DISABILITY BENEFIT RECOVERY

When Social Security doesn't have enough medical evidence to make a decision on a disability case, they usually order a consultative examination.  The claimant will be sent to a doctor who is in private practice but performs Social Security examinations under contract (for a fee).  My experience has been that in about 90 percent of cases, the consultative examination will not support a disability claim.  There are several factors involved, which I will state briefly (in my opinion). The doctor has never seen the patient before. This is their first meeting. The doctor's time is very limited.  Some doctors spend as little as 15 minutes on a consultative exam. The doctor may have a conflict of interest since he/she is being paid by Social Security, not by the claimant. The doctor may only be looking for obvious signs of disability which cannot be discerned in a brief examination with no X-rays, lab tests or other diagnostic support. The doctor will not listen to the claimant

There are basically three ways to win a Social Security disability claim.  One way is to meet or equal one of the listings.  The "listings" refer to the Code of Federal Regulations, Part 404, Subpart P, Appendix I (often called "Appendix I" or simply "the listings."  This appendix classifies impairments according to fifteen body systems, with each impairment given detailed criteria for the severity required for disability.  It is often very difficult to meet or equal a listing because they are so precise and defined. The second way to win a disability claim is to qualify under a "grid rule."  Grid rules refer to Appendix 2 of the same section of law referred to above.  The "grid" considers the claimant's residual functional capacity (what he/she can still do in terms of physical limitations/ability), age, education and skill level. When all of these factors combined direct a finding of disabled , the case has been won.  I have fou

Suppose you are receiving Social Security disability benefits but you are improving and thinking of going back to work.  How can you venture back into employment if you are unsure whether you will be successful?  What is your condition worsens and you have to go back on disability later? Social Security has the answer for this situation.  It's called "Ticket to Work."  Very generally, here is what Ticket to Work offers.  You may continue receiving full disability benefits while you attempt to work.  When you accumulate 9 months of "successful work activity," (the 9 months do not have to be consecutive) - your disability check will be discontinued.  However, you may elect to keep receiving Medicare benefits for several years, even while working.  If you become disabled again within a certain period of time, you may resume your disability benefits. Ticket to work provides a safety net for people who are disabled but recovering - and want to return to work with

The Forsythe Firm understands that denials are likely - but disturbing.  We want you to know there are options when your Social Security disability or SSI claim is denied.  In Alabama, there is a relatively streamlined appeal process.  Our firm can explain that process and we can file the paperwork for you, too.  We will obtain additional medical evidence, prepare your case for hearing, then go with you to make your case before an administrative law judge who has the authority to award your benefits. No cost to you unless we win!  Our "baby," Molly with her "I'm not happy" face If you would like a free, frank discussion of your options after a Social Security denial, please contact me at the Forsythe Firm.  We win a majority of the disability cases we represent.  There is never a fee for our service until you have collected past due benefits.  "We don't get paid until you do."  Log on to our Website here to view real testimonials from o

If there were three fundamental statements I could make about Social Security disability claims, I would choose these 3 statements: There is a good chance that your initial disability claim will be denied. You should always appeal a denial promptly. Good representation for your appeal is money well spent. You actually don't spend any money for good representation.  You pay no money up front and you pay no fee until you collect a cash settlement on your back pay.  Thus, for every one dollar you pay your representative, you are guaranteed to receive $4 for yourself - since his fee is limited to 25 percent of your back pay. If you pay your representative $100, you must first collect $400 for yourself. That's about as risk free as it gets. Call my firm if you feel we can be of help to you in obtaining the Social Security disability benefits you deserve. You can reach me directly at (256) 799-0297.    

