WHAT IS A CLOSED PERIOD OF DISABILITY?Here's a question from our mailbag this week: I hear people speak of a "closed period" disability claim with Social Security. What is that?" A "closed period" of disability simply means that the disability began on a certain date and ended on a certain date. A closed period could award back pay for a disability that was in the past but would award no future or continuing benefits. Let's say that Clem Claimant hurt his back at work and had to stop working for back surgery. Let's say he stopped working on June 1, 2011 and recovered, then he began working again on July 1, 2012. Since Clem was off work for the required 12 months minimum, he could seek benefits beginning June 1, 2011 and ending June 30, 2012. If approved, he would receive back pay for the 13 months - minus the 5 month waiting period. (In this example he would actually receive pay for 8 months, 13 months minus the 5 months). Since Clem has gone back to work full-time, he will not be eligible for any continuing benefits. His disability period "closed" when he began working again. I have handled many hearings for claimants with closed period disability cases. If there is medical evidence of a legitimate injury or illness that was severe enough to require the claimant to be off work, most judges have no problem approving a "closed period" of benefits. One issue that may arise in this type of case is: Does the claimant have transferable skills that would have permitted him to have performed any other work while he was off his regular job? (If he could have performed some other type of work, based on his age, education and past relevant work experience, he may be found "not disabled" during the period in question). __________________ By Charles W. Forsythe The Forsythe Firm Social Security Disability Representatives Huntsville, AL (256) 799-0297 See Our Disability Website for More Free Info. Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits. To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court. Learn more about NOSSCR here.

Here's a question from our mailbag this week:  

I hear people speak of a "closed period" disability claim with Social Security.  What is that?"

A "closed period" of disability simply means that the disability began on a certain date and ended on a certain date.  A closed period could award back pay for a disability that was in the past but would award no future or continuing benefits.

Let's say that Clem Claimant hurt his back at work and had to stop working for back surgery.  Let's say he stopped working on June 1, 2011 and recovered, then he began working again on July 1, 2012.  Since Clem was off work for the required 12 months minimum, he could seek benefits beginning June 1, 2011 and ending June 30, 2012.  If approved, he would receive back pay for the 13 months - minus the 5 month waiting period.  (In this example he would actually receive pay for 8 months, 13 months minus the 5 months).

Since Clem has gone back to work full-time, he will not be eligible for any continuing benefits.  His disability period "closed" when he began working again. 

I have handled many hearings for claimants with closed period disability cases.  If there is medical evidence of a legitimate injury or illness that was severe enough to require the claimant to be off work, most judges have no problem approving a "closed period" of benefits. One issue that may arise in this type of case is: Does the claimant have transferable skills that would have permitted him to have performed any other work while he was off his regular job?  (If he could have performed some other type of work, based on his age, education and past relevant work experience, he may be found "not disabled" during the period in question).
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By Charles W. Forsythe
The Forsythe Firm
Social Security Disability Representatives
Huntsville, AL
(256) 799-0297          See Our Disability Website for More Free Info.


 
  Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits.   To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.   Learn more about NOSSCR here.

HOW MANY APPEALS ARE THERE IN A DISABILITY CASE?

Social Security disability cases are subject to the same basic structure of appeals as most other legal matters.  Here are the possible steps that an SSDI case may follow:

1. INITIAL DECISION.  I call this the initial application stage.  In Alabama, 70 percent of all applications are rejected at this stage.  It's the rule, not the exception.  Don't give up here.  You must not.
2. RECONSIDERATION.  In 40 states, you must ask for reconsideration by the same agency that denied your case the first time.  In Alabama and 9 other states, you may skip this step and ask for a hearing.
3. REQUEST FOR HEARING.  You file a formal request for a hearing by a federal administrative law judge (ALJ).  It usually takes up to 12 months to obtain this hearing.  The odds of winning are better at this stage.
4. APPEALS COUNCIL.  If the ALJ issues an unfavorable decision (or partially unfavorable), you may appeal to a group of judges in Falls Church, VA known as the Appeals Council.  You do not appear before these judges.  You may submit written states or evidence which will be reviewed.  It frequently takes 2 years or more to get a decision from the Council.  The Council may (a) do nothing and let the ALJ decision stand, (b) remand the case back to the ALJ for further consideration, or (c) reverse the ALJ's decision and issue a more favorable decision.  The most common relief provided by the Appeals Council is "b" - the case is referred back to the ALJ for further review and consideration.
5. FEDERAL DISTRICT COURT.  If the Appeals Council action leads to no fully favorable resolution, the claimant may file suit in US district court.  This may require 2 years or more for a decision.  The federal court may take any of the actions described above under the Appeals Council.
6. US SUPREME COURT.  This is not a real-world scenario.  Technically, a Social Security claimant may petition the Supreme Court to hear a case; however, the Court actually hears perhaps 1 or 2 Social Security cases every two or three years.  So the odds of getting your case before the nation's highest court are slim and non and "Slim just left town."

I recently represented a case that was originally filed in 2000. Before I became involved in the case, it had been denied, appealed to an ALJ, denied, appealed to the Appeals Council, denied again; tried in US District Court, which remanded the case back to the administrative law judge for further review.  The case had been in the adjudication process for almost 12 years and the poor claimant had not received one penny in benefits.  Thankfully, this not the path that most cases travel. 

Most cases get resolved at the administrative law judge or hearing level.  This is the most likely venue to receive a favorable decision.  That's why it is so important to present a good, organized and well prepared case when you appear before the ALJ for your hearing.

DISABILITY HEARINGS - TECHNICAL ISSUES

A disability hearing before an administrative law judge is a complicated procedure requiring skills of persuasion, logic, legal knowledge and sharp cross examination. It requires a blend of tact, argument, questioning and sometimes humor.  Here are a few issues that routinely surface during most Social Security disability hearings.

Which of the claimant's past jobs can be classified as "past relevant work" under Social Security law?  The claimant's representative must know which jobs qualify as past relevant work and which do not.  He must be sure that jobs that do not meet the technical legal definition are not permitted in vocational testimony about past job skills.  This can be crucial at Step 4.

Does the claimant have any transferable skills?  Allowing the vocational expert to find that the claimant has transferable skills may torpedo the case.  A representative must be prepared to object to assigning skills to the claimant that are not credible because, for examples, the work was performed too far in the remote past, the job was not performed long enough, or the technology has changed so as to make the claimant's skills obsolete.

What is the claimant's residual function capacity (RFC)?  In simple terms, what can the claimant still do in spite of his/her impairments?  What medical evidence places specific limitations on such abilities as walking, standing, lifting, carrying, bending, stooping, climbing, etc.?  Are there non-exertional limits that erode the occupational base?  These might include limitations in memory, concentration, persistence and pace; the ability to understand and carry out simple instructions, the ability to get along with supervisors, coworkers or others....

What if the judge offers an amended onset date?  Is the amended onset date prior to the date last insured?  Is there medical evidence to support an earlier onset date?  The date on which the judge finds the claimant to have first become disabled will determine whether back pay is due, and how much.   

At Step 5, if the vocational expert testifies that the claimant can still perform work at the sedentary exertion level, what rules, regulations or laws challenge this finding?  What evidence in the medical record rebuts it?

If the claimant has abused alcohol or drugs, is that abuse material to the alleged impairment(s)?  Does Social Security law permit drug or alcohol abuse to qualify for disability?  Does it prevent a claimant from getting disability benefits?  What if the judge cannot determine whether the claimant would still be disabled even if he stopped abusing alcohol or drugs? 

Did the claimant just say something that may have ruined his case?  He may not have noticed - but the representative should have!  The representative should clarify the problem on redirect so that the judge is not left with a false impression.  If the medical evidence contains inconsistencies, the representative should be able to explain them satisfactorily.

A Social Security disability hearing is a complex matter.  It is NOT walking into a courtroom and telling the judge a sad story about how bad you feel.  Explicit questions of law must be answered and the burden of evidence must be met.  Otherwise, there will be no award of benefits and the claimant will go home empty handed.  Think about it carefully before you gamble your financial future on self-representation.  Most of the time, it simply does not work.  If you do not hire the Forsythe Firm to represent you at your hearing, for heaven's sake, hire someone locally who has the experience and skill to represent you well.  You will not be sorry that you did.  (And if you don't win, the representative cannot charge you a fee - zip - none)!

