1. prove that client meets a listing
2. prove that client’s functional capacity for work has been so reduced by medical issues that he would not be a reliable worker at a simple, entry level job
3. prove that client meets a grid rule

Most people can understand arguments #1 and #2.  The listings are essentially detailed descriptions of medical problems.  When you meet a listing, it basically means that your medical condition is so severe that Social Security assumes that you would have overwhelming work limitations.

The functional capacity argument is equally easy to understand.  Even the easiest of jobs requires you to have certain capabilities, such as sitting, standing, lifting, carrying, concentrating, behaving in an emotionally stable manner, staying at the job and not taking excessive breaks, etc.  If, for example, you do not have the capacity to sit and stand for a total of 8 hours, or if your medical problem leads to excessive breaks, then you do not have sufficient capacity to function at a job.

Unfortunately if you are not a surgical candidate for whatever reason or if you do not have the insurance coverage or finances to pursue curative therapies, long term pain management may be your only option, at least for the near term.

Now, patients who are receiving pain management have another issue to worry about.  Pharmacies, in coordination with the federal Drug Enforcement Agency (DEA) and local police departments are using computerized verification systems to cross reference prescriptions at drug stores with the DEA number assigned to physicians.

Most of these national law firms do not have offices in the Atlanta area – they process their files at their main location and they use either contract lawyers to try their cases or a lawyer will fly in a few times per month to appear at hearings.  Other national firms have a small local office to handle intake with a staff lawyer to try the cases.

I have met a number of these staff lawyers for the national firms – some seem to be quite capable and others not so much.  However most of these large firms use call centers with trained intake personnel to field phone calls from prospective clients.

My observation has been that the intake folks at some of the national law firms will say just about anything to convince a client to sign up.   More specifically, I am hearing from my own clients that the national firms are promising that they can somehow speed up the process and get to a hearing faster.

As my colleague Tomasz Stasiuk points out on his Colorado Social Security disability blog:

One thing a lawyer cannot do for you is make Social Security move faster than it wants to. No one can force SSA to make a decision before it is ready. The reason Social Security cases take so long is that there an enormous backlog of cases waiting to get through the system.

Tomasz eloquently disproves the myth that Lawyer A can get your case to a hearing faster than Lawyer B in his blog post entitled Are Lawyers Slowing Down Social Security disability cases?  I encourage you to read Tomasz’ insights.

What does this have to do with firing your lawyer?

Imagine you have been waiting for 14 months to get your hearing.  You talk to your lawyer or his staff periodically but they cannot tell you when a hearing will be scheduled.  You see TV commercial after TV commercial from national Social Security firms and after a while you call to ask if they might be able to speed up the process.  “Of course,” says the call screener.  Come in and sign some papers and we’ll get your hearing scheduled right away.”

What they are not telling your is this:

First, ethical lawyers who have roots in our community do not steal cases from other lawyers.  I get calls from frustrated claimants who are already represented and I always advise those potential clients not to blame their lawyer for the delays and to call their lawyer’s office right away.  I also call or email the current lawyer to let him know that he has a client who is calling around.

This professional courtesy is generally extended to me by my colleagues who live here but not by the national law firms.

Second, as discussed above, there is absolutely nothing that any private lawyer can do to speed up your case.  Anyone who tells you otherwise is lying, plain and simple.

Third, they are probably not telling you that if you fire Lawyer A and hire Lawyer B, you may end up paying more legal fees than you would if you remained with your first lawyer.  Social Security lawyers generally accept cases under contingency fee contracts, which means that you do not pay anything unless the lawyer is successful in collecting past due benefits.  However, this is not the same as saying that the lawyer will work for free.  Contingency fee contract almost always provide that in the event of termination, the lawyer has the right to petition the Social Security Administration for a fee based on time and effort actually expended on your behalf.

Judges routinely approve fee petitions that are supported by time records.

Let me give you two examples of why changing lawyers should only be done if there is a real problem.

