IF YOU GET SICKER, WILL SOCIAL SECURITY INCREASE YOUR BENEFITS?

 

Here's a common question I get a lot.

 

  "My medical condition has gotten a lot worse since my disability benefits started ____ years ago. I now have new medical conditions that I didn't have in the beginning. Will I qualify for higher benefits because I am sicker now than I was before?"

The short answer is, No. Social Security does not offer any "degrees" of disability. It is all or none. You are either 100 percent disabled or not disabled at all. If you have been found disabled and given a benefit, that is a set benefit that will not change due to your future health or medical condition. You are getting 100 percent of the benefit available to you.

One of my clients recently called to say:

"When you helped me get my disability in 2004, it was based on back problems. Since 2004, I have developed severe depression and I was recently diagnosed with heart failure. Will this help me get a higher benefit?"

Unfortunately, it will not. When you were approved for disability benefits back in 2004, you got 100 percent of the benefits available to you. Worsening health does not increase them.

So, how does Social Security determine your benefit? It's based on your average lifetime earnings and how long you worked and paid into the trust fund through FICA (withholding) tax. The longer you worked before becoming disabled--and the higher your wages--the higher your benefit at any given time.

VOCATIONAL ASPECT OF SOCIAL SECURITY DISABILITY

 When you're trying to get Social Security disability, there are two very important aspects to deal with.  

One is the medical aspect.  You must establish through objective medical evidence, that you have at least one severe impairment that has lasted or will last at least 12 straight months.  Of course, you need more than just a diagnosis.  You need consistent medical treatment, preferably from a specialist.  Social Security wants to see that you are trying to get better and you're doing all you can to improve through medical treatment.

Second, is the vocational aspect of disability.  This means that you must relate your impairment to how it restricts your ability to work.  To do this, you will concentrate on functional restrictions.  How does your medical impairment restrict your ability to sit, stand, walk, bend, lift, carry or perform other functions required of most jobs?

You will need to address those restrictions very specifically.  How long can you sit, stand or walk at one time?  How much could you lift and carry during an 8-hour workday?  Let's say you feel you are limited to a lift/carry restriction of 20 pounds.  How often could you lift and carry 20 pounds?  

Occasionally?  This means from very little up to one-third of an eight-hour day.

Frequently?  This means from one-third of the time up to two-thirds of the workday.

Constantly?  This means without limitations.

If you are age 50 or over, the vocational factor is very important.  The decision maker must decide if you have the functional capacity to perform any of your past relevant jobs.  Therefore, your capacity must be well defined.  

How does a herniated disc in your lumbar spine restrict your ability to perform work-related activity?  Which work activities are restricted?  How severely are your work activities restricted?

For example, if you have a herniated lumbar disc with back pain, and it restricts you to lifting and carrying no more than 10 pounds, standing no more than 2 hours per 8-hour day, and walk no more than 1 hour per day, you don't have the functional capacity to perform a light or medium level job.  To determine if you can perform a job at the sedentary level, we would look at how long you are able to sit--because sedentary jobs require sitting about 6 hours each day.

As you prepare for your Social Security disability hearing, focus no only on your medical diagnosis, but also on the vocational restrictions that result from the medical problem(s).

It isn't enough to show that you have a herniated disc or spinal stenosis.  You must go a step further and show how those things restrict you from performing an 8-hour day of work, 5 days per week.

If you can get a Residual Functional Capacity form from your treating doctor, it can go a long way in proving the work restrictions caused by your medical condition(s).

In short, Social Security wants to know:

• What are your medical impairments?
• How do they keep you from working?

USING A PROBATIONAL WORK PERIOD TO WIN YOUR DISABILITY CLAIM

At your Social Security disability appeal hearing, the two key plays are the administrative law judge (ALJ) and the vocational expert (VE).

After claimant testimony and lawyer's arguments have been made, the judge will take sworn testimony from the vocational expert (VE).  The VE's answer to two questions will crucial in determining whether you win your benefits or not.  These 2 questions are:

1.  Based on the claimant's medical limitations that I have outlined, can he/she perform any past relevant work?  If yes, the claim may be denied.

2.  Are there any other jobs in the national economy that the individual could perform?  If yes, the claim is probably lost.

However, it isn't over yet.  Your attorney will get to grill the vocational witness about her testimony.  In this cross examination, your representative will challenge the VE's testimony about jobs and seek to find reasons that the job(s) really can't be performed.

