DISABILITY BENEFIT RECOVERY

SHOULD YOU ASSUME THAT SOCIAL SECURITY DENIALS ARE CORRECT? You applied for Social Security disability.  They sent you to a doctor for an examination, then denied your benefits.  Should you assume that Social Security made the correct decision?  No.  You should assume they made a bad decision because they probably did. In more than 40 percent of denials which are appealed, a judge will review the evidence and overturn the denial to award full benefits to the claimant.  In simple terms, Social Security got the first decision wrong. Never assume a denial by Social Security is correct.  Assume it is wrong and can be overturned. What is the biggest mistake you can make after being denied by Social Security?  Failing to appeal the denial within 60 days is the single biggest mistake you can make. What are the risks if I appeal and lose?  There is no risk.   In an appeal, you have everything to win and nothing to lose.  If you do not win the appeal, your legal repre

When individuals apply for disability, Social Security will often refer them to one of their contract doctors for a consultative examination.  More often than not, the doctor will not find any disabling impairment.  As a result, Social Security will deny benefits. However, the opinions of these doctors are often easily refuted in court and claims that were denied on the basis of their "examinations" may be overruled and approved. Here is what you should know about these superficial consultative exams by Social Security: 1)  The exams are usually brief, superficial and insufficient to determine if you are able to work. 2)  The law requires that more weight be given to the opinions of your own doctor than those of the consultative doctor. 3) A one-time examination is often legally insufficient to form a conclusion about disability. 4)  Social Security's doctor is seldom a specialist, and even if he is, not a specialist in your disabling impairment. 

Social Security uses an obsolete publication to identify jobs that a disability claimant may be able to do.  These jobs, in turn, are often used to deny disability claims.  The publication required by Social Security decision makers is The Dictionary of Occupational Titles (DOT) , first published in the 1930s and last updated in 1993.  The DOT describes 12,569 jobs.  Many of them are obsolete, from a bygone era.  Here are a few of the more ridiculous jobs found in the DOT.  The DOT code number is given, to prove this is no joke. Horse Identifier   DOT Code 153.387-010 Horse and Wagon Driver  919.664-010 Butter Melter   523-585-010 Animal Impersonator   159.047-018 Bucket Chucker   664.685-014 Belly Roller   583.685-094 Side Splitter   525-684-018 Worm Picker   413-687-010 Egg Smeller   521.687-042 Bowling Ball Weigher   732.487-010 And my personal favorite.... Coach Driver, DOT Code 349.677-014.  The DOT job description reads:  "

1)  At what age may I apply for Social Security disability (SSDI)?  Answer:  Adults may apply any time before your full retirement age.  (If you were born in 1948, for example, your full retirement age is 66).  Children may apply any t ime prior to age 18 .  There are special rules for adults who became disabled prior to age 22. 2)  What monthly benefit may I expect from SSDI?  Answer: The benefit amount will vary based on your average wages and work history.  The maximum monthly benefit in 2016 is $2,639.  The average monthly benefit is $1,166. 3) Can my spouse or dependent children also receive benefits?  Answer:  Yes, dependents may qualify for benefits based on the wage earner's disability. Dependent grandchildren may also be eligible. A spouse who is caring for a disabled wage earner's dependent children under age 16 may also qualify.  4)  Will I get Medicare insurance with my disability benefits?  Answer:  Yes but there is a waiting period.  Medicare s

You Must File a Timely Application.  You must apply for Social Security disability benefits within 5 years after you stop working.  Your insured status will expire, making a new claim impossible for an impairment that began later.  If there are gaps in your work history, you may have even less time to file a new claim.  Don't wait too long to file after you stop working. You Must Have Enough Quarters of Work.  You become an insured person under the Social Security Act by working and paying FICA taxes.  Most adults need 20 quarters of work to be covered.  These 20 quarters generally must have been accumulated within the most recent 10 year period prior to filing a claim.  Very young individuals might need less than 20 quarters of work. Your Disabling Condition Must Last At Least 12 Months.  Short term disability lasting less than 12 consecutive months is not covered by Social Security.  You must have an impairment that has lasted, or can be reasonably expected to