WHAT HAPPENS AT A DISABILITY HEARING?

Claimants who propose to attend Social Security disability hearings unrepresented usually do so because they are not familiar with what goes on in such a hearing.  The purpose of this brief discussion is to give you a little orientation as to what happens at a disability hearing.  Perhaps this will convince you that it is not something you should attend unrepresented.

You will be appearing before a federal Administrative Law Judge (ALJ), who will administer an oath to you and other witnesses so that all testimony will be under oath.  The judge will then explain the legal issues involved in the case.  Then, the claimant will be subjected to a series of questions, designed to determine whether he/she meets the legal definition of disability under the Social Security Act.  The claimant will be given an opportunity to explain why he feels that he does meet the legal requirements of the Act.  This would be done by the attorney or representative if one is present.

A vocational expert (VE), also sworn, will be asked to classify all the claimant's past relevant work.  The claimant has the obligation to object to any of the vocational expert's testimony about past work.  An experienced representative is tremendously valuable here.  Whether or not the claimant has transferable skills, for example, can be the deciding factor in winning or losing the case.  Claimants are typically not schooled in how to object to vocational testimony.  Representatives are.

The judge will then ask the vocational expert a series of hypothetical questions to determine if the claimant can perform any of her past relevant work?  If the ALJ determines that the claimant can perform any past relevant work, the case has been lost.  This would occur at Step 4 in the 5-Step sequential process.  If the VE finds that no past relevant work can be performed, then the ALJ will ask him to determine if there exists any other work that the claimant could perform.  If the judge concludes that that the claimant can perform any other work the case has been lost.

Steps 4 and 5 that I have just described are the crucial, pivotal steps in the hearing.  The claimant must be ready to cross examine the vocational expert and call any of his unfavorable testimony into question.  If this is not done effectively, the case can be lost.  This involves a skilled oral cross examination of the vocational expert - just like would occur in any other trial in any other courtroom in the nation.  If a claimant does not understand Social Security law or regulations, he or she has little hope of an effective rebuttal of the VE's negative testimony.

A representative will also have submitted a written brief prior to the hearing.  This brief will give the judge the legal theory of the case, pointing out the medical and vocational evidence that supports a favorable ruling.  I am writing a second post that explains some of the complicated issues that routinely come up at a hearing.  (Please see my article on this blog titled "Disability Hearings:  Technical Issues."

DISABILITY CLAIMS PROCESS IN ALABAMA

Here are the basic requirements to qualify for Social Security disability. 

•  You are not working at "substantial gainful activity."  In 2013, that means you are not earning wages of at least $1,040 per month, gross.
• You have a severe, medically determinable physical and/or mental impairment with medical evidence to support it.
• You expect to be out of work for at least 12 consecutive months.
• You have worked long enough to build up the required quarters of coverage to be covered by SSDI.  For most workers age 40 or over you would need to have worked at least 5 out of the most recent 10 years.  (Rules may be different for younger workers). 

 Step 1 involves filing a benefit application with Social Security.  You may do this online at www.socialsecurity.gov, at a local Social Security office, or by telephone at 1-800-772-1213.  You may also have an attorney or disability advocate help you file the application.  However, the claimant must sign the application.

Step 2: Your application will be reviewed by the Disability Determination Service to determine whether you meet Social Security's rules for disability.  In Alabama, about 70 percent of claims will be rejected at this level.  Step 2 will be to file a request for hearing before an administrative law judge.  This is the only step in the process where you get to appear face-to-face with someone at Social Security to explain your case.  I caution claimants who have reached this stage in the process not to appear at a hearing unrepresented.  Most judges agree.  In fact, if you do appear unrepresented, the judge will most likely have you to sign a form stating that a representative may be of great help to your case and he/she may postpone the hearing to allow time for you to hire representation.

