Indiana Social Security Disability Attorney

Tom S. Ebbinghouse, Attorney At Law, Social Security Disability Indianapolis, Indiana

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Medical Diagnosis Alone Is Not Enough in Social Security Disability Case

June 22nd, 2009 · General, Medical Impairment, Rules, SSA

I recently saw an article on the Social Security Disability Lawyer by attorney Gordon Gates about it not being the diagnosis but the severity of the impairment that is important. He states:

“When talking with Social Security disability claimants, I often hear a statement like “I can’t work because I have been diagnosed with bipolar disorder” (or degenerative disc disease, or fibromyalgia). The claimant makes the statement like the matter is settled. The reasoning seems to be: since there is a doctor’s diagnosis of my impairment, my disability claim should be granted.

Unfortunately, that reasoning is not at all correct. It is not the diagnosis of the impairment but the severity of the impairment that matters in a Social Security disability claim. And I explain this to clients every day.

The diagnosis is just the beginning. A good beginning to be sure, since the diagnosis satisfies the medically determinable requirement in a Social Security disability claim. But the important thing is the severity of your impairment. How much does it affect your functionality? How does it affect your ability to work? These are the important questions in a Social Security disability case.

What is missing from almost every denied Social Security disability claim is evidence establishing a claimant’s functional limitations. A medical diagnosis alone does not establish any functional limitations. And unfortunately, a patient’s medical records usually have little information regarding functional limitations (medical records are created and maintained for medical providers to track a patient’s medical care, not to establish disability).

So remember, it’s not the diagnosis but the severity of the impairment that matters. And a Social Security disability lawyer spends a great deal of time trying to obtain evidence - often a medical source statement - that will establish a claimant’s functional limitations.”

I am in complete agreement with Mr. Gates observations. I have the same conversations with people all the time. I remind people that they need to tell the whole truth about their inability to work. You really do need to know the rules of Social Security disability.

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Indianapolis Social Security Disability Cases Appeal Processing Time April 2009

June 16th, 2009 · Delay, General, Hearings, Medical Treatment, SSA

The good news is that the processing time for appeals that go to hearing in Indianapolis has fallen when compared to the times from June 2008. The average processing time in Indianapolis measured from the Request for Hearing was 896 days at the end of June 2008. At the end of April 2009, the average processing time in Indianapolis measured from the Request for Hearing was 738 days. This is a reduction of 158 days.

The bad news is that the wait is still over two years long from the Request for Hearing. It is important that you keep seeing your doctor during your long wait so that your medical condition will be documented.

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Indiana To Have Additional Hearing Office for Social Security Disability Claim Appeals

June 12th, 2009 · Delay, General, Hearings, SSA

According to David V. Foster, Deputy Commissioner of Social Security, in his June 5, 2009 Deputy Commissioner Broadcast to Social Security employees, Indiana will have an additional hearing office to hear appeals of denials of Social Security Disability claims. The new office is to be in Valparaiso, IN and is supposed to be up and running by September, 2010. Help is coming to Indiana to work down the backlog of claims so that you do not have to wait so long for a hearing.

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Most People Still Turned Down on Initial Social Security Disability Benefits Application in Indiana

June 11th, 2009 · Attorney Representation, General, Hearings, Rules, Social Security Disability Benefits Denial Indiana

The report for Fiscal Year 2008 is out on the Initial and Reconsideration denial rates for Indiana. 63.8% of the Initial Applications for disability benefits were denied and at the Reconsideration level 93.2% were denied. These levels have not changed much since last year.

Most people tell me that they have heard that ‘everyone gets turned down twice,’ but they always think it will not happen to them. With odds like these, year after year, you have to know the rules . You need to know when to hire an attorney to represent you.

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Star Trek and Social Security Disability In Indianapolis

May 20th, 2009 · Attorney Representation, General, Hearings, Rules, SSA

The new Star Trek movie is out. As I have not seen it yet, I can not tell you what you can learn about Social Security Disability hearings in Indianapolis from the new movie. I did learn a great deal about Social Security Disability hearings from the original TV show. Click here to find out what you can learn about Social Security Disability hearings from the original Star Trek.