One often overlooked question for the VE concerns probationary work periods.  A probationary period is a 90 day "trial" where the worker is given a chance to demonstrate that he/she can do a good job.  If so, the job becomes permanent.  If not, the worker is terminated.

Questioning of the VE might go something like this:

"Good morning, Ms. Expert.  Could you explain the usual tolerance for absence in the job of pickle pusher?  (The VE will usually testify that a worker is allowed about 1 day per month of absence; more than that will result in termination).

"Second, Ms. Expert, could you explain how much tolerance employers usually have for workers who are off task?"  (Most VEs will testify that employers will tolerate up to 10 percent off task, but more than that results in termination).

"Ms. Expert, you testified that this individual may be able to perform the job of Pickle Pusher, which you classify as an unskilled, light exertion job.  In your experience, is it likely that a new employee would have to undergo a probationary period or trial period before being hired on a regular basis?  If so, how long is the typical probationary period.  (90 days, usually).  Now, I have some specific questions.

First:  "What is the typical tolerance for absences during the 90-day probationary period?"  (Usually, no absence is tolerated during this period).

"So, if a pickle pusher missed even 1 day of work due to illness during that probationary period, he or she would likely be terminated, is that your testimony?"  (Yes).

"Also, what would the typical tolerance be for off task behavior during the probationary period?"  (No more than 5 to 10 percent, probably). 

"So, if an individual's pain, anxiety, panic attacks (etc.) kept him/her off task 15 percent of the workday, or more, there would be no work as a pickle pusher, is that correct?  (Yes).

Here's the argument.  During the 90 day probationary period, a new employee will have to meet tougher, stricter standards to prove that he/she will be a good fit for the job.  If a new worker cannot meet the higher standards during the probationary period, the normal standards for a pickle pusher job don't really apply.  Thus, the claimant could not keep the job, even if hired.  Thus, the job of pickle pusher is not really available to him/her, based on his or her medical or mental restrictions.  (These restrictions have been introduced into evidence, based on doctors reports/medical records, of course).

I have actually won cases on the basis of this cross examination.  It can certainly create doubt in the judge's mind about whether to believe the VE's testimony or take it with a "grain of salt."  If the claimant is on the fence--a borderline situation--this can tip the scales in the claimant's favor.

 

YOU MUST ANSWER THIS QUESTION CORRECTLY AT YOUR SOCIAL SECURITY DISABILITY HEARING

At your Social Security disability hearing, the judge will ask you a series of questions to decide whether you qualify for a benefit.  Here is one question that you must answer correctly, or your case will be denied.

QUESTION:  "Why did you leave your last job?"  This question may be worded slightly differently, but it's a common question at all disability hearings.

PURPOSE OF THE QUESTION:  The judge wants to know if you were forced to stop working by a severe medical condition (physical or mental)--therefore, you may be disabled-- OR if you stopped working for some other reason.

Other reasons individuals may stop working include, among many others:

Transportation problems

Had a fight with the boss

The plant or business closed

The recession (or COVID) caused layoffs or reduction in force

Stayed home to care for a sick family member  

     The problem is, none of these things are disabilities.  And the Social Security Act pays no benefit for any of these things.  So, if you admit you quit working for any reason other than physical and/or mental disability, you have lost your case at the get-go. 

    And it isn't enough to say, "I became too sick to work," or "I just couldn't do the job any more."

Be specific.  What part(s) of the job could you not perform?  Was it the lifting, standing, walking, sitting, bending, or something else?  Was it trouble concentrating, being absent too much because of back pain, or what?  Explain what it was about our job that you could not continue to do.

Hopefully, a few days before your hearing, your attorney/representative will sit down with you and go over what is expected of you and how to answer questions.  Good preparation equals a good hearing. 

STAY THE COURSE TO WIN A SOCIAL SECURITY DISABILITY CLAIM

"Stay the course" is a phrase used in the context of a war or battle--meaning to pursue a goal regardless of any obstacles or criticism." 

 This post is going to use a lot of numbers.  Let me say at the beginning:  The purpose of this post is to prove that claimants must be prepared to hang on and persist if they want to win disability benefits from Social Security.  There are lots of opportunity to quit--but you mustn't.

The complicated Social Security claim process has been described as a byzantine maze.  That is, highly complex or complicated and requiring attention to zillions of minute details.

I want to consider the total number of Social Security disability cases filed in 2016.  These numbers tell a story you need to know if you're trying to get benefits.

