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

Social Security uses in-house medical advisers to review your medical records and to advise SSA claims adjustors if your medical or mental health condition can support an approval.  In the past, SSA would send medical files to specialists for review – sometimes using two or three doctors on a single file.

Now, because of a growing backlog, Social Security administrators are demanding that in-house physicians review more files faster.  Further, some of the in-house doctors are resigning when Social Security personnel demand that they issue opinions outside their areas of knowledge – in one instance noted in the story a pediatrician (baby doctor) was asked to review a file of an adult with neuropathy.

As a practical matter, Social Security’s problems finding and retaining qualified in-house doctors will only impact your case in that you are less likely to get a favorable decision earlier on in the process.   My experience has been at hearings, judges usually pay little attention to the findings of the State Agency in house physicians – and now that I am aware of the credibility issues discussed in the WSJ article, I will look a little more carefully at the qualifications of these physicians and object where appropriate.

These internal problems at Social Security highlight the need for every claimant to submit complete and properly identified medical records to Social Security along with opinion evidence from treating physicians that identify specific activity limitations which impact your capacity to work.

• In one case, both my client and I received a denial notice in mid March, although the letter inside was dated late February.  According to Social Security’s regulations, reconsideration and hearing request appeals must be filed within sixty (60) days from receipt of a denial notice.   In this case, my paralegal called Social Security and they advised us that their system showed that the 60 days response period began as of the date on the letter even though SSA did not mail the denial notice until almost 4 weeks after it was printed.

Fortunately in this case, we were able to file the appeal within 60 days from the date on the letter but I wonder how often a denial notice is mailed several weeks after the denial notice is printed.

What you can do:  save both the denial notice and the envelope showing the postmark.

• On another case, my client received a denial notice but I did not.  Unfortunately, my client suffers with a mental illness and he did not advise me of his receipt of the denial.  When I learned that his claim had been turned down, I filed an appeal along with a request for “good cause” for late filing of the appeal but that was turned down.  My client has to start over.
• In three other cases, I have represented clients who were denied but no denial notice was sent to either me or to my client.  Despite my argument to the Regional Commissioner, SSA dismissed each of these cases and my clients have had to start over with a new application.
• Just this week, I received correspondence from Social Security relating to a claimant who I do not represent.  I also received 4 unique bar codes on one of my cases (the bar codes are used to associate evidence with a particular claims file).

Generally, I think that Social Security does a reasonably good job generating notices and sending them out.  But with the mountain of paper they process, mistakes will be made and my experience has been that Social Security will not correct its errors.  You are more likely to get a “sorry, you are going to have to start over” response from them.

Here is what we are doing in my office to try to protect our client’s interest:

• I am advising my clients to notify my secretary immediately if they receive a denial notice or any correspondence from Social Security
• most decisions at the initial or reconsideration appeal level should be issued within 4 to 6 months.  If I have not heard anything by month 6, I have my secretary start calling to find out if a decision has been made

You will win if the judge finds that you would not be a reliable worker because of things like:

• excessive breaks during the day
• excessive absences from work
• problems with attention and concentration
• inability to perform basic physical activities such as sitting, standing, lifting and carrying

While Social Security likes to present itself as claimant friendly and informal, in fact, you must be very specific with any and all SSA personnel when describing your limitations.

When I meet with a client prior to his hearing, I always ask the following question:  “tell me in your own words why you believe you would have problems performing a simple, entry level job?”

Usually, I get an answer that goes something like this:  “I have a lot of pain in my lower back.  I can’t sit very long and I can’t stand very long or walk very far.  I can’t lift too much at all, and I have a lot of pain.  Sometimes the only thing I can to for myself is to take a pain pill and lie down.”

Now, an answer like this is fine if you and I are having a friendly conversation, but it will not do at all when you are talking to a judge. Why? The judge will have no idea what you mean by:

• a lot of pain
• very long
• very far
• sometimes
• too much

If you hope to win, you must give the judge specifics:

• when you discuss your pain, use a one to ten pain scale, i.e. “my pain is always at level 4 or 5, and it spikes up to level 8 at least 3 times a week for 2 hours.”
• I can sit for no more than 20 minutes at a time, then I have to take a 10 minute break to walk around and stretch.  I can sit a total of 2 hours during the day before my pain gets so bad I have to take a pain pill and sleep for 3 hours
• I can lift 5 lbs. frequently.  A gallon of milk (8 lbs.) is difficult but I can lift it once or twice with both hands.
• I try to avoid taking pain pills but I find that I have to at least 3 times a week.  When I take a pill, I go right to sleep for at least 3 to 4 hours

Some judges will accept without question your statements about your capacity to handle various activities.   So, you should think about (and write down if necessary) your capacity to perform basic work functions.   If the first time you think about your capacity to sit, stand, lift, carry, walk, push, pull, etc. is at the hearing, there is a good chance you will not give accurate information.

Practicing answers to these questions, by the way, can take some time – I often spend more time with my clients in our pre-hearing conference than they actually spend at the hearing itself.

Knowing that Social Security is looking for specifics will give you an edge and I hope this edge proves beneficial to you.

Usually the appropriate answer is the date you stopped working.  In other words, if you were fired or resigned on March 3, your onset date could be March 4.

However, a little more thought into choosing an onset date can produce significantly more money for you.

First, as I discussed on the 5 Month Waiting Period page on this site, you do not get paid the first 5 full months after you are found disabled.  This means, that if you use March 4 as your onset date, the 5 month waiting period begins with April and runs through August.  If you had used February 28, the 5 month waiting period would start with March and run through July.  If your benefit amount is $1,500 per month, you will receive an additional $1,500 in past due benefits.

Second, recognize that your disability may begin prior to the date you actually stop working.  Examples of this include:

• you may stop working in February, but remain on the books and get paid through March.  Social Security is concerned with the date you lost the ability to perform your job, not the dates you were paid salary
• the last few weeks or months of your employment may have seen you working at half strength.  Perhaps you got special considerations from your boss or help from a co-workers.  In such a case, it would appropriate to use the last day you were able to properly complete your job tasks.
• you may have gone from full time to part time.  Your onset date could be your last day of full time work
• you may have left one job and tried another but only lasted 2 months.  Generally any work attempt that lasts less than 3 months is considered an “unsuccessful work attempt” by Social Security, so your onset date could be the last date you worked full time at your previous job

If you choose an onset date that is not supported by the evidence, you can change it – this happens all the time at hearings.  However, it is much easier to move an onset date forward than to move it back.  So if you have not yet applied, note that Social Security will ask you about your onset date and choose the earliest possible date you can.  Try to avoid choosing a date in the middle of the month – instead use the last day of the previous month.  Finally do not assume that you onset date has to be after you stopped working.

If you have any questions about choosing an onset date, please feel free to contact me by phone at 770-393-4985 or email.