Social Security Disability Lawyer

Focus on your own disability case

2012-02-07T05:45:00-05:00

As I talk with clients and prospective clients, and dig into the evidence supporting a claim for disability benefits, clients sometimes say something like this: "I don't understand why my claim wasn't approved, I have a friend/neighbor/acquaintance who got disability benefits right away, and there is nothing wrong with him/her."

I have heard variations of that statement dozens of times.

Ohio attorney Gretchen Esselstein discussed this issue in her recent post entitled Debunking Common Social Security Disability Myths. Describing myth #4, Ms. Esselstein writes:

My friend, neighbor, relative, etc. was approved, but there is nothing wrong with them. The truth is, an overwhelming number of recipients have severe conditions that you are unable to see or they simply do not tell you about. It is likely that they too had to fight for their benefits. Therefore, your efforts should focus on your claim and what you need to do to be successful on appeal.

I completely agree. Do you think your neighbors and acquaintances realize how debilitating your impairments are? I bet they do not. Likewise, you are unlikely to have a complete picture of another person's impairments and functional limitations.

Do not be distracted by someone you know who is receiving disability benefits but appears outwardly to be fine. Focus on your own claim, and get the help you need to obtain disability benefits.

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In defense of the Social Security disability program

2012-02-06T06:00:00-05:00

In case you missed it, reprinted below is Charles Martin's excellent February 2nd, 2012 USA Today op ed article defending the Social Security disability program and the role played by claimant representatives. Mr. Martin is the President of the National Organization of Social Security Claimants' Representatives (NOSSCR).

Social Security Disability Insurance remains a vital lifeline for citizens who once held full-time jobs but have become too ill or injured to work. It is a time-honored expression of our nation's commitment to help care for those who must stop working due to illness or injury.
While any large government program will have problems — and Social Security is no exception — we should work on fixing the problems and not join the current rush to condemn an entire system because of rare instances of abuse or mounting political pressures to cut federal spending.

As an attorney who has spent more than 34 years helping thousands of Social Security applicants, let me be clear that getting disability approval is harder than ever. Undocumented pain, alcoholism and drug abuse have been disqualified. Mental retardation and HIV standards are tougher. Diabetes and obesity are no longer distinct disabilities. Illegal immigrants are now disqualified. Applicants must now present objective medical evidence of disability. This is no rubber-stamp process.

Moreover, it is a misrepresentation to claim that there is a surge in unemployed applicants looking to get on the public dole. Applications have increased due to social, medical and economic mega-trends (such as more insured women and aged workers).

Yes, today's Social Security Disability Insurance system is huge, complex, costly and certainly imperfect. But it deserves to be improved, not scorned. Claimants' representatives play an important role by discouraging frivolous applications and assisting those who can prove disability navigate a daunting and often confusing bureaucracy.

The road to restoring Social Security to full health is not to conduct a witch hunt for the rare but inevitable undeserving claimants or deficient judges, but through sensible measures such as giving more help to people with disabilities who want to work, giving employers incentives to hire them, and upgrading the gathering and delivery of medical treatment and information.

Tough times can bring out the best in people. Let's not let our frustration over a lousy economy cause us to turn on those who are most in need. Let's improve a system that reflects the true spirit of American compassion.

Mr. Martin is quite correct. Flaws in the Social Security disability program should be mended, while preserving the important benefits provided by the program.

Mr. Martin is perhaps too circumspect to say that the drumbeat of negative commentary regarding the Social Security disability program has come from those who disagree with the entire premise of Social Security itself. The sources of coverage speak for themselves: the Wall Street Journal, the Cato Institute, the Heritage Foundation, and Sinclair Broadcasting Group all have been beating the drum against the Social Security disability program.

I join Mr. Martin in his hope that level heads prevail, and that the Social Security disability program is improved and preserved.

Disability Blog Roundup - Groundhog Day Edition

2012-02-02T07:50:14-05:00

Photo: Bridget during her Florida vacation

Every other week, I publish links to notable articles regarding Social Security disability law:

New Social Security Ruling Impairs Effective Representation by Lew Insler
Must File Appeals Online by Charles Hall
Debunking Common Social Security Disability Myths by Gretchen Esselstein
What you can do to help your disability case by Erin Schmidt
Disability Benefits: Easy? by Aaron Rifkind
Apply for Disability Benefits with a Lawyer on the Telephone by Gordon Gates

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Do not wait until your hearing to call a lawyer

2012-01-31T06:00:00-05:00

I got one of those sad calls this week from a person who attended her administrative law judge (ALJ) hearing unrepresented. A friend of hers told her that she did not need a lawyer, and she took that advice.