In 2016, a total of 2,582,092 applied for Social Security disability benefits. 

852,090 (33%) were approved. 

1,730,002 (67%) were denied.

Of those who were denied, only 633,474 (37%) asked for "Reconsideration." (Over 1 million claimants dropped out of the process after the first denial). Is this the real goal of "Reconsideration"?

76, 017 (12%) of those who did ask for "Reconsideration" were approved, while the other  557,457 (88%) were again denied.

219,022 (46%) of claimants who took their denials to a hearing before an administrative law judge were awarded benefits.

166,647 (35%) were denied by the judge

95,227 20%) were dismissed on technical reasons, such as late filing.

Look at these numbers carefully. 2,582,092 claimants started out to get benefits.

219,022 were awarded benefits, but only after they went before an administrative law judge for a hearing.

So, WHERE do most claimants win disability payments?  The obvious answer is "at a hearing with an administrative law judge."

What is so discouraging to me, as a disability advocate, is the huge number of claimants who dropped out along the way.  I understand why.  It's very discouraging to be questioned, examined, poked and prodded, then rejected numerous times and told "you aren't eligible according to our rules."  It's understandable that most people simply say, "Enough already!"

Yet, 46 percent of the hardy souls who stayed the course and took their appeals all the way to a judge GOT THEIR BENEFITS.  THEY GOT PAID!

If you are sick and tired of dealing with Social Security, please don't give up.  Get a legal representative to assist you and let him/her deal with Social Security for you.  It will take jigawatts of stress off your life, do away with your constant work on your appeals, and increase your odds of winning--all at the same time.

Stay the Course.  Appeal, Appeal, Appeal.  Then, appeal some more.  

 

 

 
 

DISABIITY BENEFITS FOR MENTAL CONDITIONS

 Social Security can pay disability benefits for mental impairments, such as severe depression, chronic anxiety, reduced cognitive functioning, and others.

The "Blue Book" Listings consider mental disorders under 11 broad categories:

1. Schizophrenia spectrum and other psychotic disorders
2. Depressive, Bipolar and related disorders
3. Intellectual Disorders
4. Neurocognitive 
5. Developmental Disorders
   
6. Anxiety and Obsessive-Compulsive Disorders
7. Somatic Disorders
8. Personality and Impulsive Control Disorders
9. Autism Spectrum
10. Eating Disorders
11. Trauma and Stressor-Related Disorders

Mental disorders are one of the most difficult disability cases to win.  Claimants with a long history of well documented illness have the best chance, especially if their disorder has caused multiple hospitalizations in recent years.

 

It can be very useful to have a treating psychiatrist or psychologist explain how the mental impairment restricts the claimant's ability to work on a "regular and consistent basis."  Social Security calls such an explanation a "Residual Functional Capacity - Mental," or a "Medical Source Statement."

Claimant's considering a Social Security disability application will need the following:

1.  Treatment by a licensed psychologist (Ph.D. or Psy.D), or by a psychiatrist (MD).

2.  An attempt to control the disorder with medications and/or counseling therapy.

3.  A history or medical documentation that the severe disorder has lasted, or is expected to last for at least 12 consecutive months.

4.  A satisfactory explanation, based on medical documentation, of how the mental disorder restricts the individual's ability to work a full-time job.

It is reasonable to expect that the original application will be denied, just as with other types of claims.  The second review, called "Reconsideration" will almost surely be denied, too.  The next appeal is a Hearing before an Administrative Law Judge (ALJ)--and this is the best chance for approval, especially if the hearing appeal has been well prepared with excellent medical documentation.

Disability advocates or attorneys handle these claims every day and know what Social Security is looking for.  They understand the high burden of proof required for approval.  They are also experts at guiding claims and appeals through the complicated Social Security system.  They will not charge a fee for representing you unless two things happen:  (1) Your claim is decided in your favor, and (2) You collect back pay or retroactive money from Social Security (lump sum payment).

________________

The Forsythe Firm

"The Disability People"

Huntsville, AL 35806

PHONE (256) 799-0297

5 THINGS THAT ARE CONSIDERED IN EVERY SOCIAL SECURITY DISABILITY CASE

 Here are 5 things that will be considered in every Social Security disability claim:

1.  Age

2.  Education

3.  Past Relevant Work

4.  Transferability of Skills

5.  Residual Functional Capacity

 

One or more of these factors may become critical in a particular case.  However, Social Security law requires that all 5 be considered.

