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1. How to Begin a New Career as a Social Security Disability Paralegal
2. How to Quickly Begin to Represent Social Security Disability Claimants
3. Ten Tips the Experts Use to Win Social Security Disability Claims
4. How to Handle Child Disability SSI Claims
5. Understanding the New Requirements for Social Security
Disability Claimants with Drug or Alcohol Addition
See Social Security Disability Blog below:
Blog
February 8, 2012
Social Security Disability Requests at the Appeals Council
The working of the Appeals Council (AC) is somewhat of a mystery to claimants and representatives alike. It represents the final level of administrative review, leaving federal court as the only remaining chance to prevail.
Since most representatives agree that administrative review is more likely to be favorable than the courts, the AC is very important.
There are four main areas where a favorable decision may be available at this level. They are:
(1) Abuse of discretion by the ALJ
(2) Errors of Law
(3) ALJ findings are not supported by substantial evidence, and
(4) New and material evidence is available that was not available at the hearing.
As a matter of practice, your request for review of the ALJ decision is limited to a request for a remand for a new or supplemental hearing. An outright reversal granting benefits is a possibility but it is rare that you will get anything more than a new hearing before an ALJ. Sometimes there will be instructions by the AC to the ALJ to consider issues overlooked by the ALJ. Other times you will get instructions for the ALJ to give greater weight to opinion evidence, especially if it is from a treating physician.
Some tips you should be aware of include the right to request a transcript or tape of the hearing, the right to additional time to submit new evidence, and the right to submit legal and factual arguments in support of your request for review.
Nearly 25% of all appeals are remanded, so this is a significant method of keeping your claim alive and getting another opportunity to convince the ALJ that you are disabled. Take the opportunity seriously and maintain a professional tone in presenting your argument.
Social Security Disability and Automatic Eligibility
There are two situations which are not well known which require SSA to grant benefits without further analysis. Each describes a vocational profile.
The first of these is the "worn out worker," also known as the "arduous unskilled physical laborer." The requirements for meeting this profile are met when an individual is not working, has a history of 35 years or more of arduous unskilled physical labor, can no longer perform the past arduous work because of a severe impairment and has no more than a marginal education. Employment in semi-skilled or skilled work generally would rule out application of this rule, but isolated, brief, or remote periods spent in semi-skilled work do not preclude its applicability. It must also be determined that brief periods of work didn't lead to the acquisition of skills readily transferable to lighter work.
The second vocational profile which requires SSA to provide disability benefits is the "no work experience" case. This is generally described as a person who has a severe impairment, has no past relevant work, is age 55 or older and has no more than a limited education. The rule for application of this profile states that the individual is considered as having no recent and relevant work experience when he has performed no work within the past 15 years, or, the work activity performed within this 15 year period does not (on the basics of job content, recency or duration) enhance present work capability.
If you fit either of these profiles point your caseworker to Ruling 82-63 and you will be approved without further ado.
January 10, 2012
Social Security Disability
Reopening Old Claims
I have recently taken on several claims which require battles with SSA to reopen prior claims. What I have discovered is that there is a wealth of helpful information in old and new medical records to help justify the reopening.
There are four key issues in mental health records which will help you to reopen old claims.
(1) Post - Traumatic Stress Disorder
PTSD is frequently a diagnosis of last resort, when other explanations for erratic behavior have been explored and discarded. It is not unusual for a PTSD victim to go for years without obtaining treatment which requires confronting the past. If this history exists, it will go a long way toward establishing a reopening request.
(2) Inability to Make Sound Decisions
Many mental health conditions affect the claimant's ability to take care of himself. Numerous mental health conditions can explain gaps in treatment, as well as failure to pursue appeal proceedings.
(3) Borderline Intellectual Functioning
Several conditions will affect the ability to understand appeal requirements, or make reasonable decisions. A good illustration is a claimant who recently told me he didn't know he was eligible for SS after getting a workers comp settlement. That is a legitimate good cause excuse for not applying for SS earlier.
