Hoglund Lawyer Laura Ross

1.  How do I prove that I am disabled due to diabetes?

Diabetes can be a very serious disease with multiple complications.  As with any claim for social security disability benefits, it is imperative that you treat regularly with a doctor, and follow their recommendations.  Lab reports are going to be important to show fluctuating blood sugar levels despite a regular course of treatment.  It is also essential that your symptoms are documented within your medical records.  Try to be as specific as possible when discussing your symptoms with your doctor.  For example, if you suffer from numbness in your hands and feet, tell your doctor exactly what activities are affected –such as using a computer, picking up change, or standing for extended periods of time.  

A. Neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C); or  

B. Acidosis occurring at least on the average of once every 2 months documented by appropriate blood chemical tests (pH or pC0₂ or bicarbonate levels); or  

C. Retinitis proliferans; evaluate the visual impairment under the criteria in 2.02, 2.03, or 2.04.  

* In order to be approved for benefits, you must prove at least one of the above requirements.*  

2.  What is neuropathy and how do I prove it?   

Neuropathy is nerve damage.  Symptoms may include muscle weakness, cramping, spasms, tingling, numbness, and pain.  To meet the listing based on neuropathy, the claimant must show that at least two of his or her extremities (arms or legs) have such nerve damage that he or she has difficulty using them due to pain, numbness, etc.  An individual’s ability to stand and walk will be analyzed, as well as balance and coordination.  

If you have been experiencing numbness, weakness, and pain and have not been diagnosed with neuropathy, it is extremely important that you bring this to your doctor’s attention.  Specific testing needs to be conducted to confirm the diagnosis.  

3.  What is acidosis and how does Social Security view it?   

Acidosis is defined as excess acid in the body fluids.  Diabetic ketoacidosis (DKA) is a potentially life-threatening complication in patients with diabetes mellitus, resulting from a shortage of insulin.  It may occur due to illness, poor compliance with insulin therapy, or other reasons.  Symptoms may include vomiting, dehydration, difficulty breathing, confusion, and coma.  Without proper treatment, diabetic ketoacidosis can lead to death.  Again, an individual must do their best to follow prescribed treatment for diabetes in order to be found disabled.            

4.  What is retinitis proliferans and when might this allow an approval for benefits?   

Retinitis proliferans is inflammation of the retina.  Diabetic retinopathy is analyzed under the third sub-section of the Diabetes Mellitus listing.  Social Security will evaluate a person’s vision difficulties under the following listings:  

• Loss of Visual Acuity (2.02)
• Contraction of the Visual Fields in the Better Eye (2.03)
• Loss of Visual Efficiency (2.04)

A person meets this listing if their vision after correction in the best eye is 20/200 or less, or other technical requirements involving their peripheral vision and loss of visual efficiency.     

5.  What if my symptoms from diabetes do not meet Social Security’s Listing of Impairments?   

 If your diabetes does not meet or equal Social Security’s criteria under the listings, your symptoms may still cause significant functional limitations which may prove you are unable to work.  An individual may have difficulty walking, standing, or may need to elevate their legs throughout the day.  Numbness in one’s hands may prove difficulty with tasks such as writing, typing, and using small objects.  Vision problems may prevent an individual from reading, using a computer, using small objects, or avoiding hazards in a work environment.  The functional limitations in combination may be enough to prove that no work would exist in the national economy for this individual.  

6.  I received my first denial in the mail.  Now what?  

Most claims are denied at the initial and reconsideration levels.  It is important not to give up, follow the appeal timelines, and being fully prepared at the time of a disability hearing.  Having representation and medical record documentation will make for the best chance of success.  If you have not hired a lawyer, you should get legal advice about your particular situation.  If you wish to call us about legal help with your Social Security disability claim, you can reach us toll-free at:   1-800-850-7867 or through HoglundLaw.com.

Laura Ross, Esq.  

→ For a free Hoglund Lawyer Guide to Social Security Hearings, click here:  Free Guide

© 2010, Hoglund Law Offices.  Reprint with written permission.

Related posts:

1. Top 6 Questions about Getting Social Security Benefits for Multiple Sclerosis (MS)
2. Top 4 Social Security Client Questions about Getting the Right Medical Treatment for your Social Security Claim
3. A Social Security Lawyer’s Top 7 Questions about Getting Benefits for Asthma & COPD

Hoglund Lawyer Andrew Kinney, Esq.

 → Click Here to Download your Free Lawyer Guide to Security Security Hearings   

Hoglund Lawyer Andrew Kinney, Esq., has just published a free “Client Legal Guide to Social Security Hearings.”  Finally, a way to understand what to expect at a hearing from a Hoglund Lawyer who does 400-500 Social Security hearings a year!   

This free 28-page client guide explains the entire hearing process, and shows you how your Hoglund Lawyer can help you get approved for Social Security benefits. 

