Having a plan or strategy is very important to winning your Social Security disability appeal.
Judges
have very limited time to spend on a case. They are required to issue
up to 700 decision a year, or over 50 per month. One case may have
thousands of pages of medical records and other documents to review.
Your attorney or representative can help the judge, and your chance of
winning, by pointing out what the judge needs to know.
- Is this claimant insured for benefits?
- What kind of past work did the claimant do?
- Does he or she meet a Listing or grid rule?
- Are there any transferable skills?
- Does the medical record support the alleged onset date? If so, where?
These are things the judge must know to decide the claim.
A
good representative will read and analyze the medical records, which
are the foundation of every case. The important evidence will be
pointed out to the judge. Are there MRIs or imaging studies to prove
the alleged impairments? Where can they be found quickly?
Do
any of the treating doctors provide an opinion on the claimant's
ability to perform work-like activities? How do these opinions limit
the claimant's residual functional capacity?
Then
we come to the claimant's testimony. It's very important that the
claimant has been prepared and knows what to expect--and how to answer.
The testimony should match up with what the doctors say in the records.
Award
rates among Social Security judges are lower now than at any time in
the past 30 years. A lot of things have to line up and make sense for
the judge.
I
always provide the judge with a pre-hearing brief. That means that I
give her a step-by-step view of the case and why the federal regulations
allow benefits to be paid. The brief condenses hundreds (or thousands)
of pages of medical evidence into 3 or 4 pages that can be read in
about five minutes. So, I try to help the judge make efficient use of
his/her time.
A
lot of times I can answer difficult or technical questions for the
judge. This can also help to get a favorable decision out more quickly.
It's
risky to walk into a hearing and just hope for the best. Those kind of
hearings often don't go well for the claimant. It's much better to
have a legal roadmap of where you want to go and how to get there.
That's worth paying the attorney/representative a fee when your case is
successful.
So,
talk to a representative early in the process. I think most people who
appoint me to represent them decide after just a few minutes that I can
add value to their case. I have to think so, too, or I won't take the
case. The best of all worlds is when the claimant and representative
work well together as a team.
______________
Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike NW, Site 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL (256) 799-0297
https://forsythefirm.wixsite.com/website
Most
Alabama workers are covered by Social Security disability because they
pay FICA withholding tax out of every paycheck. This provides coverage
against long term disability and loss of income.
However,
Social Security can be difficult to deal with and there are complex
rules that must be met before they will part with any money. It can
take anywhere from 4 months to 4 years to get approved.
Here
is the sticky part. Social Security will often agree that you cannot
perform the work you once did. However, they will say that you can
still perform some jobs which exist in the national economy.
These jobs are often unskilled minimum wage jobs, such as hand packager,
inspector or copy colater. It doesn't matter that you can't actually find one of these jobs.
If you
file an application and are denied (as up to 75% are), you have 60 days
to file an appeal. The appeal puts you in line for a hearing before a
US administrative law judge (ALJ), who can review your case and give you
a new decision. Your odds before the judge are much better, especially
if you are represented by counsel who understands the system and how to
navigate it.
HOW CAN YOU PAY FOR EXPENSIVE LEGAL COUNSEL?
You
don't have to. Social Security forbids an attorney or representative
to charge you any fee unless your case is decided in your favor and
results in back payments. In that case, Social Security will withhold a
small portion of your back pay and pay the legal fee directly. You
keep most of your back pay and 100 percent of your monthly benefits.
If
you need help with a Social Security disability application or appeal,
please invest 15 minutes in a phone call to our firm for a free initial
consultation. We never ask you for money and our experienced disability
advocates have been handling cases like yours for over a decade.
_________
THE FORSYTHE FIRM
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL (256) 799-0297
SOCIAL SECURITY JUSTICE WEBSITE
In considering whether you are disabled, Social Security must consider all factors that will make it difficult for you to work. "Work" is defined as consistently performing work activity--8 hours a day, 5 days a week--on a "regular and continuing basis." Three of the many factors that must be considered include concentration, persistence and pace:
CONCENTRATION - which is the ability to remain focused well enough and long enough to perform the work. It is generally agreed that most work requires an individual to concentrate up to 2-hours at a time without a break or having to be redirected; and for a total of 8 hours during a working day. Concentration may be restricted by pain, anxiety, depression, panic attacks, fatigue or dozens of other reasons. Most vocational experts will testify that being off task more than about 10 percent of the time will result in not being able to hold any full-time job.
PERSISTENCE - basically is the ability to work for 2 hours at a time (without a break) and for 8 hours per day, and to do so 5 days per week on a regular and continuing basis. If a person is able to work 5 or 6 hours a day, but not 8, they are disabled. If an individual is able to work 3 or 4 days per week, but not 5 days, they are disabled. Vocational experts will generally concede that if a person is absent more than 1 or 2 days per month on a consistent basis, they cannot hold a job. Also, if they are able to sit, stand and walk (in combination) less than 8 hours per day on a consistent basis, they are not able to hold a job.