Case 1 involves a claimant that I know nothing about other than that I saw her in a hearing office recently.   She had recently moved to Atlanta from out of state and had come to her hearing without a lawyer.   The hearing assistant asked her why and she explained that she could not find a lawyer to take her case because she had previously terminated two other lawyers, at least one of whom spent over a year working on her case.  Now she needed a lawyer to appear with her at her hearing but everyone she spoke to declined because there would be two other lawyers claiming fees and that the judge would not be likely to award more than a few hundred dollars for appearing at a hearing.   I’m not sure what happened at her hearing, but when she came out after representing herself she was in tears.

Case 2 involves a claimant that I represented for over 18 months.  I received a hearing notice and I acknowledged that I would appear, and my secretary spoke to my client regularly and we updated medical records until literally the day before the hearing.  Although my client did not show up for his pre-hearing conference, I prepared the case for trial and traveled down to the hearing office.

When I got there, I saw that another lawyer’s name from a national firm was associated with my case.   I got an updated case file disc and I saw that my client had apparently hired the national law firm the day after we got our hearing notice.  My client did not tell me about this, nor did he tell my secretary despite ongoing conversations.   I decided to call the lawyer who signed the retainer agreement and I spoke to him (he was in his main office and had a contract lawyer assigned to appear at the hearing).  He was apologetic and claimed that my client never told him that he was represented.

While I don’t doubt his claim, he certainly should have seen my name in the file and he should have called me.  But he did not.  And I figure that I am entitled to a fee for time expended since I literally did work on this case through the date of the hearing.  I have not gotten a ruling on the fee petition but if my claimed fee is awarded, my client will end up paying more than the $6,000 he would have paid to me under my fee agreement.

Obviously there are times when a lawyer is not performing to your satisfaction and you should consider terminating his services and hiring another lawyer.  However, you should proceed very slowly and carefully before taking this step and you should always make every effort to salvage your relationship with your current lawyer before seeking greener pastures.

I’ve applied for disability. I don’t have a lot of medical ‘backing’ as the majority of my life I haven’t had insurance, nor been able to afford it. I do have past records verifying my mental incapacities as brain damage and ADHD. My issues include arthritis in my knees and hands, back problems that are getting worse that may be contributed to RA (Havent been diagnosed with it, but it is a major hereditary problem), memory issues and concentration issues.  What are my chances of winning disability?

Here are my thoughts:  I think you will have a real uphill battle winning your Social Security disability case if you do not have medical support for your case.  I am definitely noting a trend in the cases I am trying recently – if there is not a strong medical record, judges are not going to award benefits based on  your testimony only, or on old or incomplete medical records.

Further I would say that we are getting to the point where we need a completed and supportive functional capacity form filled out by a treating doctor in the record.  

If you have followed the news, you may have noted a report that Social Security is projected to run out of money 2 years earlier than expected.   The disability program in particular is running short faster than the retirement program.  Congress is under a lot of pressure to address this problem.

One fix, of course, is to tighten the standard for approving disability benefits.  My sense is that the Commissioner has already sent word to judges that they should only award benefits where there is solid medical support.  The days when a judge would award benefits based on his hunch and the claimant’s testimony are over.

Here’s what I am telling my clients:  you need to establish a relationship with a physician that you can see on a regular basis.  This may be twice a year but it has to be regular.  You need to ask your doctor if he will support your application for disability by completing a form.  This means that you may have to save up or borrow from friends or family to pay for your appointments and you may have to pay the doctor to complete the functional capacity form.   Without this support, however, you are probably not going to win.

Because of this, Social Security hearings are much more informal than what you might see at a state or federal court hearing.   Technically, when we present our case, we are making an argument to a representative of the Commissioner of the Social Security Administration.

There are four (4) Atlanta area hearing offices called “Offices of Disability and Review” or ODAR:

• Downtown Atlanta
• Atlanta North
• Marietta
• Covington

ODARs used to be called OHA (Office of Hearing and Appeal) but presumably some committee (maybe the same one that came

up with the boneheaded decision to delete the judges’ names from the hearing notices) decided that the hearing offices needed a new acronym

The downtown Atlanta  ODAR is located on the 5th floor of the Marquis I Tower of the Peachtree Center Office tower.   To the right is a picture of the outside of Peachtree Center.  MARTA maintains a rail station at Peachtree Center – if you take the train, the Peachtree Center stop is “N1″ – one stop north of 5 Points on the north-south line.

