SSDI SSDI SSI SSDI SSDI SSI SSDI SSI SSDI SSI. The Utah Social Security Disabilty. Handbook. Cutting through the Red Tape to Your Benefits

Transcription

1 SSI IAL APP HEARING HEARING SSDI DISABILITY SSDI INITIAL APP SSI ALJ & VE COVERAGE RECON RECON SSI HEARING ALJ ALJ & & VE VE RECON SSDI The Utah Social Security Disabilty SSDI SSI SSDI SSI SSDI SSI Handbook ALJ & VE Cutting through the Red Tape to Your Benefits initial APP INITIAL A SS Jake J. Lee, Attorney at Law

2 THE UTAH SOCIAL SECURITY DISABILITY HANDBOOK Cutting through the Red Tape to Your Benefits Jake J. Lee Attorney at Law

3 Copyright Copyright by D. Russell Hymas Jake & Kenneth J. Lee L. Christensen All rights reserved. No part of of this book may may be be used used or or re- reproduced in any in any manner manner whatsoever whatsoever without without written written permission of the of the authors. permission author. Printed in in the the United States of America. ISBN ISBN Walubi Graphics Salt Lake City, Utah _BikeBook_ indd 2 8/1/13 12:09 PM

4 Security was attained in earlier days through the interdependence of members of families upon each other and of families within a small community upon each other. The complexities of great communities and of organized industry make less real these simple means of security. Therefore, we are compelled to employ the active interest of the nation as a whole through government in order to encourage a greater security for each individual who composes it... This seeking for greater measure of [well being] and happiness does not indicate a change in values. It is rather a return to values lost in the course of our economic development and expansion. Franklin D. Roosevelt Message of the President to Congress June 8, 1934 Social Security... is not a dole or a device for giving everybody something for nothing. True Social Security must consist of rights which are earned rights guaranteed by the law of the land. Harry S. Truman Statement by the President on the 10th Anniversary of the Social Security Act August 13, 1945

5 Legal Disclaimer I cannot give legal advice in this book. The information in this book does not make up for or replace legal advice. The suggestions and the warnings I provide in this book do not substitute for consulting with or hiring an attorney. Please remember that I do not represent you. I cannot give you legal advice unless and until you hire me, and I have agreed in writing to accept your case.

6 Table of Contents Why did I write this book? Chapter 1: How did Social Security begin? Chapter 2: Applying for Social Security disability benefits Chapter 3: What is the disability program? Chapter 4: What has to be proven to win your case? Chapter 5: What is the claims process? Chapter 6: Why are claims denied? Chapter 7: The hearing before an Administrative Law Judge Chapter 8: The secret weapon Chapter 9: What the SSA really wants to know Chapter 10: Exaggerating your disability Chapter 11: Exaggerating your past work a lethal mistake Chapter 12: Which benefits will you receive, and for how long? Chapter 13: The truth about attorneys fees and costs Chapter 14: What to think about next Chapter 15: The key to hiring an attorney Chapter 16: Delay is your greatest enemy Glossary of Social Security legal terms Directions to our offices

7 SUMMIT DISABILITY LAW GROUP Why Did I Write This Book? When I was a law student, I interned at a Social Security disabilty law firm. One day, a woman who had just been diagnosed with Huntington s disease came in for a Social Security consultation. As I was explaining the claims process I looked at her and realized she wasn t hearing anything I was saying. Where I expected to see comprehension, her face instead read: FEAR. Further discussion made it obvious that all she could process was that life as she knew it was over. Watching this woman try to wrap her mind around her situation made me appreciate that disability applicants often have much to deal with. Trying to navigate the red tape of the Social Security Administration without help could stop them from accessing benefits essential to their livelihood. I noticed early on in my internship that when people got legal help, they were able to begin dealing with the medical challenges in their lives instead of being defeated by them. Having a lawyer helping them navigate the procedural and bureaucratic claims process made all the difference. If you re reading this book, it may be because you or a loved one is thinking about applying for Social Security disability benefits. You could be struggling with a disability that keeps you from living the life that you re used to. The inability to work affects both you and your family in many ways. You may not know how you will pay your bills and receive medical treatment, or what your inability to work will do to your role as a provider. You might even worry about the effect your disability could have on your marriage. Many disabled people don t apply for benefits because they have worked their whole lives and don t want to take handouts from the government. Social Security disability may seem like a welfare program to them. However, nothing could be further from the truth. 1