Her expectation, completely unrealistic, was that she would go to the hearing, tell the judge her symptoms, and would receive disability benefits. So the medical record was not complete, and there were no opinions from her treating doctors in the disability claim file.

Now she has received an unfavorable ALJ decision, and has a blown date last insured. She does not qualify financially for SSI. Even if she appeals the unfavorable ALJ decision, her liklihood of receiving disability benefits is extremely remote. It is just a sad story.

You should not go to a Social Security administrative law judge hearing unrepresented. There are things that a lawyer does that help to achieve a favorable outcome. And since there is no attorney fee unless you receive benefits, there is no risk to you.

Do not become another sad story. Get help with your disability claim. A lawyer's assistance is more important now than ever.

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Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

Ruling 11-1p Particularly Unfair to SSI Claimants

2012-01-30T07:10:00-05:00

New Social Security Ruling 11-1p requires a claimant to choose between appealing an unfavorable ALJ decision and reapplying for benefits. In the words of the ruling:

we will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.

Claimants must now make a pragmatic choice between an Appeals Coucnil request for review, which is likely to take a year or more and may be unsuccessful, and reapplying for benefits with a new onset date. This forced choice is particularly hard on SSI claimants who receive an unfavorable decision from administrative law judge.

SSI claimants leave benefits on the table by not immediately reapplying for benefits. In contrast, a disability claimant can pursue an appeal and wait a full 17 months (the 5-month waiting period plus the 12 months of benefits available prior to the new filing date) to reapply without foregoing any benefits.

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Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

Apply for Disability Benefits with a Lawyer on the Telephone

2012-01-23T05:30:00-05:00

With many Social Security administrative law judges allowing fewer claims at the hearing level, the initial application for disability benefits deserves much more attention. The allowance rates from the state DDS agencies are just as high as the allowance rate of some ALJs. That means that your initial application is more important than ever. The opportunity to obtain disability benefits at the initial application should not be squandered.

I recently assisted a new client over the telephone with his initial application for Social Security disability benefits. It went very well. I asked questions, the client answered, and I typed the application right then as we spoke. As we were completing the application, I was able to counsel the client on what to expect from the disability claim process, the importance of fully describing past relevant work, and why the SSA was asking certain questions in the application.

I have done this before, of course, but this recent experience made me realize that I should do it more often, because it is a valuable service to a new client, and it starts the claim process on the right foot.

There are several benefits of working with an experienced Social Security disability attorney at the very beginning of your disability claim.

The disability claim is supported by a winning theory of the case.
The issues in the claim are properly framed from the beginning.
Common mistakes, such as not properly describing past relevant work, are avoided.
You have a guide throughout the disability claim process.
I make a plan for obtaining the medical evidence (particularly the medical opinion evidence) that you will need to support your claim.
The claim may be decided more quickly, because your attorney will keep in touch with the SSA on the status of the claim, and supply any missing evidence.
If necessary, an appeal will be filed quickly.
You pay no attorney fee unless the claim is successful.

One of the benefits of having legal help with the application over the telephone is that you do not need to have a nearby lawyer who specializes in Social Security disability law. Because Social Security is a federal program, an attorney anywhere in the country can assist you with your claim. And the various states follow the same rules, embodied in Social Security's Program Operation Manual System (POMS), when making a benefits determination.

Legal assistance with the disability application is particularly important for those age 55 or older, because your vocational background plays a major role in the determination.

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Apply for disability benefits on the phone with a lawyer

If you have been out of work for 6 months or more due to a medical condition, please contact me to assist with an initial application for Social Security benefits.

