HUNTSVILLE DISABILITY GUIDE

"MARVIN AND THE $20,000 SOCIAL SECURITY DISABILITY MISTAKE" Posted on 2012-05-28 18:12:03 Marvin is a 44 year-old construction worker who has herniated cervical and lumbar discs and recently underwent a cervical fusion surgery, which will not eliminate all his pain and symptoms. He applied for Social Security disability in late 2010 and was denied in April of 2011. Social Security agreed that Marvin* could not do construction work but stated that he "could perform other work." Marvin believed them. He looked for other work but couldn't find anything that he could do. In September of 2011, Marvin came to my office looking for help. Here is how I figure it: Marvin is indeed disabled, in spite of what Social Security said in their letter. Marvin almost certainly could've won his claim with back benefits if he had appealed. His 60 days for appeal had expired back in July - so his claim was now dead as a doornail. Marvin's only choice, unfort

In Alabama, slightly less than 30 percent of Social Security disability claims are approved at the first try--the application level. The other 70 percent get denial letters. Many of those denial letters will state something like this: "We realize that you cannot perform any of your past work. However, there is other work that you can do." Social Security must first determine whether an applicant can perform any of his or her past relevant work. They look at work experience for the past 15 years. If they conclude that you cannot do any of your past work, they must ask the question: "Is there any other work that he/she can do, based on his or her residual functional capacity, age, education and work experience?" If there is "other work," then the claimant will be found NOT DISABLED. Many of my clients find that humerous (and tragic at the same time). They say there is work I can do but I can't find any work!" In the Code of Federal Regul

Do you remember the old DRAGNET TV show with Sgt. Joe Friday?  "Just the facts, m'am, just the facts," he'd always say.  Here are a few facts about Social Security disability: Denials are common - in Alabama 70.1 percent of claims get denied. Most people will have to appeal (ask for a hearing) to get benefits. The national "win" rate in Social Security hearings is now 49 percent; in Alabama 52 percent of claimants win at the hearing level. A majority of claims that are awarded at hearings also get back pay. Claimants who are professionally represented are more likely to win than those who aren't. The average wait time to get a hearing in Alabama is 13.5 months. A representative cannot charge you a fee unless you win your case AND also collect back pay.   You have 60 days (after your initial denial letter) to ask for a hearing.  If you wait longer than 60 days, your claim dies and you lose all opportunity for back pay or any other benefits und

My firm in Huntsville represents individuals regularly who suffer from diverse mental illnesses, including ADHD, Bipolar disorder, depression, anxiety, panic disorder - PTSD and dozens of other psychological impairments.  Some of the factors that a Social Security claim must consider include: persistence and pace issues - Can the claimant go to work five days a week, work eight hours per day and be competitive? concentration - Can the claimant stay focused and on-task to perform the job? judgment - How will this individual apply judgment to work situations? social skills - Will this claimant be able to respond appropriately to supervisors, coworkers or customers? memory - Can the individual understand and remember simple work-related instructions?  What about complex instructions? Mental or emotional impairments often produce good days and bad days, or as one of my clients stated, "good weeks and bad weeks."  An individual may feel fine for a day or for a week an

"Vocational factors" in a Social Security disability claim refer to the claimant's age, education and work experience. Theoretically, an individual can qualify for Social Security disability in two ways: (1)  by meeting one of the Listings (in 404, Subpart P, Appendix I), OR (2)  by use of the "residual function capacity" (RFC) to determine whether the individual can perform any of his or her past relevant work.  (Past relevant work is work performed during the past 15 years at substantial gainful activity levels). If Social Security determines that you cannot do your past relevant work, it must use the same RFC to determine if you can perform any other work.  Along with the RFC, the vocational factors (age, education and work experience) must be considered. Let's take the example of a 58 year-old person with a 7th grade education.  His residual functional capacity (RFC) restricts him to sedentary work.  All of his previous work experience has been

There are quite a few differences between Social Security disability and the disability benefit program of other agencies, such as the Veterans Administration.  For example, an individual may have a partial disability with the VA.  But Social Security disability is all or none.  You are either disabled or you aren't. Social Security also has a "duration requirement," stipulating that unless an impairment is expected to result in death, it must have lasted or be expected to last for a continuous period of at least 12 months (CFR 404.1509). Also, Social Security will not accept a determination of disability from any other state or federal agency or from any non-government agency, for that matter.  "We must make a disability or blindness determination based on social security law.  Therefore , a determination made by another agency that you are disabled or blind is not binding on us"  (CFR 404.1505). This can work in favor  of the claimant, however, i

Until a few months ago, attorneys or representatives were told which judge they would face for a disability benefits hearing.  Then, Social Security began the "secret judge" practice.  You can't find out which judge is going to hear your case until you walk into the hearing.  Apparently, some judges are so bad that lawyers won't let their clients face them if they know in advance.  At least, that's the impression the "secret judge" policy gives. Social Security's rationale for "secret judges" is to stop judge shopping.  You see, award rates vary from judge to judge, even within the same hearing office.  One judge may award 75 percent of cases while another judge in the same building may only award 30 percent.   In theory, representatives had sometimes withdrawn their cases when they got a "denier" judge and rescheduled the hearing, hoping to get a more reasonable judge next time.  The problem with that theory is that you canno

Most Social Security disability claims will be denied, go through the appeal process, and wind up before an administrative law judge (ALJ) for a hearing. Nearly always, there will be a Vocational Expert (VE) called by Social Security to testify at the hearing.  The VE provides the judge with certain types of information, such as: What is the classification of the claimant's relevant past work? Can a claimant with this individual's education, skills, experience and physical or mental limitations return to his or her past work? If not, is there any other work that exists in significant numbers that such an individual can perform? If the judge is left with the final impression that, "Yes, there are jobs available that such an individual could perform," he will likely rule that the claimant is not disabled.  Case lost. If the VE testifies that there is no work available in significant numbers that the claimant could perform, and the judge relies on that (as

by Charles W. Forsythe, MS, EDPNA Social Security Disability Advocate The Forsythe Firm    Huntsville AL   (256) 799-0297 I recently represented a client at a Social Security disability hearing.  The judge asked the usual questions, then allowed me to question my client.  I felt that the  testimony was particularly convincing; so much so, in fact that I cut my questioning short, feeling enough had been said. The claimant had no relevant past work history and no job skills.  So, we went right down to Step 5 with the Vocational Expert's (VE) testimony.  The judge asked one hypothetical question concerning any work that might be available for an individual in the claimant's situation. The Vocational Expert said the word that every representative wants to hear:  No.  No, there is no work available in the local, regional or national economy. The judge looked at me and said, "Mr. Forsythe, is there anything else?" Occasionally knowing when to shut my mouth,

WHY THE DISABLED WEEP! There's a story in May 12 edition of  the Virginia Lawyers' Weekly  that is enough to make the disabled of the land weep.  It's about an administrative law judge who denies 79 percent of the disability cases that come before him.  And last year he issued more than 1,100 decisions.  Of the few  awards he did make, only 6 percent of them were fully favorable (meaning that he granted all the back pay provided by law). I have appeared before ALJs who seemed to only be interested in finding a way to deny a claim.  They had little time to hear about the claimant's disability or suffering and little time to discuss evidence.  Fortunately, most of the administrative law judges that I work with are not so one-sided.  Most of them try to be fair while examining the merits of the claim, which is their job. But heaven help the disabled persons who appear before the judge who is the subject of this article. I fear that because of the poor economy, budg

When you have a Social Security disability hearing, you appear before an administrative law judge.  He or she will probably not hand down a decision at the end of the hearing.  No lawyers walking out and telling their client, "We won," as you see on TV commercials.  The judge will usually take 6 weeks or longer to write a very detailed decision and you will receive it in 6 weeks or so. Partially favorable decisions occur when the hearing judge moves up the alleged onset date.  For example, you may claim to have become disabled on February 3, 2010.  If you filed your application within 12 months after that date, you could receive disability payments all the way back. However, if the judge decides that you actually did not become disabled until a later day, say December 2, 2010, you have lost 10 months of back pay because of the revised onset date.  The date on which the judge finds you to have become disabled is called the "established onset date."   A fully fa

