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Sometimes a prior job is actually more than one job at the same time. You were both a nurse supervisor and performed the duties of an RN. You were both a carpenter and a construction supervisor. These are called composite jobs.

In every disability claim, the SSA must determine (at step 4 of the 5-step sequential evaluation process) whether you have the residual functional capacity to perform your past relevant work. This is where the composite job can cause problems with a claim.

I had a hearing where this issue came up. The work history report listed past relevant work at a homeless shelter as a social services aide, a light exertional job beyond the claimant’s residual functional capacity. At the hearing, the VE had questions about this job, and found that for half of the time (or more) the claimant was simply working in the shelter’s office, doing routine office work. As a result, the VE used two classifications to characterize this job: social services aide and general office clerk.

When the judge gave a hypothetical question to the VE about the claimant’s ability to perform her past relevant work, the VE testified that all of the claimant’s past relevant work would be precluded by the hypothetical, except for the past work as a general office clerk.

I pointed out to the judge that the general office duties were part of a composite job, and not a stand-alone job. All of the duties of that composite job must be considered at step 4, including the more strenuous parts that were not part of the general office clerk duties. The judge asked for authority for my argument, which I provided with a post-hearing brief.

Social Security Ruling 82-61 states “composite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT. Such situations will be evaluated according to the particular facts of each individual case.” Social Security must consider all the exertional and nonexertional requirements of a composite job.

There is some good case law on this issue from the Ninth Circuit:

Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant’s “past relevant work” according to the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of the Social Security Act. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985).

See also Carmickle v. Commissioner, 533 F.3d 1155, 1166 (9th Cir. 2008).

This issue can make the difference between losing a case at step 4 or not. It probably only makes a pivotal difference 1 time in 50 or 100 claims. But as a disability lawyer, you have to know this. Awareness of the composite job issue can make the difference between a client receiving disability benefits and having those benefits denied.

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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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.

 

Multiple Myeloma is a blood cancer that used to be a terminal diagnosis. However in the past 10 years or so, truly amazing advancements have been made in the treatment of this disease. There are new drugs, like Revlimid and Valcade, and autologous stem cell transplants are a treatment option that offers lengthy remissions. I am happy to say that for many patients, multiple myeloma has become more of a chronic condition than a terminal cancer.

I never used to have clients with multiple myeloma, because disability applications based upon the disease were routinely granted. However, the advances in treatment have made it more difficult to obtain Social Security disability.

Mulitiple myeloma is evaluated under Social Security listing 13.07. However, the listing is not that much help for those who respond to treatment. Most cases will be evaluated on a medical-vocational basis. That means claims will be decided by evaluating your residual functional capacity and determining your ability to work (see steps 4 & 5 of the sequential evaluation process).

When evaluating a disability claimant’s ability to work, my experience is that Social Security does not give sufficient consideration to the side effects of the chemotherapy that these patients receive. The chemo has severe side effects that can last for months or years after the chemo stops. Fatigue is typically the greatest side effect, and cognitive issues can be secondary to that fatigue. Peripheral neuropathy, particularly in the feet, is also a common side effect of the chemo. Lastly, an impaired immune system is a byproduct of the chemo, and that can preclude some types of employment.

A person under medical management for multiple myeloma is going to able to function, and some days are better than others. But it is unlikely that this person will be able to sustain employment on a “regular and continuing basis,” as required by Social Security ruling 96-8p, due to the fatigue alone.

To prevail with your claim for Social Security disability benefits, you must make the SSA understand the functional limitations you experience. A lawyer who understands the limitations that come with chemotherapy can be a real help for those with multiple myeloma.

The patient is doing well.

I wish I had a nickel for every time I read that sentence in a progress note for a patient who is applying for disability benefits.

This statement (and similar language) in a patient’s medical records can cause problems in a disability claim, because it is routinely misinterpreted by those making disability determinations (whether or not it is wilfully misinterpreted is a separate issue).

Saying the patient is doing well is relative. A patient who is no longer suicidal may be doing “well.” A patient who is no longer bedridden half the time due to chronic pain may be doing “well.” But neither patient may be able to work, let alone maintain competitive employment on a regular and continuous basis, as required by Social Security ruling 96-8p.

As a disability lawyer, you have to show the context for statements like this in medical records, each and every time. Same for statements like “patient is improving,” or “doing better.” Otherwise, you run the risk of an unfriendly ALJ latching on to those statements in the medical records to support an unfavorable decision.

Unfavorable decisions routinely cite such statements as evidence that the disability claimant’s functional limitations are not as severe as alleged. You have to make it as difficult as possible for an ALJ to do that, by providing context for these statements.

Binder & Binder, a nation-wide firm of advocates for those seeking Social Security disability or Supplemental Security Income benefits, is roughly $40 million in debt and is preparing declare bankruptcy under Chapter 11, according to the Wall Street Journal. 

For those of us who represent clients before the Social Security Administration, this is quite a milestone.

Three years of sharply lower allowance rates have taken their toll. Additionally, backlogs at the hearing offices have increased significantly over the past year, so fewer cases are getting scheduled for hearings. Fewer hearings and lower allowance rates is a nasty combination. Add high overhead and high advertising costs, and you have a recipe for bankruptcy. Here is attorney Charles Hall's take on the Binder situation.

I won't miss Binder. I have heard too many stories from its former clients about the level of representation received. In my opinion, disability claimants are better served by local attorneys who develop a relationship with their clients, have a working relationship with the administrative law judges in their area, and work frequently with the staff at local Social Security offices.

