By Jonathan Ginsberg on Jul 1, 2013 in Social Security judges | 0 Comments
Social Security law has long included a provision which disallows a finding of disability if a claimant’s drug or alcohol addition is a contributing factor material to the determination of disability. As a practical matter this means that a Social Security decision-maker (adjudicator or judge) has to decide whether you would meet Social Security’s definition of disability if the drug or alcohol addition did not exist.
Obviously it will be very difficult to untangle your medical record to make this type of determination because the limitations on your capacity to work reflect the totality of your overall body health. However, Social Security has attempted to offer its decision makers a little more guidance with a new policy interpretation ruling that took effect in March 22, 2013 and rescinded SSA’s prior ruling which dated back to 1980.
The new ruling, which is called SSR 13-2p sets out in a question and answer format the Agency’s policy about substance abuse and disability claims. Click here to read SSR 13-2p. Read the rest
By Jonathan Ginsberg on Apr 19, 2013 in Disability Hearings, Social Security judges | 0 Comments
Last year, SSA announced a policy whereby they would not reveal the names of the judges who would be presiding over hearings. Ostensibly this was to stop “judge shopping” in which claimant’s representatives would advise their clients to move if a hearing was scheduled before a judge with a low rate of favorable decisions.
Claimant’s attorneys like me were predictably upset by SSA’s new policy. There was no evidence that judge shopping was a major problem and by concealing the names of the judges it has been more difficult to prepare clients for hearings.
NOSSCR, an organization that many claimant’s reps belong to, advised us to file freedom of information requests. Apparently enough lawyers filed these FOIA requests that Social Security has relented. As of April 20, 2013, SSA will once again include the name of the assigned judge on the hearing notice. Read the rest
By Jonathan Ginsberg on Apr 17, 2013 in Continuing Disability Reviews | 0 Comments
If you have been approved for Social Security disability benefits during the past year, you may have noticed that your favorable decision contains a statement from the judge directing Social Security to conduct a case review in either one year or three years from the date of the decision.
These orders for short term reviews are something of a new phenomenon. Prior to 2012 I think I saw this type of directive only once or twice. Now these orders are in almost every decision.
Social Security disability is running out of money. SSA administrators are addressing this shortfall by:
- encouraging judges to only approve cases where there is objective evidence of disability
- carefully reviewing the approval/denial statistics of judges
- moving to terminate the contracts of judges with extremely high approval rates
- informally encouraging judges to keep approval rates to a 30 to 40% range
- increasing funding for continuing disability reviews Read the rest
By Jonathan Ginsberg on Mar 13, 2013 in Disability Hearings, Preparing for your hearing | 0 Comments
If you have requested an administrative law judge hearing in your Social Security disability case, you want to take every step possible to present a clear and convincing argument to your judge. Since disability hearings typically last only about 45 minutes to an hour, there is little time to waste. Read more from me about disability hearings – click here.
Generally the first 15 to 20 minutes of your hearing will involve procedural and background material. Vocational witness testimony at the end of your hearing will take 10 to 15 minutes, which means that the judge will expect you and your attorney to present the main points of your case within 30 to 40 minutes.
As the claimant – the person seeking disability benefits – you can and should rely on your lawyer to prepare a thoughtful argument and direct examination questions that he can ask you to help the judge get a sense of your credibility and honesty. It goes without saying that your lawyer should request and submit medical evidence so that your file will be complete. Read the rest
By Jonathan Ginsberg on Mar 4, 2013 in Payment calculations | 0 Comments
If you are used to receiving your benefit check by paper check, you will soon be advised by SSA to sign up for either direct deposit into a bank account or for a debit card to receive your payment. Because paper check processing costs over $1 per check vs. about 8 cents for an electronic deposit, SSA estimates it can save $1 billion over the next 10 years.
There are very few exceptions to SSA’s requirements for electronic deposits. Elderly retirement recipients born before May 1, 1921 will continue to receive paper checks automatically and those without ready access to a bank can apply for a waiver, although SSA’s “800 number” system requires a waiver applicant to navigate through multiple levels of voice mail before it allows you to talk to a live person about a waiver. In other words, SSA wants to make it very difficult for beneficiaries to continue to receive paper checks.
There are obvioulsly many benefits to an electronic payment system aside from cost savings to SSA. In theory payment issuance should become more secure and payees can avoid the problems associated with stolen checks and theft of cash. Read the rest
By Jonathan Ginsberg on Feb 28, 2013 in PTSD, Winning disability arguments | 0 Comments
This past January, Secretary of Defense Leon Panetta announced that the Department of Defense has removed the ban against women serving in combat. While it remains to be seen how this new policy will be implemented, this news story made me think about several female military veteran Social Security disability clients of mine who are alleging disability not for combat injuries but for PTSD arising from physical and sexual harassment that occurred while they were serving in the military.
