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Is it better to get a lawyer for disability?

Is it better to get a lawyer for disability?

If you are struggling to work due to a medical condition, you may be pondering filing for social security disability.

Before filing for disability, or even after starting the filing process or after being initially rejected, many people ask themselves the question, “is it better to have a lawyer for disability?”

What are my chances of getting disability with a lawyer?

Do I need a lawyer to file for disability?

You do not need a social security disability attorney in order to file for disability with the Social Security Administration (SSA). However, an experienced social security disability lawyer increases your chance of a successful disability claim.

Can you win disability without a lawyer?

While it certainly is possible to be awarded disability without the help of a social security attorney, your chances of getting disability with a lawyer are likely higher when working with an attorney specializing in social security disability.

To find out why your chances of winning disability with a lawyer are greater than without, we would first need to delve further into what a disability lawyer does.

What does a disability lawyer cost?

You probably are like most disability claimants and have no money to pay a lawyer – after all, you are disabled and cannot work!  But you can still hire a qualified social security lawyer.

Social security disability attorneys work on a contingent fee arrangement.  They are paid 25% of the money that social security owes you for the past if they approve your disability case and you are entitled to back benefits.  If you do not win back benefits money from social security, you will not owe your disability lawyer anything.

What does a disability lawyer do?

Social security disability attorneys are knowledgeable about what it takes to qualify for social security disability benefits and typically have years of experience dealing with the SSA.

When you first contact a disability attorney, they or their staff will make a determination as to whether or not to take on your case. If they do agree to take on your case, it is an indication that they think you have a fair chance of winning because the attorney will not get a fee if he loses the case.

The next step is typically to sign a medical release form allowing your attorney access to your medical records. The disability attorney will then begin to develop medical evidence to support your case by requesting medical records.

Do you get a disability lawyer to fill out disability forms?

If you have not already filed for disability with the SSA, your social security disability attorney can help you to do so. If you have previously been denied disability, or are denied disability after your attorney helps you to file, your disability attorney can help you file an appeal and prepare your case for a hearing.

Your disability attorney will collect and review your medical records, and secure supportive statements from your treating doctors.  Your disability attorney will also help prepare you for the disability hearing by telling you what to expect, answering your questions, and doing a trial run of questions that you are likely to be asked so as to prepare you to answer those questions.

Can a lawyer help you get disability?

At the disability hearing, your disability attorney will argue your case for you. They will have developed a “theory” as to why they believe you are disabled.

These theories may include that:

  1. your condition meets a disability “listing”
  2. you “grid” out of all work (including past work)
  3. your non-exertional limitations prevent you from working, or
  4. your exertion level is “less than sedentary.”

Medical evidence, including medical records, supportive statements, witnesses, and testimony will all be arranged by the attorney to best support the theory.

The level of expertise required to effectively assemble such cases around these theories is typically best left to the experts.

Do I need a lawyer to get social security disability?

While you do not “need” a disability lawyer to get disability, working with someone who regularly handles and is an expert in dealing with disability cases certainly gives you an advantage. The social security disability application process is unfamiliar to you.  The stress of dealing with your disability and health problems are enough to overwhelm even the toughest persons.  Adding to your life’s stress with filling out disability forms and making sure the government handles your disability case fairly can seem unwise – especially when you have to pay a disability lawyer to handle your case only if he wins for you.

Your disability lawyer stands by your side during the stressful and unfamiliar road to secure disability benefits.  He will make sure your case stays on track, and that your rights are protected.

Fort Worth and Dallas Disability Attorney

If you can’t work due to physical or mental disability, we’re here to help. Contact Denman Law Office to set up a free and confidential case evaluation.

Can I get disability and how is disability determined?

Can I get disability and how is disability determined?

Prior to applying for disability, two big questions you are likely asking yourself include:

  • Can I get disability?
  • How is disability determined?

In this post, we’ll delve into those questions.

Can I get disability?

Social security only pays for total disability, not partial or short-term disability. 

The Social Security Administration (SSA) considers you disabled only if:

  1. You can’t do the work you did before.
  2. The SSA decides you cannot do other work because of your medical condition(s).
  3. Your disability has lasted or will last for at least one year or will result in death.

You also must have worked long enough and recently enough to qualify. 

How is disability determined?

To determine whether you qualify for disability or not, the SSA follows a five-step SSI process of approval.

Step One: Are you working?

If you make more than $1,260 a month, you generally cannot be considered disabled.