Andrew Kinney explained why he wrote the guide:           

I wanted to help our clients understand what to expect at our hearings.  There are federal judges and experts, and the process can be scary even with one of our Hoglund Lawyers there with you.  We’ve found over the years that our clients benefit from knowing what’s going on at the hearings — especially when we are cross-examining experts or giving closing legal arguments.           

An excerpt from page 26 of the free Hoglund Lawyer Guide:         

Know that at your hearing, you are helping the judge understand your medical problems.  Most people know how they feel day-to-day.  Your attorney can describe the kinds of questions the judge may ask.  The judge can read your medical records, but you are there in person to give your side of the story and make your situation ‘real’ for the judge.           

This full color, fully indexed and bookmarked Hoglund Lawyer Guide answers these questions:      

• What is a Social Security benefits hearing?
• What am I trying to prove at my Social Security benefits hearing?
• Are there different kinds of Social Security benefits hearings?
• Who is at my Social Security benefits hearing?
• What will happen at my hearing?
• What should I bring? What should I wear?
• Fearing your hearing?
• Does my attorney need any legal forms for my hearing?
• What happens just before my hearing?
• What is my Social Security hearing file?
• What if I miss my hearing?
• What kinds of Social Security benefits are there for disabled people?
• When am I first disabled?
• What is my “Filing Date”?
• Does my “Filing Date” matter?
• Does Social Security make findings like workers’ compensation?
• What if I already receive disability from the VA?
• What is the most important legal concept I should know before my hearing?
• Does age matter?
• Can children under 18 receive Social Security benefits?
• How are children under 18 evaluated for disability at a hearing?
• What must my judge ask me at my Social Security hearing? What do I do after my hearing?
• How will I know whether I won or lost my hearing?
• Could I have a supplemental hearing?
• What is the full Social Security benefits appeal process?
• How will my attorney prepare for my Social Security hearing?
• How do I get paid?
• How does my attorney get paid?

About the Author:              

Attorney Andrew Kinney began practicing Social Security benefits law in 1992.  He graduated from the University of Notre Dame and Marquette Law School.  Since 1995, he has presented seminars on Social Security to lawyers and related professionals.  He is licensed to practice law in Minnesota, New York, Ohio, and Wisconsin.  He is next scheduled to present a legal seminar on cross-examination skills at a national conference in Chicago in the fall of 2010.     

If you would like to arrange for him to speak about Social Security Disability Benefits at your next group event, please feel free to call his offices at:  1-800-850-7867.             

→ Click here for YouTube video of Andrew Kinney:  5 Secrets to Getting Social Security Disability Benefits  

If you are not a current Hoglund Law Offices client, make sure to get legal advice about your particular situation.  To call us about representing you with your Social Security benefits claim, call toll-free now at:  1-800-850-7867.         

Remember, only a lawyer at a law firm can give you legal advice.  At Hoglund Law Offices, attorney fees are a quarter of back pay only if you win!             

© 2010, Hoglund Law Offices         

 

      

Related posts:

1. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
2. Social Security Lawyer Explains 10 Things that Happen at Hearings
3. 6 Ways to Hire the Right Social Security Lawyer

Hoglund Lawyer Andrew Kinney, Esq.

At administrative hearings with Social Security judges, our Hoglund lawyers argue disability methodically:  (1) Diagnosis, (2) imaging studies to support the diagnosis, (3) examination findings, and (4) client testimony.  Social Security’s decisions are primarily driven by medical treatment evidence.  So, getting the right medical treatment can make or break a case.     

Four questions arise most frequently from our clients about medical treatment:     

① Should I tell my doctor about my psychological needs?  Yes.  Depression, for example, is common for those with chronic pain.  I tell my clients to mention their legitimate concerns to their doctors.     

② Should I treat for medical problems that doctors cannot fix?  Yes.  Some of our clients stop treating because medical care isn’t helping their symptoms, such as headaches.  But avoiding doctors offers no medical proof for Social Security.  Our clients should maintain appropriate doctor appointments at regular intervals.  This has two benefits.  One, it helps our clients’ doctors review the progress of the medical problems.  Two, it helps Social Security judges verify these problems.        

③ How much medical treatment should I get?  Enough that doctors you trust are satisfied with your care.  Don’t get treatment to “game” the system.     

④ Should I call my Social Security attorney about whether to get surgery?  No.  While it is good to keep us up-to-date about medical problems, I tell my clients to consult with their physician about what medical decisions are best for them.  Legally, Social Security judges will find the need for surgery relevant.     

In short, clients should make good medical decisions to get better, not to get benefits.   

If you are not our Social Security Benefits client yet, consult our law offices about your particular situation toll-free at:  1-800-850-7867.    

Andrew W. Kinney, Esq.    