PACE - refers to the ability to turn out the required amount of work in the required amount of time. All jobs require that a certain amount of work be performed every 8 hours. If an individual, for example, can produce only 70 percent of the expected work, he cannot meet the pace required. If he or she can turn out all of the work required but it takes 12 hours instead of 8 hours, he or she cannot meet the pace requirement. Pace is also affected by pain, restricted range of motion, restricted standing, sitting, walking, lifting, bending, etc.
What will be considered when concentration, persistence and pace are evaluated by Social Security?
1) Your medical records should provide objective medical evidence of a condition or conditions which may reasonably be expected to limit concentration, persistence or pace. If pain is a consideration, there should be objective medical evidence for the source or cause of the pain (Example: an MRI showing herniated discs or degenerative disc disease).
2) If mental disease, such as anxiety, depression, panic disorder, PTSD, schizophrenia, etc. are involved, detailed records from a licensed psychologist or psychiatrist will be needed.
3) A medical source statement by one of the claimant's treating physicians will be most useful. There is a particular form used for this.
You need a specialist to review and evaluate your medical records, then present an effective argument to Social Security why you cannot meet the concentration, persistence or pace required of jobs in the national economy. An attorney or non-attorney disability specialist may be your best bet in formulating a case that you can't meet the concentration, persistence and pace required to handle full-time work.
ABOUT THE FORSYTHE FIRM - SOCIAL SECURITY JUSTICE
DANGER: Don't count on the internet to tell you whether you qualify for Social Security disability. This may lead you in the wrong direction, and cost you a lot of money. Here's an example:
Thomas recently had back surgery and was forced to quit working because of unrelenting back pain and trouble standing, walking, bending and lifting. He went online and googled "disability for back problems."
The internet directed Thomas to the Social Security listings for musculoskeletal impairments. Tom saw a long list of complicated symptoms the Listings required and decided that his condition wasn't nearly bad enough for apply for benefits, so he didn't. A year later, still not able to work, Thomas contacted an attorney. The attorney filed for benefits and Tom was approved.
Here's the problem with relying on the Listings on the internet: You do not have to meet those listings to be approved. In fact, most people who are approved for disability benefits do not meet the listing.
The "listings" are automatic approvals for the worst, most catastrophic conditions. There is a mandatory 5-step process that Social Security must use to decide if you are disabled. Claimants who "meet a listing" are approved early, at Step 3. I would say less than 5 percent of those who get approved will meet a listing.
Those claimants who do meet a listing, however, may be approved at Step 4 or Step 5 (where most claimants get approved). If you depend on meeting a listing, only 5 percent would win and 95 percent would lose. So, the listings are not what you need to look at.
Here's my advice: Do not rely on some website (even my own) to determine whether or not you qualify for benefits. Let a professional evaluate your specific situation. Factors that must be considered are: your age, your education, your past work experience and your medical conditions (both physical and mental).
No two cases are alike. Another bad thing is trying to judge your situation according to the experience that somebody else had. For example, they denied Uncle Billy, who was even sicker than I am, so they will deny me, too. Or conversely, they approved Uncle Billy in just 2 weeks, and he isn't near as sick as I am, so they should certainly approve me. Uncle Billy has absolutely no bearing on your case. You are unique because you...
- are a different age
- have a different work history
- have a different medical history
- will have a different judge
- probably have a different education level
- ...and are just different in a hundred other ways
Don't get led down the wrong path by the internet or well meaning friends who try to "help" with your disability situation. There is a TON of false information out there. Don't fall victim to it.
THE FORSYTHE FIRM
Social Security Disability Representatives
Huntsville, AL
Phone (256) 799-0297
MY WEBSITE IS PRETTY RELIABLE FOR GENERAL INFORMATION
1)
At what age may I apply for Social Security disability (SSDI)?
Answer: Adults may apply any time before your full retirement age. (If
you were born in 1948, for example, your full retirement age is 66).
Children may apply any time prior to age 18. There are special rules for adults who became disabled prior to age 22.
2)
What monthly benefit may I expect from SSDI? Answer: The benefit
amount will vary based on your average wages and work history. The
maximum monthly benefit in 2016 is $2,639. The average monthly benefit
is $1,166.
3)
Can my spouse or dependent children also receive benefits? Answer:
Yes, dependents may qualify for benefits based on the wage earner's
disability. Dependent grandchildren may also be eligible. A spouse who is caring for a disabled wage earner's dependent children under age 16 may also qualify.
4)
Will I get Medicare insurance with my disability benefits? Answer:
Yes but there is a waiting period. Medicare starts 29 months after the
official onset date of disability for SSDI claims. Note that this is 29 months from the disability onset, not from the date of your decision. SSI beneficiaries get Medicaid and there is no waiting period for Medicaid.
5)
If my doctor tells me I am disabled and cannot continue working, are
disability benefits automatic? Answer: No. You must still apply and
prove to Social Security that you are disabled according to their rules. Many times, such individuals are denied and must appeal in order to get benefits. Appeals must be filed within 60 days of denial.
6)
I saw my doctor today and he does not think I will be able to continue
working much longer. May I apply for Social Security disability now and
keep working until I am approved? I want to have my claim approved
before I stop working. Answer: No, the system does not permit this.
