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    I get frequent calls and emails from people who are still working, but are struggling, and are considering Social Security disability.

    Depending upon a person's individual circumstances, this is typically what I say to those who are currently working, but are exploring the disability process:

It is hard to plan for disability. It is unfortunately an imperfect process. Please bear in mind these things:

First, there is no disability from Social Security if you are working, and earning more than $1,090 per month (which is the level of "substantial gainful activity"). So you must have stopped working to apply. I typically suggest that people who are still working should keep working as long as possible.

Second, Social Security does not pay for the first 5 full calendar months of disability. So you need to be prepared financially for 6 months, at a minimum, of little or no income after you stop working. 

Third, not being able to perform your past work is not enough to qualify for disability benefits. Depending upon your age, Social Security will look at your ability to perform other work, including work that is sedentary, unskilled, and not demanding mentally. This work includes jobs that many people would perhaps never consider.

Lastly, you need to be able to back up the functional limitations that prevent you from working with significant medical evidence, preferably including opinions from your treating doctor(s).

 
That may be too blunt. But it reflects the reality of the disability process today. Disability has to be a last resort.

Two administrative law judges are departing the Portland Office of Disability Adjudication and Review (ODAR).

Judge Vickie Evans departs this month. She is transferring to the Mobile, Alabama ODAR, where she will be the Chief ALJ. I wish her well.

Judge John F. Edwards has retired. Hearings already scheduled for Judge Edwards will be heard by other ALJs. I wish him well.

Social Security has issued a new rule regarding the production of medical evidence for Social Security disability cases. Entitled Submission of Evidence in Disability Claims, the rule makes several changes in the regulations effective April 20, 2015.

If you are practicing in this area of law, you have to read the new rule. It is likely to affect your practice and your procedures.

There is a good article discussing the new rule written by Delaware Social Security lawyer Steven Butler.

One notable change is that any and all medical source statements and opinions from treating doctors must be submitted. The rule is explicit that medical source statements do not fall within the attorney work product exception. That should give you pause before you ask all treating providers for opinions.

Those of us practicing in this area will be hearing more about this rule, so stay tuned. 

Trial work is a concept that applies to people already entitled to Title II disability benefits. Sometimes Title II recipients will attempt to return to work to see how it goes. Social Security encourages this, and allows a 9-month period for a person to still receive disability benefits while testing his or her ability to work. However, this trial work can be a trap for the unwary.

Some recipients try working part-time, and may earn less than the SGA amount. They assume their disability benefits will not be affected by this part-time work. After all, they were allowed earn that much when they applied for disability benefits. But the trial work amount is quite a bit less than SGA, and this can cause problems for people who earn more than the trial work amount, and do not keep track of their months of trial work.

After 9 months of trial work, Social Security can terminate your benefits if you reach the level of SGA. The 9 months of trial are not necessarily consecutive, so a few months here and there of part-time employment can consume the trial work period. The SSA looks at a rolling five-year period for trial work, so that 9th month of trial work can sneak up on you.

Here is what to do to about trial work: 

First, be aware of the the trial work issue.

Second, keep track of your earnings, particularly if you are only working part-time. Keep your paystubs.

Third, let your local Social Security office know that you are working, and give them copies of your paystubs.

The goal is for both you and Social Security to know when you have reached the 9th month of trial work, so there are no surprises. You want to avoid an overpayment, where Social Security realizes after the fact that they have continued to pay benefits after 9 months of trial work, and seeks to get the overpayment back.

The things you tell your doctor about how you are doing (and what you are doing with your time) frequently end up in your medical progress notes. These progress notes provide your doctors with context and information about your condition.

Anyone applying for disability needs to know that those medical notes become part of the record for your disability claim. These notes are read carefully by the people making decisions on your claim, whether that person is a disability examiner or an administrative law judge.

I hate to say that you have to be careful what you tell your doctor, but you have to be careful what you tell your doctor. Because those statements made to your doctor are considered when your credibility is assessed by a decisionmaker.

I had a hearing for recently for a claimant disabled by chronic pain. The record contained a treating doctor's progress note stating that the patient "was helping a neighbor build an addition to his house." Now it turns out that the claimant was knowledgable about construction, and was simply walking next door to give his neighbor advice about how to proceed. He never picked up a tool or lifted a board. There is nothing inconsistent with that activity and a finding of disability due to chronic pain; people in pain still socialize, and carry on their lives as best they can.

But even when the actual facts are explained to the judge, credibility questions can remain. As a result, a case can become more difficult to win when doctors' notes contain statements about the patient's activities.

