WHY YOUR MEDICAL FILES LET YOU DOWN

Social Security disability must be based on a serious "medically determinable impairment," which relies upon your medical records to establish.  However, your medical records are probably woefully inadequate to prove that you are disabled?  Why?  Because they do not address your condition in vocational terms, that is, work-related terms.

A typical doctor's office record will give the dates you saw the doctor, your chief complaints, a diagnosis or impression (sometimes), and a record of any prescriptions written.  Even if the doctor ordered diagnostic tests such as X-Rays or blood work, they will not discuss functional limitations imposed on the patient by their findings.

In addition to what is contained in your doctor's reports, here is what Social Security needs to know:  How severe is your condition?  How does it affect your physical or mental function in the work place?  Specifically, how much can you lift and carry frequently and occasionally?  How long can you stand at one time?  How long can you stand in an 8 hour day?  Do you have limits that involve sitting, bending, kneeling, climbing, crouching, or reaching?  Are there emotional or psychological limitations, including the ability to concentrate, understand and follow simple directions, get along with supervisors or coworkers; do you have any limitations in persistence or pace?  Can you work 8 hours per day, 5 days per week, 52 weeks per year without more than 2 days per month of absence due to your condition?

No doctor's chart ever addresses this vocational-related information, hence, Social Security does not have enough information to approve your claim.  You must have your doctor address your condition in terms of how it restricts your ability to work.  This burden lies upon the claimant or the claimant's representative.  Do not count on Social Security to obtain this information.

We must emphasize that Social Security will not go to the effort to obtain this information from your treating sources.  The claimant or representative must take the initiative and go after the data needed.  Knowing exactly what vocational data is required, then obtaining it, will make all the difference in getting a Social Security disability claim approved.  

To access the main web site for the Forsythe Firm, Huntsville Social Security disability advocates, click on this link.

DISABILITY BENEFITS FOR the SELF-EMPLOYED?

An individual engaged in substantial gainful activity (SGA) is not qualified for Social Security disability benefits.  In 2012, the monetary benefit that equals SGA level is pretax earnings of at least $1,010 per month ($12,120 annually).  If an individual owns or invests in a business and earns at least $1,010 per month, does that disqualify him or her for Social Security disability?  Maybe not.

While self-employment income may certainly be counted as SGA, there is more involved than a simple determination of the amount of money earned.  Social Security Ruling 83-34 provides several factors, not just income, to determine whether a self-employed individual is engaged in SGA.  The two significant tests of SGA for self-employed individuals are (a) Does the individual render services that are "significant to the operation of the business?" and (b) Does the individual receive "substantial income from the business?"  If the income received amounts to SGA levels, then it should be determined whether the claimant's work activity is comparable to the work of unimpaired persons who are engaged in the same type of business, or that the individual's work is "clearly worth more" than the annual SGA earnings guideline ($12,120 for 2012).  Questions that may be helpful in evaluating SGA for self-employed persons are:

• Does the claimant work for or provide any valuable service(s) to the business?
• How much time does the claimant devote to operating or serving the business?
• How much capital investment does the claimant have in the enterprise?
• Who else besides the claimant is involved in running the business?
• On what basis are the profits distributed?
• How does the claimant's work activities compare to those of an unimpaired person who is engaged in the same type of business in the same community?

In Weber v. Astrue, on January 31, 2012, a US district court held that income alone does not necessarily establish that a Social Security disability claimant is engaged in substantial gainful activity.  

If self-employment income is realized chiefly from capital investment in a business enterprise, then realizing a profit from the investment may not be substantial gainful activity for Social Security disability purposes. 

For information about the Forsythe Firm and how it may help you with a Social Security disability case in Huntsville or Alabama, please click this link.

VOCATIONAL EVIDENCE IN DISABILITY HEARINGS

Both medical and vocational factors are considered in Social Security disability claims.  Often, the claimant's disability case will be decided on the basis of unskilled sedentary work - the class of work which requires the lowest degree of exertion, according to the Dictionary of Occupational Titles (DOT).  Sedentary work is, of course, the classification which offers the greatest possible number of jobs in the occupational base.  Therefore, if Social Security finds that a claimant can still perform unskilled sedentary work, they will find him not disabled.


