Can My Prior Claim Be Reopened?

Generally, initial determinations made on your claim are subject to your right to appeal, usually within 60 days. However, in certain instances, a decision which would otherwise be final and binding may be reopened or revised.

SSA may reopen a decision on its own initiative, or, a claimant may request that a previous determination be reopened. In either situation, if SSA decides to reopen a determination or decision, it may revise that determination or decision.

SSA regulations set forth the conditions under which a previous determination may be revisited. Although the regulations sound as if a party to a claim may simply request a reopening and it will be done, it is generally well established that whether or not to reopen a claim is left to the discretion of the Administration.

According to 20 C.F.R. §404.900, an Initial Determination is one made about your entitlement or your continuing entitlement to benefits or about any other matter that gives you a right to further review. Regulations differentiate between actions that are deemed initial determinations and those actions deemed not to be initial determinations.

Administrative actions that are not initial determinations may be reviewed by SSA, but are not subject to the administrative review process, and are not subject to judicial review. Denying a request to reopen a determination or a decision is considered such an action.

Therefore, denial of a request to reopen is not grounds for appeal. Nevertheless, regulations do provide for three conditions for reopening an otherwise closed case. The most generous provision allows for reopening a case for any reason within twelve months of the initial determination. Again, the refusal by SSA to reopen a case within twelve months for any reason is not subject to appeal.

The second listed condition listed is within four years (two years for SSI), for good cause. Good cause includes new and material evidence, clerical errors in computations of benefits, or evidence that, on its face, was clearly construed in error. A change in the law is not considered good cause.

Finally, a case may be reopened at any time if the determination was induced by fraud or similar fault. The regulation goes on to list what it means by similar fault, and includes instances related to death, convictions, and other clerical errors.

Most often, the request for reopening situation arises when a claimant has had a previous claim denied, but files a new claim that is subsequently approved. The question then becomes whether the previously denied claim can be reopened, effectively granting a claimant more back pay. Because of the huge backlog and the slow pace at which SSA adjudicates claims, it often happens that the request for reopening cannot be made for any reason under paragraph 1, and the good cause provisions of paragraph 2 come into play, ostensibly allowing for reopening within 4 years if the provisions can be met. As a matter of practice, the most common good cause would have to do with new and material evidence that relates back to the period of the initially denied claim.

In the end though, a claimant may not demand reopening under any of these provisions. It may only be requested. And, if denied, the decision may not be appealed.


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Proving a Disability Based on Depression

It is estimated that today, approximately 19 million American adults are currently living with Major Depression. Major depression can be a debilitating disease that requires treatment in the form of medicine and therapy to resolve. For many Americans, depression affects their ability to function day to day and prevents them from holding a steady job. When trying to obtain Social Security Disability benefits due to Major Depression, it is important to know the criteria that Social Security uses to determine whether an individual’s depression is severe. This article will explain the evaluation process that Social Security decision makers use to evaluate a claimant’s case, and it will recommend ways to build up a strong case when applying for benefits.


What Social Security is Looking For?


Unlike physical impairments, where it’s easy to prove a disability using x-rays or blood tests, mental impairments are largely based on the subjective complaints an individual makes to their mental health doctors. Therefore, an individual alleging a disabling mental condition must be seeing a mental health professional. One of the first things Social Security looks for when evaluating a claim for benefits for depression is treatment records. A lack of treatment implies that the person is able to manage the depression by him or herself, and therefore the condition is not severe enough to prevent them from working. Missed appointments or gaps in the records tend to show that the individual either does not need help or is contributing to their impairment by not complying with proper treatment.

In the records themselves, Social Security looks for symptoms. For Major Depression, there must be consistent records stating that 4 of the following severe symptoms have persisted despite treatment: anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, thoughts of suicide, or hallucinations, delusions, or paranoid thinking.

Once it is determined that at least 4 of the above symptoms exist despite ongoing treatment, Social Security checks to see if the symptoms have lasted or will likely last at least 12 months.