SSI stands for Supplemental Security Income.  It is a federal program administered by Social Security; however, it is not the same as Social Security Disability.  You may qualify for SSI if you are blind or disabled to work have very low household income have few resources that can be converted to cash Generally, to be eligible for SSI, an individual may not have more than $2,000 in personal resources.  A couple may have up to $3,000.  Certain resources, such as the home you live in, a burial plot, and one automobile may be exempt as a resource (will not against you).  Resources will  include such things as cash in checking or savings accounts, retirement funds that you can withdraw, cash value built up in life insurance policies, stocks or bonds and other investments. Your local Social Security office can give you more details about SSI qualifications. SSI is referred to as "Title 2" but Social Security disability is called "Title XVI."  SSI benefits ar

Huntsville, AL is a busy hub of activity involving Social Security disability claims. As a disability advocate in Huntsville, I represent claimants in hearings that take me to Florence, Gadsden, Jasper or Birmingham.  Quite often I travel up to Franklin or Nashville, TN to represent a claimant.  Many of these claimants live in or around Huntsville. Social Security attempts to keep hearings within a 75 mile radius of the claimant's home.  But because some hearing offices are more backlogged than others, cases that would normally be heard in North Alabama may be transferred to a hearing office Franklin. Most claimants don't object if it means getting a hearing sooner and possibly getting paid quicker. As I have reported elsewhere, the waiting time required for a disability hearing seems to be shrinking - a little.  The national average wait to get before a Social Security judge is still around 14 months.  Most of the hearing offices in North Alabama and Middle Tennessee h

Social Security disability benefits may indeed be available for individuals suffering from mental or emotional disorders. If the mental condition has lasted or is expected to last for at least 12 consecutive months, is   diagnosed by a licensed physician or clinical psychologist, and severely restricts the individual's ability to perform work-like activities, then a disability claim should be pursued.  As with any other condition, Social Security will evaluate the severity of the condition and the specific limitations imposed by symptoms.  A 'longitudinal treatment record" is also helpful--meaning, it helps if you've been seen by a doctor or therapist at regular intervals over a period of time.  Social Security will give more weight to the testimony of a doctor who has treated you than to a doctor that you hire (consult) on a one-time basis just for the purpose of providing a medical opinion. In addition to treatment records, a Medical Source Statement of Ability

Social Security appeals and hearings are handled by the Office of Disability Adjudication and Review (ODAR).  Until recently, most appeals were assigned to the ODAR office in Florence, AL.  The average wait for a hearing has hovered at around 14 months. In November, 2011, ODAR opened a new hearing office in Franklin, TN, with the goal of easing some of the logjams at other hearing offices in the region.  Many of my cases that would have gone to Florence in the past have been assigned to the Franklin office.  In a few cases, the wait time has been drastically shorter for some of my clients. The new office is conveniently located and appears to be well staffed.  Of course, this isn't going to solve all of the problems in getting a Social Security appeal before a judge.  But it is good to see Social Security taking positive steps to deal with the massive number of cases on the docket. Incidentally, the Florence ODAR office is still very much alive and well, handling thousands of

I recently attended a function where a few dozen attorneys and claimant's representatives discussed Social Security disability representation. The topic of discussion was writing pre-hearing memos or briefs for administrative law judges (ALJs). There was unanimous agreement (rare for lawyers) that well written briefs helped to win disability hearings.  Many of them agreed that a well drafted brief could get a favorable decision more quickly. That theory is also supported by my experience.  I never go to a hearing without first submitting a concise memorandum or brief that summarizes the pertinent evidence in the case.  A well drafted brief serves several functions. First, it helps the judge find key evidence that he or she needs to correctly apply the law.  An administrative law judge will average deciding 2 or 3 cases per day.  He or she doesn't have time to read several hundred pages of evidence on a case.  The representative's brief is like a road sign with arrows