Maine Social Security Disability Lawyer

Social Security Disability Blog Roundup - 10/23

The response to the first month of the Blog Roundup has been terrific, and many have been able to discover a disability blog not previously seen. This week's roundup is the most varied one yet in terms of format, with traditional blog posts, a video blog post and a podcast.

Here are the most notable posts this week:

• Social Security Disability Quality Review Board from My Disability Blog published by Tim Moore
• SSA to soon grant attorneys access to claimants’ electronic hearing folders from the California Social Security Lawyer blog published by Geri Kahn
• Social Security Disability Hearings & The Quality of Your Testimony from the Indiana Social Security Disability Lawyer Blog published by Scott Lewis
• Getting your prior Social Security files from the Colorado Social Security Law blog published by Tomasz Stasiuk
• Three Critical Mistakes Social Security Disability Applicants Make from the Social Security Disability Attorney Cincinnati blog published by Anthony Castelli
• Attitude is Everything – Are You a "Reluctant Claimant?" from Jonathan's Ginsberg's Social Security Disability Podcast published by Jonathan Ginsberg

Combination of Impairments Revisited

One year ago, I posted a short article regarding combination of impairments. It is worth revisiting, as a reminder that Social Security must consider all your impairments when deciding whether or not you are disabled. Here is an excerpt:

Social Security must consider the combination of your impairments when considering your eligibility for benefits. Even non-severe impairments must be considered in combination with your severe impairments. See 20 C.F.R. 404.1523.

This can be very important. Sometimes a seemingly minor impairment can rule out your past relevant work, and move your claim past step 4 of the sequential evaluation process. ...

Remember, your RFC must include all your impairments, even non-severe ones.

SGA Amount for 2010 will be $1,000

The SSA published its annual fact sheet last week. The SSA's official acknowledgement that there would be no COLA next year got most of the attention. However, there will be a new SGA amount for 2010. The new SGA amount will be $1,000 per month.

Finally, a number that is easy to divide!

Substantial Gainful Activity (SGA) is considered at step 1 of Social Security's sequential evaluation.

Help with Initial Disability Claims

I am often contacted by potential clients who have not yet filed for disability, or have filed and have not yet received an initial determination. I greatly enjoy working with these folks, and the results have been very gratifying. The people I guide through the initial application process are approved at a much higher rate than the average claimant. This is mostly because common mistakes are avoided.

In my opinion, a claimant over the age of 55 benefits the most from a lawyer's advice at the application stage, because a proper description in the disability application of past relevant work is a critical aspect of the claim.

The initial application stage usually takes about 4 months. If that initial claim is denied, it is likely to be a year or more in Maine or New Hampshire before you have an ALJ hearing for your claim. The wait for a hearing is even longer in most other states. So consider calling a Social Security disability attorney for help with your initial application.

This week's Disability Blog Roundup

Here are the most notable posts this week from the Social Security disability law blogs:

• Why Your Nurse Practitioner May Make Your Social Security Disability Case Sick from the Indiana Social Security Disability Attorney blog published by Tom S. Ebbinghouse
• Ten tips for winning your Social Security Disability case in federal court from the California Social Security Lawyer blog published by Geri Kahn
• Administrative Law Judges Feel Backlog is Too Long from the Raleigh Personal Injury Lawyer Blog published by Hardison & Associates
• Onset Date Language for Medical Source Statements from the Social Security Disability Lawyer blog published by Gordon Gates
• Avoiding Consultative Examinations from the Law Offices of Jeffrey Delott blog published by Jeffrey Delott
• Social Security Administration Officially Announces No COLA for 2010 and Publishes 2010 Fact Sheet from the Delaware Disability Law blog published by Steven Butler

Chronic Fatigue Syndrome

Chronic Fatigue Syndrome is a basis for Social Security disability, and Social Security Ruling 99-2p sets forth the policy for evaluating disability claims involving chronic fatigue syndrome.

One of the problems with chronic fatigue syndrome is that no one really knows what causes it. However, the New York Times has a fascinating article today, entitled Is a Virus the Cause of Fatigue Syndrome? 

It is definitely worth reading, and while your on the New York Times site, check out the health quide for chronic fatigue syndrome.

Onset Date Language for Medical Source Statements

Sometimes in a disability case, the medical evidence lags behind the disability. There is often not a strong medical record as of the day an impairment became disabling. Over time, however, with repeated doctor visits, the medical picture usually becomes clear.

So the problem is: how do you prove disability as of the alleged onset date?

To provide the judge with medical evidence regarding onset, I will often add the following language to the medical source statement form that I send to the claimant's treating physician:

Based upon my training, education and experience, and based upon my treatment of <claimant's name>, the limitations set forth above reflect my opinion of <claimant's> functional limitations from <alleged onset date> to Present.

That language gets typed just above the doctor's signature line, where the doctor will definitely see it. If the doctor disagrees with the alleged onset date, he crosses it out. 

Once the form is signed, the treating source is giving an opinion that the claimant's functional limitations have existed since onset. This is great stuff!

