STAY OFF THE SOCIAL MEDIA!

 "If you are applying for Social Security disability benefits stay off the social media." 

 

As representatives, we have long warned our clients to be careful about what they post on their social media sites.  I advise my clients to stay off the social media sites altogether.

On April 9, 2014 the House Oversight and Government Reform Subcommittee on Energy Policy, Health Care, and Entitlements held a hearing to examine the disability determination and adjudication process.  Chairman Jim Lankford (R-OK) and ranking member Jackie Spoeier (D-CA) told the committee that they had sent a list of recommendations to Carolyn Colvin, then the Acting Commissioner of the Social Security Administration.  One of the recommendations sent to Acting Commissioner Colvin was:

"The Social Security Administration should review each applicant's social media accounts before awarding benefits..."

In the fiscal year 2020 Budget Overview, the Social Security Administration stated:

"In FY [fiscal year] 2019, we are evaluating how social media could be used by disability adjudicators in assessing the consistency and supportability of evidence in the case file." 

There it is--in black and white.  The Congressional Oversight Committee, the "boss" of the Social Security Commissioner, wants Social Security to look at your social media accounts before they make a decision about whether you are entitled to disability benefits or not.  They admit it.  It's not the theme of some movie or "conspiracy plot."  They admit it.

To what purpose?  Obviously, Social Security wants to know what their claimants have been up to.  What type of activities are they engaged in?  Where do they go?  What are their hobbies, pass times and other activities?  Is there any information on their social media posts that conflicts with what is on their disability application?   Is there anything that should be used to deny a disability claim?

 Social media is PUBLIC media.  A lot of social media posts get viewed more than the news on your local TV station.  It's public, it's out there, people read it.  So can Social Security!

While I support being truthful and honest with Social Security, I think a word to the warned is sufficient.  If you are applying for Social Security disability benefits stay off the social media.  Period. There is nothing private about it.  What you post there is open for the whole world to see.  It can and probably will be used against you.  And you may never even know it.

 

 

JUDGES MAY REVIEW YOUR SOCIAL MEDIA

Representatives have long warned our clients to be careful about what they post on Facebook and other social media sites.  I advise my clients to stay off the social media sites altogether.

On April 9m 2014 the House Oversight and Government Reform Subcommittee on Energy Policy, Health Care, and Entitlements held a hearing to examine the disability determination and adjudication process.  Chairman Jim Lankford (R-OK) and ranking member Jackie Spoeier (D-CA) told the committee that they had sent a list of recommendations to Carolyn Colvin, Acting Commissioner of the Social Security Administration.  One of the recommendations sent to Acting Commissioner Colvin was:

"The Social Security Administration should review each applicant's social media accounts before awarding benefits..."

There is is, in your face, and black and white.  The Congressional Oversight Committee, the "boss" of the Social Security Commissioner, wants Social Security to look at your social media accounts before they make a decision about whether you are entitled to disability benefits or not.

To what purpose?  Obviously, Social Security wants to know what their claimants have been up to.  What type of activities are they engaged in?  Where do they go?  What are their hobbies, pass times and other activities?  Is there any information on their social media posts that conflicts with what is on their disability application?   Is there anything that can be used to deny a disability claim?

While I support being truthful and honest with Social Security, I think a word to the warned is sufficient.  If you are applying for Social Security disability benefits stay off the social media.  Period. There is nothing private about it.  What you post there is open for the whole world to see.  It can and probably will be used against you.  And you may never even know it.

WHAT IF YOU DON'T MEET A LISTING?

"Listings" refer to Part 404, Subpart P, Appendix I of the 20 Code of Federal Regulations.

The Listings classify the diseases and impairments of the human body into 13 groups and describe the severity of symptoms required to "meet a listing."  If there is medical evidence that a claimant has a condition that is listed and it is so severe that it meets or equals a listing, then benefits would theoretically be automatic.

For instance, if an individual is blind he can meet a Listing.  For example, if the remaining visual acuity in the better eye after the best correction is 20/200 or less, listing 2.02 is met.  Or, if visual efficiency in the better eye after the best correction is 20 percent or less, Listing 2.04 is met.

Very few individuals who get Social Security disability awards, however, meet or equal a listing.  The severity of impairments must be quite extreme to meet a listing.  Therefore, other factors must be considered; for example, what are the combined effects of all the claimant's symptoms?  How do the combined factors of the claimant's age, education, past work and residual functional capacity limit his or her ability to perform full time work?

I would say that of the hundreds of cases I have had awarded, only a handful of them met a Listing.  So Listings are only one very narrow approach to winning a claim of disability. No one should look up his disability in the Listings and decide that he is not entitled to disability benefits.  Meeting a Listing makes up perhaps 3 percent of all Social Security disability awards (and that number is my own estimate).

WHO CAN ATTEND MY HEARING?

Social Security disability hearings are closed to spectators.  The following 5 persons are typically in attendance:

• the claimant
• the claimant's representative (attorney or advocate)
• a hearing clerk who works for Social Security/ODAR
• the administrative law judge
• a vocational expert (called by Social Security to testify)

In rare cases, a medical expert (doctor) may be called to provide testimony but this is not typical.  Experts may give testimony via a telephone conference call.

Note that Social Security does not have an attorney to represent the government's point of view.  Therefore, these hearings are often called "non-adversarial."  There is no argument between two opposing advocates or lawyers.

