Prior to 2012 I think I saw this type of directive only once or twice.  Now these orders are in almost every decision.

Social Security disability is running out of money.  SSA administrators are addressing this shortfall by:

• encouraging judges to only approve cases where there is objective evidence of disability
• carefully reviewing the approval/denial statistics of judges
• moving to terminate the contracts of judges with extremely high approval rates
• informally encouraging judges to keep approval rates to a 30 to 40% range
• increasing funding for continuing disability reviews

Social Security has done a very poor job at reviewing approved claimants for medical improvement.  I expect that we will see a significant increase in benefit termination proceedings.

From a claimant’s perspective, it will be difficult to retain counsel for help in an benefit termination case.  Unlike benefit applications where there are past due benefits that can fund a contingency fee, there are no past due benefits involved in a termination case.   Most disability claimants are not going to have $3,000 or more to pay a lawyer out of pocket to represent them at hearings.

I tell my approved claimants to prepare for the possibility of a continuing disability review and to take the following steps to avoid getting cut off:

• continue to meet with your treating doctors
• fill your prescriptions and do what the doctor says to do
• keep a pain or symptom diary
• if you feel that you can work try to work – you’ll earn more money and feel more fulfilled; however as a general rule keep in mind that Social Security sees a work attempt lasting more than 3 months as a “successful” work attempt while a work attempt lasting less than 3 months is seen as unsuccessful.  If you work 6 months at Job “A” and 5 months at Job “B” you will have to explain why these work attempts should not be considered evidence that you have the capacity to function in a work environment.
• if you start hearing reports on the news or on blogs like this one that deserving claimants are being cut off, consider saving up funds to pay a lawyer to represent you at a continuing disability review hearing

Extensive and consistent documentation can help a deserving claimant win disability benefits and extensive and consistent documentation can help an approved claimant keep his or her benefits.

The post Should You be Concerned About a Continuing Disability Review appeared first on GA Social Security.

Generally the first 15 to 20 minutes of your hearing will involve procedural and background material.  Vocational witness testimony at the end of your hearing will take 10 to 15 minutes, which means that the judge will expect you and your attorney to present the main points of your case within 30 to 40 minutes.

As the claimant – the person seeking disability benefits – you can and should rely on your lawyer to prepare a thoughtful argument and direct examination questions that he can ask you to help the judge get a sense of your credibility and honesty.  It goes without saying that your lawyer should request and submit medical evidence so that your file will be complete.

Besides answer questions, however, there are some specific steps you can take to help your lawyer and to make good use of the precious time allotted to you during your hearing ¹.  Specifically, you do not want the preliminary and background portion of the hearing to take longer than 10 to 15 minutes and you can play an important role in this regard by having certain information at your fingertips.

First, you should have a list of your past jobs over the past 15 years.  Ideally this means that you should know the name of your past employers, the type of work that you performed, the job title and why you left that job.  If you received any special considerations, make note of that as well.

You now know that the judge will ask you about your past work so you should not wait until the day of your hearing to start thinking about this topic.  Further, if you have worked at all after the date you claim your disability began (your onset date), be prepared to explain why you have post-onset date earnings.  Perhaps these earnings represent an unsuccessful work attempt, or perhaps you need to discuss changing your onset date with your lawyer.

Second, you should have a list of all of your current medications as well as a list of previous medications you have tried and that were discontinued.  Many judges look at medication lists to evaluate the severity of your medical condition and to gauge your credibility when you speak of side effects.

Write down a list of each medication, the dosage prescribed, the prescribing doctor and any side effects.  If you have not been able to afford your medications, make note of that as well.

Third, you should coordinate with your lawyer to make sure that all recent medical treatment has been listed.  Perhaps you went to a new doctor last week, or you underwent an MRI or CT scan.  Make sure that your lawyer knows about this recent treatment so he can ask the judge to leave the record open for a few days to obtain and submit these records.