Should the judge ask "well what about the onset date?" at the hearing, you can point out that language on the form, and that the treating source opinion relates the claimant's functional limitations back to the onset date. It is a very tidy solution to this problem.

Disability Blog Roundup - 10/9

There was terrific interaction this week among the Social Security disability blogs. There was a guest post (all too rare in our niche). And there was a post expanding upon an article from another blog. That's the way it's supposed to be! Such cross-pollination makes our work more accessible to those looking for information regarding Social Security disability law.

Here are this week's most notable posts from the Social Security disability blogs:

• Winning Social Security Disability Benefits After Age 50 from the Personal Injury Social Security Disability blog published by Bob Kraft
• The WRONG Answers to the Question: "Why Can't You Work" from the Social Security Disability Blog moderated by Jonathan Ginsberg
• Why Should I Pay a Disability Lawyer if I can Handle the Case Myself from My Disability Blog published by Tim Moore
• Subpoena The SSA Doctor from the Law Offices of Jeffrey Delott blog published by Jeffrey Delott
• 10 Things to Know Before Applying for Social Security Disability from the Delaware Disability Law blog published by Steven Butler

Best Practices for Claimant's Representatives Revisited

It has been a little while since the Best Practices for Claimant's Representatives was published on the SSA's website. It is one of those lists that is full of useful reminders, and is therefore worth revisiting every 6 months or so. So please take another look.

One of the best practices is:

ESTABLISH A GOOD WORKING RELATIONSHIP WITH HEARING OFFICE STAFF AND MANAGEMENT.
You should participate in periodic group meetings with the Hearing Office Chief Administrative Law Judge and Hearing Office Director in the offices in which you practice. Open dialogue allows both representatives and hearing offices to exchange suggestions as to how to improve service in the local area.

These group meetings can be very helpful, and we are about due for a meeting for the Portland, Maine ODAR and the Manchester, NH ODAR. Since the fiscal year just ended, it seems like a good time.

However, I want to highlight the importance of having a good working relationship with the hearing office staff. We interact with these folks all the time, and everything works just so much better when you have a good relationship with them.

I recently had to postpone a hearing on very short notice due to a personal matter. The client was fine with it, but I was concerned about the short notice at the hearing office. But the judge's assistant and the judge could not have been more gracious, and I am very grateful to them. The situation may have been helped by the fact that I have a good relationship with these professionals.

Social Security Disability Blog Roundup - 10/2

Here is the Friday roundup of recent posts from the Social Security disability blogs. After you click on a featured link below, please explore the rest of that site. You will find other interesting material there.

It was another good week for notable blog posts:

• Advantages of Being Represented for Social Security Disability/SSI Claim from the Delaware Disability Law blog published by Steven Butler
• 5 Questions About Social Security Disability Hearings Answered from the Raleigh Personal Injury Lawyer blog published by Hardison & Associates, Raleigh NC
• Understanding How Social Security Classifies Your Past Work from the Social Security Disability Blog moderated by Jonathan Ginsberg
• Past Relevant Work as Generally Performed from the Social Security Disability Lawyer blog published by Gordon Gates
• Waiting to Apply for Social Security Disability Can Cost you Money from the New York Social Security Disability Blog published by Lew Insler

Get the Vocational Rehabilitation Records

Vocational rehabilitation records can provide persuasive evidence for a Social Security disability claim.

First, the records show that a claimant has been trying to find work, in spite of his or her impairments. This can be important, because an ALJ often considers the claimant's motivation to work when determining a disability claim.

I also like voc rehab records because they add a practical element to the disability process. The disability process - particularly with vocational expert testimony at a hearing - can be so theoretical. The vocational records shine the harsh light of reality onto the process. The vocational rehabilitation records almost scream out: We can't find a job that this person can perform. We tried. Couldn't do it.

I cannot remember a claim I lost when I had strong vocational rehabilitation evidence. So get the vocational rehabilitation records. And ask the claimant's vocational rehabilitation counselor for an opinion letter regarding the claimant's employment prospects. It can be persuasive evidence in support of a disability claim.

Past Relevant Work as Generally Performed

At step 4 of Social Security's sequential evaluation, the SSA considers whether or not you have the ability to return to your past relevant work. The SSA considers your past work, both as you performed it (and described it in your Work History Report), and how that work is generally performed in the national economy. See Ruling 82-61.

To determine how the work is generally performed in the national economy, the SSA looks to the Dictionary of Occupational Titles (DOT) for a description of your job. For example, if you were a cashier, the SSA would look at the requirements of that job both as you described it and as it is described in the DOT.

The work history report doesn't have much space to describe your job duties. Most claimants just give the title of their previous jobs, and don't fully describe their job duties. The SSA will then try to match the title of that job to a listing in the DOT. This is where the problems begin, because the job descriptions in the DOT are often not an exact match to the job performed by the claimant.

