Assessing Credibility in Social Security Disability Hearings

Social Security Regulations require claimants to prove they are disabled as a “result of anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.”

A symptom is an individual’s own description of his or her physical or mental impairment. SSA regulations make it clear that “statements about your pain or other symptoms will not alone establish that you are disabled.” So questions often arise as to how to prove disability in instances when subjective complaints such as pain, fatigue, shortness of breath, weakness, or nervousness prevent you from working, or when you can’t afford to go the doctor, or pay for medicines.

Make no mistake; SSA is assessing your credibility at every stage of the process. Nearly every file contains the opinions of medical and administrative personnel as to whether a claimant’s allegations are credible. But nowhere does that assessment become more apparent than at the hearing stage, when a judge has a chance to read the file and meet with the claimant face to face.

Adjudicators must consider whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the pain or other symptoms. Once that has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit ability to do basic work activities.

SSA acknowledges that objective medical evidence alone cannot always prove or disprove an individual’s symptoms exist at the level of severity alleged. So adjudicators are required to “make every reasonable effort to obtain available information that could shed light on the credibility of the individual’s statements.”

In general, SSA defines “credibility” as “the extent to which an individual’s statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled.”

In evaluating credibility, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual’s statements. The assessment cannot be based on an intangible or intuitive notion. It must be grounded in evidence and articulated in the decision.

Allegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence.
Consistency of a claimant’s statements with later statements, and with statements and observations of others all come into play. Medical treatment history must be considered.

But what if you can’t afford to go to the doctor, or pay for prescriptions?

SSR 96-7p provides insight, stating that an adjudicator “must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re contact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual's credibility. For example:

• The individual's daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms. The individual may be living with the symptoms, seeing a medical source only as needed for periodic evaluation and renewal of medications.

• The individual's symptoms may not be severe enough to prompt the individual to seek ongoing medical attention or may be relieved with over-the-counter medications.

• The individual may not take prescription medication because the side effects are less tolerable than the symptoms.

• The individual may be unable to afford treatment and may not have access to free or low-cost medical services.

• The individual may have been advised by a medical source that there is no further, effective treatment that can be prescribed and undertaken that would benefit the individual.

• Medical treatment may be contrary to the teaching and tenets of the individual's religion.”

The Seventh Circuit, in a recent case, held that the judge must not draw any inferences about a claimant’s condition from failure to follow a treatment plan or infrequent treatment unless the judge has explored the claimant’s explanations as to the lack of medical care. The Court cites inability to afford treatment a one reason that can ‘provide insight into the individual’s credibility.’ So a judge must question a claimant about lack of treatment or noncompliance, and failure to do so may be grounds for appeal.

The lesson for claimants, then, is to make sure these facts get into their records. Tell your doctor if you cannot afford the medications prescribed to you, or if you do not have insurance and cannot seek treatment as often as you need to. In the end, the key to credibility is consistency, but where the facts are inconsistent, some reasonable explanation needs to be offered.

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The Pursuit of Social Security Disability Benefits in A Culture of Denial

In the recent months, high denial rates among those applying for Social Security benefits, has been the topic of immense concern. Investigations into denials of specific cases have caused some to call the Social Security Administration's strategies a "culture of denial." With only a 30-40% approval rate at Initial Application, this doesn't seem far from the truth. A report published by CBS news stated that most people do not bother to appeal a denial the first time they are disapproved for benefits. Almost two-thirds of all applicants give up after their first denial, meaning millions of Americans who paid into the system and quite possibly were deserving of benefits, never received assistance. Most of those that did continue fighting for benefits were faced with long wait times- lasting over 1 year, and often times, further denials.
After a two-month investigation, the CBS report called the denials part of a "system whose own standards have been called into question." The Social Security Administration's recent budget cuts and high staff turnover has resulted in longer back logs of cases, medical experts who are rendering opinions outside their specialties and inexperienced examiners being pressured to disapprove claims in order to keep costs down.
SSA Commissioner Michael Astrue commented that "it's a very tough standard…and you can argue whether that should be the standard or not, but I'm stuck with that." However, feedback from former employees of the Social Security Administration has caused a great deal of distress and apprehension among the disabled. Trisha Cardillo, a former Social Security employee who reviewed over 200 disability cases a month out of Ohio, has stated, "We're failing the disabled on a very large scale." She added that "there were a lot of times when I was fighting with management because I wanted to approve a claim…and I had to go through so many steps and - jump through so many hurdles to do that, it just seemed ridiculous." Cardillo explained that in essence, there is a "quota system" in which "each state has different numbers and they know that a certain percentage of people, once denied, will never file an appeal."
A prime example of the results yielded by this toughened standard is Mr. Robert Veneziali' case. He is a 38 year old applicant for disability benefits who is diagnosed with rapidly progressing Multiple Sclerosis. After applying for benefits, he was turned down and told that his case could be re-examined in another 18 months. Desperate for assistance, he turned to his congressman Rep. John Hall. Hall called for a federal investigation and stated that the treatment of people like Veneziali was "unconscionable." Another case we are dealing with in California involves a claimant who is diagnosed with end stage kidney disease, waiting for dialysis. This claimant has pages of supportive records and statements from his Kidney Specialist. However, his case was initially evaluated and denied by state agency reviewers who were not even doctors. Then, the case was reviewed and denied by a Social Security medical expert who was not a specialist in kidney diseases. Finally when it reached the hearing level, it was reviewed by staff at the San Diego Office of Disability, Adjudication and Review, and was denied an immediate award despite his dire, terminal condition.
With the assistance of congressional representatives who are voicing concerns over long wait times and high denial rates, perhaps the system that Social Security is currently operating under will be improved. Recently, due to concerns expressed by the public and Members of Congress, the Administration suspended some of their processes that were creating difficulties for claimants at the hearing level. After more than 500 comments were submitted criticizing the proposed rule that had put restrictions on the submission of evidence, Commissioner Astrue officially suspended that rule. This leaves open the possibility that with enough public concern and the assistance of our elected officials, the Social Security Administration will make changes to better the system and eventually this "culture of denial" will be transformed.