You must not be working at substantial gainful activity when you
apply for disability benefits. If you are, you will be denied at Step
1, regardless of the medical evidence.
7)
I am 64 years old and retired. I worked for more than 40 years. I've
been receiving Social Security early retirement benefits for about 2
years. I've been healthy until now. Recently, however, I was diagnosed
with a severe illness for which there is no cure. Since I am already
receiving Social Security retirement, may I file a disability claim?
Answer:
Yes, you may. You are under full retirement age and it appears you
have adequate work credits to support a claim. Also, I assume your
recent impairment will last for 12 months or more (the duration
requriement), so you may file a disability claim and try to prove
disability. As long as you are not working, your present income does not
matter for a Title 2 (SSDI) claim. If your claim is successful, your monthly benefit will be increased to the amount you would have received at full retirement age (payable from the onset date of your disability).
Also, you may qualify for earlier Medicare coverage, in the event you
are not yet 65 when your case is decided. You may continue to receive
your retirement benefits while your disability claim is being decided.
Even if you eventually do not get a favorable decision on the disability
claim, it will have no impact on your retirement benefits, which you
will continue to receive. So, you risk nothing by filing for
disability. A final thought: At age 62, it may be easier to win a
disability claim, compared to a younger individual, thanks to the
medical-vocational guidelines.
________
If
you have a Social Security disability question that was not answered
here, or on one of our many blog posts, please call the Forsythe Firm in
Huntsville, AL at (256) 799-0297.
There is no charge or obligation for a consultation.
Social
Security disability is awarded base on a claimant's limited ability to
function. It is not awarded based on diseases, but on functional
limitations.
The
primary way Social Security evaluates your functional ability is by a
detailed questionnaire that they refer to as "the ADL (Activities of
Daily Living) questionnaire. The official name of the document is the
"Function Report."
The Function Report is an 8-page document with Sections A-D and it contains approximately 60 questions.
I
understand the temptation to ignore this form (just not bother with it)
or to fly through it quickly because you feel it is a waste of time.
This is a crucial mistake. You should spend a lot of time with this
form. In fact, this form should be your constant companion for a couple
of days until it is completed lovingly, comprehensively, thoughtfully
and very, very completely.
The Function Report will ask you things like:
- Do you cook your own food? How long does it take you? What do you cook?
- Do you spend time with others?
- What are your hobbies? How often do you do them?
- Do you go places on a regular basis?
- When you go out, how do you travel?
- Do you get along well with others?
- Do you need help caring for others or pets?
- Do you need help with bathing, getting dressed, or feeding yourself?
- How do your illnesses, injuries conditions affect your sleep?
- Are there things you used to do that your disability now stops you from doing?
Social
Security will use your answers to these questions to determine (a) how
your illness or injury affects your activities of daily living, and (b)
are your allegations of symptoms consistent and credible.
If
your application is denied (about 70% will be), the judge who hearings
your appeal with use this same Function Report to evaluate consistencies
in your symptoms and the credibility of your complaints. This Function
Report literally stays with you from the day your file your claim until
the appeal is decided, perhaps 24 months later in some cases.
If
you are unable to understand or complete the Function Report in loving,
comprehensive detail--get someone who can help you: a relative, your
pastor, a friend, etc. If you are represented by an attorney or
advocate, he/she will understand this form and help you complete it
correctly. But for heavens sake, do not ignore the form or (just as
bad) fly through it checking boxes just to say you finished it. (That's
how I used to do my homework, with equally dismal results, I might
add).
There are 2 types of medical evidence in a disability claim: objective medical evidence and opinion medical evidence.
Objective
medical evidence consists of things like X-rays, laboratory tests, MRIs
or CAT scans. These are found in your doctor's records.
Opinion
evidence is quite different. Opinion evidence is where your doctor or
professional renders an opinion on how your medical condition affects
your ability to perform certain functions.
For
example, an MRI may show that you have 2 herniated discs in your lumbar
spine. This is objective evidence. It is what it is. The doctor may
then give an opinion as to how long you can sit, stand or walk. That is
opinion evidence. If your doctor states: "The patient would be
limited to lifting no more than 10 pounds occasionally, sitting no
longer than 30 minutes, standing no longer than 15 minutes at a time, or
walking no more than 300 feet," that is opinion evidence.
Opinion
evidence is used to form "residual functional capacities," that is,
what is the most work like activity that an individual can perform on a
sustained basis? This will be use by decision makers to determine what
type of jobs, if any, the claimant would be able to perform. This, in
turn, will determine whether the claimant meets the rules for Social
Security disability benefits.
We
should note here that broad, general conclusions by doctors are not
useful. For example, the statement, "It is my opinion that this patient
is not able to perform any type of work and is totally disabled," is
not useful. This conclusion is reserved solely to the Commissioner of
Social Security under the federal regulations (20 CFR 404.1527(d); SSR
06-03(p); SSR 96-6(p), etc.).
A
doctor's statement that addresses the patient's ability to sit,stand,
walk, lift, carry, push, pull, concentrate, make decisions or perform
other specific work related functions can be very useful opinion evidence.