I won't belabor this post by explaining what each of these things means.  

A claimant can take a long time researching and trying to figure out how these factors affect his/her claim.  

An easier way would be to call a disability attorney/advocate and ask for a free evaluation.  Professionals are trained to consider how each of the 5 things (above) will help you or hurt you in a disability claim.

For heaven's sake, don't go into your hearing without knowing how to define and defend these 5 important things, upon which the judge will render a decision.

 

WAYS TO WIN A SOCIAL SECURITY DISABILITY CASE

The following are possible ways to win a Social Security disability (SSDI) claim.  These should always be considered as a claimant maps strategy to get benefits approved:

 1.  MEET OR EQUAL A LISTING (20 CFR, §404, Subpart P, Appendix A). 

Listings provide a list of impairments or medical conditions that automatically qualify for disability--IF the signs and symptoms of the condition equal the severity specified in the Listing.

Most claimants who get disability benefits do NOT meet or equal a listing, but if they do it makes the approval process shorter and easier.  It pays to check.

II.    QUALIFY UNDER THE FRAMEWORK OF A MEDICAL-VOCATIONAL GUIDELINE (GRID RULE).  

To qualify under a grid, the claimant should be at least 50 years of age and have at least one exertional impairment.  Mental impairments cannot use the grids and persons under age 50 can't be approved by using the grids.

III.  PROVE THAT YOUR SYMPTOMS DO NOT PERMIT ANY PAST RELEVANT WORK OR ANY OTHER WORK WHICH EXISTS IN THE NATIONAL ECONOMY.

This is the path younger claimants (under 50) will take.  Obviously, this is the most difficult burden to prove.  In this category, it isn't enough to demonstrate that you can't perform your past work.  You must also demonstrate that you cannot perform any other work which exists in the US economy.  This "other work" will include unskilled sedentary work--often a rather repetitive, low paying job that many individuals wouldn't want. But if Social Security finds that you can perform any kind of full-time employment, your claim will be denied.

It's obvious that claimants age 50 and over have the advantage here.  Younger individuals do get approved but usually only if their impairment is very severe and they have support from one of their treating physicians.

An attorney/advocate can talk to you for a few minutes and evaluate which avenue your case should take.  The consultation is free and with no obligation.  This helps you set out on the proper course or to adjust mid-course if needed.  

_________

The Forsythe Firm

7027 Old Madison Pike, Suite 108

Huntsville, AL 3586

"The Disability People"

(256) 799-0297

 

BEST ADVICE TO GET SOCIAL SECURITY DISABILITY BENEFITS

As a practicing disability advocate for decades, I've seen a lot of successful and unsuccessful  attempts to get SSDI benefits.  These have taught me a lot about how to win Social Security disability benefits. Here is some useful advice if you plan to go up against the Social Security Administration:

1).    Submit everything on time.  When Social Security (SSA) sends you a form, fill it out and return it right away.  It won't go away if you ignore it.

2)     Have your medical treatment current before you file.  SSA bases their decisions primarily on what's in your medical records.  If possible, see specialists for your medical problems.  Try to get any recommended X-rays, MRIs or other tests to document your impairment(s).  See your doctors regularly.  Follow medical advice.

(3)    Keep your medical records updated during the process.  You will continue to get treatment after your application is filed, so make Social Security aware of recent treatment.

4)  Don't draw unemployment benefits during the period you are asking for disability pay.  Unemployment benefits will usually reduce or eliminate disability benefits.  

5)    Be careful about working after you file for disability.  There are limits on how much you can work and still be eligible for SSDI benefits.  In 2021, wages of at least $1,310 per month is disqualifying.  In 2020, that amount was $1,260 per month.  This refers to gross wages or self-employment income.

6)  Don't expect to win just by filing an application.  Unfortunately, the application process is a "weeding out process."  It denies almost 80 percent of applications.  The good new is--a denial is NOT the end of the process.  It's really the beginning.  Appeal any denial within the time limit of 60 days.  If denied, appeal again.  You want to keep appealing until you end up before an Administrative Law Judge (ALJ) for a hearing. The HEARING is where a majority of disability claims get approved and paid.

7)  Last, but by no means least, get a disability advocate or attorney involved, certainly when you begin the appeal process.  It's a complex and difficult set of tasks that begs for professional judgment.  While you are not required to obtain representation, most judges will recommend it.  Also, national data shows that you are at least twice as likely to be approved with representation, as opposed to no representation.