Step Two: Is your condition severe?

Your condition must have a significant impact on your ability to do basic work, like standing, sitting, walking, lifting, and either have done so or will do so for at least one year. 

Step Three: Is your condition found in the list of disabling conditions?

The SSA has a list of disabling conditions. If your condition isn’t listed, it will need to be determined if your condition is as severe as another condition on the list.  If it is, you will be found as disabled. If not, proceed to step four.

Step Four: Can you do the work you did previously?

In step four, the SSA will determine whether you can do the work you did previously. If your condition doesn’t prevent you from doing any of your past work, you will be found to NOT have a disability. If your condition prevents you from doing any of your past work, proceed to step five. 

Step Five: Can you do any other type of work?

If you cannot do any of your past work, the SSA will work to determine if there is any work you can do despite your impairment(s). They will consider your condition(s), age, education, past work history, and skills. 

If you can do other work, it will be determined that you don’t have a qualifying disability and your claim will be denied. 

That isn’t necessarily the end of your claim, as you can appeal. To do so, we highly recommend working with a disability attorney, if you are not already doing so, as your chances of getting disability with a lawyer are likely better than without. 

If it is found you cannot do other work, it will be determined that you are disabled and your claim will be approved. 

The SSA delves much deeper into steps four and five of the SSI process of approval on their website: https://www.ssa.gov/disability/step4and5.htm 

Fort Worth and Dallas Disability Attorney

If you can’t work due to physical or mental disability, we’re here to help. Contact Denman Law Office to set up a free and confidential case evaluation.

Do You Have a Winning Social Security Disability Case: 7 Key Features of Claims the Government Approves

Do You Have a Winning Social Security Disability Case: 7 Key Features of Claims the Government Approves

Social security disability insurance is a big and bureaucratic government program, and it is far from perfect.  Cases that “ought” to be approved get turned down, and, unfortunately, many claimants that do not deserve benefits receive approval.  But there are key hallmarks of winning disability cases that you should keep in mind. 

Your last job ended because of your health

The Administrative Law Judge that hears your disability claim – if you have to appeal your claim that far – will want to know the answer to this question: “How did your last job end?”

In a winning disability case, the answer to that question shows the judge that your job ended because of the symptoms and limitations of the condition(s) that you claim keep you from working.

Consider this example.  Let’s say you are a 52-year-old assembly worker who ruptures a lumbar disc and undergoes a lumbar spinal fusion. After recovery time and completing physical therapy, your doctor releases you to return to work.  Compare these two different answers to the “How did your last job end?” question:

Explanation 1 Explanation 2
“I came back to work for a few weeks,and everything was going fine. But then the company announced that the assembly plant would be closed and moved to Mexico.  Everyone was laid off.” “I came back to work for two weeks but I was having great difficulty doing my job. I could not lift what I was expected to, so my co-workers were always having to help me.  I was having great difficulty sleeping because of the pain.  My boss came to me and said he was sorry but he would have to let me go because I clearly could not do the job” 

 Explanation 2 is a feature of a winning social security disability case because the ALJ can clearly see the connection between medical impairment and inability to work. Explanation 1 leaves her wondering: “if the plant had not moved to Mexico would you still be working there?”

You have a legitimate medical diagnosis that explains your symptoms

To win disability, you need a medical diagnosis.  The condition needs to be widely recognized in the medical community, and the diagnosis needs to come from a qualified medical professional, preferably a specialist in the field concerned. Perhaps most importantly, the diagnosis needs to explain the symptoms you experience and that keeps you from working.  Let’s illustrate with some contrasting situations:

Claimant 1: 45-year-old with malaise and chronic headaches.  No doctor has come to a diagnosis until the claimant consulted with a homeopathic doctor who diagnosed him to suffer from Wind Turbine Syndrome.
Claimant 2: 55-year-old who alleges disability due to back pain but who only has a diagnosis is schizoaffective disorder from a psychiatrist.
Claimant 3: 35-year-old diagnosed with lupus by a rheumatologist alleging disability due to malaise, fatigue, brain fog, and joint pain.

Who fits the profile for a winning disability case?  Claimant 3.  Lupus is a well-recognized medical condition, it was diagnosed by the appropriate specialist, a rheumatologist, and the symptoms – malaise, fatigue, brain fog, and joint pain – are all typical for Lupus patients. 

Claimant 1 does not: Wind Turbine Syndrome is not a legitimate and recognized medical diagnosis. Claimant 2 also does not fit the ideal profile for a winning disability claim either because back pain is not a symptom of schizoaffective disorder.  

