Social Security disability is all over the news. Every time you turn around there is another article about the rise in the number of disability cases being filed, the rise of the number of people receiving benefits, and calls for fundamental changes to the system. What these stories do not tell you is that the allowance rate (the percentage of cases approved) has drastically dropped, especially at the hearing level. Statistics show this. Attorneys keep talking about it, See Gordon Gates Blog. But what can a claimant do to help there case?
We are no longer in the era of Social Security were a claimant could just show up to a hearing, have spotty records which support disability, and make a good showing through their testimony to get awarded. One must prepare every hearing not only to look for the evidence which will support disability, but also to determine what in the record the judge, the vocational expert, or medical expert, will use to discredit the claimant, to show a lack of disability, or any other reason to deny the case.
The first place to start is to hire an attorney. You may think you can do this on your own, but not at the hearing level. You will be anxious, stressed out, in pain or having other symptoms relating to your disability. You do not know the law or rules, and you will not be able to effectively cross exam any experts present. Think of it this way, if you can successfully do these things, without your conditions and symptoms causing you difficulties or problems, why should the judge find you disabled? You do not want to lose your benefits because you forgot to tell the judge something because of your memory problems. You do not want to lose your benefits because you did not know what to ask the vocational expert because you did not even understand what he said. It is a fact that your chances of winning your case increase with hiring an attorney.
Stay in treatment. Even if it is sporadic, you must have medical records to prove your case. Get it however you can from where you can, but get it.
Next, make sure that your record is as complete as possible. Everyone knows that you cannot have every medical record at hearing. Usually you are missing records that occurred within the last 60-90 days prior to the hearing. But you should have all other relevant records before that through at least the date you claimed you became disabled and sometimes even prior to that. Not just your main doctor, but all of them. Do not hold back a doctor because you think they may be unfavorable or add nothing to your claim. Do not leave off a symptom or complaint because your do not think it is important. Do not filter your information. Let the attorney determine what is or is not important, that is there job. You would be surprised what doctors note about patients, even when they are seeing them for other matters. I have had counselors note that their patient looks to be in pain and limping into the room, which help support their claim of back pain. I have had orthopedic talk about the claimant’s crying spells and how their mental health status is interfering with their recovery. I have had clients who finally mention that they have these other symptoms and it was exactly what was needed to win there case. Once you have the records, that is the time to decide what is or isn’t necessary in your case
And you can’t know what is necessary until you or your attorney knows what is in them. Read your records (or make sure your attorney has read your records) and discuss with your attorney what your records contain. Do not be surprised when your attorney, who has read the records, knows things about you that you never told them. I have had many clients ask me how I knew certain information and I tell them, it is in your records. And if it is in your records then the judge ALSO knows it. Whether this ranges from questionable or embarrassing behavior, claims of drug seeking behavior, claims of malingering, failure to follow prescribed treatment, or alcohol or drug abuse these items are in your record and ignoring them will only cause your case to be lost. It will be discussed in the hearing. The worst thing you can do at this point is stick your head in the sand. Your attorney brings up these issues, not to embarrass or judge you or to accuse you of anything, but because they want you to explain to them why the doctor might be saying this and discuss with you ways to positively deal with the information. Getting mad or denying it will not convince the judge to see the information in any other way than a negative one. There are ways to handle each and every one of these negative comments, even drug and alcohol abuse, but not if you ignore them or worse work against your attorney.
Get everything into your records and get your doctor using Social Security terms. When you go to the doctor and tell them something make sure they record it in the records. I have read hundreds of thousands of pages of medical records. Some are really good, some are horrible and most are mediocre. Doctor offices tend to make short, unhelpful, sometimes even roll over notes. They use words like feels better, doing fine, improved, without explaining what they actually mean or the how improved your doing. They may even roll over information from a previous visit into this visit for things you did not discuss or they did not exam. So, tell your doctor your symptoms at every visit, even if that is not why you are there. Simply saying, Dr. I would like you to note that I am still having back pain and it has not improved since my last visit. It continues to bother me daily. And start using the legal language that Social Security requires. Dr. my back is still bothering me and makes it hard for me to stand for longer than 15 minutes. I can sit through a half hour tv show okay, but then I really need to go lie down. From there, your doctors will be prepared for the questions asked in a medical source statement.