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Social Security Disability: Why is this taking so long?

I’ve been working all my life and paying taxes. Now that I’m not able to work and need help, SSA keeps denying my claim for disability benefits. Why is this taking so long?

It’s hard to be patient when you can’t afford to go the doctor and you don’t have money for medicine food, rent or utilities. But if you think about it logically, you can begin to at least understand why this process is necessary.

Think back to when you were working. Your employer would hand you your paystub, and you’d look to find that a chunk of your pay was taken out before they even gave it to you. You were paying toward the Social Security System. But you know that the government wasn’t holding your money in an account for you in case you should one day need it. The government was giving your money to the elderly and people who could no longer work.

So suppose that some government official approached you on payday and said, “Here’s your check, but before I give it to you, I’m going to take back three hundred bucks and give it to someone who can no longer work.” Your initial reaction might initially be a negative one, but you are human, and you at least to some extent agree that humans must take care of their elderly and sick – or you would not be applying for benefits now.

But this is the tradeoff - as a member of the workforce, I’ll contribute now to those who can no longer work so that I can be treated the same when I become unable to work. With one condition: before you take my money away from me and give it to those who can no longer work, at least make them prove they can no longer work. I surely do not want to give my hard-earned money to everyone who merely claims they can no longer work.

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Why You Should Hire a Social Security Disability Lawyer

Why Should You Hire a Social Security Disability Attorney?

For many people, filing for Social Security Disability benefits can be a complicated and confusing process. Many applicants wonder if they should hire an attorney to help guide them through that process. Social Security (SSA) does not require you to have an attorney, and, in fact, people have won their cases on their own. But, does having an attorney make a difference in whether an applicant wins or loses Social Security disability benefits? During Congressional testimony, California Congressman Robert T. Matsui stated:

“Professional representation is a valuable, and indeed vital, service. The disability determination process is complex. Claimants without professional representation appear to be far less likely to receive the benefits to which they are entitled. For example, in 2000, 64% of claimants represented by an attorney, but only 40% of those without one, were awarded benefits at the hearing level.”

Simply put, at the hearing level, you can improve your odds of winning your Social Security Disability case by more than 50% if you are represented by an attorney. Many people have never hired an attorney before and the decision to hire one can be daunting. Naturally, you will have many questions. If you are considering hiring an attorney to help you with your Social Security Disability case, here is some basic information to help with that decision.
How Can I Afford to Pay An Attorney?

Many people applying for SSA Disability benefits, especially those who have been denied at the initial application level, have not worked for a while. Therefore, the number one question on people’s minds is, How can I afford to pay an attorney when I am not working?” The answer is simple: you only pay an attorney’s fee if you win your case. Generally, a disability attorney will represent clients on a contingency basis. That means you do not pay an attorney anything in advance and you do not pay an attorney a fee if you do not win your case.

The SSA and federal law set attorney’s fees in disability cases. The standard fee agreement most disability attorneys use states that the attorney’s fee is contingent upon winning your case. The fee is 25% of all past due benefits, up to a maximum of $6,000, or whichever is less. Thus, depending on the amount of your past due benefits, the attorney’s fees are usually only a small portion of the benefits you receive.
How Can A Disability Attorney Help Me?

There are several ways a disability attorney can help you. A disability attorney will help you understand the SSA Disability process. Filing a claim is just the first step in what is often a long and frustrating process. There is a lot of paperwork to fill out, deadlines to meet, and documentation to assemble. Claims are often denied because paperwork was not completed properly, a deadline was missed, or evidence was not obtained or reviewed. A disability attorney will guide you through each step in the process.

A disability attorney will also help you develop a strategy that both of you should follow to win your case. Many SSA Disability claimants file an application and then simply do whatever SSA tells them to do. This is often not enough to win disability benefits. It is important to understand what is necessary to prove your case and how you will go about winning it. The sooner you know this, the sooner you and your attorney can work together to execute the strategy and increase your chances of winning.
Conclusion

If you are contemplating filing a claim for SSA Disability benefits, it is wise to consult with an attorney. The consultation shouldn’t cost you anything except your time. And, by understanding the SSA Disability benefits process and having a strategy, you can significantly improve your chances of winning your case. .

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