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Dennis Teachout’s Blog about Social Security Disability

Social Security Disability Benefits to be reduced by 20% in 2016

Why does Congress want to reduce Social Security Disability Insurance benefits for millions of Americans in 2016? The answer lies in the nature of the specific benefits, and where the funding for disability benefits originate.

Title II of the Social Security Act provides insurance benefits in three separate categories: Old-Age, Survivors, and Disability Insurance (OASDI), each of which maintains its own separate trust fund. In order to sustain these funds, Congress has set up a system where, based upon an actuarial formula, FICA contributions from employers and employees are distributed to the three separate trust funds.

Currently there is an imbalance in the disability fund. Unless Congress acts by mid-2016, Social Security will only be able to pay about 80% of disability benefits to which beneficiaries are entitled under the law.

A recent email from the National Organization of Social Security Claimants’ Representatives (NOSSCR) notes as follows:

Even though the disability fund shortfall largely occurred because of changes in America’s population and retirement age, a new House Of Representatives rule prevents “clean reallocation”, a solution Congress has used 11 times in the past to shift money from one trust fund to the other when shortfalls arise. The reallocations have occurred in both directions.

Why is this happening? Some in Congress have raised concerns that too many individuals are being approved for disability benefits by “liberal” judges. Interestingly, current Social Security statistics reflect that it is getting more difficult to obtain Social Security disability benefits, possibly because administrative law judges (ALJs) are feeling pressure to deny more cases.

As noted above, the “clean reallocation” solution has been used 11 times, with virtually no opposition between 1957 and 1994. In fact, the Reagan administration used “clean reallocation” 4 times during his presidency.

Rules for Determining Disability – The ALJ Hearing continued

The rules that for determining disability apply most directly to impairments that limit your physical ability to stand, sit, walk, lift, bend or work with your hands. Mental impairments are a bit more complicated.

If you are unable to do certain kinds of manual labor, whether because of a back problem or a heart condition or breathing problem or some other medical problem, your lawyer will be able to look at the rules and figure out what you’ve got to prove to win your case. Here are some examples:
•If you are under age 50, the general rule is that you’ve got to prove that you can’t do an easy sit-down job or even a job where you’re allowed to alternate sitting and standing during the workday. You’ve got to prove this even though you might not be hired for such a job.
•If you are age 50 through 54, the general rule is that you have to prove that you cannot do light work, that is, work involving being on your feet most of the day and lifting up to about 20 pounds. Thus, even though you might still be able to do a sit-down job, a desk job, you can still be found disabled.
•If you are age 55 or older, it gets even easier. The general rule is that you have to prove that you cannot do “medium” work, that is, work involving being on your feet for most of the day, frequently lifting 25 pounds, occasionally up to 50 pounds. Thus, you can even be capable of doing light work and still be found disabled.

As you can see, your representative will not only prove what you can’t do, but also what you can do. In most cases, the judges just won’t accept any sort of “I can’t do anything” explanation for why you’re disabled.

These issues can get complicated when you’ve had jobs in the past where you’ve learned a lot of skills. The judge is going to want to know about your work skills, and you are going to have to be able to explain them to the judge.

How does your repersentative go about proving all of this? He or she does it through your testimony in response to questions from the judge and your representative at the hearing. Although your representative will remind you if you forget something, it’s best if you can answer all questions thoroughly yourself. Otherwise, it could look like your representative is prodding you or putting words in your mouth.

How the Judge Determines Disability

It is important that you understand some basic points about how the Administrative Law Judge goes about determining whether someone is disabled. This process is complicated and technical, and it doesn’t necessarily involve common sense. For example, most people think that if they cannot get a job because of their medical problems, this must prove that they are disabled. But inability to get a job proves nothing.

A disability determination is a “hypothetical” determination. That is, it has very little to do with the real world. It has nothing to do with the fact that employers won’t hire you because of your medical problems. The Social Security Administration looks only at whether you are capable of doing jobs, not whether you’d be hired. Thus, you may have to prove that you are unable to do jobs that you would never be hired for in a million years.

