Critical Elements of Effective Representation #5

Element 5: Ensuring Maximum Past Due Benefits Are Paid to Our Clients- The Public Disability Offset

     Past due benefits (a.k.a. retroactive benefits) are paid to claimants after a favorable disability determination is reached. It is our job to make sure that our clients receive the maximum benefits they are entitled to under the law. Our office carefully reviews Social Security/SSI Award Notices to watch for mistakes, and to ensure that Social Security correctly computes the amount of past-due benefits.

     An award of past due benefits is based on an individual's past FICA contributions, as reflected in one's Certified Earnings Record. Social Security must also consider the amount of monthly "public disability" benefits paid, such as Worker's Compensation or State Disability Insurance (SDI). It is important to carefully review all official Award Certificates because Social Security oftentimes makes errors in computing past due benefits. Social Security mistakes usually occur after incorrect information/assumptions about the exact past amount of (or ending dates of) Worker's Compensation or State Disability Insurance (SDI) benefits paid out.

     The general rule is that, in any given month, the combination of Social Security disability benefits (paid to the individual and dependents) and public disability benefits cannot exceed 80% of an individual's "highest average earnings". In general, one looks five years immediately before the beginning year of disability, and 80% of the highest year's earnings is the maximum which can be received. Once a public disability offset begins, the 80% reduction does not include annual Cost-Of-Living Adjustments (COLA), which are passed through to claimants and their dependents without a corresponding reduction in benefits.

     By way of example, if an individual's "highest average earnings" was $36,000 in one of the five years preceding the year of disability, this represents $3,000 per month. 80% of $3,000 equals $2,400 a month, which would represent the 80% limit. If a claimant's Primary Insurance Amount (PIA), or monthly Social Security disability benefit, was $1,200, that individual could receive no more than $1,200 in public disability benefits. (i.e.. maximum of $2,400 per month) If that same individual was receiving $1,600 per month in Worker's Compensation, the total individual or family monthly Social Security benefits would be subject to a public disability offset (reduction) of $400, for a payment of $800. ($800 plus $1,600 equals the $2,400 limit)

     It is important to recognize that often times the amount of Worker's Compensation benefits change. If they are reduced, and proof is provided to Social Security, an individual could be entitled to a corresponding increase in their monthly Social Security disability payment. Similarly, SDI benefits generally last no more than one year, so providing proof of their termination to Social Security may result in a significant increase in monthly Social Security disability benefits.

     The situation is even more complicated if an individual is receiving both Workers Compensation and State Disability Insurance (SDI) at the same time. 

Richard A. Gutstadt, Esq.

Critical Elements of Effective Representation #4

Element 4: Establish and Maintain Credibility of Our Clients and the Attorney

     A fourth element of effective representation is credibility. This includes not only maintaining the credibility of the attorney, but establishing the credibility of our client.

     The credibility of the attorney who appears regularly in front of the Administrative Law Judge (ALJ) is of utmost importance. Having the respect of the ALJ is a source of pride for our office. We maintain credibility through a number of means, including: 1) always presenting all arguably relevant medical evidence to the ALJ, (2) fully preparing the case ahead of time for the ALJ, including drafting a pre-hearing memorandum, and (3) always being truthful and respectful to the ALJ at the hearing.

     The credibility of our client is more important than that of the Attorney because ultimately the ALJ has to believe you before he/she will approve disability benefits. An ALJ may hold hearings for dozens of Claimants a month, and using the short amount of time in front of the ALJ to make a good impression, represents our client's best chance to convince a judge of their disability.

     Toward that end, our clients testimony must be carefully thought out in advance. It should be supported by the medical and other evidence of record. Exaggeration of symptoms or limitations, and/or dishonesty of any kind, can destroy a Claimant's credibility. We work with our clients ahead of time to explain the importance of credibility in achieving success of their claim. This includes the need to always be truthful and respectful to the ALJ.

