Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt.

One of the issues that the judge discussed in this case was the unemployment issue – here’s how the judge addressed it in the decision:

Pursuant to a November 15, 2006 memo from then Chief Administrative Law Judge Frank A. Cristaudo, “receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits.”  Judge Cristaudo further discusses the issue:

…application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence…For instance, the fact that a person has, during his or her alleged period of disability, sought employment at jobs with physical demands in excess of the person’s alleged limitations would be a relevant factor that an ALJ should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.

Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment…

In this case, my client did not have a good explanation for why he was unable to remain employed.   Not only were his post-application work attempts at jobs with significant physical demands but he testified that he quit those jobs because they were “dead end jobs” and “boring.”  At no point did he testify that he quit because the physical or mental requirements of those jobs was beyond his capacity.

Here are the conclusions that I am taking from this decision and other experience:

• if you file for unemployment benefits while you are also filing for Social Security disability, you should be prepared to explain yourself (this is where you would discuss your desire to try to work despite your issues)
• if your record shows work attempts at jobs which have physical requirements in excess of the limited physical capacity you are claiming for Social Security purposes, these work attempts could be used against you
• if you try to work and quit, you should focus on problems you had performing the tasks of your job or with reliability, not because you were bored or not making enough money
• work attempts after applying for benefits can function as helpful evidence but if you work too long (i.e., more than 3 months) or if your reasons for leaving are not directly related to your alleged impairment, those work attempts will be used against you.

I just had my second hearing with administrative judge and wanted to add a very brief fact into testimony and was wondering if it is acceptable to write the judge directly.   I do have a lawyer, but I am unsure that some of my letters of issues that I want to clarify are not being seen by the judge.

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Here are my thoughts:  first, if you have a lawyer I think that any communication from you needs to come through your lawyer.  Judges generally do not accept direct communications from disability claimants – more likely than not, the judge’s office would return your submission to you, and, most likely copy your lawyer with a form letter advising you to use your lawyer to submit all documents.

Second, unless the information you want to add is extremely significant I would hesitate to try to update your hearing testimony.  Social Security judges are very busy and when you try to add a document after the record has closed at your hearing, it will require someone at the hearing office to manually pull your file.  This could result in a delay in the issuance of your hearing decision.  Further, judges usually “close the record” after the hearing so it is doubtful that your added information would be considered anyway.  You have had two hearings – I suspect that your judge has a fairly clear understanding of the facts of your case.

I would discuss with your lawyer what the best options are here.   If the “very brief fact” is extremely significant and your lawyer agrees that it makes sense to try to reopen the record, then he can try to do so in a post-hearing brief or submission of evidence.   On the other hand your lawyer may advise you that the hassle factor for the judge outweighs the importance of the information and he may advise you to let the matter rest while you wait for a decision.

We have determined that your condition is not severe enough to be considered disabling.  In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….

Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.

An article in today’s Wall Street Journal entitled Doctor Revolt Shakes Disability Program, the Journal describes a system where Social Security administrators are pressing consulting physicians to work faster and to process more files to deal with a growing claims file backup.

Consulting physicians, many of whom are retired doctors looking to earn extra money are being asked to evaluate medical records outside their areas of specialty (such as a case where a pediatrician was asked to review a complex small fiber neuropathy case, or where an eye doctor was asked to review an orthopedic case).  SSA has also cut the case consulting fee for these doctors from $90 per hour to $80 per hour.

As a result of these changes, consulting doctors are leaving the program, further stressing the system and increasing delays.  One former consulting physician recalled that he was fired when he refused to complete a report about a medical issue outside his area of specialization.

What does this internal upheaval at Social Security mean to you?  I think it is fair to say that any progress SSA has made in reducing delays will be difficult to maintain given the increasing number of filings and the difficulty that the agency has in training and deploying trained personnel.

In my office, I no longer assume that Social Security claims adjustors will have time to track down and request copies of my clients’ medical records, or that they will have time to read these records.   In my office, we are taking more responsibility to obtain these records and to summarize them for the adjudicators, consulting doctors and, ultimately the judges.  If I can make the decision-maker’s life a little easier by giving him a reason to approve my deserving clients’ cases, then everyone will benefit.

Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970′s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him.

After being denied at several more appeals levels the case eventually made it to the 1st Circuit Court of Appeals which found in Dr. Frusher’s favor.  Unfortunately, Dr. Frusher had passed away by the time of the Circuit Court’s ruling, but his wife continued the appeal.  His widow will receive past due benefits amounting to 30 years of past due benefits.  Congratulations to the Rhode Island law firm of Marasco & Nesselbush for its stellar work in this case.

