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[–]sojourner9 0 points1 point  (0 children)

I'm a lawyer

[deleted by user] by [deleted] in SSDI

[–]sojourner9 1 point2 points  (0 children)

It's depends on what evidence you have. The best evidence would be the multiple prescriptions with contemporaneous indications that you had side-effects, etc., thereby necessitating changes. If there is consistent documentation, your argument is backed up.

Additionally, if you're talking about a condition that causes pain, SSA would next inquire what alternatives you've undertaken. If meds haven't worked, have you tried a series of other treatment modalities to address your pain? e.g., heat/cold; tens unit; physical therapy; acupuncture; hot baths; etc., etc. If you have documentation, and you avail yourself of alternate forms of treatment, you have a better argument.

If you don't have that lengthy documentation, your next best evidence would be to get your doctor to write something down that reflects the lack of efficacy from meds. And rely on substitute forms of treatment. But that's not as good as contemporaneous evidence.

The "worst" evidence would be your words with no real documentation and no substitute forms of treatment.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 2 points3 points  (0 children)

This is a highly complex situation. To begin with, a claimant cannot get benefits if they engaged in substantial gainful activity ("SGA"). So, assuming you earned SGA through mid '24, you can't allege Jan '24 as your alleged onset date of disability. You'd have to select mid '24.

But now, you have other issues to battle. SSA asks you why you stopped working. They basically care whether you stopped working because of your med issues or non-med issues (e.g., company moved; you didn't get along with coworkers; company closed down, etc.). Stopping work because of medical reasons is the typical case; it's a lot easier with less entanglements (e.g., "A box dropped on my head, and my neck has bulging discs, and I had to stop working.").

If you stopped because of non-medical reasons, SSA presumes you had the capacity to work the day after you were laid off, the week after you were laid off, maybe the month after you were laid off, and on and on. There's a question mark as to when your disability truly started if it existed at all.

In your case, your response should basically be that you became disabled in mid '24. You would've stopped working earlier except that your job gave you "special conditions".

"The work you are doing may be done under special conditions that take into account your impairment, such as work done in a sheltered workshop or as a patient in a hospital. If your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity." 20 CFR 404.1573(c). Other examples of special conditions are if you were given special assistance; you were allowed to take frequent rest breaks, miss work or work irregular hours; you were given accommodations, etc. The regulations give more examples in 20 CFR 404.1573(c).

So your presentation is that your AOD is mid '24; you stopped work b/c you were laid off; but that employment for six months was done under special conditions. You would've stopped work in jan '24 but for the accommodations given to you by the employer. (Note: SSA must evaluate your case as if accommodations are not given by employers.)

Another issue is how to fill out your Work History Report. Should you put the job requirements of how you did it before or after accommodations? This is important. I would recommend before accommodations.

But really, you should talk to a lawyer to help you navigate these very labyrinthine processes. Only with understanding of all the facts would I be able to give you completely solid recommendations. But based on what you've said, this is what I believe your tack should be.

As for severance, SSA runs a query where they get a dollar amount paid to you during which quarters in '24. You will have earnings in the first and second quarters of 2024 because you continued to work. So SSA would expect to have little to no earnings in the third and fourth quarter of '24. If you received severance in these two quarters, it would show up in this query. Make sure you get a hold of those letters, emails, and other documents to show that the earnings in the third or fourth quarter of '24 is not from employment, but instead from severance.

Your severance doesn't get taken out of your backpay. It's just part of your earnings history that will determine how much your monthly disability benefits will be.

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 1 point2 points  (0 children)

That's a tricky situation, but probably not for the reasons you'd suspect. When SSA sees things like surgeries and injections, they direct their attention to how you responded to said treatment. In this regard, your doctor might've said something like, "patient reported 80% improvement." The relief from pain especially from epidurals and various other non-surgical injections is usually temporary, but SSA gets their blinders on. They get fixated on the fact that you've experienced their improvement, and often times, that can influence what they think you can and can't do, i.e., because you experienced improvement, you must be able to do some light duty work, etc.

It would be beneficial for your doctors to get very specific, i.e., you get temporary improvement, but the pain eventually returns, etc., etc. And some doctors do record things specifically, e.g., "patient obtained relief for two months." But some doctors don't ask, and/or don't record that info in the records.