Over half of the applications that are denied in the first phase will be won at the hearing level.  This is especially true if the claimant has adequate professional representation.  A representative may not charge you a fee unless you win your case AND collect back pay or retroactive benefits.  Social Security must approve any fee proposed by the representative.
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Presented by The Forsythe Firm, Social Security Disability Advocates in Huntsville, AL and local members of the National Organization of Social Security Claimants Representatives.  (256) 799-0297.

  Established in 1979, the National Organization of Social Security Claimants' Representatives is an association of over 4,000 attorneys and other advocates who represent Social Security and Supplemental Security Income claimants. Our members are committed to providing high quality representation for claimants, to maintaining a system of full and fair adjudication for every claimant, and to advocating for beneficial change in the disability determination and adjudication process.  www.nosscr.org
Visit the Forsythe Firm's website

DISABILITY HEARING CHECKLIST

Pilots go through an extensive checklist before they take off.  I read an article recently about a checklist for Social Security attorneys and advocates.  The purpose is to have an organized method of checking the case - to be sure everything has been done.  Here is an example of a Social Security disability hearing checklist.  Of course, you can make these lists as long and detailed as you want.  I've kept this one fairly simple.

• Has all the medical evidence been submitted and labeled for exhibits?
• Have you secured a Medical Source Statement from at least 1 treating doctor? 
• Would written statements from family members, friends or co-workers help?
• Are all impairments - physical and/or mental - being documented and used?
• Has a legal brief or memorandum been submitted?
• Has the case been screened or considered for an on-the-record request?
• Checked to see if there is any record of wages after the alleged onset date?
• Have you found and explained any contradictions in the medical records?
• Is there a sound theory of the case and is it well defined and articulated?
• Do you have multiple reasons why the claimant cannot work? 
• Is there a plan to address special problems, eg., a history substance abuse?
• Have the Appendix II Listings been compared to see if a Listing can be met?
• What is the claimant's residual functional capacity?  How is that established?
•  How is the claimants past relevant work classified as to exertion and skill level?
• Does the claimant have any transferable skills?
• Can the claimant's age, education and functional capacity show inability to work?
• Is there a Grid Rule that would direct a finding of disability at step 5?
•  What type of work is the vocational expert likely to suggest the claimant can do?
• Have you prepared effective cross examination for the vocational expert?
• Are all of your questions for the vocational expert in "occupational terms"?
• Have you met with your client and prepared him/her for the hearing?

If you feel you need help preparing for a Social Security disability hearing the Forsythe Firm in Huntsville will be happy to give you a free consultative visit at no obligation.  You may contact us at (256) 799-0297 or toll free at 1-855-854-2274.  

TYPES OF DISABILITY DECISIONS

When a claimant appeals a Social Security disability decision to an administrative law judge (ALJ), there are 3 decisions possible:

Unfavorable - means that the judge finds the claimant not to be disabled; therefore, is entitled to no benefits at all.

Fully Favorable - The judge finds the claimant has been disabled from the "alleged onset date" (AOD) and allows payments back to that date - or as far back as Social Security law permits (not more than 12 months prior to the application date).

Partially Favorable - There are two types of "partially favorable" decisions.

• The most common, the ALJ finds the claimant is disabled but moves the alleged onset date forward, in effect, reducing the amount of past due benefits or back pay the claimant will get.
• Another type of "partially favorable" decision would be when the judge finds the claimant disabled for a "closed period."  In other words, the claimant was disabled for a period of time but is no longer disabled.  In this case, the claimant would get a lump sum settlement for his or her past period of disability but no continuing benefits.

Medicare insurance is awarded in most favorable cases - but there is a 24 month waiting period, starting with the first month in which the claimant is eligible to receive a disability payment. The claimant must also wait 5 months after the established onset date (date he is found to be disabled) before becoming eligible for payments.  So, the effective waiting period for Medicare is 29 months from the established onset date.
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The Forsythe Firm handles Social Security disability claims and appeals for individuals in Alabama and Tennessee.  There is no fee unless you obtain a favorable decision and collect back pay benefits.  (256) 799-0297.

Can a Representative Make You More Money?

