Wednesday, May 30, 2018
10 Things to Do While Waiting for Disability
The Disability Appeals process is a long journey. Here is OBF's list of 10 things to do while waiting.
Friday, May 11, 2018
Find New Content on the OBF Website
Please visit our new blog at: https://obflegal.com/disability-lawyers/obrien-feiler-disability-law-blog/
to see the latest and greatest news and musings from O'Brien & Feiler!
to see the latest and greatest news and musings from O'Brien & Feiler!
Tuesday, October 17, 2017
Friday, October 6, 2017
Thursday, October 5, 2017
Tuesday, August 15, 2017
Applications and Awards Down for 6th Year in a Row
Every time an election cycle rolls around, politicians get
very vocal about the alleged “ne’er do wells” that decide to take disability
instead of working. Not only is this
insulting to the individuals who labor through a years-long application
process, it is also untrue. The Social
Security Administration is transparent when it comes to sharing statistics, and
these tell a much different tale than the politicians would have you believe.
Since 2010, there has been a steady DECREASE in individuals
applying for disability. In fact, 2016
marked a return to nearly the same number of applications that happened in 2008,
and there is no indication that this trend is slowing. In keeping with the reduction in
applications, there are also fewer awards of benefits, but moreover, only 32%
of applicants received benefits in 2016, whereas that number was 38.57% in
2008. What this means is that not only
are there fewer applications, but of those applications, fewer are being
awarded benefits. The registry has been
tightening for several years now.
In addition to the statistics above, 2016 represented the
highest number of benefits terminations in Social Security Disability’s
history. Benefits are often terminated
due to medical improvement through the Continuing Disability Review process, or
by folks that simply return to work. 830,044
claims were terminated in 2016, and this number has been steadily rising since
2003, when terminations were 450,720.
Social Security Disability is not getting worse for
taxpayers. It is improving from a
spending perspective, though from a service perspective, it is an agency that
is woefully underfunded. Service times
are lengthening despite smaller volume, and despite a recent call for more
Administrative Law Judges, until there is an increase in line level workers as
well, no solution is likely to make a significant dent in the backlogs.
To view the official SSA statistics referenced in this note, visit https://www.ssa.gov/OACT/STATS/dibStat.html
Monday, August 14, 2017
It’s not a job interview…
One of the discussions that nearly always takes place at disability
hearings is a discussion of the work that was performed by the Claimant in the
15 years preceding the hearing. The jobs
that were performed on a full-time basis are generally considered “Past
Relevant Work (PRW)”. When a Claimant
does not have a listing level impairment, the adjudicator will proceed to Step Four
of the Five-Step Disability Process.
Step Four requires that PRW be analyzed to see whether or not a Claimant
can return to this work. A judge will
inform herself about a Claimant’s PRW by examining the scanned disability
report, and frequently by taking direct testimony on the hearing record in the
presence of the Vocational Expert.
A common issue that I see when discussing past relevant work
with Claimants is a tendency to treat the conversation like a job
interview. “Puffery” if often involved
when job seeking, and people that cannot work may also romanticize their past
work as “the good old days”. Both of
these inclinations are reasonable in the real world, but can be very damaging
in the context of disability proceedings.
Claimants may have the immediate inclination to discuss past work in
terms that are likely to impress prospective employers or their peers. Very rarely would an individual discuss the
particulars of their day-to-day vocations outside of the job interview process,
especially if their prior work might be viewed as dull or not requiring skill. Puffery is a natural reaction, but not
controlling it CAN HURT YOUR CASE.
When conversing under oath with the ALJ or the VE, it is
advisable to tell the “warts and all” truth.
If a Claimant sat at a desk, answered phones, and transferred calls to
other team members, they should say this directly and unequivocally. The Claimant does not want to have sales
skills or other skills implied. If a
Claimant input numbers into an Excel spreadsheet to hand off to an analysis
team, they should say this directly.
Having computer and analysis skills imputed to them may give the ALJ the
opinion that there are transferable skills, which can jeopardize your case.
In addition to avoiding having skills imputed, it is
important to discuss management situations with particularity. If part of a Claimant’s job responsibilities involved
managing a job site when the boss was out, make sure that the Claimant discuss
the frequency of this occurrence, and the responsibilities with which they were
tasked. Additionally, it is common for
managers to have a higher specific vocational preparation period (SVP) and
lower exertional level than laborers.
Allowing the adjudicators to believe that a Claimant was a manager when
this was not the case can cause significant issues when analyzing whether or
not they can return to your PRW.
In summary, simply discussing the actual day-to-day work as
it was performed in a Claimant’s Past Relevant Work is the most advisable
course of action. This may require
counseling and preparation in advance of a disability hearing to avoid puffery,
but as the saying goes “an ounce of prevention is worth more than a pound of
cure.”
Subscribe to:
Posts (Atom)