What does this case mean to other claimants?

This case addresses the issue of reopening of claims.  In an SSDI claim, a claimant can reopen for any reason a prior claim if a second claim was filed within 1 year from the date of the notice that the prior claim was denied at the initial application.

Example:  Tom files Claim #1 on March 1, 2008, and it is denied July 12, 2008.  Tom does not appeal, but files a new claim on April 3, 2009.

Tom can move to reopen Claim #1 because it was filed within 1 year of July 12, 2008 (the date of Claim #1 denial).  Tom would have to show some reason to reopen (i.e. there was evidence in existence that was not considered by SSA in claim #1) but he would not have to show “good cause.”

If Tom filed Claim #2 on August 1, 2009, he could not move to reopen “for any reason” since Claim #2 was filed more than 1 year after the initial denial of Claim #1.

Tom could ask SSA to reopen Claim #1 within four (4) years of the initial denial if he can show “good cause” (the time limit is 2 years in an SSI case).  In my experience, Social Security judges consider “good cause” to be a very high standard and they rarely reopen on that basis.

The Frusher case is rare because Claim #1 was reopened well after the 4 year statute of limitation.   SSA does allow a claim to be reopened “at any time” in the case of fraud or similar fault.   The 1st Circuit found that Dr. Frusher’s failure to appeal was both not his fault (because of his mental illness) and that SSA acted wrongfully in denying him the opportunity to appeal.

What should you learn from all of this?

• when you file for disability benefits, you are generally better off pursuing your appeal as opposed to dropping your case and starting over
• if you do drop your appeal, or fail to appeal timely, generally it does not benefit you to wait to reapply
• if you are confused about your insured status for SSDI or about your appeal rights, contact a lawyer sooner rather than later

Mental health evaluations, by contrast, often help your case – perhaps because psychologists and psychiatrists are generally not biased from being part of an adversarial workers’ compensation system and because mental health professionals often see a need for on-going therapy for many that they see.   To put this another way, physical medicine doctors face insurance company pressure and financial incentive to fix a problem as fast as possible, whereas mental health professionals are not looking for a “cure” as much as they are looking for gradual improvement over time, and thus on-going visits.

I have read literally thousands of physical and mental health consultative examination reports and as a rule the mental health evaluation reports usually offer some help, while the physical medicine reports either hurt my client’s case or offer no conclusions at all.

You may be wondering why you are being scheduled for either a physical, a mental evaluation or both?   The Social Security law requires the Commissioner of Social Security (and by extension, the employees of the agency) to help “develop” your medical record.   Consultative evaluations, therefore, would satisfy SSA’s statutory requirement even when considering the claims of applicants who have little or no medical treatment (due to lack of money or other causes).

Appeals courts considering the nature of SSA’s obligations have held that that consultative evaluations do satisfy SSA’s statutory duties to develop a claimant’s record.   SSA, presumably hoping to avoid further court challenges, orders consultative examinations in almost every case, even those where there are extensive medical records.

Why, then, would SSA schedule you for a mental health evaluation when your injuries are physical, or vice versa?  This question was posed to me in an email from one of my blog readers:

I was severely injured (multiple spinous fractures, spinal compression fractures, hip fracture) in a catastrophic train accident in London, England while on a business there in November 2010. I underwent spinal surgery in February 2011. I’ve undergone physical therapy since surgery, but have not recovered from my injuries and I continue to suffer debilitating pain in my back, neck and etremeties. I was seeing a psychiatrist leading up to my surgery because I was suffering mental trauma from the accident. I stopped seeing the psychiatrist after the surgery, principally because it was too difficult for me to get around. I’ve filed for disability from the SSA. My case is presently under review. I’ve hired a company to represent me in my claim. I just received a call from my SSA case worker asking me if I would see their pshyciatrist. I said I had no objection to this. My question: I don’t know why I need to see a psychiatrist if my claim is based on my physical disability, not any mental disability. Also, how should I approach my interview with the SSA psychiatrist?

Here are my thoughts:  first, I don’t necessarily presume that anything done by Social Security is inherently grounded in reason or logic.   It is possible that the adjudicator evaluating your case refers every claimant to both a physical and a mental health evaluation.

It is also possible that the adjudicator saw the psychiatric records in your file and that your treatment had stopped, and wanted more development.

Realize that a disability adjudicator (and ultimately a judge) has to justify his decision to approve (or disapprove) a case in writing.  In your case, I suspect that the adjudicator is looking for additional reasons to approve your case in addition to the obvious physical issues present.