The claimant may be able to call a witness to testify on his/her behalf.  This must be approved by the judge.  The judge may want to know why a witness is necessary to arrive at the proper decision.

 

AVOID EXAGGERATIONS AND HISTRONICS

A Social Security disability hearing is fact finding session.  The administrative law judge (ALJ) will ask questions to determine whether or not the claimant meets the rules and regulations for disability benefits.

The claimant will answer a series of questions from both the ALJ and from his own representative.  Combined, the answers to these questions form the "testimony" from the claimant.  Some suggestions for answering questions during a disability hearing include:

1. Tell the truth.  Avoid exaggerations and what sounds like exaggerations.  For example, "I can't lift even one pound."  Or, "I can only stand for about 30 seconds."  Unless there is definite medical evidence to prove those statements, give a more reasonable estimate.
2.  Avoid histronics.  While some people do become genuinely emotional when talking about their disability, try not to be overly emotional.  Certainly, you never want to put on an intentional show of emotions.
3. Get a question clarified if you don't understand it.  If you are asked a question that you don't understand, ask for it to be clarified.  If you simply do not know the answer, state, "I don't know."   Don't guess or speculate.
4. Try to avoid contradictory statements.  Don't say, "I can only sit for about 5 minutes" if you recently worked a job that required you to sit 6 hours per day (unless something has recently changed that reduced your ability to sit.  Don't say, "I can only walk 30 feet" unless you can explain to the judge how you managed to walk into the hearing office.  Many contradictions arise from exaggerated symptoms.  Judges pick up on these instantly and credibility is lost.  When credibility is lost, so is the case.

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For help with a Social Security disability matter, including filing a claim or an appeal, contact the Forsythe Firm in Huntsville at (256) 799-0297.  Visit us at Forsythe Firm.com

PREPARE FOR COMMON HEARING QUESTIONS

Some questions are nearly always asked at Social Security disability hearings.  You must be prepared to answer those questions.  Here are a few questions that can make or break your hearing.

QUESTION # 1:  "Why did you leave your last job?" 

 The answer must be that you became unable to perform the duties of the job because of either physical or mental reasons.  Any other answer and you set yourself up to lose your case.  Unacceptable answers include (and I've heard all these given):

• I got laid off when the rocking chair factory reduced its labor force.
• My car quit running so I didn't have a way to get to work regularly.
• I had to quit to keep my youngest daughter who got sick...."
• My mother broke her hip and I was the only one who could care for her."
• The company I was working for went out of business.
•  My boss picked on me a lot and I just couldn't take it any more, so I quit.
• I tried to start my own business but failed after 6 months and became unemployed.

 Individuals who quit working because of any reason other than disability should not file disability claims.  They might or might not have legitimate unemployment claims but they do not have disability claims because none of the above have anything to do with being disabled.  An experienced attorney or advocate would not accept a case if those are the only reasons the claimant is not working.  The Social Security Act only provides benefits for a disability that makes it impossible for the claimant to keep working.  Nothing else is covered.


Often, the first question asked at a Social Security disability hearing is:  "Tell me why you stopped working."  If you did not stop working because of a serious physical or mental impairment you are not qualified for Social Security disability.  Period.

QUESTION # 2.  "Why do you believe you are not able to work?"   

The answer must be that you are unable to perform full-time work because of a serious physical or mental impairment (or combination of impairments).  Anything else and you are not eligible for Social Security disability.  The Act covers disability, not unemployment.

You should be able to explain briefly and in some careful detail why you are unable to work.  For example, if you have a bad back and suffer from severe chronic back pain, you might say:

"I have severe pain my lower back which radiates into my right leg. This pain is so bad that I can only stand about 20 minutes at a time and I can't sit more than 30 minutes at a time.  I can't lift more than 5 pounds regularly and have trouble with bending, stooping, kneeling or reaching.  The pain is so severe that I have trouble keeping my mind on what I'm doing for more than a few minutes at a time."

Note again that disability has nothing to do with your employer going out of business, how bad your car runs, your child being sick or whether your boss liked you or not.  The question is, "Why are you unable to perform any work on a full-time basis?"   

GET A MEDICAL SOURCE STATEMENT

Social Security Disability Tip # 12:  Get your doctor to provide a Medical Source Statement.

At Step 3 in the Social Security disability process, the administration must determine what your Residual Functional Capacity (RFC) is.  Your RFC is the maximum you are able to perform in spite of your impairment(s).  It refers to your exertional limitations (lifting, walking, pushing, pulling, etc.) and your postural limitations (kneeling, bending, stooping, courching, crawling, sitting, etc.).

If you do not provide Social Security with a viable RFC, they will make up one for you.  This is detrimental to your case, as their RFC is always less limited than what you can really do.  Therefore, it is better to have your own doctor provide a Residual Functional Capacity (RFC).  This is accomplished by getting your doctor to complete a Medical Source Statement form.

There are two different Medical Source Statement forms.  One (HA-1151-BK) is for physical impairments.  The other (HA-1151-BK) is for mental impairments.

Having the proper medical source statement from your treating doctor greatly increases your odds of being awarded benefits, especially at the hearing level.  A MSS from a doctor who has been treating you over a period of time is the best.  (A one time visit to get a Medical Source Statement may not get much credibility with Social Security).  Also, the limitations on the Medical Source Statement should be commensurate with the diagnosis and observations in your medical records.
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