It is not a problem to use written notes when you testify at your hearing.  If you are organized and help the judge make good use of the preliminary information portion of your hearing, you increase the probability that the judge will find your credible and likeable.  I have been at a few hearings where the opposite was true and my client used up half of his hearing time trying to remember dates of past work and to explain earnings after the onset date.  In this particular case much of what my client was talking about had never been discussed with me in our pre-hearing meeting, so I was not able to jump in to try to rescue my client.

The judge knows that you have been waiting 2 years or longer to get a hearing date.  Don’t start off on a bad foot by showing up unprepared.

The post Simple Steps to Avoid Wasting Time at Your Social Security Disability Hearing appeared first on GA Social Security.

There are very few exceptions to SSA’s requirements for electronic deposits.  Elderly retirement recipients born before May 1, 1921 will continue to receive paper checks automatically and those without ready access to a bank can apply for a waiver, although SSA’s “800 number” system requires a waiver applicant to navigate through multiple levels of voice mail before it allows you to talk to a live person about a waiver.  In other words, SSA wants to make it very difficult for beneficiaries to continue to receive paper checks. ¹

There are obvioulsly many benefits to an electronic payment system aside from cost savings to SSA. In theory payment issuance should become more secure and payees can avoid the problems associated with stolen checks and theft of cash.

At the same time, Social Security beneficiaries can be victims of identity theft, and bank error. Further, banks and other deposit institutions may charge fees for maintaining checking accounts or for ATM access.

Despite reservations that you may have, paper checks are quickly becoming a relic of the past at the Social Security Administration.  You can sign up for direct deposit or a DirectExpress debit card at  GoDirect.org or by calling 800-333-1795. ²

Finally, make sure to meet with a bank representative to advise the bank that deposits from Social Security will now be electronically deposited.  Social Security funds are not subject to garnishment for civil judgments (like credit card collection lawsuits) but if your Social Security funds are “co-mingled” with non-Social Security funds, your money may be at risk.

Many banks offer the option of creating a “sub-account” under your main checking or savings account that will be designated as an account containing Social Security money only.  This sub-account, in theory, would be protected from garnishment by civil judgment creditors (but not by the IRS or child support creditors).  ³

I can tell you from my bankruptcy practice that it is much easier to prevent a bank account levy than it is to get money back, so take the time now to communicate with your bank about the protected nature of your account.

Further reading:

The post Paper Checks from Social Security Now a Thing of the Past appeared first on GA Social Security.

I am glad to see that this issue – sexual harassment of female soldiers – is being reported. The New York Times ran a story on February 27, 2013 entitled Trauma Sets Female Veterans Adrift Back Home and the examples set out in this story reflect the experiences of my clients.  One of the soldiers profiled in the NYT story describes a brutal rape on a U.S. Military base on South Korea.  The emotional scarring arising from this incident has left the victimized soldier suffering from PTSD, living out of her car and beset by homelessness.

The story of the soldier in the NYT mirrors the case of a client I represented at a hearing just a few months ago.  My client was stationed stateside when a male officer began to make inappropriate verbal advances towards her.  Eventually this verbal abuse led to physical abuse and my client was raped numerous times by this officer over a year long period.  The offending officer advised my client that no one would believe her and that he would kill her if she reported the rapes.  My client did eventually file a report but the Army took no action on her complaint and eventually promoted and transferred her tormenter.

After leaving the Army my client did work in a job involving creative work where she could minimize contact with others but eventually she fell into a deep depression from which she has not recovered.  She is currently homeless, living with friends when she can and in her car at other times.  Because of financial concerns her only access to treatment is at the Veterans Administration hospital, but my client has received very little treatment of value there.  First, the VA facility brings back memories of a military environment and thus exacerbates her stress level.  Second, the VA psychologists seem reluctant to document my client’s story and their therapy consists of prescribing psychotropic medications.