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More of the Priorities of Social Security and the Proposed Budget

May 13th, 2009 · General, Hearings, Medical Impairment, Rules, SSA

As noted yesterday, with the recently released statement of Michael J. Astrue, Commissioner of Social Security, commending the President’s Fiscal Year 2010 Budget Request, SSA posted a link to a document that spoke about the priorities of SSA and the proposed budget. Here are some more statements of interest:

“SSA is responsible for the Nation’s two primary Federal disability programs: Disability Insurance and Supplemental Security Income. Over the last 5 years, our disability workloads have grown significantly, and this trend will accelerate as baby boomers reach their most disability-prone years. We cannot lose sight of the fact that this longer-term increase in disability claims is coming, regardless of when the American economy begins to recover.

The time is now, despite the challenges of the economic downturn and the hearings backlog, to modernize the disability process to avoid future backlogs and provide applicants with speedy decisions. Technological improvements alone cannot remedy the issues in the disability process. We must revise the policy and medical guidance at the core of the program to align with medical technology and knowledge. A modernized disability process will help us to better serve the public and fulfill our obligation to provide a fair process to the American people. The following initiatives form the core of our disability modernization program in FY 2010:

Improve Occupational Information for Making Disability Determinations and Decisions

SSA is working on the development of a new occupational information system that will replace the out-of-date Dictionary of Occupational Titles (DOT) used in SSA’s disability determination process. The DOT was originally created by the Department of Labor (DOL) and has become a cornerstone of our disability policy. We rely on the descriptions of work in the DOT to determine whether individuals can do their usual work or any other work in the U.S. economy. However, DOL has not updated the DOT since 1991 and has no plans to do so. DOL’s replacement for the DOT, O*NET, does not serve SSA’s purposes. It is critical that we base disability determinations on current job information.

SSA awarded contracts in 2008 for the use and evaluation of updated occupational information. In December 2008, Commissioner Astrue established the Occupational Information Development Advisory Panel to provide advice and recommendations on plans to replace the DOT. The panel advises SSA on the creation of an occupational information system for disability programs and adjudicative needs. Specifically, the panel will advise on medical and vocational analysis, occupational analysis, data collection, use of occupational information, and other areas. The panel had its first meeting in February 2009 and has three more meetings scheduled this year.

SSA will continue its efforts to replace the DOT in FY 2010, when the agency will begin identifying the physical and mental abilities and skill levels that occupations require, developing the means of gathering occupational information, and researching assessment of residual functional capacity.

Update Medical Listings

SSA uses the Listings of Impairments to describe impairments considered severe enough to prevent an individual from working and earning above a defined level. The listings are a critical factor in our disability determination process; however, we have not updated some listings in decades. We are working to expand the listings to include rare disease and permanently disabling conditions. We are also working to update all of our existing listings by the end of FY 2010. We have also developed a long-term schedule to ensure that in the future we update all listings, as needed, but at least every 5-7 years. Updated listings allow disability examiners and SSA adjudicators to identify eligible applicants early in the disability determination process and result in improved disability decisions.”

All of this sounds good in the abstract. However, ONET was going to replace the DOT for disability hearings until it was determined it would not actually work in a disability hearing. Listings have been updated and some old listings have been completely removed because the listing was supposed to be covered by the new listing; however, the ALJ’s and Medical Experts do not always understand this. SAA has rolled out other plans that were supposed to help but only made things worse. Time will tell if these “improvements” actually improve things in the real world.

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Social Security Commissioner Releases Statement Commending the President’s Fiscal Year 2010 Budget Request

May 12th, 2009 · General, SSA

Michael J. Astrue, Commissioner of Social Security, recently released the following statement:

“By requesting $11.6 billion for Social Security’s administrative expenses, a ten percent increase over the previous year, the President has demonstrated his commitment to help us reduce longstanding backlogs as well as handle the recession-related work that is flooding the agency. With this support, we can continue to drive down the hearings backlog, process increasing numbers of retirement and disability claims, modernize our information technology, and improve service in our field offices and teleservice centers.

It is critically important that Congress enact President Obama’s budget proposal in a timely manner so that we can make the changes that will provide the American public with better and more timely service.”

A link was provided to another document that provides more information about the thoughts of Social Security regarding its priorities and the proposed budget. Here are a few statements that are of interest:

“Eliminating the hearings backlog remains a top priority. Despite the setbacks caused by the economic downturn, SSA is on track to eliminate the backlog by 2013. SSA will also continue to make critical changes to the disability process to improve timeliness, quality, and efficiency. These changes will align SSA’s disability policy with modern medical technology and knowledge….