Check for an advocate/attorney in your area who has a high rating from his or her clients.  Many internet providers, like Google, allow individuals to post reviews about their experience with disability representatives.  This may be a good starting place.

 

     

2 FORMS THAT OFTEN GET DISABILITY CASES DENIED

We could write a book about things that get disability claims denied.  One of the biggest problems is failing to complete and return all the forms that are actually part of the application.  Two of these forms, often neglected, are the WORK HISTORY REPORT and the FUNCTION REPORT.

Now, honestly, these forms are a real pain to fill out.  The Function Report has 14 pages and is one of the most detailed forms I've ever seen.  It will ask about all your personal activities from cooking to driving to spending time on the computer.  While it's tempting to either skip the Function Report, or fill it out half-heartedly, that will be a mistake.  Unless you are prepared to complete all the forms with painstaking accuracy and detail, it's best not to file a Social Security disability application.

 The other form is the Work History Report.  The review board at Social Security will analyze your past work to see (a) at which exertion level was each job performed, and (b) at what skill level each job was performed.  The Function Report asks a lot of detail about each of your past jobs (and they look back 15 years).  Don't skip over that troublesome section at the bottom of each page that asks how much you stood, walked, sat, crouched, crawled, crawled, lifted, carried, reached, handled small objects, etc.  A vocational expert at Social Security will use your detailed description of each past job to determine whether you can still perform any of those jobs.  It may be possible to get an early Step 4 approval if they decide you cannot perform past relevant work.  However, if you fail to give adequate details about your function at each past job, it may be impossible to approve the claim, so it will be denied.

Sometimes, it's best to get someone to help fill out these forms.  Get your spouse, son, daughter, or someone who knows you well to help.  Sit down at the kitchen table and "team up" on the forms.  You'll need a good cup of coffee, plenty of breaks, and patience.  

So, what if you fill all the forms out properly and still get denied?  It happens a lot.  Now, you need to file for "Reconsideration," and ask Social Security to review the denial.  But don't get your hopes up, because there's a 90 percent chance they will deny you a second time.

Now what?  You file an appeal* and ask for a hearing before an administrative law judge (ALJ).  At this hearing, you and your attorney will sit down with a judge and review the claim.  Your attorney will explain why the past denials were wrong, and try to guide the judge toward approving and paying the claim.  There is a pretty good chance this can happen if you have good representation and well prepared appeal.

SUMMARY:  Fill out the forms as completely and accurately as you know how.  Hope for an early approval. If you get denied, ask for Reconsideration.  If denied again (very likely), ask for a hearing before a judge.  Take your lawyer and put on a good argument at the hearing.  This is where most cases get paid.  

Somewhere in here, I hope you hear me saying, "BE PERSISTENT AND NEVER GIVE UP.  It's not the early bird that gets the worm, it's the bird that just never gives up!

  

WHAT IS "BURDEN OF PROOF"?

 The term burden of proof refers basically to 2 questions:

1.  Who is required to produce the proof?

2.  How much proof is needed?

In terms of Social Security disability appeals, the burden is on the claimant (the person who applies) in most steps of the process.  This means that Social Security will not have to prove that you are not disabled.  Instead, you must prove that you are.

How much proof is needed?  There must be objective medical proof of 3 things to prevail:

a.  You have a severe and medically determinable impairment.(MDI).

b.  The impairment(s) has lasted or is expected to last 12 straight months, OR end in death.

c.  The impairment(s) cause a serious restriction in your ability to work a full-time job on a "regular and consistent basis."

Some things that will NOT be adequate proof to win an SSDI case include (for example):

• Complaints of pain without a medical explanation for the source/cause of pain.
•  Any complaint by the claimant that lacks objective medical evidence from an acceptable medical source (medical doctor, specialist, psychiatrist, psychologist, etc.).
• Statements by family, friends or other interested parties.
• Symptoms that are not severe enough to reasonably cause the claimant to be unable to perform either past relevant work or other work which exists in the national economy.

How Do You Obtain Proof Acceptable to Social Security?

Get examined and treated by a medical doctor (MD or DO) if you have a physical illness.  Get examined and treated by a psychiatrist or licensed psychologist if you have a mental disorder. 