Next, Social Security evaluates the impact these symptoms have on an individual’s ability to function. Though the symptoms may exist, they may be mild and therefore a person can potentially work despite the symptoms being present. However, if the symptoms are very severe, they would probably prevent the person from working at any job.

At this step, Social Security needs the help of a mental health expert to help determine the severity of the symptoms. A treating psychologist or psychiatrist is in the best position to provide an opinion as to the level of impairment their patient’s symptoms are causing. Specifically, Social Security is interested on how much an individual’s depressive symptoms interfere with their ability to perform activities of daily living, how much interference there is with normal social functioning, how much the depression effects a person’s ability to concentrate, persist or keep a working pace, and how many episodes of decompensation the depression has caused. If a treating doctor does not provide information on the severity of the claimant’s depression, one of Social Security’s medical examiners will provide such an opinion based on either an examination or a review of the records.


Presenting a Strong Case


Of course the most important part of proving a case for disability to be able to present treatment records. Not being able to afford treatment is not an excuse because there are free clinics and county mental health facilities that can assist those in dire financial shape. All claimants should have records to prove that they in fact do have a diagnosis of major depression.

It is important to discuss the symptoms of your depression with your doctor so that these symptoms can be written in your record.

To prove that the symptoms severely impact your ability to work, a statement from your doctor is necessary. Because a person’s treating doctor is most familiar with their case, that doctor’s opinion is usually given the most weight and therefore it’s vital to proving the case for disability. The opinion of the treating doctor can be in the form of a short narrative or can be provided as part of the doctor’s progress notes.

Social Security evaluators also look for in-patient stays at mental health facilities to determine if the individual shows signs of decompensation or an inability to function outside a highly structured living arrangement.

Another tool used to determine the severity of a claimant’s depression is their GAF, or Global Assessment of Functioning score. The GAF tells how well an individual functions in their life. Scores of less than 50 tend to show that an individual is below the normal level social functioning and has a significant impairment in this area.

Social Security red flags, which are often used as the basis for denials, are drug use and non-compliance. Claimants who use drugs or alcohol when they have depression are often denied because the effects of the substance cannot be distinguished from the effects of the mental impairment. Therefore, it is viewed as though the claimant is contributing to their disability. It is advantageous to have sustained sobriety from drugs and alcohol for at least 6 months before applying for disability benefits due to depression. Also, claimants who fail to take their medications are considered to be contributing to their impairment. Such cases are often denied because it is presumed that with proper medical management, the depression would resolve.


Therefore, to strengthen a case for disability based on depression, the following should be part of the record: consistent visits with the mental health doctor which state the symptoms of depression, compliance with medications, sobriety from street drugs and alcohol, and a supportive statement from the treating doctor which explains the level of impairment the depression causes in the individual.



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Comparing SSI and SSDI Benefits

There are two programs under which the Social Security Administration (SSA) provides benefits to disabled individuals: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). SSDI is type of insurance available to disabled individuals who have paid into the Social Security trust fund during their past employment. SSI is designed to meet basic financial needs for disabled individuals with little or no income.

The disability requirement is the same for both SSI and SSDI benefits. To be disabled according to the SSA, a claimant must be unable to engage in “substantial gainful activity” due to a medical condition that is expected to last for at least 12 months or result in death.

To be eligible for SSDI benefits, the SSA requires you to have earned a specified number of work credits, depending on the age at which you became disabled. You can consult with your attorney or the SSA to determine if you qualify, but note that the work credit requirement is generally met if you have worked at least 5 out of the past 10 years. Eligibility for SSDI benefits also requires that you be a legal resident of the U.S., and below retirement age.

SSI eligibility requires you to meet the SSA’s financial need requirements. Specifically, income must be below the Federal Benefit Rate (FBR) of $674 per month for an individual and $1011 per month for a couple (although certain states increase these amounts). In addition, an individual must have less than $2000 in resources, and a couple less than $3000. Certain resources, such as your home and car, are not taken into account when making this determination. To receive SSI you must also be a U.S. citizen (with limited exceptions). Unlike SSDI, however, SSI is available to individuals over the age of 65.

