DISABILITY BENEFIT RECOVERY

If you've been denied for SSDI benefits and are about to go for a hearing, there are some things you simply should not do at the hearing.  I have a checklist that I go through with my clients before each hearing.   1.  Don't bring a cervical collar, cane, walker, oxygen tank or another medical device unless it was prescribed by a doctor and you use it everywhere else you go.  Judges hate things that they perceive as "theatrical props." 2.  Don't lie or exaggerate to the judge.  Few people have daily pain on a scale of 10.  Almost everyone will at least occasionally drive, do laundry, wash dishes or walk to the mailbox.   3.  Don't use the word "never" unless you mean N-E-V-E-R.  Not even one time.  Example:  I never drive.  Do you actually mean that you seldom drive?   4.  Don't answer a question that you don't understand.  Ask for the question to be repeated and clarified.  Simply say, "Could you explain what that means?" o

It's one of the oldest tricks in the legal profession:  ask a question you already know the answer to just to see if the responder will tell the truth.  Social Security judges know this trick as well as anyone. Here are some examples: "Do you smoke cigarettes?"  If you do, it's all over our medical records.  Your doctor has charted it 100 times and the judge has read it 100 times.  And it probably doesn't matter one way or another as to whether you are disabled.  So why ask?  Simply to see whether you will tell the truth about it. "Do you drink?"  Nearly every medical record that I review states something like:  "denies alcohol use."  Or, "drinks once or twice a week."  Or, "Uses alcohol occasionally." So, the judge already knows the answer but asks anyway--just to see if you will be truthful. Other "test" questions might be: Have you ever been arrested?  Do you help take care of the kids?  Do you cook

Social Security will automatically deny a disability claim if the claimant is earning wages of at least $1,170 per month, which is considered "substantial gainful activity" (SGA).  But what about working part-time?  Surely, that's OK? In my practice, I've learned to think the way judges think.  That may not be such a good thing, but it gives me a certain insight.  So, what do judges think about part time work, assuming that the earnings are below SGA level? First, I will say that, as a minimum, any work after the alleged onset date will muddy the water.  A person who is working part time is less likely to be approved, in my opinion, than a person who isn't working at all. Judges are likely to take one of these attitudes: A lot of people work part-time because it's all they can find.  There are a lot of part-time jobs around but not so many full-time jobs in today's economy.  It may have nothing to do with being disabled.   If you can work 20 hou

Social Security's cardinal rule is that a person cannot be working at "substantial gainful activity" while receiving disability payments. Working at SGA level will result in an automatic Step 1 denial for a new application; and will terminate benefits under an existing claim.   What does Social Security mean by "substantial gainful activity"?  Sometimes we define that as a full time job.  However, that's not exactly correct.  The legal definition of SGA is earnings (job related) of at least $1, 1 70 per month.  This is the 2017 number.  The number changes year to year.  Below is a link that shows the current amount for substantial gainful activity: https://www.ssa.gov/oact/cola/sga.html   Here are some recent questions we received about work related activity and how it affects Social Security disability: Question 1:   I want to file a new application for disability.  However, I am still trying to work and I earn more than $1, 1 70 per month.  Can I a

If you search for Fibromyalgia before 1981 you won't find it.  1981 is when Dr. Muhammad Yunus defined the disease and named it.  For years, it was considered by doctors to be a bogus disease.  Social Security did not consider it to be disabling.  Now, we know better.  But it's still difficult to get benefits for Fibromyalgia, mainly because there is no medical test that will diagnose the condition. Fibromyalgia is an incurable disease thought to be caused by overactive small nerve fibers . No one really knows the cause. It presents with chronic pain in the muscles, joints and tendons along with fatigue and sleeplessness and often is associated with depression or anxiety.  Some patients describe a "brain fog" which makes concentration difficult. Fibromyalgia , if severe, can affect just about every aspect of a person's life. If you suffer from Fibromyalgia and need to file a Social Security disability claim, I want to share some things that may h

Here's how a Medical Source Statement (MSS) can help you get disability benefits" A Medical Source Statement is a form completed by a claimant's doctor.  It gives the doctor's opinion about the claimant's ability to perform certain activities such as lifting, standing, walking, bending, reaching, etc.  These are activities required by all work.  The purpose of the MSS is to show that the claimant is limited in the ability to perform work-related activities, and that these limitations would not allow him/her to hold a full-time job. A properly completed Medical Source Statement may be the single best piece of evidence to help win a claim.  The MSS should meet the following guidelines: A.  It should be completed by an acceptable medical source--a doctor (not a chiropractor, nurse practitioner or counselor). B.  It should be on one of Social Security's approved forms, such as HA-1151 or HA-1152 (for mental disorders). C.  It must address each

Here's a question we often get: "I filed a disability claim and was denied.  This is now under appeal but the appeal is taking a really long time.  Can I also file a new claim while I'm waiting on the appeal?" The answer is yes and no.  You can always file a new claim but you must first withdraw the appeal.  You can't have a new claim and an appeal in process at the same time. Every case is different.  However, it is usually not in your best interest to withdraw an appeal to file a new claim.  There could be an exception, of course, but I would get good professional counsel before making such a decision. Question:  What gives a new claim a better chance of success than the old claim?  If the answer is "Nothing," by all means drop the idea of a new claim and stay with the appeal! Unless there are important extenuating circumstances, my guess is that a new claim will meet the same fate as the old claim:  it will be denied and also have to be ap

Workers become eligible for Social Security coverage by working and having FICA tax withheld from their paychecks.  They accumulate 1 credit for each quarter in which they earn a certain amount of wages.   However, when you stop working, you stop accumulating "quarters of coverage."  A few years after you stop working, your coverage expires and it may be difficult to file a new claim because you no longer have insured status.  It's equivalent to letting your homeowners insurance policy expire, then trying to file a new claim on it. The moral of the story would be this:  As soon as you feel you have a disability, file a claim immediately.  If you're not working, the clock is ticking on your Social Security coverage eligibility.  It will expire. P.S.  This does not apply to persons who are already receiving a Social Security disability benefit.  Once benefits begin, the "date last insured" no longer applies and benefits will continue as long as you are d

Back pay" accumulates while you wait on Social Security to approve your claim.  Here's what's important: 1.  You must prove that you are disabled according to Social Security's rules.  They have their own rules about disability, and it's these rules that you must use to prove your case. 2.  Back pay depends on your "onset date," that is, the date your disability commenced.  In most cases, benefits can be paid back to your onset date.  The onset date can be even earlier than the application date. The earlier the onset date the more back pay you can receive. Social Security may argue that you are not disabled.  They may also argue that you did not become disabled when you claim you did.  It is necessary to use medical evidence to prove both all aspects of your case, including your eligibility for back payments. Let me use an example. If you allege that you first became disabled on March 1, 2013 (your "alleged onset date"), you mus