Remember that specialists carry more weight than primary care or general practice doctors. Nurse practitioners, chiropractors, licensed social workers (LSW) and professional counselors (LPC) are not accepted medical sources with Social Security.  

Even medical opinions will not win a case without objective medical findings to support opinions. Objective findings include laboratory tests, X-rays, MRIs, CT scans and/or physical examinations to explain and support symptoms.  It's too vague for a doctor to state, "This patient has a lot of pain in his shoulder and mid back that makes it difficult for him to work."  That should be supported by diagnostic tests that show a medical impairment which reasonably explains the cause of the pain.

Finally, get your doctor to specify exact functional limitations caused by your impairments.  Examples of specific functional limitations include:

• Can stand for no more than 30 minutes at a time or 2 hours per day.
• Can sit no more than 1 hour at a time or 6 hours per day.
• Lifting and carrying is limited to 10 pounds frequently and 20 pounds occasionally.
• Can be expected to be off task at least 20 percent of the time.
• Will need a 15-minute break 3 or 4 times per 8-hour workday.

Claims win or lose based on how much medical evidence there is and the quality of the evidence.

The 3 words often used to evaluate a person's symptoms are--

Duration

Severity

Frequency

You must convince Social Security, using objective medical evidence, that your symptoms prevent you being able to perform past work or any other work on a full-time basis. 

IS IT TRUE THAT SOCIAL SECURITY DENIES MOST APPLICATIONS AT FIRST?

 Yes, Social Security denies disability applications about 70 percent of the time on the first try.  This is because the application was filled out incorrectly or decision makers didn't have enough medical evidence to approve the claim. The burden of proof is very high.

Can you appeal when you are denied?

Yes.  But there is a strict time limit.  You must file a written REQUEST FOR RECONSIDERATION (using the proper forms) within 60 days of the denial.  After that, it is too late.

The Reconsideration step is just a formality that must be done.  Reconsideration requests are denied almost 90 percent of the time.  So, why bother to file?  Because it puts you in line for an appeal before an administrative law judge (ALJ) for a hearing.  The hearing gives you almost a 50/50 chance of getting approved.  It's the absolute BEST chance of approval in the entire process.  You must go through "Reconsideration" before you can go before a judge.  So, follow the steps.

If there are 3 words I could use to describe how to win Social Security disability, they would be APPEAL, APPEAL, APPEAL.

Remember the 60-day deadline to file all appeals.  You lose all your rights under a claim that is not appealed within 60 days after any unfavorable decision.

Appeals are complicated legal steps, especially a hearing before an administrative law judge (ALJ).  Most folks want and need a lawyer or advocate-specialist to handle appeals.  This won't cost you anything upfront and it never costs unless you win and recover back pay from the government. 

SUMMARY:  Here are the usual steps in a disability claim:

1.  File the application with all attached forms.

2.  File a Request for Reconsideration if denied.

3.  Appeal and ask to appear at a Hearing before an ALJ.

Most claimants go all the way to Step 3 before being approved.

GETTING SSDI BENEFITS FOR FIBROMYALGIA

 Fibromyalgia afflicts 4 million Americans or about two percent of the US population.  It plagues more women than men.  It is a painful condition that causes aches and diffuse body pain, often accompanied by fatigue and cognitive changes.

Fibromyalgia is often described as an "invisable disease" because it has no physical signs and there are no laboratory tests to confirm it. Yet, it is very real.

Many times, even family members aren't convinced about the seriousness of fibromyalgia.  If you can't convince them, imagine trying to convince Social Security that you are disabled because of this disease.

You need a definite, sharply focused plan to get SSDI or SSI for fibromyalgia.  Here are the problems to overcome:

1. No Blue Book Listing: SSA maintains a Listing of Impairments that breaks down hundreds of medical conditions and separates them according to how they impact the human body. There is no listing for Fibromyalgia in the Blue Book.
   

2. Issues with the “Medically Determinable Impairment” (MDI) Requirement:  You first must convince that Social Security that Fibromyalgia is a Medically Determined Impairment orMDI. This means that your fibro has been established via medical evidence of its existence, rather than just your allegations. Because there are no reliable diagnostic tests specifically for fibro, SSA may find that you do not meet the MDI criteria. In 2012, Social Security issued Ruling 12-2P, explaining what proof they need to consider Fibromyalgia as an MDI. The diagnosis should be made by a rheumatologist, using diagnostic criteria from the American College of Rheumatology (ACR).  A diagnosis from a general practice physician, and especially by a nurse practitioner, doesn't carry much weight.  Get under treatment by a rheumatologist, which is the proper specialist to diagnose/treat fibro.
   