Your disability is chronic, not acute 

Claimants often wrongly assume that a very serious medical condition should qualify for social security disability benefits.  But to win disability benefits your medical condition and disability must either have lasted, or be expected to last, at least 12 months.  So for example, you may have a critical illness that requires hospitalization such as congestive heart failure.  But congestive heart failure is an acute condition: doctors are either going to get you better (and they usually do) or you are going to die.  In the example of congestive heart failure, the question will be whether you are able to return to work or work at all once doctors have done their best to improve your condition.

A key feature of a winning disability case is that it is based upon a long-term, chronic condition that does not respond sufficiently to medical treatment so as to allow a return to work.

You receive regular and specialized medical care and you follow your doctor’s orders

It follows from the point above, that you simply cannot have a long-term, chronic medical condition that has not responded to all the alternatives available if you don’t see doctors that specialized in your condition on a regular basis. 

Since most medical insurance is tied to employment, however, continuing to get medical treatment when disabled is a challenge.  Unfortunately, a winning disability claim requires medical treatment and should be your highest priority if you want to be approved.

Following doctor’s orders is also a common feature in winning disability cases.  If you don’t take your doctor’s advice, the social security administration will wonder whether medical compliance could have returned you to work.  While it is true that you do not need to agree to all suggested medical treatment, like surgery to win disability benefits,  there is no escaping this reality: a winning disability case usually includes a claimant who has faithfully followed medical advice in trying to get well.

You stay away from alcohol and drug abuse, and bad lifestyle choices

Nobody is perfect.  Many Americans have or continue to struggle with alcohol and drugs – does that mean they can’t get disability? No, but drug and alcohol abuse (DAA) can limit your chances of winning disability benefits, and in many instances be the reason you are denied disability.  Here are factors to consider:

Remote and resolved DAA is unlikely to hurt your disability case.

If you had an alcohol problem in the past, and the medical records clearly reflect that alcohol abuse is no longer an issue, you should not be worried. This is particularly true when the medical records show a clear end to your substance abuse.  However, if you continue to use drugs and alcohol – even if the records don’t indicate you have recently experienced negative health or legal consequences from using drugs or alcohol – drug and substance usage could be an issue.  Consider this example:

You had 3 DUIs in the early 2000s, and you went to alcohol rehab in 2009.  Though you have no legal issues related to alcohol after leaving rehab, the medical records indicate that you continue to drink alcohol.  In this situation, the social security administration might wonder if you are still abusing alcohol.  There is a widely held ( and well-founded) belief that it is not possible to return to “social drinking” once alcohol use turns into alcohol abuse.

DAA is more important for certain disabilities.

Consider these two persons seeking disability benefits-both of whom abuse drugs and alcohol on an ongoing basis:

Claimant 1: 55-year-old truck driver who has had multiple lumbar spine surgeries but remains unable to sit for any length of time due to pain, muscle spasms, and numbness in his leg. Claimant 2: 35 year old with schizoaffective disorder claiming disability due to inability to get along with others, control temper, and visual and auditory hallucinations.

Your common sense has probably led you to conclude that DAA is less likely to hurt the disability case of Claimant 1 because DAA has little to do with his back problems.  But for Claimant 2, drug and alcohol use can make his psychological symptoms worse- the symptoms he claims to keep him from working.  DAA is widely thought to limit the effectiveness of psychotropic medications – the medicines typically prescribed for mental problems.

Medical marijuana use is not a feature of a winning disability case.

In the state of Texas, where I practice social security disability, marijuana use is not legal, and there is no medical marijuana provision.  I remember a conversation some years ago with a disability claimant that I declined to represent because he alleged a mental disability and he was a chronic marijuana user. He pointed to the fact that marijuana was legal in many states, and that his psychiatrist knew about his pot-smoking. For the social security administration, the issue is not whether it is or is not legal in the state where you live. Marijuana is a psychoactive drug that can make psychological symptoms worse, and limit the effectiveness of prescribed medication.   Marijuana may be available by prescription in your state, but the fact remains that marijuana use is not the standard of care for the treatment of mental conditions in the psychiatric community.