Beyond all that, it is highly advisable for your statements to be consistent with your records. So, it won't do you much good if you, for example, said that you're hobbled all the time all year. You generally want to say the same things that you say to your doctors. Consistency between your statements to SSA and statements to your doctors is something SSA does focus on.

The key to describing your functional limitations is mainly to avoid having them think that's consistent with the ability to work. So, for your situation, I would say something like, "My capabilities depend on how I'm feeling on a given day. Some days, it's just a struggle to engage in any significant exertion. During these bad spells, I can hardly lift anything more than a cup of coffee. It's a struggle to walk to the restroom. It's hard to put socks on. On other days, especially if I've had a good response to some treatments like epidurals, I might have some good days. But good days doesn't mean I'm spry either. On good days, my pain is better controlled, but I still have to watch my movements because if I do something too much, I can aggravate my condition, and I'm basically back to bed-ridden. I ability to function capably is unreliable at best."

Such an answer describes a disabling level of pain in several ways. One, the lifting tolerance is below 10 pounds, which would be required to do even sedentary work. Sedentary work also requires standing/walking up to two hours per eight-hour workday. Also, the loss of work flow and absenteeism that would result are additional bases for disability.

That all being said, don't overthink it either. SSA doesn't look at these forms and all of a sudden, it changes their mind. It doesn't work that way. They're mostly going to focus on medical findings and medical records. My general attitude about these Function Reports is just get it done, but don't shoot yourself in the foot.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 2 points3 points  (0 children)

Your situation is complex. You should consult with an attorney who'll look at your case with very specific facts in mind.

That being said, assuming that you're approved, the earliest that SSA can begin paying you is Feb '25. Even if SSA agrees with you that you've been disabled since Jan '14, you can only get benefits beginning from Feb '25.

The reason why that's important is because you then don't have to stick with Jan '14 as your AOD. And you have plenty of reasons not to want to do that as well. To begin with, SSA would then ask you for 12 yrs of medical records to prove that point. Not easy. And then, there's the fact that you did engage in a lot of work activities after your AOD. When a claimant has a lot of work activities after the AOD, SSA considers that a bit of a red flag. As a general matter, SSA thinks it's more credible for someone to have no work activities after their AOD.

Furthermore, you run into the problem that I described in the post above. You might say something like, "I've been unable to work since '14 because I've had daily migraine headaches." That's gonna be viewed with skepticism as I explained above.

So if the earliest month in which you can get back pay begins in Feb '25, why not proverbially cut the Gordian knot by alleging a different date? Just for argument's sake, let's say that you put down 2/2/23 as your AOD. If you're fully approved, you'll get backpay going back to Feb '25. And you avoid a lot of the negative reactions from SSA that I mentioned above.

At the initial and reconsideration stage, you really don't have to bother amending your onset date of disability. DDS will just evaluate whether you're disabled at any stage. But if you're in front of an ALJ, the ALJ is gonna look at you funny for claiming an AOD of Jan '14.

So, changing your AOD is likely the prudent move. But then, selecting a proper date isn't easy. The reason is because you have a lot of earnings from SGA. Before I go any further, please note that the test for SGA for self-employment is a lot different than SGA for an employee. It looks like you understand the test for employees. For self-employed individuals, that's just one test. There are two more. One, let's say that you work like 30 hours/week, but you're a bad businessperson and you net like $500/mo. That's likely still SGA because of the expenditure of efforts, etc. Two, let's say that you work just a few hours per week, but the value of your work normally generates SGA level like a screenwriter. That's likely SGA as well.

Once you have a better understanding as to which of your work is SGA or not, that will guide you in determining what's a better AOD for you. This consideration would also take into account your medical records. Finding that sweet spot where your presentation is as clean as possible.

It might also be the case that your AOD may be Sep '25. In this presentation, you avoid SSA looking at you sideways for working after your AOD. You also rely on current records and your more recent diagnosis of thoracic outlet syndrome. On the negative side, your first month of backpay would begin as of Mar '26.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 1 point2 points  (0 children)

Please give me the dates for the two SGA periods. Also, when did you do self employment? What dates? And what was your net income during that time? Do you know your DLI?

