Dallas Fort Worth Social Security Disability Lawyer

November 2016 is COPD Awarement Month: Is COPD a Basis for Social Security Disability?

Posted by Stanley Denman on Fri, Nov 25, 2016

Chronic obstructive pulmonary disease (COPD) is a type of lung disease characterized by long-term poor airflow. COPD usually develops slowly and some people may not know that they are ill. Symptoms include coughing, fatigue, repeated respiratory infections, shortness of breath (dyspnea) during mild activity, difficulty catching your breath and wheezing.  The Centers for Disease Control and Prevention shows that over 5 percent of Texans have been diagnosed with COPD.

 In the United States and United Kingdom, of those with COPD, 80–95% are either current smokers or previously smoked.The unfortunate reality of COPD is that, for many who have the disease, symptoms don’t begin to appear until significant damage within the lungs has already occurred. Because of this—especially when the patient is unaware and continues to smoke—this can further the damage already inflicted. When breathing becomes difficult and even mild exercise causes shortness of breath and fatigue, it affects almost all our daily activities and the ability to work is severely impaired. COPD makes it difficult to breathe. There are two main forms of COPD:

•· Chronic bronchitis, which involves a long-term cough with mucus

•· Emphysema, which involves destruction of the lungs over time

Spirometry Testing: the Gold Standard for Diagnosis and Severity Assessment

Spirometry measures the amount of airflow obstruction present. Two main metrics are measured to make the diagnosis:

  • the forced expiratory volume in one second (FEV1), which is the greatest volume of air that can be breathed out in the first second of a breath, and
  • the forced air capacity (FVC), which is the greatest volume of air that can be breathed out in a single large breath.

 Normally, 75–80% of the FVC comes out in the first second and a FEV1/FVC ratio of less than 70% in someone with symptoms of COPD defines a person as having the disease.  Spirometry and the critical metrics of FEV1 and FVC are also useful in assessing the severity of COPD. The lower the FEV1/FVC ratio, the more severe the COPD. One scale used by pulmonologists to determine COPD severity is the "GOLD Criteria for COPD" which relies solely on FEV1

Stage I Mild COPD FEV1/FVC<0.70 FEV1≥ 80% normal
Stage II Moderate COPD FEV1/FVC<0.70 FEV1 50-79% normal
Stage III Severe COPD FEV1/FVC<0.70 FEV1 30-49% normal
Stage IV Very Severe COPD FEV1/FVC<0.70 FEV1 <30% normal, or <50% normal with chronic respiratory failure present*

 More recently the GOLD Criteria has been modified to include symptoms in assessment of COPD severity, not just the FEV score.  This new criteria includes assessment under 

Scale 1 Breathless only with strenuous exercise
Scale 2 Short of breath when hurrying on the level or up a slight hill.
Scale 3 Slower than most people of the same age on a level surface or Have to stop when walking at my own pace on the leve
Scale 4 Stop for breath walking 100 meters or After a walking few minutes at my own pace on the level
Scale 5 Too breathless to leave the house

 In determining whether an individual with COPD is disabled, the assessment of severity is imperative. Just how severe is the breathing problem?  Moreover, age and the type of past work is particularly relevant in the COPD disability case. Its just common sense that a person with COPD would have much more difficulty doing a physicial and 'stand-up' job than sitting at a computer terminal entering data all day long. Age is also important, because over the age of 50 the emphasis is on ability to do prior work, and the governments options in claiming someone over 50 can do new work are more limited.

Current tobacco use is also a factor.  Even though the COPD will not end or reverse itself folloing smoking cessation, an ALJ will have a harder time granting benefits to someone who is continuing to accelerate the disease severity by smoking.

At Denman Law Office we have successfully handled hundreds of disability claims in Dallas Fort Worth based upon COPD. Call us with any questions without charge at 214-219-7288.

Topics: COPD & Social Security Disability

Waiting Time for ALJ Disability Hearings: Why Does It Take So Long?

Posted by Stanley Denman on Sat, Nov 19, 2016

 

In the last 25 years of handling only social security disability in Dallas Texas, I have seen the waiting time for the Administrative Law Judge hearing go up, and go down. But it has never gone down to anything close to an acceptable level. Clients asking me all the time" "Why does it take so long to get a hearing"?

First lets look at what the hearing wait time and hearing request backlog looks like in, with a particular emphasis on Dallas Fort Worth. The Office of Disability Adjudication & Review uses a metric, Average Processing Time (APT). This is simply the precise answer to the question: "How long must I wait to get a hearing?". Let's just call it the Hearing Wait.

The Hearing Wait nationally is going Up.  See the Chart Above.  Dallas Fort Worth is no exception.

Here are the Wait Times for the 3 hearing offices in the Dallas Fort Worth area:

HEARING WAIT 
ODARS Office Fiscal YR 2016 Fiscal YR 2015 Fiscal YR 2014
Dallas Downtown 16.0 months 15.0 months 11.0 months
Dallas North 13.0 months 14.0 months 12.0 months
Fort Worth 13.5 months 11.0 months 10.0 months

 

The numbers are really shocking to most people: it takes over year to get an ALJ hearing in Dallas Fort Worth? And that is not from the initial application, it is from the actually hearing request.