So be careful what you say to your doctor, because it may end up in your medical notes in a way that can raise questions about your claim.

For credibility analysis, be sure to read Social Security Ruling 96-7p.

The latest average processing time statistics for Social Security hearing offices around the country have been published by the National Organization of Social Security Claimants' Representatives (NOSSCR).

As of the end of January 2015, the average processing time for the Portland, Maine hearing office is now 443 days, which is just a week shy of 15 months. Processing time runs from the date of the hearing request to the day a decision is issued. The 443 days is an average. Some claims are resolved more quickly, but a claim that requires a hearing and a written decision may take even longer.

The processing time has been lengthening at hearing offices around the country, and it is causing real hardship to those Social Security disability claimants waiting for their hearing.

Social Security assesses your ability to perform your past relevant work at step 4 of the sequential evaluation process.

Social Security will evaluate your ability to do the physical and mental activities that were required to perform your past work. The SSA will not consider whether or not you could actually get a job doing this work.

Additionally, when evaluating your ability to perform your past relevant work, the SSA does not consider:

  • whether you would be hired,
  • whether a job opening exists,
  • whether you would be required to relocate,
  • whether you want to do this work,
  • whether you still have a certificate or license to do the past work.

The last item on the list is one I hear about frequently from clients who are pilots, truck drivers, or commercial bus drivers – people who often require an examination from a physician to maintain a license. The fact that you could not pass the physical to get licensed would not be considered by Social Security.

Rather, the SSA will simply evaluate whether or not your could perform the work activities of that past job. Now, it may be that the medical condition that would keep you from getting licensed would also prevent you from performing the job. But not always.

A Social Security disability claimant should emphasize the functional limitations that would preclude past relevant work, and skip the argument about not being able to be licensed, and therefore unable to work.

Each year, the Social Security Administration releases statistics about the disability and SSI programs in an easy-to-understand format, the "waterfall" chart. The chart shows the percentage of claims approved and denied at the various levels of review.

Here is the latest chart, for FY 2014:

The chart shows what claimants can expect, statistically, for their claim for Social Security disability benefits. I like this chart, and have posted the waterfall chart each year on this blog since 2010.

However, much has changed since then (see my post from 2010). Allowance rates are down at every level of review, with Reconsideration staying steady at 11% of claims. ALJ allowance rates have fallen significantly each year (62% in FY 2010, 58% in 2011, 53% in 2012, 48% in 2013, and now 45% for 2014).

Those of us practicing Social Security disability law are well aware of the changes in the past 5 years. But the chart shows the situation clearly, for all to see.

The Social Security will expand its hours nationwide effective March 16, 2015. Local "field" offices will be open to the public for an additional hour on Mondays, Tuesdays, Thursdays and Fridays; they will be open from 9:00 a.m. until 4:00 p.m on those days.  Offices will continue to close to the public at noon every Wednesday so employees have time to complete current work and reduce backlogs.

Staying open to the public another hour is a step in the right direction. However, I do not think the public expects a government office to be closed at noon on a Wednesday. My office is just down the hall from the Saco, Maine Social Security office, and I often hear people knocking on the door of the closed office on Wednesday afternoons.

The field offices have significant backlogs. Hopefully, Congress and the Administration will provide the resources the field office need to stay current on their workload. 

Working on initial disability claims, from the application itself through the DDS review process, is one of the most enjoyable parts of my job as a Social Security disability lawyer.

Most of my practice involves preparing disability claims for hearings before administrative law judges, but a certain percentage of my cases are initial claims or claims at the Reconsideration level.

Often we can gather the evidence necessary to get disability benefits paid after the initial review, without having to go through an appeal process. This saves a great deal of time and worry for the client, and often results in a lower fee paid to the lawyer as well.

Some claims are not going to be granted upon initial application. Often more medical evidence is needed. But some claims already have a significant medical record. If it is possible to obtain medical source statements from the treating doctor(s), these cases can be ready to go on a fast track.

As a lawyer, I enjoy initial claims for several reasons. First, I work closely with the local Social Security office and the disability examiner, which is a change of pace from those disability claims that are already at the hearing level. Second, there is no greater result for a client than getting a claim granted right away. I like doing the work to make that happen.

One group of disability claimants that benefits greatly from the involvement of a lawyer at the application stage is those age 55 and over. The lawyer can plays an outsized role in these claims, because much of the disability determination rests on the past relevant work of the claimant. Making sure that the vocational evidence for these claims is properly presented is very important.

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Get help from a lawyer with your disability claim 

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates for a free consultation.