(4) Fear of People
Many mental health conditions such as panic disorders, and agoraphobia may explain the failure to obtain treatment and the failure to pursue appeal requirements. Conditions which restrict social interaction help to explain why many claimants do not fulfill administrative requirements for processing their claims.
Happy New Year!
January 1, 2012
SSI Disability and the Transfer of Assets
Thus far, all of my weekly information has concerned proof of disability. There are times, however, when a claimant is wrongfully denied benefits prior to proof of disability being considered. Let me explain one such problem.
Recently a claimant came to me with an SSI disability denial letter, based on her ownership interest in a vacant lot. She had recently deeded the property to her daughter in exchange for her daughter's help in caring for her after surgery. The property was appraised at $6,500, well above the $2,000 SSI resource maximum for a single person.
We made two arguments. First, we identified the care taking her daughter had provided as having a value of $500 per month and that her recovery from surgery would require her daughter's aid for two years for a total value to the claimant of $12,000. We also introduced evidence that without her daughter's care the claimant would have to be cared for at a rehab center, at a much greater cost to Medicaid. The deed to the lot, although seemingly a violation of the rule against transfer of assets, was actually a transfer for full value received.
In addition to the value of the transfer, we also urged consideration of the claimant's extreme hardship if she were to be left without SSI and Medicaid benefits. Hardship consideration in SSI eligibility is permitted by the regulations and it was the argument that prevailed. We were allowed to get past the transfer of assets technicality and to proceed with proof of disability, which we were able to do.
December 17, 2011
The Social Security Appeals Council
Most disability claimants are familiar with the disability adjudication process with the requirement of the initial application, the reconsideration stage and then the hearing before the Administrative Law Judge (ALJ). Not everyone understands the next stage, the right to a review by the Appeals Council (AC).
The Appeals Council reviews an ALJ decision if it is unfavorable to the claimant and the claimant requests a review within sixty (60) days. There is no right to a hearing but the AC will review the entire hearing file and any additional information supplied by the claimant or the claimant's representative.
The primary function of the AC is to correct errors of law or fact in the hearing decision. New evidence can be submitted but only if it relates to the time period prior to the hearing. Newly obtained medical evidence from the period since the hearing will not be considered.
The decision of the AC will usually either be to affirm the ALJ decision or to remand the claim to a new or supplemental hearing. The AC may also agree that there was not sufficient evidence on the record on which to make a definitive decision about disability. In such cases, the AC or the ALJ may order more consultative examinations to be conducted at the expense of the SSA.
Newly ordered consultations are just as important as those ordered prior to the hearing, and the claimant must attend the examinations which are required.
Occasionally there will be a requirement that the ALJ reconsider some stage of the requested evaluation. This will normally occur only if the ALJ failed to give proper weight to the opinion of a treating physician, or if the ALJ did not adequately describe the claimant's functional limitations when questioning the Vocational Expert (VE) who testified at the hearing.
In all cases which go to the AC or come back to an ALJ on remand, I strongly recommend that the claimant seek the help of an attorney. With all of the experts at the disposal of the SSA, you definitely need one of your own!
December 4, 2011
SSI Benefits for Children
Child SSI benefits have become more restrictive in recent years, so an explanation of the process may be helpful.
There is a sequential evaluation process, just as for adults, which requires first that the child not be engaged in substantial gainful activity and secondly, that they have a severe impairment.
At the third step, however, the regulations require that the child "meet, equal or functionally equal a listed impairment." There are special listings for children that your pediatrician should be aware of when a medical opinion is given. Meeting or equaling a listing is fairly straightforward, but functionally equaling is more difficult to address.
To meet the functional equivalence requirement the child must have either an extreme limitation in one functional domain of two marked limitations in two different domains.
The domains are (1) acquiring and using information (2) attending and completing tasks (3) interaction and relating with others (4) moving about and manipulating objects (5) caring for yourself and (6) health and physical well - being.
The functional equivalence rules require Social Security to consider how the child functions every day and in all settings compared to other children the same age who do not have impairments.
