September 11, 2010

Judicial Finality: A Legal Reality that can Hurt Social Security Disability Claimants

I often field phone calls from persons who have filed for disability benefits many years ago, and want to re-visit some of the issues in those old cases.  Typically, such phone calls are precipitated by a conversation that the caller had describing the long past disability case with a friend or family case, and how it "did not seem fair".  Usually the friend or family member agreed that the case was not handled properly and urged the caller to "talk with a lawyer".   Many of the typical siutations I hear about include:

1).  Social security agreed that the caller was disabled, but "did not go back far enough".  In other words, the claimant alleged an onset date, and the government found them disabled at a later date.

2).  The government denied the claim, and the caller gave up and did not appeal.

We tend to think in terms of "whats fair is fair".  We hear of persons wrongly convicted of a crime who are released when found to be innocent, and think that if a long-past disability decision was wrong, something can and should be done about it.

There is however, a judicial concept of finality.  In a nutshell, this doctrine provides that once something is decided, its over.  It cannot be revisited.  Most precisely, it a court is presented with the same legal issue, it cannot be relitigated. 

So how do wrongly convicted folks get out of jail when new DNA evidence proves them innocent?  Judicial finality does not apply because there is a exception for new evidence.  Now I am not a criminal law attorney, but I am not straying too far afield when I say that the new evidence has to pass a high threshold of materiality:  it has to be very powerful and important evidence.  DNA evidence exonerating the convicted person is that kind of powerful evidence.

Now what does this have to do with social security disability?  Same issues apply, and an old closed decision can be revised with new and important evidence.  But, the major difference with social security disability law is this:  if the social security administration decides that an old decision cannot be reopened the decision is NOT appealable.  In other words, a claimant is totally at the mercy of the administrative law judge, or other social security disability decision-maker. 

So, as a practical matter, unless that past injustice of a social security disability is really, really a big injustice, you are stuck with the consequences of failing to appeal that old decision.  Fair may indeed be fair, but failing to appeal a disability denial can be an unfairness that cannot be righted.

August 27, 2010

Filing for Social Security Disability: Some Common Questions

Over the years I have received a lot of phone calls in Dallas-Fort Worth from people wondering if they should file a claim for social security disability.  Here are the most common questions in this area:

1.  "I'm still working, but my doctor says that I am disabled.  Can't I file for social security disability?"
The answer is "No" , but as my fellow Texan Ross Perot once said, "the devil is in the details".  You cannot be going to your normal 9-5 job getting paid as usual and be able to file a social security disability claim.  Often times, however, someone will tell me that they are still working, when in fact they are out on short-term or long-term disability, FMLA, etc, but are still technically employed.  These folks can file a claim for social security disability because they are not "working" as that term is defined by social security.

A further area of some confusion centers on part-time work.  Many people have had to cut back work hours as a result of their impairment, and wonder whether they can or should file for social security disability.  Many callers commonly report that they have heard that "social security will let you make up to a certain amount".  They are referring to the fact that work resulting in monthly income below a certain threshold is not "substantial gainful activity" and therefore is not considered work for purposes of social security disability.  My experience in Dallas Fort Worth and in Texas is that social security administration representatives are somewhat inconsistent in whether they will take a social security disability application for someone who reports continued working at a reduced amount.

2.  "I am waiting to get all my medical records together before I file for social security disability.  Is this a good idea?"
No.  This is not a good idea.  Social Security has the responsibility of gathering your medical records.  You do not need to.

3.  "I'm not sure what disability program to file for.  I have heard of Supplemental Security Income (SSI), but I don't know if I would qualify"
Filing for disability benefits is not a test of your knowledge of benefit programs.  You are not expected to know whether you should file a claim for Social Security Disability Insurance (SSDI) benefits, Supplemental Security Income (SSI) based upon a disability, Disability Widow's Benefits, etc.  Social Security representatives are trained to know what programs to file claimants for.  And if a mistake is made (for example., a person could qualify for SSI, and no SSI application was taken), a claim can always be updated with the correct type of claim.

