Testimony of family members/friends/significant others at SSDI hearings

This blog article will address some questions that I get when representing Claimant’s at SSDI hearings and can be used to set expectations of family members.

In almost all cases the only person to testify on the Claimant’s behalf is the Claimant. The reasons are fairly simple as to why. First, as a family member and someone that has assisted the Claimant in their quest for benefits you will be assumed to have a vested interest in the Claimant getting their benefits and as such your testimony could be deemed skewed or one sided. As an empathetic family member who probably knew the Claimant prior to the deterioration of their medical condition, there is naturally an emotional aspect of having watched them deteriorate that could potentially overstate what they witness of the Claimant in daily life.

SSDI Administrative Law Judge

Second, these cases generally will have progressed over a period of a few years and will have medical records covering issues such as physical activity, mental health limitations, etcetera that do an excellent job corroborating the testimony of the Claimant. I like to tell clients that their medical records give the best insight into what a “typical day” is like when they are attending their regularly scheduled appointments. When a patient visits their clinic/hospital for any reason it is common for the medical provider to write in their observations of a person’s mood, gait, pain, alertness, attitude, etc. These notes assist (Administrative Law Judge) or ALJs, in their analyses of what a person is capable of.

Third, the ALJ is most interested in what a Claimant thinks of their own capabilities and struggles. Often when family members actually do testify they have a tendency to state how difficult the Claimant’s situation is on them personally, not the Claimant. The hearing is the Claimant’s time to tell their story in a limited timeframe.

Occasionally there are valid reasons for outside testimony from a family member. When there are traumatic brain injuries or severe memory issues to the point where a Claimant cannot articulate AT ALL what they experience medically on a daily or weekly basis. These situations are extremely rare. Another more common situation is when the Claimant is a child. In these situations, depending on the age of the child the parent/guardian will be expected to complete the picture for the ALJ.

 

By Robert Tadych

Written by Robert Tadych

Robert has been with the firm since November 2008 and practices exclusively in the area of Social Security Disability.

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How Can my ALJ Misunderstand my Evidence at my Social Security Hearing?

REAL EXPERIENCE SERIES:

Q & A with 25+ year Social Security Disability Attorney Andrew Kinney

Q:  What can my Social Security ALJ misunderstand about my evidence at my Social Security Disability benefits hearing?

A:  ALJ’s, as your Social Security judge is called, will form opinions about you based on your employment history and medical treatment record.  These opinions, right or wrong, can influence how your hearing goes even before you walk into the hearing room.  Unfavorable hearing decisions are created by templates that attack weaknesses in claims—even if they are merely assumptions.  Unfair or not, you need to be aware of the kinds of assumptions your ALJ may make about you.  Fight errors!

Q:  What might the ALJ assume about me?

A:  Here is a list of different scenarios that occur in Social Security hearings, assumptions that may arise from them, and how to combat them at your hearing:

  1. When your medical treatment is sparse or nonexistent, your ALJ may assume you are healthy. In this situation, your Social Security attorney needs to ensure that your ALJ at your hearing understands that you may have lost your insurance, been homeless, lacked physical access to treatment, or that chronic conditions do not require the need for ongoing care.  In the last case, conditions such as cerebral palsy or low IQ may not warrant annual treatment or medications.  So, once you apply for Social Security Disability or SSI benefits, treat regularly for ALL your medical conditions that limit your ability to work.  Retesting for chronic conditions may be necessary as well.  Also keep in mind your ALJ is not a doctor.  He or she may make assumptions about your remote treatment history for your chronic medical problems.  For this reason, touch on your remote medical history at your hearing!
  2. When your work history is poor, your ALJ may assume you are simply not motivated to work. In this situation, your Social Security attorney needs to ensure that your ALJ understands that you may have remained at home to care for children, care for a sick family member, or had unreported work.  SSA can see your work history.  It is difficult to prove you cannot work if it appears you have never tried.  Speak with your Social Security attorney about this.
  3. When you currently do not take medications, your ALJ may assume you are either healthy or non-compliant (failing to follow your doctors’ treatment). In this situation, your Social Security attorney needs to ensure that your ALJ understands that you may have had: (1) an addiction history that precludes you taking pain medications, (2) no access to insurance, or (3) a history of adverse reactions to other medications you are expected to take.  Make sure that the ALJ, and your doctors, understand your reality.