In some cases, the medical findings about your condition alone will cause the judge to find you disabled. However, in the majority of cases your attorney will have to prove two things: First, that your medical impairments prevent you from performing any job you’ve done in the past 15 years; and second, that there aren’t many other jobs you are capable of doing considering your age, education and work experience.

Think about all the jobs you’ve had in the past 15 years, and pick out the easiest one. You have to prove that you cannot do that easiest job—you have to prove this even if you’re dead certain you’d never be hired for that job again, and even if the company where you worked no longer exists or if the job is not available for some other reason.

Proving the second thing—that considering your age, education and work experience you’re unable to do many other jobs—is even more complicated and opposed to common sense. In many cases you have to prove that you’re incapable of doing jobs that you know you’d never actually be hired for.

A lot of people have heard the language “totally and permanently disabled.” This phrase, which comes from workers’ compensation cases, does not apply in Social Security disability and SSI disability cases. For Social Security, you don’t have to be “permanently” disabled; you only have to be disabled for 12 months. Although you have to be totally disabled in the sense that you are unable to perform jobs existing in significant numbers in the economy, this doesn’t mean that you have to be unable to do anything. In fact, very few people who go in front of an Administrative Law Judge are unable to do anything at all.

What your Representative does at a hearing

Your hearing will be over in about an hour, maybe less. Hearings seldom take longer than an hour and one-half.

If you’re well prepared because of this website and your meeting with your representative before your hearing, your representative may not have to ask many questions at the hearing. In hearings with judges who like to ask most of the questions, the only time your representative needs to ask you anything is if your represemtative thinks that your testimony wasn’t clear enough or there are issues that were not developed. In fact, it’s better that way. The more information you give in answer to the judge’s questions, the better it is for your case. Your case will be presented naturally and your testimony will flow freely. The judge will get to know you and your situation as you and the judge talk; and the judge won’t think that it’s your representative testifying rather than you.

Your representative will, however, ask questions of any witnesses you bring along to the hearing; and it is the representative’s job to question any expert witnesses called by the judge.

The most important part of what your representative does usually takes place outside the hearing. That is, your representative gathers medical evidence, gets reports from doctors, does legal and medical research, and prepares witnesses to testify.

Your representative may make a closing argument either in writing or at the hearing. However, the best-developed cases don’t need a closing argument. If a case is well developed with medical evidence and with the claimant’s testimony, a closing argument is often not necessary.

There is one thing that representatives cannot do: they are powerless to speed up the system. There may be a delay in getting the written decision. The written decision will be mailed to you with a copy to your representative. If you’re lucky enough to have the judge issue a bench decision at the hearing, the short written bench decision summary usually comes within a week. Otherwise, don’t expect a decision from the judge for at least a month — two months is more common. Sometimes it takes even longer for a hearing decision to be mailed to you. Some judges are very slow.

There is seldom any way to speed up getting a decision out. So, as hard as it is, you must grit your teeth and wait. If more than three months pass, it’s a good idea to make sure that your file hasn’t been lost; and your representative can do that. But your representative can’t do much more to speed things up.

The Order in Which Things Happen at the Hearing

Many judges begin Social Security disability hearings by reciting the “case history” of your disability claim and stating the issues to be decided. Judges often state what you have to prove in your case — but they seldom give a clear and simple explanation. They usually say that in order to be found disabled for purposes of Social Security disability benefits you must be “unable to perform substantial gainful activity which exists in significant numbers
in the economy, considering your age, education and work experience.” When they say this, it almost sounds like you’ve got to be bedridden to get disability benefits – but this isn’t true.

The judge may question you first. Then the judge will give your representative a chance to ask you some questions. Occasionally, if a claimant is well prepared to testify, the representative doesn’t have to ask any questions at all.

On the other hand, some judges expect representatives to handle most of the questioning. If so, answer questions asked by your representative as if a stranger were the one asking them. Sometimes a claimant gives incomplete answers when his or her lawyer asks questions, because the representative already knows a lot about the case. But it is important to keep in mind that the judge, who will decide your case, doesn’t know the answers until you say them. Although the judge probably will read your file before the hearing, when you’re testifying, it is best to assume that the judge knows nothing about your case. Plan on explaining everything.