My firm wins cases frequently based on mental or psychological impairments, ranging from depression to PTSD to schizophrenia.  But mental impairments may be difficult to prove.  Here are a few things that can help the case: 1)  Visit the doctor regularly and follow appropriate treatment, which may include counseling or medications. 2)  See a specialist, such as a psychiatrist or licensed psychologist, if possible.  They carry more evidentiary weight than general practitioners. 3)  Try to get a professional opinion in writing from your doctor about how your mental impairment restricts your ability to perform work-related activities.   The more specific the opinion, the more helpful to your case.  There are forms that may be used for this purpose and they cover all the bases. If you have no income and simply cannot go to a doctor or mental health clinic, then ask Social Security to send you for a consultative examination.  This isn't as good as seeing your own doctor but it

Social Security nearly always calls a vocational expert to testify at hearings.  The purpose is to help the judge understand what type of jobs and how many of them are available in the economy--based on certain assumptions or hypothetical facts.  The practical result may be a denial of benefits. The vocational expert will usually testify that there are jobs that a claimant in a similar set of circumstances could still perform, thus potentially disqualifying him for benefits at Step 4 or 5 of the sequential evaluation process.   Here are some things to know about vocational testimony: A certain number of jobs will be provided under DOT codes (Dictionary of Occupational Titles). However, these job numbers do NOT reflect how many jobs are available per DOT code, as you might believe.  The number of jobs reflect the number of jobs available in a larger grouping of SOC coded job categories which contain multiple DOT codes. Also, if presented with the proper questions, the vocatio

In about 20 percent of Social Security disability cases, the agency will send claimants to one of their contracted doctors for a consultative examination (CE).  This usually occurs when there is limited evidence from the claimant's own treating doctors. Social Security contracts with doctors in private practice to perform these exams.  Here is generally what to expect at a consultative exam (CE): It will be brief.  The doctor may spend as little as 15 minutes with you.  Usually there are no labs/ tests. The doctor has been provided with a checklist of things to look for.  He/She will focus only on what is on the list. This doctor will not provide any treatment or prescribe any medications for you. CEs are often not helpful for the claimant. Here are a few tips that may help the examination go smoothly: If you cannot attend the examination, call the Disability Determination Service (DDS) which scheduled the exam as early as possible.  This should only be for an

In my opinion, 99 percent of Social Security disability claims are lost by failing to prove a restricted Residual Functional Capacity (RFC) , either in the application, or at the hearing.  There are a few clai ms lost to procedural problems that have nothing to do with RFC, but very few. The Residual Functional Capacity (RFC), simply put, is the most you are able to do, in spite of your impairments. Social Security will usually take the position that, yes, you do have some impairments.  However, the impairments are not so severe that you can't perform certain types of jobs.  Therefore, you are not disabled. The solution to this (and saving your case) is to prove to Social Security that you have a very restricted RFC.  In fact, you want to prove -- using medical evidence -- that you cannot perform the exertional, postural and/or mental requirements of even unskilled sedentary work. Many individuals try to prove their inability to work by simply explaining their pain,

"AOD" is the alleged onset date, the date you claim to have first become unable to work.  This date is stated on your original disability application.  It is the date Social Security will look back to in determining whether you were disabled on that date. Because you cannot be disabled under Social Security regulations while you were engaged in substantial gainful work, wages or salary earned after your AOD are very problematic.  Here's an example: Henry says he became disabled on 5/1/12.  This is his AOD.  He wants Social Security to pay benefits back to 5/1/12.  When the administrative law judge interfaces with the IRS and looks at Henry's earnings, however, she sees that he earned $28,537.19 during the third and fourth quarters of 2012 and that during the entire year he earned $51,911.26.  The judge will automatically assume that Henry was working at substantial gainful activity well after his alleged onset date.  If this is true, he will not be eligible for di

"My doctor wrote a letter saying that I am disabled and not able to work at any job.  Social Security denied my benefits, anyway.  How can they do that?" Your doctor meant well.  But he is attempting to decide a matter that can only be decided by the Commissioner of Social Security under the regulations.  In short, doctors may not determine who is disabled and who is not. Here is what your doctor can and should do:  provide you with a form or letter describing your specific functional limitations.  By functional limitations I mean your ability to lift, sit, stand, walk, kneel, crouch, crawl, reach, concentrate, remember and follow instructions, complete simple tasks in a timely fashion, etc.  These opinions carry great weight with Social Security when they come from a doctor who has treated you over a fairly long period of time. Letters from doctors are often not helpful for 2 reasons.  (1) They do not address specific functional limitations that would prevent work, an

