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What happens at a Social Security Disability pre-hearing conference

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social security disability prehearing conference

As we’ve explained here before, most people who apply for Social Security Disability are initially denied benefits. Many applicants must submit go through several appeals, waiting years and dealing with miles of red tape, before they get to the point where they can argue their case before a judge.

If you are denied initially, your best chance at being approved for disability benefits is during one of these hearings before an administrative law judge who works for the Social Security Administration. I think applicants who have an attorney represent them are much more likely to win benefits than those who do not.

The Office of Disability Adjudication and Review, ODAR for short, is the part of the Social Security Administration that holds hearings for those who have been denied Social Security disability benefits. Many people who have to go to a hearing are represented by an attorney, who helps gather evidence, explain the law and issues to you, and present the law and facts of your case to the judge.

But there are some applicants who do not have an attorney at this stage. The local ODAR, including ours in Greensboro, will sometimes schedule pre-hearing conferences for people who don’t have representation. If you get a notice of a pre-hearing conference, do not ignore it.  We also strongly recommend that you seek the representation of a qualified attorney who can help you prepare the strongest case possible.

At a pre-hearing conference, you will be asked about the medical treatment you have been receiving.  The burden to provide evidence to support your disability is on you, and so it is up to you to provide the medical evidence about your mental and physical conditions that keep you from being able to work.

ODAR will sometimes try to obtain these records itself, but in my experience, they often leave out important records.

During the conference, Social Security will also inform you of your right to be represented at your hearing.

Your representative does not have to be an attorney, but I always recommend that people get an attorney to represent them. Attorneys better understand the law and the regulations, in my experience, and can do the best job analyzing and presenting your case to the judge.

If your Social Security Disabilty claim has been denied and you are waiting for a pre-hearing conference or a conference, contact our office to find out how we can help.

Social Security Disability – Spotlight on Migraine Headaches

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Migraine headaches are a very common problem affecting many people. According to the Migraine Research Foundation, migraine headaches affect 38 million men, women and children in the United States.

Most of those afflicted with migraine headaches experience them infrequently, perhaps once a month. But for some they can be frequent and debilitating to the point where it is impossible to hold down a job. According to MRF, more than 4 million people have chronic daily migraines, experiencing at least 15 per month. Most people find it impossible to work or function during a migraine.

Migraine headaches can be the basis of a successful claim for Social Security Disability. It is important to get medical treatment, particularly with a neurologist, who is best trained to diagnose and treat migraines. Regular treatment with a neurologist will hopefully provide you some relief and will also document the nature and frequency of your migraines.

If you’ve ever experienced a migraine, you know that it is much more than just a “bad headache.”

Symptoms may include visual disturbances or auras, nausea, vomiting, dizziness, extreme sensitivity to sound, light, touch and smell and tingling or numbness in the extremities or face. They can last anywhere from four hours to three days.

Between doctor visits, it is a good idea to keep track of how often you are having severe migraine headaches. You can share this information with your doctor and also with the Social Security Administration as you file your claim for benefits. Use your calendar to document how often you experience migraine headaches and how debilitating they are. Just quickly jot down the symptom, length of the headache and any other specifics.

The chances of winning your Social Security Disability case depends on a lot of factors, including how frequent and how debilitating your migraines are and how well they respond to treatment.

I always recommend people with migraines enlist the help of an attorney to help them present their case to the Social Security Administration. Contact our office to find out how we can help.

 

Social Security Disability – Spotlight on Osteoarthritis

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social security disability and osteoarthritis

I have been asked several times recently, “Can I be approved for Social Security Disability based on osteoarthritis?”

The answer is that many people are approved for Social Security Disability and Supplemental Security income based solely on osteoarthritis. However, like almost all medical conditions that can form a basis for a Social Security Disability claim, the diagnosis of osteoarthritis alone is not enough.

The most important factors are

  • where you have the osteoarthritis
  • how severe it is
  • how well you have responded to treatment
  • how severely it affects what you are able to do.

Osteoarthritis is very common, especially as we age. It can affect many different joints in the body, but the joints that I see most often in connection with disability cases are the knees and the hips.

It makes sense because knees and hips are some of the joints that help us stand, walk, stoop, and generally help us get around, which are functions important to most jobs. Fortunately medical treatment can often alleviate or at least improve symptoms of osteoarthritis, but this is not true for everyone.

In addition to medications and lifestyle changes (such as losing weight) sometimes surgery can improve your ability to function, such as artificial joint replacements.

