Dallas Social Security Disability Attorney

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

2010-09-11T10:52:00.000-07:00

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.

Filing for Social Security Disability: Some Common Questions

2010-08-27T13:06:00.000-07:00

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.

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

2010-08-04T09:42:00.000-07:00

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.

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

2010-08-03T20:30:00.000-07:00

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!

"Have You Heard Anything Yet?"

2010-08-02T13:20:00.000-07:00

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.

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

2010-08-01T16:05:00.000-07:00

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.

Disability Onset Date

2010-07-04T17:19:00.000-07:00

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. http://www.ssdanswers.com/2010/06/23/what-does-it-mean-when-a-judge-wants-to-change-your-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.

Social Security Disability Deadlines: Real and "Faux"

2010-07-04T08:00:00.000-07:00

Like all administrative processes, the social security disability assessment process has lots of deadlines. Though the system was initially intended to allow claimants to handle their own claims, it did not take long for the process to become very unfriendly for the individual claimant.

In my experience as a social security disability attorney in Dallas Texas for 19 years, I see first-hand the dire consequences of claimants not understanding just how important deadlines really are. The social security disability assessment process has rigid appeal stages. If the claimant is denied initially, they have the right to request a reconsideration. If the reconsideration is denied, the claimant has the right to request an administrative hearing before an Administrative Law Judge. If the judge turns the claimant down, the claimant may ask the Appeals Council to review the case. If the Appeals Council refuses to review the claimt, the last step in the process is to take the claim to the US Federal Court. At each step the claimant has 60 days to appeal the case. Failure to appeal within the 60 days means the claimant must either start all over again, or prove to the Social Security Administration that they had "good cause" for failing to appeal the claim withn the 60 days . "Good cause" is loosely defined, but typically is confined to proof of non-receipt of the denial letter, a major hospitalization in the 60 day period, etc. Simply not getting around to dealing with the denial, misreading the denial letter, or misplacing the letter are generally not going to be found to constitute "good cause". And even more importantly the finding of "good cause" is totally within the discretion of the Social Security Administration. A claimant cannot appeal a finding by the Social Security Administration that "good cause" for missing a deadline did not exist. So missing an appeal denial is a big deal.

But there are other deadlines in the disability assessment process that Social Security presents as critical that are not in fact as important. For example, when the Office of Disability Adjudication & Review (ODARS) sends the claimant notice of the hearing, they routinely state that certain forms must be completed and returned within 10 days. While there is no real reason that the claimant should not do so, there is no major problem if the claimant fails to get those forms back to the judge in 10 days. The hearing will not be canceled, nor will the judge automatically deny the claimant. This is an example of what I would call a "faux" deadline ("faux" being French for "false").

Deadlines in the social security disability process are an example of why claimants need competent legal counsel who know when which deadlines are deadly serious, and when they are not.

NAMI gives Texas a "D" on Mental Health

2010-06-02T20:42:00.000-07:00

The National Alliance for Mental Illness (NAMI) is an important national organization advocating for Americans suffering from mental illness. Mental illness represents the most frequent basis for social security disability benefits in the United States.

NAMI has graded US states for 2009 in their support for the mentally ill. NAMI awarded the state of Texas the very unsatisfactory grade of "D". http://www.nami.org/gtstemplate09.cfm?Section=Grading_the_States_2009&Template=/ContentManagement/ContentDisplay.cfm&ContentID=74935.

While I know many with the state of Texas, and the various MHMR clinics, who are working hard to assist the mentally ill, the state of Texas has little to be proud of in NAMI's assessment of how we provide mental disease services.

Recent Social Security Lawyer Blogs Worth Reading: Week of 5/24/10

2010-06-01T15:57:00.000-07:00

Below is a selection of recent posts from the Social Security disability blogs across the country that are well written and worth reading by Texas social security disability claimants:

1. Good Discuss at My Disability Blog about how Divorce would impact disability benefits. The difference between Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) is critical since SSI is a welfare program where all household income comes into place and DIB which is an entitlement NOT related to household/spouse resources.
http://disabilityblogger.blogspot.com/2010/05/what-happens-to-social-security.html

2. Jonathan Ginsberg of Atlanta is a first rate social security lawyer and blogger. His note on just how important treating doctors are to a social security disability case is a must read. http://www.ssdanswers.com/2010/04/30/the-importance-of-doctor-support-in-a-disability-claim-and-why-this-is-the-case/

3. Maine's Gordon Gates, who always presents strong and timely social security disability information, discusses the listing for mental retardation at http://www.socialsecuritydisabilitylawyer.us/blog/2010/06/social-security-adult-listing-1205c.html.

