DISABILITY BENEFIT RECOVERY

In a criminal trial, the accused person walks into a courtroom under the presumption of innocence:  in short, he is not guilty of any crime until the state can prove guilt.  The defendant does not have to prove that he is innocent.  The state must prove that he is not. In a Social Security disability case, just the opposite is true.  The claimant is assumed not to be disabled until he can prove that he is. Social Security does not have to prove that the claimant is not disabled.  The claimant must prove that he is.  So, the burden of proof rests mostly upon the claimant, not upon Social Security. I have frequently tried to explain the importance of objective medical evidence in a Social Security disability case, especially at the appeal level.  Allow me to elaborate a little more on what I mean by the term objective medical evidence and how critical it is to the success of a disability claim. First, there is non-objective evidence.  This ...

In a recent hearing, my client Brenda told the administrative law judge, "I have severe anxiety and panic attacks that don't let me get out of the house much." The ALJ asked, "How often do you have these attacks?"  Brenda replied, "Almost every day.  At least 4 or 5 times a week." The ALJ asked, "Have you had any mental health treatment for this problem?"  Brenda replied, "No, not really.  My primary care doctor gives me Lexapro but doesn't help much." Two months later the ALJ issued a denial decision.  In the decision he noted that Brenda claims to have severe panic attacks but that he found her testimony only partially credible because she did not seek any mental health treatment. In short, her report of severe symptoms could not be supported by the examination or treatment of a clinical psychologist or psychiatrist.  The fact that Brenda's primary doctor had prescribed Lexapro did not convince the judge that she had...

As Social Security becomes more overburdened and financially stressed, there is a higher likelihood that it will let you down.  I am speaking here of those individuals needing disability payments.  I want to address how Social Security is letting insured workers down and how the failures can be addressed.  Here are some of the problems that may impact you when you file a disability claim with the US Government (Social Security). Up to 75% of initial claims are denied, often in error. It takes an average of 15 months to appeal a denied claim (much longer in some states)  Federal administrative law judges are under tremendous pressure to deny you again. Once you finally get a hearing, it can take an additional 5 months to get a check.  There is no "back up" or "emergency" plan to help you while you wait.  There are a few things (and only a few) that could speed up your disability decision and/or appeal.  You may not fall into one of these catego...

A denial of federal disability benefits is not the end of your journey, it is only the beginning. In today's economy, about 75 percent of persons who eventually get Social Security disability benefits have to appeal at least one denial and most end up at a hearing before being awarded benefits. In the last 3 years there has been a tremendous push back by Social Security, under pressure from Congress, to keep award rates low.  The hearing office where I frequently practice has an average approval/award rate of 38 percent.  Across the United States, award rates are the lowest point in the history of the disability program. Should This Discourage You From Applying for Benefits? Absolutely not.  However, it should cause you to think through your claim carefully and be smarter as you wade into the process. You should have a clear view of your burden of proof and a solid theory about why you qualify for federal disability benefits. Applications and supporting documents...

Medical records from doctors are simply not enough to win federal disability benefits these days.  Why not?  For 2 reasons: The records will not address the severity of your issues in vocational terms. The records will not address specific functional limitations , such as how long you can sit, stand or walk; how many pounds you can lift, how often you must take a break, or your ability to bend, reach, crouch, stoop, crawl, climb, etc. There is a simple form that your doctor should complete for you.  It is called a Residual Function Capacity (RFC) form.  Sometimes it is called a Medical Source Statement.  There is an RFC/MSS form for physical impairments and a different RFC/MSS for for mental impairments. Your doctor probably will not have these forms.  Social Security will probably not be able to provide you with these forms.  You may obtain them (free of charge) from your attorney or representative.  You may also be able to downloa...

The US Congress is driving down Social Security disability award rates.  Congress believes that Social Security is approving too many claims.  The House Oversight and Government Reform Committee has been looking into why judges have "high award rates" for claims that have already been denied twice by a field office or state disability determination agency.  The Committee's justification for forcing award rates down is that awards have increased 44 percent in the last 10 years, "pushing the trust fund to the brink of insolvency." However, administrative law judges are supposed to review decisions made by field offices and state agencies, correct errors (and errors are many)-- and give a new decision.  It isn't like the claimant always gets a fair decision by the state agency.  In Alabama, for example, the state disability determination service (the "state agency") denies almost 80 percent of all claims. Of course, some denials by the state agenc...