If you are in a lawsuit, which type of lawyer would you rather have?
A) the lawyer who does a bit of everything, or
B) the lawyer regularly handles your type of case?
Bottom Line: It is imperative that you retain a disability lawyer well in advance of the hearing who knows how to prep you to testify properly. And not just any disability attorney, but one who handles the majority of his or her cases in this area of specialization, and regularly appears before Social Security Judges in your jurisdiction. Remember, a good attorney knows the law, but an excellent one knows the Judge, meaning he or she understands the type of proof expected to win before the Judge assigned to your case.
Sunday, March 28, 2010
Saturday, March 27, 2010
Disabled really means "unable to perform ANY job"
In order to be found "disabled" the general rule is you need to establish that there are no occupations existing in significant numbers in the national economy that you are able to perform with your limitations. Social Security Disability is a very high standard of disability, essentially you must prove you are 100% disabled and unable to perform any job whatsoever. Its not like State Disability or workers compensation, which pay benefits if you are unable to perform your past job. In Social Security, if you are able to do a simple, menial, minimum wage job, you will generally be found "Not Disabled." However, you must also be able to perform the job on a sustained "regular and continuous basis," which means 8 hours per day, 5 days per week.
Witnesses Are Usually Dangerous
My law firm's motto is We Win The Tough Ones, and today I had a tough one. I had to prove the client was disabled prior to December 31, 2006, but she didn't see any doctors from 2005 to early 2008. Lack of medical records in this situation normally results in a denial of benefits. To make a long story short, I was able to establish the client's disability with a retrospective opinion from her current treating physician, and with the testimony of the client and her son.
Now normally I avoid using witnesses other than the client, because they can damage an otherwise good case. In this particular case, I felt it was necessary because of the lack of medical evidence.
People that try to go to a hearing without an attorney usually don't understand that having friends or relatives testify can hurt the case, since it seems logical that the more people stating what the claimant's limitations are, the better. However, a lot of Judges will use the witnesses to create inconsistencies in the record, which ultimately will be used to find that the claimant is NOT credible (not telling the truth).
For example, say a 50 year old woman decides to have her son and daughter testify at the hearing. The son and daughter are kept out of the room when Mom testifies, which the Judge does so they aren't able to just listen to what Mom says and repeat it. When Mom testifies, she reports to the judge that her pain is so bad she has to lie down for 20-30 minutes about every 4 hours throughout the day. When the daughter comes in the Judge asks, "does your mother ever lie down due to her pain?" The daughter replies, "Oh yes, in fact she lies down nearly all the time, and at least 5 days a week never even gets out of bed." When the son is asked if Mom ever lies down due to pain he says, "Yeah, I think there are some days when she has to take a nap." So now we have taken Mom's fairly plausible response and made it inconsistent with the record. Its possible Mom was minimizing her need to lie down, and the daughter was exaggerating in an attempt to "convince" the Judge to approve Mom, and maybe the son really doesn't know what Mom's day to day problems are. Unfortunately, the Judge is liable to find everybody not credible and deny the case.
This is just one example of why I generally would rather build the case around strong medical evidence and at the hearing have only the claimant testify. But, as with my case today, sometimes you have to do it....but be careful!
By the way...the website is now named WE WIN THE TOUGH ONES DOT COM
Now normally I avoid using witnesses other than the client, because they can damage an otherwise good case. In this particular case, I felt it was necessary because of the lack of medical evidence.
People that try to go to a hearing without an attorney usually don't understand that having friends or relatives testify can hurt the case, since it seems logical that the more people stating what the claimant's limitations are, the better. However, a lot of Judges will use the witnesses to create inconsistencies in the record, which ultimately will be used to find that the claimant is NOT credible (not telling the truth).
For example, say a 50 year old woman decides to have her son and daughter testify at the hearing. The son and daughter are kept out of the room when Mom testifies, which the Judge does so they aren't able to just listen to what Mom says and repeat it. When Mom testifies, she reports to the judge that her pain is so bad she has to lie down for 20-30 minutes about every 4 hours throughout the day. When the daughter comes in the Judge asks, "does your mother ever lie down due to her pain?" The daughter replies, "Oh yes, in fact she lies down nearly all the time, and at least 5 days a week never even gets out of bed." When the son is asked if Mom ever lies down due to pain he says, "Yeah, I think there are some days when she has to take a nap." So now we have taken Mom's fairly plausible response and made it inconsistent with the record. Its possible Mom was minimizing her need to lie down, and the daughter was exaggerating in an attempt to "convince" the Judge to approve Mom, and maybe the son really doesn't know what Mom's day to day problems are. Unfortunately, the Judge is liable to find everybody not credible and deny the case.