Debt Collection and Social Security Disability Benefits

2010-05-25T14:43:00.000-07:00

Federal Law prohibits the seizure of Social Security Disability Benefits to collect on a debt. But many debt collectors do not follow the law (what a surprise).

Debt collectors who have secured a money judgment sometimes go after money held in bank accounts of Social Security Disability recipients. This is illegal!

Typically once a debt collector has a legal judgment they will send the debtor's bank what is called an "Order of Garnishment." Normal banking practice, when presented with an Order of Garnishment, is to put a hold on the bank account, regardless of whether the moneys in the account are those deposited by the Social Security Administration for disability, and therefore not legally subject to garnishment by the creditor.

Debt collectors are getting around the law that prohibits the seizure of Social Security monies because banks are not checking to see if any of the money in the account is Social Security benefits.

New banking rules are now being written that are designed to stop debt collectors from using banks to seize your Social Security Disability benefits.

If your bank gets an Order of Garnishment, the bank will now be required to check your account to see if you received any Social Security Disability benefits within the last 2 months. If so, your bank will be required to protect your Social Security Disability benefits from seizure.

These rules will help protect you! If someone you know has had their Social Security Disability claim denied, we can help. We are only a phone call away - Our phone number is 214-219-7288

Social Security Disability Fraud

2010-01-24T17:45:00.000-08:00

Texas workers are, to say the least, very frustrated when they receive a social security denial. At least 2 or 3 times a week I talk to claimants who are even more frustrated that they know persons in the community getting social security disability who are not nearly as ill as they are. There are always (and always will be) people who are willing to commit fraud. If you know someone that is taking advantage of the government disability program, you should consider contacting the Social Security Administration (SSA) Office of the Inspector General (OIG). It is their job to handle reports of fraud, waste and abuse in Social Security cases. According to SSA, the purpose of the Inspector General is:

“To promote economy, efficiency, and effectiveness in the administration of SSA programs.

To prevent and detect fraud, waste and abuse in SSA programs and operations.

To inform the SSA and Congress about problems and deficiencies and to recommend corrective action.”

To report fraud for Social Security Disability, you can visit the OIG section of the SSA website. (http://www.ssa.gov/oig). Or you can call the Fraud Hotline at 1-800-269-0271. But a strong word of caution: you may not know and see all that someone getting disability benefits is dealing with. Don't assume they are committing fraud just because they "seem" well. If on the other hand you know a disability recipient pulling the engine out of his car, playing golf everyday, or bragging that they have "gotten to" the government, you owe it to all like yourself to report fraud.

Laided Off & Disabled: Another Reasons Why You Should take COBRA

2010-01-14T12:26:00.000-08:00

Everyday in my social security disability disability practice I see the tragedy of the US health insurance system for disabled workers. It is hard to win social security disability benefits without being under the regular care of a doctor. For most of us, medical insurance is tied to our job. Lose your job, lose your medical benefits.

Most of are familar with co-called COBRA benefits. If your employer is covered under COBRA (read, a major sized employer) you have to be given the option of continuing medical benefits for up to 18 months under the plan as long as you pay the premium. COBRA allows the employer to pass certain medical plan administrative costs on to the COBRA enrollee, so people who have just lost their job are often shocked when they get the letter offering COBRA at how high the monthly premium is, and elect to go without medical insurance.

That is a particularly tragic decision for the disabled worker, since medical care is key to wining the case. Often times, by the time I get called the disabled worker has already waived the COBRA benefits.

President Obama has made it a little easier for laid off workers to take COBRA by subsidizing the insurance. Now, workers laid off between September 1, 2008 and February 28, 2010 will only have to pay 35% of what the COBRA medical insurance premium would have been. So if you have filed for social security disability, and have been laid off, you owe it to yourself to take the COBRA coverage if you have no other medical insurance available.

Is Medication Effective for Depression?

2010-01-07T19:39:00.000-08:00

Many of you have probably heard of a recent medical study finding that medications are no more effective than a placebo (a sugar pill) in treating mild depression. I really worry about how most social security disability applicants are going to interpret this recent news.

It has been my experience that most people who have a severe physical problem suffer from depression and/or anxiety, and its usually more than just "mild". But I have also observed that most of us have trouble acknowledging mental health problems and seeking help for them. And often times when we have lived with feelings of sadness or anxiety for a while we don't realize how bad those feelings have become.

