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A reader of this site had this question: should i still appeal my ssdi denial if i did not meet the sga requirement?

The answer is: probably not, but maybe yes. Let's take a look at each part of the answer.

Probably not: If you are working above the level of substantial gainful activity (SGA), you are not entitled to Social Security disability benefits. This determination is step 1 of Social Security's 5-step sequential evaluation process. So if you are an employee earning more than the SGA amount, you are not disabled under Social Security's rules. Do not appeal the denial of SSDI benefits.

Maybe yes: You may want to get more information. Social Security SGA can be complicated, and there are exceptions to the SGA rules. An unsuccessful work attempt is not SGA. Impairment related work expenses must also be considered. And if you are self-employed, there are three different tests for SGA. See 20 C.F.R. 404.1575.

If the SSA did not consider these factors correctly, then you should appeal your denial of Social Security disability benefits.

An attorney specializing in Social Security disability law can help you.

When talking with Social Security disability claimants, I often hear a statement like "I can't work because I have been diagnosed with bipolar disorder" (or degenerative disc disease, or fibromyalgia). The claimant makes the statement like the matter is settled. The reasoning seems to be: since there is a doctor's diagnosis of my impairment, my disability claim should be granted.

Unfortunately, that reasoning is not at all correct. It is not the diagnosis of the impairment but the severity of the impairment that matters in a Social Security disability claim. And I explain this to clients every day.

The diagnosis is just the beginning. A good beginning to be sure, since the diagnosis satisfies the medically determinable requirement in a Social Security disability claim. But the important thing is the severity of your impairment. How much does it affect your functionality? How does it affect your ability to work? These are the important questions in a Social Security disability case.

What is missing from almost every denied Social Security disability claim is evidence establishing a claimant's functional limitations. A medical diagnosis alone does not establish any functional limitations. And unfortunately, a patient's medical records usually have little information regarding functional limitations (medical records are created and maintained for medical providers to track a patient's medical care, not to establish disability).

So remember, it's not the diagnosis but the severity of the impairment that matters. And a Social Security disability lawyer spends a great deal of time trying to obtain evidence – often a medical source statement - that will establish a claimant's functional limitations.

Charles Hall, Esq. knows a thing or two about running a Social Security disability law practice. He is a past president of the National Association of Social Security Claimants’ Representatives (NOSSCR), and he publishes a widely-read blog, Social Security News.

In a recent blog post entitled New Kid On The Block, Mr. Hall addresses the latest “national” law firm to seek Social Security disability clients. Mr. Hall writes:

There is also the issue that affects any outfit which tries to represent Social Security claimants nationwide — how do you represent people who will be having hearings all across the United States? It would take hundreds of offices and thousands of employees all across the country to do this properly. No entity representing Social Security disability claimants has that kind of network. So what does the Cochran Firm do, work through local attorneys and non-attorneys, which means that the Cochran Firm exists for little more than advertising purposes, or try to deal with the claimant only over the telephone until the day of the hearing and then parachute in someone to represent the claimant at the hearing, which is expensive for the firm and not too satisfactory for the claimant? Either way, a “national” firm representing Social Security disability claimants has a lot of problems.

I completely agree. I think that the business model of a “national” Social Security disability firm makes for an experience that is “not too satisfactory for the claimant,” to borrow the words of Mr. Hall.

I believe local representation is best. You certainly don’t have to be a national firm to have case management software or trained staff. And I have written before about the importance of knowing the administrative law judge who will decide your case.

Local knowledge also means knowing the staff at the Social Security local office and hearing office. Over the years we build relationships with these folks, and those relationships benefit our clients. That local knowledge is hard to come by when you have to fly in to attend the hearing.

 

This blog is one year old today.

The blog started quite modestly on May 10, 2008. Since then this site has grown substantially, along with my Social Security disability law practice.

It seems like it has been much longer than just one year. We have covered a lot of ground. We have defined some terms, told a few stories, and always highlighted the legal issues that accompany Social Security disability claims. I have preached about the importance of knowing your judge and writing a hearing memorandum. And along the way, we made the 11% ALJ infamous.

I hope the site is a useful resource for those searching for answers for their own disability claims, as well as for those representing clients before the Social Security Administration. The sidebar is filled with helpful links, as well as my latest twitter updates.

Lastly, through this blog I have gotten to know colleagues and claimants around the country. And that has been the most rewarding of all.

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One of the items an administrative law judge may consider when deciding your disability case is your prior work record. A judge will look to see whether or not you were steadlily employed prior to applying for disability, and how much you were earning. A disability claimant with a twenty year work record with good earnings tends to be looked at more favorably than a person who has been chronically underemployed.

I had a recent Social Security disability hearing in Manchester, NH for a claimant with an outstanding prior work record. 40 years of earnings. 20+ years making over $80,000. I just marvelled at it.

