FACTORS IN DISABILITY CASES & HOW TO USE THEM IN YOUR FAVOR

 When you apply for disability benefits, Social Security will look at the following factors in seeing whether you meet their requirements for approval.  Learn what these factors mean and how to use them in your favor.

1.  Age.  If you are under 50, you must show that your condition is so severe that you cannot do any type of work full-time.  Rely on non-exertion factors such as poor memory, lack of concentration, inability getting along with others, needing lots of extra breaks, etc.  If you have serious physical symptoms, use them, as well.

2.  Education.  This plays a big role in the "grid rules," which look at whether a claimant can learn a new skill or adapt to a new job or career.  A claimant who did not complete the 11th grade has a "limited education," which may prevent employment in many types of jobs.  On the other hand, a college graduate is considered to be more employable and able to work at many types of jobs.  If you did not finish high school, or if you took special education in high school, make these points clearly.

3.  Past work experience.  Social Security looks at all your past job during the 15-year period before you filed for disability.  So, if you're filing in 2021, they look at your jobs from 2006 - 2021.  The more physically demanding these jobs were, the less likely you would be expected to return to them (or one like them).  So, emphasize the "exertional demands" of your past work:  walking/standing, lifting/carrying, bending, reaching, climbing, kneeling, etc.  One place to do this is on the WORK HISTORY REPORT, which is part of the application.  This form often gets filled out haphazardly, and decision makers never get a true picture of just how hard your past work was.  Make them aware.  Roofers are more likely to be approved than secretaries--because the work is more physically demanding.  Describe your job duties on all past jobs.

4.  Residual Functional Capacity (RFC).  This is a fancy term that simply means, "How much wok activity can you still do in spite of your impairments?"  Or, "What kind of functions can you still do, and how often can you do them?"

Example:  "The claimant can lift and carry no more than 10 pounds occasionally."

Example:  "The claimant can stand and/or walk for up to 15 minutes at one time, and up to 2 hours out of an 8-hour workday." 

If possible, get your doctor to give you a written statement (form) for your Residual Functional Capacity (RFC).  You have to ask for it (maybe beg for it) but it is a powerful piece of evidence in disability claims.  In your hearing, be sure to explain carefully what your physical and/or mental limitations are.  This is the key to Social Security decision making.

DISABIILTY APPLICATIONS IN ALABAMA (AND TENNESSEE)

 

The first step in getting disability benefits is to submit a detailed application. Many claimants find this challenging due to the sheer length and complexity of the application. After all, it's a series of forms designed by US government bureaucrats. (Not just one form, an entire series of forms).

One form that needs special attention in the application process is the Work History Report. I've seen thousands of applications where I represent denied claimants on appeal--and I never see a properly completed Work History Report. This form provides the decision makers with occupational details required to make vital decisions affecting approval of benefits. How much lifting did your past job(s) require? How much did you have sit during an 8-hour day. How much standing and walking? How often were you required to reach, stoop, kneel, crouch or crawl? Did you supervise others?

It's easy to skip this form in order to get the application "completed" quickly. Most people take a crack at it, but leave the important details blank. It comes back to haunt them when they get a denied claim. "We find that you are able to perform the demands of your past work," says the decision. That may because decision makers didn't understand the nature of the past work because the Work History Report was blotched. Once denied, your benefits are usually held up by 6 months to one year!

We are trained to pay attention to details when we file disability claims. Sure, it takes a lot of time and a lot of work. But even if the application is denied, we want a "squeaky clean" application to take to appeal. Filing an accurate, complete and "defendable" application can take hours, but its worth it. If we accept your case for representation, we will sit down with you and fill out the application to be sure it is as perfect as possible. There is no extra cost for this work. This attention to detail gives you a better chance to win your claim on the first round, and a stronger position if you need to appeal.

 

This information applies to filing an application in Alabama or Tennessee (or elsewhere). 

HOW ALCOHOL OR SUBSTANCE ABUSE EFFECTS AN SSDI (DISABILITY) CLAIM

 The Code of Federal Regulations 416.935 states:  "General. If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability, unless we find that you are eligible for benefits because of your age or blindness.

