Monday, April 28, 2014

The Three Pillars of a Social Security Disability Case

In my "other life" as a non social security disability lawyer I am reading "The Three Pillars of Zen" by Roshi Philip Kapleau. Last week, as I finished preparing a claimant for her upcoming hearing and went back home to catch up with some reading, I decided that the title of this week's blog title will be "The Three Pillars of a Social Security Disability Case".  It occurred to me that claimants need straight forward guidance when preparing for their cases.  I believe that every social security disability claimant must focus on three basic aspects or "pillars" in order to win benefits.  Unfortunately, claimants spend too much time wandering around the complicated maze of social security disability law and fail to focus on the most important points needed to succeed.

Here are the three most important areas that a claimant must focus on in order to be able to present a winning case: 1.  Work History and Skills Acquired, 2.  Daily Activities and, 3.  An estimate of Your Limitations Based on Medical Findings.   

A large number of claimants claimants who call my office looking for help are unable to provide me with much information in these three areas.  Most callers seem to be overly concerned about their specific medical condition and their diagnosis.  The actual medical diagnosis not as important as most people think.  This might sound shocking but as long as the claimant is: receiving adequate medical care, follows up with all medical conditions and takes the prescribed treatment; he or she should not have to worry too much about the medical side of the case.  

I believe that claimants would have a lot more success in their cases and would be able to obtain better legal services, if they focused more in these three areas than in any other aspects of their cases.  Here is a brief explanation of each one of these three areas or pillars:      

1.  Provide Your Work History and Skills Acquired:  Social Security looks at the jobs that a claimant performed in the 15 years prior to the time when he or she became disabled.  For this reason, it is essential for all claimants to remember all the jobs held during this period of time.  Claimants who cannot remember what jobs they held during this period of time usually make very bad witnesses.  What is important is the nature of the work performed, not its actual title or the name of the company where it was performed.  Be prepared to describe the specific duties performed with specific emphasis on the physical requirements of the job.  For example, be prepared to answer questions such as whether the job was performed standing up, sitting down and whether it required any lifting of heavy objects.  Claimants will also be required to provide estimates such as the highest weight lifted and the number of hours that the claimant was required to stand or walk.  Also, a claimant must be ready to state the highest grade completed and whether he or she received any specialized training.      

2.  State Your Daily Activities:  Social Security places a lot of emphasis on the daily activities engaged in by claimants.  Based on a claimant's daily activities, social security will infer whether a person is capable of working or not.  If a person states that he or she is able to perform all major house chores without any problems, it is very unlikely that social security will grant him or her disability benefits.  Also, keep in mind that the ability to do activities which are very demanding physically are a clear indication that the claimant is able to work.  Therefore, if a claimant is able to do yard work, take care of children throughout most of the day and go on far way vacations, he or she is probably not disabled.

3.  Estimate Your Limitations Based on Medical Findings:  Social Security needs to know your physical and mental limitations.  Therefore, a good claimant must be able to provide estimates in these areas.  For example, a claimant must be able to provide estimates such as: how far he or she can walk or stand or, how long can he or she concentrate.  In order to win the case, these estimates must be consistent with the medical record and the doctors' opinions.    

Monday, April 21, 2014

SSDI Enrollment Has Stopped Growing

Over the past year, Social Security Disability programs have been under intense scrutiny.  SSDI critics have created an atmosphere of hysteria alleging that disability rolls are growing out of control and that in 2016, it will run out of money.  Many conservative business publications such as the Washington Times and Forbes magazine have been instrumental in waging this assault against Social Security Disability.  However, the truth about what has really happened with the raise in disability claims is finally coming out.  This past week, a blog in the Wall Street Journal presented statistical evidence that shows that the raise in Social Security Disability benefit rolls might be hitting a plateau.  (See Has Social Security Disability Enrollment Hit a Plateau? by Damian Paletta and Josh Zumbrun)  

What critics of the Social Security Disability program have failed to explain to the general public is that the sharp raise in claims since 2004, as well as the current plateau that it is currently experiencing, was forecast years ago by program analysts.  The raise in claims was generated by demographic changes, not by fraud and abuse or, by the economic downturn.

