The Washington Post has another in its series on Social Security disability. The stigmatization is still there -- focusing on an uneducated claimant, a photo of an extremely messy home, a mention of drug abuse -- but the primary focus is on the suffering that Social Security's hearing backlog causes for disabled people and the cause of that backlog, inadequate administrative funding. Still, articles such as this suggest that the problems caused by Social Security's hearing backlog aren't near by. They're out there. They only affect stupid people living in rural areas who are drug addicts. I don't have to worry about this because it doesn't happen to people like me. Let me suggest to the Post's writers that they don't have to travel far to find disabled people to write about. I expect that they can find them within a couple of miles of
their offices. They can easily find people with the same problems who have college educations. There are plenty of people their readers can identify with whose lives have been devastated by Social Security's hearing backlog. It can even happen to reporters.
By the way, I do not tell clients that they should avoid work while awaiting a hearing. I do tell them that regular work, even part time work, can affect their case. Theoretically, if it's below a certain earnings level, it's not supposed to but in the real world it can affect perceptions. Anyway, most claimants who return to work, even part time work, don't last long. Also, by the way, I don't require that male clients wear a dress shirt to their hearing, much less to meet with me.
By the way, I do not tell clients that they should avoid work while awaiting a hearing. I do tell them that regular work, even part time work, can affect their case. Theoretically, if it's below a certain earnings level, it's not supposed to but in the real world it can affect perceptions. Anyway, most claimants who return to work, even part time work, don't last long. Also, by the way, I don't require that male clients wear a dress shirt to their hearing, much less to meet with me.
14 comments:
I tell them work is best.
1. If they can do it, then they will usually earn more than PIA.
2. If they can't do it, then we will get statements from employer why they cannot do it.
3. No matter what, they have to survive and not give up hope.
I found it odd that the attorney didn't request an in person hearing and instead accepted the VTC with one of the lowest paying ALJs in the country. An in person hearing is always preferred, especially when the VTC is with that ALJ.
I also agree about not discouraging clients to attempt work. I think it adds to their credibility and could lead to a closed period award.
I also encourage clients to work, and ONLY on the books. As said, for a fair Judge trying shows they want to work, not that they can, and if they can work at SGA, then they're better off anyway and if they were out for more than a year, that can still mean a closed period.
One issue in the highlighted case is lack of medical care. Mississippi is one of those States that refused to expand Medicaid. As a result, for the poor, there are likely few choices as to ongoing care. Getting care, to either provide evidence or get you better, is at least possible. At least in NJ where I am, not getting care is more a poor choice than an unavoidable occurrence.
I also object to video hearings, not just because of the chance of getting a bad judge since you can't know who the judge will be if you don't object to a video, but because being in the room with the Judge is just so much better in terms of understanding a person's problems. I accept the fact that video hearings are here to stay but I would have a rule that all Judges have to hold at least 50% of their hearing in person so they at least regularly see the people they are dealing with. And no Judge should hold video hearings at all until they have been a Judge for a minimum of two years.
The only real good advice I heard from his counsel is the need to be specific. Not too far or not too long or the like are useless and I try to make my clients know that they need to be specific. Give me numbers, not vagaries. And understand that this is your chance to tell your story. Don't be embarrassed to tell your story.
Lastly, a 55 year old with what sounds like was a heavy laboring job with pretty much any documented physical problem should be able to win his case. And, given the obvious mental problems, perhaps undocumented, this case should, but may not be, a solid winner, at least as of attainment of age 55.
You can't do more with less, you do less with less. While Social Security may be the most dramatic, this is happening across the Federal government. Having fewer people to do the work does not stop the work from coming. The applications will still be there, even in greater numbers as the population increases. Remember, we don't have the money even though the proposed DoD budget of $700 billion will be spending $22,000 per second.
In our area at least, most reps only object to VTC to make sure that the case is being heard by the judges from the local hearing office that has our remote site and not by a judge in another part of the country. Once they know the case has been assigned to one of those local judges they consent to having the case heard by video. This means most judges dont have to travel to our remote site very often and will wait until they have a full docket of true video denials to do it. It adds months onto the already long wait time to get hearings scheduled.
Very often, the claimant has not hired an attorney at the time he or she gets the notice to opt out of the video hearing. The notice is pretty confusing to all of my clients, and they don't do anything - which means that a video hearing is scheduled by default. There's nothing I can do to stop that.
