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.