Hearings and Appeals: In FY 2010, we will maintain the staffing levels that we reached at the end of FY 2009 and add roughly 700 new employees. These hires will help us to process nearly 80,000 additional hearings in FY 2010 and will ensure that the hard earned progress we have made towards eliminating the hearings backlog is not lost because of the economic downturn.

We are devoting more resources to the Hearings Backlog Reduction Plan in both FY 2009 and FY 2010 to ensure that we continue to make progress. This includes:
→ Hiring 157 ALJs in FY 2009 and 208 ALJs in FY 2010 to reach a target total ALJ corps between
1,400 and 1,450 by the end of FY 2010. We also plan to add support staff in FY 2010 to maintain
our ALJ to support staff rat o;
→ Continuing to increase productivity in the hearing process;
→ Opening 13 new hearing offices;
→ Opening more National Hearing Centers;
→ Implementing standardized business processes that will ensure consistency and improve
processing times;
→ Expand Quick Disability Determinations by increasing the percentage and types of claims
processed;
→ Piloting the new Compassionate Allowance initiative, allowing us to quickly identify individuals
who we believe are clearly disabled under SSA’s rules; and
→ Continuing to explore potential electronic initiatives that can reduce case preparation time.”

More will be posted from this document tomorrow.

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Social Security Disability and Third Party Verification

May 6th, 2009 · Attorney Representation, General, Medical Impairment, Medical Treatment, Rules

You only get paid benefits if you can prove that it is your medical impairment that prevents you from working. Many times people pursuing their Social Security Disability Benefits forget that Social Security wants to verify everything from a third party that Social Security considers reliable. They do not remember that if it is not verifiable by a third party that SSA considers reliable, then the fact does not exist. The third party that can verify your medical impairments and how they are affecting you on a particular day is your doctor.

Just because your doctor told you six months ago that there was nothing more the doctor could do for you - this is as good as it gets - does not mean that you can stop going to the doctor. If you do not have medical records (that third party verification) for those six months, the judge can say that there is no proof that your medical condition did not improve during that time or that it stayed the same, therefore you have not proved that your medical condition prevented you from working those six months. This could result in a complete loss of benefits. If you have seen the doctor in that time, then the medical records can document that you did not improve. Also, the doctor may document some facts that the doctor did not previously document. These facts may be what convince the judge that you can not work.

Another problem is that most doctors do not put in their medical records that they told you that this is as good as it gets. When you tell the judge that is what the doctor says, there is no way to verify this in the medical records. In preparing your case to win, you must assume that without third party verification of what you say that the judge will not believe you. Otherwise you are gambling that maybe you will be lucky and the judge will believe you. Why would you want to gamble on winning when you can continue to see the doctor and generate the third party evidence (medical records) that will show what your medical condition was?

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“The Rest of The Story” Man Dies

March 19th, 2009 · Attorney Representation, General, Hearings

Stand by for news!

A new client informed me that Paul Harvey had died. Why was I talking to my new client about Paul Harvey when we were discussing her disability case? I knew that if she had heard radio legend Paul Harvey’s show, The Rest of the Story, she could learn and understand an important lesson about her disability case. Like so many others, she was not telling The Rest of the Story.

Paul Harvey’s radio show always had a spot he called “The Rest of the Story”. Paul always had an interesting story that he would begin to tell. He would let you know how the story would end and give you some facts up to the commercial. When you heard the facts that he told you up to the commercial, the story did not make any sense because you just could not understand how given those facts there could be the end he had told you about. In fact, many times, I thought it was impossible!

Once Paul came back from the commercial, he would tell you The Rest of the Story. Paul would add one or two more facts, and the story would fall into place. Suddenly, the impossible ending was not only possible, it was required!

Based upon what my client had told me, I knew that she had left out some very important facts out of her disability story. I started talking to her about Paul Harvey’s radio show. I told her she had only gotten up to the commercial. I told her that her disability story did not make sense. She needed to tell The Rest of the Story. Once I pointed out to her the facts she had left out, she began to realize how she was not bothering to tell very important facts. She understood that she needed to tell The Rest of the Story.

