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Don’t Forget About Concussions

concussion and social security disabilityRecently there have been a number of news articles about former professional athletes suing leagues for medical complications arising from concussions.  It turns out that concussions are very common in sports that involve physical play, such as football, hockey and, of course, boxing.

This year, I have already tried two cases on behalf of former athletes who are alleging disability for conditions that at least partially arise from their pursuit of contact sports.

In one case, my client was a former professional hockey player.  He reports that during his career he was knocked out cold at least 13 times and that he was hit hard enough to see start countless other occasions.

His alleged impairment involves depression and emotional issues that he believes have some root in the damage incurred to his brain while playing hockey.

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Beware of Earnings Record Issues

attempt to return to workWhen you file for Social Security disability, you will be asked to choose an “onset date” for your disability.  This date represents the point in time when you contend that you were no longer able to engage in “substantial gainful activity.  Your judge will always look to see if your earnings record shows any income after that date – if it does, he will have questions.

Generally there are four possibilities if your earnings record shows income after onset: You should always discuss these issues prior to the hearing with your lawyer and be prepared to bring supporting documentation with you.

  1. Earnings represents accrued vacation, sick time or other benefits – in this case, your post onset date earnings does indicate that you performed any substantial activity and should not create any problems with your claimed onset date.
  2. Earnings represents income from non-SGA level work – in this case, you would be alleging that you did work after your alleged onset but that your work was part time, it was an unsuccessful work attempt, it was work in a structured work environment or that you received special considerations which makes the work less than SGA.  This argument works best if you can provide evidence of a sheltered work environment or that your work attempt was short term and unsuccessful.
  3. Earnings record is wrong – someone else’s earnings have been associated with your record.  This is unusual but it happens.  If so, you will want to contact Social Security to correct the earnings record – it would be helpful to have that correspondence available for the judge to review.
  4. You did, in fact, work at SGA levels after onset.  In this case, you will probably need to amend your alleged onset date.

Whatever the reason, you should always discuss any post-onset date earnings with your lawyer.  You can be certain that the judge will ask – and you don’t want any surprises on the day of your hearing.

Beware of Easily Offended Judges

attorney appears by speakerphoneI recently posted a case study describing a case I tried involving a woman with a variety of well documented and severe medical problems.   This case was initially tried by another lawyer before a judge who denied it despite a very strong medical record that pointed to a finding of disability.

After the hearing claim denial, the client filed an appeal and the Appeals Council reversed the ALJ’s decision and sent the case back for a second hearing with specific instructions for the ALJ to consider all of the claimant’s limitations.  Fortunately, the hearing office assigned to this claim has changed and a different judge was assigned this case.  As I note in the case study, I got the sense that the new judge quickly saw that this case should be approved and she issued a bench decision granting benefits.

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Delay in Applying for Disability Requires Explanation

delayed application

by dougww under CC BY-SA  with wpseopix.com

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Just this past week, I have tried two disability cases in which my client stopped working but did not apply for disability for 5 years (in one case) and for 10 years (in the other).  These cases were tried before different judges but in both instances, the judge expressed a great deal of concern with the claimant’s delay in filing for benefits.

I rarely see delays in applying like this so I was a little surprised by the reaction I got from these two judges.  Here are my thoughts as to why Social Security judges may be concerned (and possibly even a little suspicious) if you wait several years after you stop working to apply for benefits:

Concern about truthfulness – I sense that Social Security judges have a hard time believing that disabled individuals do not know about the Social Security disability program.  They may believe that a claimant is working “under the table” for cash, volunteering or caring for children.

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New Depression Case Study Posted

I just posted a new case study about a case I tried on behalf of a 49 year old male with a college education and skilled past work.  My client suffers from severe depression, anger control issues and inappropriate social behavior.

This case study highlights an issue that often appears in depression cases.  People who are severely depressed often lack motivation and energy to find and and keep a job.   They often quit because they feel that they are overqualified for their work or that their job is boring and does not keep their interest.

As I noted in this case study, Social Security awards disability to claimants to lack the capacity to perform the duties of full time work.  It does not award benefits to people who choose not to work because the only jobs they seem to get are uninteresting, dead end jobs.

One of my tasks, therefore, is to argue that my clients’ problems do not arise from laziness, but instead arise from the symptoms of a depressed state of mind.

If you are pursuing disability on account of depression, it is important to try to describe to the judge what life is like when in the throes of severe depression.   I have represented clients who have said things like this:

I feel that I am stuck in a deep hole and that there is no way out.  I have no energy at all and I can barely summon the energy to get out of bed to go to the bathroom.  I don’t care what I look like or if I smell.  I have no interest in talking to anyone.  I have no interest in eating and I frankly don’t care if I live or die.

This type of explanation goes a long way to create a bright line between someone who is just not motivated to work and someone who literally cannot get out of bed.   In depression cases I always ask my clients to describe “what it is like to be depressed” like you are talking to someone who does not understand the condition.    If you are applying for benefits based on depression you would be wise to give this question careful thought as well.

Note also that in addition to the depression case studies on this site, I have published a number of other depression case studies on other sites.

 

Work Attempts Before and After a Finding of Disability


An issue that arises more and more in my disability practice relates to work attempts by claimants.  Generally, I advise my clients that unsuccessful work attempts prior to their hearings can be valuable and convincing evidence.  Judges appreciate claimants who are trying to remain working and her are willing to try to work through pain and discomfort.