     It is important to understand that most disability cases are not "slam dunks", which is why they have made it to the hearing level. Our job is to maximize the favorable aspects and minimize the unfavorable ones. This, helps to ensure that the ALJ gives our client the "benefit of the doubt" for any conflicts in evidence that may arise. Doing so means maintaining the credibility of both the attorney and our client.

Eric J. Patrick, Esq. & Richard A. Gutstadt, Esq.

Critical Elements of Effective Representation #3

Element 3: Strong Advocacy Before and During the Hearing: Claimant and Expert Testimony

     A third element of effective representation is advocacy, which involves asserting a strong, solid theory of disability. Effective advocacy involves many aspects, including the attorney's ability to elicit favorable testimony from our client and his/her witnesses, to interact with the Administrative Law Judge (ALJ) during the hearing, and the ability to effectively cross-examine Medical and Vocational Experts. Of course, effective advocacy starts with a solid knowledge of our client's medical condition, as well as our theory of the case.

     The attorney's interaction with the ALJ is crucial. ALJ's have vastly different personalities and styles, and the attorney must have the foresight and flexibility to adjust accordingly. Flexibility in advocacy at the hearing may be as important as preparation before the hearing.

     Our attorneys appear in front of the same judges on a regular basis. We generally know the specific legal standard used by the judge in authorizing an award of disability benefits. It is our job to effectively provide the necessary evidence and analysis to assist the judge in making a favorable disability determination.

     After sending the judge a pre-hearing memorandum, setting forth our theory of disability (see Element 2: Preparation for the Hearing), effective hearing advocacy first means eliciting favorable testimony from our client, as well as his/her witnesses. Although ALJs may focus primarily on the medical evidence in making their decisions, strong witness testimony is not only important, but it can often fill in any gaps and be the "deciding factor" in a case. An effective advocate knows how to question both a client and his/her witnesses.

     Critical advocacy includes attorney cross-examination of Medical and Vocational Experts (MEs and VEs). Medical Experts generally are doctors who have read the medical evidence in advance. They provide their opinion to the ALJ as to 1) The severity of our client's medical condition, and 2) what limitations (e.g. standing and/or walking, sitting, reaching) are reasonably consistent with our client's medical condition.

     Vocational Experts provide vocational testimony to the ALJ about our client's work history, including the type of work, duties, and skill requirements of Past Relevant Work. A VE will also provide opinion evidence as to alternative jobs which he/she believes that our client can perform in the local, regional, and national economy .

     Effective advocacy requires attorney cross-examination of hearing experts to help clarify issues and establish medical and vocational facts. Ultimately, effective cross-examination is intended to influence the ALJ to make a favorable disability finding for our clients.

Eric J. Patrick, Esq. & Richard A. Gutstadt, Esq.

Critical Elements of Effective Representation #2

Element 2: Preparation for the Hearing: Submitting and Evaluating Medical Evidence

      A second element of effective representation is preparation. After meeting with our client, the attorney sets in motion an individual case plan to ensure that all relevant medical evidence is submitted to the judge in a timely manner. Before the hearing the attorney will prepare a written memorandum for the Administrative Law Judge (ALJ).

      An ALJ makes his/her decision based upon the medical evidence of record. By preparing a written, pre-hearing memorandum, we give the judge a favorable impression of our client's case. We present our client's story from a perspective that is both sympathetic and firmly grounded in medical evidence and relevant legal argument. This attorney memorandum addresses the interconnected nature of medical, testimonial, and vocational evidence. It is a "roadmap" which increases our client's overall chance of success.

      Evidence considered by the ALJ at the hearing includes both written evidence and testimony taken at the hearing. Written evidence may include medical evidence, such as medical records and/or reports, and vocational evidence which describes our client's Past Relevant Work. Other important written evidence consists of an official Earnings Record, which describes how much a wage earner has earned in the past, and when the earner likely stopped working. A solid earnings background is good evidence of a Claimant's strong motivation to work.