My client was turned down for disability at her hearing.  The decision reads in part:

The claimant has a significant history of treatment for major depression and post-traumatic stress disorder.  The claimant presented fora State agency consultative psychological examination by Dr. —-  and reported longstanding depression, “but I haven’t had any treatment because they usually try to push medication.”  She reported taking psychotropic medications for a short time some years ago, but discontinued and never resumed….The longitudinal record shows the claimant reported doing well with decreased symptoms when taking medications as prescribed.  However, the record also shows her symptoms returned including auditory hallucinations, increased depression and anxiety, suicidal idation, paranoia and sleep problems in the setting of non-compliance with psychotrophic medications.

In other words, my client was disapproved because she refused to consume a copious volume of pills that left her basically non-functional from an organization that she does not trust as having her best interest at heart.

My sense is that this judge viewed PTSD through the lens of combat stress only and was not sensitive to the unique psychological vulnerability of female soldiers who regularly deal with sexual harassment.  It will be interesting to see if adding combat stress to the existing challanges faced by female soldiers will be reflected in PTSD diagnoses.

The post PTSD in Female Soldiers – a Hidden Problem Likely to get Worse appeared first on GA Social Security.

At this point, however, Social Security considers chiropractic to be an alternative form of health care treatment and it assigns no weight to the opinion of its practitioners.  In my experience, disability adjudicators will not request chiropractic records and judges will not assign these records any weight at hearings.

A functional capacity form completed by a licensed practitioner will not carry any weight with a Social Security judge.  If you are treating with a chiropractor who has a working relationship with a medical doctor who recognizes the clinical effectiveness of non-invasive spinal adjustments, it can be useful to have the medical doctor complete the functional capacity form based on his own observations and treatment in concert with the treatment of the chiropractor.

Over the years, several clients have expressed frustration at Social Security’s position, but I see no changes imminent.  So, if you are pursuing Social Security benefits and your only source of treatment is chiropractic, you are going to have an uphill battle.

The post Will an Opinion from my Chiropractor help my Social Security Disability Claim appeared first on GA Social Security.

When your case comes before the judge, he has the option of approving your claim as filed, denying your claim, or issuing a partially favorable decision approving benefits but using a different onset date.  Usually, when the judge changes your onset date he will use a more recent date, which will have the effect of reducing your past due benefit amount.

Why would the judge change your onset date?  Most often the judge will do this because he has concluded that the medical evidence in your file does not support your original alleged onset date.  You can expect this to happen if you alleged an onset date prior to the date you stopped working, or if your onset date was more than two or three years ago.

Some judges will choose a different onset date based on the presence of a medical test, such as an MRI or CT scan.   This can be frustrating if, for example, you hurt your back three years ago, but could not afford an MRI until two years ago.  Some judges just do not feel comfortable assuming anything, despite the very strong likelihood that your disc issues existed as of the time of your traumatic back injury and did not suddenly come into existence a year after your accident.

Some judges will change your onset date to your 50th or 55th birthday so they can use the grid rules to issue an approval.   In these cases the judge may feel that you retain the functional capacity to perform some work so the only basis for approval would be the grid rules.

Often, during the actual hearing the judge will ask you and your attorney to consider voluntarily amending your onset date so that the judge can issue a fully favorable decision.  In these cases you and your attorney will be given time to step outside and confer in private.   If you do choose to voluntarily amend your onset date, make sure that you do not agree to a changed onset date that is after your date last insured for Title II SSDI without understanding the implications of doing so.  If you agree to an onset date after your Title II SSDI insurance has lapsed, you would only be eligible for SSI, and SSI is subject to numerous offsets that can reduce or eliminate your SSI benefit.

If the judge does not ask you to voluntarily amend the onset date, or if you refuse to do so, the judge can issue what is known as a partially favorable decision.  In such a case, you have the right to appeal the partially favorable decision but if you do so, you will also be appealing the favorable part and could end up with nothing.  No benefits will be paid until your appeal is processed.   Appealing a partially favorable decision, therefore, is a risky proposition.

State Agency adjudicators frequently issue partially favorable approvals with amended onset dates.   You and your attorney will have to decide whether to accept the amended date and forgo thousands of dollars in past due benefits, or to continue with your appeal and appear before the judge.