Disability Blog Roundup - January

2012-01-20T07:09:13-05:00

Photo: our dog Peppermint on the Bridle Path in Kennebunk

Every other Friday, I publish links to notable articles regarding Social Security disability law:

WHAT EXPLAINS VARIATION IN DISABILITY APPLICATION RATES ACROSS STATES? by Norma Coe, Kelly Haverstick, Alicia Munnell, and Anthony Webb
Severe Impairment in Social Security Disability Cases - Parker-Grose v. Astrue by Insler & Hermann
Does My VA Doctor Have to Complete My Social Security Disability or LTD Form? by John Tucker
DDS Agencies: a Culture of "No" by Gordon Gates
Those annual Social Security statements still aren't online, as Commissioner Michael Astrue promised by Brent Hunsberger

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Many visitors to this site are new, so please take a look around. As a starting place, there are several links on the sidebar to Important Topics for Claimants. If you don't find the needed information there, you can search this blog, which has over 500 posts on Social Security disability topics. The search box is located near the top of the sidebar.

Post Hearing Argument or Brief

2012-01-16T05:00:00-05:00

HALLEX section I-2-6-76 provides:

The Social Security regulations provide that, upon request, the ALJ shall allow claimants a reasonable time to present oral argument, or file briefs or other written statements of fact or law. Absent special circumstances, the ALJ need not fix a time limit on oral argument. Oral argument should be recorded and made a part of the record of the case.
After all testimony has been presented, the ALJ must:

offer the claimant and representative an opportunity to make a final oral argument at the hearing, to submit a brief or other written statement within a reasonable time after the hearing, or to give their opinion regarding what the evidence proves and what finding of fact and conclusions of law the ALJ should make; and

address any assertions the claimant or representative make during their final oral argument, which vary sharply with the evidence or raise new issues that may be relevant.

In my view, an oral argument at the close of the hearing is not that much help. When post-hearing argument is needed, I prefer to submit a post-hearing brief.

In what circumstances should the claimant's representative submit a post-hearing brief? Certainly when it is necessary to rebut vocational or medical testimony from the hearing. Arguably, a post-hearing brief should be done in every case where the judge did not announce a decision at the hearing, to remind the judge why the claim should be granted. In general, I will write a short letter to the judge in close cases, when I think the judge is on the fence.

When do you submit a post-hearing brief?

DDS Agencies: a Culture of "No"

2012-01-09T06:45:00-05:00

California disability lawyer Geri Kahn recently wrote a thoughtful blog post entitled The top four reasons why Social Security Disability cases are denied at the initial and reconsideration stages of review. Geri is referring to Disability Determination Services (DDS), the agency funded by the SSA in every state to make the initial and reconsideration determinations on disability claims. Please read her post.

Here are Geri Kahn's top four reasons:

The claimant has had little or no medical or mental health treatment
Social Security did not obtain the records prior to making a decision
The claimant is under the age of 50
The Social Security Administration works in a culture of “no”

I agree with all four of Geri's reasons, but want to comment further on reason #4. Based upon the denied claims that we see as disability attorneys, it really does seem that there is a "culture of no" at DDS.

I have addressed aspects of this problem at DDS before, including these posts:

But Geri's phrase, a culture of "no," nicely summarizes the overall problem at DDS.

We disability lawyers appeal claims denied at DDS all the time. After a hearing with an administrative law judge, more often than not we win an award of disability benefits for our client. Sometimes the fully favorable decision from the judge is based on the same evidence considered by DDS. Why the different result?

Of course, the judge has the benefit of the claimant's testimony at the hearing. But the judges are also lawyers, and they tend to follow the SSA's regulations and rulings much more closely when evaluating evidence. And of course, there are problems at DDS: too many claims, too little pay, too much turnover. But there is another, overarching reason for a different result at the hearing level: there is a "culture of no" at DDS.

Administrative Law Judges who are granting disability applications have been under fire lately. Before criticizing the ALJs for reversing the decisions of the DDS agency, there should be a thorough discussion and a better understanding of the culture at DDS, which has resulted in countless flawed denials of claims for Social Security disability benefits.

Disability Blog Roundup - Twelfth Night Edition

2012-01-05T07:35:16-05:00

Here is the first 2012 edition of the Disability Blog Roundup, which provides links every other week to notable articles regarding Social Security disability.

Please also check out my best blog posts of 2011, if you haven't done so already.

The top four reasons why Social Security Disability cases are denied at the initial and reconsideration stages of review by Geri Kahn
Blaming the Victim for Being Disabled is Ignorant and Unfair by Gabe Hermann
How Important Are Medical Records When Applying For Social Security Disability? by Declan Gourley
ALJ Unknown by Gordon Gates
New Social Security Rule Prohibits Multiple Pending Applications by Vaughn Clauson