The Work History Report is used by Social Security to determine the exerti on category of past work:  light, medium, heavy or very heavy work.  A claimant needs for the past work to be properly classified and this means the Work History Report must be complete and accurate. I am writing a brief on an appeal case. I just looked at the claimant's Work History Report.  This report was filed by the claimant with the original application almost 2 years ago.  What I want to know is, how much standing, walking , reaching, bending and lifting the claimant did in her previous jobs. What I find on the Work History Report is a lot of blank spaces. N o information was filled in by the claimant.  Apparently, she filled out this form they way I used to do my homework--in a hurry and just skipped over things.  This is typical of what I see in Social Security disability applications.  Instead of answering the questions, the claimant writes "NA, unknown, not sure," or just leaves

"With Social Security there is no such thing as being "partially disabled." A "partially favorable" disability decision from Social Security i s usually one in which the alleged onset date has been changed or "moved forward," resulting in less back pay than was anticipated. There is no such thing as being "partly disabled" under Social Security rules.  A person is either disabled or not disabled.  However, the date on which the person became disabled (the onset date) is often questionable.  A partially favorable decision finds that the claimant is indeed disabled and medically eligible for benefits ; however, it finds that the disability began at a later date than was alleged by the claimant.  Thus, the back pay has been reduced.  This would have no impact on the amount of the claimant's monthly benefit .  It just reduces the number of months for which back pay is due. A disputed onset date may be appealed, just like any othe

One of the myths about Social Security disability is that many claimants are frauds trying to fool the system.  We are told by the media that once the Social Security claim has been denied, these claimants go back to work. A new government study released in April 2016 concludes that this simply is not true.  It is a media myth.  The study concludes that only 27 percent of people who get denied for Social Security benefits ever return to work.  The majority are simply not able to work. If there were as much fraud in the Social Security system as the media believes, we would see a much larger number of denied applicants returning to work after failing to get their benefits.  The truth is, the majority of Social Security applicants would like to return to work but are unable to do so.

Are you disabled under Social Security's rules?  Are you eligible to receive monthly Social Security disability payments?  Here are some questions to help determine potential eligibility: TEST 1:  Out of the most recent 10 year period, have you worked at least 5 years on a regular basis? Have you worked regularly during the most recent 5-year period? If the answer is yes, you have probably earned enough work credits to be covered by the Social Security Act.  Coverage is earned by working and paying FICA tax through payroll deductions.  Work done long ago may not count. TEST 2:  Are you now working at substantial gainful activity (SGA)?  For purposes of simplicity, SGA is defined as current earnings (salary, wages, commisions) totaling at least $1,130 per month before tax or withholding.  If you are currently working at this level, you are not eligible for SSDI benefits.  Note:  SGA includes only earned income from salary, wages, tips, commissions, etc. and does not include inc

Did you know that after you stop working you may lose the right to file a new Social Security disability claim?  This is because your insured status with Social Security expires about 4 years after you stop performing regular work. Many people assume that once they work enough to be covered by Social Security that they are always covered.  This is not true.  You continue to earn disability coverage byk working and continuing to pay FICA tax through your employer by payroll deduction. When you stop working regularly, your insured status will remain for about 4 years.  Then it goes away.   Take the case of Jane.  She worked as a dispatcher for a transportation company for 22 years but quit work in 2010.  In late 2015, Jane was diagnosed with a cervical malignant tumor that would require extensive surgery and chemotherapy.  It was likely that she would not be able to work again, at least for a few years.  She decided to file for Social Security disability. Imagine Jane's shock w

Social Security disability is awarded base on a claimant's limited ability to function.  It is not awarded based on diseases, but on functional limitations. The primary way Social Security evaluates your functional ability is by a detailed questionnaire that they refer to as "the ADL (Activities of Daily Living) questionnaire.  The official name of the document is the "Function Report." The Function Report is a n 8- page document with Sections A-D and it contains approximately 60 questions. I understand the temptation to ignore this form (just not bother with it) or to fly through it quickly because you feel it is a waste of time.  This is a crucial mistake.  You should spend a lot of time with this form.  In fact, this form should be your constant companion for a couple of days until it is completed lovingly, comprehensively, thoughtfully and very, very completely. The Function Report will ask you things like: Do you cook your own food? How lo

Unfortunately, disabled veterans sometimes get wrong information, even from Social Security. Sometimes, we have known of disabled veterans being told, in effect, that they cannot apply for disability benefits because they are still receiving military pay, or "still working."  However, the Wounded Warrior program permits disabled vets to apply for disability when they are receiving active duty pay if they are on medical leave, performing restricted duties or under therapy in a military treatment facility. Social Security's website states the following: Active duty status and receipt of military pay does not, in itself, necessarily prevent payment of Social Security disability benefits.  Receipt of military payments should never stop you from applying for disability benefits from Social Security. If you are receiving treatment at a military medical facility and working in a designated therapy program, or on limited duty, the government will evaluate your work

Here are some facts that will definitely NOT help you at your Social Security disability hearing. 1.  You quit work because you didn't have a car or dependable transportation.  2.  You quit work to care for a child or sick family member. 3.  You got laid off or the plant you worked for closed down.  (Or you quit for ANY reason other than a physical or mental inability to perform the work , which is the only thing Social Security is going to pay for). 4.  You had legal problems or got arrested / incarc erated. 5.  You have drug or alcohol problems in your recent past. 6.  You worked after your alleged onset date but the work was "under the table" and not reported for tax purposes. 7. You received unemployment benefits after your alleged onset date (indicating that you told the State labor bureau that you were able to work and available for work). 8.  You are making no attempt to follow your doct or's prescribed treatment, in cl uding failure to take pr

Social Security disability was set up under the Social Security Act to provide income for workers who became disabled before reaching retirement age.  The program, for the most part, doesn't work.  There are too many obstacles placed in the way.  Here are a few of them.   Obstacle:  The Application for Benefits.  A typical Social Security benefit application package contains at least 38 pages of forms, questionnaires and documents.  Many people simply cannot complete all these forms in a way that allows benefits to be paid.  Social Security will use some of these forms, such as the Function Report, to deny claims. Obstacle:  The Consultative Examination.  In some cases, Social Security will order you to attend a "consultative examination" with the doctor of their choice.  This doctor typically spends about 15 minutes with you and performs no lab tests, X-rays or other diagnostic procedures.  In 90 percent of cases, the doctor will find no significant abn

You will see a great deal of discussion about "credibility" in regards to Social Security disability applications and appeals, especially hearings. Credibility basically just means that the claimant's statements, claims and testimony are reasonable and believable.   Credibility should also be viewed this way:  The allegations or testimony made by the claimant should match up reasonably with the objective medical evidence. For example, if a claimant testifies that he can walk no more than 100 feet because of severe back and knee pain, but recent MRIs show no problems with the spine or knee joints, this may cause a decision maker to doubt the credibility of the allegations.  The claimant may simply come across as exaggerating the severity of his symptoms. Up until March 2016, it was up to the administrative law judge to determine whether the claimant's testimony about symptoms was credible.  However, Social Security Ruling 16-03p now instructs judges not to eva

You will be asked a long series of questions by the Administrative Law Judge at  your hearing: Be respectful at all times.  Don't argue. If you don't understand a question, ask that it be repeated or clarified before answering. Explain your symptoms and how they affect your daily functioning. Don't lie, misrepresent or exaggerate anything.... anything . Be as specific as possible.  Avoid "occasionally, not very far, a little while," in favor of answers like "about 30 minutes, once or twice a week," or "less than 50 yards." Give more than "yes" or "no" answers when needed. You will be asked about your ability to perform activities of daily living:  driving, cleaning, cooking, bathing, dressing, social activities, caring for your child, etc.  If you can do some of these activities but struggle with them, explain your struggle.  For example, "I do try to clean my house but I can only work about an hour, then I nee