The primary difference between the two programs concerns the technical requirements for eligibility, but there are other important differences as well. SSDI comes with Medicare, while SSI comes with Medicaid (or MediCal in California). There is a 2 year waiting period from the date of SSDI award payment for the Medicare benefit to begin, but Medicaid starts immediately upon award of SSI. Another difference involves auxiliary benefits; SSDI provides benefits to certain family members of the claimant, while SSI does not.

It is possible to have “concurrent entitlement,” and receive benefits under both programs. It is therefore recommended that you apply for both SSDI and SSI when filing a disability claim with the SSA.


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Reasons Why You May Not Get Social Security Supplemental (SSI) Benefits For Which You Are Otherwise Eligible

This article intends to help applicants avoid the pitfalls that cause their ineligibility for payment in spite of their qualifying disability. As codified by the Code of Federal Regulations, the following are the top reasons why applicants may not receive benefits in spite of their eligibility.

You do not give Social Security Administration (SSA) permission to contact financial institutions.

Because SSI is a need-based program, SSA must be able to determine your eligibility by reviewing financial information on your resources and assets. Therefore, upon application, you must authorize the SSA permission to review records from banks, credit cards, loan companies, trust companies, savings associations, and any other source that would reveal the current state of your financial status. Permission in certain circumstances may include access to financial information by other relevant persons, i.e. your spouse or others living in your household. Social Security disability attorney may help you navigate these rules. However, applicant for social security benefits should be prepared with bank records or other financial information to make available to your reviewer upon request. Requesting records beforehand can significantly reduce any delays on your payments.

You leave the United States.

Put simply, you lose your eligibility for SSI benefits for any month during all of which you are outside of the United States. If you are outside of the United States for 30 days or more in a row, you are not considered to be back in the United States until you are back for 30 days in a row. You may again be eligible for SSI benefits in the month in which the 30 days end if you continue to meet all other eligibility requirements (CFR 416.215). During the application process itself, you may be required to fill out supplemental information regarding your daily activities and medical treatment. If you are outside the United States you may miss an opportunity to respond to such inquiries and consequently be denied. While your social security attorney may help you keep abreast of any deadlines, your participation is still material to the outcome of your case.

You do not apply for other benefits.

If you do not apply for other benefits then you may be denied or your payments suspended. Other benefits include any payments for which you can apply that are available to you on an ongoing or one-time basis of a type that includes annuities, pensions, retirement benefits, or disability benefits. For example, "other benefits" includes veterans' compensation and pensions, workers' compensation payments, Social Security insurance benefits and unemployment insurance benefits (CFR 416.210). You may consult with your social security attorney to determine what types of benefits might be available to you. The most obvious, Social Security Disability Insurance (SSDI), can be available if you have earned enough work credits through your contributions. In these cases, Social Security disability insurance benefits may be higher and entitle you to Medicare versus the Medicaid provided by SSI.

You are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability.

Drug addiction and alcoholism are major impediment to your initial award of benefits. Most judges are very careful to evaluate whether the severity of your disability is a result of your addiction. In which case, judges may deny benefits based citing non-compliance with medical treatment. If you receive benefits because you are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability (CFR 416.935), you must avail yourself of any appropriate treatment for your drug addiction or alcoholism at an approved institution or facility when this treatment is available and make progress in your treatment. You are not eligible for SSI benefits beginning with the month after the month you are notified in writing that we determined that you have failed to comply with the treatment requirements. If your benefits are suspended because you failed to comply with treatment requirements, you will not be eligible to receive benefits until you have demonstrated compliance with treatment for a period of time. As a general rule, social security applicants that have not remained sober for a period of six months should be apprised of consequences related to their addiction. For more detail, such applicant should consult with a social security attorney.