Nevertheless, Binder's apparent collapse is the latest evidence the grim new reality in the world of representing clients before the Social Security Administration. It is a tough time to be representing those claiming Social Security disability benefits. All of us have had to make adjustments in our practice.

For those of you applying for disability benefits, you cannot simply trust the system to do the right thing anymore. Good representation is more important than ever.

12/19/2014 Update: The bankruptcy has been filed. During its Chapter 11 reorganization, Binder projects it will reduce its staff by 60% or so over the next 2 years. 

1/02/2015 Update: More Binder & Binder updates, courtesy of Charles Hall. Apparently Binder has stopped ordering medical records for its clients, which if true, is outrageous. And not surprisingly, a lot of Binder employees will be losing their jobs.

Substantial Gainful Activity (SGA) is the amount of money you can earn through wages and still be eligible for Social Security disability benefits. The SGA amount is important for two classes of people:

A person applying for disability benefits must have (or be expected to have) a period of 12 consecutive months with wages below SGA (subject, of course, to the rules for unsuccessful work attempts and Impairment Related Work Expenses).

A person receiving Title II disability benefits can earn up to the SGA amount and still receive benefits (be sure to also take a look at the trial work rules).

The SGA amount is adjusted each year for inflation. Here is a table showing SGA amounts by year.

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There are several links on the sidebar to Important Topics. If you don’t find the needed information there, you can search this blog, which has over 600 posts on Social Security disability topics. The search box is located near the top of the sidebar.

 

Having a claim for Social Security disability benefits means being out of work (or at the very least, living on a limited income). That often means that a person can no longer afford to live where they were living before, because there is insufficient money to pay the rent or the mortgage.

Some claimants have a spouse who is working, or sufficient resources to stay where they are; others are not so fortunate, and may have to move to another place to live with family or a friend.

Moving to a new place does not matter to the Social Security Administration. It will transfer your pending disability claim to your new jurisdiction. However, a big move can cause problems with proving your disability claim, because you will be ending treatment with doctors who may know you very well. Once treatment has ended, it is very difficult to obtain a medical source statement or opinion letter from your previous doctor.

To lessen the impact of your move on your disability case, get an opinion from your treating doctor(s) before you move. As I said above, if you do not get an opinion while you have an ongoing doctor-patient relationship, it is unlikely you will be able to get one later. So get an opinion while you can, and your disability claim will be stronger.

Once you relocate, re-establish medical care as soon as you can. A big gap in your medical treatment will not help your disability case. Find a new doctor right away.

And be sure to find good local representation for your Social Security disability claim.

 

At the close of a hearing, sometimes post-hearing argument is needed. Social Security's rules allow for oral and/or written post-hearing argument, upon request. See HALLEX section I-2-6-76.

I prefer to submit a post-hearing brief, rather than make a statement at the close of the hearing. I think a brief has far more impact.

The benefit of a post-hearing brief was demonstrated recently when I had testimony from a medical expert (ME) at the hearing that needed to be addressed. I submitted a post hearing brief stating that, given the specific testimony of the ME, the disability claim must be granted under Social Security's rules. The judge agreed, expressly adopting the reasoning from the post hearing brief, and quoting from the brief in the written decision. The case was granted. But it very well might not have been granted without the post hearing brief. 

Don't miss an opportunity to help your client. Write a post-hearing brief when needed.

Columbus Day is one of those stealth federal holidays that does not get the attention of Memorial Day or Labor Day. It is relevant for those of us practicing Social Security disability law in the Region 1 (the New England states), because we have a 5-day rule for new evidence.

The 5 days excludes weekends and holidays. So if you have a hearing during the week following Columbus Day, you must take the holiday into account when figuring the deadline for new evidence.

Our office will be closed for the holiday. But our evidence for the upcoming cases has already been filed.

 

Social Security recently changed its rules regarding videoteleconferencing (VTC), and is now sending notices regarding VTC at an early stage of the hearing level. The new notice requires a decision within 30 whether or not to object to a video hearing. Previously, the objection to VTC was not made until the time a hearing was actually scheduled.

By moving forward the date by which an objection can be made, the issue to VTC or not is separated completely the identity of your judge or the timing of the hearing. Which in my view, makes it much easier to say no to a video hearing.

The SSA likes VTC, which gives it lots of options in terms of providing hearings from central locations. VTC is an effective way to clear cases in hearing offices that have substanital backlogs of pending claims. There are national hearing centers now, where administrative law judges hear cases all day long by video from somewhere else in the country.

I believe SSA expected that moving the date for an objection forward would lead to fewer objections to video hearings. In my view (and others), it will have the opposite effect, and Social Security will receive many more objections to VTC hearings.

I have hearings in Maine and New Hampshire (and occasionally in Massachusetts). I know the local judges, and always prefer and in person hearing. In general, I will be objecting to VTC hearings, because I do not want the possibility of my cases being heard by a distant judge with whom I am not familiar, and who is unfamiliar with our stoic New England claimants.

Some of my clients live in more remote parts of the state, and expect to have a video hearing anyway, so that they do not have to travel as far. For now, I expect that these claims will be kept in the local hearing office, and will not object to these clients having a video hearing. However, if the local hearing office starts farming out video hearings to other hearing offices, I will revisit that issue for future cases. 

I suppose like anything else in law, you need to make a case-by-case determination. But in the abstract, I think objecting to a VTC hearing under this new system is a good idea.