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Louis B. Lusk
Social Security Disability Attorney
Social Security Disability Attorney


Dear Judges: Please Speak English

Social Security Disability Hearings are held before Administrative Law Judges, who usually ask the Claimant a series of questions. I am constantly amazed at how many of these Judges have difficulty communicating with my clients, most of whom have blue collar, working class backgrounds.

It’s as if the Judges speak a different language. I call it “Judge-Speak”, and I am often required to act as a translator so my clients know what the Judge is saying.

Here are some real life examples of Judge-Speak and how I have translated the questions into plain English for my clients:

Judge: “Do you require the use of a hand-held assistive device to ambulate?”

Translation: “Do you use a cane or a walker?”

Judge: “Are corrective lenses necessary for either near or distance visual acuity?”

Translation: “Do you wear glasses to see better close up? What about far way?”

Judge: “What was the highest level of education you attained?”

Translation: “How far did you get in school?”

Judge: “Please rate your level of pain on a scale of one to ten, with one representing less than mild discomfort, five representing significant discomfort but less than debilitating pain, and ten representing debilitating pain resulting in total incapacitation?”

Translation: “On a scale of one to ten how bad do you hurt?”

Judge: “What impairment or combination of impairments precludes your ability to engage in substantial gainful employment?”

Translation: “Why can’t you work?”

In conclusion, Judges should utilize language consistent with the Claimants’ educational and vocational backgrounds in order to foster better communication and to facilitate the expeditious conclusion of the proceedings.

In other words, use plain English and the Hearings will be over quicker.

How Being Over 50 Affects Your Social Security Disability Claim

If you are between the ages of 50 and 65 you have a much better chance of qualifying for Social Security disability than younger individuals. This is because of the so-called “grid” rules. These rules are based on charts (or grids) that outline the requirements to prove disability based on age, education, and the skill levels of past work.

Generally, the older you are the easier it is to qualify for disability. For example, if you are 50 at the time of the onset of the alleged disability and you prove to SSA that (1) you are limited to sedentary (“sit down”) work and (2) that you are unable to perform the duties of your past work, and (3) that you have no transferable job skills that would qualify you to do other less strenuous work, you could win your claim automatically based on these “Grids.”

When you turn 55 it becomes easier to qualify for disability than someone 50 to 54, and when you turn 60 it is easier to qualify than someone 55 to 59.
Disability attorneys call this “gridding out” and we argue these rules all the time in disability Hearings. For all of my clients between 50 and 65 I first try and develop a winning case based on the grid rules.

However, even if you do not automatically qualify for disability based on the grids, you may still be able to win your claim. You and your attorney can do this by proving that because of your impairments you are unable to do your past relevant work, and that you are also unable and unqualified to perform any jobs that exist in substantial numbers in the local or national economy.

Social Security Disability and COPD

Can you recover Social Security disability benefits for Chronic Obstructive Pulmonary Disease, or COPD? The short answer is yes, in some cases.

My clients with this condition often describe the feeling of an “elephant sitting on my chest” making it difficult to breathe. Any strenuous physical activity can trigger shortness of breath and cause them to cough, wheeze and gasp for air.

While years of smoking can often cause or contribute to this condition, not everyone with COPD is a smoker. Years of working around dust and prolonged exposure to chemicals and noxious fumes can lead to this disorder as well.

COPD is treated with the use of inhalers like albuterol and some newer medications that reduce inflammation and mucous production. Some of my clients also use portable oxygen containers and receive steady bursts of oxygen through a face mask or nasal prongs.

(The first thing I ask any client with COPD is if they smoke. If they do I tell them to stop smoking now! That is the single best thing they can do for their condition.)

To get approved for Social Security disability for COPD you must either have such a severe case that it meets the “Listing” for Respiratory Disorders (that is, it is so severe that you qualify automatically) or this condition, alone or in combination with your other health problems, renders you unable to work. For the latter requirement to be met you must generally prove that you are unable to perform the kind of work you used to do or any other work that you may be qualified for at your age and education level.

Most people with COPD will also have other health problems that may affect their ability to function. When filing for Social Security disability it is important to document all of your medical problems, as the Social Security Administration is required to consider all of your conditions in making their determination of disability.

