Thursday, July 30, 2015

Fox-5 Atlanta I-team-Social Security disability: Stay in line or start all over?

Hear Disability Attorney Thomas O'Brien weigh in on the difficult choice between pursuing appeals beyond the ALJ level versus starting a new case.  Click below for the Fox-5 Atlanta I-Team Report, and read below the video story for Thomas' talking points about this difficult decision.
 Stay in Line or Start All Over?

Why File a request for Appeals Council review?
• A new case might not be an option because Claimant is no longer insured for disability (DLI)
• Claimant does not want to lose a few years of back benefits
• All original records would be considered, and not as usable in a new case
• Claimant is still generating new persuasive evidence that "relates back" to conditions considered in original filing
• A good hearing may have resulted in good issues for appeal

Why start a new claim?
• Might be able to file a new case prior to insurance lapse date (do not want to miss DLI)
• Claimant may be past age 50 during a new filing
• Can submit new evidence of new diagnoses (as well as ongoing care for old diagnoses)
• New sets of eyes on the case, and potentially more favorable odds
• High chance of losing at AC, meaning a loss of an additional delay in starting a new case
• A win at AC often means appearing again in front of denying judge
• The Appeals Council's scope of review is primarily to evaluate legal or procedural errors, and determines if evidence was properly considered
• Any new evidence at AC must "relate back"

Wednesday, February 4, 2015

A Quick Test - Social Security Disability Acronyms

A couple of years back, I wrote the most SSA-acronym-loaded question that I could think of.  While it technically makes sense, I think the real value is providing evidence that expert help is sometimes needed when navigating this landscape.

Here's the question:

"Did the Claimant’s AOD precede the DLI, and does their RFC allow them to engage in SGA or their PRW?"

For those who are wondering what they just read, here is some help with the translation.

Claimant – This is the person who is applying for Social Security benefits.  Children can be Claimants.

PRW – Past Relevant Work – This is work that the Claimant has done for long enough to “learn the job”.

AOD – Alleged Onset Date – This is the date when an ailment rendered an individual too sick to work or created marked and severe limitations.  Evidence is required to establish this date.

DLI – Date Last Insured – This is a date (that may be in the future) after which a person will no longer be able to claim disability benefits.

SGA – Substantial Gainful Activity – This is work that is performed by the Claimant which meets Social Security’s minimum standards for salary and hours worked.

RFC – Residual Functional Capacity – This is a Claimant’s remaining ability to tolerate work, given their conditions.  This may be characterized as “Sedentary / Light / Medium / Heavy / Very Heavy”

Here is a clip from one of my favorite movies, Good Morning Vietnam, (start at 45 seconds) that inspired me to ask the question above.

Worn-Out-Worker Rule – Another Path to Disability Benefits

There is a lesser-known Social Security Regulation that provides a clear path to disability approval for marginally educated individuals who have performed arduous unskilled labor for a period of 35 years or longer, and are no longer able to do so due to severe impairments.  The so-called “Worn-Out-Worker Rule” may be found at 20 C.F.R. §§ 404.1562 and 416.962.

When evaluating a case under the Worn-Out-Worker rule, one must be very careful to establish each of the criteria.

1) Marginal education – This level of education is generally no more than a 6th grade education, but when considering the impact of education, other factors may come into play including the nature of the person’s responsibilities and tasks on the job (see SSR 82-63).

2) 35 years or more of arduous unskilled labor – Arduous does not necessarily mean Heavy or Very Heavy exertional capacity work, but lower exertional capacity work may qualify if the nature of the work can be considered arduous (see SSR 82-63).  The work must be also consistently regarded as unskilled, though brief periods of semi-skilled or skilled work will not necessarily prevent a person from qualifying under this provision.

3) Not currently working

4) Unable to perform arduous unskilled labor due to severe impairments – Medical evidence establishes proof of severe impairment(s) that prevent a return to past relevant work.

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.

Tuesday, February 3, 2015

Disability Attorney Thomas O'Brien on Fox-5 News Atlanta

Disability Attorney Thomas O'Brien recently appeared in a story covered by the Fox-5 Atlanta I-team as they investigated delays in disability hearings in Georgia.  What they found might surprise you.

Read the article by clicking here.

See the story by clicking here.

"Hypothetical Individuals" and Vocational Testimony at ALJ Hearings

One of the most common concerns that Claimants have when approaching an Administrative Law Judge Hearing concerns the testimony of the Vocational Expert (VE).  This seems to be a point of concern from a Claimant’s perspective because “they are going to tell me I can work.”  This is not exactly true.

Generally, the job of the VE is to classify Past Relevant Work (PRW), assess the transferability of employee skills, and apply their skill and expertise when being called on to assess the employability of a hypothetical individual that the judge or the Claimant will present to them.  As such, assuming that their PRW and transferability testimony (where applicable) is reasonable, eliciting favorable testimony about a hypothetical from a VE should be the focus of the Claimant (or their counsel) during the hearing.  A hypothetical individual may or may not resemble a Claimant’s condition, and for this reason, it is imperative that the hypothetical individual be presented in a way that truly reflects the limitations experienced by the Claimant.