In my experience, Social Security hearings are error-prone because assumptions are made all the time about what is NOT in the evidence.  While your claim is pending, find trustworthy medical providers who follow through on treatment, make timely specialist referrals, and order the right testing.  You deserve the best medical treatment, and the best treatment gives you a better odds of either returning to work or proving disability.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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The Two-Way Street of Updating Medical Evidence

A complete medical record is paramount in getting your Social Security disability claim approved. At the hearing level, the most common question I get from my clients is, “are all the records in?” The Social Security Administration recently enacted a new regulation that requires the Administrative Law Judge be provided, or informed of, all written evidence within five business days of the hearing. 20 CFR 404.935.

Attorney representatives typically request, pay for and submit medical records prior to a hearing. For the reasons explained below, timing is key in order to comply with the new 5-day rule.

First, it would be impractical for representatives to constantly hound all of their clients in case some new and material medical evidence has come into existence. Too much time would be wasted and the representation of SSD claimants would no longer be a viable practice. On the other end of the spectrum, representatives must exercise due diligence in pursuing relevant evidence in their clients’ claims.

Second, depending on the state, claimants can wait up to two years for a hearing after the previous denial. Social Security usually sends a Notice of Hearing about 90 days before the date of the hearing. This creates a dilemma. ALJs are very concerned with the claimant’s recent medical evidence, which shows whether ongoing benefits are warranted and whether any medical improvement has occurred or is likely to occur. So, if the file is updated too early, additional updates will be necessary to add new evidence. If the file is updated too late, the 5-day rule might be violated. Depending on the source, requests for records can be outstanding for 30 days or more, despite follow-ups and re-requests, before the records are produced. This results in a small window in which records requests will generate complete submissions just in time but not too late.

The best way to handle this situation is with a team effort. When this issues arises in hearings, I have had multiple judges describe to my clients a “two-way street,” where representatives and clients both have an obligation to communicate with each other. If you don’t notify your representative with your new address or phone number, your representative has no way to reach you and therefore no way to know where you have been going for treatment. They can update with sources they already know about but not with new sources. The longer you do not return their phone calls or respond to their letters, the more likely you will violate the 5-day rule and a strict judge will refuse to consider key evidence. If your representative is unable to reach you after several attempts, he or she is allowed to drop your case.

An ALJ can approve a case without a hearing if the evidence is strong enough, although this is very rare. However, as above, it is impractical for representatives to frequently contact their clients just in case there is new, significant medical information. A representative will always contact their clients to update the file before the hearing. Until then, clients must contact their representatives with new medical information so the representative can obtain the records and submit them to the ALJ. New medical information might be a new doctor, diagnosis, test or hospitalization.

Written by Charles Sagert

Charles A. Sagert is a Social Security Disability attorney in Roseville, MN.

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What documents will I need when I apply for Social Security Disability Benefits?

Certain documents will need to be provided to Social Security when you apply for benefits.  Providing original documents in a timely manner will expedite the process.  Some examples of documents you may need are:

  • Your Social Security card
  • Your birth certificate
  • Your children’s birth certificates and Social Security numbers (if applying for them)
  • Proof of U.S. citizenship or lawful immigration status
  • Your spouse’s birth certificate and Social Security number if he or she is applying for benefits based on your earnings
  • Your marriage certificate
  • Your military discharge papers
  • Your most recent W-2 or tax return

Once documents are gathered, benefits can be applied for in person or online at sss.socialsecurity.gov/applyforbenefits .  Applying for benefits is only the beginning of the process.  Knowing one’s rights along the way is very important to a favorable outcome and as such, you have a right to representation.  For questions related to how to apply for disability or any other issues related to your Social Security Disability claim, please contact us at Hoglund, Chwialkowski, and Mrozik.

by Lyndsey Sharpe

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Burdens of Proof

When applying for Social Security Disability, the Administration must use a five-step analysis to determine if a claimant is disabled. Going through the steps, if at any point the claimant does not meet a step, the analysis ends and the Administration will find that the claimant is not disabled. The steps are:

 

  1. Is the claimant engaging in substantial gainful activity (making more than $1,170 per month before taxes in 2017)? If the claimant is making more than the limit, he or she is not disabled.
  2. Does the claimant have a severe impairment (An impairment that materially limits the ability to perform work activities)? If not, the claimant is not disabled.
  3. Does the claimant meet or equal a listing due to his or her impairments (Listings outline specific impairments and certain objective findings that, if documented, result in a finding of disability)? If not, the analysis goes to the next step.
  4. Can the claimant perform his or her past relevant work (work done at substantial gainful activity for a long enough period to learn the skills involved in performing the work, done in the last 15 years)? If yes, he or she is not disabled.
  5. Can the claimant perform any other work, as outlined by Social Security’s rules and regulations? If yes, the claimant is not disabled.