Appealing an Initial Denial of Social Security Disability Past the Deadline

If you file a new claim for Social Security disability benefits and receive a “Denial Letter” from the Social Security Administration (“SSA”), you may appeal this decision. This appeal, called a “Request for Reconsideration” generally must be filed within 60 days of your receipt of the denial letter.

I am often contacted by individuals who were turned down for disability and have already missed the 60 day deadline to file an appeal. In those cases I try and find out if the person may qualify for an extension of time in which to file the Request for Reconsideration.

You may, in fact, be able to get permission to file the appeal after the 60 days has expired. This extension will be granted only if SSA determines you have “good cause” (in other words, a good reason) for missing the deadline.
Examples of acceptable reasons for the missing of the deadline include being hospitalized or otherwise incapacitated due to illness, not receiving the Denial letter, a death in the family, or mistakenly submitting the appeal to the wrong government agency. Examples of what would not usually be deemed “good cause” include miscalculating the deadline date or simply misplacing the Denial Letter.

I routinely file Motions for Good Cause to allow my clients to file the Request for Reconsideration past the 60 day deadline. I have been successful in getting these extensions to many clients who would otherwise have had to start the entire application process over.

If SSA approves your Motion for Good Cause and accepts the late filing of the Request for Reconsideration, the appeal is accepted and the claim is sent to a different adjudicator for a review. You may be able to win your claim at this “Reconsideration” level. However, if you also get turned down at this level, you may file an appeal called a “Request for Hearing.” This appeal must also be filed within 60 days of the receipt of denial of the Request for Reconsideration, and the same “Good Cause” extension rules apply at this level as well.

Therefore, if you get turned down for Social Security disability, remember that time is of the essence. You should either file an appeal or contact an experienced disability attorney to file the appeal for you ASAP!

Social Security Disability and Going Back to Work:

Some of my clients, while waiting for their Social Security disability Hearing, ask me if they can go back to work. “I have to pay the bills!” they will say, and I completely understand. The issue, however, is how the Social Security Administration (SSA) considers earnings in determining whether one qualifies for disability.

Generally, you are not eligible to recover Social Security disability benefits if you earn more than $1,170.00 per month (or $1,950.00 per month if you are blind). Any income at or above this level is considered “Substantial Gainful Activity” (or “SGA”), and if you make that much you will not qualify for disability, regardless of your health problems.

However, SSA allows claimants who are already receiving disability benefits to return to work without affecting their monthly benefits under what’s called a “Trial Work Period.” You can work up to nine months over a 60 month period making over $840.00 a month and still be eligible for disability. This rule is meant to encourage claimants to try and return to work.

If a client informs me that they want to go back to work while waiting on a decision about their disability, I usually advise him or her to go ahead and try to work, but only if they feel they are able to. A job with a steady paycheck is always preferable to relying on disability checks from the federal government.

If they get a new job making less than $1,170.00 per month they will be “under SGA” and may still qualify for disability benefits. If they make more than $1,170.00 I can ask the Administrative Law Judge to award benefits for a “closed period” from the date of disability to the date of the start of the new job.

Of course, most of my clients are not well enough to even attempt to return to the workplace. For those clients I encourage them to focus on their health and to be patient while we wait for a court date.

Social Security Disability and Schizophrenia

Schizophrenia is a serious mental illness that afflicts over 3 million Americans. Symptoms may include paranoid delusions, compulsive and disorganized behavior, mental confusion, agitation and aggressive behavior. Without the proper medical treatment, those with this disorder may pose a threat to themselves or others.

As a disability attorney, I am often contacted by a family member of someone with schizophrenia in order to help them apply for his or her Social Security disability benefits. A common refrain I hear is that their loved one needs anti-psychotic medication in order to function, but without money or health insurance he or she is unable to get the help they need.

There are a number of ways to prevail on a claim for Social Security disability for schizophrenia. One is to present credible evidence of specific severe symptoms, such as delusions, hallucinations, emotional isolation and social withdrawal that cause the client to have at least two of the following limitations:

• The inability to engage in normal activities of daily living;
• The inability to function socially;
• The inability to focus or stay on task; and/or
• A history of recurring, lengthy episodes of worsening symptoms.

