Thursday, August 23, 2018

THINGS YOU DON'T KNOW--ABOUT YOUR DISABIITY CASE

You have applied for disability benefits, been denied, appealed and are waiting on a hearing.  The day of your hearing finally arrives.  You enter the hearing nervous and wondering what to expect.  There are several odd things taking place that you are unaware of.  I want to share some of these things with you.

(1).  You are not trying to prove that you are disabled now, on the date of the hearing.  You are trying to prove that you  became disabled at some earlier date, called the Alleged Onset Date or AOD.  This may be the date you had to stop working.  Or it might be the date you had an accident, a heart attack or were diagnosed with a severe illness.  But you must take your disability back to that date.  You did not become disabled just as you walked into the hearing.  So, think in terms of WHEN you first became unable to work.  Take your symptoms and functional limitations all the way back to that date--and from that date forward until today (the hearing date).  This determines how much past due benefit you can get.

(2).  When asked about jobs you performed in the past, be clear and precise about each job.  Briefly summarize what you did at each job.  For example, "I ran ran an aluminum stamping machine that made soft drink cans."  State how much you were on your feet during a typical day and also what the maximum weight you lifted at each job.  The vocational expert sitting at the end of the table will classify each past job (going back 15 years).  She will later be asked if you can still perform any of those jobs, given your current functional limitations.  If the answer is Yes, you have probably lost your case.  So, those past jobs are more important than you might think.  To help the expert properly classify each past job, specify the maximum weight you ever lifted, and how much of an 8-hour workday was spent standing and/or walking.

(3)   When asked about seemingly innocent daily activities, you are really giving the judge information about whether there are jobs you can perform.  Can you prepare meals, clean hour house, drive, do grocery shopping or mow your grass?  When's the last time you went on vacation?  Where did you go?  What are your hobbies?  Judges often ask these questions in the warmest, friendliest manner.  Here is what they are fishing for:

     Can you stand and walk up to 2 hours at a time?  Can you sit for 2 hours or more (long enough to ride to Six Flags on vacation)?  Are you able to push and pull (as in operating a lawn mower or pushing a shopping cart)?  Do you have adequate ability to get out in public, make simple decisions and perform short, simple tasks (grocery shopping, paying bills, attending school functions)? Can you lift and carry a gallon milk?  If so, you may be able to perform sedentary work. In short, how normal are your activities of daily living?  Are you severely restricted?  If not, you are probably not disabled under Social Security's rules.

While you should be absolutely truthful about your activities of daily living, you should also explain problems, struggles and difficulties in performing any of these activities.  For example, don't simply say, "Yes I can buy groceries," if you actually have to ride a motorized cart when you go to Wal Mart, or if you need assistance with loading or unloading your groceries.  If you can only cut your grass with a riding mower and you require a break every 20 minutes due to pain," don't simply say, "Yes, I can cut my grass."  Explain your limitations truthfully and fully.

Since you are not presently working, the judge has only one way to decide if you can still perform work activities:  that is by judging your at-home activities on a day to day basis.

You have legal counsel, your representative will prepare you in advance for the testimony you are about to give at your hearing. 

WHY SOME CASES GET APPROVED AND OTHERS DON'T

Some disability claimants take time to find out what Social Security's rules are.  Some don't.  The ones who do are much more likely to get their benefits approved.

Social Security disability is not an entirely arbitrary process.  It has rules and regulations.  The law dictates who can get benefits and who can't.

Sometimes claimants lose sight of the fact that Social Security is an evidence-driven, proof based process.  It isn't enough to believe you are disabled, or to convince your attorney that you are disabled, or even to convince the judge that you are disabled.  You must use objective evidence to prove that you meet the agency's strict rules of disability.

I think I have a very different image of administrative law judges than the average client has.  The client sits in a hearing trying to say something to convince the judge that he/she is disabled.  I know better.  I picture the judge with a Social Security rule book in one hand and a pencil in the other.  He has a copy of Parts 1-99 of the 20 Code of Federal Regulations.  He is using a pencil to check off essential regulations that the claimant meets.  If all of the essential rules can be checked off, the claimant wins.  If not, the claim is denied.

What I'm saying is, it's a much more technical and objective process than most people realize.  Making a good argument is only effective if the argument is about how the case meets the rules and regulations and Social Security is legally obligated to pay the claim--according to the Code of Federal Regulations.

People often tell me, "My sister (uncle, brother, neighbor) got disability benefits without any problem."  And I'm thinking, "Yes, they proved that met the rules and regulations.  Probably had a good lawyer."

People who get approved proved that they met the rules (even if they didn't know it).  People who don't get approved failed to meet the rules (even if they didn't know it).  That's the big difference between winning and losing.
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The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US:  (256) 799-0297



PAST RELEVANT WORK AND WHY IT MATTERS


During your disability hearing, the administrative law judge will ask the vocational expert to classify your past relevant work (PRW) - which means all the jobs you have done during the last 15 years.  Why is this important?

Because the judge will ask the vocational expert if you are able to perform any of those jobs, based on your age, education and residual functional capacity.  If the answer is yes, you have probably lost your hearing.

Where does information about your past work come from?  If you remember back to the time when you filed your original application for disability benefits there was a form called "Work History Report."  That form asked you a lot of questions about each of your past jobs:  job title, salary, what you did all day on the job; how much you had to sit, stand, and walk; what was the heaviest weight you lifted, etc.  This form follows you all the way to the hearing, 2 or 3 years later and this is where the vocational witness gets most of the information about your past jobs.  Unfortunately, most claimants either skip this form completely or provide only skimpy information, thinking that it's just another annoying form that isn't important.

The easier (less demanding) your past jobs seem, the more likely the judge will find that you can still perform one or more of them. This leads to what we call a Step 4 denial:  The claimant is able to perform past relevant work.




The Work History Report is very important and should be completed carefully.  If it was not, your representative should be careful to question you at the hearing to get on the record the details of each job you performed during the past 15 years (the relevant period).  In doing this, your attorney is trying to avoid a Step 4 denial.  If you are age 50 or over, a finding that you are no longer able to perform past work may be enough to win your case.

There are so many things going on in a Social Security disability case that the claimant is not aware of.  It's like an iceberg.  You an see a little of it above the water line; however, most of it is below the surface and is invisible.  That's why you must trust your representative to know what to do, both at the hearing and in preparing for the hearing.


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Charles W. Forsythe
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
CALL US:  (256) 799-0297