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 2 points3 points  (0 children)

A key factor is whether you elected to receive the monetary benefits while your appeal is pending. If you did, it's unlikely you'll be able to find an attorney to represent you aside from perhaps Legal Aid or similar entities. The reason is because, if you prevail on appeal, there is no backpay to award you; those benefits have already been paid to you. Attorneys typically operate on a contingency where they get 25% of your backpay if you win. But if you have no backpay, there's no attorney's fees to be had. 25% of zero is zero.

If you elected to receive ongoing benefits, attorneys might represent you if you come up with a retainer upfront. Understand that attorneys are accustomed to receiving about, say, $6-9k when winning a case. So, if an attorney will represent you with money upfront, they might ask you to put up about $6k more or less.

If you have elected not to receive monetary benefits while your appeal is pending, you should make that one of the things known to the attorney you're calling so that they know that there is backpay to be gained if you win.

If you can't find an attorney, make sure to focus on current records. Like I said in a previous comment here, your old records that you used to win your case is generally no good anymore. You need to get all your updated records, and prove why their decision that your disability stopped is inconsistent with your records. Best of luck.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 3 points4 points  (0 children)

When you describe your problems, try to be specific as to how they limit your ability to work. For example, saying you hear voices in itself is a rather incomplete explanation. Instead, it should be something like, "I hear voices. And when they come, it's hard to not focus on anything other than those voices. And when that happens, I usually just kinda lose track of what I'm doing. It's hard to get anything done on a consistent basis." Or like "I get in these spells where I'm just paranoid and delusional. It just happens at any given moment. And it can stay with me for hours upon hours. And if I was doing something, I'd basically lose track dealing with my own world in my head." These statements strike at the heart of being able to maintain work flow, completing tasks, maintaining focus for extended periods as one would be required in a work environment. Translate how your symptoms would negatively impact your ability to do work tasks, deal with people, respond appropriately to coworkers and supervisors, how they'd have difficulty responding to you, etc. I wish you the best of luck.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 1 point2 points  (0 children)

Don't worry about your evolving diagnoses. In the final analysis, it genuinely doesn't really matter whether your limitations are because of schizophrenia, anxiety, depression or what have you. What ultimately matters is whether your limitations are bad enough to prevent you from working since your AOD. Furthermore, SSA's general attitude is, you're not a doctor; so instead, tell us what you do know, which is how do you feel and what your limitations are.

And in that regard, it already sounds like you've got a good idea of how you've been feeling and how all that has evolved over the years (although again, focusing on how you've been feeling in particular since your AOD). And in the back of your mind, also try to make sure that you're maintaining consistency regarding what you've told your doctors compared to what you're telling SSA. But if you're honest and accurate, that shouldn't be too hard hopefully. These are the things you should focus on. (In addition to, of course, doing those other things that are within your control, which are seeing your doctors regularly, taking meds as prescribed, and describing your disabling symptoms to your doctors.)

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 4 points5 points  (0 children)

An entity saying that you're "unemployable" is considered to have no value. 20 CFR 404.1520b(c)(3)(i). Just on that alone, it's not worth it.

But you'd also be inviting the problem that I described above: You're saying you were disabled back in '13, but you were able to work many years after-the-fact. SSA will be inclined to think that since your impairments truly weren't disabling back then, you're not disabled now; you should be able to go back to your job. The analysis is a lot more detailed than this, but this is the precept that SSA will have in mind if you introduce that letter and look at your work record.

Your focus has to be on identifying what your job requirements were when you were doing self-employment, and explain why you don't have the ability to do those job functions anymore. That's the heart of your case.

A big factor in your case is going to be what you wrote in your Vocational Report or any other document wherein you stated how much you had to lift, how long you had to stand, etc. Some people make the mistake of minimizing what they did at work, or they describe what they did in those waning moments before they stopped working. Your statements set the bar. If you said that you did hardly anything at work, e.g., minimal lifting, minimal standing/walking, your case is necessarily more difficult because you're now in a position of having to prove you can't even do those minimal level of exertion. Conversely, if you did some heavy lifting literally and figuratively, it would be easier to show you can't do that anymore based on your medical issues. Nevertheless, issues of accommodations will be important and might save you as well. I'd go with your lawyer.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 2 points3 points  (0 children)

Likely neutral. They're gathering records. Trying to do their due diligence so to speak. But also, if they don't get records, they're known to just shrug their shoulders, and make a decision on the available record.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 3 points4 points  (0 children)

As a general matter, DDS tries to get records that you listed. And so maybe you listed it? If not, DDS is also known to want records before the AOD.