      Hearing testimony comes from the claimant, and possibly lay witnesses (which could be a relative or friend), as well as from experts. There may be Medical Experts (ME's), as well as Vocational Experts (VE's), who testify at a Claimant's hearing. [See Element 3 of Effective Representation: Advocacy Before, During and After the Hearing]

      Obtaining and developing medical evidence of disability is critical to winning our client's case. Our law office advances costs for our clients, who do not have to repay us unless we are successful in obtaining disability benefits. This practice differs from some other offices, which often require their clients to pay their own costs ahead of time in order to obtain medical records. How can a client pay his or her own costs when they are unable to work, and lack spending money for ordinary living expenses? A client who has to pay his or her own costs ahead of time may find himself at a distinct disadvantage in establishing his or her disability. 

Eric J. Patrick, Esq. and Richard A. Gutstadt, Esq.

Critical Elements of Effective Representation #1

Element 1 : Communication Between Client and Attorney

The first element of effective representation is communication.  For our firm, communication begins by having the client meet with his/her attorney at the beginning of the case.  This serves two purposes.

         First, the attorney is able to talk to the client and develop one or more supportable “theories” of the case, ultimately increasing our client’s chance of success at the hearing level.  Second, meeting with an attorney allows our client to voice questions and concerns about his/her case, which can then be directly addressed by the attorney.  We believe that this process serves to enhance confidence in our ability to provide effective representation throughout the hearing process.

Moreover, communication includes our client’s ability to talk with their attorney, as necessary, during the entire appeal process, up to and including their hearing in front of an Administrative Law Judge (ALJ). In the Oakland ODAR hearing office, it generally takes around 10 months to get a hearing. During this time our client’s circumstances often change, and being able to speak with one’s representative may be very important.  

       Effective communication also involves interaction with our experienced staff members, who are familiar with the appeals process, and  communicate regularly with the attorneys. A client’s interaction with our staff is a necessary part of the hearing preparation. It generally includes updating and obtaining medical records, or completing forms sent to our clients by the Social Security Administration.

       Lastly, after obtaining a favorable disability decision, communication means being able to assure our clients that Social Security has accurately computed the amount of past due benefits to which our client is entitled. It may be necessary to address complex post-hearing payment issues. Oftentimes the Social Security Administration will “underpay” or “overpay” a claim, requiring the attorney to appeal an Award Notice. It takes an experienced attorney and staff to effectively evaluate and ensure payment of  the proper amount of past due benefits.

Eric J. Patrick, Esq.

The 5 Step Sequential Evaluation Process

     As you may have heard or read in the news lately, getting Social Security Disability benefits can be a long and arduous process – and the burden of proof is on the applicant. To evaluate and make a determination of disability, the Social Security Administration uses a "5 Step Sequential Evaluation Process". Although the 5 step process may look simple at first glance, there can be enormous complexity at each step of the evaluation.

Step 1: Is the Claimant engaged in "Substantial Gainful Activity"?

     I always tell clients, "It doesn't matter what physical or mental condition[s] you have. If you are making money at a certain level per month [Substantial Gainful Activity], you are not disabled by Social Security standards."

     Currently, employee earnings over $1,040 per month are considered Substantial Gainful Activity and, if made on a consistent basis, will lead to an automatic determination that you are not disabled.  Keep in mind that under Social Security regulations your condition must have lasted, or be likely to last, for more than one year. This means that you cannot have consistent earnings above the level of Substantial Gainful Activity for a least one year to initially be considered for disability benefits.[1]

Step 2:  Does the Claimant have a “severe, medically determinable impairment"?

     Having a severe, medically determinable impairment means having more than just a series of complaints.  Saying, "I have back pain", "I don't feel good", "I'm depressed", or "I'm tired all the time" are complaints – not conditions established by a treating physician.

     "Medically determinable" means that your condition has been recognized and diagnosed by a doctor. 

     "Severe" means that your condition results in some form of functional limitations, either from a physical or psychological perspective (or combination of both), which would affect your ability to work. The degree and severity of your functional limitations are most relevant at Steps 3, 4, and 5.

Step 3:  Is the Claimant’s impairment so severe that it “meets or equals a Listing”?

