In my disability practice I regularly get calls and emails from potential clients who have not yet filed an application for benefits.   Is there anything that a disability lawyer can do for you when you first apply?  Is there any reason to wait to apply?  In this episode I try to answer these questions.

Here is the email that prompted me to address this topic:

Dear Jonathan:  I have been putting off filing a disability claim because I keep thinking that I will be able to go back to work.  I am a 48 year old woman, my career is as an executive assistant.  I have not been able to hold a full-time job since 2002.  I have been living with anxiety and panic disorder, in varying degrees,  for most of my life, in addition to depression.  I would like to file a strong initial claim and hope that I am not denied.   I have been researching for a lawyer to represent me.  I don't want to work with a large firm.  Your website has been the most informative that I have found.   Are you able to help me file the initial claim?

I received the following condition from a young lady named Sarah, who is living with a blood disorder called Diamond Blackfan Anemia.  This condition requires blood transfusions about every three weeks and results in good days and bad days over the course of a month.

She writes:  I have Diamond Blackfan Anemia, which is a bone marrow failure condition that requires chronic blood transfusions as my blood levels continue to drop each day.  Additionally I am on many medications for other complications from this condition.  I am 30 years old and have always worked, but it is now getting to the point where I can no longer do so.  My doctors have recommended I apply for SSDI and not work anymore.  My boss has cut my hours and I begin the process soon.

I am concerned about the kinds of questions I will be asked: "How far can you walk?" "How long can you sit?", etc.  The truth is, right after I have a transfusion, it's not a problem at all.  I am even able to exercise during those days.  But I get transfusions every three weeks.  In the 10 days or so before a blood transfusion, I can't do much of anything.  I miss work frequently due to fatigue.  The transfusions themselves take a day or two to recover.  My question is, how do I answer these questions without hurting my chances of getting on disability?

I think that this question is relevant to any number of conditions that produced "good days" and "bad days."  I think that the best strategy is to discuss the limitations that arise from your condition as they would affect your performance of work functions over the course of a month.   For example, in this case, Sarah might say "my condition requires me to obtain a blood transfusion approximately every 3 weeks.  Immediately after the transfusion I feel fairly good and I have sufficient energy to perform my job duties.  But by the end of the 2nd week after my transfusion, my energy level drops dramatically, I become extremely fatigued and I have a difficult time concentrating or getting through a workday without taking numerous unscheduled breaks.

In this particular case, Sarah should also reference Listing 7.02, which provides that a person who requires a blood transfusion once every 2 months or more often would qualify for disability on the medical record alone.

Question 1 is from a gentlemen named Ron, who writes "we received a letter from SSA it states that the medical requirements have been met for disability benefits.  then states we realize you stopped working on 10/05/2006 when they apply the SS rules to the medical evidence we find your condition did not prevent you from working until 3/19/2007. they says they have not made a decision about meeting non- medical requirements and they will shortly, what could that mean?"

Related reading about SSA date calculations:  http://bit.ly/ssa-dates

Question 2 is from a gentleman named Anthony who asks about the non-examining physicians who assist the State Agency adjudicators evaluate your medical records – "during 2002-2003 (possibly before & after), in the State of Florida there was much fear that Medical Disability Examiners were going to be outsourced… and/or were about to be outsourced —- can you comment via your reply?"

Unless you are illiterate or unable to communicate in English, the grid rules apply to claimants who are 50 years old or older and who have a physical impairment.   I have published a web site specifically about the grid rules – the address is http://www.gridrules.net.

The following video demonstrates how the grid rules work and how you can use free resources on the Internet to see if the grid rules apply to you.  You will need to click on the video icon, which will open a full screen video.

I have a good friend who works as a sales trainer.  He teaches his students that "attitude is everything."  In a sales context, if you exude confidence and believeability, you  have much better chance at making a sale.  Conversely, if you give off a "vibe" of defeatism and lack of confidence, your customers will sense your desperation and you will not be successful in sales.

The same ideas hold true in the Social Security disability world.  Although you may have been waiting for years to appear before a judge, and you may know with every fiber of your being that you do not have the energy or endurance to work, you must present yourself as a fighter who wants to work and who hates the idea of pursuing disability benefits.  Five days a week for 8 hours a day your judge has seen or thought about a claimant who wants that judge to obligate the federal government to pay monthly benefits.

Most disability cases turn on whether the judge finds you credible.  You can greatly enhance your credibility by presenting yourself as an honest, hardworking person who has reluctantly given up a fulfilling, financially rewarding career or job.

In this episode, I describe my pre-hearing meeting with a client who has a chronic, debilitating condition.  Only at the end of my meeting did I discover a line of questioning that will allow me to portray her as a reluctant claimant.

1. understand the main issue in your case – reduce it to one or two sentences

Example:  In 2004 I was diagnosed with multiple sclerosis.  I continued to work until August of 2006 when I finally resigned because the symptoms and complications of my disease increased to the point where I could no longer get through a workday or a work week.  Specifically, by August of 2006 I was no longer able to walk without a walker, my fatigue had increased to the point where I needed to lie down for 2 hours during the middle of the day.

2. learn about the judge and how he conducts hearings.  Most want to do the right thing but they have very different styles

• judge who asks you to review fee contract
• judge who says nothing
• judge who challenges you – always finds something in the record

3. Think about capacity for specific activities

• sitting
• standing
• walking
• lifting
• carrying

Avoid "not very much" or "I haven't thought about it"

4. Think about pain – use a 1 to 10 scale (if your lawyer believes judge will be responsive).

5. Recognize that in most cases, the issue will boil down to whether you are reliable.  As he talks to you the judge will be building a profile that will turn into a hypo question for the vocational witness.  Try to be definite.  Think about your capacity not on your worst day or a great day but on an average day.  Difficult to think about a truly average day but you have to.

6. Approach disability as an undesireable necessity.  You don't want to be there

Here is a question received from a reader that touches on the issue of  how to choose the correct "onset date" for disability when there have been multiple, unsuccessful job attempts:

I have a brother who is a professional businessman who has tried many times to maintain a job through a devastating illness.  Over the past two years he has had a job for a few months unable to do the job and the company has let him go , he was able to collect unemployment , thought and hoped he could do another job, same thing happens, unable to complete days, lots of missed days, they let him go, he collects unemployment..repeat scenario three more times.  I have convinced him to apply for social security disability (he should have done it some time ago) but what would you recommend for using the date of unable to work?   Also, he has no more savings and unemployment runs out nest month..then nothing.. should he apply for SSI as well?

I have previously related my opinion that part time work can hurt your chances at getting approved for disability benefits.  A couple of recent cases confirms my reservations.  In one case, I represented a woman with a long standing diagnosis of fibromyalgia.  Her medical record was extremely comprehensive, and included reports from numerous doctors attesting to the myofascial pain and debilitating fatigue that is typical of this chronic pain condition.  I had functional capacity forms from 2 of her treating doctors that strongly supported my contention that she did not have the capacity for competitive work at any level.  In my opinion, this claimant was as deserving as any fibromyalgia patient that I have ever represented, yet the judge denied the claim because my client had published a web site about her ordeal, and used the web site to as a forum to support her fellow fibromyalgia patients.

I have seen several instances where web sites like the one I have described created problems for claimants.  I have also seen situations where a claimant was denied for "riding along" with his son in a landscaping business, and for accompanying her son to his job at a video store.

Although I think that in most of these cases, the claimants were simply bored and wanted to get out of the house, judges get very uncomfortable with activities that look like work.

In this video, I talk about part time work and my thoughts about why and how it can negatively affect your case.

In this episode, I answer two questions about timing.

Question 1 is from a reader named Gwen who asks: I was told I was approved by the disability of determination bureau on Aug 15 after i had appealed my first denial. I was told it now has gone to a review board in another state. What is this all about  Please any info will be appreciated.

Question 2 is from a reader named Carolyn who inquires as follows: Won case May 6 when can I expect payment. How can I find out exactly when my first lump sum will come.

Social Security Listings – referenced in this episode