Let's use an illustration.  Jim is a 44 year-old construction worker who specializes in high rise steel-constructed buildings.  His job duties included climbing, balancing, lifting up to 50 pounds frequently and over 100 pounds occasionally.  He was frequently required to bend, crouch, crawl and kneel.  Last May, Jim began experiencing severe and chronic back pain.  His orthopedic specialist performed an MRI on his back and discovered two bulging cervical discs along with severe instability of the spine at the L4 on L5 level.  Jim's days of working on high rise buildings and lifting up to 100 pounds were over.


Jim filed a Social Security disability claim based on chronic back problems and the fact that he could not perform any of his past relevant work activity.  Social Security readily agreed that Jim was not able to perform any of his past work as a construction worker.  However, they argued that there was "other work" in the national economy that Jim could perform, even with his spinal impairments.  So Social Security denied Jim's claim.


Jim hired a representative and appealed this denial.  Eleven months later, Jim and his representative  appeared at a hearing before a US administrative law judge.  The judge found that (a) Jim was not engaged in any substantial gainful activity or work, (b) Jim had a severe and medically determinable impairment, (c) Jim's residual functional capacity placed severe limitations on his ability to climb, lift, carry, kneel, crawl, crouch, and push or pull.


Next, the judge asked the vocational expert whether Jim could return to any of his "past relevant work" that he had performed during the past 15 years.  The expert testified, "No, he cannot do any past relevant work."


Then, the judge asked one final hypothetical question of the vocational expert.  "Is there any other work that Jim could perform?"  Now, enter the unskilled sedentary job market - where about anything goes.  "Well, yes, Jim could perform sedentary unskilled work that required little or no lifting, climbing, bending, etc.  Some examples of work that Jim could still do would be telephone solicitor, inside sales representative, bench press operator or table work.


Since Jim can, according to the ever-present vocational expert, perform some jobs that exist in significant numbers in the national economy - and since those jobs require no previous experience or special skills - Jim is not disabled according to Social Security rules.


Here, the representative had better have an answer--or at least a good question--for the vocational expert, or this case is lost.  I would want to point out additional limiting factors that restrict Jim's ability to perform even unskilled light or sedentary work.  I might point out Jim's level of consistent pain and how it affects his ability to concentrate.  I might point out the doctor's opinion that Jim cannot sit for up to 6 hours per day, or up to 2 hours at one time, both requirements of sedentary work.  There certainly might be other medical or vocational evidence that would help Jim's case, if it had been prepared before hand.


The bottom line is, the advocate or representative must prepare for a "worse case" scenario in a disability hearing.  What happens if the vocational expert testifies that your client cannot do high rise construction work but that he could still perform some easy, cream puff job, of which 240,000 exist in the national economy and 87,000 jobs exists in the state economy?  I promise that will happen in 9 out of 10 hearings and we best be prepared to answer.  Often, it is not the medical evidence that kills you in a disability hearing, it's the vocational evidence.  You must be able to show that the claimant cannot perform any of his past relevant work AND that he cannot perform any OTHER work.  That is a high burden of proof to bear and a good reason for hiring a representative who knows how to prepare and argue Social Security disability cases.


The more time the representative has spent with his client, the better he will be prepared to argue the case effectively.  Simply talking to a client often gives me a sense of direction for the case - something I might never develop by talking to the client on the phone or reading his file.


Disability advocates perform a vital service in representing their clients and cannot receive a fee for their assistance unless they win the case and get back pay for their clients.

DISABILITY FOR MENTAL CONDITIONS

Mental conditions may qualify for Social Security disability payments if severe and ongoing.  If a doctor has diagnosed mental or emotional conditions that keep you from working and the impairment has lasted, or is expected to last, 12 consecutive months or more - you may qualify.


Very likely, Social Security will deny the initial claim, requiring you to file an appeal and attend a hearing to get paid.  The service of an experienced advocate or representative will prove most helpful.  Our firm handles these cases on contingency - meaning that we cannot charge a fee unless your case is won AND you also get back pay.  Our fee is actually paid from the back pay.