     The Social Security Administration has put together a series of medical "Listings" which are used to determine whether your condition is so severe that you are automatically disabled.  The Listings have some flexibility so that even if you don't meet the Listing exactly, you may be found to equal it, resulting in a finding of disability.  Listings can be very detailed and always require strong, "objective medical evidence"[2] in order to be satisfied.

     Overall, the number of individuals found disabled because they meet or equal a Listing is very small. Hence, most individuals fall into what is called a “Step 4 and Step 5” analysis. Of all the steps involved in the process of proving one's claim for disability, numbers 4 and 5 can be the most complicated.

Step 4:  Is the Claimant capable of performing his/her "Past Relevant Work"?

     "Past Relevant Work" consists of any work you have performed in the past 15 years at the level of "Substantial Gainful Activity". Whether you can still perform any of that work may be determined by a Social Security judge or a "vocational expert" – an expert on jobs and how they are performed in the local and national economy.

     By analyzing the requirements of how your past relevant work is generally performed, and taking into consideration any functional limitations resulting from your physical and/or psychological condition, the vocational expert will determine whether you can still perform any of that work.

     If the expert determines that you can perform any of your past work, you will be found not disabled. If the expert determines that you cannot perform any of your past work, we move Step 5.

Step 5:  Is the Claimant capable of performing “any other jobs”?

     A determination of whether you can perform "any other jobs" means looking at other available jobs in the local and national economy, no matter how unskilled, menial, or uninteresting. "Available" for purposes of this step does not mean that an employer is hiring; it means that any given occupation is still being performed in significant numbers in the United States nationally, regionally, and locally.

     Using a similar analysis of how other jobs are performed, combined with any functional limitations resulting from your physical and/or psychological condition, the vocational expert will once again render an opinion if there are a significant number of jobs that you can perform.

     To be successful in your claim for disability, you must generally prove that there is no full-time employment that you can still do[3], either because of a physical or mental condition, or a combination of both.

Eric J. Patrick, Esq.

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[1] Exceptions to this rule, called Unsuccessful Work Attempts, are narrow and require specific evidence to prove.

[2] "Objective medical evidence" can be radiographic or laboratory test results. Clinical evidence consists of the observations and conclusions of the treating physician. Your personal complaints about physical and/or psychological symptoms and limitations are subjective evidence, and are insufficient to meet or equal a Listing on their own.

[3] Exceptions to this rule based on age, education, and category of past work may begin at age 50.

Mental Impairments and Social Security Disability

A severe mental disorder can affect an individual’s ability to work in many ways.  However, having a definitive diagnosis of a mental disorder is not automatically grounds for receiving Social Security Disability benefits.  As with all claims for disability benefits through the Social Security Administration (SSA), the burden of proving disability is on the applicant, and proof requires strong objective and/or clinical medical evidence.

In assessing one’s ability to work an 8 hour day (40 hour a week) job for individuals with a severe mental disorder, the SSA is interested not only in a diagnosis (e.g. depression, anxiety, bi-polar disorder, or PTSD etc.), but in how the condition affects your ability to function overall.  Some of the areas the SSA considers are how the condition affects (1) your understanding and memory, (2) your ability to sustain concentration, (3) your ability to socially interact with co-workers, supervisors, and the public, and (4) your ability to adapt within the workplace structure.

Most importantly, objective clinical evidence and functional assessments regarding limitations must come from an acceptable treating source, such as a psychiatrist (M.D.) or a psychologist (Ph.D/Psy.D).  They must be consistent beginning with when the individual claims to have become disabled.  Specifically, evidence could consist of assessments, prescription history, neuropsychological, IQ, and personality testing, and/or the treating provider’s notes from therapy sessions.

The SSA will also consider additional evidence regarding functional limitations from a non-physician or non-psychologist (e.g. a social worker or Physician’s Assistant) once it determines an impairment to be “severe”.  Vital evidence may also include third party statements, as well as testimony from the Claimant, and any witnesses at the Claimant’s hearing in front of an Administrative Law Judge (ALJ). 

Eric J. Patrick, Esq.