Related posts:

1. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
2. A Social Security Lawyer’s Top 7 Questions about Getting Benefits for Asthma & COPD
3. Top 6 Questions about Getting Social Security Benefits for Multiple Sclerosis (MS)

At administrative hearings with Social Security judges, our Hoglund Lawyers review and argue asthma and chronic obstructive pulmonary disease (COPD) claims for our clients in particular ways.  Here are some answers to common questions from our clients at Hoglund Law Offices who cannot work due to asthma and other kinds of breathing problems.  (You should get an attorney for advice that applies to you.)

7.  What are Social Security disability benefits?

Social Security disability benefits (and Supplemental Security Income benefits) are monthly disability benefits payable to you if you are unable to work (or are expected to be unable to work) full-time for 1 year or more for medical reasons.

6.  Can I apply if I can only work part-time? 

Yes, but you cannot be going to work and regularly earning above certain monthly amounts.  For 2010, this “substantial gainful activity” amount is $1,000 gross per month.  This changes annually. 

5.  What does Social Security review in asthma claims?

In asthma and/or COPD claims, Social Security generally reviews:  

• Your diagnoses;
• Your pulmonary function test results;
• The frequency and severity of your asthma attacks or breathing issues; and
• The nature of your treatment (such as ER visits, nebulizer treatments, etc.)

The most important documentation of your breathing issues comes from testing of your ability to breath with and without medications.  Pulmonary function tests measure the amount and/or speed of air you can breathe in and out.  Imaging studies may also reveal other kinds of structural breathing problems. 

Important notes:  Make sure to talk with your doctor about whether you should have pulmonary function tests and how often.  Also, make sure to discuss any day-to-day breathing issues you are having with your doctor – including fatigue and shortness of breath.  Logically, the more your doctor knows, the more your doctor can understand how you are doing on your current medications.  This also creates a “track record” of how you are functioning when this comes up at Social Security hearings.  Your Hoglund Law Offices attorney can explain more about this.     

4.  When does Social Security find disability in asthma and/or COPD cases?

The general rule of thumb is that the more your asthma limits your ability to function, the greater chance you will be found disabled.  The Social Security Administration often looks to the frequency and severity of your asthma attacks and other breathing issues to determine whether your asthma significantly limits your ability to function.  For example, if you have been hospitalized frequently (such as once every two months) for control of your asthma, or if you require an oxygen tank, it may be easier to prove why you cannot work full-time.

3.  What factors does Social Security use in evaluating asthma/COPD cases?

Social Security focuses on objective findings that your doctors records from your medical appointments.  Social Security calls these findings “listings.”  Listings are found in Social Security’s regulations.  The primary listing for disabling asthma is respiratory system listing 3.03.  Note that it includes findings about your height because your testing results relate to your height. 

Note:  “Meeting” or almost meeting (“equaling”) the listing requirements below can allow an approval, but approval is also possible by proving you cannot medically work full-time.  Listing 3.03 (set out below) gives you an idea about how Social Security evaluates asthma:

 3.03 Asthma.  With:   

1.  Chronic asthmatic bronchitis. Evaluate under the criteria for chronic obstructive pulmonary disease in 3.02A;                         

[3.02A states:] 

                        A. Chronic obstructive pulmonary disease, due to any cause, with the FEV₁equal to or less than the values specified in table I corresponding to the person’s height without shoes. (In cases of marked spinal deformity, see 3.00E.);

TABLE I

OR 

1. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.

[3.00C states that the “attacks” are defined as prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.  Hospital admissions are defined as inpatient hospitalizations for longer than 24 hours.  The medical evidence must also include information documenting adherence to a prescribed regimen of treatment as well as a description of physical signs.  For asthma, the medical evidence should include spirometric results obtained between attacks that document the presence of baseline airflow obstruction.]

2.  Does age matter?

Yes.  If you are 50 or older when Social Security reviews your claim, the legal standards (called “medical-vocational guidelines”) favor you over those younger than 50.

Important note:  Your claim may take 2 or more years from when you apply.  Consider that you may be 50 (and get the legal benefit of your age) at least by the time of a hearing.  Your attorney should factor this in when evaluated your claim.   

1.  How can I make sure Social Security knows how bad my asthma and/or COPD is?

Social Security’s decisions are primarily driven by your medical treatment records.  You should get the appropriate treatment with doctors and associated professionals that you trust.  If you feel you are not getting relief for your breathing problems, mention your concerns to your doctor.  Also, even if you have may have no immediate options for improvement, you should maintain at least some regular visits to your doctors so they can understand (and document) the progress of your problems over time.  Your attorney can explain how this may impact the strength of your claim.  

Remember, only a lawyer at a law firm can give you legal advice.  If you wish to hire us, you can reach us at Toll-Free: 1-800-850-7867.  Only a quarter of back-pay if you win!

“Trust a Hoglund Lawyer.”

Andrew Kinney, Esq., with Tracy Bishop

© 2010, Hoglund Law Offices.  Reprint with written permission.

