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.”

Thursday, July 27, 2017

The WHOLE Truth – Telling your Physician and the Judge

Let’s just say it.  Some health information is embarrassing.  We don’t make a habit of discussing some elements of our health with anyone.  Socially, this may be beneficial, but in the context of assessing disability, not discussing troubling and truthful symptoms of your illness or treatment can be damaging.

Disability and SSI cases are based on a Claimant’s inability to perform work.  To evaluate disability, Social Security looks primarily to the evidence generated by the Claimant (patient) as they seek treatment for their ongoing health concerns.  Social Security Ruling 16-3p sets forth the idea that the SSA considers all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record. The SSA defines a symptom as the individual's own description or statement of his or her physical or mental impairment(s).

An individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability.  These statements are subject to a two-step evaluative process set forth in SSA regulations.  In short, the test asks 1) is there an impairment that could reasonably produce the alleged symptoms, and 2) do the intensity and persistence of an individual's symptoms limit his or her ability to perform work-related activities?

The best way to ensure that your symptoms are properly documented is through full and open communication with your physician regarding every element associated with the symptoms of your condition and the treatment thereof.  It is often helpful to let your physician know that your treatment records will be used in disability proceedings, and that ongoing and clear physician narrative is helpful.  

Many of my clients are cardiology patients who receive diuretics (like Lasix) as part of their therapy.  One very common side effect of diuretic therapy is the urgent and frequent need to urinate for several hours after taking medication.  When discussing this side effect with my clients, nearly all confirm that this is the case, but when I ask whether they have discussed this with their physician, very few have. 
Frequent unscheduled breaks can have a detrimental effect on a patient’s ability to work, and should be considered by a judge when contemplating a Claimant’s residual functional capacity for work.  In this way, not only is the judge considering the impact of the actual underlying condition on the ability to work, they are considering the symptoms of treatment as well.  

Claimants should not hesitate to share truthful (yet potentially embarrassing) information at their hearings, and should share this information with their physicians so that it can be acknowledged, documented, and managed in a clinical setting.  In addition to the benefit of having an informed physician, telling the whole story can introduce additional favorable considerations in the disability context.