Social Security application process is riddled with rules. Applicants should seek legal advice from a social security attorney before they proceed with an application.


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Rheumatoid Arthritis: How Will Social Security Administration Evaluate Your Disability Claim?

When applying for Social Security Disability benefits, it is imperative to be regular and consistent in the medical documentation of your case. A Social Security attorney may help guide as to how the information from your records translates to the criteria and evaluation of your condition by the Social Security Administration (SSA). This article will discuss the criteria that relates to Rheumatoid Arthritis.
Rheumatoid arthritis (RA) is a long-term disease that leads to inflammation of the joints and surrounding tissues. It can also affect other organs. RA usually affects joints on both sides of the body equally. Wrists, fingers, knees, feet, and ankles are the most commonly affected. The course and the severity of the illness can vary considerably.
Depending on the severity of your RA and how it specifically impairs your ability to work, you may be successful on your claim if you meet the criteria stipulated in the in Listing 14.09 of the SSA Listings of Impairments:
Inflammatory arthritis (14.09).
a. General. The spectrum of inflammatory arthritis includes a vast array of disorders that differ in cause, course, and outcome. Clinically, inflammation of major peripheral joints may be the dominant manifestation causing difficulties with ambulation or fine and gross movements; there may be joint pain, swelling, and tenderness. The arthritis may affect other joints, or cause less limitation in ambulation or the performance of fine and gross movements. However, in combination with extra-articular features, including constitutional symptoms or signs (severe fatigue, fever, malaise, involuntary weight loss), inflammatory arthritis may result in an extreme limitation.
Barring the severe manifestations of your RA as described in the listing, your evaluator and Social Security Attorney may present at case based on how SSA evaluates pain and resulting limitations.
The Standard of "Pain"
In 1984, Congress passed the Social Security Disability Benefits Reform Act, which defined the standard of judgment on pain. It stated that:
…an individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques which show the existence of a medical impairment that results from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged.
Though this act had an expiration date of 1986, it became the standard of judgment. In 1988, Social Security ruled there need not be objective evidence of the degree of pain.
Several factors are used in the standard judgment of pain including:
• the nature of the pain
• locations
• onset
• duration
• frequency
• radiation
• pain intensity

Other factors that must be considered in determining proof of pain include: what causes the pain and makes it worse name, dosage, effectiveness, and side effects of pain medications treatment for pain relief other than medications functional restrictions daily activities.
In order to get more personal advice on the merit and strength of your claim for Social Security Disability Benefits, please contact an experienced Social Security attorney.



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The Continuing Disability Review

Once you are receiving Social Security Disability benefits, the Social Security Administration will periodically review your case to make sure that you are still disabled. This review is called a Continuing Disability Review (CDR) and the law requires it . What can you expect from a CDR?
How often a case is reviewed varies from one disability case to another. When a person is found to be disabled, the disability determination specialist sets a date, called a diary, when the next review is scheduled to be performed. Most diaries are based on the expectation of recovery and are for three or seven years, but they can be sooner:
• If medical improvement is “expected”, a case normally will be reviewed within six to 18 months;
• If medical improvement is “possible”, a case normally will be reviewed no sooner than three years;
• If medical improvement is “not expected”, a case normally will be reviewed no sooner than seven years.
The CDR is a medical review. SSA is trying to decide if your level of disability has improved to the point where you have medically recovered and are able to work. The evidence that SSA will need for your CDR is similar to what it needed for your initial claim for Social Security Disability benefits. SSA will have you fill out forms describing your current condition and list all of the places where you have received treatment. SSA will also obtain copies of all recent medical records. If more information is needed about your condition, SSA may schedule a Consultative Exam. If your condition has not improved since SSA last reviewed your case, then your Social Security benefits will continue. If your condition has improved, SSA will look to see if your condition meets the current disability requirements.
It is important that when you receive the CDR notice and forms that you fill them out and return them. If you receive the CDR Mailer and throw it in the trash, SSA will send a second one. Continued failure to provide information that SSA asks for, or failure to attend an examination that it schedules, will result in termination of benefit payments. You may need help answering the questions, especially if you are not certain what is being asked and why. This is where an attorney may help.
Continuing Disability Reviews for Children
When a person is found to be disabled under childhood regulations, SSA will review the case when the person turns 18 to determine if the person is disabled under the adult regulations. The case is reviewed as if it were a new case. SSA is looking to see how your disability affects your ability to work as an adult. Even if your condition has not improved, your benefits will cease if your condition does not meet the current adult rules.
Tips for a Continuing Disability Review
SSA looks at the original status of your medical condition(s) and compares it to the current status of your medical condition(s) to decide if there has been significant medical improvement. For this reason, it is important that you continue to seek medical treatment for your condition. If you have not continued to seek medical treatment, SSA will likely order a Consultative Exam to assess your current condition. It is usually more beneficial