When it comes to Social Security disability, how severe your osteoarthritis is, how well it has responded to treatment, and how it affects what you are able to do on a daily basis are some of the most important factors that the Social Security Administration will consider.

If you are unable to work because of osteoarthritis and are considering applying for Social Security Disability, it is very important that you are getting medical treatment to document the nature and extent of your osteoarthritis, and to hopefully get you some relief from your symptoms.

The Social Security administration will consider what you say about how your osteoarthritis affects you, but they often give more weight to what your doctor says about the nature and severity of your medical problems.

Getting approved for Social Security Disability when you have COPD

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In my last post I talked about how COPD is evaluated in people seeking Social Security Disability benefits and Supplemental Security Income benefits.  I also talked about how you can meet a “listing” for COPD, but noted that often times people cannot show that they meet the listings.

Today, I’d like to talk a little bit about how you can still be approved for SSDI and SSI benefits on the basis of COPD.

If you do not meet a listing, the evaluator has to determine what’s called your “residual functional capacity” and then compare that to the types of jobs you have done in the past and other jobs available in the national economy to decide if you are disabled.

Your residual functional capacity is basically the most you are able to do despite your COPD and any other medical and psychiatric conditions you may have. When determining your residual functional capacity, the evaluator is supposed to consider how the symptoms you have from COPD affect your ability to function day-to-day, to determine if your COPD would prevent you from doing any full-time job.

In my experience, people with COPD will often have environmental limitations on their potential work. For example, some people have to avoid any exposure to dust, smoke and fumes because it worsens their COPD.  This can prevent them from working in certain environments, such as in industrial settings with smoke and fumes or in dusty outdoor settings such as construction.

Some people with COPD cannot tolerate very hot or cold temperatures, or extreme humidity, because of how it affects their COPD. These limitations could prevent them from working any job outside, as well as inside jobs where they could be exposed to heat or cold.

In addition to environmental problems, some of the most debilitating limitations from COPD can be exertional.  Exertional limitations  affect your ability to sit, stand, walk, lift, carry, push, and pull in the course of a workday.

COPD can cause you to be short of breath and unable to continue walking after just a few minutes. It can also prevent you from lifting heavy objects, and even from standing for long periods of time.

It is important to show the evaluator how your COPD affects your functional abilities on a day to day basis in these and other areas, and ultimately how your COPD prevents you from being able to work a full-time job.  Environmental as well as exertional limitations are often what prevent people with COPD from being able to work.

I always recommend that people with COPD enlist the help of an attorney to help them present their case to the Social Security Administration. Contact our office to find out how we can help.

Social Security Disability: Spotlight on COPD

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Chronic Obstructive Pulmonary Disease is one of the most common lung diseases, and it can make it very hard for you to breathe.

Sometimes the symptoms of COPD are severe enough to prevent you from working any full time job, causing you to have to file for Social Security Disability Insurance benefits, also known as SSDI. You have to have worked and paid enough into the system through paying taxes to get SSDI benefits.

However, even if you do not have a work history or do not have enough “work credits” to get Social Security Disability Insurance benefits, it is still possible to file for Supplemental Security Income benefits, or SSI,  on the basis of COPD. I’d like to talk a little bit about how claims for both SSDI and SSI on the basis of COPD are evaluated.

The Social Security Administration uses a five step sequential analysis when deciding claims that is honestly more confusing than it needs to be. In a later blog post I will talk about these steps more in depth.

For now, I will summarize Step 1 as asking if you have a severe medical problem. (If yes, go on to Step 2).

Step 2 asks if you are working and making more than the limit. Assuming you are not, you go onto Step 3, which is when the Social Security Administration looks to see if you meet a “listing,” which is a prescribed set of criteria that is different for different medical conditions. If you meet a listing, you should be approved for benefits. But that’s not the only way for you to be approved for SSDI or SSI benefits for COPD.

There is a listing for COPD, Listing 3.02.

It specifies different values a person could have based on standardized tests – pulmonary function studies (the most common), exercise blood gas studies and carbon dioxide diffusing capacity.

To determine if you meet a listing, you have to compare your results on these tests (along with your particular circumstances, such as your height) to the values in the listing.

For example, according to the listing, a person with COPD who is 5 feet 8 inches tall (or 68 inches) would have to have an FEV1 value on a pulmonary function study (also called spirometry) of 1.45 or less.

Sometimes people are unable to show that they meet the listings because they have not had these tests, which can be very expensive. The listing criteria are also pretty difficult to meet. It is possible to be debilitated and unable to work because of your COPD, even if your test results do not meet the listing criteria.