Many people who have been turned down for disability do not realize that they are not telling The Rest of the Story. Paul Harvey’s radio program has been a valuable tool to help them understand how they can tell the truth, whole truth, and nothing but the truth by telling The Rest of the Story.

Paul Harvey will be missed.

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Preparation the Key to Success in Disability Hearings

February 19th, 2009 · Attorney Representation, General, Hearings, SSA

At the meeting in my office the day before her hearing, my client was stunned to see that the medical records we had submitted in her case were over a foot high. “You know more about me than anyone else,” she said. “You have been there with me every step of the way. I could not ask for any more to be done.” We had tracked down all of these records as we wanted to be sure that the ALJ had a complete picture of her medical problems. We wanted to be sure that we were prepared with evidence for all situations.

I went over her case with her in preparation for the hearing the next day. We discussed our theory as to why she should be found disabled under the rules of Social Security. We discussed her past work and discussed why her medical conditions prevented her from being able to do that work. I reminded her how a Social Security hearing was different from “TV court” and from other court proceedings. When I asked her if she had any other questions about her hearing, she said she felt that she was ready. She had read our memo about testifying at her hearing and said it answered so many of her questions that she felt she was now ready for the hearing.

After she left, I prepared my questions for the vocational expert. From my past experience, I knew that her past work had been light work that had transferable skills. I knew enough that I could handle the questioning of the vocational expert without any further preparation, but I went ahead and looked up all of the details in the Dictionary of Occupational Titles. I wanted to be over prepared “just in case.”

Because of all of our preparation, the hearing went smoothly. She answered each of the judge’s questions with the whole truth. The client got the result that she wanted. As I thought, I did not really need to look up all of the details in the Dictionary of Occupational Titles. But you never know for sure how a hearing will go. I still follow the motto of the Boy Scouts that I learned so many years ago-Be Prepared. It is still the key to success.

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Indianapolis ODAR Processing Time Update

February 12th, 2009 · Delay, General, Hearings, SSA

A recent report on average processing time of a Social Security disability claim from the time of the Request for Hearing shows that the processing time is becoming shorter at the Indianapolis Office of Disability Adjudication and Review. In a prior post, I noted that the processing time was 896 days. A recent report shows that the processing time has been reduced by 177 days to an average processing time of 719 days. The average processing time at Evansville was reported to be 588 days and Ft. Wayne is listed at 600 days. This is tangible proof that while the wait is still very long, things are improving.

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What Is Your Level of Pain?

February 5th, 2009 · Hearings, Medical Impairment, Medical Treatment

That is what the nurse was asking me recently as I lay in my hospital bed after my surgery. She wanted me to rate my pain from 0 to 10. I had pushed the button for the nurse and asked her for another morphine shot. I knew it was time to have it by the pain I was having, and by the doctor’s orders I could have had it sooner, but what number should I put on my pain?

I told the nurse that I hated the pain scale as I have had clients who had rated their pain at a number that the judge in their disability case thought was the wrong number for what they were describing. “What is a level 5, what is a level 8?” I asked. I was over-thinking this and the nurse just wanted to chart it, give me my shot, and move on. She agreed with me that the number was arbitrary, but that she needed to chart it. So I picked a number.

As I lay in my hospital bed, I could not help but think of the countless hearings I have been in where the judge has asked my clients to rate their pain. One judge said that a 10 was the worst pain you could imagine. What he did not say was that if you said a 10 he automatically disbelieved you as he believed that no one could be sitting there with a pain level of 10 (he never told them that to their faces). Other judges had no problem with a pain level 10.

I hate the pain scale because there is no way for us all to calibrate our measurements so that they are all the same. I have observed clients in great pain who state that their pain is a 6. I have had other clients who appeared to be in less pain that also said that their pain was a 6. So what is a level 6?

How did I want to compare the pain I had the two nights that I could not sleep from the pain to the pain that I had after surgery? There was a time I thought my pain might be a 10, but what about those I have seen who suffered more than I did those two nights I could not sleep? If delivering a baby is a pain level of 10, was my pain that bad? Since I am a man, I will obviously never know how my pain compares to the pain of childbirth.

So I started to answer the nurse the way I advise my clients to tell their medical providers about the pain. I started to describe the pain without putting a number on it. I started to give the nurse details about the pain. How it felt. Where it was. What aggravated it (at that point for me it was just shifting in the bed). What kind of pain it was ( by this I mean was it hot, cold, constant, throbbing, stabbing, electrifying ect.) How intense it was. She wrote down my description. Now a “real” description of my pain was recorded.