While the Wall Street Journal Blog does not fully acknowledge that demographics changes have been the true cause of the sharp rise in disability claims, it certainly confirms that the program is not growing out of control as it had been originally reported.  Another important fact mentioned by the blog is that the amount of money that is being paid to Social Security Disability Lawyers and representatives has definitely declined.  It would be interesting to know whether this decline in fees paid to lawyers is also due to a trend by ALJ's and agency examiners to change the disability onset dates alleged by applicants; this practice has the effect of reducing the amount of back due benefits paid to applicants and the amount of money paid in legal fees. 


Saturday, April 12, 2014

Social Security Tries To Collect an Overpayment Made 37 Years Ago!

Its tax season and the SSA is, once again, aggressively intercepting the tax refunds of those who they claim have received an over payment of benefits.  However, as most social security lawyers know full well, these attempts to collect old debts are not always fair.  Just a few weeks ago the tax refund of a Mary Grice, a Maryland resident, was stopped because of an alleged over payment that someone in her family allegedly received 37 years ago when she was a minor.  

One of the most troubling aspects about this case is that the SSA has not been able to identify who in Grice's family received the over payment.  (Grice was 4 years old when the over payment was made.)  Grice filed a lawsuit against SSA alleging that the government violated her due process rights by holding her responsible for a debt allegedly incurred under her father's Social Security number.  It was about time someone had the guts and the resources to take the incompetent bureaucrats from the SSA to Federal Court!    

In response to this and other scandalous stories of Social Security's outrageous attempts to collect old debts, Sens. Barbara Boxer (D-Calif.) and Barbara A. Mikulski (D-Md.) have asked the SSA to stop its practice of intercepting federal and state tax refunds to cover overpayments that the agency says it made to families more than 10 years ago. “Grice and other families like hers are unfairly being held responsible for decades-old errors at the Social Security Administration — even though many of these taxpayers were children at the time the error was made,” Boxer and Mikulski wrote. “Too many of these families are now finding themselves trapped in a mess of paperwork and red tape.”  

Thanks to Ms. Grice, her attorney Robert Vogel and, Senators Boxer and Mikulski for taking on this fight on behalf of all of those who are constantly abused by the arrogance and ineptitude of the Social Security Administration.

Monday, April 7, 2014

Social Security Issues New Ruling on Chronic Fatigue Syndrome (CFS)

Effective April 3, 2014, the Social Security Administration will adopt a new ruling regarding the evaluation of Social Security Disability cases involving chronic fatigue syndrome also known as CFS.  (SSR 14-1p)  To read the full ruling click here.  This ruling replaces the prior ruling on CFS issued in SSR 99-2p.  

A Social Security ruling is a decision by the SSA which is supposed to be followed by all disability adjudicators including judges.  However, a ruling does not have the same level of authority as statutes, regulations or case law.       

The purpose of the new ruling is to clarify how social security develops evidence to establish that a person has a medically determinable impairment (MDI).  This new ruling takes into consideration the medical advances and the latest research on the diagnosis and treatment of this condition.  The ruling relies on the definition that the Centers for Disease Control (CDC) uses for chronic fatigue syndrome.  The ruling states that CFS is characterized as "a syndrome that causes prolonged fatigue lasting 6 months or more, resulting in a substantial reduction in previous levels of occupational. educational, social or personal activities".      

SSR 14-1p is very important because it recognizes the existence of a disease that many in the medical community have doubted as a legitimate illness.  The fact that the Social Security Administration has issued two rulings regarding CFS reinforces the idea that this disease is real.  Unfortunately, other diseases such chronic lyme disease have not been acknowledged by a Social Security ruling.  Social Security Disability Lawyers around the country are anxiously waiting to hear whether the SSA will address lyme disease in a future ruling.