Related posts:

1. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
2. Top 6 Questions about Getting Social Security Benefits for Multiple Sclerosis (MS)
3. Download your FREE Hoglund Lawyer Guide to Social Security Hearings

Hoglund Lawyer Michael Riley

As a Social Security benefits lawyer arguing claims for clients with multiple sclerosis (MS) at hearings and in federal court, I have experienced some common difficulties with medical evidence in MS cases.  Below are some answers to questions my clients have about how Social Security views MS. 

Hopefully, my observations may strengthen your claim for disability benefits based on your MS symptoms.  Here are the top 6 questions my clients with MS have about Social Security: 

1.  What are the requirements to be disabled under the Social Security Administration for MS? 

The Social Security Administration evaluates MS under listing 11.09. To prove and be successful under the MS Listing, you have to meet 1 of the 3 criteria of the listing.  Therefore, do not worry if you do not meet all the criteria of the listing.  You only have to meet one.  Additionally, just because you do not directly meet one of the three requirements of the MS listing, you may still “equal” one of the three criteria.  Equaling one criterion means that your MS symptoms do not meet the criteria directly, but they are close enough. 

Please find the MS listing 11.09 (from federal regulations) below: 

11.09 Multiple Sclerosis. With: 

A. Disorganization of motor function as described in 11.04B; 

Or

B. Visual or mental impairment as described under the criteria in 2.02, 2.03, 2.04, or 12.02; 

Or

C. Significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process.

2.  How do I prove ”disorganization of motor functions” under “A” of the Multiple Sclerosis listing above? 

Your Hoglund Social Security lawyer can explain how Social Security Rulings may allow you to be approved.  Your attorney can also tell you how your absenteeism may exceed the vocational expert’s threshold at your hearing.  

Generally, proving disorganization of motor functions means showing the Social Security Administration that you are having trouble moving around and/or you are having trouble using your hands and arms.  The best ways to document difficulties with motor functions is, as mentioned above, to receive treatment from a neurologist.  At your appointment with your neurologist, he or she should conduct a physical exam.  This makes sure your records show objective problems (problems that are measureable).  Furthermore, you need to thoroughly explain the difficulties you are having with your motor functions with your neurologist.  Doctors take notes about what you say, and your doctor cannot document what he or she does not know.  

Regardless of any condition you have, it is always important to receive regular medical treatment from your doctor.  Every doctor visit you have creates a paper trail for the Social Security Administration to determine if your condition is getting better, staying the same, or getting worse. 

3.  How can you prove I have a visual or mental impairment under “B” of the MS listing? 

Again, please report any complications you are having from your MS with your neurologist.  Your neurologist will likely be able to refer you to another doctor that specializes in vision (an ophthalmologist) or mental health practice areas. Your neurologist will likely be able to run tests to determine if you are having any problems with your memory and concentration.  Consider receiving treatment from a psychiatrist or psychologist if you have any ongoing concerns about your mental health.  An MS diagnosis can be difficult.  Psychiatrists and psychologists specialize in diagnosis, documenting, and treating symptoms such as depression and/or anxiety.  Proving Criteria B (and any other criteria) for MS is about finding the best available medical treatment and exhausting all your reasonable medical treatment options. 

4.  How can I prove I have fatigue under “C” of the MS listing? 

Fatigue is a complication associated with MS.  You may experience fatigue after a short period of exercise or after light household chores.  Report any fatigue you are having to your neurologist.  Additionally, you can ask your neurologist to conduct test to measure how easily your become fatigued.  Your neurologist may be able to conduct a stress test or other tests to document how easily you become fatigued.  

Fatigue must be documented and observed by your neurologist to help prove your MS meets the C Criterion of the MS listing.  Keeping a daily journal regarding your activity and the fatigue associated with the activity could be helpful to not only lend credible to your Social Security claim, but could also help your neurologist understand and effectively treat your fatigue. 

5.  What if my MS doesn’t fit the listing criteria? 

You can still be approved if your MS affects your ability to keep up with the things you need to do day-to-day. Your doctor can explain how MS can play out differently in different people.  In Social Security parlance, you may have difficulties with “persistence and pace.”  For the most part, Social Security should consider your ability to function in an 8-hour per day, 5 days per week basis.  Symptomatic MS interferes with your ability to work consistently.  So, you can be approved for benefits when your lawyer sure to emphasize how unpredictable your collective symptoms are.    

6.  What if I am still working limited hours with MS? 

If you have MS and are still working, hopefully your symptoms allow you to work and do what you need to do day-to-day.  It is good, though, to know what to expect if you can no longer work full-time and you are considering benefits.  See our Hoglund Law Offices website about Substantial Gainful Activity to understand when your reduced monthly earnings may allow you to apply. 