The Atlanta North ODAR is located at 3105 Clairmont Rd., west of the I-85/Clairmont Rd. exit.  If you take I-85, exit Clairmont Rd. and head west towards Buford Highway, and not east towards the VA Hospital.  The 3105 Building is located behind an Extended Stay Motel.

The Marietta ODAR is a video hearing only office and is located at the back of the existing Social Security office at 1415 Franklin Rd., next to a Pep Boys.

The Covington ODAR is the newest office to open.  It is located at 10155 Eagle Dr. in Covington, in a fairly new office building.  You may find that 10155 Eagle Dr. does not yet appear in the Mapquest or Yahoo Maps database and the building is set back from the street, so give yourself plenty of time to find it if you have a hearing there.

There are a number of other differences between Social Security hearing offices and judicial courts, which I will discuss in a later post but for now, just remember that when you come to your hearing, you will be looking for an office building and not a traditional courthouse.

The stated reason for this new policy is supposed abuse by some lawyers who were advising their clients to dismiss cases and move to a different jurisdiction when certain judges were assigned.  In order to stop this “judge shopping” the identity of the judge is kept secret.

I find this new policy asinine for any number of reasons.  First, as a claimant’s representative I have an affirmative duty to prepare my clients for their hearings.  A big part of preparing for hearings involves preparing for the judge assigned to one’s case.

• Some judges ask a lot of questions, some judges ask almost no questions.
• Some judges go out of their way to make claimants comfortable while others take on the role of an advocate for Social Security and challenge the claimant.
• Some judges always use vocational expert witnesses and others do not

I have no particular issue with any of these approaches but I do have a problem not being able to prepare my client about what to expect.  From my client’s perspective, they have likely never been in front of a Social Security judge and they will be nervous.  Why not enhance the chances that a judge can get accurate and thoughtful information instead of playing silly games because a few lawyers somewhere advised their clients to delay the adjudication of their cases because of a particular judge.

Further, while I have never advised a client to dismiss a case because a particular judge was assigned, I don’t necessarily have a problem with doing so because as attorneys, we have an obligation to serve as zealous advocates for our clients.  Social Security has a problem – the approval rates by judges in the same hearing office can vary widely.  Judge go to DisabilityJudges.com, pick a jurisdiction and look for yourself.  In just about every hearing office you will see approval rates ranging from 25% to 80%.  This means that two claimants with the exact same case will get vastly different results based on the judge randomly assigned to their cases.

If you knew that Judge “A” only approved 30% of claims and you also knew that Judge “A” rarely approved fibromyalgia cases, would you now want your lawyer to advise you of all available options – including moving to another town – so that you would have a fair shot at winning?

Similarly as a taxpayer, I don’t think our nation is well served when judges approve cases filed by non-deserving claimants.

Rather than playing games with the identify of judges, Social Security ought to spend its time analyzing the wide disparity of approval rates among judges in the same hearing office and either retrain or dismiss judges whose approval/disapproval rate falls significantly outside the norm.

In this particular case, my client was a 59 year old woman with extensive and supportive treatment records.   She was a “classic” fibromyalgia patient in that:

• she was a high achieving female
• she was over age 45
• she experiences balance problems
• she experience digestive problems
• she experiences “fibro fog”
• she has sought treatment from multiple doctors and has been fully compliant with treatment

In this case, the judge announced a favorable bench decision without the need for testimony from the vocational witness.   Interestingly, the judge based his fully favorable bench decision on the work limitations described in a consultative psychological evaluation report rather than on the fibromyalgia record.  This suggests to me that this judge, at least, remains reluctant to rely solely on fibromyalgia as the basis for a favorable decision.

Whether you agree with this state of affairs or not, the message I am getting is that it is probably a good idea to document and emphasize the subsidiary complaints in a fibromyalgia case.   This could include depression (as it did in my case), medication side effects, digestive upset or physical pain.

I have obtained favorable decisions based solely on fibromyalgia but usually when a medical expert is there to testify about the nature of the medical records.   I am thinking that despite a consensus in the medical community that fibromyalgia is a legitimate and debilitating condition, judges are still wary of awarding benefits solely on this diagnosis.