Compassionate allowances permit Social Security to approve claims quickly (often in a week or less) for applicants suffering from one of 200 incurable diseases. On December 6, 2012, Social Security Commissioner Michael Astrue met in the Hart Senate Office Building in Washington D.C. to announce reaching the milestone of 200 diseases that now qualify for a speedy compassionate allowance approval. In order to qualify, an applicant must have one of the 200 illnesses on the list.  There are still many incurable and tragic diseases that are not on the list and thus do not qualify for the rapid award of benefits.  However, the program does provide very quick approval for thousands of applicants each year who suffer from one of the 200 conditions listed. To see the complete list of diseases which qualify for a speedy compassionate allowance disability award, go to the following website:   http://www.ssa.gov/ pressoffice/pr/compassionate- allowances200conditions-pr. html  

The fee charged by a representative is regulated by Social Security and must be approved by the judge who awards disability benefits.  In most cases the fee has been agreed upon in a contingency fee agreement.  Even so, the judge must still approve of the agreement before a charge can be made. To put fees into perspective, take a look at how much a representative may charge a client for Social Security disability representation - in relation to the amount of back pay the claimant receives. Amount of Back Pay           Maximum Fee $5,000                             $1,250 $15,000                            $3,750 $30,000                            $6,000 $35,000                            $6,000 $45,000                            $6,000 Compared to almost any other type of legal representation, the maximum allowable fees in Social Security disability cases are relatively low.  And if you don't collect retroactive or back pay, you can't be charged any fee at all.

Your representative will ask you several questions during your Social Security disability hearing.  Sometimes claimants want to know, "Why are you asking me all these questions?" There is a simple reason why I ask questions of my claimant at a disability hearing.  The claimant is sworn  and able to provide testimony.  I am not.  I cannot give testimony about pain levels, trouble walking or bending, or the ability to follow instructions, for example.  But he or she can give that testimony.  Therefore, I ask questions that give the claimant an opportunity to enter testimony into the record that I believe will help their case and get them a fair decision. For example, I recently asked a client during her hearing, "Do you experience difficulty finishing things that you start?"  I knew the answer to that question because I had read her file.  But I wanted her, the claimant, to testify that her concentration was less than it should be.  If I ask a claimant this questi

Here's a question from our mailbag this week:   I hear people speak of a "closed period" disability claim with Social Security.  What is that?" A "closed period" of disability simply means that the disability began on a certain date and ended on a certain date.  A closed period could award back pay for a disability that was in the past but would award no future or continuing benefits. Let's say that Clem Claimant hurt his back at work and had to stop working for back surgery.  Let's say he stopped working on June 1, 2011 and recovered, then he began working again on July 1, 2012.  Since Clem was off work for the required 12 months minimum, he could seek benefits beginning June 1, 2011 and ending June 30, 2012.  If approved, he would receive back pay for the 13 months - minus the 5 month waiting period.  (In this example he would actually receive pay for 8 months, 13 months minus the 5 months). Since Clem has gone back to work fu

Social Security disability is an insurance plan mandated and paid for by the US Government under the Social Security Act.  Like any other insurance plan, it is funded by "premiums" or payments made to the Social Security Trust Funds.  In the case of disability insurance, it is paid for by FICA taxes.  The employee has taxes deducted from his/her wages, then the employer matches that tax and pays into the Social Security Disability Trust Fund.   In order to have current disability insurance with Social Security, the worker must have worked long enough and paid enough FICA taxes to be insured.  The worker must have accumulated a sufficient number of "Quarters of Work" to be insured.  For most workers over age 40, the worker must have worked at least 4 out of the last 10 years to be covered.  Rules are different for very young workers. Social Security disability insurance (SSDI) is often referred to as Title II (two).  SSDI does not require a claiman

I work in Nashville regularly.  No, I'm not in the country music industry.  I'm a Social Security disability advocate. I drive over to Cumberland Bend or down to Franklin regularly to help clients in Social Security disability hearings.  That's because 7 out of 10 disability applications filed in Nashville and Middle Tennessee will be denied.  You will very likely have to appeal your case in order to get benefits. My firm will provide you with an experienced advocate to develop your case then attend the hearing with you.  We win a majority of the Social Security disability cases that we represent. And there is no upfront cost and no fee unless you win your case and collect back pay in the process.  So the process has no risk for the claimant. For more information on collecting Social Security disability in Nashville or Middle Tennessee, please click on the link below.  It will take you to our website for Music City USA and explain how we may be able to he