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Social Security Disability and Unemployment

To be eligible for Social Security Disability benefits, a claimant must not be able to return to past relevant work, nor to do any other work that exists in significant numbers in the national economy. A disability must last at least 12 months or be expected to result in death.

An application for Social Security Disability benefits is an affirmation of your belief that you are entitled to benefits under the above definitions – in other words, that you are not able to work. In signing your application, you affirm, under penalty of law, that you are making no false statements on your application.

Persons who apply for unemployment insurance must also affirm, under penalty of law, that they are making no false statements on their application. Persons who collect unemployment insurance affirm having looked for work each week, and that, if work was found, they would be ready, willing and able to accept it.

Furthermore, there is another fundamental difference between the two programs. State unemployment agencies expect you to look for work only in your field. They do not expect, for example, an accountant to accept work as a truck driver. But Social Security asks whether you can perform any work that is within your ability, regardless of the fact that you have never done it before. Collecting unemployment insurance may be an indication that you are only looking for work in your own field.

On the other hand, SSA recognizes unsuccessful work attempts. This is when a person tries to go back to work but their disability precludes a successful transition. So, for example, if the accountant, rather than collecting unemployment insurance, tried to take work as a cashier but found after a month or so that he just wasn’t able to do it because of his physical or mental limitations, it demonstrates a willingness to try to work at other jobs. Such unsuccessful work attempts tend to strengthen credibility and show you are not just trying to work the system.

In conclusion, an unemployment claim is tantamount to saying “I am able to work,” while an SSA disability claim is stating “I am not able to work.” Both statements are made under penalty of perjury, but both cannot be true, and it may affect your credibility in one or both forums.


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The Social Security Backlog

Recently, there has been a proliferation of articles concerning the growing backlog of Social Security Disability cases, and the regulations SSA Commissioner Michael J. Astrue proposes to address what is becoming an enormous hardship on disabled applicants. It is not unusual for applicants to wait more than three years to get a hearing.

Most often, these claimants have no savings, no income, and no insurance, even for necessary treatment or medications. Unfortunately, before their benefits are awarded, they lose their possessions, go bankrupt, their utilities are shut off, and ultimately are forced to move from their homes with no place else to go. In the worst cases, the claimant’s die.

Since the inception of the disability program in the 1950s, the standard for approval has been intentionally strict. It is designed more to weed out malingerers than it is to help the disabled. A claimant must prove either an illness expected to result in death or inability to do not only past work, but any work that exists “in significant numbers in the national economy.”

According to SSA, in January 2005 nearly 8 million disabled workers and their dependents received DI benefits, a 100% increase since 1985. Another 6 million adults and children receive SSI payments, a 135% increase in the same period.

Nationally, about 750,000 appeals are pending. That is double the number in 2000. The wait time varies by location, but the national average is 524 days. Many offices take much longer. In Omaha, for example, the average processing time is 639 days from date of appeal to the hearing level. Of the 143 hearing offices in the country, 22 have longer processing times.