3. Problems Ruling Out Other Conditions:  The symptoms of Fibromyalgia can also be caused by many other diseases.The job of the rheumatologist is to rule out the possibility of other diseases, including:
   

• Hypothyroidism;
• Rheumatoid arthritis;
• Lupus; or,
• Multiple sclerosis.

Narrowing down your ailment and eliminating other possible disorders can be a lengthy process, sometimes taking years.  But it certainly strengthens your SSDI claim and establishes that you have a Medically Determinable Impairment (MDI).

4. Assessments of Your Residual Functional Capacity (RFC):  SSA will want medical evidence of how fibromyalgia affects physical and/or mental functioning. This is called a Residual Functional Capacity (RFC). Your RFC is an evaluation of whether there is other work you can do as a person with fibromyalgia, and SSA will look at positions you have held in the past. The focus will be on your exertion levels, such as how much you can lift, be on your feet, or sit for extended periods of time. If you wait for Social Security to figure out your RFC, you won't like the result.  They nearly always find that your functional limitations are not severe enough to qualify for disability benefits.  The alternative is to get your rheumatologist to provide an opinion about your Residual Functional Capacity.  Caution:  This is not a letter stating something general, such as, "My patient definitely has fibromyalgia and is not able to work."  This is useless.  The doctor needs to complete a detailed form (available from your attorney), which specifies exact limitations in dozens of functions.
   

In short, if you suffer severe symptoms of Fibromyalgia, there is hope of disability approval.  However, it is one of the most difficult diseases to get approved.  And frustrating.  Using an experienced disability attorney (or non-attorney advocate/specialist) can greatly assist you in this journey.  You will not be charged any legal fees until you are approved by Social Security and receive your back pay that you have been waiting for.  More information or consultation:  (256) 799-0297.  The Forsythe Firm.

IS IT GETTING HARDER TO GET DISASBILITY BENEFITS?

 Yes, it is definitely getting harder to get approved for Social Security disability benefits.

Because of political pressure (Congress and the White House), the Social Security Administration is retraining Administrative Law Judges to decrease the number of disability awards.  As a result, the average national approval rate has fallen from 69 percent in 2008 to 48 percent in 2018.  A 21 percent drop in award rates is substantial.  I see no sign that this trend is going to let up soon.

Social Security leadership is using two different methods to reduce the number of claims they award:

1.  Subtle changes in rules that make it more difficult to qualify, and

2.  Retraining their judges to look for more ways to deny claims.

At my office, we remember 2008 very well.  We could take just about any decent claim before a judge and get it paid. But today you have to fight, scratch and claw (legally speaking) to get even a strong claim paid. 

 I must say that some administrative law judges have taken their retraining much to literally. There are a couple of judges around  who just won't pay a claim, no matter how obvious the disability is. They are infamous among attorneys for refusing to pay cases and they have among the lowest award rates in the country (which I feel sure they are proud of).

In today's Social Security climate it is a bad mistake to attend a hearing without legal representation.  By the time you figure out where the ropes are, it's already too late and you have a judge's proclamation that you are "not disabled" in the record against you.  This is almost impossible to overcome.

A legal advocate knows why claims get denied and what it takes to get one approved.  He or she will know which medical evidence is required to support the claim, and how to get it.  Furthermore, your attorney will know how to present the case in court to give you the best possible chance of success.

There is no charge for consultations.  And you cannot be charged an attorney's fee unless your case is won and you collect past due benefits.  In fact, the legal fee can only be paid out of the past due benefits. 

Face the reality that in 2021 disability cases are very difficult to prove.  Get the best legal representation you can get.  One study from 2017 finds that good representation gives you a 300 percent better chance than going it alone. 

Some things can be do-it-yourself projects.  Social Security disability is not one of them.

HOW TO WIN SOCIAL SECURITY DISABILITY: 3 WORDS

 3 words tell you how to win a Social Security disability benefit.

Severity

Frequency

Duration

SEVERITY:  It isn't enough to be diagnosed with a disease or illness.  Your impairment must be so severe that it interferes with the ability to perform any full-time work.

FREQUENCY:  Some illnesses show severe symptoms only occasionally.  To get a disability benefit, an individual must have debilitating symptoms frequently enough to disrupt a normal working schedule.  For example, a seizure once every 60 days will not prevent a person from working.  However, a seizure on a frequent basis may preclude all work. 