Disability remains an all or nothing proposition in that there is no such thing as a partial disability award like there is with VA disability claims.  Social Security judges, at this point, cannot find you 60% disabled and issue a decision accordingly.  The only option they have is to change the onset date as described above.

The post Can the Judge Approve my Case but Give me Something Less than What I am Requesting? appeared first on GA Social Security.

In reviewing her record, I noted ten (10) diagnoses, including:

• fibromyalgia
• lupus
• unspecified autoimmune disease
• unspecified neurological disorder
• bulging disc (without impact on spinal cord)
• mild congestive heart failure
• shortness of breath of unspecified cause
• depression
• anxiety
• post traumatic stress

My client did not want to come in to the office for her pre-hearing conference so we spoke on the phone.  When I spoke to her, it was clear to me that she saw herself as being disabled – she was able to talk at length about all of her medical issues.  My client was living with an adult child and relied totally on support from her children and relatives.  Her sense of self and identity was tied to her medical issues and she had given up any sense of financial or personal independence.

Usually when someone is this invested in her medical problems, it is very difficult to win because judges usually don’t find such people credible.   During the pre-hearing conversation I tried to explain to my client that she needed to avoid coming to court with an attitude of entitlement, but after a few minutes on the phone, it was clear to me that my client did not understand what I was getting at or she was so invested in being disabled that she was unable to back off this self-image.

Usually when I have a client like this I prepare my case to minimize the damage that my client would do to her case by speaking too much, while at the same time giving my client her day in court by putting all of the medical issues on the record for the judge.

This case was a little different for two reasons.  First, my client had a very skilled work background involving positions of significant financial and managerial responsibility.   Secondly, there was a consultative psychological evaluation in the file from my client’s one-time visit with a Social Security evaluating psychologist who normally issues very conservative reports.  This report, however, described significant psychological issues and included language to suggest that my client would have not be able to sustain competitive work.  Interestingly the evaluating psychologist stated that my client had undergone severe emotional and physical trauma but he specifically declined to describe these traumas although the suggestion was that they were quite bad.

What I had here, therefore, was a client who had created for herself an aura of disability by seeking medical attention for a variety of medical issues that could not be documented by objective testing or showed up as mild impairments in objective testing.  The mental health record contained an unusually supportive consultative exam that was short on details, and there was minimal on-going treatment other than psychotropic medications.

I made the decision to go with the mental health angle even though my client most likely was not introspective enough to recognize that depression and PTSD were the issues that left her unable to work.  In my opening statement I argued to the judge that the multiple physical complaints were likely the physical manifestations of underlying depression and PTSD and I referred specifically to the conclusions set out in the consultative exam as well as the inconsistency between my client’s past work and her current mental state.

I have not yet received the decision in this case but I think I made the right choice.  My client cried throughout the hearing and she came across as credible when describing her fear of leaving the house and poor concentration.   She also testified about being hit and kicked in the head by her now deceased husband.   I did ask her about the other physical issues but I kept that testimony at a minimum to keep the focus on the mental health issues.

The hypothetical question asked by the judge included a limitation whereby the hypothetical person would miss up to one-third of the workday due to poor concentration and inability to behave in an emotionally stable manner.  This evaluation of capacity, if used by the judge, would result in a favorable decision.

Most of the time, disability claimants who are thoroughly invested in their alleged disabilities will find their cases denied because these claimants are simply not credible.  Occasionally, however, a truly disabling condition lurks below the surface waiting to be highlighted.

The post Reading Between the Lines to Find Evidence of Disability appeared first on GA Social Security.

If you happen to draw Judge A, for example, you have a 70% chance of winning, whereas if you are unlucky enough to draw Judge B, your odds may be 30%.

Imagine that this variance existed at international skating or gymnastics competition. One judge might score a participant at 9.85 out of 10.00, whereas another judge might score that same participant at 6.5. National athletic committees would not stand for such absurd results but no one says a word when Social Security recipients are basically asked to play the lottery with their futures.

