WHY FILING A NEW APPLICATION ISN'T THE SOLUTION TO A DENIED CLAIM

When your Social Security disability claim gets denied, it may be tempting to file a new application.  However, in 98 percent of cases, a new application is the exact wrong move.

When you file a new application following denial, here are some things you need to know:

1.  You are starting over in the literal sense of the word.

2.  There's no more chance of success with the new claim than you had with the old claim.

3.  The 2 questions Social Security will ask on the new claim are:

• Does the claimant have substantial new evidence this time that wasn't available before?

• Is there a major difference in this new claim compared to the old claim?  New disease, new diagnosis, etc.

In short, Social Security is asking, "What's new?  What has changed?"  

If the answer is Nothing--expect the same decision.  Another denial.

The application process is a weeding out process. It doesn't produce many awards.  It mostly produces denials.  It's not the most fertile ground to try for approval. In fact, the application process has an approval rate of around 25 percent. Appeals have about a 45 percent approval rate. Get out of the application stage as fast as you can.  File an appeal.

OTHER REASONS NOT TO FILE A NEW CLAIM

• You will almost certainly lose most or all of your back pay.
• You may reach your Date Last Insured and cease to be covered by SSDI benefits.
• A new application delays a favorable decision by 4 to 6 months.  Wasted time.
• A new application is just spinning your wheels, but you go nowhere.
• The same agency that denied your first claim, examines your new claim, too.
• Same information in, same result out.

THE SUPERIOR WAY TO GO

File an appeal.  This keeps your old claim alive but eventually gets it out of the agency that denied it, and sends it "up the ladder" to a higher authority for review.  It preserves your right to appear before an administrative judge (with your representative) and make your case personally to the judge.  You never achieve this with new applications.   

What Does It Cost To Appeal?

Nothing.  You cannot be charged legal fees or attorney fees until after you win and receive past due benefits.  If you don't, there cannot ever be a fee.

 

  

WHERE IS MY CHECK? PROBABLY IN THE TANGLED UP US MAIL

 Where is that check you've been expecting (and needing)?  It's probably tied up somewhere in the US Mail, which has become slow and unreliable in the past few weeks.

 Many Americans depend on the mail to deliver important things, such as Social Security checks, retirement benefits or even pay checks.

 However, it is now taking up to 14 days longer to get mail than it should.

The US Postal Service (USPS) was hit hard by the COVID-19 outbreak.  Further aggravating the situation, the new Postmaster General, Louis DeJoy, implement new policies to save money--and these further slowed down mail delivery. For example, he reportedly refused to allow mail trucks to leave on time if they were waiting on other mail trucks.  

A few days ago, DeJoy announced that he is suspending the new, slower rules to try to get the mail back on time.  This is in response to protests by lawmakers, postal unions and others.  20 states have announced that they will sue the agency and DeJoy; it is not known whether the states will back off the suits now that DeJoy has abandoned his new rules.

Funding is a big problem. The Post Office had requested billions of dollars in new funding from the Trump Administration, which balked at the request.  Thus, the Post Office remains even more cash strapped.

So, if you wonder where your Social Security Check is, or some other important mail, it's a good guess that it's held up in the postal system somewhere, waiting to be delivered.

Whenever possible, think about having your check or benefit direct- deposited to your bank.  This takes the mail delays out of the picture and gets the money to you much faster!

WHAT IS "CREDIBLE TESTIMONY" IN A DISASBILITY HEARING?

 When judges write their decisions, they sometimes refer to "credible testimony."  What do they mean by this term?  Does it simply mean that the claimant has come in with a good, reasonable account of his or her disability?  Or does it mean more than that?

The term credible testimony means that what the claimant says is supported by objective evidence in the medical record.  For example, if the claimant testifies that he has severe back pain on most days, there should be medical evidence to support this.  If he has X-rays and MRI studies that show herniated discs, stenosis of the spinal cord and osteophytes that press against the nerve roots, then this explains the severe back pain and makes it explainable.

However, if an individual tells the judge that he has severe back pain without any objective medical evidence to support it, it may be considered testimony that is "not fully credible," or "not supported by objective medical evidence."  This will generally cause a claim to be denied.

So, there are really two important parts to credible testimony:

1.  A reasonable explanation from the claimant as to the type, location and severity of symptoms, and

2.  Objective medical evidence that is consistent with symptoms that the claimant alleges.

When both of these things are present, you have at least a medically determinable impairment.  Will it pay?  That question involves another step:  Is the impairment so severe that it seriously reduces the claimant's capacity to perform "substantial gainful activity," or full time work?  Does the impairment preclude all work or just work at some exertion levels?  For example, an individual may not be able to work at heavy or medium level jobs but can still work at light or sedentary jobs. 