If you do not have a lawyer to help you with your Social Security claim, you should get legal advice about your particular situation.  If you need a team of attorneys to help you with getting Social Security benefits, you can reach our law office’s toll-free number at 1-800-850-7867.   

Michael Riley, Esq., Hoglund Law Offices

→ For a free Hoglund Lawyer Guide to Social Security Hearings, click here:  Free Guide

© Hoglund, Chwialkowski & Mrozik, PLLC.  Reprint by written permission only.

Related posts:

1. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
2. A Social Security Lawyer’s Top 7 Questions about Getting Benefits for Asthma & COPD
3. Top 4 Social Security Client Questions about Getting the Right Medical Treatment for your Social Security Claim

Since stress about your Social Security benefits hearing is about the unknown (beyond whether you will be approved or not), the more you know about your hearing day the better.  Your attorney can explain where your hearing is, who will be there, and how long it may take.  He or she should also explain the point of your hearing, and (with sufficient experience) possibly let you know your chances of approval.  First, your hearing location.  

Where is my Hearing? 

Once the hearing office schedules your hearing, you (and your attorney) should get a letter explaining the time and place of your hearing (your “hearing notice”).  Whether you have an attorney or not, you can drive to the location on a weekday a few days ahead of time to verify where it will be held.  (A weekday is important because some hearing locations may not be open on weekends.)  Once there, look at the surroundings.  Know which floor and area to go to.  Also anticipate practical concerns such as parking.  These steps lower stress on your hearing day.  

Visiting your hearing site before your hearing day is also useful because hearings are not always where you expect them — even knowing the address.  Hearings aren’t always at a courthouse or a government center.  And don’t assume your hearing is where you may have originally signed up for benefits.  Hearings can, however, be in private office buildings, courthouses, city hall conference rooms, or even hotel conference rooms.  I even attended one in a hotel room with the beds moved and tables set up! (For the record, it wasn’t very comfortable).  So, pay close attention to the address and time of your hearing on your hearing notice.  

I ask my clients to arrive at their hearings an hour earlier than the scheduled hearing time on the hearing day to avoid last minute problems.  I had one client who got a flat tire on his way to his hearing, but was able to get help to change it and arrive at his hearing before the scheduled time!  

A hearing tip:  You may find the main hearing office phone number on the hearing notice.  Wherever your hearing is (at a main location or at a remote location), you can keep this number handy to call and ask directions if you are stuck.    

A final note about your hearing location.  If you need to drive a distance that will be difficult for you, consider staying overnight at a hotel near (or at) your hearing location.  It may be worth the cost to know that you will not miss your hearing the next day.  (If you drive over 75 miles each way, check ahead with the hearing office about possible reimbursement for travel and the hotel).  Our discussion next turns to who is at your hearing. 

Who’s at my Hearing? 

Another way to reduce the stress about your Social Security benefits hearing is to know who will be there.  Your hearing notice can list the experts the judge wants at your hearing.  Below is a list of the people at Social Security hearings and their roles.  Keep in mind that one or both experts listed below may not be at your hearing.   

(1) The Judge.  There will always be a Social Security administration law judge (“ALJ”) running your hearing.  He or she will almost always appear in person, though the judge can appear through live video or (rarely) by phone only.  The judge needs to ask you questions about your past work, your medical problems that affect your ability to work, and your day-to-day symptoms.    

(2) Hearing Assistant.  The hearing assistant helps the judge record the hearing.  He or she is physically at the hearing site. Among other things, the hearing assistant gathers last minute paperwork from you, brings you into the hearing room, and shows you where to sit.  Only very rarely have I attended hearings without a hearing assistant on site.  The only one I can recall was a hearing for a prisoner in the prison’s cafeteria.  My client did not have any trouble finding that hearing location.          

(3) Vocational Expert.  This government-appointed expert answers questions at your hearing from the judge about jobs that may exist for you despite your medical problems.  The vocational expert generally appears in person, but sometimes appears by phone.  Your attorney, your representative, or you (if you are unrepresented) may follow-up with questions for this expert once the judge is done questioning.  To learn more about representation at Social Security hearings, click here. 

 (4) Medical Expert.  This government-appointed expert answers questions at your hearing from the judge about either your physical or emotional condition(s).  The medical expert, if there is one, generally appears in person, but he or she can also appear by video or phone.  As with the vocational expert, your attorney, your representative, or you (if you are unrepresented) may follow-up with questions for him or her once the judge is done with questions.   

(5) You (and perhaps a few others that know you).  You should plan to be at your hearing in person.  (Very rarely, I have had clients appear by phone.  This is less than ideal, but better than nothing.)  You can plan to bring your family and friends to the hearing location on your hearing day.  Some of my clients also have their case worker or some other professional with them as well.  It helps to have people you know with you at the hearing site.  This reduces anxiety because people that care about you are with you.  In the hearing itself, however, you might want to plan bringing only a person or two with you.  In my experience, bringing more than a few people you know into the hearing room at one time tends to be distracting.   