I don’t blame the judges, by the way. The judges before whom I appear work very hard – it just seems that SSA does not give them clear standards for how they are to do their work.

Unless and until Social Security chooses to address this problem – and in my view, the problem has to do with training and evaluation of the judges – we as claimants and claimant’s lawyers are stuck with this system.

Over the past few years, I have spent a good deal of time reading carefully the favorable and unfavorable decisions in an effort to quantify why a judge might deny a case that another judge would likely approve. In other words there are clients I have represented who, after spending time with, would clearly not be able to sustain on-going employment but their cases are nevertheless denied.

There are three main factors in these denied cases that jump out at me:

First, high denial judges tend to disapprove cases where there are not on-going treatment records. These judges will not accept the explanation that you have not gone to the doctor because you are not getting any benefit out of the treatment and you can’t afford to keep going. From the judge’s perspective, if you have a significant medical problem, you need to be going to the doctor, even if that means going to the emergency room.

Not having the money to go does not seem to qualify as a good excuse – if you do not have any money, go to the ER, or run a tab with your doctor until the doctor refuses to treat you.

And expect that a “no treatment” judge will ask you if you smoke, drink alcohol or use street drugs. They will take the position that if you can find money for cigarettes, drugs or alcohol, you could have been using that money for medical treatment.

Secondly, high denial judges expect to see evidence from a treating doctor about your capacity to perform various work like activities. I have written previously about the importance of a functional capacity form and this is why one of these forms is becoming a necessity.

The State Agency – the folks who have denied you at initial and reconsideration – ask their non-examining physicians to complete a functional capacity form.  Obviously that form does not identify disabling levels of impairment because you were denied.

In the absence of a form from your doctor, the “no evidence” judge will adopt the State Agency functional capacity form and deny on that basis.

Finally, another common thread in the decisions by high denial judges is almost complete reliance on the medical record and little or no consideration of your testimony. If the problem you describe is not set out clearly in the record, nothing you say is going to convince a “record only” judge otherwise.

I know that the Appeals Council and judicial review personnel from SSA do review approvals and there is increasing pressure on judges to justify their decisions by focusing on evidence rather than on unsupported testimony.

So, as I move forward in preparing my cases for hearing, I simply assume that the judge assigned to my case will expect extensive and on-going treatment records, and a functional capacity evaluation.

My goal with testimony is to demonstrate that my client does not have an attitude of entitlement and that he has not become invested in being disabled. Beyond that I do not assume that testimony will help me.

Like it or not, these are the rules that currently govern hearing adjudication in the world of Social Security disability. The more you can play by these rules the better your odds will be to win a favorable decision.

The post How to Win Your Claim in an Era of Skeptical Judges appeared first on GA Social Security.

Social Security deserves a great deal of credit for making this transition – there were some bumps in the road, but, by in large, the new “paperless” system works fairly well.

That being said there is another area where I continue to voice strong criticism of Social Security – and that has to do with the inconsistency in hearing results by the administrative law judges.

Earlier this week, I was scheduled for a hearing in one of the local hearing offices.  SSA does not tell us who the judges are until the day of the hearing so I did not find out which judge was assigned until I arrived.

A colleague of mine arrived at the same time and, not surprisingly, asked the hearing office clerk which judge was assigned to his case.

My case was assigned to a judge who approves 45% of the cases brought before him, denying or dismissing the other 55%.  My colleague drew a judge who approves 73% of the cases he hears, denying or dismissing the remaining 27%.

In other words, my colleague’s client has a 62% better chance than mine of winning that day if their cases were identical.

How can any claimant be assured of fair treatment by this agency when one of the primary factors affecting his case results is pure blind luck?

How do I try to even the odds for my clients?  That is the subject of tomorrow’s post on this blog.

View the approval denial statistics for your judge at DisabilityJudges.com.

The post Social Security’s Decision Making Process – Better, but Still Room to Improve appeared first on GA Social Security.