Many people assume that a Social Security disability case is over when the hearing has been held.  This isn't always the case.  Often there is post hearing work that should be done to achieve the best chance of a favorable decision. Everyone at a disability hearing works under pressure.  This includes the claimant, the representative, the vocational expert and even the administrative law judge.  Hearings are generally limited to less than one hour.  The judge will ask questions that place the claimant under stress to answer correctly.  The representative or attorney will be asked to respond to procedural issues or points of law that place him or her under pressure.  The judge must constantly conduct the hearing so that it follows Social Security laws, rules and regulations.  Further, the judge must form accurate hypothetical questions for the vocational expert based on the medical and vocational evidence in the file and upon the claimant's testimony.  The vocati

There is usually a wait of several months to obtain a hearing after a Social Security disability appeal is filed.  However, there are plenty of reasons to submit all your evidence in the case as early as possible. I recently appealed a Social Security decision and asked for a hearing.  I filed the request for hearing in September in the routine manner.  In December the case was reviewed and approved without a hearing.  The appeal was thus resolved in less than 90 days.   It doesn't always happen that way, obviously, but when there is plenty of evidence, it is always best if you can submit it right away.  In fact, I find there are at least two advantages to submitting medical evidence early: One, it provides a more likely opportunity for an early review of the case.  Two, it gives the representative or attorney an opportunity to write a thorough brief for the Office of Disability Adjudication and Review (ODAR). Often, the early bird gets the.....review!  

I recently represented a lady in a disability hearing.  She had applied a couple of years ago and been denied.  She had appealed, went to the hearing unrepresented and was denied again at the hearing.  Now, she had a second hearing and had prepared herself to be denied again.  When we entered the hearing office and were told the name of the judge assigned to hear the case, my client's face turned white.  "That's the same judge who denied me at the last hearing," she said. I fought back a feeling of despair.  The same client, the same facts, and the same judge?  But I tried not to let my client see my concern  "Don't worry," I said, "We'll do all right." Upon leaving the hearing my client was grave.  "That judge had the same look on his face as he had at the other hearing," she said.  "I think he's all set to deny me again."  She expressed how much an award would mean to her financially because she was surviving o

Back pay can be generated in two ways in a Social Security disability claim. First, there is retroactive pay.  This pay accumulates from the "established onset date" (the day Social Security finds that you became disabled) until the date of decision.  In other words, if you became disabled on June 1 and Social Security did not make a decision for 6 months, this would generate some retroactive pay.  In this case, retroactive pay would only be one month, since there is a 5-month waiting period on Title II disability.  In an SSI claim, however, benefits would begin the month after the application date. A second way back pay occurs is during an appeal.  If Social Security denies your claim (either disability or SSI), you are entitled to an appeal.  It usually takes at least 12 months to complete an appeal.  During the 12 months of the process, your benefits continue to "accumulate."  If your case is eventually approved, you can collect pay for all those months you h

Through its "Ticket to Work" program, Social Security tries to encourage people on disability or SSI benefits to return to work.  You can try to work without immediately giving up your disability or SSI benefits - and without losing your Medicare coverage (if you are covered by Medicare). You are allowed 9 "trial work months" within a five-year period.  The months do not have to be consecutive. You will continue to get full disability or SSI benefits during the trial work periods until you accumulate 9 months of successful work.  Any month in which you earn at least $720 will be considered 1 month of successful work.    Once you have accumulated 9 months of successful work, your disability or SSI benefits will be stopped for as long as you continue to work.  However, if you again become unable to work within a 5 year period, you can request expedited reinstatement of benefits without filing a new application.  While Social Security makes a decision

One of the reasons for taking your lawyer or representative with you to a Social Security disability hearing is to avoid the legal pitfalls that you may not see, or not see in time.  For example, I was at a hearing recently where the judge asked the claimant when she stopped working.  Then the judge said, "That's about the time time you got married, isn't it?"  And the judge followed up with, "So on that date you felt that you could afford to stop working?" The pitfall there is obvious but the claimant was under so much stress that I don't believe she caught it.  The judge may have been making an inference that the claimant quit working on a particular date, not because she was disabled, but because she could afford not to work any more. At redirect, I questioned the claimant to clarify what she meant.  "You are not suggesting that you were able to continue working but that you stopped because of your marriage are you?"  The claimant replie

Social Security uses a 5-step sequential process to determine whether an individual is disabled under their rules.  The burden of proof at steps 1 - 4 rests with the claimant.  However, at step 5 the burden of proof shifts to the Social Security Administration. The claimant bears the burden of proving that he is not engaged in substantial gainful activity; that he has a serious medically determinable impairment; that he meets a disability listing or has a functional capacity that prevents work; and that he cannot perform any of his past relevant work. Then, the burden of proof shifts, at least substantially, from the claimant to the Commissioner of Social Security.  At the 5th and final step, Social Security must prove that the claimant is not able to perform any other work which exists in the local, regional or national economy.  It is not sufficient for Social Security merely to make this argument.  They must demonstrate that a significant number of jobs exist that the claimant

Posted by:  The Forsythe Firm, Social Security Disability Advocates A question we often get is, "Will alcoholism qualify me for Social Security disability benefits?" Or, "Will alcoholism disqualify me for Social Security disability benefits?" The answer to both questions is, No. A person may not qualify for Social Security disability merely on the basis of alcoholism or other substance abuse.  On the other hand, a person should not be disqualified merely on the basis of alcoholism or substance abuse. The definitive legal ruling on that is found in 20 CFR §404.1535:  "The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol." So an individual cannot qualify for benefits on the basis of substance abuse, neither can he be denied benefits for substance abuse that does not ma

Posted by the Forsythe Firm (256) 799-0297 Social Security Disability Representatives in Huntsville, AL The purpose of a Social Security disability appeal is to restore and recover all of your disability benefits, including back pay.  When Social Security sends you a letter stating that "you are not disabled under our rules," your appeal should address the issue of back pay.  You should prove that you were disabled at the time you filed the original application - or even further in the past if that is the case. Too many times we see claimants win current benefits but forfeit all their back pay, which could be thousands of dollars.  An appeal should have a goal of protecting and collecting back benefits as well as future benefits. Back pay hinges on the date of alleged onset.  This is the date the claimant states that he or she first became unable to work.  Under Social Security rules an applicant may go back up to one year prior to the date of application under Title

It seems everyone is loading up to take aim at the integrity of the Social Security disability program.  Senate investigations into Social Security are nothing new but usually they are held by the Senate Finance Committee.  NOSSCR's Social Security Forum reports in their September 2012 edition that on September 13 2012, the Permanent Subcommittee on Investigations of the Senate Committee on Homeland Security and Government Affairs held a 3 hour hearing on the quality of favorable disability decisions handed down by Administrative Law Judges.  Here is what disturbs me about this "investigation": The Senate subcommittee "investigated" only favorable decisions.  This reinforces the idea that Social Security's main focus is not making sure that everyone who deserves Social Security disability gets it; the main focus is making sure that nobody gets Social Security disability that isn't supposed to. Rarely, if ever, does a government committ

Grid Rules is a term referring to the Medical-Vocational Rules found in CFR 20 404, Subpart P, Appendix II.  They guide a finding of either "disabled" or "not disabled" based on the claimant's exertional capacity* and vocational factors such as age, education and transferable skills. The "Grids" divide age into categories as follows: Advanced age (55 and over) Closely Approaching Advanced Age (50-54) Younger Individual (45 - 49) Younger Individual (18-44) As a Social Security disability case is being prepared, it is very important to refer to the Grid Rules. The judge who decides your case will likely use them as a guide if your medical condition does not meet a specific listing or your exertional capacity is sedentary or greater. Grid Rules do not apply to impairments caused by strictly mental disorders. *Exertional capacities are the classifications of work based on such factors as lifting, carrying, pushing, pulling, etc.  The clas