 But back to the question I get 2-3 times a week for the last 25 years: WHY?  Well, the simple answer is that the ODAR hearing offices incoming hearing requests (receipts) have been exceeding the number of case dispositions.  Not a very satisfying answer, is it? Social security claims that social security disability applications have been going up each year for many many years and that Congress has not provided sufficient resources (i.e, money) to handle the backlog.

Those skeptical of government (nearly everyone now?) suspect ODAR to be a lazy bureaucracy always looking for more funding and filled with slackers who cannot be fired because of strong government unions. Partly right. But my experience in the past 25 years is that there are dozens of hard working staff and ALJs in Dallas Fort Worth that are working harder than most of us have to help disabled Americans. When considering the growing Hearing Wait, I would urge consideration of the following:

  1. The ALJ hearing is a time-intensive affair.

Setting up and conducting the ALJ takes alot of time on the part of staff and the Administrative Law Judges.  People don't show up for their hearing, and ODARs must give them an opportunity to explain why they were a 'no-show'.  People come to hearings without an attorney or representative and the ALJ must give them the chance to get an attorney if they want. Even though they have been waiting for over a year, some people fail to secure representation, wasting ODAR time and resources.

2.  ALJ's are duty bound to develop evidence.

For 25 years one of top priorities in representing Dallas Fort Worth social security disability claimants is to come to the ALJ with all medical evidence in front of the judge and up to date. This can be a challenge, and ALJs routinely give claimants and their representatives more time to secure missing evidence after the hearing.  Sometimes a claimant has not been seeing a doctor very much, so the ALJ will order a consultative examination at the government's expense.  Moreover, more TV national social security disability firms are getting into this practice that often fail to develop the case causing significant delays.  One firm, Citizen's Disability, requires that their attorneys formally object to every Vocational Expert's credentials, requiring ALJ's to waste their time responding  to their objections in writing. They needless extending the length hearings with repetitive questions to the vocational expert.

3. The Continued Job Crisis

 There is significant evidence that good paying blue collar jobs are not coming back under any President. The reality for people over 50 that lose a job is that it is very difficult to find another job.  Many are applying for disability now that in the past would keep working.  Its not that they are faking; they have genuine health problems, but if they had a jo that would somehow force themselves to work.

4. Congress has no appetite for proving social security with more money

The social security admistration has come under intense criticism, with some good reason, in the last fews years for failing to monitor disability claimants, and paying benefits when they should not. Congress is not likely to open themselves up to critics in the conservative media who would contend they are "enabling" more government dependence but giving the agency added funding. 

So it is not a pretty picture, but consider this: so-called "liberal" Canada does not provide for an administrative hearing for disability claimants. They have no opportunity to sit in front of a disability decision and tell their story. And consider delays like a judge ordering a consultative exam, or giving a claimant a chance to reset a hearing to get a representative. These delays would not happen if the judge just denied the claimant and sent her on her way.

So,the main reason for the delays? You are being provided substantive rights we all should be proud of, and will be happy you have when it is your time to have an administrative hearing.

 

 

10 Common but Wrong Ideas About Social Security Disability

Posted by Stanley Denman on Sat, Oct 10, 2015

WrongIdeasSocialSecurityDisability.jpg

1. "My doctor will not sign off on my disability so I have no chance of getting disability”

 A treating doctor’s opinion of a patient’s illness and the extent of functional limitations is important. Social security disability regulations require social security to given the opinion of a treating doctor “controlling weight” unless it is not supported by the medical findings and evidence. This does not mean, however, that social security requires a treating doctor to provide a letter of support for a social security disability applicant.

 2. “I need to get social security disability so I can see a doctor”

  Medicare is available to a social security disability recipient after 24 months of entitlement to social security disability benefits. SSI recipients are entitled to Medicaid. Since in most cases medical insurance coverage continues to be tied to employment in the United States, and disability applicants are not working, it is understandable that many would see social security disability as the solution to their lack of medical coverage. The problem is, however, that ongoing medical treatment is necessary in order to qualify for social security disability. Moreover, the typical wait for disability approval is around 18 months. Social security disability benefits cannot be the solution to the immediate problem of medical coverage and treatment.

3. “The Administrative Law Judge was so nice to me at the hearing so I know I won”

 When I first started handling only social security disability cases in Dallas Fort Worth 23 years ago, a fair number of ALJ’s were direct with disability claimants, and many were dismissive or rude to claimants they felt were not disabled. Newer ALJ’s, however, are uniformly polite, obviously reflecting more vigorous training in tact and diplomacy in the administrative hearing. In general, however, the newer ALJ’s have lower case approval rates, and many that deny most claims are friendly and courteous in the hearing.

4. “The Administrative Law Judge asked some hard questions and wasn’t real friendly so I am sure I lost”

 The inverse of the above is also true: don’t assume a generally unsympathetic ALJ who tries to poke holes in your story will turn you down. ALJs uniformly take their role very seriously, and will fully develop the evidence, facts and credibility of the claimant even in cases they were inclined to grant all along.

5. “Social security sent me to a doctor so I do not need to get medical treatment to get my disability”

 Social security often arranges for a medical consultative examination at government expense. Physicians find the pay rates for the examinations to be very low, and the exam is usually brief and cursory. A social security consultative examination is no substitute for ongoing and regular medical treatment.