Although not applicable to you, I have seen cases where an individual is referred to a psychiatrist or psychologist if there are suggestions of malingering or drug seeking behavior, or if the physical impairments claimed are out of proportion to physical injuries suffered.

My guess is that in your case the adjudicator is attempting to fully develop your record and to tie up loose ends.

As far as what to expect, most psychiatric evaluations involve a series of tests for depression and anxiety – there is no way to prepare for these evaluations – just tell the truth and do your best at completing the tests.

As of July 28, 2011, this “double filing” option is no longer available.

SSA has issued a “ruling” called SSR 11-1p which says in part:

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

Social Security concluded that this new rule was needed because of the administrative complications of coordinating appeals with new claims.

This prohibition against concurrent claims does not apply if you are seeking a different type of benefit – for example, if you are appealing an SSDI denial, you could file a new claim for SSI benefits.

In my view, the question of whether or not to file a new claim vs. appealing a hearing denial will be most relevant to claimants whose insured status for Title II has not yet run out as of the date of the unfavorable hearing decision.   The Appeals Council process can take one to three years and the likelihood of success is not great.  On the other hand, a new case is likely to be denied by the Social Security adjudicator and a hearing will be scheduled before the same judge who denied case #1, unless that judge has retired or moved on in the interim.

Because the disability decision making process can take so long – 1 to 2 years in most places – it can be easy to forget what your lawyer may have advised you in a meeting 6 or 8 months ago.  Gordon’s book remedies this problem by setting out clearly and concisely 10 essential reminders about what you should keep in mind.

In my Atlanta law practice, I usually communicate with my clients by email more so than by phone and I have been sending out the link to Gordon’s free download on a regular basis.

Obviously, no book, no matter how good, will substitute for a supporting treating doctor and hundreds of pages of strong medical records.   However, if you and your attorney follow the advice set out in this helpful little book, you will greatly reduce your chances of being unprepared when you finally get your hearing date.   Again, the download is free and you will find the information contained within very useful.

SSDI stands for “Social Security Disability Insurance” and refers to benefits payable to claimants who have enough credit hours to be considered “insured” for disability.  The monthly payment is a function of what you have paid in to the system.  In my practice the average SSDI monthly payment is around $1,50o.

SSI stands for “Supplemental Security Income” and refers to welfare benefits payable to claimants who do not have enough credits to be insured for disability.  The maximum monthly payment is set out in the law – and for 2011 is $674 per month for an individual.

Last week, for example, I received a long email from a concerned woman who was writing on behalf of her father.   Apparently, her father had worked at a very physical job for over 20 years before suffering a stroke in 2002.   This gentleman filed for Social Security disability in 2002 and was denied at a hearing, which I will assume was held at some point in 2003.

After being denied, this gentleman did not file anything else.  He remained at home, unable to work because of the ongoing complications from the stroke as well as depression and anxiety.

In 2009, the gentleman filed a second application.  In May, 2011, he appeared at a hearing and in July a “fully favorable” decision was issued.

But, the daughter notes:

there is still one little problem. For the past two years we thought we were fighting for SSDI and apparently we weren’t. I remember early on getting a letter stating that he was denied social security disability. But when we wrote to appeal, that is what I thought we were appealing. A few weeks after receiving the judge’s decision we realized that he did not get SSDI but SSI instead. I was in utter shock I had no clue there was a difference between the two and I truly thought my father would get his full disability benefits but this is not the case. I had no knowledge that social security only looks at the past ten years, and that the applicant must have worked five of those last ten years.

What happened here is this:  when the father stopped working in 2002, he was “insured” or covered for SSDI until about 2007.  Why?  SSDI looks at your earnings during the ten year prior prior to your “onset date.”  In order to collect under SSDI, you need to show that you have worked and earned credits for at least 20 out of the past 40 quarters.  There are four (4) quarters in a year, so 20 out of 40 is equal to five out of the past 10 years.  If you have earned full credits for ten out of ten years, your insured status will carry forward for approximately five years.  The requirements are a little different for younger workers, but the principle is the same.

Generally, to earn a credit, you need to show around $1,000 of earnings for that quarter.  So, if you show around $4,000 of earnings for a calendar year, you get all 4 credits for that year.

When the father reapplied in 2009, he should have alleged an onset date prior to his date last insured.  In this case, he could have alleged an onset date anytime after the date of the 2003 hearing denial, but before his insurability ran out in 2007.

My guess is that when he applied in 2009, the intake person at the Social Security Administration used the date of his application as the onset date.   No one ever thought to amend (change) this onset date.  It is also possible that the intake person only processed an SSI application because her computer showed that the father did not currently have credits.