In 2006, SSA implemented a new Administrative Review Process known as the Disability Service Improvement (DSI) process to address the backlog. Presently, Boston is the only region using the system. The new regulations provided that SSA would wait at least one year (from August 1, 2006) before implementing a second region.

The new rules include an initial application and review by a Federal reviewing official. The right to appeal to an ALJ remains intact. However, the judge’s decision is final unless the claim is referred to the Decision Review Board (DRB). A DRB review remains the final decision at the Administrative level. The Appeals Council will eventually be phased out.

Other changes include a new electronic filing system, presently in use in all 1,338 field offices, taking 20,000 claims per day. SSA is also implementing systems to streamline the updating of medical listings and to close the records in hearings faster by requiring all medical evidence to be submitted at least 5 days prior to hearing. The claimant is to be notified at least 75 days before the hearing, rather than the previous 20.

According to a recent article in The New York Times, about two-thirds of the 2.5 million disability applicants each year are denied at the initial state determination levels. Of the approximately 575,000, who file appeals requesting to be heard before an administrative law judge, about two-thirds win a reversal.

Reasons officials attribute to the high reversal rate include the supposition that many of the claimant’s impairments increase in severity by the time of hearing. The judge gets to meet the claimant face-to-face. The belief is that those who appeal are those with the strongest cases or who tend to get lawyers to help with presentation.


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The Possible Effect of Drug or Alcohol Abuse on a Disability Claim

Whenever a claim for Social Security Benefits under Title II or Title XVI is being evaluated, the Administrative Law Judge must be aware of possible “DAA” materiality on the claim. DAA stands for drug and alcohol abuse. Prior to 1996, a claimant could receive benefits based upon “DAA” (Drug Addiction or Alcoholism) with the conditions that benefits would be paid to a “representative payee” who would manage the funds, that the claimant enter a mandatory treatment program, and that their benefits would be limited to threes.


In 1996, however, Congress enacted the “Contract with America Advancement Act of 1996”, Public Law 104-121. Section 105 provides that "an individual shall not be considered to be disabled ... if alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's determination that the individual is disabled."


The Social Security Administration has acknowledged that there are no exact criteria for when drug addiction and alcoholism are present. However, some courts have concluded that an actual diagnosis of a substance abuse disorder is not required, only that there is some evidence to support a finding of DAA.


The key factor Judges look to in determining whether drug addiction or alcoholism is a contributing factor material to the disability is whether the claimant would still be disabled if he or she stopped using drugs or alcohol. In making that determination, the Judge evaluates whether the claimant’s current physical or mental impairments would remain if the claimant stopped using drugs or alcohol and whether any of the remaining conditions would be disabling. If the impairments would still remain and would be disabling, then the DAA is not a contributing factor.


In order to be a contributing factor to the disability, however, the claimant must be currently abusing drugs or alcohol. The law does not apply to claimants who have stopped using drugs or alcohol. The Social Security Administration considers a one-month period of abstinence to be a sufficient period of time to observe whether the absence of drugs or alcohol has affected the claimant’s condition.


Credibility is always of major importance in disability cases, but it is especially important when a claimant states that the disability is independent of the drug or alcohol abuse. Judges often give great weight to the opinions of the claimant’s treating physicians in their determinations. Thus it is very important for claimants to be truthful about their drug or alcohol abuse. If a doctor feels that their patient is not being truthful, that opinion may appear in their treatment notes. And Judges will review those notes before the hearing. If a Judge suspects that the claimant has not been truthful in the past, the chances of being awarded disability benefits will be severely damaged.

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Residual Functional Capacity (RFC)

When a disability claimant’s impairments do not meet or equal a listing at step 3 of the sequential evaluation process, the Social Security Administration (SSA) is required to evaluate his or her residual functional capacity. SSA defines RFC as “what you can still do despite your limitations.” A Social Security Ruling (SSR) defines it as an assessment of an individual’s ability to do sustained work related physical and mental activities in a work setting eight hours per day, five days a week, or an equivalent schedule.