6. "I am getting (Long-Term Disability, VA Disability) so Social Security must find me disabled”

Long term disability benefits are a typical employer benefit in major corporations or institutions. Usually LTD insurance policies pay 60% of one’s salary and require proof of inability to do prior work for the first 24 months. Thereafter, the long-term disability recipient must prove inability to do any work. Social security disability requires inability to do any work. So, for the first 2 years of long-term disability, the standard applied by the insurance company is different than that of social security.

Veteran’s disability benefits are awarded on a percent basis. Veteran’s with a 100% disability rating are correct that this award will be helpful in securing social security disability benefits: ALJ’s are required to address and properly assess the impact of a VA disability decision on eligibility for social security disability benefits. It is not, however, a foregone conclusion that VA disability will mean social security disability is also approved.

 7. “I have a hearing with a judge who has a very low approval rate so I have no chance of winning”

 Statistics on the award ratings for administrative law judges are now available. These numbers are revealing, but can be misleading. Keep in mind that all social security disability applicants have the right to an administrative hearing. It is important to remember that there remain a fair number of claimants who take their case to ALJ hearing that are simply not disabled. If you have a judge that pays only 17% of cases, does that mean you have a 83% of being turned down? No, it just means the ALJ only pays 17% of the cases that come before her. If you have a strong case, your chances with the 17% ALJ are still much higher than 17%.

8. “I am drawing unemployment benefits so I cannot get social security disability”

 Drawing unemployment benefits and seeking social security disability benefits is not prohibited, nor does it automatically disqualify for either benefit. ALJs do however, routinely question claimants drawing unemployment benefits very carefully because in order to qualify for unemployment benefits in Texas you must tell the government that you are looking for work and that you are able to work. Drawing unemployment benefits and also seeking disability benefits is not a good idea, and overall is a negative in the eyes of ALJs, but it is not an automatic disqualifier

 9. “I am getting workers compensation now so I should wait to file for social security disability until my worker’s compensation ends”

Social Security disability benefits are reduced in most states,(including Texas), by the amount of workers compensation received. In prior years I routinely heard reports from claimants that social security workers discouraged workers compensation recipients from filing a claim for social security disability since they were likely to be entitled to no social security disability benefits while getting worker’s compensation. This was terrible advice that I do not hear being given by social secuirty now. There are several reasons why waiting for the worker’s compensation to end is a bad idea:

  • since it takes so long to move through the social security disability assessment process, you will be in a world of financial hurt if you wait to file when the checks stop;and
  •  you may run out of coverage for social security disability benefits if you wait too long to file.

10. "I need a junk yard lawyer who will kick some "A" to win my case"

Many seem to think that being a brash and belligerent lawyer is the same as being an effective one. It is, however, often true in adverse litigation matters than a combative style is helpful. But social security disability is not an adversarial process. There is no lawyer present at the ALJ hearing for the attorney to lock horns with. Effective representation in social security disability is the art of persuasion.


 

 

 

 

 

Why Your Contingent Fee Social Security Disability Lawyer Does not Benefit from Delay

Posted by Stanley Denman on Tue, Jul 28, 2015

SocialSecurityDisabilityDelays

The fee arrangement for social security disability claimants is simple: 25% of retroactive benefits or $6000, whichever is less. Most disability claimants are in extreme financial distress and needed their disability benefits approved yesterday. On its face is seems the interests of the disability applicant and their disability attorney are not aligned because the disability attorney's potential fee increases with every month that passes.

The average social security disability check is around $1000 a month. So social security disability attorneys make on average $250 more for each month of delay in awarding benefits. On the surface this seems like a strong incentive for the social security disability attorney to delay their client's approval.

Putting aside that such behavior would be unethical, does a social security disability attorney really benefit from the horrendously long waits for a disability case approval? I hope to convince you that the lengthly delays hurt claimants and attorneys alike. Here are the real issues for the social security disability attorney.

  • Cash Flow.   Maintaining positive cash flow is perhaps the most challenging problem for small/medium size business. Overhead such as rent, salaries and utilities must be paid every month, without regard to how much income is coming in the door.  When bills need to be paid, the social security disability lawyer would much rather receive her fee now even if that fee would have increased with the passage of time.  

  •  Time Value of Money.  This concept is defined as follows by investopedia" as "[t]he idea that money available at the present time is worth more than the same amount in the future due to its potential earning capacity." Perhaps a better way to understand this concept is the well-known adage that "a bird in the hand is worth more than one in the bush". 
  • Delayed cases make for unhappy clients. Every day I get at least one call from a social security disability applicant who is mad at her lawyer because "he's not doing anything'" or "the case is dragging on". Clients often fire their disability attorney primarily because the claim is not resolved. On the other hand a happy client who just won his benefits is likely to tell others his good experience with the attorney, increasing the attorneys case load.  
  • Case Load "Churn".  Stay with me here because this is the main reason that the notion social security disability attorneys benefit from the long disability approval wait is proposterous. I am sure all would agree that a legal office has a case load capacity that can be worked at any one time.  So when a claim is closed, there is room for a new case.

Let's consider an example. Let's say Attorney Smith cares only about the money and doesn't give a fig about his client's suffering in waiting for disability. Client A has a winning case in which the client would receive monthly benefits of $1000. Back benefits have built up, meaning Atttorney Smith would get a $2000 fee for this month. But if he waits until next month his fee would be $2250. So Attorney Smith considers: should I delay winning Client A's case for a month?  Here's why delay is a very bad deal for Attorney Smith's bottom line.

Most social security disability claimants do not file a claim for disability immediately after ceasing to work because they hope to get better and return to work. And most social security disability claimants do not hire an attorney until they have gotten at least one denial. Therefore a new disability client "comes in the door" for an attorney with a fee potential even if the case was paid immediately. At the time a social security disability attorney signs up a new client with a pending disability claim a typical fee potential would be around $1000. Lets call this person Client B.

So let's compare the outcome for attorney Smith to see if he really is better off in delaying client cases:

Attorney Smith Delays Case Attorney Smith does the Right Thing (Completes Client A case and retains Client B) 
Actual Fee Potential Fee
    0 $2250 (Client A)
Actual Fee Potential Fee
$2000 (from Client A) $1000 (Client B)

 If you were a social security disability attorney which option would you choose?

 

 

Topics: Social Security Disability Delays

Your Social Security Disability Administrative Hearing Closing Question: An Opportunity or a Chanced to Blow it?

Posted by Stanley Denman on Sat, Apr 11, 2015

SnatchingDefeat

 

Administrative Law Judge's are now routinely giving the claimant in a social security disability hearing  the "last word".While many of the questions an ALJ asks a claimant during the course of the hearing are very specific, a closing query such as  "Is there anytihing else you would like me to know?" is broad and intended to insure that the ALJ has all the pertinent information so as to render a fair and impartial decision. 

Claimants can often react to this question with some anxiety, thinking they might have left something important out. After all, they have in most cases been waiting over a year for this chance to tell their story to the social security administration. I prepare my clients for this question, but I remain tense when it comes along. In a hearing in which I have done my job to bring out the salient facts and evidence, and one I feel has gone well, further statements can feel like a  chance to snatch defeat from the jaws of victory. The disasterous 2015 play call by Seattle Seahawks coach Pete Carroll in the last Super Bowl comes easily to mind.

Claimants often bring up minor health problems in response to this "kitchen sink" question,innocently thinking that this level of thoroughness is important. When claimant's present non-disabling medical or mental conditions, ALJ's can misinterpret the claimant's testimony as a sign of exaggeration.

Claimants may also take the final chance to address the judge to make sure the ALJ understands that they are not lazy or entitled. Often times, however, statements made to that end can be misinterpreted, and in some cases have the opposite effect.

Statements like "I would rather be working" or "I have worked all my life" are understandable but in the experience of ALJs are often made by claimants that are fact not disabled. More troubling would be final statements such as "I can't find a job". Such a statement on its face is a clear indication of ability to work. In my 23 years of social security disability experience in Dallas Fort Worth I have on rare occasions ( and despite of my preparation session with the client) had well-qualified and clearly disabled clients made such a statement. In most cases, the ALJ have ben wise and fair enough to fquestion the claimant further and clarify that the claimant is not saying they are able to work. 

The reality is that the Administrative Law Judge hearing can be a minefield where innocent and well-meaning statements can be misinterpreted. Social security disability claimants in Dalllas Fort Worth Texas and throughout the nation need experienced, local and personal representation to reach the goal of securing social security disability benefits.

Topics: ALJ Hearing

5 Steps to Winning Your Chronic Pain Social Security Disability Case in Texas

Posted by Stanley Denman on Sat, Feb 7, 2015


s-DSM5-CHRONIC-PAIN-large

Chronic pain due to a specific medical condition or injury can provide the basis for a social security disability benefits approval.  Chronic pain is distinguished from acute pain where it is easier to understand the intensity and duration of the pain based upon the extent of the physical injury.  The so-called ‘specificity theory’ of pain recognizes what we know from common sense that, for example, pain from a finger prick is less intense and long-lasting than that resulting from  a toe amputation.  

Social security law requires that pain symptoms be the result of a “medically determinable impairment that could reasonably be expected to produce your symptoms”.  This is, I think, a codification of the ‘specificity theory’: excruciating and long-lasting pain can hardly be “reasonable expected” from a finger prick.

 The ‘specificity theory’ as an explanation of pain duration and intensity seems to break down, however, when it comes to chronic pain.  Often there is little relation between the extent of physical injury and the debilitating nature of chronic pain. My father-in-law lost both legs in the Korean War, yet often complained of pain in his toes, an example of Phantom Limb Syndrome.  Reflex Sympathetic Dystrophy Syndrome (RSD), now called Complex Regional Pain Syndrome (CRPS), is a chronic pain condition triggered by physical injury, but the intensity and frequency of the chronic pain often is not qualitatively related to the severity of the physical insult.

While both Phantom Limb Syndrome and RSD were well know when Kentucky senator Rand Paul went to medical school, his recent comment about social security disability reflect an all too common misunderstanding of chronic pain on the part of doctors.  He said that  "[o]ver half the people on disability are either anxious or their back hurts. Join the club."

These are some of the reasons that chronic pain victims seeking social security disability face challenges. That challenge is heightened in Texas where our conservative politics may encourage an attitude that a strong self-reliant person cannot be disabled due to chronic pain. Here are my 5 tips, based upon 23 years of handling only social security disability cases in North Texas, for winning a social security disability case based upon chronic pain.

1.         Secure Treatment with a Pain Management Doctor

Social security law requires medical treatment for the condition alleged to be disabling. Social security finds allegations of disabling pain more credible when the claimant is seeing a pain management doctor. Social security also affords more deference to the medical opinions of specialists.

2.         Follow Medical Advice

Chronic pain victims are understandably frustrated with medical treatment has not afforded a return to a normal work life. This frustration often leads a feeling of hopelessness and an unwillingness to follow medical advice for additional treatments and procedures.

The wide—spread abuse of narcotic prescription medications often leads those in chronic pain to refuse narcotic pain medications. Many times well-meaning family members, while wanting the chronic pain victim to be free of debilitating pain, are opposed to prescribed narcotic pain medications, worrying that their loved one will end up like their pill-popping cousin.

Dr. Theodore Price, a pain researcher and faculty member at the University of Texas at Dallas puts it very well:

“Very few people understand that when used appropriately for pain, opioids very rarely become addicting,” Price said. “In practice, this means that people suffer needlessly and may develop chronic pain because they avoid opioid therapy that could alleviate their pain. We need better education in this area.”

3.         Secure Psychiatric Treatment for Depression and Anxiety

Secure Psychiatric Treatment for Depression and Anxiety

Depression and anxiety are often the handmaidens of chronic pain. Yet many with chronic pain secure no psychiatric treatment. There are many reasons for this, but none of valid for purposes of securing social security disability. Many with chronic pain wrongly feel that securing psychiatric treatment is an admission that their pain ‘is all in their heads”.  Other reasons that, since they are depressed/anxiety because of the chronic pain, there is no point in treating their depression/anxiety.

4.         Pursue Pain Alleviation strategies beyond medication

It has been my experience in Dallas Fort Worth that pain management doctors are primarily focused on a narrow set of pain alleviation tools such as opioid medications, spinal stimulators/implants, nerve blocks and steroid injections. Typically  pain management doctors are anesthesiologists by training, so it is no surprise their focus is on those techniques.

Yet there are a wide range of other pain treatment options that  research shows  to be helpful, including yoga, exercise, stretching, acupuncture and biofeedback.  The more efforts you make to alleviate your pain, the more credible your allegations of disabling pain will look to an Administrative Law Judge.

5.         Hire Local, Specialized Attorney Representation

I hope by now the 4 points above make this as obvious as the fact that I, as a local social security disability attorney in Dallas Texas handling only social security disability for 23 years, make it! Chronic pain social security disability required personal and experienced representation, not the “one size fits all“ representation you will get from the national TV-ad disability firms.

 

Topics: Chronic Pain

5 Common Mistakes Texans with Fibromyalgia Make in Applying for Social Security Disability

Posted by Stanley Denman on Sat, Jan 24, 2015

FibromyalgiaDisabilityDallasTexas

Winning social security disability benefits in North Texas based upon Fibromyalgia presents unique challenges that require a unique and experienced approached. Over the past 24 years handling only social security disability cases in Dallas Fort Worth, I have secured disability benefits for hundreds of Fibromyalgia sufferers who cannot work. 

Often time the likelihood of a favorable outcome is greatly impacted by decisions Fibromyalgia suffers may make.  Here are the top 5 "mistakes" I have seen that Fibromyalgia suffers often make:

1: Failure to secure a proper Fibromyalia diagnosis.

The medical profession as a whole in North Texas has been uneven in its acceptance of Fibromyalgia as a legitimate medical condition. Many family or general practice doctors make the diagnosis of Fibromyalgia with no basis in medical testing, but rather based solely on reported symptoms. Administrative Law Judges in Dallas.Fort Worth who hearing social security disability cases commonly believe, rightly or wrongly,that doctors other than Rheumatolgists often apply the Fibromyalgia diagnosis when their patient is reporting unexplained pain, fatigue and cognitive issues.

The Social Security Administration issued a Social Security Ruling in 2012 to provide guidance and instruction to disability adjudicators considered Fibromyalgia-based disability claims. SSR 12-2p  makes it clear that the Fibromyalgia diagnosed must be based either on the "1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia" or  the "2010 ACR Preliminary Diagnostic Criteria".  In my experience, few general practice doctor reference either of these diagnostic criteria.

2: Failure to Receive consistent treatment with a Rheumatologist

Rheumatology is the appropriate medical specialty for Fibromyalgia, Treatment options for Fibromyalgia, however, are very limited. Doctors become doctors because they want to help people get well. It has been my experience that they often lose their enthusiasm for treating patients for whom they have few treatment options. I have seen some dismiss Fibromyalgia patients saying "I can't do anything more for you". Other times the Fibromyalgia patient see little progress managing their disease even under the care of a Rheumatologist. These factors often result in Fibromyalgia patients falling away from medical treatment. Yet it is axiomatic in social security disability law that failure to pursue medical treatment usally means a denial of the disability claim.

Bottom Line:  Secure medical treatment for your Fibromyalgia with a Rheumatologist. If you fell like your Rheumatologist is doing you no good or that your Rheumatologist has become "disinterested" in treating you, look for another Rheumatolgist. 

3: Trying to Educate Social Security about Fibromyalgia

It is not uncommon for me to review a social security disability file and find that before the Fibromyalgia client had hired me they had submitted vast materials on Fibromyalgia, usually secured on the internet. Other complete common forms such as the "Disability Report" in great detail, often hand-typed with attachments. I believe this common practice by Fibromyalgia-based disability claimants in North Texas is based in their common perception that their medical condition, Fibromyalgia, is misunderstood. This belief is undoubtedly rooted in the common sceptism they encounter from doctors, friends and family ("Gee, you look find to me!"). And,because Fibromyalgia sufferers are often higly educator former high achievers, they are simply applying their skills to the task at hand. After all, what in the world can be wrong with being thorough and detailed about such an important matter?

In the "Alice in Wonderland" world of social security disability, however, these well-meaning efforts are often misinterpreted. Disability decision makers often see energetic claim presentation and  documentation by an unrepresented claimant as inconsistent.  It is unapparent toe the disability decision maker that the detailed documentation may have been completed over the course of many days with frequent breaks.

4: Failing to Treat Psychologically-based Symptoms

Fibrmyalgia and psychologically based impairments such as anxiety and depression commonly appear together. Yet Fibromyalgia suffers in the DFW area are often reluctant to seeking psychiatric help.  It is axiomatic social secuirty disability law that the disability decisionmaker will not consider the impact of conditions that are not being treated medically. Often times in my experience Administrative Law Judges who may be sceptical about Fibromyalia may find the psycholoical evidence persuasive.

Because it is common for Fibromyalgia sufferers to have been told "its all in your head" they wrongly feel that getting psychological help is an admission that their physical impairments are a fabrication of their mind.  Nothing could be farther from the truth: chronic physical illness always brings about depression and anxiety. Would you be reluctant to get psychiatric help if you had a cancer diagnosis?

5: Choosing National "Disability Mill" Representation over an experienced local attorney

Large firms such as Binder and Binder, Freedom Disability,Disability Group and Citizens Disability have pioneered a new and dangerous business model in social security disability representation. Funded by venture capital firms,their main agenda is return on capital to the investor.This high volume practice and business organization encourages a "throw-it-up-against-the-wall and see if it will stick" approach: the large numbers mean it is more advantageous to alocate minimal time and resources to a case thatn to fully develop difficult claims. There may be many claimants who will still succeed with one of these national groups, but in my opinion, Fibromyalgia sufferers in North Texas are not among them.

  Click me

Topics: Fibromyalgia, Fibromyalgia and Social Security Disability

8 Common ALJ Hearing Statements by Texas Social Security Disability Claimants That are Irrelevant and Harmful

Posted by Stanley Denman on Sat, Nov 22, 2014

TexasAdministrativeLawJudgeHearing

Filing for social security disability benefits is stressful. Presenting your disability to an Administrative Law Judge (ALJ) in Texas may be the most stressful part of the process. Most folks have never been in such a hearing, and have no real experience in what to expect.That is a large part of what I do as a Dallas Texas social security disability attorney. I help my clients understand what will happen in their social security administrative hearing and how to accurately establish their right to social security disability benefits.

 Here's a short list of words and phrases that I as a social security disability attorney in Texas have heard in the ALJ hearing for 23 years that are not relevant and potentially harmful.

1. "I know plenty of people on disability that are not as bad off as me"

This is a common and understandable expression of frustration. Hard working Texans unable to continue to work are deeply offended that the disability insurance they expected to help them in their time of need is not there for them. When these claimants see or hear of persons collecting social security disability who appear to lead very active and full lives, it is like rubbing salt into their wounds. The ALJ, however, knows the social security disability assessment system is imperfect, and that many are collecting disability benefits that do not deserve them. But your social security disability ALJ hearing is about only one thing: are YOU disabled?

2. "I'd much rather be working: I could make a lot more than this social security disability"

Since this is true for nearly all social security disability claimants, the administrative law judge does not need to hear that from you. Moreover, the ALJ will have your earnings record and know how much you had been making in wages. She will know the monthly “pay cut” you are taking by getting social security disability.

3. " No one will hire me.”

A sad reality, perhaps, but not relevant. Folks with an extensive medical history or a lengthy on-the -job injury record often report they are turned down for jobs with phrases like “you’d be a liability to us” or “you would cost our insurance too much”. Most of the time in today’s litigation wary environment potential employers will just never call back. Another sad reality is that age discrimination is all too real. Texans over 50 year of age often find they never get a call back after a job interview, even when they seem perfect for the job. Social security disability does not, however, address job discrimination or the difficulties of finding a job. Of more concern to the ALJ is that this statement might reflect your belief that you can work, a conclusion that is very damaging to your credibility in asserting your are unable to work.

4. “I have been working since I was 15”.

The ALJ has your earnings records in front of her in your social security disability file. She doesn’t need to hear that fact from you, and it often times can be misconstrued as reflecting an attitude of entitlement, as if you are saying that you deserve benefits simply because you have been working a long time. The ALJ needs to know WHY you cannot work.

5. Vague words/phrase like “not much”, “it depends”, or “sometimes”.

The administrative law judge needs to know how often or how long you can perform functional activities, and she needs for you to tell her about the frequency and intensity of symptoms such as pain that would take you off-task in a job . Standard questions include:

 • How long can you stand?
• How far can you walk?
• How long can you sit at any one time?
• How long could you sit TOTAL in a normal day?
• How often do your symptoms occur?

