Winning disability arguments

PTSD in Female Soldiers – a Hidden Problem Likely to get Worse

By Jonathan Ginsberg on February 28, 2013

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 more…] about PTSD in Female Soldiers – a Hidden Problem Likely to get Worse

What Evidence is Needed to Win a Decision based on the Grid Rules?

By Jonathan Ginsberg on December 2, 2012

I recently received this question from someone who saw my video about the grid rules and asked an interesting question about what evidence he would need to prevail in a grid rule argument claim:

Here is my situation: I am 55, with no skills, and less than a high school education (and no GED). I have only done part time work in the past 15 years, and the last work I did was unskilled work at the medium level. I have several problems:

I have traumatic brain injury, but there is no supporting medical evidence, tests or other proof

I have a hip and back injury

I have chest pains

If the grid rules say I quality for SSI based on my age, education, work history and skill level, will I still have to present medical evidence to prove that I have some or all of my health problems?

Here are my thoughts: the grid rules do require proof of a physical impairment that causes some reduction in your exertional capacity. In other words, to meet one of the grid rules, you will need evidence to prove that your functional capacity has been reduced to sedentary or light work. So you cannot simply walk into a hearing room and ask for disability based on your age, education and status as an unskilled worker. You will have to present some medical evidence (ideally from a treating physician) that explains why your exertional capacity is now light or sedentary. This would involve presenting medical records and test results (such as an MRI report and evaluation or a CT report and evaluation).

Work Attempts and Unemployment Applications – Do They Hurt or Help Your Case?

By Jonathan Ginsberg on July 16, 2012

Work attempts and unemployment insurance can be important factors in your Social Security disability case. I recently received this email from a reader of my ssdAnswers.com blog:

I have read a lot of your information online, and I have a up coming hearing in about 3 weeks. A non-attorney advocate will be representing me. I am very curious about one aspect of my hearing, that I have attempted to try to work but was unsuccessful 3 different times after I filed for disability. The longest the employer has kept me was about 45 days, and the last job was only 7 weeks. I drew unemployment, however, my physician wrote a letter on my behalf due to the job turnover I have had in reference to my current disabilities.

Of course I have had no unemployment since beginning of may due to the claim year ending, and my father has tried to help me financially. I have interstitial cystitis, lumbar back problems, along with depression and anxiety. I cannot sit for over 15 to 20 minutes, and have a lot of leg weakness when standing. This has been quite an ordeal for me. I have NO insurance, so it is a challenge trying to get medication, or any further services related to medical. Could you please give me some advice concerning my upcoming hearing. I have supplied my work History and documents from unemployment stating the reason I was terminated and of course I qualified for benefits. I have truly tied to keep work, but my health problems and disabilities have stopped me. Thank you for your input.

Here are my thoughts:

1. As far as your work attempts, the rule of thumb that I follow is that a work attempt that lasts less than 3 months will generally be considered an unsuccessful work attempt. I usually find that if my client has 2 or 3 unsuccessful work attempts, it shows that my client tried to work despite his medical issues and it reflects positively on his credibility at a hearing. This is especially true if the unsuccessful attempt was an entry level, low stress job with minimal physical requirements.

I recorded a video about work attempts prior to hearings – which you can view at https://youtu.be/PnZzTM42Bt0.

2. Unemployment – recently I have noticed that judges are asking whether you have filed for unemployment. The problem, of course, is that when you file for unemployment, you are stating that you are ready, willing and able to work. This is contrary to what you are saying to Social Security – i.e., that you cannot work. [Read more…] about Work Attempts and Unemployment Applications – Do They Hurt or Help Your Case?

Fibromyalgia Cases Coming Under More Scrutiny

By Jonathan Ginsberg on June 1, 2012

You may have read in the news that the Social Security Disability trust fund (not the retirement trust fund) is scheduled to run out of money in 2016, just four years from now. If Congress does not act, benefits to existing claimants will automatically be cut 21%.

While Congress will most likely wait until the last minute to shore up the disability trust fund, I can already see a change in the level of scrutiny that some judges are applying to disability cases.

A colleague of mine who attended a recent disability claims representative conference tells me that a major topic of discussion at this conference was a rumor that Social Security Administration Commissioner Astrue has established a goal for judges to approve only 30% of the cases they consider. By contrast, judges nationally now approve close to 60% of all cases at ALJ hearings. The National Association of Social Security Claimant’s Representatives has apparently filed a freedom of information request to investigate this rumor.

Whether this approval rate goal is true or not, I can tell you that I have definitely noticed a trend whereby disability judges are scrutinizing cases much more carefully. During several of my hearings, judges have referenced my client’s age relative to age 50 – in other words, I think that claimants over the age of 50 have a better chance for approval than younger claimants.

Another area where judges are clamping down has to do with fibromyalgia cases. I first starting seeing a significant number of fibromyalgia cases about 15 years ago. Initially, judges did not know what to do with a condition that could not be confirmed by objective tests, but that affected claimants (especially women) in a very dramatic and consistent fashion.

Back in the mid-1990’s judges would call medical witnesses to help them understand this chronic pain condition – it was not uncommon to see psychiatrists, psychologists, orthopedists, neurologists and even orthopedic surgeons appear as expert witnesses to offer theories about what was going on with these claimants.

By the early 2000’s I was consistently winning fibromyalgia cases for claimants who met “the profile:”

females, age 40+
type A personalities
past work at fast paced stressful jobs
consistent and extensive work history
some form of physical and/or emotional trauma in the past
employment at a level often exceeding their education level
visits to multiple medical providers and extensive medical records
problems with digestion and balance
short term memory problems (i.e., fibro fog)
myofascial pain
crushing fatigue
deep joint and muscle pain
pain that seemed to travel around the body [Read more…] about Fibromyalgia Cases Coming Under More Scrutiny

Don’t Forget About the Grid Rules

By Jonathan Ginsberg on May 15, 2012

When I sit down with a new client, I always spend a little time explaining that Social Security disability is about a claimant’s capacity to perform work activity because of medical problems, and not about the medical problems themselves. I further explain that in my experience there are three disability arguments that we can use in any case:

prove that client meets a listing
prove that client’s functional capacity for work has been so reduced by medical issues that he would not be a reliable worker at a simple, entry level job
prove that client meets a grid rule

Most people can understand arguments #1 and #2. The listings are essentially detailed descriptions of medical problems. When you meet a listing, it basically means that your medical condition is so severe that Social Security assumes that you would have overwhelming work limitations.

The functional capacity argument is equally easy to understand. Even the easiest of jobs requires you to have certain capabilities, such as sitting, standing, lifting, carrying, concentrating, behaving in an emotionally stable manner, staying at the job and not taking excessive breaks, etc. If, for example, you do not have the capacity to sit and stand for a total of 8 hours, or if your medical problem leads to excessive breaks, then you do not have sufficient capacity to function at a job.

Pages: 1 2