If you are not found to meet the listings, it is still possible to be approved for Social Security Disability benefits. I will talk a little more about this in my next blog post.

North Carolina disability denial rates

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When it comes to your chances of getting approved for Social Security Disability Benefits initially, or upon the first appeal (called “reconsideration”), the state you live in makes a difference.  

Charles Hall’s excellent Social Security blog posted some interesting statistics about initial and reconsideration denial rates last August, which he got from NOSSCR, the National Organization of Social Secuirty Claimants’ Representatives. 

The stats show in Fiscal Year 2013,  72.2 percent of disability claims in North Carolina were denied initially. This is higher than the national average of 67 percent of claims denied initially.  

At the reconsideration level, in North Carolina 90.4o percent of claims are denied.  This is again higher than the national average of 88.6 percent denied at reconsideration.

Due to these high denial rates many claimants in North Carolina have to appeal their reconsideration denial by requesting a hearing before an administrative law judge.

Unfortunately, due to Social Security disability backlogs the wait time (which varies by hearing office) to get a hearing is quite long. The good news? The denial rate at the hearing level is much lower than it is at initial or reconsideration, both in North Carolina and nationally.  

The vast majority of Social Security disability cases that I win are at the hearing level.

Given the backlogs and the number of times most people are denied Social Security Disability benefits, it’s best to get a lawyer who understands the law and the process. 

An attorney can help prepare your case to give you the best opportunity for success. Statistically, applicants who retain an attorney to represent them are much more likely to win benefits than those who do not.

 

 

 

 

Social Security Disability – Spotlight on Diabetes

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As a Social Security Disability attorney in North Carolina, I represent a lot of people who have diabetes. Often, my clients will have other health problems that also affect them, but sometimes I represent people whose diabetes, and complications from their diabetes, is the main thing preventing them from being able to work. 

It is not surprising that I see so many diabetics, because according to the American Diabetes Association, in 2012 29.1 million Americans , or 9.3 percent of the population, had diabetes. In North Carolina, according to the CDC, in 2012 some 778,716 North Carolinians were diabetic. This is an unfortunately large percentage of those fine folks who call the Tarheel state home.  

Diabetes can cause many complications that can be debilitating and prevent someone from working. Kidney disease, neuropathy, and blindness or eye problems are just a few examples. The Social Security Administration should take into account all of the complications you may have from diabetes that limit you from being able to work when determining whether you are disabled.  

In my practice, diabetic neuropathy is a common condition that prevents many of my clients from working.  

Neuropathy is a type of nerve damage that can occur over time when you have diabetes that is not under control.

 It typically occurs in the feet (and sometimes hands), and can cause severe numbness, constant burning or stinging pain, and loss of coordination and balance.

Neuropathy can make standing on your feet very difficult for more than just a few minutes, which limits your ability to do the standing required in full time jobs.  It can make walking for any distance excruciatingly painful as well, and may require you to use a cane or other assistive device.

Neuropathy in the hands can prevent you from being able to use your hands for more than just a few minutes at a time, which can greatly impact your ability to do a full time job.  

It is important to try to prevent neuropathy by, among other things, keeping your blood sugar tightly controlled. Unfortunately, once you have neuropathy, according to the Mayo Clinic there is no known cure, and treatment focuses on slowing progression of the disease, relieving pain, managing complications and restoring function.

Neuropathy is a painful complication of diabetes that shouldn’t be taken lightly. My clients would rather work than receive disability benefits, but sometimes the life-altering affects of diabetic neuropathy give them no choice.  

 

Expedited Social Security Benefits for Veterans

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Starting in mid March, the Social Security Administration will give priority to Social Security Disability claims filed by some veterans.

SSD applications from veterans with a Department of Veterans Affairs disability compensation rating of 100 percent Permanent and Total will be processed faster than other claims, the Social Security Administration announced last week. These application will be given the same priority as those filed by wounded warriors.

In the past, disabled veterans have been caught in the same Social Security disability backlog as other applicants, sometimes waiting as long as two years before they begin receiving much-needed benefits.

At this point, we don’t know how quickly eligible veterans will be approved for benefits, particularly if they’re subjected to the same red tape of denial, appeal, reconsideration and hearing that most Social Security Disability applicants face.

U.S. Rep. John Sarbanes, who pushed for the changes in how veterans’ claims are processed, told the Baltimore Sun an initial decision could be issued within days of an application being filed. The wait time for an initial decision is about 120 days. 

“Sarbanes says he expects veterans will be seen by an agency employee for an initial interview within three days of filing a claim and that they’ll receive a determination about their financial eligibility for benefits in a matter of days.”