I am glad to see that this issue – sexual harassment of female soldiers – is being reported. The New York Times ran a story on February 27, 2013 entitled Trauma Sets Female Veterans Adrift Back Home and the examples set out in this story reflect the experiences of my clients. One of the soldiers profiled in the NYT story describes a brutal rape on a U.S. Military base on South Korea. The emotional scarring arising from this incident has left the victimized soldier suffering from PTSD, living out of her car and beset by homelessness. Read the rest
By Jonathan Ginsberg on Feb 24, 2013 in Disability Hearings | 0 Comments
Many people with back pain seek treatment with chiropractors as a lower cost and non-invasive form of treatment. Many mainstream medical organizations dispute the effectiveness of spinal manipulation techniques, while practitioners cite numerous scientific studies and patient testimonials to argue for the benefit of this type of therapy.
At this point, however, Social Security considers chiropractic to be an alternative form of health care treatment and it assigns no weight to the opinion of its practitioners. In my experience, disability adjudicators will not request chiropractic records and judges will not assign these records any weight at hearings.
A functional capacity form completed by a licensed practitioner will not carry any weight with a Social Security judge. If you are treating with a chiropractor who has a working relationship with a medical doctor who recognizes the clinical effectiveness of non-invasive spinal adjustments, it can be useful to have the medical doctor complete the functional capacity form based on his own observations and treatment in concert with the treatment of the chiropractor. Read the rest
By Jonathan Ginsberg on Feb 22, 2013 in Administrative appeals, Disability Hearings | 0 Comments
When you apply for disability, one of the first things you are asked is “when did your disability begin.” This start date is known as your alleged onset date by SSA.
When your case comes before the judge, he has the option of approving your claim as filed, denying your claim, or issuing a partially favorable decision approving benefits but using a different onset date. Usually, when the judge changes your onset date he will use a more recent date, which will have the effect of reducing your past due benefit amount.
Why would the judge change your onset date? Most often the judge will do this because he has concluded that the medical evidence in your file does not support your original alleged onset date. You can expect this to happen if you alleged an onset date prior to the date you stopped working, or if your onset date was more than two or three years ago.
Some judges will choose a different onset date based on the presence of a medical test, such as an MRI or CT scan. This can be frustrating if, for example, you hurt your back three years ago, but could not afford an MRI until two years ago. Some judges just do not feel comfortable assuming anything, despite the very strong likelihood that your disc issues existed as of the time of your traumatic back injury and did not suddenly come into existence a year after your accident. Read the rest
By Jonathan Ginsberg on Feb 21, 2013 in Disability Hearings, Preparing for your hearing, PTSD, Social Security judges | 0 Comments
Earlier this week I appeared with a client at a hearing who had a very extensive and complicated medical history. Her complaints included pain and discomfort in her lower extremities – from the hips to the feet, chest pain, breathing problems and low back pain.
In reviewing her record, I noted ten (10) diagnoses, including:
- unspecified autoimmune disease
- unspecified neurological disorder
- bulging disc (without impact on spinal cord)
- mild congestive heart failure
- shortness of breath of unspecified cause
- post traumatic stress
My client did not want to come in to the office for her pre-hearing conference so we spoke on the phone. When I spoke to her, it was clear to me that she saw herself as being disabled – she was able to talk at length about all of her medical issues. My client was living with an adult child and relied totally on support from her children and relatives. Her sense of self and identity was tied to her medical issues and she had given up any sense of financial or personal independence. Read the rest
By Jonathan Ginsberg on Feb 20, 2013 in Disability Hearings, Preparing for your hearing | 0 Comments
Yesterday I wrote about a fundamental fairness issue that currently exists at Social Security disability hearing offices. Publically available statistics document that the approval rates by judges within any given hearing office vary wildly.
If you happen to draw Judge A, for example, you have a 70% chance of winning, whereas if you are unlucky enough to draw Judge B, your odds may be 30%.
Imagine that this variance existed at international skating or gymnastics competition. One judge might score a participant at 9.85 out of 10.00, whereas another judge might score that same participant at 6.5. National athletic committees would not stand for such absurd results but no one says a word when Social Security recipients are basically asked to play the lottery with their futures.
I don’t blame the judges, by the way. The judges before whom I appear work very hard – it just seems that SSA does not give them clear standards for how they are to do their work.
Unless and until Social Security chooses to address this problem – and in my view, the problem has to do with training and evaluation of the judges – we as claimants and claimant’s lawyers are stuck with this system. Read the rest