You have fully explored whether you could do any work

The loss of one’s job due to a medical condition is a big trauma.  Many wrongfully assume social security disability is the only alternative if they cannot do their old job.  But a winning disability case requires the inability to do any work.  A few facts to keep in mind:

  • Social security disability benefits are not available simply because you can no longer earn a specific income.  It is common, for example, for claimants to say things like, “well I guess I could work at McDonald’s”.  The sad reality is that this person is unlikely to qualify for disability.  Disability benefits are not intended to replace your prior income level.
  • Younger workers, in particular, cannot argue that a lack of skills keeps them from employment.  The government assumes younger workers retain the mental ability and flexibility to acquire new skills.

You don’t want to be on disability, but it is your only alternative – and you don’t feel “entitled”

Many of the disability applicants who come before Administrative Law Judges present an air of ‘entitlement’ to disability and have given up all hope of returning to work in the future. These claimants often come across as “trying too hard” to convince the ALJ that they deserve disability. Moreover, these applicants have easily assumed the identity of a “disabled person”.  For many that come before ALJs, disability looks to have been their way to resolve their chronic employment problems.

A winning disability claimant does not exaggerate or try to “sell” the ALJ on their disability case.

Fort Worth and Dallas Disability Attorney

If you can’t work due to physical or mental disability, we’re here to help. Contact Denman Law Office to set up a free and confidential case evaluation.

Can you get approved for disability while still working?

Can you get approved for disability while still working?

Many disabled applicants wonder “can you file for disability while still working?”

Can I apply for disability while working?

The short answer is, yes, you can apply for disability while working.

However, you need to be earning under a certain amount and the Social Security Administration (SSA) may look at the number of hours you are working as well as the type of work being performed to ascertain whether you could be working full time.

The amount that you are not allowed to earn more than is called the “substantial gainful activity” or SGA limit. If you earn more than that amount, SSA assumes you can do a substantial amount of work and determines that you are ineligible for disability. The 2020 SGA limit is $1,260 per month.

The SSA might also check how many hours you are working per week. If you are working more than part-time, it may be difficult to persuade the SSA that you cannot work and should receive disability.

Finally, as part of the disability claim process, the SSA will be looking into what type of work you are capable of doing. If you have regularly been doing work that you claim you cannot do, this will negatively impact your case.

For example, if you injure your back and are applying for disability while working, it won’t help your case if you are working stocking shelves while you wait for approval of your claim.

So to those wondering “can I work while applying for disability,” the answer is yes, but you will need to:

  1. Earn less than $1260 per week
  2. Work limited hours
  3. Not perform work that conflicts with your disability claim

If you file for disability does that mean you quit your job?

To those asking “do you have to be unemployed to file for disability,” you do not.

However, as described in the section above, you need to be earning less than the SGA limit, working limited hours, and not be performing work that conflicts with your disability claim.

In order to meet those requirements, you would not be able to keep a full-time job. However, there may be situations where you could keep your existing job and work limited hours.

Does your employer know if you file for disability?

Your disability examiner (the person examining your disability case) is tasked with:

  1. Classifying your past work.
  2. Determining the nature of your past work in terms of physical and mental demands.
  3. Comparing the demands of your past work with your current capabilities, known as your residual functional capacity (RFC).

While disability examiners typically rely on information provided by the claimant, they do sometimes contact past employers to find out more about the claimant’s past work and what they did there.

So your employer may discover you have applied for disability if they end up being questioned or interviewed by your social security disability examiner.

How does social security know if you are working?

The SSA is legally obligated to verify the details of your case from time to time.

Additionally, once approved for disability, you are required to update the SSA, by mail, phone, or in person, of certain changes that may impact your disability claim.

These include (according to the SSA):

  • If you work, no matter what you earn
  • If you receive other disability benefits
  • If you’re offered services under the Ticket to Work program
  • If you move
  • If you change direct deposit accounts
  • If you’re unable to manage your benefits
  • If you get a pension from work not covered by Social Security
  • If you get married or divorced
  • If you change your name
  • If you care for a child who receives benefits
  • If you become a parent after entitlement
  • If a child receiving benefits is adopted
  • If you have an outstanding warrant for your arrest
  • If you’re convicted of a crime
  • If you violate a condition of parole or probation
  • If you leave the United States
  • If your citizenship status changes
  • If a beneficiary dies
  • If you’re receiving Social Security and Railroad Retirement benefits

Will continuing to work hurt my chances of being approved for social security disability?

While every disability claim is different, in general continuing to work while appealing a disability case or waiting for an administrative law judge hearing is likely to hurt your chances of being approved.

Here are some factors to consider:

Your Work Activity Moves the Focus to Your Ongoing Work, Away From Your Disability.