After Social Security determines how the child functions in all settings, they must use the domains to determine the extent to which the child is limited by identifying the abilities that are used to do each activity within each domain.
Next, Social Security determines whether the child's medically determinable impairments account for the limitations they have identified.
Finally, Social Security must rate the overall severity of limitations in each domain to determine if the required extreme or marked limitations justify a finding of disability.
This is a complicated procedure and your lawyer and your child's doctor will have to understand the process to get through it successfully.
November 27, 2011
The Role of the Vocational Expert In Disability Determination
I am often asked by claimants about the purpose of vocational experts in Disability hearings. Case law in the 1960's mandated the SSA to provide evidence that a claimant was able to participate in alternative occupations.
Also to be considered by vocational experts are the claimant's impairments (physical and mental) which could preclude them from their former or usual employment.
Vocational experts provide expert vocational opinion evidence at the hearing level. They usually provide testimony at the hearing, but may be asked to complete interrogatories at a later date of new evidence is obtained.
The SSA uses a five step sequential evaluation process in disability process awards. This allows for the analysis to have a national uniformity in the application of SSA rules and regulations.
The crucial issues in the evaluation process are the claimant's age, education, work experience, skill level of jobs performed and residual functional capacity (RFC).
I tell claimants that the most important thing their doctor can do is provide a written report of their RFC. The RFC is the critical information the vocational expert will use to determine whether or not there are any jobs the claimant is capable of doing.
So if you don't want the vocational expert to testify that you are perfectly capable of being a "ticket-taker" or some other position that doesn't really exist in sufficient numbers, make sure your doctor's RFC report excludes all gainful employment.
November 13, 2011
Social Security Scams To Beware
There are several new scams to watch for if you are a recent recipient of Social Security benefits. AARP has identified the the most often encountered:
(1) "We're updating our records"
We all know about identity theft and the most common of the new scams involves thieves posing as SSA employees just calling to make sure their files are accurate. By phone, e mail, or letter they trick you into giving them your SS number, date of birth, mother's maiden name and bank account information -everything they need to empty your bank account.
(2) "We'll get you a bigger check"
Beware of any caller who offers to increase your benefits for a small fee. A basic tenet of SS representation is that all fees for representation must be approved by an administrative Law Judge. And there is never a fee added on by a SS employee. It is their job to see that you get the benefits you are entitled to.
(3) "You've got a special tax refund coming."
This scam is relatively new according to AARP. It involves a scammer telling you to file a new income tax return in order to get a lump sum to make up for the lack of COLA increases for the last several years. And yes, they will charge a fee for the services of providing the new forms. But there is no such refund and you will have given away your identity.
Don't be one of the hundreds of individuals to fall for one of these tricks. If you turn the tables on the scammers by innocently asking for their identifying information and reporting it to authorities, maybe more of them will wind up in jail instead of at your bank!
November 1, 2011
In my last SS disability hearing I faced an issue which is quite common, but which presents a difficult question of proof: pain as a disabling condition.It is not enough for the claimant to say they have pain, or can't work because their pain is so bad. It is almost useless to have them testify that the pain is "really bad", and saying it is "10" doesn't help much either.
The pain must be reduced to specific functional limitations. Does it cause them to be incapable of paying attention? Of carrying a conversation? Does it cause them to be irritable and make them move around so much they are not in any one place long enough to finish brief tasks? Does it require laying down frequently? How many times each day? How long each time?
If the Judge asks the 1-10 question they should give their answer but then go on to explain how the pain prevents work. They should explain that "pain that is a 5 causes me to be distracted from what I am doing and makes me very irritable to other people. " They may go on to say " I have pain that bad every day and I have to lie down for at least one hour in the morning and one hour in the afternoon to allow me to cope and collect myself to concentrate on the simplest things I need to do."
Chronic pain is frequently linked to depression which compounds all of the claimant's problems. If there is a mental health professional treating the claimant it is helpful if they will comment on how pain contributes to the depression.
And finally, you must ask the treating physician to verify the pain the claimant describes is credible and that it is consistent with the objective findings and the diagnosis.