I have one such claim right now. The claimant worked as a safety coordinator. He described the job as light to medium exertional work, requiring him to make site visits regularly and carry heavy materials from time to time. DDS denied the claim at step 4, stating that the claimant could still perform that job as generally performed.

However, when I reviewed the claim file, I learned that DDS used the DOT description for safety manager for its analysis. Safety manager was the claimant's boss's title, not the job the claimant performed. Safety manager is a sedentary job, and does not involve site visits or carrying heavy materials occasionally. The job of safety coordinator, on the other hand, is more physically demanding.

The claimant is over the age of 55. If past work is ruled out, he would then grid "disabled" under the Medical-Vocational Guidelines. So this error by DDS is the difference between winning and losing the claim.

I am confident that we be able to remedy this DDS error at the hearing level, hopefully with an on the record request.

Related Article: Past Relevant Work: the Composite Job

Social Security Disability Blog Roundup - 9/25

I follow a lot of Social Security disability blogs. When I see an interesting article, I will often link to it from my twitter account. Those twitter updates are displayed on the sidebar to this blog. That way, there is always something new when you visit this site.

Several notable articles have been posted just this week on the disability blogs that I follow. So here is a roundup of recent posts regarding Social Security disability. And by the way, I am very pleased that there are now enough of us writing on this topic to publish a list like this.

• How can I prove I am disabled if I cannot get treatment because I can’t afford it? from the California Social Security Lawyer blog published by Geri Kahn
• What does Social Security mean by sedentary, light, medium, and heavy work? from the Colorado Social Security Law blog published by Tomasz Stasiuk
• GAF scores v. Opinions from the Truth of the Matter Asserted blog published by Nate Craig
• If You are Approved For Social Security Disability - The Award Notice from the Disability Secrets blog published by Tim Moore
• Social Security Disability and how your treating doctor can help from the Florida Social Security Disability blog published by Sims & Stakenborg, P.A.

Fatigue and Social Security Disability

Fatigue is a frequently encountered symptom in Social Security disability claims. Fatigue can be a component of many conditions, including fibromyalgia and Lyme disease. Fatigue is often secondary to conditions involving chronic pain, because it is exhausting to be in pain all the time. Fatigue can also be secondary to severe depression. And of course, there is chronic fatigue syndrome.

Fatigue can certainly be a disabling symptom, and a record of your fatigue and its effects can help to establish your disability claim. However, your fatigue must be documented to strengthen your claim. Unfortunately, fatigue is often not well documented in the medical record. 

So consider keeping a journal. And tell your doctor about your fatigue, and how it limits your ability to function. Ideally, your treating physician will complete a medical source statement setting forth your functional limitations, including those due to fatigue. That is the best evidence of all.

Older Medical Records are Important

Typically in a Social Security disability claim, DDS only obtains the medical records for one year prior to your alleged onset date. DDS is concerned with the severity of your impairments during the period of disability. They understandably focus their efforts on that time frame.

However, older medical records can be important. First, older record can help to establish a favorable onset date. And if there is a previous application, you are going to want to get the older records for reopening.

More importantly for me, the older records can help to tell the story. Every case has a story, and older medical records provide invaluable context for the judge at the hearing. Often, for example, a claimant has been struggling with an impairment for years, and only recently did the impairment become truly disabling. Those older records will help to the judge to see what changed to make employment impossible. So get the older records.

Hat tip to Tim Moore, who mentioned obtaining older records in a recent article discussing tips for your disability claim.

On the Record Request - Manchester, NH

I recently submitted an on the record (OTR) request to the Manchester, New Hampshire hearing office. It was a particularly strong case, with compelling evidence of disability. Further, much of the evidence (school records, vocational rehabilitation assessments, medical source statements from treating doctors) had not been developed by DDS or considered when the claim was initially denied. 

I filed that OTR request on a Monday. Before 9 AM on Wednesday morning I got a call from a staff member at the Manchester hearing office saying that a judge had reviewed the claim and that a fully favorable decision would be issued. So less than 48 hours after I submitted the OTR request, I learned that it would be granted. That is tremendous efficiency, by any standard. Perhaps this is one reason why the average processing time for claims at the Manchester hearing office continues to improve.

There are a three quick lessons from this experience:

1. You should file on the record request when you have a clear winner. The hearing office judges and staff will take advantage of the opportunity to resolve the claim without having to expend the resources required for a hearing. And of course, the client avoids the stress of a hearing and will appreciate the award of disability benefits.
2. I have done better with OTR requests since I started explaining why the DDS decision was wrong. Rather than just ask for a favorable decision, I point out the errors made by DDS, and how those mistakes affected the DDS determination. Often, if the DDS mistakes are corrected (and the new evidence considered), a fully favorable decision is appropriate. So don't treat the OTR request like a de novo review of the claim; instead, explain why the determination below was erroneous.
3. Finally, if you are an attorney-advisor or judge's assistant at a Social Security hearing office, and you are granting an OTR request, give the claimant's attorney a call! It's a welcome professional courtesy, and believe me, that lawyer will be happy to talk with you.