A claimant’s impairments and related symptoms affect ability to work. SSA evaluates all evidence of record to determine the “most you can do despite your limitations.” Typically, a claimant has completed certain forms which SSA has on file, describing his or her activities of daily living (ADLs). These forms ask questions about how a claimant spends an average day. Abilities: to cook, clean, do yard work, laundry, drive, mow the lawn, take trips, shop, watch movies, work on the computer; all give some indication as to whether those activities can be transferred to a work-like setting. So, for example, if a person states “I do nothing but sit and watch TV for 8 hours per day,” that is some indication, absent further explanation, that the person can sit and hold their head in a steady position for a full workday.

A claimant’s RFC comes into play at step 4 and, if necessary, at step 5 of the sequential evaluation process. At step 4, the question is whether the claimant can return to their past relevant work (PRW). Typically, a vocational expert is asked whether the claimant has the residual functional capacity to return to the type of work they have done in the past. If it is determined they do, the process stops, and a determination of “not disabled” is entered.

In making this determination, the adjudicator looks at the PRW as performed by the claimant, and as performed in the national economy. The Dictionary of Occupational Titles (DOT) is consulted for a definition of, among other things, the type of work performed, and exertional, and skill levels involved in performing the work. If it is determined that a person no longer retains the RFC to return to PRW, the evaluation is used again at step 5, to determine whether there are any jobs in the national economy the person can still do. If there are, the claimant is found “not disabled.”

Given the relative unlikelihood of meeting a listing at step 3, all claimants and their representatives should be prepared for this RFC assessment, in anticipation of steps 4 and 5 of the evaluation process. The importance of development of this aspect of a claimant’s case cannot be overestimated. A claimant should make every effort to obtain questionnaires tailored to their specific physical and mental impairments, and have them completed by their treating physicians. Claimants are often sent to consultative examiners (CEs) by SSA, for the purposes of obtaining just such a report. The CEs usually perform only cursory examinations, and generally determine that, with respect to ability to perform the 7 exertional functions (lifting, carrying, standing, walking, sitting, pushing, and pulling) a person is capable of at least sedentary, if not light work.
SSA has determined there are 1600 separate unskilled sedentary and light occupations in the national economy, most of which can be learned with a short demonstration in less than 30 days, and each of which represents hundreds of thousands of jobs across the nation. This represents a significant job base. It is therefore very important that a claimant be able to provide evidence from their treating physician to counter the RFC findings of the CEs.

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What to Expect at a Hearing for Disability Benefits

The hearing for disability benefits will take place as follows:

• The ALJ will start the record and go over preliminary issues such as swearing in all witnesses.

• The ALJ or your social security attorney will elicit your testimony, which will take up the bulk of the hearing. Whether or not it is the ALJ or your social security attorney depends on the ALJ’s preference. Your social security attorney will have an opportunity to ask you additional questions if necessary.

• If present, the ALJ will ask a medical expert to testify about the severity of your condition. Note that many hearings for disability benefits do not have medical experts. This is neither “good” nor “bad.” Often, it just has to do with the ALJ’s preference.

• If present, the ALJ will ask a vocational expert to classify your past work and whether he/she believes you are able to return to it or any other jobs that exist in the national economy. Again, whether or not a vocational expert is present likely has to do with the judge’s preference.

• The judge will close the hearing for disability benefits.

Your Testimony


Either the judge or your social security attorney will elicit your testimony at the hearing. For purposes of this analysis, we will assume the judge is the one asking the questions. The types of questions asked at your hearing will vary, but will fit into the following basic outline:


· Your basic information (age, living situation, etc).
· Your highest level of education
· Your work history over the last 15 years
· Your disabling conditions
· Your medical treatment/medications & side effects
· Your daily activities/how you spend your day
· Your RFC assessment


Your Work History


It is important to note you should be as accurate as possible in describing your past work. You need not know the name of each employer, or exact dates of employment. Further, if you had several jobs but all in the same line of work (i.e., customer service), it’s enough to say “I worked in customer service” for “x” amount of years.