A word about witnesses.  You should expect to answer the judge’s basic questions directly.  Sometimes my clients want others to talk as witnesses — or even talk for them.  Attorneys can differ, but I generally want my clients to explain why they can’t work in their own words.  It’s OK.  You don’t have to be perfect.  So while other people may have some valuable things to say about you under certain circumstances, I tell my clients that the main goal of the hearing is to let the judge get to know you a little bit.  To this end, the judge needs to hear from you.  If you have an attorney (or representative), you can ask his or her advice before your hearing about how to handle witness testimony for your hearing.  To learn more about hearing procedure, click here. 

Notice who is NOT on the list of people at your hearing above.  There is no jury, no government attorney, and no public at your hearing.  This is not People’s Court, it is your private hearing with your judge.  Now, the next subject is easy.      

How Long is my Hearing? 

If you worried that your hearing would take all day or more than one day — you are in luck.  I tell my clients that hearings generally take from 30 to 60 minutes.  The specifics of your hearing may vary.  For example, if your hearing is with a live judge and with no medical expert, your hearing may be more toward 45 minutes.  Just know that you usually show up at your hearing once, explain your situation, and you are done.  Follow-up hearings (called “supplemental” hearings) are relatively rare.  Next, the main question that (justifiably) worries almost all my clients.   

How Will I Know if I am Approved?   

In my experience, you should not expect your judge to announce his or her decision at your hearing.  There are exceptions, which an experienced attorney or representative can explain.  If you have someone representing you, he or she may be able to give you some idea of your chances of approval once your hearing is done.  Overall, I tell my clients to expect their hearing decisions by mail anytime from a few weeks to a few months after the hearing.  This varies region by region.  A regular hearing decision takes one of three forms:  A win (“fully favorable”), a partial win (“partially favorable”), or a loss (unfavorable).  If, instead, you withdraw your request for hearing (you should get advice on this situation from an attorney or representative), you will simply get a dismissal.  

A special note:  Make sure to note any special medical circumstances (such as terminal illness) or financial circumstances (such as a pending eviction or foreclosure) to your attorney or judge on the hearing day if waiting more than a few weeks for your hearing decision would impose a unique hardship.  Now we get to the interesting potpourri of worries that (I am sometimes surprised) unnecessarily stress out my clients.   

What my Hearing Isn’t About 

Yes, there is a judge.  And yes, you need to talk.  But these hearings are private conference rooms.  As mentioned above, there is no jury and no public.  Also, there is no government attorney.  You are not being grilled on a witness stand, you are not reciting exact dates, and you are not reading off your prepared statement.  What you say, as a general rule, stays in the room.  Your hearing is not televised on Court TV.  The microphone in front of you does not broadcast out to the waiting room or some radio station.  No one on the street can ask if you have been at a hearing, look at your medical records, or even know that you have a claim.    

The hearing is about you being yourself.  Now be forewarned, you can still have tough questions about some topics about your past that you would rather not talk about (such as previous convictions), but rest assured that these judges have heard it all.  They also know when someone is dodging direct questions about things already mentioned in the medical record.  

Now, the most important advice for my clients over my years of hearings:  Tell the truth.  Keep it straight and don’t embellish.  Plan going into your hearing to simply lay out on the table what is (and isn’t) wrong with you.  Then, let the judge do his or her job.  Do not worry about whether your testimony sounds “disabling” enough.  Your strongest ally (for your attorney, too) is the truth.  If you know you have explained your situation the best you could, this has to be good enough.  Know that your medical records carry the most weight, and that anyone representing you should be engaged and asking questions at the hearing.  (If your attorney or representative wasn’t, ask why after the hearing.  He or she can submit written argument after the hearing if the situation warrants.)  Wait for your decision, and plan to appeal if necessary.  You may also be able to refile a new claim as well (depending on your situation).  Now, an inevitable question.           

Should I Get an Attorney? 

Although this section can seem self-serving, I will unlikely personally be at the hearings of many of you reading this.  Therefore, I’d rather just lay this on the line.  

If you read through this blog entry, you’ll notice that if you hire an attorney (or a non-attorney representative) to be with you at your hearing, you might have many of your questions answered before going into your hearing.  This can reduce uncertainty about your hearing.  Once at your hearing, going at it alone can be distracting and stressful.  You would need to juggle understanding the issues, knowing your records, and critically listening to expert testimony – all while answering the judge’s questions.  If you can go it alone (and some do), more power to you.  But if you really want the best objective shot at getting approved (and you are trying to reduce the stress of the process), you should probably avoid doing legal surgery on yourself and look into getting help of some kind.  Even if you plan to go it alone until the hearing day, you still have a right to change your mind before the hearing gets going.  Just ask the judge to postpone your hearing once (for at least few weeks or more) so you can get help.  For more information on hiring an attorney or representative, click here.  