8 THE UTAH SOCIAL SECURITY DISABILITY Paying into the Social Security system through your many years of work essentially purchases insurance for catastrophic events. The Social Security withholdings from your paychecks fund your eligibility for Social Security disability benefits if you become unable to work due to illness or injury. Drawing on these benefits is not taking a handout. It is a return on funds given to the government over your working lifetime. The Social Security system provides financial and medical benefits. Those benefits are a backup plan for you and your family so you can have a source of income while you are disabled. With your benefits, you can maintain your self-respect and get the medical treatment you need. The purpose of this book is to clear up misconceptions about the Social Security disability system and help people avoid the pitfalls of making a claim. This book will explain: The myths that keep people from applying for disability benefits The Social Security disability system The claims process and how long it takes The reasons you may be denied, and how to overcome them Whether or not you need an attorney How to find the right attorney and how that attorney gets paid And much, much more It is my hope that during this challenging time in your life, this book will give you guidance and peace of mind. Jake J. Lee 2

9 SUMMIT DISABILITY LAW GROUP Chapter 1 How Did Social Security Disability Begin? Most people are familiar with the retirement program of the Social Security Administration (SSA). However, the disability program administered by the SSA is generally less known and poorly understood. The Social Security retirement program was created by President Franklin D. Roosevelt in 1935 in response to the pressure of the Great Depression. During the first three years of the Depression, the wealth of the nation was cut in half. The combined efforts of traditional economic security (assets, labor, family, and voluntary charity) were failing to support the heavy weight of so many unemployed individuals. In response to this crisis, Congress passed public relief programs in 1932 and But President Roosevelt recognized these were only temporary solutions and formed a committee to research long-term economic security solutions. In 1935 he proposed the committee s reccomendation for a national insurance system where workers would pay into the system in good times, and draw upon the system in times of need. Despite voices calling for this new program to provide medical benefits to the disabled, what became the 1935 Social Security Act did not include a disability benefits program. It only created unemployment insurance, old-age assistance, aid to dependent children, and grants to the states to provide various forms of medical care. However, the omission was not a total loss. The 1935 bill ultimately laid the foundation for the future of a disability program. 3

10 THE UTAH SOCIAL SECURITY DISABILITY Little changed in the Social Security system after the passage of the 1935 bill. This was largely because national policy was centered on winning the Second World War, and because public relief programs paid higher benefits and reached more people than Social Security between 1935 and However, the end of the war brought refocused attention to disability assistance. Wartime conditions had pushed rehabilitation medicine to maturity, and the Congressional Ways and Means Committee began holding hearings on Social Security issues in The combination of these events allowed the disability-assistance debate to resurface. Questions about aid to disabled workers converged on whether the program would primarily provide rehabilitation assistance to help disabled workers get back on their feet or a cash benefit that would allow them to retire. Many also debated how the program should be administered. The hearings resulted in the passage of an expanded Social Security Act in 1950, but due to unsettled debate about the type of assistance that should be offered, the bill again omitted disability benefits. After further investigation and debate, Social Security officials eventually succeeded in persuading the Ways and Means Committee that while rehabilitation was important, it did not replace the need for cash benefits. With consensus on these issues, the committee formally reccomended disability benefits to Congress for the first time. In 1956, a series of compromises lent sufficient bipartisan support for Congress to add disability benefits to the Social Security Act in a program called Social Security Disability Insurance. The evolution of the bill from 1956 to the present 4

11 SUMMIT DISABILITY LAW GROUP has resulted in medical and cash benefits to all adults who can prove that the mental and/or physical impairments that keep them from working satisfy the legal definition of disabled. 1 Notes 1. See Soc. Sec. Admin. Office of Policy, Social Security and the D in OASDI: The History of a Federal Program Insuring Earners Against Disability (2006), available at ssa.gov/policy/docs/ssb/v66n3/v66n3p1.html; Hearing on Challenges Facing Social Security Disability Programs in the 21st Century Before Subcommittee on Soc. Sec. of the H. Comm. on Ways and Means, 106th Cong (2000) (Statement of Edward D. Berkowitz, Chair, Dept. of Hist., George Washington University), edberkdibhtml; Historical Development, Soc. Sec. Admin., ssa.gov/history/pdf/histdev.pdf (last visited 07/15/2014). 5

12 THE UTAH SOCIAL SECURITY DISABILITY Chapter 2 Applying for Social Security Disability Benefits is NOT the Same Thing as Suing Someone Applying for disability usually involves a lawyer. As a result, many people hesitate to apply because they think they might be suing someone. A Social Security disability claim is NOT a lawsuit. When you apply for disability benefits you are not suing your employer or the federal government. You are NOT suing anyone. You are making a claim for benefits, much like an insurance claim. You become eligible to make a claim for benefits by earning coverage during your working life, one paycheck at a time. However, there are procedural obstacles to receiving benefits that could make the process seem like a lawsuit. These obstacles will be discussed in the following chapters of this book. 6

13 SUMMIT DISABILITY LAW GROUP Chapter 3 What is the Disability Program? There are several types of disability benefits, but only two are administered by the Social Security Administration: Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). Long-term and short-term disability are often confused with the Social Security disability programs. However, they are not the same. Long-and shortterm disability are two different types of insurance policies, much like healthcare coverage. They are either provided as a benefit through your employer, or they are offered for individual purchase. Supplemental Security Income (SSI) Supplemental Security Income (SSI) is a Social Securitybased program that can be accessed when you can t work and have limited resources. The program focuses on your assets. To be eligible, you cannot have more than $2,000 in personal assets if you are single, or $3,000 in combined assets if you are married. When determing the value of your assests, the Social Security Administration (SSA) looks at bank accounts, investments, and property. Exceptions are made for assets like a house, the land it is on, household goods, one car, and personal effects such as wedding rings. If your assets exceed the monetary cap, you cannot qualify for SSI. Social Security Disability Insurance (SSDI) Social Security Disability Insurance (SSDI) is a Social Security-based program that focuses on how much money you have paid into the system throughout your working life. 7

14 THE UTAH SOCIAL SECURITY DISABILITY The amount of benefits you will be awarded depends on how much money you have contributed over the years. Funding for SSDI comes from every working American. Look at your last paycheck and notice the FICA (Federal Insurance Contributions Act) tax withholdings. These withholdings fund Social Security disability and retirement benefits. Disability benefits were designed to provide cash and medical assistance for people unable to work during their pre-retirement years due to physical or mental disability. How Long Do I Have to Pay into the System before I Become Eligible for Benefits? Each year is divided into four calendar quarters (January- March, April-June, July-September, October-December). You receive one quarter of coverage for every quarter you pay into the Social Security system. You must have earned enough quarters of coverage to trigger disability insurance benefits. Generally, if you are over 30 years of age, you need to have paid into the system for 20 out of the last 40 quarters to be insured, or 5 out of the last 10 years. Once you obtain insured status, you will remain insured for five years after you stop working. However, the number of quarters required depends on your age at the time you become sufficiently disabled that you can no longer work. An attorney can help you locate the requirement for your age group. You qualify for disability insurance by simply working consistently and having Social Security withheld from each paycheck for the required period of time. The SSDI program makes your work history an investment that can pay dividends if needed. 8

15 SUMMIT DISABILITY LAW GROUP Chapter 4 What Must be Proven to Win Your Case? The most important thing to understand about applying for Social Security disability benefits is the fact that although you may have paid into the system for the required period of time, you are not automatically entitled to benefits. You must be able to prove your condition is severe enough to comply with the legal definition of disability in order to receive benefits. You definitely have a story to tell about why you need disability benefits: a story about how your life has changed as a result of disability, and how plans for your life have changed because of an unexpected medical condition. However, the Social Security Administration (SSA) does not deem people disabled based on just these issues. The key is to tell your story within the framework of what the SSA calls the Five- Step Sequential Evaluation. The Five-Step Sequential Evaluation is a test used by the SSA to determine whether you are sufficiently disabled for either or both of the two types of Social Security disability benefits. The evaluation is essentially five questions: 1. Are you unable to engage in substantially gainful activity? 2. Do you have a severe impairment? 3. Do you meet a medical listing? 4. Can you go back to the lightest job you held in the last 15 years? 5. Is there a job in the national economy you could do? 9

16 THE UTAH SOCIAL SECURITY DISABILITY 1. Are you unable to engage in substantially gainful activity? Inability to engage in substantially gainful activity (SGA) means that you have a disability that will keep you from earning more than $1,070 a month for at least 12 months. SGA is defined as earning $1,070 a month. Although this number increases each year with inflation, $1,070 is the defined amount for Move on to the next step if (1) you have not worked, (2) you made less than $1,070, and expect either (1) or (2) to last for at least 12 months. 2. Do you have a severe impairment? The severity of your impairment is determined by objective medical testing. The SSA won t just accept the opinion of a doctor. They want the doctor to perform objective diagnostic tests (MRIs, blood tests, etc.) that prove that your impairment will keep you from doing basic work-related activities. Move on to step three once you receive objective proof from medical tests. 3. Do you meet a medical listing? The SSA will find you automatically disabled and award you benefits if you meet a medical listing. The medical listings come from a disability catalogue called the Listing of Impairments that categorizes medical problems by body system (digestive system, nervous system, etc.). As an example, suppose you have a herniated disk. The SSA will search the musculoskeletal section of the Listing of Impairments for herniated disk. Every listing in the book 10

17 SUMMIT DISABILITY LAW GROUP contains specific criteria that must be present in your medical records to show you meet the specific listing. If all the criteria are present, you will automatically be awarded benefits. Why doesn t everyone meet a medical listing? Unfortunately, doctors don t attend medical school to learn how to write chart notes or medical records for the SSA. As a result, very few people ever meet a listing because their medical records are rarely detailed enough to document each one of the required criteria. If you don t meet a medical listing, you won t necessarily be disqualified. Instead, the SSA will move on to steps four and five. 4. Can you go back to lightest job you held in the last 15 years? At this step, you will be asked many questions about your job history and the duties at each place you have worked during the past 15 years. You must prove that your current restrictions and limitations prevent you from performing the lightest job you have held in the last 15 years. The SSA classifies work into exertional categories: heavy, medium, light, and sedentary. If your doctor has indicated that you can perform at an exertional level of sedentary or greater, and your lightest past job was considered sedentary or light, your claim will be denied because the SSA will assume that you are capable of returning to that type of job. To win, you must prove your current exertional level is less than sedentary. The SSA uses a book called the Dictionary of Occupational Titles (DOT) to categorize each job. The DOT contains a work 11

18 THE UTAH SOCIAL SECURITY DISABILITY description, required skill level, and the required exertional level for each job in the national economy. Additionally, the SSA takes into consideration your testimony about the duties performed at your lightest job. They will align the DOT information and your testimony to find the correct categorization for your work. Proceed to step five if you are found unable to return to your lightest job at step four. 5. Is there a job in the national economy you can do? This question refers to jobs in the national economy you could perform with your restrictions. The jobs considered will depend on your age, education, and the skills acquired from past work. The SSA is not asking if there is an actual job near your home, in the state, or a job that someone would be willing to hire you to perform. The question is only whether a job exists in significant numbers somewhere in the country. At Social Security hearings, there are typically many suggested jobs that someone could potentially perform. One example is the Walmart greeter. This is a job that no longer exists in many places, but is still present in the DOT. In order to receive benefits, you have to be able to show that you could not do this job or any other suggested at the hearing. If all five of these questions are answered appropriately and you provide sufficient evidence for your answers, you may be awarded benefits. 12

19 SUMMIT DISABILITY LAW GROUP The 5 Step Sequential Evaluation Claim is Denied No No Yes Yes Step 1 Are you engaged in substantial gainful activity? Yes Step 2 Do you have a severe impairment? Yes Step 3 Does your medical condition meet the criteria in the Social Security Administration s Listing of Impairments? No Step 4 Can you go back to work at the lightest job you peformed in the last 15 years? No Step 5 Can you perform other work that exists in the national economy in significant numbers in view of your age, education, and transferable skills? Yes No Benefits Granted 13

20 THE UTAH SOCIAL SECURITY DISABILITY Chapter 5 What is the Claims Process? The claims process is comprised of three stages: (1) Initial Application (2) Request for Reconsideration (3) Request for a Hearing before an Administrative Law Judge The majority of cases resolve in these three stages. If your claim is not resolved after these three stages, there is a possibility that your case will go to the Appeals Council and eventually to federal court. Initial Application At the Initial Application stage, you will spend a significant amount of time completing forms. The disability application asks for general information including, but not limited to: marital status, family status, income earned for the last few years, medical providers, dates of medical visits, tests performed, current medications, and work history for the last 15 years. The Social Security Administration (SSA) wants a complete picture of what is happening with you medically and vocationally. Once the entire application is completed, it will be submitted to the Utah Department of Disability Services (DDS). Typically, you will receive a response within days. During that waiting period, DDS will collect your medical records, send you more forms to complete, and begin reviewing your file as a whole. National averages show approximately 67 percent 1 of applicants are denied at this 14

21 SUMMIT DISABILITY LAW GROUP stage. Don t give up if you are denied. You will be given a chance to appeal by filing a Request for Reconsideration. Request for Reconsideration The Request for Reconsideration is a one-form request. As part of the request, you will be asked to provide updated information about your medical condition, health care providers, and work history. The Utah DDS will update your medical records and take another look at your file. Within days of the request, you will typically receive an answer. About 89 percent 2 of people are denied again. If you are denied again, you will have another chance to appeal by filing a Request for a Hearing before an Administrative Law Judge (ALJ). Hearing before an Administrative Law Judge At the hearing stage, your claim finally gets out of DDS and goes to the Office of Disability Adjudication and Review (ODAR). Unfortnately, in Utah you might wait 12 to 16 months before being granted a hearing. There is nothing you can do to speed up the process unless you qualify for a dire-need expedite (loss of access to food, medical care, or shelter). However, the greatest chance of being awarded benefits occurs during the hearing stage, where the denial rate drops to 32 percent. 3 During the waiting period, your job is to continue seeking necessary treatment. Gaps in treatment look bad and decrease the legitimacy of your claim. Once the date of the hearing arrives, the participating parties will include you and your attorney, a judge, and either 15