DURATION:  Social Security will not pay a benefit for a short term disability.  The disabling impairment(s) must meet one of the following durational requirements:

1.  Has lasted for at least 12 straight months;

2.  Is medically expected to last at least 12 straight months; OR

3.  Is expected to end in death.

When trying to evaluate a potential Social Security disability claim, these factors (severity, frequency and duration) must be considered.

 If all 3 fall into place, it's likely the individual has a viable disability claim.

Social Security doesn't usually see eye-to-eye on the first try.  They are prone to deny applications first.  However, claimants who follow the appeal route and are persistent are very likely to get benefits after a while.

It's important to get professional representation, especially after being denied.  Claimants who try on their own only win about 31 percent of claims.  Those who have professional representation win about 60 percent of the time, according to national data sources.

Get help, be persistent and win your benefits!

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The Forsythe Firm

7027 Old Madison Pike - Suite 108

Huntsville, AL 35806                              "Across from Bridge Street"

PH (256) 799-0297  

WHY JUDGES LIKE FOR CLAIMANTS to be REPRESENTED

 I often have Social Security disability claimants call me and say, "I went to my hearing but the judge postponed it and told me to get representation."

Why is that Administrative Law Judges like for claimants to be represented at a disability hearing?  I think there are several reasons.

1.  The goes much more smoothly when the judge doesn't have to stop and explain to the claimant what certain terms and conditions mean.

2.  The claim has been much better prepared.  When it gets to the judge, the representative or attorney has explained the major points of law.  All the evidence has been obtained and submitted.  The judge won't have to delay the case and go looking for additional evidence or documentation.

3  The representative can help to quickly answer questions and resolve issues on the spot.

4.  It may be less likely that the decision gets kicked back on remand due to a claim of mistakes or faulty reasoning.

5.  Represented cases can often be done much more quickly.  In some cases, the claim can be approved based on the representative's pre-hearing work and a hearing may not be necessary at all.

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The Forsythe Firm

7027 Old Madison Pike - Suite 108

Huntsville, AL 35806

PH (256) 799-0297

email us:   www.forsythefirm.com

SOCIAL SECURITY DISABILITY IS A HARD ROAD

Social Security disability is a hard process.  It's meant to be.  It gets harder every year.

 I frequently get calls from individuals who are still working but they are struggling.  Many feel that they are forced to work because they have no alternative.  It is difficult to tell a person that Social Security offers no benefit while they are still gainfully employed.  If someone works and earns at least $1,310 per month in 2021, there is no chance of a disability benefit, no matter how sick the person is.

 It's also important to note that Social Security does not pay the first 5 months of a disability period.  This is due to the mandatory 5-month waiting period for all SSDI claims.  So, after you stop working, there can't be a check from Social Security for at least 6 months, if everything goes well and your claim is approved right away.  You must be prepared to go 6 months or more with little or no income.

Not being able to perform your past work is not enough to get SSDI benefits.  Depending on your age, Social Security will consider your ability to perform other jobs, including sedentary, simple and unskilled work.  This includes very low paying jobs that many people would not want to accept.  A claimant who is age 55 or over can usually get around this "other work" requirement.

Unless you meet one of Social Security's Listings, from the Blue Book, you will have to prove functional limitations that make it impossible to work.  By functional limitations I mean things like walking, sitting, standing, bending, lifting/carrying, concentrating, remembering, etc.  It helps to get a Residual Functional Capacity opinion from one of your treating doctors.  It isn't enough to allege functional limitations, they must be proven with objective medical evidence.

If you go before an administrative law judge (ALJ) and say, "I can't stand longer than 15 minutes," the Judge will say, "Show that to me in your medical record."  Or, if you say, "I don't think I can lift more than 10 pounds," the judge may respond, "Where in the medical record do we find an impairment that limits you to lifting 10 pounds?"  The medical record must support your alleged limitations.

When we represent a disability claimant, we look for ways to get him/her approved. Then we work toward that goal.  I've seen national data that suggest only 34 percent of claimants without legal representation get approved, while 60 percent who have representation are approved.  We will provide you with a free case evaluation at no cost or obligation.  Do you have a case that can be won?  Find out.  Call the Forsythe Firm in Huntsville, AL for a free consultation.  Reach out at (256) 799-0297.