So my worry is that people that are very depressed and anxious, thinking their symptoms to only be mild, will think of this study when offered a medication that could help them, and decline the offer. So I encourage all my clients to take a good look at their mental state, ask the opinion family or friends who often see more of our moods than we are aware of, and consider whether depression/anxiety medications could be helpful.

Do you need a Texas lawyer for your Texas disability case?

2010-01-07T10:12:00.000-08:00

Social Security law is federal, not state. So a New York based law firm is able to represent a Texas social security disability claimant. As a result there are a number of law firms that brag about being "nationwide" and being "the most successful in the country"(translate, biggest).

But local social security representation does matter. My fellow social security attorney Geri Khan points out how she helped solve one of her client's problem "the old fashioned way" - by visiting the local security office and meeting with personnel she has grown to know over the years in her San Francisco California social security disability practice. (http://californiasocialsecuritylawyerblog.com/2009/09/14/it-helps-to-be-local/) My colleague and fellow social security disability practitioner Gordon Gates limits his representation to Maine and New Hampshire, and does a nice job on his blog in explaining why local representation matters. Read it at http://www.socialsecuritydisabilitylawyer.us/blog/2009/08/home-field-advantage.html. Gordon analogizes local social security representation to a "home field advantage" in sports - in particular, as Gordon is a New Englander after all, Fenway Park and the Boston Red Sox. I can personalize that analogy to this weekend's NFC Playoff game in Cowboy Stadium (pictured above, don't you know).

I limit my social security disability representation to Dallas Fort Worth, and North and East Texas - the areas handled by the two Dallas Hearing Offices and the one in Fort Worth. Knowing the particular style and expectations of the administrative law judges is very important. Now does this mean that Binder and Binder can't do a good job on your Dallas social security disability case? Absolutely not. But I do believe, like attorney Gates, that the "home field advantage" does matter. So can The Philadelphia Eagles win Saturday on our "home field"? Yes. Are they gonna? No way.

Hearing Wait is Coming Down

2010-01-01T09:15:00.000-08:00

Even since I began handling only social security disability disability cases 18 years ago, the wait in Dallas and Fort Worth Texas for an administrative hearing before an administrative law judge has been appropriately 12 months. But in the last 18 months I have seen the waiting time at the Office of Disability Adjudication and Review (ODAR) come down. On average it is now taking less than 12 months from the hearing request to get a hearing before an administrative law judge.

Official reports from ODAR for October 2009, continue to show improvement in reducing hearing level processing times and the number of pending cases as follows:

Pending cases dropped for the tenth straight month, down to 717,884, about 5,000 fewer than in September 2009. This is the lowest ODAR pending number since February 2008.

The average processing time is 441 days, the lowest monthly processing time since April 2005.

The table above shows that the Dallas Region has the lowest waiting time for any of the 10 regions in the US. So, 2010 shows real progress for social security disability applicants in Dallas Fort Worth!

Social Security Disability and Age: It Does Matter

2009-12-27T07:24:00.000-08:00

We seem to live in a culture obsessed by age, and the Social Security disability rules seem to reflect that. Etiquette and good manners tell us that it is rude to ask a woman how old they are. But I have to be “rude” every day when I talk to folks in my law practice by asking them how old they are because age matters in a social security disability claim.

More specifically, being over the age of 50 matters to the Social Security Administration in considering whether you could perform work other than the work you used to do. SSA recognizes that as we age it gets harder to learn to do something new - it is indeed hard to teach an old dog new tricks!

Here are some examples of how this works:

· If a social security disability claimant is over 50 years of age, unable to do your old unskilled work, and cannot stand and walk for most of the workday, SSA will presume that you are unable to transition to other work due to your age. This can make a huge difference in a claim. A person so limited may lose his disability case at age 48, but will win it at age 50.

· If this same person is over 55 years of age, you can win your disability case even if you can stand and walk for most of the day and do so-called “light duty” work.

If you live in Dallas Fort Worth, North and East Texas, visit my website at www.disabilityapproved.com for a free case evaluation.

We're a Google Favorite Place

2009-12-26T06:52:00.000-08:00

Google has selected 100,000 US small businesses based upon Google users' interaction with local business listings, and declared those to be "Favorite Places on Google". I am happy to report that the Denman Law Office has been selected by Google to be a "Favorite Place". As a "Favorite Place " Google has provided us with a decal like that on the left. Notice the strange little square UPC box in the lower right corner corner. That's a QR Code, a type of UPC code called a Quick Response Code. Now here is what is really cool: you can scan that code with a smart phone and it will bring up our listing on Google Maps. You can see our client reviews and get directions to our office.