This is just one example of why I generally would rather build the case around strong medical evidence and at the hearing have only the claimant testify. But, as with my case today, sometimes you have to do it....but be careful!
By the way...the website is now named WE WIN THE TOUGH ONES DOT COM
Tuesday, March 23, 2010
Regular Treatment is a MUST!
One of the basic things that can lead to denial of a claim is failure to see a physician on a regular basis. Administrative Law Judges use this as a basis for Denying claims all the time. So while you are going through the process of getting denied benefits, appealing, probably getting denied again, requesting a hearing, and waiting for your hearing (the official wait time in Sacramento, CA from the date you file for your hearing is over one year, actually 405 days and the entire wait from the time you originally file your application can easily be 2 or more years), it is mandatory that you are receiving regular treatment.
I like a client to see the same physician on a monthly basis. Avoid gaps in treatment! If you also have a mental impairment (depression, anxiety, etc.) that contributes to or is the primary basis for your disability, regular treatment with a psychologist or psychiatrist is extremely helpful in getting your claim approved. The reality is that many Judges look at the failure to get regular treatment as evidence that your problems are not as severe as you say they are. Same with the failure to see a psychiatrist or psychologist.
Also, in general, the Administrative Law Judge will give more weight to the opinion of a medical doctor (M.D.) than to a nurse practitioner, physician's assistant or chiropractor. So wherever possible see the M.D.! On the issue of how limiting your mental impairments are, the ALJ will give more weight to psychiatrists (M.D.) or psychologists (Ph.D.) than to counselors or social workers.
What I've stated above is very general, but the point is that you need to have sufficient evidence to back up your claim. Start getting the regular treatment as soon as possible, or you run the risk of being flat out denied or at a minimum losing out on past due benefits.
Obviously, there are situations where people are unable to see a Medical Doctor or psychiatrist, maybe due to the type of insurance or lack of insurance, but these situations should definitely be addressed with an attorney early on after filing your claim. Call me for a free consult, and we can figure out what needs to happen to get you approved! 1-800-404-4458.
HADLEY & FRAULOB SOCIAL SECURITY & SSI ATTORNEY
I like a client to see the same physician on a monthly basis. Avoid gaps in treatment! If you also have a mental impairment (depression, anxiety, etc.) that contributes to or is the primary basis for your disability, regular treatment with a psychologist or psychiatrist is extremely helpful in getting your claim approved. The reality is that many Judges look at the failure to get regular treatment as evidence that your problems are not as severe as you say they are. Same with the failure to see a psychiatrist or psychologist.
Also, in general, the Administrative Law Judge will give more weight to the opinion of a medical doctor (M.D.) than to a nurse practitioner, physician's assistant or chiropractor. So wherever possible see the M.D.! On the issue of how limiting your mental impairments are, the ALJ will give more weight to psychiatrists (M.D.) or psychologists (Ph.D.) than to counselors or social workers.
What I've stated above is very general, but the point is that you need to have sufficient evidence to back up your claim. Start getting the regular treatment as soon as possible, or you run the risk of being flat out denied or at a minimum losing out on past due benefits.
Obviously, there are situations where people are unable to see a Medical Doctor or psychiatrist, maybe due to the type of insurance or lack of insurance, but these situations should definitely be addressed with an attorney early on after filing your claim. Call me for a free consult, and we can figure out what needs to happen to get you approved! 1-800-404-4458.
HADLEY & FRAULOB SOCIAL SECURITY & SSI ATTORNEY
New Website! Social Security Law Online
NEW WEBSITE - Social Security Law Online.com The new Hadley & Fraulob Social Security Disability and SSI website is active!!! So now I have a reason to start blogging some TIPS to help everybody successfully get through the horrible process of getting approved!
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