Developing a Winning Theory

One of the bigger contributions a disability attorney makes to your claim is developing a winning theory for your case.

The theory is one or two sentences that sum up your case and explain why you should be found disabled.   Sometimes the theory is as simple as this: “The claimant, whose past work was semi-skilled medium work, is 54 years old and is limited to sedentary work by degenerative disk disease. Because he has no transferable skills, Rule 201.14 of the Medical-Vocational Guidelines requires that he be found disabled.”

In more difficult cases, such as those involving literate claimants under age 50, the attorney’s theory is an explanation why the client cannot do a broad range of sedentary work

The first step in your attorney developing this theory is listing your symptoms and impairments, with the most limiting ones first.  Each impairment must be supported by the medical records.  And there must be a clear link between each medical impairment and the resulting symptoms.  A symptom unrelated to a diagnosed medical impairment cannot form the basis for a finding of disability.

Ability to Work

The next step is for your attorney to record your residual functional capacity, which is what you can do on a sustained basis in a work setting despite your impairment. A few examples are:

• __________ says that s/he can walk about ___ blocks before stopping.
• S/he can sit for about ___ minutes at one time and stand for about ___ minutes at one time.
• Out of an 8-hour working day, s/he says s/he can sit for a total of ___ hours and stand/walk for a total of ___ hours.
• S/he needs to walk around approximately every ___ minutes for about ___ minutes.
• S/he needs a job that permits shifting positions at will.
• Because of:
  • muscle weakness
  • pain/paresthesias, numbness
  • chronic fatigue
  • adverse effects of medication
• S/he may need to take unscheduled breaks [to lie down] during an 8-hour working day. S/he expects this to happen __________; and s/he may need to rest ___ minutes (on average) before returning to work.
• If s/he had a sedentary job, because of __________ s/he says s/he would need to elevate his/her legs about ___% of the time during an 8-hour working day. S/he needs to elevate his/her legs about __________ high.
• S/he needs a cane to walk because of:
  • imbalance
  • pain
  • weakness
  • dizziness
  • insecurity
• S/he can occasionally lift and carry ___ lbs. and frequently lift and carry ___ lbs.
• S/he says that because of:
  • pain/paresthesias
  • motor loss
  • sensory loss/numbness
  • muscle weakness
  • swelling
  • side effects of medication

  The theory of your case is the engine that runs it.  The theory guides the development of the case’s evidence and its hearing testimony.

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Social Security Disability Myths

1. “Companies won’t hire me because of my disability so I will be awarded benefits, right?”

Wrong. The Social Security Administration does not focus on whether you can get a job. Instead, SSA looks at whether you are capable of performing a job. Capability, not hireability, is the issue.

2. “I need to be permanently and totally disabled, so I’m not going to bother applying.”

That could be a costly mistake. First, your impairment need not be permanent; it only needs to last 12 months. Second, you don’t have to be bedridden, especially if you are over 55. The amount of work you can be capable of performing and still qualify for disability rises with age.

3. “I can obtain reliable answers to my questions by telephoning SSA on their nationwide toll-free number.”

If you can get past the busy signals and recordings, SSA’s 800 number is most useful for information about the retirement program, not disability benefit entitlement. One test found 25% of its disability-related answers wrong. Experienced disability lawyers can be a more accurate source of information.

4. “My application was denied, so SSA must believe I am capable of working.”

Partially true. A state agency employee who works for SSA believes you are capable of work, but that employee does not have the final say and is found wrong more often than right when a judge reviews the decision. If your initial application has been denied, you should ask an experienced disability lawyer to review your case before giving up. Don’t delay, you only have 65 days from the date of your denial letter to appeal; otherwise you have to start over.

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How to Appeal

If your application for Social Security disability has been denied and you cannot work, I hope you decide to file an appeal.

Whether appealing a first or second denial, you must file your appeal within 65 days of the date of the denial letter.  If you miss the deadline for appealing, you will need to re-apply and then promptly appeal the likely subsequent denial.

The First Appeal

To file the Request for Reconsideration, use Form SSA-561-U2 (available at www.socialsecurity.gov or 1-800-772-1213).  The form is short and straightforward, mostly asking for contact and identity information.

One question to pay attention to is, “I do not agree with determination made on the above claim and request reconsideration. My reasons are:” If you keep your answer short and specific, you are less likely to create inconsistencies in the record. “I am still disabled” is a good response.

You will also need to complete another disability report to let SSA know whether your medical condition has changed. Use SSA-3441-BK, which is titled Disability Report – Appeal.

In Section 7, Information About Your Activities, it is best to say nothing if your impairments have not worsened since you applied. Even though your initial description did not work, avoid the temptation to describe yourself as in worse shape now. Exaggeration is a mistake.

Include another Authorization to Disclose Information to the Social Security Administration (Form SSA-827) and any new medical records obtained since your initial application.

You will wait 3-4 months for a decision on your Request for Reconsideration. Don’t be discouraged if you are turned down on reconsideration. Only 15% are approved. It is possible you will be among the lucky ones.

If you are one of the 85% who had a Request for Reconsideration denied, immediately file your second appeal. You have 65 days from the date on your denial letter to file. You may file online at www.socialsecurity.gov, or call 1-800-772-1213 for:

• Form HA-501-U5: Request for Hearing by an Administrative Law Judge
• Form SSA-3441-BK: Disability Report – Appeal
• Form SSA-827: Authorization for Source to Release Information to the Social Security Administration

The Request is the only form that will look new to you.  It is short and easy to complete.  As with your earlier filed Request for Reconsideration, you should provide a short and non-specific answer to question 5: “I disagree with the determination made on my claim because:” A good response is, “I am still disabled.”

For question 7, check “I wish to appear at the hearing.” Letting the judge see your impairments and hear about them face-to-face is the most persuasive evidence that can be provided, and is one of the big reasons why 55% of applicants are successful at their hearings.

After you file the Request for Hearing, you should start looking for an attorney to represent you at the hearing. A disability hearing is too complex, the stakes are too high, and too much advance preparation is required to go it alone.

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How to Apply for Social Security Disability Benefits

An application for disability benefits can be started with a telephone call to Social Security (1-800-772-1213) or a click of a mouse. (http://www.ssa.gov/applyfordisability). If you call, Social Security sets you up with an appointment, either at a local office or by telephone. If you apply online, you complete the initial forms over the Internet, but some material will still need to be sent in.

A Warning About Completing Social Security Forms

Many of Social Security’s forms have “yes” or “no” check boxes. However, the answers are often more complicated than yes or no. Consider a simple question: “Can you work? Yes [ ] No [ ].” What do you say if the answer is: “sometimes, on my good days, but not when my pain flares up and I have to lie down”?

First suggestion: Apply by telephone. Ask them to send you the forms. Take plenty of time to answer each question completely. If you are comfortable online, apply online. Be sure you keep the “reentry” numbers they give you so you can return to the forms if you don’t finish them the first time – which you probably won’t.

Second suggestion: When they ask you about dates of medical treatment, do not worry about getting them exact. The medical records will have the exact date. It is more important that you list all the doctors who have treated you.

A better suggestion: There is much more to know, particularly in the area of tips to improve your application for Social Security disability benefits. An experienced disability lawyer like me can help you submit the strongest application possible. To contact me, click here then submit the form to your right.

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Do’s and Don’ts for Social Security Disability Claimants

Here are actions you can take and actions you can avoid that will increase your chances of being awarded Social Security disability benefits and reduce the risk of being denied.

Do’s:

• DO keep copies of everything you receive from the Social Security Administration.
• DO keep copies of everything you send to the Social Security Administration.
• DO apply for disability benefits within six to nine months after the time you become unable to work.
• DO keep detailed records of all doctor and hospital visits and record the information of all the medical facilities where you have received care.
• DO keep seeing your doctor(s) regularly, and inform your doctor(s) that you are applying for disability benefits, and ask if they will support your claim.
• DO follow through with all medication and treatment prescribed for your conditions.
• DO file your appeal within 60 days of any denial of your claim for benefits.
• DO return the comment forms the Social Security Administration sends you after you have been evaluated by one of their doctors, and indicate any abnormalities in the evaluation, such as the length of the evaluation or the lack thereof.
• DO be patient. Don’t expect Social Security employees to make a decision within a few weeks of your initial application or appeal. The Social Security disability process can be very slow. While your disability attorney can do many things to help you win Social Security benefits, there is nothing he or she can do to speed the process up.
• DO contact a disability attorney if you are denied at any point in the process of applying for Social Security disability benefits.
• DO contact us or another experienced disability representative with questions or for assistance regarding your claim for disability benefits.

Don’ts:

• DON’T assume that you aren’t eligible for Social Security disability benefits or SSI. You may be eligible even if you think you’re not.
• DON’T ignore your doctors’ advice.
• DON’T miss appointments with your local Social Security office or your doctors unless you have no choice, as this will only lengthen the process.
• DON’T refuse attention, testing, or treatment from a specialist. Such a refusal could hurt your claim and cause you to be denied.
• DON’T assume the Social Security Administration will obtain all of your medical records, treatment information, and information about your symptoms. An experienced disability lawyer can assist with this.
• DON’T treat Social Security employees rudely or abusively. If you are being mistreated by a Social Security employee ask for the manager and explain the situation.
• DON’T give up if your disability claim is not approved. If it is denied, file an appeal immediately. Your chances of success improve greatly if you appeal your denial. Over half of Social Security disability applicants and applicants across the country who appeal are ultimately awarded disability benefits.
• DON’T miss a 60-day deadline on an appeal as you may need to re-file an application and potentially lose benefits you may otherwise have been entitled to receive.
• DON’T trust your future to the Social Security Administration. Consult us or another experienced disability lawyer to get additional information as to how you can qualify for Social Security disability or SSI benefits, even if the Social Security Administration informed you that you do not qualify.

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