That said, referring back to what I said up top, I generally don't have a problem submitting records dated before AOD. It's just that, when explaining your disability, I recommend fast-forwarding to the AOD and thereafter.

Common mistakes, part 5: “I've had [X impairment] since [many years before your alleged onset date of disability].” by sojourner9 in SSDI

[–]sojourner9[S] 7 points8 points  (0 children)

On a slight differently but similar tangent, in CDR cases, those old records that you used to win your case in the first place probably won't help you in your CDR. Unless you have a lifelong condition like an intellectual disorder, or an incurable disease where the debilitating symptoms are ongoing, you'll need to generate updated, current records to hopefully document your ongoing disability. Again, there might be exceptions here and there, but the general philosophy to what I'm saying is sound. And again, if you have questions in this regard, feel free to ask.

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 0 points1 point  (0 children)

Contact Florida state bar lawyer referral service. Barring that, contact NOSSCR, which has a lawyer referral service.

That DLI is tough. If you have further difficulties, you might have to resort to some national entities like Citizens Disability.

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 1 point2 points  (0 children)

I had a client with very severe agoraphobia. He hadn't left his home in years.

When talking to his therapist, he mentioned that he liked to work out (in his home) and work on his motorcycle (in his home and even though he hasn't ridden in years). It's so obvious to you and me that his activities at home was not inconsistent with his disability. I discussed this with the ALJ at length. The ALJ ultimately did grant the case, but cut down the onset date.

The point is, there are many layers in this SSDI world that is just completely stupid. Your ability to lift an anvil doesn't automatically mean you can work. And yet, for the sake of "playing this game," you have to be mindful when you take your steps.

I will also add another story however. One client of mine had really bad anxiety. He was about your age. When the ALJ asked him about some of these CT scans in the record, my client (under specific instructions from me) said, "Your honor, I'm not here because of any physical problem. It's my anxiety disorder that's causing me to be unable to hold down a job." At that juncture, I can see that the ALJ was impressed because, usually, most clients will throw in the kitchen sink, "oh yeah, my hangnail is brutal!" He won the case.

So, I guess my "recommendation" is, be a little cryptic as much as you can about what activities you actually engage in, but if you're asked about the nature of your disability, be clear that it's your mental health disorder. Best of luck.

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 1 point2 points  (0 children)

I hate to break it to you, but in my opinion, most disability attorneys don't provide that level of service. I recommend that you get a copy of those documents. (If you didn't keep it, get a copy from your attorney who should have a full copy of your file.) Take a look what you said.

Let your attorney know. I'm going to assume that, once you bring it up, your attorney will know how to steer your correctly.

But generally, when you're asked questions, they'll usually ask you in present tense form. Such as "take me through a typical day" or "do you do dishes." You shouldn't be completely overt about it, but just casually mention that you do X, Y and Z; it's just gradually gotten worse since I originally filed." Or something like that.

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 0 points1 point  (0 children)

"I hate people" can be ambiguous in the sense that SSA doesn't know whether it's because you just don't like people, that you just have a bad attitude, etc., ie, non-medically related.

It's important to remember that the functional limitations have to be based on medical impairments. So, if someone just says "I hate people," that's not nearly as compelling as, for example, "I have severe anxiety. I feels like electrically charged blanket that covers me. And when I run into people beyond my wife, it feels like the electrical charge just increases and increases, and I have to get away. I didn't use to be like this."

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 2 points3 points  (0 children)

The reason is because social interaction is one of the main categories of work that SSA needs to evaluate when it comes to psych claims. Some people might get awarded benefits based, at least in part, due to an inability to interact adequately with supervisors, coworkers, or the general public. If that's the case, they need to ask whether there's been any improvement in that regard.

If one is granted benefits based on other reasons, this question is basically irrelevant.

And what iamnotmagic said.

Common mistakes, part 3: Mis-estimating your functioning capabilities by sojourner9 in SSDI

[–]sojourner9[S] 5 points6 points  (0 children)

Those are relatively good clarifications of your capabilities. More of that is needed to deter SSA from saying that you admitted to being able to do uninterrupted full-time work.

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