It’s important to note that having a 100 percent VA disability rating does not guarantee Social Security benefits for veterans. But you should get a decision quicker, thanks to these new rules. For more about VA benefits and Social Security Disability benefits, see our most recent newsletter, available as a PDF download.

If you are a disabled veteran, you still may be eligible for Social Security Disability — no matter what your rating.

If you’re a veteran who has been approved for VA benefits, SSD must consider that as evidence. But the SSD judge isn’t required to accept your disability rating and will make an independent decision as to your disability.

Social Security looks at you as a whole, so you don’t have to be considered disabled from one specific injury or illness. Instead, you can be considered disabled if the “combination of impairments” you have make it so you cannot work.

According to the Baltimore Sun article, “fully disabled veterans accounted for about 10 percent of all veterans who received disability benefits from the VA in 2012, the last year for which data are available. That’s about 360,000 people. But many of them might already be receiving Social Security benefits.

 

Social Security Disability Fraud Report

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There’s been a lot of publicity lately about a new Government Accountability Office report about Social Security Disability overpayments.

According to the GAO report, released Friday, the Social Security Administration paid out $1.3 billion in disability payments to people who had jobs, even though they were classified as disabled and unable to work. An estimated 36,000 workers received improper payments from December 2010 to January 2013, according to the GAO.

And while that figure — $1.3 billion — seems huge, it doesn’t tell the entire story.

That figure represents less than 1 percent of beneficiaries and less than 1 percent of disability payments made during the three-year period.

It does not represent widespread Social Security Disability fraud or abuse by workers.

More than 8.2 million workers received disability payments in December 2010. Social Security paid out nearly $137 billion in disability benefits to 9 million recipients last year.

The Social Security Administration has questioned whether GAO overestimated the overpayments.

According to an  Associated Press news report

GAO said the overpayments reveal weaknesses in Social Security’s procedures for policing the system.

“The report lays out clear, common-sense steps that the agency can and should take in order to avoid improper payments,” said Sen. Tom Carper, D-Del., chairman of the Senate Homeland Security and Governmental Affairs Committee. “However, if we’re serious about preventing waste and fraud and ensuring that these critical benefits get to the people who need and deserve them, Congress must also do its part and provide needed resources and access to basic anti-fraud data to the Social Security Administration.”

 The Social Security Administration said its accuracy rate for disability payments is more than 99 percent. But the agency noted that even small errors translate into big numbers.

“We are planning to do an investigation, and we will recoup any improper payments from beneficiaries,” Social Security spokesman Mark Hinkle said.

 

Why Do Social Security Disability Claims Go Up During a Recession?

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The number of people receiving Social Security Disability benefits has risen 25 percent since the beginning of the recession in 2007. That has caused some people to theorize that people who have lost their jobs as a result of the economic downtown are “gaming the system” and fraudulently collecting SSDI.

New research from a University of California at Berkley economist disproves that theory. 

According to the Wall Street Journal:

Economist Jesse Rothstein set out to test that theory. He reasoned that if the increase is being driven by unemployed workers gaming the system, there ought to be a correlation between expiring jobless benefits rising disability claims. After all, there’s no need to file for disability insurance — often a long, involved process — if you can still draw an unemployment check.

When Mr. Rothstein looked at the data, however, he found no such correlation. When the unemployment rate started rising in 2008 and 2009, the government extended unemployment benefits, leading to a drop in the number of people exhausting their payments. Yet the number of people filing for disability kept on rising. In more recent years, the government has cut back unemployment benefits, leading to an increase in expirations, but the number of disability applications has remained flat or even slowed.

If disabled workers aren’t cheating the system — as Rothstein found and as has been our experience — why do Social Security Disability filings go up during a recession or economic downturn?

It has to do with the job market and the availability of alternative work for people who suffer a disabling injury or illness.

Federal disability rules allow workers to get benefits only if they have an “impairment” that prevents them from working. But Mr. Rothstein notes that the ability to work isn’t necessarily independent of the labor market.

A construction worker who hurts his back, for example, might be able to get a desk job during good economic times; when unemployment is high, however, making such a career switch could be much harder. Moreover, companies are much more likely to make accommodations for existing workers who become disabled than to hire a disabled worker — so a person with a disability who loses a job might well struggle to find a new one.

Mr. Rothstein says his findings suggest that “really what’s going on is that there are people who are disabled who may in good markets be able to get jobs but in difficult market can’t.”

You can read more about Rothstein’s research on Social Security Disabilty here and at the Wall Street Journal.