22 THE UTAH SOCIAL SECURITY DISABILITY a Vocational Evaluator (VE) or a medical expert. The VE is a vocational (jobs) expert who will review your file and offer testimony about whether it is possible for you to return to your past work or to another job in the national economy that would accommodate your disability. The judge will usually begin the hearing by asking you a series of questions. He will ask about your work and medical history. He will also ask you to explain how your conditions keep you from performing basic work-related activities. Once the judge asks his questions and allows your attorney to question you, he will ask the VE a series of questions. The first question will most likely be, Can the applicant return to the lightest job held in the last 15 years? Based on your current restrictions and limitations, the VE will render an opinion that considers your testimony, your previous lightest job description, and the exertional requirements given in the Dictionary of Occupational Titles (DOT). If the VE says you can return to one of your previous jobs, your claim will be denied. If the VE says you cannot return to a previous job, the judge will proceed to his next question. The next question will likely be hypothetical and center on a person with your restrictions, limitations, age, education, and work skills. The judge will ask if there is a job in the national economy that this hypothetical person (you) can do. The VE will then offer his opinion. If he says there is not a job in the national economy you can do, you win. If he says there is a job you could perform, he will list the job(s). At this point, your attorney (if you have one) or you (if you don t) will have the opportunity to cross examine the VE. You must show existing restrictions that were not considered in the hypothetical case that prevent you from doing the 16

23 SUMMIT DISABILITY LAW GROUP specific jobs the VE listed. The restrictions and limitations you add to the hypothetical case must be found in your medical records. Unfortunately, these suggested additions are often not detailed enough in the records for the judge to add them to the hypothetical case. If you still cannot prove your inability to work despite all of your additional information, the ALJ will deny your claim. Right now you may be thinking, It s impossible. The cards are stacked against me. I can t win. The claims process of accessing disability benefits is intimidating and complex. For this reason, we guide our clients through the entire process. We work with your doctors to make sure your medical records clearly and accurately document your conditions and resulting limitations. We help you make sense out of the forms and make you aware of the preparatory information you will need in order to adequately complete them. We prepare you for the hearing and the questions the judge will ask you. We also manage the VE section of the hearing. Our goal is to help you move past denial to the benefits you deserve. Millions of working Americans pay into the Social Security fund in order to enjoy the benefits of coverage for retirement and catastrophic injury. The SSA guards the fund for people who can prove they deserve it. One way you can show you deserve the funds is to learn how to communicate with the SSA. Don t lose hope. Just keep reading. 17

24 THE UTAH SOCIAL SECURITY DISABILITY Notes 1. SSA, Office of Disability Program Management Information, Fiscal Year 2013 Workload Data Disability Appeals Table 3.26, in Justification of Estimates for Appropriations Committees Fiscal Year 2015, 144 available at 2. id. 3. Salt Lake City, Utah ODAR Office, DisabilityJudges.com (May 14, 2014), Office of Retirement and Disability Policy, Annual Statistical Report on the Social Security Disability Insurance Program, 2011, Table 62, available at html#table59. 18

25 SUMMIT DISABILITY LAW GROUP The Claims Process Initial Application Request for Hearing SSA submits to DDS SSA submits to ODAR Request for Reconsideration Evidence Reviewed Await Hearing Decision Made and Claimant Notified Hearing First Denial Second Denial Decision Made and Claimant Notified 19

26 THE UTAH SOCIAL SECURITY DISABILITY Chapter 6 Why are Claims Denied? Is an Appeal Worth the Time? One of the biggest mistakes people make in applying for Social Security disability (SSD) benefits is giving up too soon and failing to appeal all the way through to the Request for a Hearing before an Administrative Law Judge (ALJ). The denial of your claim can be disheartening. It can make you feel like the SSA is not taking your disability seriously and that the process is so complicated you ll never be able to understand it. Many deserving SSD applicants drop out at the Initial Application or Request for Reconsideration stages because they become discouraged. 1 You should persist even after being denied once or twice. To understand why, it is essential to understand (1) who is reviewing your Initial Application and Request for Reconsideration, and (2) that denial is part of the process. During the first two stages of the claims process, the Utah Department of Disability Services (DDS) will review your claim. At the DDS, clerks who will never meet or see you must make decisions about your disability based on your submitted paperwork. Their sole responsibility is to review your medical records and determine whether you have an impairment that has been demonstrated by medically objective diagnostic tests and documented proof. They are not experts on your particular condition. To them, you are only the sum of your paperwork, a file to push off of their desks as fast as possible. 20

27 SUMMIT DISABILITY LAW GROUP As a result of this impersonal system, the majority of applicants are rejected at stages one and two. Denial is so routine most applicants should expect it. However, if you are serious about obtaining benefits you must keep going! Don t give up! Don t be one of the deserving applicants who drops out because of discouragement. Remember, denial is often part of the process. It is essential to keep going, and it is crucial to hire an attorney. The SSA s system was set up to review and weed out claimants that don t have sufficiently severe impairments. However, the first two stages don t allow for the meaningful review of each claim. Due to high volume, unclear medical documentation, lack of objective tests, and the inability to really see you, the DDS denies claims because it can t check off all the boxes that would constitute an award of disability benefits. During the claims process, you may be devastated by events such as losing the ability to care for your children or losing your group health insurance. These feelings are real, and when combined with a claims denial, they can make the whole process seem like it s just too much to deal with. In some cases these feelings can take over your life if left unmanaged. This is why it is important to get help. An attorney can provide invaluable legal counsel and help you keep the claims process moving forward. In addition to the legal services offered at my firm, we provide information about resources in the community such as therapists and support groups. We want to provide you with the full spectrum of services you need to stay in control of your life. 21

28 THE UTAH SOCIAL SECURITY DISABILITY Notes 1. In ,061 Initial Application decisions were made by the social Security Administration. Of those Initial Applications, 236,098 were awarded benefits. There were a total of 758,963 who did not receive benefits. Of those who did not receive an award, only 351,937 submitted a Request for Reconsideration. Then 22,345 of those who requested reconsideration were granted an award, leaving 329,592 appeals without an award. Only 53,604 appealed to the next stage, requesting a hearing before an Administrative Law Judge. Office of Retirement and Disability Policy, Annual Statistical Report on the Social Security Disability Inusrance Program, 2011, Table 60, 61, 62, available at

29 SUMMIT DISABILITY LAW GROUP Chapter 7 The Hearing before an Administrative Law Judge If your claim is denied at the Request for Reconsideration level, you will receive notice in writing and be given 60 days to file an appeal. The appeal is a request for an in-person hearing before an Administrative Law Judge (ALJ). You should expect to wait between 12 and 16 months for a hearing before an ALJ. While the Utah system is not as backlogged as in some states, it usually takes more time than people expect. At the hearing, you will be given the opportunity to appear before a judge and provide testimony regarding your medical condition, how it limits your ability to work, and how it affects your activities of daily living. With the exception of a very few situations, there is almost nothing that can be done to speed up the process. At its core, Social Security is a bureaucracy that runs at its own slow speed. With that in mind, the sooner you file the Initial Application, the sooner you will reach the hearing stage. During the waiting period, you should continue to seek necessary medical treatment. At the hearing, an important aspect of demonstrating you have a severe impairment at step two of the Five-Step Sequential Evaluation is proving you are receiving ongoing treatment. If you are not receiving treatment, or if your condition improves to the point that you don t need treatment anymore, your claim will be denied. 23

30 THE UTAH SOCIAL SECURITY DISABILITY Since the waiting time for a hearing is lengthy, having the support of family and friends, as well as others who share your medical condition, is helpful. There are many disability and illness-specific support groups in our community. Participating in these groups and coming to know others who have experienced some of the challenges you face can be invaluable as you learn to live with a disability and wait for the day to appear before a judge. I strongly recommend that you hire a Social Security disability attorney to handle your case early if at all possible, and certainly when you reach the hearing stage. There s a lot that goes into the preparation for and management of a hearing. In particular, there are critical communicative tools necessary to win a claim. With these tools, a good attorney will give you the best opportunity to present the appropriate evidence in a way that will be most convincing to a judge. 24

31 SUMMIT DISABILITY LAW GROUP Chapter 8 The Secret Weapon One of the questions I receive all the time is: If the evidence doesn t really change throughout the stages of the claims process, why would the decision be different in a later appeal? The answer: The decision rarely changes when people appeal and go to the hearing without a Residual Functional Capacity (RFC) form. The RFC form is a secret weapon not provided by the Social Security Administration and that your doctor may not know exists. To make a strong case, you need to objectively present your medical condition and show how the condition limits your ability to function. Even though your medical records document your condition and symptoms, it is difficult for a medical record to tell your complete story. The medical records don t typically give specific information on your ability to sit, stand, lift, carry, bend, twist, squat, stoop, reach, and manipulate with your hands and fingers. Each of these is an essential function that must be performed on a daily basis in order to work and live. This fact makes it important to demonstrate to a judge the limitations you experience in these areas. You might wonder why your records don t provide this information. As we mentioned before, your doctor did not attend medical school to learn how to write medical records for the SSA. Medical records are often voluminous and yet not specific enough. If you can t give the judge a concrete idea of your limitations and the scale of the limitations, your claim will be denied. 25

32 THE UTAH SOCIAL SECURITY DISABILITY In explaining to a judge how your limitations affect your life, you must be careful. Day in and day out, judges hear, Oh, I can NEVER do that or I ALWAYS need to have help with that. Never and always are meaningless words that don t reflect the reality of your situation. They are common words we use in everyday speech, but, truthfully, we sometimes do things we claim we never do. Never and always decrease your credibility as a witness. The key is to be honest about your abilities and limitations and to communicate them clearly. The Best Way to Tell Your Story The best way to demonstrate physical or mental limitations clearly and objectively is to use a Residual Functional Capacity (RFC) Form. However, SSA officials do not tell you there is any specific way they want to see this information aside from the raw data in your medical records. This is where having a knowledgeable Social Security disability lawyer can make a big difference. The RFC form is a condition-specific questionnaire that allows your doctor to tell your story by explicitly describing your limitations. The form will ask: How many hours a day can the patient sit? How long can he stand? How many pounds can she carry? How long can he concentrate? What is the frequency and severity of her pain? Does he have the ability to use his hands? This form allows the doctor to tell your story in a powerful way. It puts all the pertinent information spanning hundreds of pages of records into a brief, one-form description of your situation and resulting limitations. 26

33 SUMMIT DISABILITY LAW GROUP The judge uses the RFC form to build the hypothetical question posed to the Vocational Evaluator at the hearing. Without this medical evidence, the SSA may send you to a consultative exam performed by one of its contract physicians. These contract physicians are usually retired doctors whose goal is to maintain an alternative source of income. They commonly report that even with restrictions, claimants are capable of engaging in sedentary work. Such an opinion can kill your case because winning requires a less-than-sedentary restriction. Only a properly completed RFC form from a treating physician will provide the necessary evidence with enough specifics that a judge will accept the opinion as controlling. ( Controlling means the judge must adopt the conclusions of your physician.) Cases are won and lost with the RFC form. As a Social Security disability lawyer, I know that there are RFCs for practically every medical condition that forms the basis of a Social Security disability claim. For example, there is an RFC form for fibromyalgia, MS, traumatic brain injury, mental illness, Huntington s disease, etc. At the Summit Disability Law Group, we work with you and your doctor to ensure that the medical records and RFCs accurately tell your story, thus increasing your chances of being awarded benefits. However, this is only part of what it takes to win your claim. Your testimony is another key to obtaining benefits. 27

34 THE UTAH SOCIAL SECURITY DISABILITY Chapter 9 What the SSA Really Wants to Know The Social Security Administration (SSA) wants to hear in your own words what your symptoms are and how they impact your ability to function. You are vital in telling your story, and the story you tell must be consistent with your medical records and the Residual Function Capacity (RFC) form. The SSA doesn t always make it easy for you to tell your story. You ll notice that the Initial Application doesn t really leave any place for you to explain how your disability has affected your life. It simply asks for your work history, information from your doctors, your earnings, medications, and the side effects of your medications. Once the Initial Application is submitted, the SSA will gather your medical records and make a decision. If the medical records are not adequately developed, the Utah Department of Disability Services (DDS) will contract with a doctor to analyze the records and schedule a medical examination with you. You CANNOT miss this appointment or your claim will be denied. The doctor will perform a consultative examination so that he or she can give an opinion on your current functional capacity. I m sure you are thinking that with the records and this one-time examination, there is no way the Social Security Administration (SSA) can really understand how your relationship with your spouse, children, and friends has changed or how your plans have been interrupted or erased because of this unforeseen medical condition. 28

35 SUMMIT DISABILITY LAW GROUP Unfortunately, the SSA does not care about the specifics of your personal life. All its officials want to know is what your functional limitation is as it applies to your capacity to return to work. Although the SSA sounds callous, there is a reason why this attitude has been adopted. Millions of Americans pay into Social Security hoping to rely on it when they retire or become disabled. If the SSA became too lenient about how it distributes its money, everyone with a sad story would be receiving it, regardless of whether or not they could do some degree of work. This would rob deserving people of their ability to rely on the fund. The key to winning is learning how to tell your story. How is this done? By communicating clearly your symptoms and ability to function. That s it. The SSA wants to know your condition, they want to see the objective tests proving the condition, your symptoms, and how those symptoms limit your functionality. You must be able to explain these things clearly to the judge in order to make a strong case. As you start to think about this, I m sure you will wonder how to explain these details to the judge in a coherent way. Half of the job is done with the RFC, and the other half is done with your testimony. At our firm, we prepare you to understand what the judge wants to know from your testimony. The week before the hearing, we will spend a few hours with you preparing for and reviewing the questions that the judge may ask. Your testimony is particularly helpful when it describes your capacity in terms of every day functions: 29

36 THE UTAH SOCIAL SECURITY DISABILITY Can you LIFT a gallon of milk? How many aisles at the grocery store can you WALK without stopping to rest? Can you SIT through an entire movie? These are good examples of explaining your limitations within a fixed unit of measurement that will help the judge understand the nature and severity of your disability. As I mentioned before, explanations like, I have to lie down all the time because of my headaches and pain, or I just never get out of bed anymore, are ineffective because they aren t entirely true and don t describe fixed periods of time, frequency, and severity to the judge. Learning to tell your story in terms of symptoms and functionality is essential to winning your case. Equally as important is not exaggerating and being entirely truthful when giving your testimony. 30