Drugs & Alcohol: Poison to Your Disability Case

2009-08-06T07:38:00.001-07:00

Drug and alcohol abuse seems to seems rampant these days. And if you have a pending social security disability claim and you are abusing these substances, you are not only poisoning your body, you are poisoning your social security disability case.

Social security regulations provide that disability benefits will not be paid when a disability is caused by drug and alcohol abuse. The claimant must be disabled even if the drug and alcohol abuse ceased.

Most claimants filing for disability that I have seen who are abusing drugs and alcohol are not disabled because of the substance abuse. Usually it is part of their problems, probably makes them worse, and is in response to the stress of their situation. But substance abuse creates a significant issue that the judge must look at: what role does the substance abuse play in the disability claim. In the back of every judge's mind is the understandable concern: if I grant this case will the benefits simply be used to abuse drugs and alcohol? No judge wants to be this kind of "enabler".

If you are abusing drugs and/or alcohol and have filed for disability benefits know this:

1. You will not be able to hide it from social security. More than likely it is a part of the medical records;

2. The fact that you may have a "dual diagnosis" (mental health diagnosis plus substance abuse), or that you are "self-medicating" will not protect you from a denial due to your substance abuse;

3. You need to enter treatment if you are abusing substances. Period. You may be able to quit on your own, but you need more proof than just your word that you have "turned it around".

Working and Social Security Disability: Oil & Water that Do Not Mix

2009-07-31T13:53:00.000-07:00

Receiving social security disability benefits and working at the same time is a very bad idea. Yet I get a call almost daily from someone who has filed for social security disability, and is working part-time, and was advised at their Social Security office that this was "OK". They often say something like "I was told told I could make up to "$980 a month, and it won't count against me".

Well, as my fellow Texan H. Ross Perot said when he was running for President, "the devil is in the details". Here are those details.

The Social Security Administration follows a 5-step sequential evaluation process. The first question to be asked is whether the claimant is "working". If the answer is "Yes", the claim is automatically denied. If it is "No", the analysis moves to the next step in the 5-step process. "Working" is a defined as "Substantial Gainful Activity" (SGA) . SGA generally has to earn you in 2009 at least $980 a month. So, when social security tells people that they "can" earn up to $980, all they really mean is that the governmental cannot deny your disability claim at step 1 of the 5-step evaluation process. In other words, they cannot deny your claim by finding that you are working.

The problem with part-time work and taking a social security disability claim before an Administrative Law Judge is that the judge can't help but wonder about the work, especially if you have been working right at the $980 a month figure. It looks like you are gaming the system. The judge cannot help but wonder if you purposely keep your work part-time.

Bottom Line: If you work after you have filed a social security disability claim, do so to see if you can work full-time. Starting part-time is fine, but move quickly to full-time to test your ability. If you can't do it, stop working. Do not work as a means of supplementing what you get from social security disability.

Vocational Rehabilitation: A good idea?

2009-07-26T18:34:00.000-07:00

Texas social security disability applicants should strongly consider going to the Department of Assistive & Rehabilitative Services to inquire about vocational rehabilitative services. They can be found at http://www.dars.state.tx.us.

Can I fire my Social Security Disability Lawyer?

2009-07-25T13:47:00.000-07:00

Of course you can. Take a look at the contract that you signed. No one is required to stay hitched to any attorney they are not happy with. "Should" you fire your social security disability attorney is another matter. First off, the attorney technically has the right to ask for a Fee even if you have parted ways at the time your claim is approved. As a practical matter few attorneys do so.

I probably field 2 or 3 calls a day from folks wanting to fire their attorney and hire me. I urge folks to take a careful look at why they are unhappy with their lawyer. Typically people are frustrated with the delays, and feel the attorney "is not doing anything". Other times claimants are unhappy with calls not being returned. I always tell people to give the attorney a chance to respond to their concerns. An attorney can do little to speed up the process. Many times the attorney has done all that can be done, or they have a specific timeframe in which they prepare a case.

I often find that the understandable frustration folks have with the social security administration gets transferred to their attorney. Don't assume your attorney is part of the bureacracy; he or she went into this practice to help people. Give them the benefit of the doubt!