When you’re done testifying, your representative will be allowed to question any witnesses you’ve brought to the hearing. It is important to bring at least one witness to your hearing to testify in support of what you say, to give the judge details about your disabilities and how they affect you, or to offer a different perspective on your medical problems.

After your witness’s testimony, any doctor or vocational expert called by the judge will testify.

At the end of the hearing, some judges will ask you if you have anything more to say. It’s best if you don’t try to argue your case at this point — let your lawyer do that. Most judges will give a representative the opportunity to make a closing argument either at the end of the hearing or to be submitted in writing.

Most judges won’t tell you if you’ve won, although a few will. A few judges issue what is called a “bench decision” (a decision stated right at the hearing). Even if the judge issues a bench decision, the judge still must issue a short written decision, which will be mailed to you with a copy to your representative. The good thing about the written part of the bench decision is that it comes only a few days after the hearing. When the judge issues a regular decision, sometimes it takes quite a while for the decision to come out.

The Administrative Law Judge

The person who presides in a Social Security disability hearing is an Administrative Law Judge (ALJ). Although many judges do not wear judicial robes and you will not be expected to stand up when the judge comes into the room, the Social Security judge is entitled to the same respect that you would pay to a court judge.

The judge’s job is to issue an independent decision about your entitlement to disability benefits, a decision that is not influenced by the fact that your case was denied at the time of your initial application and on reconsideration. In fact, more than half of judges’ decisions nationwide are in favor of the claimant. These are the best odds of winning at any step in the entire Social Security appeals system.

The informal Social Security hearing is not what we call an “adversarial” hearing. That is, there is no lawyer on the other side who is going to cross-examine you. Judges usually do not “cross-examine” a claimant. The judge is neither your adversary nor your opponent: the judge’s job is to find out the facts about your disability claim.

Many people, by the time they get to a hearing before an Administrative Law Judge, are angry at the Social Security system. Their applications for disability benefits have been denied twice, often without any logical reason given for the denial. This system is cumbersome. It is time-consuming with all of its appeals and delays, and it is frustrating.

But, it is important not to take your anger out on the judge. The judge did not create this system. The judge is not responsible for the problems that you have had with the system. Since the judge probably already knows all of the problems with the Social Security appeals system, you do not need to explain these problems. It also isn’t helpful to ask the judge any questions about your case. For example, don’t ask, “Why have I been denied?” “Why has it taken so long for me to have a hearing?” and so forth.

The only time you should ask the judge a question is when you do not understand what is being asked of you. Judges and representatives sometimes ask simple questions in complicated ways. This is a shortcoming of the legal profession. Don’t be intimidated by it. If you’re not sure you understand a question, don’t be embarrassed to ask politely for an explanation.

The best way to treat the judge is with the courtesy and candor that you would show an old friend whom you haven’t seen for several years—someone that you want to bring up-to-date about all of your problems. In other words, it’s okay for you to talk to the judge in “regular” words. You do not have to use lawyer words or doctor words. In fact, it’s much better if you do not use such terminology; instead, talk to the judge the same way you would talk to an old friend.

General Information About the ALJ Hearing

The Social Security Hearing Room

A Social Security hearing room is nothing more than a small conference room. It may have a few official trappings such as the seal of the Social Security Administration or an American flag.

Hearing rooms are always equipped with a conference table. There also may be a small table for the judge’s assistant. Usually there is a judge’s desk on a small riser that is slightly above the level of the conference table where you will sit.

The Recording Equipment

Each Social Security hearing room has its own recording equipment, which will be used to record your hearing. Because your hearing will be recorded, it is important for you to speak clearly when you answer questions. The microphones are very sensitive to sound so they will pick up your testimony from anywhere in the room if you speak loud enough for the judge to hear you. However, shaking your head won’t do; neither will pointing at a part of your body without stating out loud what part of your body you are pointing at. Also, “uh huh” and “huh uh” answers do not transcribe as well as “yes” and “no” answers. So try to say “yes” and “no” if you can.

Persons Present in the Social Security Hearing Room

You will be seated at the conference table along with your representative. Under some circumstances the judge may call a vocational witness or a doctor to testify. If so, they will be seated at the conference table.

Also seated at the conference table (or perhaps at a small table next to the conference table) will be the judge’s assistant who operates a computer, which is used to make a CD-ROM that will contain the recording of the hearing.

You are allowed to bring witnesses and, if you wish, observers into the hearing room. But the hearing is private. Anyone present other than the judge, the judge’s staff and witnesses called by the judge must have your permission.

Social Security Disability Hearings Are Informal

Social Security disability hearings are much less formal than court hearings. They were designed so that they would not be a threatening experience. The Social Security Administration (SSA) recognizes that if you can relax as much as possible, you will be the best witness for yourself. It’s okay to let yourself be yourself.

Although this is an informal hearing, there are a couple of procedures that are necessary to follow:
•You and all witnesses will testify under oath.
•It is important when you are testifying that you not ask anyone else in the room to help you answer questions and that your witnesses or friends do not chime in to help you testify. Only one person is allowed to testify at a time.

Advice for Your Social Security Disability Hearing

Preparing for Your Disability Hearing

Arrive Early

Unless your representative asks you to be at the hearing office at a specific time, arrive for your Social Security disability hearing about a half an hour early. Any earlier is not necessary no matter what your Notice of Hearing may say about coming early to review your file. Your representative has already reviewed your hearing exhibit file. It isn’t necessary for you to review it (although you may if you want to). Social Security disability hearings usually start on time, so whatever you do, don’t be late.

What to Wear

A lot of people ask what to wear, whether they should dress up for their Social Security disability hearing.

You do not need to dress up, and you do not need to wear the same clothes that you would wear to a wedding. This is an informal hearing. You may wear whatever makes you comfortable (within reason).

Don’t Talk About Your Case

Social Security disability hearings are serious business. Don’t make jokes. Don’t even talk about your case before or after your hearing in the waiting room, in the hallway, in the elevator or anywhere else where a stranger can overhear. A Social Security employee may misinterpret what you say and get the wrong impression about you, and there may be a lot of Social Security employees in the building.

Turn Off Your Cell Phone

If you have a cell phone with you, don’t forget to turn it off before the hearing starts.

Social Security Disability & U.S. Veterans

One of the most rewarding parts of my practice is working with United States military veterans. Veterans make incredible sacrifices during their service years, including not only being apart from their families, but also facing the constant threat of serious physical and psychological injury. While physical injuries are often readily apparent and undeniable, the serious psychological effects of military service on veterans are not always as easy to identify.

What cannot go overlooked are recent reports that 2012 saw a record 349 suicides by military personnel, a number which “far [exceeded the number of] American combat deaths in Afghanistan” the same year.[1] The article went on to note that “Iraq and Afghanistan war veterans suffering from depression, post-traumatic stress or substance abuse” appeared to be one of the main groups facing significant risks. (Id.)

Compounding the negative and predictable psychological effects of having experienced combat is what some have described as the stigma in the military of seeking out help for one’s psychological problems. During “the course of a soldier or officer’s training, we inculcate in them a vicious and emotional resistance to weakness”, and “teach them to bear their own load as well as their buddies’.” (Id.) One vet remarked that during service “[m]y mind was my saving grace, and to hear that it was now my biggest burden when I returned from a tour with post-traumatic stress sounded like a joke.” (Id.)

Unfortunately, the increasing number of military suicides is quite alarming, and suggests that returning veterans are increasingly coming to terms with the intense psychological stressors they experienced during their service.

Fortunately, one resource available to mentally stressed, unemployed veterans is Social Security Disability. I have personally helped numerous veterans through the process of obtaining their benefits for diagnoses including Post-Traumatic Stress Disorder (PTSD), Depression, Anxiety, and Intermittent Explosive Disorder – not to mention for numerous debilitating physical diagnoses as well.