Why do most claimants choose a representative when trying to collect Social Security disability benefits?  There are several reasons but the best one may be money.  There are usually thousands of dollars in back pay riding on the Social Security disability claim. Whether you collect that money or lose may depend on the kind of case you present.

We recently had a case that had been denied twice, then appealed.  We were able to establish a date in early 2010 for the onset of disability.  We were also able to collect monthly benefit payments back to 2010 so the claimant wound up with a lump sum back payment of over $27,000.  Proving an early onset date is essential to collecting all of the back pay you deserve.

At the Forsythe Firm we fight hard to get you all of the back pay you deserve.  Just because you qualify for back pay does not mean that Social Security will volunteer to pay you for it.  You need an experienced advocate looking out for you.  This is especially true at the appeal or hearing level - where most cases are won these days.

We do not charge any fee unless (1) You win your claim, and (2) You collect a lump sum back pay settlement - in addition to your monthly benefit check.  If you live in North Alabama, call a local Social Security disability advocate.  (256) 799-0297.

We serve Social Security hearing offices in:  Huntsville, Decatur, Cullman, Gadsden, Anniston, Jasper, Florence and others.  We regularly represent claimants in Nashville, Franklin, Tullahoma, and Chattanooga,Tennessee. There is no charge, no obligation to speak to us about your Social Security disability claim. (256) 799-0297

DISABILITY: WHAT YOU MUST PROVE

If there's a Social Security disability hearing in your future, here is what you must prove to obtain your benefits.

1. You are not working and have not worked at substantial gainful activity* since your alleged onset date--the date you say you became disabled.
2. You have a severe impairment that has lasted or is expected last for 12 consecutive months or more.
3. If you do not meet one of the Social Security listings, then your residual function capacity (RFC) must be determined. It is best if you bring documentation from your own doctor concerning functional limitations.
4. You are not able to perform any of your past relevant work because of your condition(s).  This includes all work you performed at substantial gainful activity levels during the past 15 years.
5. You are also not able to perform any other work based on your residual functional capacity, age, education, etc.

The "easiest" work classification is sedentary work - which is work that can be performed mostly from a sitting position.  Most disability cases come down to proving that you cannot perform even sedentary work for 8 hours a day, 5 days per week.

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*Substantial Gainful Activity in 2012 is defined as any work in which you earn at least $1,010 per month before tax.  Work could be deemed SGA if you did not earn that much - but that is the general rule.  SGA usually does not include part-time jobs where earnings are below $1,010 per month - or jobs that only lasted a few weeks.

Judge Gives Good Disability Advice

I recently got a call from a lady who had just walked out of a Social Security disability hearing.  She was unrepresented.  The judge advised the claimant to get representation and offered to delay the hearing until it could be obtained.  Wisely, the claimant took the judge's advice and immediately began looking for a representative.

Rarely do judges hear disability cases where the claimant is not represented.  And there is a reason for that.

"I thought I just went before the judge and told her my story and that was all there was to it," the claimant said.  "When I got into the hearing room, I found that it was much more complicated and I wasn't prepared for what was about to happen."

People commonly under estimate Social Security hearings.  These are hearings before a real judge, with all persons giving testimony under oath. Complex Social Security law and procedural rules will be used.  Vocational testimony will likely be given by a vocational expert using terms that you don't understand:  past relevant work, skill level, SVP, exertional level, medium exertional, light exertional, sedentary, the Dictionary of Occupational Titles, etc.  You will not know how to cross examine the vocational expert to control potentially damaging testimony.  And you will have nobody to help prepare your own testimony prior to the hearing.

I tell claimants that going before an administrative law judge without representation would be equivalent to my getting into the ring with Mike Tyson or George Foreman and going 10 rounds.  It would not be a fair fight.  Believe me!  (Hurts to think about it)!

There is no risk in hiring qualified representation.  You cannot be charged a fee unless 2 things happen:  you win your case and you collect lump sum back pay off your claim.  Your representative will be paid a small percentage of your back pay.  Remember, back pay is not automatic.  You have to prove that you qualify for it.  That is another area where good representation isn't expensive - it's priceless.