What is especially important, however, is how you performed your jobs. Think of what level of exertion was needed to do your past work. Did you sit all day at your job? Or did you stand most of the day? Was a mix of standing and sitting required? Were you required to lift heavy objects? What was the heaviest object you were required to lift? Above all else, think about why you wouldn’t be able to return to these jobs. Then, think of the easiest job you ever had and why you wouldn’t be able to do that now. At your hearing, this is exactly what you will need to prove.


Remember, whether or not you are able to find work is irrelevant. The process the judge will use to determine whether you’re disabled asks only whether any jobs exist that you might be able to do after figuring in your age, education, and any skills earned from past work.


One final note on working: if you attempted to work at any time during the application process, please make sure to discuss the specifics of the work attempt with your social security attorney. He/she will need to know for how long you worked, how much you made at your job, and the general duties that were required in order to perform the work. Prepared with this information, your social security attorney will be able to advise you as to whether or not you have a viable claim, and if so, how to argue your case effectively.


Your Disabling Conditions


Don’t forget to describe to the ALJ all of your conditions. Describe symptoms in detail, i.e., where the pain is, what is feels like, how often you feel it, its level of intensity with and without medication, on good and bad days, and how many bad days you have in a month. If you have mental and physical conditions, take time to describe each. Don’t forget other non-exertional symptoms like fatigue, difficulty concentrating, poor memory, fear of dealing with the public, etc.


Above all else, your hearing is not a time to be brave. Many claimants are hesitant to talk about a condition that is embarrassing to them. Remember, the judge as well as your social security attorney and any experts in the room are accustomed to hearing this sort of testimony. Do not be ashamed if you become emotional. Claimants who do not get emotional when talking about things that are difficult may seem disingenuous. Your candor and emotional vulnerability will not hurt your claim. One of the main purposes of the hearing is to give the ALJ and opportunity to gauge whether or not you are telling the truth. Thus, providing the most candid and honest answers is of key importance.


Your Medical Treatment


The judge may ask questions about past surgeries, medical tests performed, specialists you’ve seen, physical therapy you’ve tried, whether you’ve been given a cane or walker to help you walk, etc. The judge will want to know what you’ve tried to do in order to get better. The judge will also want to know what medications you’re currently on, and possibly what others you’ve tried. Don’t forget to talk about side effects from your medications as they can be very important. For instance, if pain medication reduces your pain, but makes it so that you are very drowsy and can’t remember to do simple tasks, this is an important detail. It means, while you can do something to help improve your condition, doing so comes with its own repercussions that further affect your ability to function normally.

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Social Security Disability and Obesity

SSR 02-1p, effective September 12, 2002, provides guidance on SSA policy concerning the evaluation of obesity in Social Security disability claims. This ruling came about as a response to the deletion of listing 9.09 for Obesity, which had once been a part of the Listing of Impairments in 20 CFR, subpart P, appendix 1.

Listing 9.09 first required that a claimant filing a Social Security disability claim exceed a certain weight based on his or her height. Once this requirement was met, the claimant would have had to exhibit one of the five following impairments:

• History of pain and limitation of motion in any weight-bearing joint or spine…
• Hypertension with diastolic blood pressure persistently in excess of 100 mm
• History of congestive heart failure manifested by past evidence of vascular congestion…
• Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight-bearing and persistent edema
• Respiratory disease with total forced vital capacity equal to or less than the value specified…

As of October 25, 1999 when the deletion became effective, a person filing for disability benefits could no longer claim obesity as stated above. However, pursuant to SSR 02-1p, obesity must still be considered in the evaluation process. Listing 9.09 was deleted because Social Security felt the listing’s criteria “were not appropriate indicators of listing-level severity.” In other words, the criteria set forth in listing 9.09 “did not represent a degree of functional limitation that would prevent an individual [applying for disability benefits] from engaging in any gainful activity.”

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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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