It is important to get a “real” description of your pain recorded into the medical records every time you visit your medical provider. This will allow the judge to read your descriptions and know how your pain was at the beginning of your disability and how the pain continued during all of the time that was disabled. If you only give a number, you and the judge may have different ideas as to what that means. The only way you could “both be on the same page” would be for you to calibrate with the judge your pain measurements on the same scale to discover that your 6 is his or her 8. The problem is that this can not happen until the hearing, and the judge will have already read the file and decided how bad your level 6 pain is. It may be hard for the judge to change his mind. If your full blown description of the pain is in your medical records, the judge will read that as he reads the file and decides how bad your pain is.

Your full blown description of the pain in your medical records is vital to your case.

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Indianapolis ODAR Transferring Disability Cases Due to SSA Backlog

September 11th, 2008 · Delay, General, Hearings

The Indianapolis ODAR is again transferring disability cases to other offices. We just got a batch of notices for several cases. The notices state that the case will still be heard in Indianapolis, but that it will be assigned to another judge in another office. We now have clients with their cases in Illinois and Arizona. [Read more →]

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Congressional Subcommittee to Hold Hearings on SSA Backlog

September 10th, 2008 · Delay, General, Hearings, SSA

Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, announced that the Subcommittee will hold a hearing on the performance of the Social Security Administration’s (SSA’s) appeals hearing offices on Tuesday, September 16, 2008 [Read more →]

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Most People Turned Down on Initial Social Security Disability Application

August 21st, 2008 · Attorney Representation, General, Rules

According to Social Security Office of Disability Programs, for Fiscal Year 2007, in Indiana 67.5% of all applications for disability benefits were denied at the Initial Level. At the Reconsideration level, 93.8% are denied.

I try to warn clients that most claims are denied at these levels because everyone thinks the ‘other guy who really does not deserve it will be denied, but I will not.’ These statistics prove that most people should be prepared to be turned down and should be prepared to go to hearing. They should not go it alone thinking they have a good change to win without someone who knows the rules . They need to know when to hire an attorney to represent them.

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Indianapolis ODAR Average Processing Time

August 18th, 2008 · Delay, General, Hearings, SSA

According to a recently released report from SSA, as of June 27, 2008, the Average Processing Time at the Indianapolis Office of Disability Adjudication and Review (“ODAR”) is 896 days. By this ranking, Indianapolis was in 147th place out of 147th ODARs. The Evansville ODAR was at 136th place with 762 days. Fort Wayne was at 130th place with 711 days.

In a previous report, as of May 30, 2008, Indianapolis was in 144th place with average processing time of 815 days, Evansville was 135th place with average processing time of 704 days, and Fort Wayne was 122nd place with average processing time of 638 days.

Why is there such a delay at the hearing offices? Click Here!

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What kind of ‘eye witness’ are you?

August 13th, 2008 · Attorney Representation, General, Medical Impairment, SSA

When will I ever learn? Upon return from my vacation, I started to get the sniffles. Sneezing. A summer cold, I thought. Coughing. I went to work on Monday and was determined to get started on getting caught up from being gone a week. Mid-afternoon I was really slowing down, but I pressed on, even though I wanted to go home and go to bed. Boy, I thought, I had really gone soft from that week of sleeping in. Stephanie, my paralegal, even told me I looked pale. I thought, oh, I don’t feel that bad—I will press on. I was glad I made it to 5:30 before I finally went home.

Next day I struggled on. Boy, is this cold annoying, I thought. On Wednesday morning, at about 10:30 (if I had looked at my watch I could tell you the exact time), both my ears suddenly ‘closed off’ and both suddenly began to hurt with that pain you get when you have a cold and fly on a jet. Ah, I thought, I will just take some decongestant when I go home tonight, and my ears should open up on their own soon. By 2:30 PM, I could not take the pain anymore and finally went home to take some decongestant. I waited for my ears to open and the pain to go away. At 1 AM, when I still could not fall asleep due to the pain, I finally wised up and took some Tylenol.

Next morning I thought the pain had gone away and debated about calling the doctor. I finally decided to let him take a look. I continued to work from home. At my appointment that afternoon, he found that both my ears did “look bad.” Double ear infections. Antibiotics were prescribed.