We are local representatives located in Huntsville, directly across from the Bridge Street Mall at 7027 Old Madison Pike.  You may reach us at (256) 799-0297.  There is never a charge or obligation for speaking with us about your disability claim.

WHY ALABAMA DISABILITY DENIALS ARE HIGH

Ask anyone who has applied for Social Security disability in the Huntsville or North Alabama area and you will hear an unfortunate story of delay, denial and disappointment.  In fact, 70.1 percent of all Social Security disability claims filed in the state of Alabama are denied by the Alabama Disability Determination Service (DDS), which is the state agency contracted by Social Security to make the initial decisions on disability claims in the state.


In order to win their disability benefits most claimants have to appeal the unfavorable decision and wait months or years to get their turn before a US administrative law judge.  During that time, there is often little or no income for essentials, including much needed medical care.


As Social Security disability advocates, we wonder why the initial denial rates are so high - especially when a majority of the denials are later reversed on appeal.  The following may be  some contributing reasons for the high denial rates:

• The decision maker has never met the claimant.  
• Decisions are made on "paper views" of the claimant, i.e., medical records and questionnaires completed by the applicant or by someone else.
• The doctor who evaluates the medical condition has usually never seen or examined the claimant.
• If a consultative examination was made at all, it was by a physician contracted by Social Security and this doctor has not seen the patient before, has not treated him/her, and is not familiar with his/her medical history.  We have reports of consultative exams by doctors who spend as little as 5 or 6 minutes with the claimant, ask a few questions and leave the room.
• While DDS tries to get medical records from the claimant's own treating physicians, there is no guarantee that they will succeed; furthermore, the doctor's records may be woefully inadequate to establish the claimant's eligibility for disability. You'd be surprised at how sketchy some doctor's notes are.  What your doctor says to you  and what he writes in your medical record may be very different.  What he writes is all that counts.
• Very little, if any, personal discretion of the claimant's condition is figured into the decision.  We get the image of a decision maker with the Social Security rule book in one hand and a medical chart in the other hand - checking off boxes on a form.  Sadly, the claimant seldom meets all of the criteria on the form to be found disabled using this method of determination, hence the high denial rates.

What do we suggest if you're about to tackle a Social Security disability claim in Alabama (or anywhere else, for that matter)?   Here is the short and sweet of it:

1. Make your initial application forms as complete, specific and detailed as possible.
2. Check with DDS about every 2 weeks to be sure they've received all medical records.  If not, contact the doctor yourself to see if you can expedite sending records.
3. Fill out everything DDS requests.  They will often send various forms after they receive your application, seeking more information.
4. Pay particular attention to the Work History Report - and give detailed information about specific duties you performed in jobs held during the past 15 years.  Why?  If DDS finds that you can still do any of those past jobs, they will find that you are NOT disabled.  So, accurately describe how much you lifted or carried; how much bending, stooping, standing, you did on each job.  
5. Don't ignore mental or emotional conditions that impact your ability to work. 
6. Consider getting professional help to complete the application, and especially consider help if you have to appeal.  Representatives or attorneys cannot charge you a fee unless you eventually win your case and collect back pay benefits.  So you don't need any upfront money.
7. Most important of all - and please don't ignore this:  If you are denied, request an appeal in writing with 60 days.  The 60 day limit is very strict.  Failure to request an appeal with 60 days of denial will have serious negative consequences, probably including a longer delay in getting your case resolve and very likely significant loss of back benefits. Requesting an appeal is NOT the same as filing a new claim.  Filing a new claim causes you to start all over - and is not the right move when an appeal is available.

If you would like to discuss your Social Security disability claim with an experienced, local advocate in Huntsville or North Alabama, at no cost or obligation, please CLICK HERE TO GO TO OUR MAIN WEB SITE or call our Huntsville office at (256) 799-0297.  Ask for Charles Forsythe, who is our senior partner and disability claims advocate.  He will take your call personally.

  The National Organization of

Social Security Claimants Representatives (NOSSCR)