Mistakes to Avoid

Much of this web site is geared towards winning strategies and practical tips to make the process go smoother for you.  However, there are a number of factors that may end up hurting your chances at a favorable decision.   Here are several of the most common mistakes that I see in the cases I try – hopefully few or none of these will apply to you but if they do, now is the time to try to fix the problem if you can.

Mistake 1:  Attitude of Entitlement – this is perhaps the most common problem I see among Social Security disability claimants.   After being out of work for several years, you are finally in front of a judge.  He asks you why you cannot work and you respond that “I became disabled three years ago.  My medical reports say that I have pinched nerves all up and down my spine and I hurt all of the time.  There is no way I can work because of the pain.”

The problem with a response like this arises from the attitude contained in the claimant’s statement.  From a judge’s perspective, this person has already decided that she is disabled and she has given up.  Her description of pain is non-specific and her main focus seems to be on what she thinks her medical records say.

Judges expect that sincere disability claimants will be fighters, who despise the concept of being labeled “disabled.”  Further, the decision about whether or not a claimant meets Social Security’s definition of disabled is the judge’s decision, not the claimant’s.  Always bring to your hearings an attitude that you would not be here if there was any other alternative and that if your medical condition improves, you will immediately return to work.

Mistake 2:  Part time work – in my experience, Social Security adjudicators and judges tend to view work as an “either/or” proposition. Either you have the capacity to work or you do not.  If you are working part time – say 20 hours per week, my experience has been that judges will conclude that you could likely work full time at a less demanding occupation.

Unsuccessful work attempts, by contrast, often help your case because a work attempt demonstrates your desire to try to work.

Mistake 3:  Evidence of drug seeking behavior in your medical records.  Judges know that a certain percentage of patients exaggerate their claims of pain to persuade their doctors to write prescriptions for narcotic pain killers.  Often these patients see two, three or more physicians for the same ailment, but do not tell Dr. A about Drs. B and C.   Judges are on the lookout for this type of behavior and will deny claims accordingly.  Further, if a physician fires you as his patient because of improprieties with narcotic pain medication, a reference to “pain medication abuse” or “drug seeking behavior” will end up on your medical records and follow you for years.

Judges are under a lot of pressure to avoid awarding disability benefits to drug abusers and even cases that are otherwise well documented will be denied if the judge finds that drug or alcohol abuse is a “material contributing factor” to your disability.

Mistake 4: Filing for Unemployment Benefits – recently several economics professors at major universities have released reports citing a correlation between unemployment benefits and disability claims.   Unemployed workers have been filing for disability when their unemployment checks run out, leading some critics to contend that a growing number of claimants are using Social Security disability as a welfare program arising from economic, and not medical hardship.

Social Security is rightfully concerned about money – the disability trust fund will run out of money in just a few years if Congress does not act – and Social Security officials are pressuring judges to tighten up their standards for approval.

In my experience, judges regularly ask claimants if they have filed for unemployment, and, if they have, how do they explain their claim for disability in light of their sword assertion that they are ready, willing and able to work.

Mistake 5: Not going to the doctor.  You may feel that your doctor is unable to offer much to you.  Perhaps you cannot afford suggested diagnostic tests, or you have chosen not to undergo surgery.  Why, then, should you continue to spend hundreds of dollars each  year on doctor visits when there is nothing more your physician can do for you?

Social Security judges expect to see records of on-going treatment.  Even if you visit your doctor three or four times per year, you have to help build a record.  The judge may find your completely credible in your testimony but without medical records backing you up, he will be unlikely to approve your claim.  As one judge acknowledged to me recently after a hearing, “I believe that your client is telling the truth about his symptoms, but what am I supposed to do if there are no medical records?

Mistake 6:  Coming to your hearing without a firm statement of support from your treating physicians.  Social Security defines disability in terms of your capacity to work.  In order to win, we have to demonstrate that your medical/mental health issues interfere with your capacity to work.  We have a  much better chance at winning if your doctor can help make the connection between your medical problems and limitations  you are likely to have when trying to work.

A completed functional capacity form can be your best piece of evidence and can make the difference between winning and losing.  As a judge one time told me “if you have a supportive functional capacity form from a treating doctor, I have no choice but to approve your case.”