Did I stay home and rest the next day? No. Stubborn me, I went to work for a while, until I finally recognized that I was worthless. Did I stay home on Monday to get well? Nope. I thought I was doing so much better. I could work. Stephanie commented that I looked tired. I finally went home. I will not bore you with the details of how I continued to go into work when I should have stayed home and gotten well because I did not realize how sick I was.

I should have known better. Stephanie has worked for me for several years. She knows me. When she told me I looked pale, I should have remembered that the last time she commented about how I looked pale, I finally went to the doctor to discover I had severe bronchitis/walking pneumonia and was sick for three weeks. When Stephanie tells me I look pale, I should know that means ‘you need to see a doctor immediately because you are really sick.’ I did not get the hint. But both times, I did not want to believe that I was that sick, I did not think I felt that sick, and it never registered to me how sick I really was. I thought I was capable of doing much more than I could.

I see this all the time. My disabled clients want to believe that they can do more than they really can. I remember the man who came in with his family. They had finally gotten him to come in and begin to think about applying for his Social Security Disability. He and his wife sat in the first row and his grown kids were in the second row. I asked him to tell me what he could still do. While he was telling me, his kids were shaking their heads “NO!” until one finally said: “Dad, you have not been able to do that for three years.” He turned around and looked at his child. The other ones all shook their heads in agreement. Dad, like me, did not think he was that bad off and it had never registered with him what he could not do. Both of us were not good ‘eye witnesses’ about ourselves. We needed those that really knew us to tell us the truth about how we really were. Neither of us invited the assessment. We just assumed that we knew what we could do. Neither of us decoded the hints that were given to us.

I advise client’s to invite their loved ones to give them an honest, blunt, no holds barred assessment of what they can and can not do. Pick a good day when you can take it, and give them permission to tell you what they see. Go to your doctor and find out what he or she really thinks you can do. Evaluate what they say. Test it out. You may find out that like me, you are a really bad ‘eye witness’ for yourself when you do not have this information.

When you talk to Social Security about your medical conditions, you want to tell the truth, the whole truth, and nothing but the truth. Don’t be a bad witness for yourself. Test your assessment against what your family and your doctor sees. See if you need to ‘wake up and smell the coffee’ like I needed to. Don’t let you fool yourself into thinking you can do more or less than you can. Take the steps to become a good witness for yourself by figuring out what you used to be able to do before your medical impairments and what you can do now.

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SGA - Substantial Gainful Activity- Presumptive Amounts

July 15th, 2008 · Attorney Representation, Delay, General, Impairment Related Work Expenses, Medical Impairment, Rules, SSA, Substantial Gainful Activity

At Step One of the Five Step Sequential Analysis , Social Security determines if you are engaged in Substantial Gainful Activity (SGA). When you work for someone else and are not self-employed, SSA usually uses a “rule of thumb” to determine if someone is engaged in SGA. According to this “rule of thumb” if you earn a certain dollar amount or less, you are usually not considered to be engaged in Substantial Gainful Activity. [Read more →]

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The Whole Truth

July 9th, 2008 · Attorney Representation, General, Hearings, Medical Impairment, Rules, SSA

Sometimes claimants forget that in the questions that Social Security asks, they are always really asking: “how does your medical impairment keep you from working?”

Social Security asks a lot of questions about what you do during the day. These types of questions are about your activities of daily living. The idea is that if Social Security asks you what you do day in and day out and learns what you do, they can then figure out if your medical impairment would prevent you from working.

So, what does Social Security conclude if you state that you go out to eat several times a month? This depends upon what your medical impairments are.  Assume you cannot work due to back pain. You cannot stand for more than 15 minutes at a time before you have to sit down for 15 minutes. You cannot sit for more than 30 minutes before you have to stand or lie down. Can you guess what conclusions Social Security is likely to jump to about your ability to work because you go out to eat?

When I go over these types of issues with my clients, they have no idea what the real question is that they are answering. Due to not knowing the real question, they do not tell all that they know that is relevant to the real question. Since they do not tell everything they know that is relevant to the real question, they actually end up in effect lying.  They are not telling the whole truth, only part of the truth. Do not misunderstand me, they are trying to tell the truth, but they do not understand the real question.  They are not telling all that they know which is critical to answering the real question. This partial truth-only part of the facts-is used by Social Security to reach conclusions about whether or not they are disabled. When they do not have all of the facts, how can Social Security make the right decision?