37 SUMMIT DISABILITY LAW GROUP Chapter 10 Exaggerating Your Disability While focused and descriptive testimony is a vital component in a successful case, there are parts of your testimony that can overshadow any or all evidence that would otherwise work in your favor. This includes information you provide on the forms you complete. It is essential to provide an accurate description of your medical circumstances when communicating with your doctor and the Social Security Administration throughout the claims process. Picture a scenario where someone applies for Social Security disability and has progressed all the way to the hearing stage. The individual is sitting in front of the Administrative Law Judge giving testimony about his disability and functionality. The judge looks at the medical records and application, which say that the individual can t sit for more than 10 minutes. The judge asks the individual how long he can sit. He says, I can t sit for longer than about 10 minutes. The judge goes on with his questions and then later asks if the person drove to the hearing. The person answers yes. The judge then asks where he lives and how long it took to get to the hearing. The person answers 60 minutes. The judge will then ask how it is possible for a person who can sit for only 10 minutes to ride in a car for 60 minutes, or, for that matter, sit through a 45 minute hearing without getting up. Now, imagine the judge ending the hearing and denying benefits. There is more going on at the hearing than just a testimonial inquiry about your symptoms and functionality. The judge is attempting to assess your believability. You can be sure that you will lose if the judge doesn t believe you or thinks you are exaggerating. In order to make this decision and to get a 31

38 THE UTAH SOCIAL SECURITY DISABILITY feeling for what kind of person you are, the judge will walk you through a series of questions before she gets to your symptoms and functionality. Judges go through thousands of cases each year, and they are adept at reading through smoke-screen language and exaggerations. Judges see enough cases that they have a general idea of what a person with a given condition should be able to do during the period of the time it takes to hold a courtroom hearing. Don t misinterpret the point. The idea that the judge is waiting to catch you and twist an accidental choice of words against you is false. The judge just wants to know that you are a person who means what you say and that she can rely on you to be honest about your situation. This brings two issues to light: (1) Be honest, and (2) Give interval histories to your doctor (see following paragraphs). (1) Honesty is the best policy. Just communicate your condition as it really is, as you understand it, and as you are experiencing it. If you focus on these facts, you will avoid many problems. (2) An interval history is a history describing your symptoms and limitations during the time between your doctor s appointments. Having your physician document the history in his notes will give you solid standing when you testify at your hearing. It may be that you tell the judge during the hearing that you are having certain difficulties, but those difficulties are not documented in your medical records. That doesn t necessarily mean that you aren t having those difficulties, although it may look that way to the judge. For this reason, it is essential for you to give your doctor an interval history of your symptoms and limitations between visits. 32

39 SUMMIT DISABILITY LAW GROUP At the Summit Disability Law Group, our first priority is to teach you to speak candidly with your doctors and to tell them what is going on. This allows us to ensure that the medical records consistently, honestly, and accurately document your prognosis. It should reflect how your condition is developing and how its symptoms are affecting you on a day-to-day basis. The judge wants to believe you, and he wants to give controlling weight (judicial adoption of the conclusions of your physician) to your physician s opinion about your symptoms and functionality. If you tell the judge things that aren t in your records, the judge will not be able to give controlling weight to the physician s opinion because it will appear your doctor hasn t been sufficiently thorough in gathering information. Without consistency among the participating parties, it will be difficult for you to make a believer out of the judge. You can t win if the judge doesn t believe you. Complete honesty and physician-documented interval histories will tell the judge everything he needs to know. 33

40 THE UTAH SOCIAL SECURITY DISABILITY Chapter 11 Exaggerating Your Past Work A Lethal Mistake At step four of the Five-Step Sequential Evaluation, the Social Security Administration (SSA) evaluates the last 15 years of your work history. During the Initial Application and Request for Reconsideration stages, you will complete many forms about your work history, the titles of your jobs, the duties of each job, and how long you held each job. At the hearing, the SSA relies on the Dictionary of Occupation Titles (DOT) and your testimony to categorize your jobs into exertional and lower skill levels. A presumption exists that the more highly skilled your past work is the more transferable skills you have for retraining in another job. If you have held jobs with supervisory or managerial responsibilities, you are presumed to have an increased working skill level. The skill level of any job is defined by the amount of time needed to learn the job. High-skill jobs include, but are not limited to, doctors, engineers, lawyers, nurses, hair stylists, firefighters, accountants, dentists, and chefs. While you are completing the forms about your past work, do NOT exaggerate your job title or the responsibilities you had at each job. Too often, during the application process, people get into résumé mode and exaggerate their past work. Such an action will increase the skill level of your past work, which will work against you at step five when the SSA determines other work you could be trained to perform. Disability cases are lost because people exaggerate past work titles and responsibilities. 34

41 SUMMIT DISABILITY LAW GROUP If you have held a high skilled position you won t automatically lose your case due to the presumption that you are easily retrainable. However, it is one obstacle that can be strategically dealt with if you are consistent and honest about how you report past work. 35