There is a lot of available information about the vocational portion of the hearing, and different practitioners approach VE testimony differently.  There is NOT a one-size-fits-all approach to securing reasonable and favorable testimony from the VE, but I will attempt to enumerate some helpful practices, and highlight some true-to-life approaches.

First off, every judge approaches the VE with their own style.  Some judges start with a very broad hypothetical and leave the refinements to Claimant or Counsel.  Sometimes they will start broad and work their way to a more refined hypothetical, and sometimes a judge will start with a very restrictive hypothetical that yields no work for the hypothetical individual.  Often, one can get some idea about the judge’s feeling about granting a case from the nature their hypotheticals presented to the VE

If a judge ONLY offers a hypothetical that is very restrictive and leads to a scenario where the hypothetical person could not return to PRW or perform any other work in the national economy, I generally recommend that Claimants leave the testimony alone.

However, if the judge presents hypotheticals that allow for the performance of PRW or other work in the national economy, the approach should be to work to erode the vocational base using limitations found within the medical records and testimony.  Some judges do this for themselves by offering several hypotheticals, and it is here that Claimants will need to judge how hard to push cross-examination.  As a general rule, the goal is to minimize the number of jobs that each hypothetical individual can perform.
The setup for vocational testimony will often look like this:

Judge: Madame VE, please assume a hypothetical individual that matches the Claimant’s
1) Age
2) Education
3) Past Relevant Work (ensure that this is classified correctly)
4) And that this hypothetical person is capable of work at the (Sedentary/Light/Medium/Heavy/Very Heavy) residual functional capacity (RFC)

Judge: In light of these assumptions, can the hypothetical person return to their Past Relevant Work?  Is there any other work in the National Economy that they could perform?

Judge: Now, further assume that the hypothetical individual is limited by the need to:
1) Sit/Stand at will for periods of not to exceed 30 minutes in one position (Back problems)
2) Perform simple repetitive work due to mental limitations (Anxiety problems)
3) Perform no work around hazards (Medication or Anxiety Problems)
4) Perform no work including ladders, ropes, or scaffolds (Balance or anxiety problems)
5) Have limited interaction with co-workers, supervisors, or the public (mental or communication problems)
6) Be off task for 10 minutes per hour due to medication/psychiatric-based symptoms (pain or pain medication, water pills, digestive issues) 
7) Avoid temperature extremes (often seen in heart issues)
8) Limit crouching, kneeling, crawling to _______ percent of the day (Back or joint problems)
9) Limit reaching, handling, fingering to _______ percent of the day (Arthritis issues)
10) Miss X days per month due to the need for regularly scheduled medical care (Medical or mental health care)

Judge: In light of these assumptions, can the hypothetical individual return to their Past Relevant Work?  Is there any other work in the National Economy that they could perform?

As you can see, there are two sections to this hypothetical.  First, there are the initial four general assumptions: age, education, PRW, and exertional level.  Age and education are largely factual, whereas Past Relevant Work and exertional level may be more subjective.  A Claimant will want to ensure that their past work is fairly characterized since the nature of this work can hold a direct bearing on their disability determination.  Exertional level is crucial as well since it can direct a finding under the Vocational Grids.  For the purposes of VE hypotheticals, Claimants will nearly always wish to present hypotheticals at the Light or Sedentary exertional level.  For information about exertional levels, please see. CFR §404.1567 ( 

The second section of the hypothetical creates more limitations that the VE must address when providing opinions about PRW or other employment.  For hearings with judges that provide only general hypotheticals that allow employment, it is very important that Claimants refine these hypotheticals with evidence-based limitations that further erode the vocational base.  When asking the VE to provide testimony based on the refined hypothetical, one should include the limitation, the “why” of the limitation, and potentially the exhibit that expresses this limitation.  Generally, as credible limitations are introduced, available job options become fewer and fewer (and that is good news for Claimants).  Ultimately, the goal should be to erode the occupational base as much as possible using plausible and documented limitations.

There are numerous ways to approach VE testimony in Disability Hearings, but the best advice that I can offer is to address their testimony using a factual, non-emotional approach.  The VEs can create very favorable and convincing testimony for Claimants when approached appropriately, and rarely will an emotional reaction to their testimony convince the judge that benefits should be awarded.

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.

Tax Information Now Available on "my Social Security" Website

Social Security has made advances over the past several years with regard to filling applications, retiring, and checking one's "green sheets".  The website through which one may access this information may be found here:

I have recently been informed that there are some new services available from the same website.  According to Social Security,

"We are excited to offer a new online service to people who receive Social Security benefits. If you need to replace your form SSA-1099 or SSA-1042S for tax purposes, you can now get a copy instantly by using your personalized my Social Security account. If you don’t have an account, you can create one online today."

Anything that gets my clients and readers connected with their information more quickly is a good thing.  To see their press and social media releases about this service, click below: