CONCENTRATION, PERSISTENCE AND PACE ISSUES

I win many Social Security disability cases by showing how my client has trouble with concentration, persistence and pace (CPP).

These issues are not obvious to the casual observer but certainly may qualify for a disability benefit. Under SSR 96-9(p), Social Security considers "work" as the ability to work 8 hours per day, 5 days per week or an equivalent schedule.  CPP issues prevent this and qualify for disability.

CONCENTRATION is the ability to remain focused and on task for at at least 2 hours at a time and to complete an 8-hour workday.  Most workers will be off task about 5 to 9 percent of the workday and this is tolerated.  However, concentration can be hindered by pain, fatigue, depression or other mental health issues.  When a worker is off task more than about 10 percent of the workday on a consistent basis due to one of these medical issues,  they become unemployable.

PERSISTENCE is the ability to report to work and do a job  8 hours a day, 5 days a week, 52 weeks out of the year.  Some individuals can work part of the time but not on a dependable, regular schedule.  For example, if you can work 3 or 4 days per week but would have to be absent 2 or 3 days, you don't have the persistence for full-time work under 96-9(p).  The same is true if you can work 4 or 5 hours a day but not 8.  If you can work but require a few additional rest breaks during the day due to pain or fatigue you don't have the persistence for full-time work and may be disabled.

PACE is the ability to work fast enough and steady enough to meet the job's requirements.  If you need additional time to complete your work, require excessive help or supervision or other special accommodations, you may not be able to sustain the pace required of full-time, competitive work.  A worker is expected to be able to "keep up" with job demands, and this includes goal setting, planning and the independent execution of job duties.

Your attorney or representative will examine these CPP issues and determine if your disability case will be strengthened by making these arguments.  In a hearing, there is nearly always a vocational expert present to testify.  Your representative will want to pose questions to the vocational expert about concentration, persistence and pace problems--which may result in the decision that you cannot perform full time, competitive work, thus resulting in approval of benefits.

Call us if you need a free evaluation of your case without cost or obligation.

SOCIAL SECURITY BENEFIT IS NOT WELFARE

I speak truthfully when I tell people that Social Security disability is not welfare.  You paid for it, you earned it.  Claim it.

Here's why the Social Security disability program is not welfare:

1)  You paid FICA tax every day you worked.  FICA stands for "Federal Insurance Contribution Act."  It's actually a Social Security tax.  It came out of every paycheck you earned.

2)  You were forced to purchase Social Security disability insurance (SSDI) by the US government.  You were not given a choice.  This is a government sponsored disability insurance plan, just like you would purchase from an insurance company.  The only difference, it was mandatory--you were forced to buy it, no choice.

3)  The Social Security program is self-financing.  It is not paid for out of the general US treasury.  FICA taxes come out of your paycheck, are matched by your employer, and go into a special trust fund.  When you become disabled, money comes out of the trust fund to pay your benefit.  This is the same principle used by large insurance companies to offer benefits to their policyholders.  When you get an SSDI benefit check, you are not spending government tax money.

If you bought an insurance policy from Allstate, State Farm, Met Life or any other large insurance company, and paid premiums for years, wouldn't you expect them to pay a claim on the policy?  That would not be welfare.  That would be business under contract.

The same is true with Social Security disability.  You paid the premium every day you worked.  Now, you have a claim.  Expect the government insurance plan to pay off on it.  No welfare involved here.   

BAD BACK: GOOD CASE

Spinal disorders are the Number One cause of disability in the United States.  They can make good SSDI cases.  If you have a bad back, you may have a winning claim if you........

a)  Have had an MRI of the spine and it shows bulging or protruding discs or other severe spinal impairments;

b)  Have a history of medical treatment for back pain without significant improvement;

c)  Get a statement from your orthopedic specialist which lists your restrictions in sitting, standing, walking, bending, lifting and reaching.

Your odds will be improved if your past work involved a great deal of standing, walking, lifting and bending.  However, many individuals with bad backs also have trouble sitting for prolonged periods and this can impair the ability to do sedentary type work, as well.

Objective medical evidence, including imaging studies are critical.  Social Security does not like to pay for back pain where the cause (etiology) is not clearly demonstrated. But if there is physical evidence, spinal disorders may certainly be legally disabling conditions.

DISABILITY DUE TO INFLAMMATORY BOWEL DISEASE

There are a number of inflammatory bowel diseases which can so interrupt the workday as to make an individual disabled.These would include Crohn’s disease, ulcerative colitis, schistosomiasis and amebic colitis, among others.  Such illnesses are evaluated in Section 5.00 of Social Security's Blue Book.

These illnesses may preclude the ability to perform any full-time work because of regular symptoms, including:

• need to take frequent unscheduled restroom breaks
• unscheduled time away from work station to use the restroom
• need for a work station near an always-open restroom
• gastric pain that interferes with attention and concentration
• excessive missed days from work due to symptoms
• medication side effects

Judges are usually going to want to see treatment using various medication and to see that the treatment does not eliminate your symptoms. When possible, I also try to get statements from former employers or co-workers about how the symptoms caused problems performing work.  These are often winning cases.

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