4. "I was told that I should wait to file for social security disability benefits until my worker's compensation benefits end.  Is that correct?"
No.  It is true that social security law provides for an ""offset" of disability benefits based upon amounts received in worker's compensation benefits in the state of Texas, and most states.  But if you wait to file for social security disability until the worker's compensation benefits stop, you could be looking at many months without an income until your social security disability benefits case is approved.  On the other hand, if during the time of your worker's compensation payments you had filed and been approved for social security disability, all it would take is for you to document the cessation of worker's compensation payments, and the social security disability payments would start.

BOTTOM LINE:  It is in general always better to file a claim for social security disability than not file.  Filing for social security disability costs nothing.  There is no penalty if your are denied, and you will not get in trouble with the government if it turns out you go back to work and are fine.  On the other hand, procrastination is deadly in the social security disability arena.  You really can permanently lose the right to benefits  if you delay for too long.

August 4, 2010

Accurate Description of Past Work: Real Life Example of Why It Matters

I just reviewed a new case, and find it to be a great example of why it is very important for Texas social security disability claimants to correctly describe the exertional requirements of their prior jobs.  My client's sole past relevant work is that of a "Machinist" and "Custodian" in the Dallas Fort Worth area.    The client is over the age of 55, has had a prior lumbar fusion, and continues to suffer from low back pain.  This means that in order to deny the disability claim based upon this severe back impairment the Social Security Administration must find my client to be able to return to either of these two jobs, or be able to transfer skills from his machinist job to a less physically demanding job.   The latter is quite unlikely, so I am going to focus on the issue of return to work.

In my case, the Disability Determination Services (DDS) in Austin (they are the folks who in Texas make the disability decision at the initial and reconsideration stages) found the claimant to be able to do no better than "light work", which is generally defined as requiring standing and walking for "most of the day" and the ability to lift 20 pounds occasionally and 10 pounds frequently.    In order to find a claimant capable of return to past relevant work, Social Security must find that claimant capable of either returning to past relevant work "as described in the Dictionary of Occupational Titles" (DOT) or as "actually performed by the claimant".

The DOT describes both a position as a "Machinist" and "Custodian" as requiring lifting beyond that of a "light" job.  Therefore, this claimant should have won before he hired me.  Why didn't he?

Turns out, in his description of his jobs he indicated that they did not require lifting beyond 20 pounds occasionally and 10 pounds frequently.  I promptly got him in to the office, and as I suspected, his prior jobs required lifting well beyond that of light work.  He simply completed the "Work History" form incorrectly when he filed.  We will be getting this case turned around, but it is a textbook example of why social security disability claimants must complete the "Work History" form with care and accuracy.

August 3, 2010

"How Much Can You Lift?": Avoid the "John Wayne" syndrome

A critical question in assessing your disability is how much you can lift and carry, both on a "frequent" basis (2/3rds of the workday) and on an "occasional" basis (1/3rd of the workday).  We men often have trouble with that question.  I call it the "John Wayne" syndrome.  If you are younger, maybe you can think of it as the "Vin Diesel" Syndrome.  Either way, I think you can anticipate what I mean, as well as understand part of the reason why men tend to overestimate what they can do physically: we want to look masculine in front of others.  But I think there is also a more subtle dynamic.

I am approaching my mid-50s, and I just recently starting some weight lifting.  I would call it "light weights" not because that is my choice, but because that is all I can do.  If you had asked me, before I started lifting, what I could lift I would have greatly overestimated, not because I am full of myself, but because my memory of what I can lift is from when I was a much younger man.

Usually disabled men have been relatively inactive due to their health since they last worked.  By the time of the ALJ hearing, that could be several years.  So when I prepare my Dallas clients for their hearing by asking the all-important "how-much-can-you-lift" question, and get what I know to be a ridiculously answer like "50 pounds",  I always ask:  "When was the last time you lifted 50 pounds?"  Invariably I get a blank look, with an answer like "I can't remember...".

 Never say you can lift a given amount if you have not done it in years!

August 2, 2010

"Have You Heard Anything Yet?"

I have thought carefully about making this post, and I want to tread very carefully on this subject.  It is well-known that the biggest complaints that clients have about their social security disability attorney is the failure to return phone calls promptly.  And all attorneys, when confronted with this fact, will nod their heads sheepishly, and say, yes we should do better.  And generally we should.  But just saying we should do better ignores the factors that lead to unreturned phone calls, and how both the attorney and client has a part in this problem.