Social Security has a 5 step sequential process to determine disability.  In preparing your claim we look at all 5 steps and develop a factually based approach to meet each step.   Advocates are trained to try to have 3 reasons why the claimant cannot work at any past work or other work.  Of course, medical evidence must support those reasons. Since we know what evidence Social Security will look for, it makes it easier to build the case.  We simply have to be sure that each of the 5 steps are covered with good reasons why the claimant cannot perform work related functions.   A "fully favorable" claim is one that awards the claimant all of his/her benefits, including all of the back pay entitled.

I've been an advocate for Social Security disability claimants for years.  I try to use all of the rules and regulations to help my clients, whom I feel are truly disabled, to get their disability benefits.  If you read the blog post I wrote earlier about "Why Your Claim Was Diened," you will see a number of things that an advocate can do to increase your odds of winning a Social Security disability claim.  Using those proven techniques helps to reduce the odds of getting denied.  Without an experienced attorney or advocate working with you on a claim, Lady Luck plays a much larger role in how your case gets decided. At the initial application level, it depends a great deal on which disability specialist examines your claim down at the determination service.  Testimony before the US Ways and Means Committee on May 20, 2012 argues that up to 60 percent of all denied Social Security disability claims could have been awarded--if they had been reviewed by a different examin

Being denied for Social Security disability is the rule, not the exception.  The latest Alabama statistics show that 74.9 percent of all initial applications will be rejected at the first level.  The reason is that the review of a disability application on the first level is rather mechanical.  A disability specialist, who is not a doctor, compares your medical file with the "disability handbook."  And very few applications will meet a listing for disability.  All kinds of things can go wrong in this approach: The medical evidence may not be complete.  All it takes sometimes is for one doctor to fail to send in your file. The medical evidence may not be legible.  I get medical records all the time that neither I or anyone on my staff can read. The medical records usually do not give the vocational implications of your condition:  they will not say that you are limited to lifting 10 pounds, sitting for 1 hour at a time, or standing for only 10 minutes at a time.  That may

Nicole Maestas, a RAND Corp. analyst, told the House Ways and Means Committee on May 20th that 60 percent of denied Social Security applications could have been awarded if they had been reviewed by a different examiner.   In other words, whether your disability application got denied or approved depends on which examiner you happened to get. As an experienced disability advocate, I believe there is a lot of truth to this statement.  At the initial application level, a state examiner may be handling 80 to 100 claims at any given time.  There's a limit on how much time they can invest on any one claim.  And some examiners are better than others. Qualifying for Social Security disability is not enough.  You have to convince an adjudicator that you qualify.  Social Security applications and hearings are governed by laws and rules.  But the average applicant doesn't understand them.  That's why an experienced disability advocate is so important, especially in these days of

Earlier this year, the US Social Security Administration told US administrative law judges (ALJs) that they cannot use the internet to investigate disability claimants.  Senator Thomas Coburn (R-OK) responded by saying this ban removes a valuable tool to investigate fraudulent applications for disability benefits. Sen. Coburn used this example, which I have paraphrased.  Suppose an ALJ looks up an applicant on Facebook.  There he finds pictures and discussion of the applicant playing sports or participating in his bowling league.  If the applicant has claimed severe back problems on his application, his credibility is suddenly called into question. I caution my clients to stay off of Facebook and the social media and I believe that is still very good advice.  It remains probably the first place investigators look when trying to deny benefits (even disability claims with private insurance companies). Use common sense but don't become paranoid.  For example, it's normally a

If there's a Social Security disability hearing in your future, here is what you must prove to obtain your benefits. You are not working and have not worked at substantial gainful activity* since your alleged onset date--the date you say you became disabled. You have a severe impairment that has lasted or is expected last for 12 consecutive months or more. If you do not meet one of the Social Security listings, then your residual function capacity (RFC) must be determined. It is best if you bring documentation from your own doctor concerning functional limitations. You are not able to perform any of your past relevant work because of your condition(s).  This includes all work you performed at substantial gainful activity levels during the past 15 years. You are also not able to perform any other work based on your residual functional capacity, age, education, etc. The "easiest" work classification is sedentary work - which is work that can be performed mostly