For those of you going ahead alone with your Social Security hearings, here are some ideas for you on hearing day: 

• Make sure your medical records are updated.  If not, point out what’s missing and ask for time to get it after the hearing.
• Make sure any medical expert testimony you hear includes all your medical diagnoses and limitations from each problem, such as no bending, etc.
• Make sure any vocational expert testimony you hear answers questions that include all your real-life medical limitations that affect your ability to work full-time.  These medical prblems can include problems with attendance on “bad” days, trouble concentrating with pain, etc.  A special note:  Your need for childcare, your lack of transportation, your need for help finding or applying for open positions, or your minimum salary requirements are not medical limitations. 

 Final Thoughts 

A judge once mentioned to me that he was nervous at his first hearings.  And he ran them!  So remember, the judges and everyone else at hearings are people going about their regular jobs.  They have had hearings before yours, and will have hearings after yours.  Some judges are informal, others are more formal.  Just do your best to understand what will happen at your hearing with your judge, and hopefully the truth (with good advocacy) will prevail.  If you meet the legal criteria for Social Security benefits, I hope you get them. 

Andrew Kinney, Esq. 

*If this blog post helped you get through your hearing, please feel free to submit a Comment below to help others know. 

© Copyright Andrew Kinney, Esq., Hoglund Law Offices, PLLC 2010.  Reprint by written permission only.

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For those with knee problems who cannot walk effectively, Social Security applies 1.02A of the musculoskeletal listings (or definitions) of disability.  Listing 1.02A is below:

1.02 Major Dysfunction of a joint(s) (due to any cause):  Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b…

The phrase ”major weight-bearing joint” in this listing basically means a joint you need to stand and walk.  Knees, along with hips and ankles, fall into this category. 

Disability Benefits Before Knee Replacement Surgery

For my clients who need — but have not had – knee replacement surgery, the usual situation is that they have degenerative joint disease or internal joint derangement and the more conservative treatments, including arthroscopy, pool therapy, and/or therapeutic injections, have been unsuccessful.  Of this group, some await knee replacement surgery because their orthopedic surgeons were concerned about their younger age.  These clients seem to be under 50.  The rationale for waiting (when possible) is that artificial knee joints have a life span, and the procedure (apparently) cannot be repeated indefinitely.  If you face this situation, certainly discuss these issues thoroughly with your surgeon. 

My clients awaiting knee replacement surgery are usually approved for benefits at Social Security benefits hearings under Listing 1.02A when they have:  (1) the appropriate imaging studies with “marked” findings, (2) examination and ongoing treatment by an orthopedic specialist, and (3) comments about knee replacement in the treatment records. 

A practice note for attorneys and representatives:  I ask my clients with ongoing knee problems about hip and low back issues.  I also ask if the better knee is getting worse because of favoring it.  My clients commonly develop these problems  because of their difficulties walking (their “gait”).  These collective mobility issues are taken into account at a hearing.

Disability Benefits After Knee Replacement Surgery

For my clients who have had knee replacement surgery, the general questions shift to two areas:  (1) duration (when will full recovery occur) and (2) the ongoing mechanical integrity of the artificial joint.  As for durational issues, I hope my clients benefit from knee replacement surgery so they can get on with their lives.  Still, at least a year of disability leading into and after the replacement surgery is necessary for approval for benefits.  Technically, if post-surgical recovery happens before a Social Security benefits hearing, a “closed period” of benefits may apply.  This means that only backpay, and not ongoing monthly benefits, are payable.  This makes sense if your new knee joint gets you back on your feet again.

As for mechanical integrity of the artifical knee joint, a have had a few clients who, despite knee replacement and the proper follow-up treatment, still have issues with the joint.  They may have problems with locking or clicking.  Again, discuss these situations with a qualified professional.  In the context of Social Security benefits, you may get ongoing benefits if the knee replacement is less than fully functional.  The question becomes a matter of degree. 

A practice note for attorneys and representatives:  If your client needs a cane when standing, you can argue at a hearing that he or she  is effectively “one-handed” when standing at potential jobs, even under a “sit-stand option”.  Important, too, is whether or not your client holds the cane with his or her dominant hand.

A final thought.  Social Security benefits are also available for those who may not need knee replacement surgery in the foreseeable future.  The ultimate question is how your collective medical issues (physical and emotional) impact your ability to work full-time.  There are many problems people can have with joints, such as gout and rheumatoid arthritis.  Pain and immobility from these conditions and others can, depending on the severity, allow you to receive Social Security benefits.

Andrew W. Kinney, Esq.

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On Saturday, September 25, 2010, Andrew Kinney, Esq., from Hoglund Law Offices, is presenting a legal seminar on cross-examination techniques at the N.O.S.S.C.R. (National Organization of Social Security Claimants’ Representatives) conference in downtown Chicago.  His presentation will focus on teaching attorneys and representatives how to prepare for cross-examination and how to develop solid cross-examination techniques.  Mr. Kinney has practiced Social Security benefits law since 1992.