Another way to prove disability for this condition is to present medical evidence establishing that the condition:

• Has lasted at least two years, and
• Has had a negative impact on his or her ability to work, and
• Has impaired his or her ability to function in the world without a great deal of outside support, and
• Has caused the individual to suffer episodes of decompensation (increase of symptoms and loss of function).

These cases can be very challenging, and the active participation of family members or loved ones in the claims process can be essential. If approved for Social Security disability or SSI, in addition to receiving monthly benefits, my client will be covered for psychiatric treatment under Medicare or Medicaid. Therefore, these cases can be rewarding as well.

The Trump Administration and Social Security Disability:

The issue of Social Security disability did not come up very much in the 2016 campaign for president. Both Hillary Clinton and Donald Trump promised to protect Social Security in general, but neither provided details about the SSDI program specifically. Trump repeatedly said that Social Security should not be “cut” for recipients. However, he also promised to fight “waste, fraud and abuse” among all federal programs, and he is likely to seek some sort of reform of the federal disability program.

More importantly, the 115th Congress will have Republican majorities in both houses, and may pass legislation that would limit or restrict disability benefits that would have had no chance of surviving a veto by President Obama. For example, the new Congress may attempt to eliminate the simultaneous receipt of SSDI (Social Security Disability Insurance) benefits and unemployment benefits, with the savings used to pay for unrelated programs.

Republican Senator James Lankford of Oklahoma has proposed a major overhaul of the program, which if adopted would generally make it more difficult for all claimants to be approved for disability benefits.

My view is that President Trump will be less likely than other Republican presidents to support any legislation that would drastically cut Social Security disability benefits. He has not made reducing government spending a priority, and in fact has proposed massive increases in spending on infrastructure and the military. He may conclude that sensible reform is needed in order to streamline the process and to ensure that only the truly disabled are approved for benefits, but I do not foresee him signing into law any legislation that would result in a major overhaul of the entire program.

If you suffer from a lot of side effects from you prescription medications, should you include this fact in your claim for Social Security disability benefits?

Yes. When applying for Social Security disability benefits it is important to let the Social Security Administration know about all of the medications you are taking, and how the side effects of these medications impact your ability to work. While rarely disabling on their own, these side effects in combination with your other impairments can form the basis of a finding of disability.

For example, pain medications like codeine and morphine, anti-anxiety medications like valium and ativan, and anti-depressants like prozac and elavil are known to cause drowsiness and sleepiness. This would eliminate work around dangerous or heavy machinery. Other medications like tramadol and ambien may impede your ability to focus, concentrate and stay on task, thus negatively affecting your ability to hold down other gainful employment.

So remember to include medication side effects when listing your impairments while pursuing your claim for Social Security disability benefits.

How much does a Social Security disability attorney usually charge?

Most Social Security disability attorneys do not charge anything up front. Instead, virtually all disability lawyers work on what is known as a "contingency fee contract." If the client's claim is approved and past due benefits are paid to the client by Social Security, the attorney normally receives 25% of the back benefits.

However, there is a statutory "cap" on how much an attorney can recover from these back benefits. Currently, this cap is set at $6,000.00. In other words, the attorney cannot recover more than $6,000.00 regardless of how much money is awarded in past due benefits. For example, if the client is awarded $50,000.00 in back benefits, the attorney would receive $6,000.00 and the client would receive $44,000.00. The client always keeps 100% of any ongoing benefits.

This arrangement is beneficial to those seeking legal representation for Social Security disability, as most disability Claimants have few resources available to pay a lawyer out of pocket.

Who Has The Burden of Proof in Social Security Disability Hearings?

In a Social Security disability Hearing, you, as the Claimant alleging disability, have the burden of proving that your disability prevents the performance of your “past relevant work.” For example, if your past work has been as a carpenter, you and your attorney have to prove that you cannot climb ladders, handle power tools or lift heavy wood beams.

Once we prove you cannot do your past work, then the burden of proof shifts to the Social Security Administration (SSA) to prove that you are unable to perform other work in the national economy. An expert witness is usually called to testify as to the existence or non-existence of these other jobs. It’s important to have an attorney who understands this issue and is able to effectively cross-examine this expert witness if he or she testifies that there are jobs you can perform.
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