I agree about work activities. I tell clients that if they can't do the work, we need to be able to get someone from the workplace to verify this. I've also used the Work Activities Questionnaire to get in information about my clients' inability to do competitive work. It can be really helpful if I can show that my client was allowed extra breaks, or that the employer tolerated some other type of accommodations, to allow him to work.
I also remind my clients that they have to tell their story. I empathize with them, telling them that I realize in our day to day lives, we go around in public trying to put our best face on the world, but on the day of the hearing, we have to let others know just how bad it is.
While I don't require long sleeve shirts for hearings, I strongly encourage clients to look their best including ties for men after an experience a couple of years ago when a judge THANKED my client for wearing a tie. He said it was the first claimant to wear a tie all year. It was July. We won. Can't hurt might help.
I also object to video conferences so I have a better chance of having experience with the ALJ. They all have their different quirks and I prepare my case accordingly. And I encourage my clients to try to work... Better for them if they can work instead of be on disability, better for the case to show the judge they tried and failed.
Are there any real statistics out yet that selecting a video option gets you a quicker hearing? Anecdotally I have not yet seen any significant difference in wait times between video and non-video.
1:09 PM. I did my failed work attempts BEFORE I applied. I was able to work easier and easier jobs at the same employer with significant time off as my pain levels increased. Eventually, even the easiest of jobs became impossible for me to do at anything close to a competitive level. I eventually did a medical retirement. I worked about 11 months total in my last 27 months. The last 10 days I worked in about 4 weeks (5 days, 12 days off, then 5 more days) were excruciating! It was PAINFULLY obvious that even simple tasks were beyond my capabilities.
SGA $1180 divided $10/hr equals 118 hours. 118 hours divided by 4.33 (number of weeks in a month) equals 27.25 hours/week 5.45 hours/day (based on a 5 day week).
This is what it boils down to. Not what you made before, not what you "deserve" not what is "fair" not what you "need" to live. This is what you have to prove you are not capable of. Doesn't say you have to work it all the time, just every month, in a job that may or may not exist in the current economy or location.
You want more cases approved? Get them to make regional SGA amounts based on actual numbers for food, rent and utilities in the area and the average salary of that area. Most of us agree that SGA is not representative of a living wage. Most of us would agree that many people who receive benefits are capable of the SGA numbers but the evidence can be made to support total disability.
@12:47 1:09 pm here. I totally get it that most workers continue to work until they just can't do it anymore. Most of my clients are incapable of finding a job that they can do and are ultimately found disabiled.
But a lot of people think that since they are waiting for a Social Security hearing that they can't work at all or it will ruin their case and in the article, the attorney was telling his client he CAN'T work. Which is false. If a person finds a job they can do, they can amend the application to get a closed period of benefits for the time they couldn't work. And some individuals can find part time work that does not prevent them from getting Social Security Disability. So I disagree with the attorney telling his client that he can not try to find work.
However there are rules and risks that the individual needs to be aware of before they start working so a claimant needs to speak to his representative before trying to work to make sure that they do not ruin their case.
Curious - why do ALJ's approved closed periods instead of applying work incentives, 9 month trial work period and 36 month extended period of eligibility as part of the decisions that they make? The field office would apply work incentives if the claimant went to work after a favorable decision (unless return to SGA in less than 12 months).
Always tell clients they need to do what they have to do. It will or might affect their case. But if you have to live, you have to live.
The biggest misconception I believe is - 1. Can someone reasonably work without so much pain? 2. Should they work with so much pain?
Disability should not be whether someone could theoretically work if their life depended on it. Pretty sure most people could if their life depended on it. This is not the standard.
What a great article. It really outlines the difficulties on the claimant side of things.
There are areas of improvement that can be made.
AFTER THE HEARING:
The claimant should be issue a preliminary decision prior to it actually being written. On average claimant's are waiting 4-6 months for a decision to be written. Many times the judge has made the decision within a few weeks following the hearing. Making claimants wait several months to get a paper decision for a simple formality is wrong and creates unnecessary anxiety.
APPLICATION PROCESS:
This is the bread and butter of where the issues lie. There needs to be changes in how DDS processes claims. So many claimants end up clogging up the hearing system that should have been approved during the initial application process. We need to end the age discrimination that occurs in the administration. Age should play no part in making decisions when a claimant has a verifiable disease or ailment that is not related to age.
If you fix the application process there won't be a need to hire more ODAR staff as the caseloads will go down.
Post a Comment