The regulation goes on to say:  "...The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol..."

 I sometimes explain this to claimants thus:  You may be disabled in spite of drug or alcohol addiction, but not because of it. 

Substance abuse is not material to disability if the claimant would still be disabled if he/she stopped abusing the substance.  For example:  An individual has severe degenerative disc disease which meets the Social Security definition of disability.  In addition, the claimant also suffers from severe alcohol addiction and abuse.  Since he/she is disabled without consideration of the substance abuse, the abuse is not material to the claim and it may still be approved.  

A different example:  A claimant has no severe physical impairment; however, he/she has severe mental impairments, which include psychosis and paranoia.  The mental illness is so severe that the claimant cannot work.  But in addition to mental illness, the claimant has a longstanding history of severe drug abuse.  The treating psychiatrist states in the medical record that the drug abuse is a major contributing factor to the mental disorders.  The doctor has told the claimant several times that if he/she would stop abusing drugs, the mental disorders would substantially improve.

 In this case, Social Security will likely find that the drug abuse is material to the disabling impairment.  This is true because:  (1) The drug abuse materially contributes to the mental impairment(s); and (2) The mental impairments would  likely improve to the point that the claimant would no longer be disabled if he/she stopped the drug abuse.  Therefore, it is likely that the claim will be denied.

 What Are Common Defenses for Substance Abuse in Hearings?

Your attorney might successfully argue the following in defense of substance abuse in a disability claim:

1)  The substance abuse falls outside the relative period of disability and is therefore immaterial  (which  would usually be true).

2)   It cannot be medically demonstrated that the disabling impairment would substantially improve if the claimant stopped abusing substances.  (A more doubtful argument).

3)  The claimant has chronic, severe symptoms which will not significantly improve even the substance abuse stops.  

 Also, let me say that substance abuse is never material to a claim when the individual qualifies for a benefit due to age or blindness.  In other words, if an individual is at least age 62, he/she qualifies for an early retirement benefit regardless of substance abuse.  If an individual is blind according to Social Security regulations, then he/she is entitled to a disability benefit based on blindness and any substance abuse doesn't matter.

I must say that I find it rather difficult for Social Security to deny a claim based on substance abuse IF there are other severe and chronic impairments present.  The burden of showing materiality lies for the most part with the Social Security Administration.  It cannot merely believe that substance abuse is material to the disability, it must provide evidence to demonstrate it.  So, a claimant should never assume that a claim will be denied just because of alcohol or other substance abuse.

DISABILITY DENIED? DON'T PANIC.

 Disability recently denied?  Don't Panic.

Get the Forsyhe Firm and get to work.

Our experts have helped hundreds of disabled persons recover denied benefits.  We can help you, too.

We never collect a fee until your case is won, you are paid, and your back pay has been recovered.

The truth is, more Social Security disability claims are denied than ever before.  The decision-making system is flawed.  We know how to take your case up to the next level for a new decision.

FREE consultations are available--and our contingency pay agreement requires no money up front--and no fee unless you win.  

As highly skilled professional advocates, we qualify for direct payment of fees from the Social Security Administration.  If you win, our fees are paid directly.  If not, you owe us nothing.

(256) 799-0297.

USUAL PATH TO SOCIAL SECURITY DISABILITY

 After practicing Social Security disability law for decades, we have found that the typical path to getting Social Security disability benefits is this:

Step 1:  File a claim.  If you are under age 55, the application will usually be denied after 5 or 6 months.  Reason given:  "You have some limitations which may prevent you from doing your past work; however, there is other work that you are able to do."

Step 2:  File for "Reconsideration," asking the same state agency to review your claim again.  The usual result is another denial after 3 to 4 months.  The reason usually given:  "Our experts have reviewed your information and found that our decision was correct according to the law."

Step 3:  File a Request for Hearing by an Administrative Law Judge.  After a few months, you will be scheduled for a hearing with a judge.  Take your attorney with you--because the judge will expect an expert legal presentation of your case.

 A majority of disability cases that get paid go before an Administrative Law Judge and are paid after a hearing.  It's easy to think of a hearing or judge as an extraordinary step that's required in only a few cases.  But it is a very ordinary step which is required more often than not in order to get approved. 

2 DISABILITY QUESTIONS THAT WILL "GET YOU" AT A HEARING

Here are 2 important questions that judges nearly always ask in hearings. And they are perhaps the most important questions to your case:

QUESTION # 1: How did you last job end? Or, Why did you stop working at the ABC Company?

The judge wants to determine if you have a disability problem, an employment problem, a transportation problem, a family problem or a drinking/drug problem? Why did you stop working? Every claimant should self-examine this question before going into a hearing. Why did I leave my last job? If it was for any reason other than disability your claim will fail.

Question # 2: Why do you believe you are not able to work?

The judge wants to hear, in your own words, why you can't work a regular 8-hour day, 5 days per week. Keep this answer direct, simple and personal. Here are some important tips from an advocate who has attended thousands of hearings:

Don't speak in medical terms. 

Speak of your experiences, symptoms and limitations. What hurts? How much does it hurt? What gives you trouble? Is it the sitting, standing, walking, bending, lifting, reaching....? Here's one example: "My feet and legs swell to 2 or 3 times normal size after I stand more than 1 hour. I have to sit down after about 1 hour and elevate my feet to control the swelling." Notice, the claimant does not mention congestive heart failure, volume overload, peripherial edema or any other medical term. He speaks of how his illness personally affects him.

 

Try to be specific. 

Avoid very vague, general terms like "sometimes, a lot, a little, now and then, once in a while, not many, or a little ways." Here are some examples you can use:

* once or twice an hour

* about 30 or 40 steps (feet, yards)

* 3 or 4 times per hour

* less than 10 pounds

* after about 30 minutes

* limited to about twice a day

 

All work consists of sitting, standing, walking, lifting/carrying, reaching, communicating, focusing, following instructions, etc. Explain which of these give you trouble and why.

The ability to work, under Social Security rules, is the ability to work 8 hours each day, 5 days each week with only the customary number of breaks and no more than 1 absence per month (or 12 absences per year). If you can't do that, the judge needs to know why.

 

Need help with a disability claim, appeal or hearing? Contact the Forsythe Firm for a free local consultation. We will never charge you a fee until you win your case.

We're standing by to help you. 

(256) 799-0297 

 

 

 

 

A DISABILITY APPLICATION IS MORE COMPLICATED THAN A HOME MORTGAGE

 

The most complicated thing an average American will ever run into is not a home mortgage. It's a Social Security disability application.

If you are unfortunate enough to have to file one, you will understand. A home mortgage can usually be done is 2 to 4 weeks. A Social Security disability application process can take 6 months to 18 months and the paperwork is horrendous.

On any of the forms, you can make a mistake that will get your benefits denied or endlessly delayed. One example: A claimant gave an incorrect zip code which caused Social Security mail to be returned and the claim was delayed for weeks.

And it's not just the paperwork. It's knowing how to answer the questions. Often, it's just being able to understand the questions. Social Security forms are designed to ask for the same information repetitively, so it's easy to be inconsistent.

Then there are the technical things you need to know:

• When is your Alleged Onset Date or AOD?
• When is your Date Last Insured or DLI?
• What is your PIA? (Primary Insurance Amount)?
• Which of your medical conditions are severe?
• Do you meet a grid rule or a Social Security Listing?

No wonder most individuals filing for disability seek professional help with the application process.

Also, most applications are going to require appeals. That will beg for professional legal help later on.

Most attorneys will not even help completed the original application because it's such a long, exhausting paperwork process. Most will ask the claimant to file the original application himself then contact the attorney after they get denied. This reduces the attorney's paperwork on the case tremendously.

My office can sometimes help complete the initial application. You may get a free consultation (no obligation) by calling the Forsythe Firm at (256) 799-0297.