Some Administrative Law Judges will compare what the claimants says at the hearing with what they told SSA at the beginning of the process before the claimant understood what was really being asked.  If there is any variation, they conclude that the claimant is not being truthful.  Our clients want to tell the truth. We help them to tell the whole truth at the beginning of the process. We help them understand the question - the real issues in the questions that Social Security is going to ask them. Do you have someone with the experience needed to help you tell the whole truth?

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Five Step Sequential Evaluation

July 7th, 2008 · Attorney Representation, Delay, General, Hearings, Medical Impairment, Medical Treatment, Rules, SSA

Social Security uses a 5 step sequential evaluation process to decide your claim. [Read more →]

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Celebrate Our Liberty and Rights

July 3rd, 2008 · Attorney Representation, Delay, General, Hearings, Medical Impairment, Rules

us flag

I hope you have a fun and safe Fourth of July. It is a great time to celebrate our liberty and rights. The holiday is known as Independence Day because our forefathers had to fight for our liberty and rights. The government of that time (British) did not want to recognize the rights that we were claiming. It was only by our forefathers fighting hard and not giving up that we have our rights today.

No one man could do it by himself.

[Read more →]

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Medical Impairment, Ability to Work, & Social Security Disability

June 30th, 2008 · Attorney Representation, General, Hearings, Medical Impairment, Medical Treatment, Rules

I previously discussed Medical Impairments and Social Security Disability. Sometimes claimants forget that Social Security only pays disability benefits if you can prove that it is your medical impairment(s) that prevent you from working. SSA does not pay for bad attitudes (unless it is a diagnosed personality disorder that is rather severe), the factory closing, or ‘I just for some unknown reason can not work’. You have to prove that it is your medical impairment that prevents you from working.

When you are proving that it is your medical impairment that is keeping you from working, [Read more →]

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When Should I Hire An Attorney For My Disability Case?

June 17th, 2008 · Attorney Representation, Delay, General, Hearings, Medical Impairment, Medical Treatment, Rules, SSA

I recently was the moderator of a panel discussion at the Indiana Continuing Legal Education Forum Social Security disability seminar “Persuasion at Social Security Hearings: Beyond the Mechanics at ODAR Hearings”. During another part of the seminar, an attorney was asked when he would begin representing clients in their Social Security Claim. He responded that he would not represent a claimant until they had been turned down at least once. I used to do it that way.

When I first started representing claimants in 1994, I also would not take a client until they had been turned down at least once. I reasoned that if someone could be approved on their initial application without an attorney, why not let them go ahead on their own and find out if their claim could be approved. They could save an attorney fee and it would not hurt their case if they did lose, so why not wait to see who really needed an attorney to help them?

But then I started to notice something. When people applied by themselves, they were making it harder to win their case by not having an attorney at the beginning to explain to them the rules of Social Security. They were unknowingly lowering the odds for success at that stage and at the appeal stages. They were not realizing that they were making strategic decisions that might ruin their claim before some administrative law judges. They did not have someone to help them figure out what was the relevant evidence that they needed to be sure they presented to Social Security. I figured out that I was wrong-people were hurting their case by not having an attorney at the beginning of their case.

Several years ago I decided that I had to start taking claimants as clients as soon as possible. Claimants needed to be represented before they filed their claim. If I made a claimant wait until they were turned down before I would represent them, their not knowing the rules put them at a disadvantage: bad evidence was created, good evidence was not brought forward, other strategic choices were being made that could not be undone, and good claims were being unnecessarily tainted with misinformation.

Do not wait to hire an attorney. Get competent help before you file so that the job will be done correctly from the beginning. Do not hope that the attorney can tear out the bad and re-do it. Do it right the first time. It can shorten the whole disability process. Get an attorney that will represent you from the beginning of your claim. Have someone on your side that knows the rules of Social Security and can explain them to you.

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Medical Impairment and Social Security Disability

June 11th, 2008 · General, Medical Impairment, Medical Treatment, SSA

Social Security only pays benefits if you have a medical impairment that prevents you from working. The claimant has the burden of proof -that is a “lawyer way” of saying that you have to prove you have a medical impairment and you have to prove that the medical impairment is the reason you can not work.

