When Georgia Congressman John Lewis set reduction of SSA’s disability case backlog as one of his top priorities, the Atlanta North processing time for claims was the worst in the country at 828 days, and in Atlanta proper it was 750 days.  He noted that “people are waiting years for benefits they deserve, some are even dying while waiting. This is simply wrong…Somehow the richest, most powerful nation in the world must find a way to meet the needs of these Americans. They have suffered enough. They should not suffer at the hands of their government.”

Mr. Lewis testified before the Budget Committee, and urged his colleagues on the House Ways and Means Committee to give SSA the funds needed to hire more Administrative Law Judges and disability claims staff.

Last month, Social Security Commissioner Michael Astrue announced that for the first time in a decade, the agency ended its fiscal year with fewer pending disability hearings than in the previous year.  It closed FY 2009 with 722,822 pending hearings – a reduction of more than 37,000 cases from its 760,813 hearings pending at the start of the fiscal year.  Processing time for cases also improved over the same period, dropping from an average of 514 days in FY 2008 to 491 days in FY 2009.

“Our backlog reduction plan is working, and progress is accelerating,” Commissioner Astrue said.  “Even in the face of a significant increase in our workloads as a result of the worst recession since the Great Depression, we have reduced the hearings backlog for nine consecutive months.  Thanks to the efforts of thousands of hardworking Social Security employees and the additional funding we received from President Obama and the Congress, we have exceeded our backlog reduction goal for this year.”   Click on the link to see SSA’s recent news release discussing these developments.

Despite Commissioner Astrue's positive spin on the statistical improvement, in real life I am still seeing delays of 2 to 3 years.  We are seeing some cases processing through the case very quickly and I suspect that these fast tracked cases have something to do with making the statistics look better.

We have also seen thousands of cases shifted from the Atlanta North hearing office to Atlanta and from Atlanta to Columbus and Macon.  These temporary fixes may result in a short term improvement in the statistics related to delays but only time will tell if the recent backlog improvement is a true trend.

We are also seeing increasing delays in the processing of hearing decisions following the hearings.  I have several cases in my office that I tried in March in which a hearing decision has not yet been issued.   The hearing offices advise us that they do not have enough staff to help the judges.

I do think that Commissioner Astrue is making the backlog a priority in his office and I applaud him for his efforts.  Moving a large bureaucracy like SSA is not an easy task and I wish him the best of luck in this undertaking.

Post from: Social Security Disability Blog

SSA’s Disability Case Backlog Reduced for First Time in a Decade

This question concerns itself with your capacity to perform work or work-like activities.  Other factors like the job prospects in your town, your transportation issues, etc. are not relevant.  As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

Far too often, disability claimants hurt their chances greatly by giving the "wrong" answer to this ultimate question.   In a future post I'll print out some examples of "good" answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers.   As a claimant you must take the time to understand how the disability process works and what the judge needs to hear.   If you get the answer to this "ultimate" question wrong, you will not be approved.

Here are Stan's Five "Case Killers," in no particular order:

Top Five Bad Answers to Question: WHY CAN'T YOU WORK?

In no particular order of "badness", here are the top five"case killing" responses to the Administrative Law Judge Question: "Why can't you work?"

2. "My long-term disability insurance company told me to file for social security disability"

This can be an easy mistake to make. Again, the ALJ wantsto know why you think you cannot work. Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company.

3. "My unemployment insurance ran out"

This is a real case killer, because it makes you look like you are just working the system.

4. "I don't have a car/way to get to work"

Social security disability benefit eligibility has nothing to do with whether you have reliable transportation, or even if your impairment keeps you from driving. Now, if you have an impairment that means you can't drive you have to talk about how that impairment would keep you from working once you are at the job. How you get there is irrelevant.

5. "They eliminated my job/they outsourced it to Mexico," etc.

Unfortunately, the issue is not whether you job is available. The issue is whether you could perform the job, whether it is in fact in existence. A little strange, I know, but….

Here are a couple more that I can add:

6. "My doctor said that I am not able to lift more than 5 lbs. or sit for more than 3 hours"

The judge can read your medical record and what your doctor said.  You are the claimant – what do you think and why?

7. "I can't stand for long periods of time, sit for too long or lift very much.  There is no way I could do any kind of work."

When you testify you must be specific  Generalizations like "too long," "too much" or "not very much"  or "I don't know I have never tried" don't help.  Before the hearing you need to prepare specific answers about how long you can stand, how far you can walk, how much you can lift, etc.  Your lawyer can give you a breakdown of these "exertional" activities.   Answer questions about exertional activities using pounds, feet, and specific times.

8. "If somebody would give me a job where I could work alone and sitting down, I probably could work"

If you say this, you are basically saying that you can perform a simple, sit-down type of job.  At the very least your testimony should be consistent with the notion that there is no full time work you can do.

Post from: Social Security Disability Blog

The WRONG Answers to the Question: "Why Can't You Work"

At Social Security hearings, judges often call vocational witnesses to classify your past relevant work.   Generally Social Security is concerned with your past relevant work over the past 15 years.  Short durations jobs of less than 3 months are usually considered unsuccessful work attempts (UWA) and don't count as past relevant work.