This case had everything that a properly prepared disability claim file should have, including up-to-date medical records and a medical source statement from each of the claimant's medical providers. There was a clear medical diagnosis and unrebutted medical opinion regarding the claimant's resulting functional limitations. Despite all that, it was the claimant's prior work record that provided the most persuasive piece of evidence in the claim file. 

Continue Reading An Outstanding Prior Work Record

I had a Social Security disability hearing today for a claimant suffering from chronic fatigue syndrome secondary to viral meningitis and chronic lymphocytic leukemia.

The hearing went well, but its aftermath was an emotional experience for me. I did not anticipate my response to attending a hearing on May 7th for a claimant with leukemia.

My younger brother Galen died from leukemia. Today, May 7th, is his birthday. The grief from that unfathomable loss has been my companion all day since the hearing.

Happy birthday, Galen. I miss you.

Well you just knew it was coming.

The Portland, Maine ODAR is now ranked #1 in the country in the latest national ranking report, with an average processing time of just 261 days.

Processing time runs from the day the hearing office receives a hearing request to the day a decision is issued. Since the hearing office gives 75 days notice when scheduling a disability hearing, that means less than 6 months elapses from when the hearing office receives a hearing request until a hearing date is scheduled. These times are consistent with my recent experience with Social Security disability claims at the Portland hearing office.

While this excellent performance reflects well on the U.S. administrative law judges that hear and decide the disability claims, the real story is behind the scenes. It requires a tremendous staff effort at the hearing office to get so many claims ready for hearing in such a short time (and then to get the decisions written afterwards).

Congratulations to Philip Smith, the Portland Maine Hearing Office Director, to the Portland administrative law judges (including our visiting judge from the Hartford, CT ODAR), and to the entire staff at the Portland ODAR for this best in the country performance. You just can't argue with being #1! It is a remarkable achievement.

 

If you have received a denial letter from Social Security, you need to appeal that denial within 60 days. Often getting the denial letter in the mail sparks the search for a Social Security lawyer to help with your claim. But do not lose sight of the 60 day deadline.

The appeal period is always 60 days, at every level of the review process. Whether you receive an initial determination, a reconsideration denial, or an administrative law judge decision, your deadline for an appeal is 60 days from receipt of the denial letter. The SSA will presume that you received the denial 5 days after the date of the letter, so you have an extra 5 days if needed.

But there is no reason to wait. Appeal that denial right away, and get to the next step of the process. Don't give up! And don't waste valuable time trying to make sense of the language in the Explanation of Determination – those explanations are often wrong and sometimes misleading.

I usually stick to practical advice, here at the Social Security Disability Lawyer blog. However, I read an interesting post, published recently by Charles Hall, Esq. on his blog Social Security News, stating that the issue of substantial gainful activity (SGA) has become just too complicated. Mr. Hall says:

Basically, if one is engaging in SGA, one cannot be considered disabled, but SGA is a term of art. Work may not be SGA if low earnings, unsuccessful work attempts, made work, subsidized employment, impairment related work expenses, trial work periods, etc. are taken into consideration. And don’t get me started on self-employment as SGA or the effect of blindness on SGA.

There has been a consensus for some years that the whole concept of SGA needs a fresh look. One of the more common themes is that SGA should be a ramp instead of a cliff. …

One suggestion: The biggest problem now is that SGA is just too complicated. Claimants have no idea how it works. Even many Social Security employees who should understand how SGA works, don’t.

SGA is certainly a cliff. If you are over the monthly SGA amount by even $1, you have problems with your claim.

I also agree with the assessment that SGA is too complicated. There are some very important exceptions and adjustments to the $980 per month SGA amount, including the unsuccessful work attempt. A thorough knowledge of these complicated SGA rules is critical, because SGA exceptions can make the difference between winning and losing a claim (the cliff).

This is an area where an attorney who specializes in Social Security disability claims can really help. Now that’s practical advice.

Social Security Adult Listing 1.04A is often met for claimants with severe back pain, when there is an MRI or CT scan showing impingement of the nerve root or spinal cord. The practical difficulty with the  listing is that the other findings necessary to meet the listing, such as a positive straight leg raising test or muscle weakness, are not necessarily documented in the medical record.

It is very frustrating to have the telltale MRI in hand but not meet the listing due to the lack of documentation of the other criteria of the listing. Further, a treating  doctor's opinion that the listing is met is routinely disregarded at DDS, since the finding of a listing being met is reserved to the Commissioner. What you need is findings that all the components of the listing are met, somewhere in the medical records where they can be found.

So I have developed a Listing 1.04A_worksheet. The worksheet contains all the components of the listing. I give the worksheet to the patient to take to the next doctor visit. The doctor completes the worksheet right then, and (hopefully) also enters the requisite findings into the progress notes. When I submit the worksheet and the progress notes and the MRI to Social Securitiy, the listing should be met.

I'll let you know how it works.