Our firm frequently handles Social Security disability claims for individuals with a mental or emotional impairment.  I think there are 2 challenges to winning these type of claims for our clients. First, we should direct the claimant to good medical treatment.  Too often people will ignore psychological problems - sometimes because they are self-conscious, or perhaps because they think they can't afford treatment.  The lack of medical treatment not only hurts the ability to win a Social Security disability claim, it also results in the patient not getting better.  Our office will gladly provide you with non-profit clinics or mental health providers that may help at a fee you can afford to pay. The second challenge is, we have to show the results of the impairment in vocational terms.  How does this condition prevent the individual from working?  What mental functions are impaired?  Is it concentration, mood, memory, the ability to follow instructions, or the inability to get al

YOU CANNOT GET SOCIAL SECURITY DISABILITY BECAUSE..... you cannot perform your past work (if you can perform any other work). you don't have a driver's license or can't drive. you can't find any work that you can do. there are no jobs available in the city you live in and you don't want to move. you don't want to work in a particular field or type of work there are no jobs open at this time. the economy is horrible and nobody is hiring. you are over-weight or obese. you are alcohol or drug dependent (unless you have an additional, unrelated impairment). you are a diabetic. your doctor says you cannot work and should get on disability. you need surgery that will prevent working for 6 to 8 months. your family and friends will testify that you are not able to work. Social Security requires that a claimant have a serious and medically determinable impairment, supported by medical evidence, that will prevent any  gainful employment for a period of a

The single largest category of awards for Social Security disability are musuloskeletal disorders, which make up 33.8% of all disability awards.  These include common back disorders such as back pain, herniated or bulging discs, nerve impingement, etc. The second largest category is mental disorders at 19.3% of all disability awards in 2011.  The second chart breaks out the specific categories of mental impairments awarded.  The largest category, mood disorders, account for 10.2%. These numbers represent Social Security's experience in particular categories.  They do not represent a claimant's chance of winning a claim based on a particular disorder.  For instance, mental disorders make up 19.3% of all disability awards.  That does not mean that an individual has a 19.3% chance of winning a Social Security claim based on a mental disorder. I constantly advise claimants not to put too much emphasis on "my odds of winning."  Every Social Security disability c

For years, fibromyalgia was a little understood disorder and some Social Security judges did not consider it to be a "medically determinable impairment," for purposes of disability benefits.  Judges often ruled that disability could not be established merely on the basis of symptoms and that a medically determinable impairment must be deomonstrated by medical signs and laboratory findings.  There is no laboratory test for fibromyalgia.  It is usually diagnosed by exclusion of other disorders and by locating tender "trigger points."  Many Social Security adjudicators simply did not believe that the disease existed - or if it did - it was not severe enough to cause disability. In July 2012 Social Security issued Ruling SSR 12-2p on fibromyalgia.  This ruling states that fibromyalgia may be a medically determinable impairment when established by appropriate medical evidence and it can be the basis for a finding of disability.  Social Security has instructed all its a

The one certain thing about a Social Security disability hearing is that nothing is certain.  I've seen disability hearings fall apart and I've heard all the horror stories from other advocates.  We all have one or two.  That brings to mind some excellent advice that an attorney recently shared at a Social Security disability conference. His advice was, essentially, have a plan, have a back up plan, and have a third plan ready.  That is really the best way to approach a hearing.  Go in with a logical theory about how the claimant is disabled under Social Security law.  But don't put everything at stake with only that one theory.  Have a second plausible theory ready and waiting.  Finally, have a third theory to explain why the claimant cannot work. My experience has been that hearings usually go well at steps 1, 2 and 3.  Step 1, is the claimant working?  That's easy.  Step 2, does the claimant have a severe impairment?  That's not too hard to establish.  Step 3