The point I want to make is this:  Telling a convincing story to the judge will not be enough to get the claim paid.  The federal regulations prevent judges form paying disability claims unless there is objective medical evidence to support the claimant's allegations.  In short you will need X-rays, MRIs, CT scans, laboratory tests or other signs that support your symptoms.  So, it's to the doctor first and to Social Security later.  

The stronger the objective medical evidence, the more likely your claim is to get paid.  If you'd like for a disability specialist to look at your case and evaluate how strong it is, contact the Forsythe Firm at (256) 799-0297.  The evaluation is free and there is no cost or obligation.

PROTECT YOUR SOICIAL SECURITY INCOME - IT'S EASY

 Debt collectors will often try to seize your Social Security income, although it is exempt from most garnishments and liens.  That doesn't always stop creditors from using their court order to grab the Social Security money you have deposited in a bank or credit union.

And you cannot depend on the bank to know that these seizures are against the law.  I've had clients whose money has been grabbed by creditors and the bank didn't seem to understand the law at all.

Here is how you can protect your Social Security income once it has been deposited into a checking or savings account:

1.  Use a special, dedicated account and deposit all Social Security into this one account.

2.  Do not deposit any other income into the account--just Social Security money.

3.  Don't allow anyone else's name or Social Security number to appear on the account.  In other words, no joint accounts.  If someone else, such as a spouse, appears on the account, it can confuse the protection you should have.

4.  If a creditor seizes your account, inform the bank that Social Security money is exempt from most liens, seizures and garnishments.  The bank must do an investigation to show that the funds seized were not exempt as Social Security funds.  This is where it is very helpful not to have any other funds co-mingled with your Social Security funds.

IMPORTANT NOTE:  Certain types of debt are not exempt from seizure or garnishment.  This includes most debts guaranteed by the US government.  For example, student loans, past due child support or VA mortgages may not be exempt and could be legally seized.

This information is provided as general information and is not intended to be legal advice on any particular problem or situation.  If you need legal advice, please call your attorney for a consultation.

IS IT HARDER TO GET DISABILITY BENEFITS NOW?

 For about the last 3 years, Social Security has issued new regulations which are definitely aimed at making it more difficult to get disability benefits.  We'll focus on just 3 of those rules:

1.  Social Security no longer gives special weight to a claimant's treating doctor.  Prior to March 27, 2017, the opinions of your doctor were given preference over those of others, such as one of the agency's consultative doctors.  After that date, however, your doctor's opinion gets no special consideration.  In fact, Social Security's guidelines for evaluating medical evidence gives the advantage of their own consultative doctors, not yours.  This makes it more difficult to win a claim.

2.  Social Security no longer considers illiteracy in making decisions on disability claims.  Under the old grid rules, the inability to read and write English was considered, among other factors, in deciding if a claimant were disabled.  It is no longer considered in most cases.

 3.   Social Security now requires an extra step before a claimant can appear before a judge.  As of October, 2019, claimants who are denied in Alabama cannot appeal directly to an administrative law judge and ask for a hearing.  An extra step called "Reconsideration" must be filed first.  This "Reconsideration" adds 60 to 90 days more waiting time and rarely results in any action favorable to the claimant.  A recent study shows that 55 percent of claims denied at Reconsideration will win before a judge.  Thus, "Reconsideration" gets it wrong 55 percent of the time!  Yet, it adds up to 90 days to the already long disability process. In the last 10 years, award rates have fallen by 20 percentage points.

In 2011, an average of 62 percent of claimants won their disability benefits if they used all of their appeals.  In 2018, however, this number had dropped to 42 percent.

Every time Social Security announces a rule change "in order to better serve our clientele and secuure the integrity of the system," you can bet that the new rules does one thing:  makes it harder to get disability benefits--and take even longer.  I'm convinced that someone in Baltimore is sitting around all day thinking, "How I can reduce the number of new Social Security disability benefits?"

How can you fight Social Security's ever tightening rules and win?

1.  You need excellent medical documentation from your doctors.

2.   You must know what the current rules are.  Imagine trying to play chess if no one had explained the rules to you?  A nightmare.

3.  Get professional help.  You will be going up against seasoned professionals at Social Security. These experts have attended thousands of hearings and they know exactly what to expect. Your appeal hearing will be attended by these professionals:

• a vocational expert paid by Social Security (every hearing)
• an Administrative Law Judge who works for Social Security
• a medical expert (doctor) called by and paid by Social Security (often, not every case).