These statistics are on the official SSA.gov site but I have noted that the location of this information seems to change periodically.

Recently I came across a very interesting and helpful site called DisabilityJudges.com where information about the tendencies of the judges before whom you will appear are posted.  Here is a link to the subsection about Georgia hearing offices.

Nationally, the average approval rate for Social Security judges is 53%, the denial rate is 32% with the rest being dismissed or disposed of otherwise.  In Georgia, the average approval rate is 60% and the denial rate is 28%.

Interestingly, however, you may get a very different result depending on which hearing office schedules your hearing.  Around 63% of hearing scheduled in downtown Atlanta are approved but your odds could vary greatly depending on the judge assigned to your claim.  Judges with the lowest approval rate in downtown Atlanta approve just over 30% of claims brought before them, while a claimant in the next hearing room over could appear before a judge with an 82% approval rate.

Unfortunately there is no way to choose the judge that will hear your case and I’d like to think that even the judges with the stingiest approval rate will approve a deserving claim.

I have two ruptured lower back disks.  No surgery required yet. But my doc said that my permanent restriction is 70lbs. Does this mean I can win Social Security disability?

Here are my thoughts:  as I discuss on this web site there are basically three ways to win a Social Security disability case – you can:

1. meet a listing
2. meet a grid rule
3. show that your functional capacity for work has been so reduced by your medical conditions that you would not be a reliable worker at even a simple, entry-level job

Let’s analyze how a 70 lb. lifting restriction plays into these three arguments:

Do you meet a listing – the applicable listing for back injuries is 1.0 – Musculoskeletal Systems.  When you review this listing, you will see that SSA looks for a degree of impairment that prevents you from walking or using a major weight bearing joint.  A lifting restriction of 70 lbs. will not cause the level of impairment contemplated by the listing, so this argument will not fly.

Do you meet a grid rule? – the grid rules apply to claimants over the age of 50 with physical limitations.   Unfortunately there are no grid rules that apply for a claimant who has a 70 pound lifting capacity so that argument is out.

Bottom line – a 70 lb. lifting restriction will not, on its own, result in a finding of “disabled” in a Social Security disability case.  However, limitations like this coupled with other serious limitations can result in a favorable decision and I would be surprised if having 2 herniated discs did not result in more limitations.

For example, if, in addition to your disc problems,  you have severe anxiety disorder that prevents you from maintaining attention and concentration for 1/3 of the workday, and prevents you from performing at an acceptable pace of work, you would have a good chance at winning.

It also seems to me that a 70 lb. lifting restriction is a very minor limitation for someone with 2 herniated discs – perhaps this doctor or another doctor might care to re-evaluate at some point in the future.

Ultimately, we want treating physicians to identify as many relevant work activity limitations as they can.  When taken together, if these limitations would preclude even a simple, entry-level job, you will win.

Known as the “compassionate allowance” program, SSA has identified 100 medical conditions that will give rise to a rapid approval.  The complete list of compassionate allowance conditions is on the SSA web site and new conditions are periodically added to the list.   Several new conditions were just added in July, 2011.  Many of the recently added conditions involve cancers or different types of dementia.

If you or a loved one has been diagnosed with any of these conditions, here is what you should do to increase your chances of an early approval:

• identify and collect medical records that contain the diagnosis of one of these compassionate allowance conditions.   Even better, ask your treating physician to draft a brief narrative letter confirming your diagnosis and stating the likely date when that condition began affecting you.
• submit this package of medical records directly to the Social Security adjudicator.  I would mail your package return receipt requested and follow up with both letters and phone calls.
• I would also advise you to contact the Social Security liaison at Senator Isakson and/or Senator Chambliss’ office, and/or the liaison of the Member of Congress who represents you.  Elected officials can sometimes cut through the red tape and help Social Security prioritize the process of making a decision
• make sure that you use the phrase “compassionate allowance condition” in your correspondence with Social Security
• if your claim is denied at the initial application stage, do not give up – continue to submit evidence supporting the diagnosis at the reconsideration appeal