In her email, the daughter does not say if her father had a lawyer appear with him at his hearing.   Assuming that the evidence supported an onset of disability back to 2004 or 2005, that lawyer should have requested an amended onset date back to the earliest possible date.

Of course, the attorney may have made this request but the judge could have denied it on the grounds that the evidence did not support an onset prior to 2009.

SSI pays claimants around $674 per month, and may reduce that amount if the claimant receives support – including room and board – from family, friends or welfare.  SSDI, by contrast, pays a monthly benefit based on the claimant’s past earnings.  Often SSDI payments can be $1,500 to $2,000 per month and there are no household support offsets.

Here, the best advice I could give the daughter and her father would be to speak to a Social Security lawyer about filing an appeal to the favorable decision.  The basis of the appeal would be that the judge used an onset date that was too late – it should have been earlier.   The father will also have to argue that the SSA intake person erred in not taking an SSDI application.  The attorney may have to argue that the father did not have the capacity to understand the difference and thus should not suffer because of his lack of capacity or knowledge.

You can probably sense that the father has an uphill battle.  It would have been a lot easier to deal with this issue prior to the 2011 hearing.  I hope it is not too late for the father to undo what should have been done several years ago.

One of the most common questions I get has to do with the question of whether a Social Security disability overpayment may be discharged in a bankruptcy.  Overpayments occur when disability claimants continue to receive benefits even when they have returned to work or are otherwise not eligible for payment.

Often, the person receiving the payment does not know that he/she is not eligible.  Social Security has a number of programs designed to encourage disabled claimants to return to work, and most of these programs provide for several months of continuing disability payments while a claimant tries to return to work.

To call Social Security’s return to work programs confusing would be an understatement.   For example a disabled person can attempt to work during a “trial work period” of up to 9 months during which time he will continue to receive his full disability benefit.   A trial work month is one in which  you earn more than a designated amount (in 2009, this amount was $700, in 2010 and 2011, it is $720).   If you work 9 or less trial work periods in any 5 year period, your ongoing benefits are not at risk.  If you exceed 9 trial work months, then you may be cut off.

Sometimes, a disabled person may exceed his/her trial work months and not realize it.  In other instances a person may return to work but continue to receive direct deposit from Social Security, but not realize that these disability payments are incorrect.  Other people know that they should not be receiving benefits when they return to work but they need the money.

In any case, there is nothing in either the bankruptcy law or the Social Security law that prevents a Social Security disability overpayment from being discharged.   The Bankruptcy Code does allow creditors (i.e. the Social Security Administration) to object to the discharge of a debt if there was fraud or “false pretenses” – so a claimant who knowingly accepts disability payments improperly could still face a challenge, although I have never personally seen SSA object to discharge of a debt in a claimant’s bankruptcy.

This dischargeability issue came up in a recent case decided in the Northern District of Georgia in which the judge denied the debtor’s request to have the merits of the overpayment dispute heard in bankruptcy court.   Perhaps in an effort to forestall further litigation, the judge noted in dicta (observation) that Social Security overpayment debt is dischargeable absent some affirmative step by SSA to prove fraud.

The judge roundly criticized Social Security for failing to follow its own administrative procedures in considering the claimant/debtor’s attempt to secure a waiver of overpayment.   I wonder if SSA’s tendency to ignore its own administrative rules would benefit the debtor in a dischargeability action that SSA might raise in some future case.

One of the points Geri discusses really resonates with me.   She answers the question “I have back pain and cannot work so why do you recommend that I see a psychiatrist?”

Great question.

For years, my practice has been to add an allegation of depression and/or anxiety to every Social Security appeal I file.  In my view it would be extraordinary if anyone with a history of regular work would not be depressed and anxious if he/she:

• no longer has a regular work routine
• experiences financial pressure because of lack of income
• feels a sense of worthlessness because he/she can no longer contribute (this is especially true for men)
• recognizes that he/she will not be able to engage in social, athletic and recreational activities at pre-impairment levels
• has to deal with stress and anxiety inherent to anyone with chronic pain
• has to deal with disrupted and sometimes damaged family relationships
• has to deal with physical and emotional changes associated with strong pain medications
• experiences new medical issues associated with his/her chronic medical condition (i.e., obesity, constipation, high cholesterol, etc.)

As a disability claimant, you may not even realize the impact your back condition has had on your life.  As attorneys, we look at you as a whole person to understand more fully why you can no longer work.   Not only will such a more expansive view of your damaged health benefit your case, it may help you better understand what you are going through as well.