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

GREAT NEWS FOR VETERANS

The law permits disabled veterans to receive both VA benefits and Social Security disability benefits.  The two programs do not offset or interfere with each other at all.

If you are a recently disabled veteran, you should apply for Social Security disability now.  You may eligible to receive more than $2,500 per month in addition to your VA benefits.

Even if you are not yet discharged from active service, Wounded Warrior provisions make it possible to apply for SSDI benefits now.  You should let your advocate or attorney know if you have a VA disability rating, as this may speed up and help with your SSDI claim.

Your military pay may not interfere with SSDI eligibility.  However, if you are working a non-military job after leaving the service, you may not be eligible for SSDI benefits.

My office handles a lot of veterans claims and we will work with you to determine the benefits you can qualify for.  Call us for a free consultation at no obligation. 

THE FORSYTHE FIRM
7207 Old Madison Pike - Suite 108
Huntsville, AL 35806

PH (256) 799-0297
 
OUR WEBSITE 


 

HOW MUCH MONEY CAN YOU HAVE AND GET DISABILITY?

How much money can you have in the bank and still get Social Security disability benefits?

ANSWER:  There is no limit to how much money you can have and still receive SSDI benefits from Social Security.


Social Security disability benefits are not means tested.  A beneficiary is not required to be poor or have limited financial resources to receive SSDI benefits.

The confusion arises because of SSI or "Supplemental Security Income" (Title 16), which is a type of welfare and does restrict income.  SSI, however, is a separate program and is not Social Security Disability (SSDI).

SSDI, the regular disability program, is under Title 2.  It is based on FICA taxes paid by the worker into the Social Security trust fund.  These taxes are used to insure the covered worker against disability.  Since it is an insurance contract with the US Government, it does not require that a person have restricted wealth or low income to get a benefit.  So, an individual could have a million dollars in the bank and still qualify for SSDI (because he paid for it).

However, if an individual has not worked and paid into the Social Security trust fund, he is not covered by SSDI.  If this individual applies for an SSI benefit under Title 16, he would be restricted to no more than $2,000 in assets and would also have to have a very limited income.  ($2,000 is the limit for a single individual; a couple may have $3,000).

So, the first thing to determine is this:  Are you applying for SSDI (Title 2) or SSI (Title 16)?  That will answer the question as to whether there are any income/wealth restrictions.

NO with Title 2 or SSDI.

YES with Title 16 or SSI.

ARE YOU COVERED BY SOCIAL SECURITY?

Not everyone is covered by Social Security disability.  The Social Security Act covers only workers who have earned enough work credits to be insured.

In 2018, one work credit is earned for any calendar quarter in which the worker earns wages of at least $1,320.  For example, if you earn wages of $1,320 between January 1, 2018 and March 30, 2018, you receive 1 quarter of coverage.

For past years, the amount of earnings for one quarter of coverage would be less.  For instance, in 1990, you were only required to earn $520 for 1 credit of work.  In 2000, this was $780.  If you go back to 1978, the amount was only $250.  So, the amount of work needed for 1 quarter of coverage varied year to year.

Most people need 40 quarters of work to be covered by Social Security disability.  Thus, out of the most recent 10 year period, an individual should have worked 5 years.

Disability coverage can disappear.  Many people don't realize that work credits disappear over the years if they stop working.  

Take the case of Madge, who began working right out of high school in 1972.  By 1978, she had enough work credits to be covered by Social Security disability insurance.  But in 1979, Madge stopped working to raise a family.  On December 31, 1984, Madge became uninsured for disability benefits. She lost her work credits.
"But I know someone who never worked a day in his life and he gets a Social Security check every month...."

This is possible because Social Security operates a program called Supplemental Security Income or SSI which does not require work credits.  But this is NOT the Social Security disability program (SSDI).  SSI is a type of welfare program that provides benefits for persons of very low income who are either elderly or disabled.  The benefits under SSI are much lower than under Title 2 or SSDI.  

What is the maximum monthly benefit under Title II or SSDI?  The answer is $2,788.

What is the maximum monthly benbefit under SSI?  The answere is $759. 



 

    

DISABILITY BASED ON MENTAL OR PSYCHOLOGICAL IMPAIRMENTS

We are all aware of the physical demands of work:  lifting, bending, reaching, standing, walking, kneeling, etc.

But all jobs have mental demands as well.  Some jobs have greater mental demands than others.

Social Security law recognizes the following as mental demands required of most workers under SSR 85-15:
 All work has mental as well as physical demands.  The mental demands of unskilled sedentary work are defined by SSR 96-9p and SSR 85-15.  Those demands include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.

Notice that these demands are on a "sustained basis."  This means that a worker must be able to fulfill these mental demands at least 8 hours per day, 5 days per week, or on an equivalent schedule.

A worker who suffers from pain, depression, anxiety, PTSD or another mental impairment, may be able to work normally much of the time.  However, if there are occasions when symptoms are exacerbated to a point that the mental demands of work cannot be fulfilled, this may be a disability. 

For example, a person is able to work most days, but about 3 or 4 days per month he is not able to work a full 8-hour shift.  This doesn't permit full-time work because of excessive absences.

Another example, a person is able to report to work 5 days a week, and can remain at work for 8 hours each day--but is off task more than 10 percent of the day due to psychological stress.  This may amount to a lack of persistence and be considered a disability.

If I make it sound like disability is easy to get--and all you have to do is complain about feeling stressed, nervous or anxious--then I am giving the wrong impression.  Social Security will want extremely well documented medical evidence from a psychologist or psychiatrist which demonstrates a severe impairment. They will want to see a professional medical evaluation to show:  (1)  the diagnosis or diagnoses involved, (2) the severity of symptoms,  (3) how long symptoms have existed and (4) what treatment has been attempted.

Generally, disability benefits will be approved only if the claimant is found unable to perform any full-time work which exists in the national economy.

Many disability cases involve both physical and mental limitations.  My job is to put all the pieces together and give Social Security decision makers a complete picture of the claimant's physical and mental health--so they can make a fair decision about disability.
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