Most of the mistakes that disability claimants make are the result of lack of knowledge about the disability decision making process. Here are some of the problems we see frequently in claims files and some suggestions about how you can avoid these issues:
1. Not knowing what you have to prove in order to win disability. Most people think about disability in terms of medical issues. While medical problems are relevant, Social Security defines the word disability in terms of work limitations. In other words, you will be found disabled if your medical problem/medication side effects/treatment regimen leaves you without the capacity to perform the duties of a simple entry level job reliably.
- You may have severe medical problems (such as a herniated disk, congenital heart failure, rheumatoid arthritis) but if you are able to work despite these medical problems, you are not disabled for Social Security purposes.
- You will only be found disabled if you prove that you can no longer work a simple, entry-level job.
2. Not describing your limitations clearly and in terms of activity limitations. Social Security thrives on details, so if you are asked “how much can you lift?” or “how far can you walk?” the correct answer is not “not very much” and “not too far.” Instead, you must offer specifics – such as “I can lift 5 to 7 pounds occasionally, perhaps once or twice a day because of severe back pain.” Or “I can walk no more than 10 minutes at a time before I experience pain radiating from my back down my leg, and I have to lie down in a recliner to relieve the pain.”
If you answer questions with generalities, you are not likely to win.
3. Not having a consistent medical record. Medical treatment is expensive and if you don’t have good insurance it can be very difficult to see your doctor regularly. Unfortunately, if you don’t go to your doctor regularly, Social Security will interpret that as meaning that your medical condition is not serious.
You have to find a way to go to your doctor regularly if you expect to win.
4. Failing to follow your doctor’s prescribed treatment. If your doctor gives you a prescription for medication, get it filled and take the medication as directed. If you don’t follow your doctor’s advice, Social Security will label you as non-compliant and use that to deny your claim. Some judges may also find you less credible if you continue to smoke despite doctor’s orders to the contrary, or if you refuse or are unable to follow a prescribe diet or behavior modifications.
5. Exhibiting signs of malingering or drug seeking behavior. If your doctor believes that you are exaggerating your symptoms, or if you go to multiple doctors to get pain medications, you will be deemed not credible and Social Security will discount anything else that you say.
- If you find yourself at an impasse with your doctor over treatment or even the doctors attitude, seek advice from your lawyer about what to do.
6. Working part time while applying for disability. It may not seem fair or reasonable that Social Security would punish a person for trying to work but, unfortunately, our experience has been that most judges conclude that if you can work part time, you can probably work full time in a less demanding job.
- Unsuccessful work attempts (those lasting less than 3 months), however, can be helpful evidence to show that you are trying to return to work but cannot.
- If you decide to try to return to work, talk to your lawyer about how your work attempt may impact your case.
7. Focusing on the wrong issues. The issue in your disability case has to do with one thing – do you have the capacity to perform the duties of a simple, entry-level job 8 hours a day, 5 days a week. that is all the judge is concerned with. All of the evidence and testimony in your case needs to be concerned with your work capacity. By contrast, here are a number of items that are not relevant at all to your case, so you should avoid putting emphasis on these things:
- transportation – it does not matter that you do not have a car, that you do not have a driver’s license or that you have no access to public transportation. If you were picked up by a limousine every morning and dropped at the front door of a business, could you perform the duties of a simple job?
- your belief that no one will hire you – you may feel in your gut that no one would hire you because of your age, your medical history, your lack of education or experience. However, your belief about whether you are hirable is not relevant in a Social Security disability case. The judge makes the decision about whether you are legally unable to work.
- quoting your doctor about physical or mental health limitations – the judge wants to hear from you not a second hand quote from someone else. If you testify that “my doctor said I can’t lift more than 5 lbs. or walk more than 2 blocks” the judge will likely conclude that you have given up and are not trying. Any restrictions your doctor puts on you should appear in your medical record as part of the doctor’s notes or as part of a functional capacity evaluation. You need to talk about your own experiences and your own capacities.
8. Using the Wrong Onset Date. When you apply for disability, you will be asked “when did your disability begin?” Thereafter, this date will appear in SSA’s records as your alleged onset date. While we can change the onset date later in the process, you can experience problems if you choose the wrong onset date.
- the date you apply for benefits is not the same thing as your onset date. Sometimes the Social Security phone operator will suggest that you “use today’s date” but that does not benefit you. Instead choose a date in the past where your medical condition became severe enough that you could no longer work.
- you may want to choose your last day of work as your alleged onset date. This makes sense if you resigned or were fired because of performance issues.
- if you were laid off from work for non-medical reasons and you could have kept working, it may make sense to choose the date of a surgery, a medical crisis, or even a doctor’s appointment where your diagnosis was confirmed
- whenever possible, you will want to allege an onset date prior to the date your SSDI insurance coverage runs out (your “date last insured” for SSDI). If you allege an onset date after your DLI, then SSA will not process an SSDI application
- if you are not sure about choosing the best onset date for your case, seek legal help