Most claimants assume that their social security disability attorney makes a lot of money; after all, they can make up to $6000 on a case, sometimes with very little work.  But the reality is that most social security disability attorneys are not among the wealthy, and a social security disability practice is not where young lawyers who want to be rich go to practice law.  With the delays in case processing and the fact that lost cases mean no attorney fee, most attorneys have to have 80 to 100 cases at any one time to keep a reasonable business going.  And for most of those cases, there is a LOT of waiting time.  That is, we as attorneys have done all we can do, and are just waiting for the government to take action.  So if those 80 to 100 clients called even every month to ask "have you heard anything?" a lawyer is left with little time to actually handle and win cases.

Moreover, calling social security over and over again will do nothing to change the delay, and wastes valuable resources and time for the government.  Having said this, I understand how frustrating it is for disabled clients who are in real financial crisis, and feel that no one is taking action. But don't assume that just because you haven't talked with your social security disability lawyer for a while that they are not doing everything that they can do to help you.  Come to a reasonable understanding and expectation as to how often you and your attorney will talk.

August 1, 2010

Sad News: Death of Administrative Law Judge James Russell of Fort Worth

Administrative Law Judge James Russell of the Fort Worth Office of Disability Adjudication & Review (ODARS) died July 21, 2010 while vacationing in his home state of Maine. Judge Russell had been an ALJ for  the last 3 years in Ft Worth Texas.  He died canoeing the Union River near his camp in Clifton, Maine from a sudden heart attack. He was with his eldest son Daniel at the time of his death.

Judge Russell's case approach could be unusual, as he usually announced his decision at the end of the hearing.  That could make for some awkwardness when he told a claimant that he would deny the claim (fortunately I did not have that experience often).  He was never ugly, however, and I came to respect the fact that he believed the claimant should be told face-to-face where he or she stood.  He was fastidious about the medical record being complete, and he was always prepared for his hearings.  He was an honorable and fair-minded judge, and he will be missed deeply. Cases pending before ALJ Russell in the Fort Worth hearing office will be re-assigned to another judge.

July 4, 2010

Disability Onset Date

My colleague and fellow social security disability lawyer Jonathan Ginsberg has a good post discussing the disability onset date, and the possibility that social security will approve a claim based upon a different and usually later onset date.  I recommend it for reading for my readers.

As Jonathan points out, administrative law judges will sometimes offer a later onset date at the hearing, and request that we “amend” the onset date – that is, change the date that we allege the claimant became disabled.  This can sometimes feel like “deal cutting” for claimants, like an insurance company offering to pay a claim for 50% on the dollar.  But as Attorney Ginsberg notes, this offer is usually based upon the ALJ’s reading of the medical evidence/record, a specific medical opinion, or a specific medical test.

Here’s an example:

  • Claimant was laid off work on January 1, 2009
  • He claims disability due to a back impairment.
  • He has inconclusive x-rays, but finally on February 3, 2010 he has an MRI showing multiple level disc ruptures, with nerve root impingement.
  •  The ALJ requests an amending onset date of February 3, 2010.

ALJ’s may also request an amended onset date based upon your age, not on the medical evidence.  This one is a little harder for claimant’s to understand, but the basis is this.  The vocational guidelines used in determining whether claimants are disabled take age into account when considering whether “other work” is available.  For example, the ages of 50 and 55 are significant.  So, sometimes an ALJ may offer a later onset date based upon age. 

These are the key issues to consider whether to accept an amended onset date:

  • As Jonathan points out, never accept an onset date that is AFTER the Date Last Insured
  • There is a huge benefit to the claimant in being approved for disability, regardless of the onset date.   In other words, the money the claimant will receive in the future is much greater than the past-due benefits, which is the amount of course impacted by a more recent onset date.
  • A later onset date WILL impact the monthly benefit amount where there is a period of non-working from the time of the alleged onset date to the time of the amended onset date:  the monthly benefit will be LESS because it is reduced by the time of no work.