I advise you:  Do not go before these people unrepresented. It is asking for denial.  In fact, it's begging for it.  Get knowledgeable representation.  Ask for a "contingency fee agreement," so you don't pay any attorney's fee unless you win.  This arrangement is win/win for you.

 

Does every claimant who goes unrepresented lose?

 

No.  Statistics from Social Security state that slightly fewer than  3 out of 10 unrepresented claimants still win.

 

However, about 6 out of  10 claims represented by an advocate/attorney will win.  That's twice the number!  

 

So, in effect, you get to choose your own odds! 

 

DISABILITY BENEFITS FOR CHRONIC PAIN

 Chronic pain can be defined two ways:

1.  Pain that lasts longer than the usual course of an illness or injury.  

2.  Recurring pain that has lasted 6 months or longer.

While Social Security's Blue Book does not have a listing for chronic pain, it may be possible to get benefits.  But there are some things you should know about chronic pain:

1.  Social Security cannot pay for symptoms only.  You must establish that you have a medically determinable illness or impairment that can reasonably explain the chronic pain.

2.  Your medical impairment must be determined by objective medical tests or investigation.  You should have X-rays, MRIs, CAT scans, laboratory tests, etc. to diagnose the condition.

3.  The pain must be a reasonable symptom of the diagnosed medical condition.  

4.  There should be current medical records that documents the location(s), nature and severity of pain.

• In what parts of the body does pain occur?
• Is the pain described as burning, aching, stabbing, throbbing?
• Does the pain occur constantly, frequently, or only occasionally?  Be specific.
• What exacerbates (brings on) the pain?  What relieves it?
• What treatments have you tried to help reduce the pain?

Again, it is extremely important that the chronic pain is understood to be the result of a medically determinable impairment.  It cannot be just that, "I have a lot of pain."  

If possible, get a treating doctor to provide a Treating Source Statement specifying how work-related activity would be restricted by the pain.  In other words, specifically how would it limit such abilities as standing/walking, sitting, bending, lifting, kneeling, using arms and hands, concentration, completion of work tasks, etc.

Social Security may approve a benefit if it is convinced that pain is so severe that it prevents the ability to perform full-time work (i.e., 8 hours per day, 5 days per week or an equivalent schedule).

 

YOU MUST HAVE A PLAN TO GET DISABILITY BENEFITS IN ALABAMA

Having a plan or strategy is very important to winning your Social Security disability appeal.

Judges have very limited time to spend on a case.  They are required to issue up to 700 decision a year, or over 50 per month.  One case may have thousands of pages of medical records and other documents to review.  Your attorney or representative can help the judge, and your chance of winning, by pointing out what the judge needs to know.

• Is this claimant insured for benefits?
• What kind of past work did the claimant do?
• Does he or she meet a Listing or grid rule?
• Are there any transferable skills?
• Does the medical record support the alleged onset date?  If so, where? 

These are things the judge must know to decide the claim. 

A good representative will read and analyze the medical records, which are the foundation of every case.  The important evidence will be pointed out to the judge.  Are there MRIs or imaging studies to prove the alleged impairments?  Where can they be found quickly?

Do any of the treating doctors provide an opinion on the claimant's ability to perform work-like activities?  How do these opinions limit the claimant's residual functional capacity?

Then we come to the claimant's testimony.  It's very important that the claimant has been prepared and knows what to expect--and how to answer.  The testimony should match up with what the doctors say in the records.

Award rates among Social Security judges are lower now than at any time in the past 30 years.  A lot of things have to line up and make sense for the judge.  

I always provide the judge with a pre-hearing brief.  That means that I give her a step-by-step view of the case and why the federal regulations allow benefits to be paid.  The brief condenses hundreds (or thousands) of pages of medical evidence into 3 or 4 pages that can be read in about five minutes.  So, I try to help the judge make efficient use of his/her time.

A lot of times I can answer difficult or technical questions for the judge.  This can also help to get a favorable decision out more quickly.  

It's risky to walk into a hearing and just hope for the best.  Those kind of hearings often don't go well for the claimant.  It's much better to have a legal roadmap of where you want to go and how to get there.  That's worth paying the attorney/representative a fee when your case is successful. 

So, talk to a representative early in the process.  I think most people who appoint me to represent them decide after just a few minutes that I can add value to their case.  I have to think so, too, or I won't take the case.  The best of all worlds is when the claimant and representative work well together as a team.
______________
Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike NW, Site 108
Huntsville, AL 35806
"Across from Bridge Street"
CALL (256) 799-0297 

https://forsythefirm.wixsite.com/website