Recently, for example, I tried a case on behalf of a 53 year old woman with chronic back pain who had attempted to try to work at jobs that were less and less physically demanding until she finally had to stop when episodes of severe pain would leave her bedridden for days at a time.  Click on the link above to read the case study.

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Why Would an Obviously Disabled Person Not Qualify for Social Security Disability?

why do I not qualify for Social Security disability?I recently received an email from the relative of a person who likely qualifies for Social Security disability in terms of her medical issues, but perhaps is not eligible on non-medical grounds:

I have a brother who lives in your state and his wife has become disabled. She is in a wheelchair now. They talked to someone about social security and they told them that she did not work enough. That has kinda of upset me because I thought social security disability was for people who can’t work anymore. They have to cut back on her physical therapy because there copay is high and they live on one salary. This doesn’t make sence to me I see people who can work on this and it is not right.  Would you please send me information on who can get SSD and who can’t so I can understand this and they can understand this too.

Here are my thoughts:  first, I am going to assume that your sister-in-law has a serious medical problem that has left her wheelchair bound, and that her medical problem has lasted or is expected to last 12 consecutive months.  This 12 month “duration” requirement is part of Social Security’s definition of disability, and short term impairments do not qualify.

If she is truly wheelchair bound, more likely than not she would qualify medically based on a listing, or on the basis that her capacity for full time work has been so reduced that she would not be able to perform the duties of a simple, entry-level job.

Thus, based on what you say, it appears that your sister-in-law meets Social Security’s definition of disability.   What, then, is the problem?

It may be that she does not qualify for either SSDI or SSI.

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Can I Apply for Georgia Unemployment and SSDI at the Same Time?

unemployment application and Social SecurityWith the recent downturn in the economy, I sometimes represent disability clients who stopped working because of both a chronic medical problem and a layoff.   Recently, for example, I represented a client who had been handling media relations for a large company before being laid off because of a lack of business.

During the last 18 months of her employment, however, she had been struggling with several serious medical issues including uncontrolled diabetes and associated numbness and tingling in her hands and feet, a bulging disc in her neck and depression and anxiety for which she was taking strong medications.

As she described her last few months of work to me, she was missing time from work and her job performance was not good.  At the same time, she had been employed with the same company for over 18 years and she acknowledged that her employer probably could have terminated her for performance issues but did not do so.

After losing her job she made a half-hearted search for new employment but she felt that she did not have the capacity to perform at any job for 8 hours a day, 5 days a week.   In other words, she was able to hang on at the prior job due to a combination of familiarity with that job and familiarity with her employer, but a new job with a new employer would have been more than she could handle.

Because she was laid off, she filed for unemployment benefits at the same time she filed for Social Security.  

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Vocational Expert (VE) Witnesses and SSDI Hearings

The Value of a Vocational Expert in a Disability Hearing

In a recent post, we discussed the Medical Expert witness in Social Security Disability hearings. In this post, we will turn our attention to yet another witness that is often called upon by the SSA to help shed light on your specific case – the Vocational Expert witness, or VE.

At a Social Security Disability Insurance (SSDI) benefits claim hearing, the VE may evaluate your past work and what kind of work you are capable based on your age, education, or skill set. The VE will also do his/her best to evaluate the current ability of the claimant to perform daily tasks at home and at work, so as to properly frame the impact of a medical condition on your current work capacity.

The VEs are bound by law to be completely impartial and objective, and they are only there to help the Judge understand your abilities and/or limitations. Additionally, VEs are never agents of the SSA, so they are not anything to fear.

A VE may also provide an overview of the types of work a claimant was able to perform prior to the onset of disability, based on up to 15 years of work history. Their expertise is usually summoned by an adjudicator or judge to address pertinent questions that arise during a claim.

Like the medical expert, the VE’s presence at your hearing may be a benefit to you, especially if your disability clearly prevents you from performing past work or other work.

Medical Expert (ME) Witnesses and SSDI Hearings

The Benefits of a Medical Expert Witness in a Social Security Hearing

At a Social Security Disability Insurance (SSDI) benefits claim hearing, the services of an SSA-provided Medical Expert (or ME) are often called upon. Typically, this individual is a retired physician who comes in to summarize your medical records so that the Judge will have a better understanding of what is going on in your case.

For example, an ME can help if the medical records supporting your disability claim are voluminous and difficult for someone without medical training to understand. Much like an expert witness at a criminal court proceeding, the ME can greatly assist the judge or adjudicator by distilling these records and focusing on the most important findings.

Before presenting their findings, the ME is required by law to verify their medical credentials. The attorney for the claimant is allowed and encouraged to ask questions about such pertinent factors as education, skills, training and experience in a specific medical field. An ME can be instrumental in helping a claimant and their attorney properly frame the specifics of a disabling medical or psychological condition.

But do not fear the ME witness, as they often benefit you. In other words, if your disability is true and real, and if the medical records reflect this, then the Medical Expert will likely notice this and will communicate this to the Judge, thereby helping your claim. If, however, you are malingering (or exaggerating your condition), the Medical Expert may be your worst nightmare.

10.0Jonathan C. Ginsberg Jonathan C. GinsbergReviewsout of 93 reviews
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