Compliance compliance compliance! But I am complying. I take my medications every day, I see my doctor regularly, I do what I can. Well that is not good enough today. I recently had a hearing where a medical expert stated that my client with diabetes should be super skinny and because they weren’t they were not in compliance (thankfully the judge felt that losing 30+ pounds in the last 6 months was compliance). If your doctor has told you to try to lose weight, then try to lose weight. If they have told you to try to quit smoking, then try to quit smoking. If they have told you to do stretches or exercise try to do them. If your using drugs and alcohol quit and get treatment for it. And when you try to do them REPORT IT back to the doctor. At the next visit, tell the doctor I tried to lose weight. I changed my diet as such but did not lose any weight, what else can I do. Then make sure they put it into your record. There are judges out there who use these small issues, even when it is only suggested (ie like quit smoking) and not a doctor’s order as reasons to deny you. I know one judge who is famous for denying people who smoke. This judge frequently cites medical reports that people who smoke heal quicker and therefore the smoking is causing the pain and if they would just quit smoking they wouldn’t be disabled. The judge will also deny you if you cannot afford your medications but are able to buy cigarettes (and stating that fact). The judges want to see that you have tried as much as possible to return to work, so if you have joint issues and are overweight, they want to see weight loss or at least some attempt at it. It is much easier to sway a judge with an attempt that fails then the refusal to even try.
Medical Source Statements are very important in today’s disability case. The judges are looking for them. In many cases they are looking for ways to disprove them. If you cannot get a medical source statement then some judge assumes your doctor is not supportive of your claim. Whether this statement is a narrative, a letter, or a form, they are important to have. Many claimants already have them and just don’t know about it. If you are applying for other benefits (like LTD) or involved in other litigation (like worker’s comp) then you most likely have several medical sources statements available to you. If your attorney cannot get your doctor to do a statement, they may ask you to take one with you to your appointment. It will then be up to you to help the doctor understand how important the statement is and see if they would fill it out for you right there. Many times doctors are much more responsive to patients than attorneys, many times because you are actually talking to the doctor and not the nurse.
Return documents to Social Security and your attorney. Social Security, especially at the initial and reconsideration stages, will deny you if you do not respond to the documents they send you. Your attorney will withdraw from your case if you do not respond to them. Do not dig a hole for yourself.
Show up to your hearing and be prepared to tell the truth. The fastest way to lose your case is to not come to your hearing. You are having a hearing, usually, because your testimony is needed to approve the case. Very few cases that go all the way to a hearing can be approved on just the medical records, though some can. Do not take that chance. SHOW UP, on time, in fact at least 30 minutes early, and be ready to go. And when you get there, tell the truth. Never lie throughout your entire disability case. Always tell the truth. I have seen clients who tell me what they think I want to hear and go to hearing and tell the judge what they think the judge wants to hear. They lose their case because the strategy devised based on their claims to the attorney and the record now does not add up to what they are telling the judge. The judge reads your ENTIRE file, not just the stuff that proves your disability. Everything. They read the documents you filled out for Social Security. The read the activities of daily living form, the notes made by claims reps that talked to you. The judge will know if you have changed your claims or said something contrary. Be honest, sincere, do not overstate your limitations or understate them. If you do not know then your answer is I do not know. It is far better to tell the judge that you do not know how much weight you can lift because you do not lift anything for fear of causing more pain then to guess that you can lift x pounds.
There is no magic formula that wins these cases. But you can minimize the negative impact on your claim as much as possible.