The best proof of you having a medical impairment is the medical records that document a doctor diagnosing the impairment. When someone has something wrong and the doctors just can not figure out what it is, [Read more →]

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Social Security receives A+ on Computer Security

June 5th, 2008 · General, SSA

Ranking Member Tom Davis, House Oversight and Government Reform Committee, released the Eighth Report Card on Computer Security at Federal Agencies. [Read more →]

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Do You Know the Rules of Social Security?

June 4th, 2008 · Rules

In January of 1968, in the second season of Star Trek, Captain James T. Kirk invites the mobster Jojo Krako to play a card game of Fizzbin. Krako, who plays a lot of card games, accepts even though he does not know the rules. Kirk deals the cards. Kirk and Spock then begin to turn over the cards of Krako’s hand. His hand reveals face cards (King, Queen, Jack). Krako is excited as he says he has a good hand. Kirk then tells him that in Fizzbin a King is bad, a Queen is bad, and a Jack is bad. In fact, Kirk says, Kirk’s hand of  low cards is the winner and Krako has lost. When I saw the program, it was obvious to me that Kirk was making up the rules as he went. There was no way that Krako could win because he did not know the rules. If you want to purchase the DVD so you can see the whole episode, click here Star Trek DVD

Many claimants go about their Social Security Disability claim in the same manner. They do not know the rules and believe anything that anyone at Social Security says. If someone from the Disability Determination Bureau says that you have to go to an examination by one of their doctors, how do you know any different?

Other times a claimant is like Jojo Krako because something in the process is so familiar that they do not question it–they do  not realize that under the rules of this game, a King is not a good thing to have. A good attorney who has had years of experience dealing with Social Security will be able to tell you the rules and warn you ahead of time about them so that you can make the best presentation of your case.

Do you know all the rules of Social Security Disability? How big of a gambler are you with your case?

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Why Does It Take Social Security So Long To Decide a Disability Case?

June 3rd, 2008 · Delay, General, Hearings, SSA

Clients always want to know why it takes so long to decide a Social Security disability case. The dirty little secret is that Social Security does not have enough staff to quickly handle the case. How do we know this?

When I chaired an Indiana Continuing Legal Education Forum  seminar on Social Security in 2006, I invited judges from the Indianapolis and Fort Wayne offices of the Office of Disability Adjudication and Review (ODAR), to speak to the attorneys. (ODAR used to be called the Office of Hearings and Appeals (OHA).) While talking about the long delays before hearings are able to take place in the Indianapolis office, one judge commented on the staff shortages in the Indianapolis office. He told the attorneys that a judge in the Indianapolis ODAR was the highest paid mail clerk in the federal government due to the fact that there was not sufficient office staff to open the mail and associate it with the files. He stated that this judge therefore took the better part of one day a week to deal with the mail so that the cases could keep moving. That means that approximately 20% of this judge’s work time,  he was not able do what only he can do – be a judge- and instead is a mail clerk. No wonder things were moving slowly!!

The good news is that the Commissioner of Social Security has stated that he has lifted the hiring freeze in the hearing offices. In his testimony to the Committee on Appropriations of the House of Representatives on February 28, 2008, he testified that he wants to have 4.1 support employees for each judge.

According to the statement of Linda S. McMahon, Deputy Commissioner for Operations, Social Security Administration, in testimony before the Senate Finance Committee on May 8, 2008, until this year, Congress had not appropriated at or above the President’s budget request since 1993. Administrative funding was reduced or delayed in each of the prior 15 years. In the last 4 years alone, overall Agency employment dropped from 63,596 to 60,206.

For a long time, SSA has had a policy that it would not replace workers it lost due employees quiting, being fired, or retirement in the District Offices and Field Offices until it had lost two workers. Once the local office had lost two workers, then it would replace the two workers with only one new employee.

Along with their responsibility for many core Social Security workloads, field offices handle complex programs for other agencies, such as Medicare, Medicaid, e-Verify, Black Lung, Railroad Retirement, and food stamps. SSA also issues 1099s to help taxpayers file for payments under the economic stimulus package. Seems like the list of things that the local offices must do just keeps getting longer while the number of workers has gotten smaller. As a claim must be handled several times by the local office at each stage of your claim, one can begin to understand why the number of workers available to do the jobs that SSA does is important.

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