Vocational witnesses identify both the "exertional level" of your past relevant work as well as the "skill level" of that work.   Jobs are classified exertionally as:

• sedentary
• light
• medium
• heavy
• very heavy

More explanation about what these exertional levels mean – page on this blog;  post from Colorado disability lawyer Tomasz Stasiuk

Jobs are classified by skill level as:

• unskilled
• semi-skilled
• skilled

Vocational experts use a resource called the Dictionary of Occupational Titles (D.O.T.) to classify the exertional and skill level of every job that (in theory) exists in the national economy of the United States.  You can read the D.O.T. online by clicking on the link.

The D.O.T. classification of your past work can also be important in a determination as to whether you meet a grid rule.  I have also described how I use the grid rules in cases on my Georgia Social Security web site.

While you are not expected to know how the Dictionary of Occupational Titles works, it will help if you discuss ahead of time with your lawyer how you should describe your past work.   For example you may have had a job title that suggests a particular job, whereas the work you actually performed represents a different job in terms of the D.O.T.

Post from: Social Security Disability Blog

Understanding How Social Security Classifies Your Past Work

I presented all three to our judge, and the judge decided to approve based on….(you'll have to read the case study to find out).

Not surprisingly the judge looked very favorably on my client's long, consistent work history.  The judge even put on the record his opinion that my client would never have stopped working but for his medical issues.  As I note in the case study, the medical record in this file was a little sparse – but a solid work history can go along way to greatly enhance a claimant's credibility.

One of the arguments I had at the ready (although I did not have to use it) was the "frequent restroom break" problem associated with a drug called Lasix, that helps clear fluid from the bodies of patients with congestive heart failure.  Many of my clients are surprised to learn that I often win cases on the work performance problem of needing to go to the restroom several times an hour.   Although excess restroom breaks don't sound like a medical issue, the practical import of this problem is excess missed time from work.

Post from: Social Security Disability Blog

Heart Disease Case Study Posted

Are there any circumstances when an alcoholic or drug abuser might still qualify for disability?

You may be surprised to learn that the answer to this question is "yes."   If the alcoholic or drug user can prove that he/she has a mental or physical condition that leaves that claimant unable to work, and that this other condition exists independently of the alcohol or substance abuse, he/she can win.  In such a case, the claimant' s disability would remain even if substance abuse was absent from the picture.   Such a distinction can be difficult to prove, but it can be done, especially if the claimant has a long treatment record from a treating physician and that physician is prepared to go  on record drawing those lines.

Similarly, I have won a couple of cases on behalf of alcoholics who have severe liver disease arising from drinking.  In one case in particular, I remember seeing blood chemistry test results that clearly documented liver failure in an individual who continued to poison himself with alcohol despite the very negative health implications.

On the other hand, Social Security judges will look much more sympathetically on a case filed by an active alcoholic or drug abuser if the claimant is making a sincere effort to treat the addiction.

Post from: Social Security Disability Blog

Can an Alcoholic Ever Qualify for Disability?

Here is an example:  Tom applies for SSDI benefits in March, 2008, alleging an onset date of January 7, 2008.  Tom's case is denied administratively and he appears at a hearing in August, 2009 and the judge issues a favorable decision issued on September 2, 2009.

Tom will become eligible for SSDI benefits as of July, 2008.  This is because SSDI imposes a five month waiting period on payment of benefits.  January, 2008 does not count in this 5 month period because it is a partial month, so the waiting period includes February, March, April, May, and June, 2008.  Tom's eligibility, therefore, begins as of July, 2008.  His Medicare, however, does not kick in until July, 2010.  This is the 24 month Medicare delay.

Why is there a 24 month delay in starting Medicare?   According to a recent article in the Dallas-Ft. Worth News:

When Congress extended Medicare coverage to people with permanent disabilities in 1972, it also established the waiting period. Lawmakers added the wait to hold down the cost of the new government benefit, avoid overlapping with private insurance and make sure Medicare would be available only to people whose disabilities were long-lasting.

However, as a number of public interest groups point out, the private insurance landscape has changed significantly since 1972.   Far fewer disabled persons have coverage, meaning that disabled citizens who are deemed "disabled" by Social Security may have to forgo medical care and treatment for up to two years.

Of course, the primary obstacle in efforts to eliminate or reduce the 24 month waiting period is money. Eliminating the wait would cost the federal government $6.8 billion the first year and $110 billion through 2019, according to the Congressional Budget Office.  With record deficits already in place it seems unlikely that Congress will take steps to add to the shortfall.

In Social Security disability cases, therefore, your onset date is critically important because it will determine your eligibility for Medicare.  The further back in time you can push your onset the sooner you become eligible for Medicare.

Post from: Social Security Disability Blog

24 Month Waiting Period for Medicare Benefits in Approved SSDI Cases Causes Hardship

I received a letter from SSA saying that they are reviewing my current SSDI benefit and possible to end my benefits due to substantial work between 2004 and now.   I would like to have your advisement how I should handle this and what options I can do to keep my SSDI benefits.   I only have Medicare insurance and living with AIDS.   Also, I am deaf.

My response: Social Security is saying that you engaged in "substantial activity" from 2004 to the present.  "Substantial activity" is a term of art and refers to activity that is work or work like activity.   Substantial activity can be work for pay, volunteer work, school or other similar activites.

In a CDR context, Social Security is most likely looking at your earnings record.  As you know, when you work your employer files copies of all W-2's and 1099's generated on behalf of employees.  If you were working and your employer was withholding taxes as the law requires there is a written record of your earnings.

I have posted a table on this blog setting out what you can earn and still fall below SGA (substantial gainful activity).   Social Security will look at your earnings month by month to calculate how many months you exceeded SGA.  You could, in theory, could be asked to repay SSA for each month that you received earnings over SGA and also collected SSDI.

Note that a couple of other concepts apply hear.  After you are deemed disabled, you are eligible for a trial work period of 9 months in which you can earn over SGA but still receive full benefits.  Beyond that, you are placed into an extended period of eligibility (EPE) for disability for an additional 36 months.  While in your EPE, you will be paid for months where you were under SGA and not paid for months over.  So, your overpayment problem will reflect amounts paid to you during your EPE in months when you were over SGA.

If you take the position that you were not actually performing work at SGA level despite payment at or over SGA amounts, you will need to put on evidence to convince a judge that your benefits should not be terminated.  This evidence can include your testimony, testimony from any employer and medical evidence.   For example, if a relative gave you a "job" for the purpose of supporting you and getting a tax deduction and building up your Social Security account, and you were not doing anything of value you might have an argument.

Post from: Social Security Disability Blog

Approved Claimant Returns to Work – Are there any Defenses to a Continuing Disability Review or Termination Action by SSA

What about unhelpful medical records?  I see this frequently in cases where there was a workers' compensation case.  "Company doctors" often minimize symptoms and generate records indicating that a claimant has the capacity to return to work.   Other times I see unhelpful records in cases where my client just did not "click" with his or her physician or psychiatrist.

One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:

I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. The psychologist and my new psychiatrist say not to put the former psychologist's name on the Review form: ssa-454-bk.  Am I allowed legally to leave her name off? What consequences whould there be. There is nothing on the form that says I can't omit information (no perjury warning). What are my rights, and if I put her on the form will my new psychiatrists' opinions outweigh the old?

Here is my response: I do not believe that a claimant (or a claimant's attorney) has any obligation to submit unhelpful medical records.   This issue periodically comes up on listservs that go to claimant's lawyers and the general consensus among most attorneys seems to be that an attorney's obligation is to represent his clients zealously, meaning that there is no affirmative burden for that lawyer to submit unhelpful information.  I do know some lawyers, however, who take the opposite position, but it appears to me that they are in the minority.

In my opinion, this does not mean that you can lie during a hearing.  If a judge sees a reference to the unhelpful doctor in other records and asks you about it, you should tell the truth.  Unless the missing records constitute a huge black hole in your records, as a practical matter hearing judges usually do not have the time or inclination to hold up a decision to get those records.

Post from: Social Security Disability Blog

Are Claimants Required to Submit Unhelpful Medical Records

According to lawyers who filed a class action suit, SSA ordered its staff to withhold benefits from anyone who was named in an arrest warrant for a federal or state felony.   The problem: many of the affected claimants were not aware of any warrants, in many cases the charges were dropped, and in other cases, SSA erred in identifying the individuals affected.

SSA should have limited its program of withholding benefits to those on the run who are attempting to avoid prosecution or punishment.

Post from: Social Security Disability Blog

Social Security Ordered to Repay 80,000 Social Security Recipients After Funds Illegally Withheld

As humans, we are programmed to believe that things will get better.  For many people, the decision to file for disability is a kind of defeat – a recognition that their physical or mental condition probably won't improve.

In my view, clients who hate the concept of disability are my best clients.  When you walk into that hearing room, you should have the attitude that "I don't want to be here, and I am only here because I have no other choice."   Judges pick up on body langauge, verbal and non-verbal cues.  If your judge senses an "attitude of entitlement" your chances for a favorable decision go way down.

Whenever possible, include in your testimony statements reflecting your desire to return to productivity.   Talk about the fulfillment that work brought you.  Discuss the financial hardship that not working has brought upon your family.  Speak about hobbies and activities that you can no longer do because of your medical condition.

Remember – your job at a hearing is to paint a picture – and the picture you want to paint should reflect a person who is a fighter, not a "taker."

Avoid statements like "no one would hire me," or "I can't do anything since I became disabled."   Your job is to provide the judge with an accurate description of your symptoms, not to make conclusions about your work capacity.   The work capacity determination is the judge' s job, not yours.

Disability hearings often turn on the claimant' s credibility – if the judge finds you believeable and a truthful witness, you are most likely headed for a positive result.

Post from: Social Security Disability Blog

Why You Should Hate the Idea of Applying for Disability Beneifts