Related posts:

1. Social Security Online Seminar
2. Download your FREE Hoglund Lawyer Guide to Social Security Hearings

As an attorney at Hoglund Law Offices personally handling about 500 Social Security hearings per year across the country, I can safely say that a majority of my clients with severe physical problems have some form of low back pain.  At administrative hearings with Social Security judges, there are particular ways I review and argue low back pain claims.  A few common questions from these clients may help many of you who cannot work due to low back pain.  I will handle these in turn.  Keep in mind to get an attorney for advice that applies to you.

Q.  What are Social Security disability benefits?

A. Social Security disability benefits (and Supplemental Security Income benefits) are monthly disability benefits payable to you if you are unable to work (or are expected to be unable to work) full-time for 1 year or more for medical reasons.

Q.  How do I get Social Security benefits?   

A.  You must apply for them by:  (1) calling Social Security’s toll-free number at 1-800-772-1213, (2) going to a local Social Security office, or (as of relatively recently) (3) applying on-line through the government website:  SSA.gov. 

Q.  Can I apply if I can only work part-time? 

A.  Yes, but you cannot be going to work and regularly earning above certain monthly amounts.  For 2010, this “substantial gainful activity” amount is $1,000 gross per month. 

Q.  What does Social Security review in low back pain claims?

A.  Generally, Social Security reviews:  (1) your diagnosis, (2) your imaging studies to support the diagnosis, and (3) your examination findings.

Q.  When does Social Security find disability in low back pain cases?

A.  The general rule of thumb is that the more your low back pain limits your ability to get around and function, the greater chance you will be found disabled.  If you have trouble standing and sitting, it is usually harder for Social Security to deny you by finding full-time jobs that you can (in theory) do.

Q.  What factors does Social Security use in evaluating low back pain cases?

A.  Social Security focuses on objective neurological findings that your doctor records from your appointments.  Examples of findings that support disability are called “listings.”  These are found in Social Security’s regulations.  The primary listing for disabling low back pain is musculoskeletal listing 1.04:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);

or

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;

or

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

Q.  Do I need to have surgery to improve my chance for benefits?

A.  Being an attorney (not a doctor), I always tell my clients to make medical decisions with their physician based on what is best for them.  So, you may get a second opinion, but ultimately consider that, in my legal experience, Social Security judges generally find the need for surgery relevant.  You can also tell your attorney before your hearing that you want a chance to explain to the judge why you forewent or delayed surgery.  In short, make decisions about surgery to get better, not to get (a chance for) benefits.

Q.  Does age matter?

A.  Yes.  If you are 50 or older when Social Security reviews your claim, the legal standards (called “medical-vocational guidelines”) favor you over those younger than 50.

Q.  How can I make sure Social Security knows how bad my low back pain is?

A.  Social Security’s decisions are primarily driven by your medical treatment records.  You should get the appropriate treatment with doctors and associated professionals that you trust.  Also, do not ignore your psychological needs.  Depression, for example, is common for those with chronic pain.  If you feel you are not getting relief from your low back pain, mention your concerns to your doctor.  Also, even if you have may have no immediate options for improvement, you should maintain at least some regular visits to your doctors so they can understand (and document) the progress of your problems over time.

Related posts:

1. What Are Listings?
2. How to get Social Security Benefits before and after Knee Replacement
3. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes

Most of our Social Security benefits clients at Hoglund Law Offices ultimately go to Social Security hearings.  At these hearings, you will see your attorney function much like attorneys in trial courts.  These hearings, however, are informal and are run by judges — called administrative law judges.  These judges generally ask you important questions about your work history and medical problems.  Hearings usually last about 45 minutes to an hour.

Although some hearing procedures may vary, they generally follow the routine below (in a private conference room where everyone remains seated):

1. The JUDGE swears you in.
2. The JUDGE verifies whether you understand how the hearing works.
3. The JUDGE verifies whether your medical records are complete in your hearing file. 
4. The JUDGE asks you questions about your past work, your medical problems, and how your medical problems have affected your day-to-day activities.
5. Your ATTORNEY asks you questions.  
6. The JUDGE asks the Medical Expert (if present) about the diagnoses in the medical records and how they limit you.  
7. Your ATTORNEY cross-examines the Medical Expert.
8. The JUDGE asks the Vocational Expert “hypothetical questions”.
9. Your ATTORNEY cross-examines the Vocational Expert about the testimony and about additional limitations.
10. Your ATTORNEY may make a closing argument. 

Hearings with judges can seem intimidating to the uninitiated, but our clients understand that we are there to make sure the judge understands why they cannot work.

Andrew W. Kinney, Esq.

Related posts:

1. Download your FREE Hoglund Lawyer Guide to Social Security Hearings