Claimants often respond to these frequency and duration-based questions with vague phrases like “sometimes”, “not often”, “every now and then”, and “it depends”. The ALJ needs to know with exact detail the frequency and duration of your ability to sustain functions like standing, walking and sitting as well of that of symptoms. One reason that this is a tough question for people is that frequency varies greatly from day-to-day. The ALJ needs for you to tell her, on average, what is the frequency of your syptoms or typical frequency. For example, a good answer to the question “how long can you stand” would be the following:

• “I can stand on average 45 minutes to 1 hour until I have to sit down because of the pain in my legs”

6. “I can’t work because I can’t drive to a job”

In the Dallas Fort Worth area, it seems the ability to drive is crucial to working and conducting a normal life. But social security disability benefits are not granted merely because one cannot drive to work, even if not driving is pursuant to doctor's orders. The inability to drive can help establish inability to return to past work as a truck driver or delivery person, but social security disability law requires inability to do any work.

7. “My wife/husband doesn’t want me working”

Spouses are usually the only one who sees claimants struggling with staying on the job in the midst of a severe and chronic disability. It is understandable that many worry about their spouse and encourage them to stop working. It is only marginally relevant, however, to proving your right to social security disability benefits. It is relevant to testify as to why you spouse encouraged you to quit your job. Talking about the problems and struggles you spouse has witnessed in you is relevant to your case, but the mere fact that you have a sympathetic spouse is not.

8.“I can’t work because I saw on the internet that my medications have all kinds of side effects.

 Probably many of us would not take our prescribed medications if we read the package insert listing all the possible side-effects. Medication side effects are relevant in a social security disability: the side-effects you are experiencing, not those that could be associated with your medications.

When Bill Clinton first ran for the Presidency the economy was in poor shape. Campaign manager James Carville thought that reality key to a Clinton victory, and is known to have written the phrase "it’s about the economy" on the chalk board at campaign headquarters to keep staff focused on that one critical message. As a claimant in a Texas social security disability administrative hearing your one focus is YOU: how your illness effects your ability to work.

 

Topics: ALJ Hearing, Administrative Law Judge

Disabled and Uninsured: Why Obamacare Has Not Solved the Problem in Texas

Posted by Stanley Denman on Sat, Nov 15, 2014

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When it comes to medical insurance, disabled Texans are in a tough spot. While most employers are required to offer COBRA medical insurance coverage to departing employees, COBRA premiums are not "subsidized" and therefore allow the employer to charge the departing employee the full cost of the extended medical insurance. Over the years I have been astounded at the high monthly premiums my clients indicate are required to access COBRA extended benefits. Invariably when I talk with a potentional social security disability client in Dallas Texas who has declined COBRA medical insurance benefits they indicate the premiums were "too expensive". While I wish I had been able to talk with them before they declined COBRA, as I am sure most Texas disabled workers do not understand how important medical treatment is to winning a social security disability case, it is clear that COBRA is usually not affordable for those out of work.

Medical insurance for disabled Texans is a classic "Catch 22". Catch 22 is a wonderful term originating with Joseph Heller's book Catch-22 depicting the absurbities and contradictions of life.  Wikepedia gives the following example of a Catch 22: "losing something is typically a conventional problem; to solve it, one looks for the lost item until one finds it. But if the thing lost is one's glasses, one can't see to look for them."  In the case of social security disability, medical treatment for the disabling condition is necessary in order to win a social security disability claim. Medical insurance is the primary means of accessing today's expensive medical treatment. Social security disability recepients are entitled to Medicare after 24 months of entitlement to social security disability benefits. Many that I speak with daily in Dallas Fort Worth tell me their primary goal in seeking social security disability is to secure Medicare. The problem is that they are without medical insurance because they not working, and therefore cannot succeed in their disability case. In other words, they need medical insurance to secure medical insurance (Medicare)!

I was hopeful when the Affordable Care Act rolled out that many of my uninsured clients could secure medical insurance, and many did. But the ACA has not solved the problem I see here in Dallas Texas, and these are my thoughts on why:

  1. General Texas hostility to "Obamacare"  Texas is about as red as state as there is, and we carry a deep suspicion of "big government". Some have told me they did not apply for ACA medical insurance because of this distrust. One person I spoke with last year told me he abandoned the application for ACA coverage when the online application asked him whether he owned any guns. He reasoned this information would allow the government to come for his guns! I have not verifed this question is indeed asked on the healthcare.gov website, but if it is I suspect this information is sought to examine any correlation between gun ownership and health. In any event it would be a stupid question to ask, and indeed support those "red staters" who see the federal government as too intrusive.
  1. The "Coverage Gap". This is not, I think, a "Catch 22": more like a cluster...well you get my drift. The above infographic by the Henry Kaiser Foundation is helpful to understand this problem unique to states - like Texas - that rejected the expansion of Medicaid under the ACA. The ACA provided for the expansion of Medicaid by states above current income levels and therefore provided for federal medical insurance subsidies only for those at the federal poverty income level and up to 400% of that amount. Medicaid was supposed to cover those under the federal poverty level. But the US Supreme Court struck down the ACA provision that required states to expand Medicaid and ruled that states were free to reject Medicaid expansion. Texas governor Rick Perry wasted no time in rejecting Medicaid expansion under the ACA. The result? Adults that fall into the "coverage gap” of having incomes above Medicaid eligibility limits but below the lower limit for Marketplace premium tax credits get no help! Because ACA intended for state Medicaid to help this segment of the population, this group of Texans make too little, not too much, to get ACA premium subsidies. Kaiser estimates that  948,000 Texans are in this "coverage gap". 
  1. High deductibles and copays.   ACA premiums that are subsidized have been described as "dirt cheap". The above chart, however, indicates that ACA rates for 2015 in Dallas Fort Worth are likley to increase up to 10%. The state of Texas has elected not to expand Medicaid under the ACA. Therefore even Texans earning above the federal poverty line of $11,670 for an individual may also receive subsidies to purchase insurance on the ACA marketplaces. Yet despite these subsidizes, there are still deductibles and co-pays to deal with. ACA coverage for 2015 provides for an out-of-pocket limit of $6,600 for an individual, and $13,200 for a family. For someone with a serious medical condition (i.e., a person unable to work due to a medical condition) it is easy to spend up to the out-of-pocket limit. Few disabled Texans that are unable to work can afford to spend over $6000 a year in out-of-pocket medical expenses.

Open enrollment for the ACA in 2015 starts today. Despite the limitations of the ACA, I encourage all disabled Texans without medical insurance to examine their options well before ACA enrollment closes on February 15, 2015. The individual mandate penalty for those not securing medical insurance is unlikely to affect the disabled as there are a number of exemptions for those with very low incomes. 

So it seems the "Catch 22" for disabled Texans remains despite the ACA. This should not, however, be a basis for giving up. There are a number of options. At Denman Law Office, we provide personal, one-on-one disability representation, and work with our uninsured clients to access needed and necessary medical services.

Topics: Social Security Disability (SSDI), medical insurance & Social Security Disability, Affordable Care Act & Social Security Disability

Top 5 Surprising and Puzzling Facts about Social Security Disability

Posted by Stanley Denman on Sat, Nov 8, 2014

SurprisingFeaturesSocialSecurityDisability
  1. Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) based upon disability. There is widespread confusion about these 2 major programs for disabled Americans. The confusion may arise because they are completely different in some areas, and exactly the same in other areas. First the differences. It helps to know that SSDI is an "entitlement" program whereas SSI is a welfare program. SSDI is not "needs based", but a right based upon payroll tax contributions. SSDI does not consider income or resources in determining benefit payment amounts, but SSI benefits are not available to those with more than $2000 in "resources" and is reduced dollar-for-dollar because of any income. In short SSI is limited to the "indigent". But if Dallas billionaire Mark Cuban became disabled he could collect SSDI benefits. There are more odd differences between SSDI and SSI: Medicaid benefits are available to SSI recipients, and Medicare is available to SSDI recipients. But the definition of a disability for SSDI and SSI is exactly the same.

  2. 12 month duration requirement. If you listen to much ultra-conservative media you might think qualifying for social security disability is a piece of cake. Many are surprised that in order to qualify for disability benefits you must have been disabled for at least 1 year or your disability is expected to last at least 1 year. This requirement often discourages those recently out of work due to a disability from filing, choosing unwisely to wait until 12 months have passed. The problem with this choice is that it takes a long time to qualify for disability benefits. The odd reality is that disability applications within a year of leaving work due to a disability are routinely denied based upon the "duration requirement". Due to the lengthy approval time, however, it makes sense to file a claim for social security disability unless your doctor expects a swift recovery and return to work.

  3. 24 month waiting period for Medicare. For many disabled workers applying for SSDI benefits, the entitlement to Medicare can be as if not more important as the monthly benefit checks. Yet Americans are surprised to learn that there is a 24 month waiting period for Medicare benefits. This unfortunate feature of the law seems counterproductive, as early medical treatment can often mean a return to work. What is even odder is that Medicaid eligibility under the SSI program has no waiting period!

  4. 5 month waiting period for SSDI benefits. There are no disability benefits payable for the first 5 months of disability. This feature can be analogized to a medical insurance deductible, and is certainly not consistent with the Fox News portrayal of disabled Americans "living large" on the program.

  5. Offset for Worker's Compensation Benefits. As pointed out above, SSDI benefits do not take income or resources into account in determining monthly benefits. The one odd and puzzling exception is when an SSDI applicant is receiving state Worker's Compensation benefits. Worker Compensation over a given amount -an amount which is determined in relation to the claimant's projected SSDI benefit amount- reduce the SSDI benefit payable on a dollar-for-dollar basis. This often leads disabled Americans workers to wait to file for social security disability until the Worker's Compensation has ended. Just like the decision to wait for 12 months mentioned above, this is an unwise strategy. A better choice is to have disability entitlement "in place" (i.e., secure an approval of disability benefits) while continuing to receive Worker's Compensation. Though no disability benefits are being paid due to the Worker's Compensation, once the latter benefits stop, payment of social security disability benefits can begin. Unfortunately, because social security disability attorney payment is based upon past due benefits, it is harder for those getting Worker's Compensation to retain an attorney on their social security disability case.

Topics: Social Security Disability (SSDI), Supplemental Security Income (SSA), Social Security Disability & Medicare, Supplemental Security Income & Medicaid