DISABILITY APPEALS & HEARINGS FRANKLIN TN

The Forsythe Disability Firm
725 Cool Springs Blvd.
Franklin, TN 37067
PHONE (615) 732-6159

Gregory W. Forsythe, Partner
Charles W. Forsythe, Partner

Practice Focused on Social Security Disability 

Office also located in Huntsville, AL (256) 799-0297

WHEN SOCIAL SECURITY SENDS YOU TO THEIR DOCTOR

In about 20 percent of Social Security disability cases, the agency will send claimants to one of their contracted doctors for a consultative examination (CE).  This usually occurs when there is limited evidence from the claimant's own treating doctors.

Social Security contracts with doctors in private practice to perform these exams.  Here is generally what to expect at a consultative exam (CE):

• It will be brief.  The doctor may spend as little as 15 minutes with you.  Usually there are no tests.
• The doctor has been provided with a checklist of things to look for.  He/She will focus only on what is on the list.
• CEs are often not helpful for the claimant.

Here are a few tips that may help the examination go smoothly:

1. If you cannot attend the examination, call the Disability Determination Service (DDS) which scheduled the exam as early as possible.  This should only be for an unavoidable emergency. Also call the doctor's office.  (The doctor will not call DDS for you; it's important you call them, too).
2. Arrive at the exam site 15 minutes early.
3. If possible, have someone drive you to the exam.
4. Take a list of all medications and dosage with you.
5. Be cooperative with the doctor.  Failure to do so will guarantee a bad report to Social Security.  Put forth your best effort.
6. Don't try to "sell" the doctor on the fact that you are disabled and should be on disability.  The doctor cannot approve you or sign you up for benefits.  He is a fact finder and has a checklist of medical items to check during the exam.
7. Answer the doctor's questions as directly as possible.  Get to the point and avoid unnecessary details. 

Doctors are allowed 30 days to send in their examination reports to Social Security.

WHY THE FUNCTION REPORT IS CRITICAL TO DISABILITY CLAIMS

Social Security disability is awarded base on a claimant's limited ability to function.  It is not awarded based on diseases, but on functional limitations.

The primary way Social Security evaluates your functional ability is by a detailed questionnaire that they refer to as "the ADL (Activities of Daily Living) questionnaire.  The official name of the document is the "Function Report."

The Function Report is an 8-page document with Sections A-D and it contains approximately 60 questions.

I understand the temptation to ignore this form (just not bother with it) or to fly through it quickly because you feel it is a waste of time.  This is a crucial mistake.  You should spend a lot of time with this form.  In fact, this form should be your constant companion for a couple of days until it is completed lovingly, comprehensively, thoughtfully and very, very completely.

The Function Report will ask you things like:

• Do you cook your own food? How long does it take you? What do you cook?
• Do you spend time with others?
• What are your hobbies? How often do you do them?
• Do you go places on a regular basis?
• When you go out, how do you travel?
• Do you get along well with others?
• Do you need help caring for others or pets?
• Do you need help with bathing, getting dressed, or feeding yourself?
• How do your illnesses, injuries conditions affect your sleep?
• Are there things you used to do that your disability now stops you from doing?

Social Security will use your answers to these questions to determine (a) how your illness or injury affects your activities of daily living, and (b) are your allegations of symptoms consistent and credible.

If your application is denied (about 70% will be), the judge who hearings your appeal with use this same Function Report to evaluate consistencies in your symptoms and the credibility of your complaints.  This Function Report literally stays with you from the day your file your claim until the appeal is decided, perhaps 24 months later in some cases.

If you are unable to understand or complete the Function Report in loving, comprehensive detail--get someone who can help you:  a relative, your pastor, a friend, etc.  If you are represented by an attorney or advocate, he/she will understand this form and help you complete it correctly.  But for heavens sake, do not ignore the form or (just as bad) fly through it checking boxes just to say you finished it

SOCIAL SECURITY OBSTACLE COURSE (OR) "THE ORDEAL"

Social Security disability was set up under the Social Security Act to provide income for workers who became disabled before reaching retirement age.  The program is complex, difficult and confusing.  There are too many obstacles placed in the way. No wonder it's called "the Ordeal."

 Here are a few of the obstacles you must overcome to win benefits:

 Obstacle:  The Application for Benefits.  A typical Social Security benefit application package contains at least 38 pages of forms, questionnaires and documents.  Many people simply cannot complete all these forms in a way that allows benefits to be paid.  Social Security will use some of these forms, such as the Function Report, to deny claims.

Obstacle:  The Consultative Examination.  In some cases, Social Security will order you to attend a "consultative examination" with the doctor of their choice.  This doctor typically spends about 15 minutes with you and performs no lab tests, X-rays or other diagnostic procedures.  In 90 percent of cases, the doctor will find no significant abnormality and will, in effect, pronounce you fit to work.  He will report that you are able to get on and off the exam table without assistance, have limbs that appear normal, have breath sounds that seem OK and that you are "in no apparent distress."  Good to go.  Here comes your denial.

Obstacle:  The Single Decision Maker.  A single decision maker at the Disability Determination Service, who is not a doctor,  will review your medical records and make a decision that you may not be able to perform any of your past work but that there is some other work that you could do.  

Obstacle:  The Burden of Proof.  You are assumed to be able to work until you can prove otherwise.  If you are under the age of 50, it isn't enough to prove that you cannot perform any of your past work (called 'past relevant work').  You must also prove that there does not exist any other job in the United States economy that you are able to perform. This is a very high burden of proof.   Social Security will often argue, for example, that you could do the work of an inspector, garment tagger, ticket taker, egg washer, assembler or hand packager...  They will even argue that you can perform these jobs sitting down and that you can change from sitting to standing any time you need to.

Obstacle:  Interpretation.  Social Security will interpret medical and vocational evidence as it suits them.  If you look out the window and say it's raining, they will say, "Where do you find that in the medical evidence?"  If your doctor gives you a letter stating, "Mr. So-and-So is not able to work," Social Security will say, "The doctor is not allowed to make that decision."  

This is why a huge industry has grown up around Social Security disability.  At least 70 percent of all claims get denied before they are approved.  The appeal process is long, complicated and technical.  Unless you understand Social Security regulations, it can be a maize of terms, processes, interpretations and requirements that you have no hope of understanding.  

The Forsythe Firm helps claimants in Alabama and Tennessee overcome the obstacles and win their disability benefits.  Free consultations - and you will never pay us a fee unless your successful case results in past due benefits.  If we lose, you don't pay.  (256) 799-0297.

 

'THE RECENT WORK TEST" FOR SOCIAL SECURITY DISABILITY

If you stopped working more than 5 years ago, you do not have coverage for disability with the Social Security Administration.

You need to recent work to be eligible for disability benefits.  You must have worked at least 20 out of the last 40 quarters, or more simply put, you must have worked 5 out of the last 10 years.

If you stopped working at a job that pays FICA tax more than 5 years ago, you will not be able to get disability benefits, no matter how much you paid into the system.  That money remains in the trust fund (pool) until you reach retirement age.

Your Date Last Insured (DLI) is the date you stopped being insured for disability claims with Social Security.  If a disability begins after the DLI, it is not covered.  This is one more good reason not to delay in filing a claim as soon as you feel you have become disabled.

SOCIAL SECURITY DISABILITY APPROVAL RATES - 2015

The following chart shows Social Security disability award (approval) rates at various stages of review:


 
 Award rates are down at all levels.  Here is how awards by administrative law judges (hearings) have taken a free fall since 2010.  Award rates by year:

2010    62%
2011    58%
2012    53%
2013    48%
2014    45%
2015    42%*

No one knows why the award rates bottomed out or if the free fall is over.  The usual suspects are Congressional pressure and hostile media coverage.
----------------
2015 rates are estimated.  

HOW TO GET A FREE DISABILITY CLAIM EVALUATION NOW

The Forsythe Firm in Franklin, TN and Huntsville, AL is offering free, no obligation evaluations of Social Security disability claims.  We will evaluate your claim before you file, recommend the best approach and tell you the strengths and weaknesses of your claim.  Every claim is different.

Factors that must be considered in any claims analysis include:

1. Your age
2. Your education
3. Your past work history and experience
4. Your medical conditions - both physical and mental
5. How much medical treatment you have received and are now receiving?
6.  Do you meet a Listed Impairment (not required)?
7.  Can you qualify for a Compassionate Allowance and faster approval?
8.  Are you a disabled veteran?

How does a free case evaluation work?  First, we will speak with you on the telephone and take some basic information.  Next, we will probably set up a free office consultation at our Huntsville Office (near Bridge Street).  We will review your medical and job information and help you make a decision whether you have a viable claim for Social Security benefits.  We will not pressure you in any way.  We will explain your options, how we work, how long it will take, etc.  If you decide for us to represent you, and if we decide to take your case, you will only pay us a fee if you win your claim and collect past due benefits.  If you lose or if you collect no past due or retroactive benefits, you never pay us a dime, no matter how much we worked on your case.

You may start by telling us about your condition by answering a few simple questions on our website.  This information is confidential, to be reviewed only by one of our trained advocates or partners.  Just click the link below and answer a few basic questions.  We will contact you for more information.

Click HERE to go to our website.    Then, click on the "Tell Us About Your Claim" tab in the center of our home page.

You may also call us in Franklin, TN at (615) 732-6159 or in Huntsville, AL at (256) 799-0297.

GETTING DISABILITY - THE MEDICAL EVIDENCE

The federal regulations reserve Social Security disability benefits to individuals who an prove disability with objective medical evidence.  Generally, you must be able to provide medical records from doctors, psychologists, clinics, hospitals or other acceptable medical professionals that show.......

• the existence of impairments
• the severity of impairments
• the duration of impairments (how long symptoms have lasted)

There are two types of medical evidence.  Objective medical evidence may include imaging studies, laboratory reports, EKG, and comprehensive examinations by a qualified doctor.  Subjective medical evidence refers to opinions of professionals who have viewed the objective evidence and given a professional opinion concerning your symptoms, diseases or injuries.

It isn't enough for a claimant to allege back pain, for instance.  It isn't enough for a doctor to make a note in her chart that the patient has complained of back pain.  Most helpful would be an X-ray or MRI study showing the probable source and cause of back pain, such as a bulging or herniated disc, foraminal canal stenosis,  degenerative disc disease, etc.  Then, your doctor might offer an opinion as to how the disease (or injury) would limit your ability to sit, stand, walk, bend, crouch, crawl, lift, etc.

"It is really by demonstrating significant limitations on the ability to perform common work related activities that you qualify for disability benefits."

How severe must the limitations be?  The answer lies in the combination of several key facts:  the claimant's age, level of education and past work experience.  For most claimants under the age of 50, the impairment must prevent the ability to perform any full-time work.  The rules are somewhat less stringent for persons over age 50. For example, a claimant who is over age 55, has a limited education and past relevant work that is unskilled may only have to demonstrate that he cannot perform any of his past work.  A younger individual will likely have to prove the inability to perform any and all work which exists in the US economy.

If you are suffering from a medical condition that you feel may lead to disability, it is extremely important to get prompt medical attention, continue to see your doctor(s) regularly and try to follow the recommended treatment plan. It is also important to tell the doctor(s) about all your symptoms and explain any problems you are having with such things as prolonged sitting, standing, walking, bending, lifting, concentration, fatigue....etc. 

 

UNDERSTANDING SOCIAL SECURITY'S DEFINITION OF "WORK" - ANSWERING THE QUESTION "CAN I WORK?"

Is there work that you are able to do?  If so, you are probably not disabled under Social Security rules.  So, let's consider what Social Security means by the term 'work.'

Work refers to the ability to sustain work activity for 8 hours a day, 5 days per week, or an equivalent schedule.  Anything less than that is not work under Social Security rules.

You are unable to work, for example, if you can......

• work 5 or 6 hours a day but not 8 hours
• work 3 or 4 days a week but not 5 days
• work part-time but not full-time
• work for a few weeks but then have to miss several days due to a flareup
• work for several months but then have to miss a month or two due to illness on a persistent, regular basis
• report to work 5 days a week but have to leave early several times a month because of illness, pain, depression, etc.
• work most days but often have to come in late due to sickness
• work most days but will be absent 3 or more days per month due to illness.

So, the real issue with Social Security is this:  Are you able to work full-time, 8 hours a day, 5 days a week, 52 weeks a year--without missing more than 1 or 2 days per month on a persistent basis?  In other words, can you sustain full time work?  If the answer is no, you are disabled.

Keep in mind that there are many different kinds of work, ranging from very easy work to very difficult work.  Social Security classifies work by its exertion requirement--from sedentary (sitting) to very heavy (lifting 100 pounds or more).  Work is also classified by the skill level required to perform the work:  unskilled, semi-skilled or skilled.

Therefore, it's very difficult to speak of "work" without asking, "What kind of work?"  You may be unable to do some kinds of work but able to do other kinds of work.  Individuals under the age of 50 generally must prove that they cannot perform ANY work available in the national economy.  Persons over the age of 50 may be only be required to show that they are unable to perform their past relevant work (work they performed during the past 15 years).

Other factors that will enter into a decision about your ability to work will include:  education, past work experience, your residual function capacity, and as we just mentioned, your age.