For veterans interested in applying for Social Security Disability benefits, the most important thing they can do is consistently get treatment for their condition(s). Doing so serves two purposes: (1) Treatment is helpful to the individual who seeks it out because therapy is about confronting and dealing with psychological pain, not hiding from it; and (2) The burden of proof for receiving disability benefits is on the individual claiming disability, meaning that success depends on the kind of clinical medical evidence that is best obtained from consistent treatment.

Remember, it takes a great deal of courage to seek out help, and asking is not a sign of weakness, it is a sign of strength. Secondly, you’ve served your country and earned your right to benefits if you are no longer able to work because of either a physical or mental disability (or combination of both).

Proving Disability: The 5 Step Sequential Evaluation Process

As you may have heard or read in the news lately, getting Social Security Disability benefits can be a long and arduous process – and the burden of proof is on the applicant. To evaluate and make a determination of disability, the Social Security Administration uses a “5 Step Sequential Evaluation Process”. Although the 5 step process may look simple at first glance, there can be enormous complexity at each step of the evaluation.

Step 1: Is the Claimant engaged in “Substantial Gainful Activity”?

I always tell clients, “It doesn’t matter what physical or mental condition[s] you have. If you are making money at a certain level per month [Substantial Gainful Activity], you are not disabled by Social Security standards.”

Currently, employee earnings over $1,040 per month are considered Substantial Gainful Activity and, if made on a consistent basis, will lead to an automatic determination that you are not disabled. Keep in mind that under Social Security regulations your condition must have lasted, or be likely to last, for more than one year. This means that you cannot have consistent earnings above the level of Substantial Gainful Activity for a least one year to initially be considered for disability benefits.[1]

Step 2: Does the Claimant have a “severe, medically determinable impairment”?

Having a severe, medically determinable impairment means having more than just a series of complaints. Saying, “I have back pain”, “I don’t feel good”, “I’m depressed”, or “I’m tired all the time” are complaints – not conditions established by a treating physician.

“Medically determinable” means that your condition has been recognized and diagnosed by a doctor. “Severe” means that your condition results in some form of functional limitations, either from a physical or psychological perspective (or combination of both), which would affect your ability to work. The degree and severity of your functional limitations are most relevant at Steps 3, 4, and 5.

Step 3: Is the Claimant’s impairment so severe that it “meets or equals a Listing”?

The Social Security Administration has put together a series of medical “Listings” which are used to determine whether your condition is so severe that you are automatically disabled. The Listings have some flexibility so that even if you don’t meet the Listing exactly, you may be found to equal it, resulting in a finding of disability. Listings can be very detailed and always require strong, “objective medical evidence”[2] in order to be satisfied.

Overall, the number of individuals found disabled because they meet or equal a Listing is very small. Hence, most individuals fall into what is called a “Step 4 and Step 5″ analysis. Of all the steps involved in the process of proving one’s claim for disability, numbers 4 and 5 can be the most complicated.

Step 4: Is the Claimant capable of performing his/her “Past Relevant Work”?

“Past Relevant Work” consists of any work you have performed in the past 15 years at the level of “Substantial Gainful Activity”. Whether you can still perform any of that work may be determined by a Social Security judge or a “vocational expert” – an expert on jobs and how they are performed in the local and national economy.

By analyzing the requirements of how your past relevant work is generally performed, and taking into consideration any functional limitations resulting from your physical and/or psychological condition, the vocational expert will determine whether you can still perform any of that work.

If the expert determines that you can perform any of your past work, you will be found not disabled. If the expert determines that you cannot perform any of your past work, we move Step 5.

Step 5: Is the Claimant capable of performing “any other jobs”?

A determination of whether you can perform “any other jobs” means looking at other available jobs in the local and national economy, no matter how unskilled, menial, or uninteresting. “Available” for purposes of this step does not mean that an employer is hiring; it means that any given occupation is still being performed in significant numbers in the United States nationally, regionally, and locally.

Using a similar analysis of how other jobs are performed, combined with any functional limitations resulting from your physical and/or psychological condition, the vocational expert will once again render an opinion if there are a significant number of jobs that you can perform.

To be successful in your claim for disability, you must generally prove that there is no full-time employment that you can still do[3], either because of a physical or mental condition, or a combination of both.