 

The burden of proof is on the claimant for the first four steps of the analysis. If the claimant proves that he or she cannot do any past relevant work, the burden shifts to the Social Security Administration to determine if there are other jobs available. This becomes important at a hearing, as an administrative law judge at hearing will have a vocational expert present to testify as to the availability of jobs for a person matching the claimant’s residual functional capacity. If it is established that he or she cannot do past relevant work, the onus is on the judge to establish that there is other work available. If the judge does not question the vocational expert about the existence of other jobs, by definition the Administration has not proven that there are jobs available for the claimant.
These issues can become very esoteric. Consult a Social Security Disability attorney if you have any questions about the disability adjudication process.

Written by Adam Kachelski

Adam Kachelski is a 2014 graduate of the University of Wisconsin School of Law. He lives and works in Cincinnati.

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Social Security approved me for disability benefits, now what?

Social Security Disability Insurance and Social Security Insurance are the two benefit programs that a disabled person can submit a claim for. While both benefit programs are for disabled individuals, they slightly differ in the requirements. Social Security Insurance(SSI) are for individuals who have not worked but are disabled and have little to no income or resources. Social Security Disability Insurance(SSDI) are for individuals that paid FICA taxes over many years. So for this program, you do not need to meet income limits in order to qualify. A finding of disability and the required work earnings are sufficient.

It may have been a long and frustrating road to get to this point but you are finally here. Your decision, may it be fully or partially favorable is now a reality. You are given back your independence and now know that you will have the ability to pay bills and buy the things that you need. Now, you’re wondering how long will it take to get your money. Unfortunately, you may have to wait another 1-3 months before you receive your first payment.

Social Security Supplemental Income(SSSI) will consider your resources such as spousal income, cash, bank accounts, stocks personal property, vehicles, life insurance, and anything that can be exchanged for cash. Social Security Disability Insurance(SSDI) will consider other employment or disability money received during the time your claim was pending such as, unemployment benefits, workers’ compensation, or long term or short term disability payments. Social Security will have to verify all sources of income before sending you your first check. However, being upfront and having these documents readily available could be of benefit in terms of speeding up this process.

 

For more information, please contact the attorneys at Hoglund, Chwialkowski, & Mrozik PLLC.

By Shana Knotts

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Client Communication

When attorneys meet clients for social security disability cases, they usually have a lot of questions.  First question usually is, how long does the social security disability process take?

It is important for the social security disability attorney to explain each stage separately and that on average, a client will likely end up at hearing before being approved, if they are ever approved.  This will take over two years.

It is important that clients are aware this is normal and having low income or significant pain or difficulties will not speed their case up.  Getting an attorney in general does not speed the process up, but the proper attorney will make sure appeal deadlines are not missed, that all the medical records are ordered and received, and that the claimant is prepared when the hearing time comes.  This is primarily why it is prudent to hire an attorney.  Clients need to have realistic expectations of this long process.

Another frequently asked question is can I work?  Although attorney can quickly explain SGA limits, which is currently $1,130 before taxes, it is important to go beyond that, and discuss that this is an inquiry to be made with their doctor. Discuss working restrictions from a physical and mental aspect with their doctor beyond just the allowable dollar amount from social security is prudent.  Attorneys know that this is a long process and people need to get by, but these questions need to be discussed with counsel and a doctor to make the most informed decisions.

Client communication is an ethical obligation and an important aspect of effective representation in a social security disability case.  For example, an attorney cannot be effective if the claimant does not give the attorney all of their medical sources and symptoms of their conditions, and a client cannot be helpful if they are not made aware of how the process works and what the social security looks at.  Communication is key to obtaining benefits.

 

By Joshua Tripp

Written by Joshua Tripp

Joshua Tripp practices in the social security disability department of Hoglund law offices. Prior to focusing on social security disability alone, Mr. Tripp has practiced in several civil areas of the law including personal injury, probate and family law.

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Why is a Medical Expert at my Hearing?

There is a possibility that a medical expert will be present at your hearing. This medical expert is present as a neutral expert, and will be assisting in helping the Administrative Law Judge understand the medical diagnosis and conditions outlined in your medical records. This will be a doctor that has not examined you before, and will be basing their opinions solely on the review of your medical records. This is why it is important to notify your attorney of all medical clinics and hospital visits you have had in the relevant time period at question, so that your medical records are up to date for the medical expert to review.

The medical expert will be providing testimony whether in their opinion your conditions either meet or equal Social Security’s medical criteria (“The Listings of Impairments”) for being found disabled. If the medical expert finds that you do not necessarily meet or equal a listing, the expert will identify any functional limitations that they deem necessary in a work-setting based on their review of the medical records. At the hearing your attorney will have the opportunity to cross-examine the medical expert to further determine work-related limitations.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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