Think about how a social security disability decision-maker, such as an Administrative Law Judge, would consider the typical disability case in which the claimant is not working.

For the non-working claimant, the ALJ simply must assess why that person can no longer work. The focus is on the medical conditions that you have. But if you are continuing to work, the ALJ will naturally focus on your work activity.

In particular, she will be considering the following:

  • Have you restricted your work activity so that you will not exceed the substantial gainful activity amount?
  • How did you decide on the work level you are performing?
  • Is there a medical basis and evidence to support your inability to perform substantial gainful activity, given that you are in fact able to work part-time?

Why are you interested in continuing to work even though you claim disability?

You should carefully consider why you want to keep working while you seek disability benefits.

Typical reasons include:

  • You need income.
  • You may be able to continue to be eligible for medical insurance.
  • You may fear to lose the job forever and hope to be able to return to full-time work.
  • You want to show your family or the government that you are not lazy and you are trying your best to be productive.

Many, perhaps most, of these reasons to continue to work while seeking disability benefits are not as strong as they might first appear.  The extra income from working below the substantial gainful activity level is small compared to what you will lose if you fail to win your disability benefits.  Medical insurance coverage is available in most jobs through COBRA if you quit or are terminated.

Any strong motivation you have to work is laudable, but as noted above, the work activity you engage in will cloud the waters if you have yet to be approved for disability benefits.  Once you are on disability, there are opportunities to test your ability to work and, if you are successful, you can leave the disability rolls.

Social Security Lawyer Dallas and Fort Worth

Social security disability, both SSDI and SSI, are complicated. If you have additional questions or need assistance, Dallas social security lawyer Stanley Denman is here to help. Contact Denman Law Office to set up a free and confidential case evaluation.

Social Security Disability Consultative Exams

Social Security Disability Consultative Exams

When applying for social security disability insurance benefits (SSDI) or Supplemental Security Income (SSI), your social security administration disability claims examiner may order you to undergo a mandatory consultative exam (CE).

What is a consultative exam?

From the Social Security Administration (SSA):

“If the evidence provided by the claimant’s own medical sources is inadequate to determine if he or she is disabled, additional medical information may be sought by recontacting the treating source for additional information or clarification, or by arranging for a CE.”

There are two types of CEs, physical and mental. Physical CE exams usually take around 5-20 minutes and include a few physical tests and a few questions about your health history. Mental CE exams usually run 15-45 minutes, primarily consists of questioning, and may include a mental status exam.

What Does it Mean When Social Security Sends You To a Doctor?

If social security sends you a letter asking you to see a doctor at their expense, it means that the disability examiner thinks there is not enough medical evidence on the disabilities that you are alleging.  Most of the time, this is because you are not getting medical treatment on your own.  Failing to get your own medical treatment is a major obstacle to winning your disability case.

Yet few disability applicants see that consultative exam notice letter as a sign they are not doing what they need to do to win their disability case.  Rather, most SSDI and SSI applicants with an upcoming consultative examination focus on the nature of the consultative exam, many wrongly assuming the CE will be all the evidence they need to win.  A pending consultative examination is not a sign that the social security administration is assuming responsibility for securing the necessary medical evidence in your claim.

So am I saying the CE is worthless?  Should you simply not go?  Absolutely not.  CEs can be very helpful in a disability case, and failure to attend a CE will ensure a disability denial.  But you need to keep what CE can and cannot do for you in perspective.

SSI doctors appointment: Who Will Perform the Consultative Examination (CE)?

The consultative examination will be performed by a licensed physician or psychologist pursuant to a contract with the Disability Determination Service in your state, the agency that makes disability decisions for the social security administration.

Disability applicants often refer to consultative doctors as “government” or “social security” doctors, but they are not employees of the government. These disability doctor evaluations are paid for by social security.

The fee social security pays for consultative examinations is much lower than what doctors can earn in a routine and successful private practice. This low remuneration to the consultative doctor may account for many of the typical complaints from social security disability applicants I have heard in my 25 years of social security disability representation.

Many disability applicants have heard that social security will arrange for their own treating doctor to be the “consultative examiner” if requested.  As a reality, this almost never happens and is not worth trying to arrange.

As noted above, most consultative examinations are ordered by social security in response to inadequate or non-existent medical treatment.  So there is not likely to be a treating physician to perform the consultative exam.

Getting social security to approve the use of your treating doctor for the consultative examination is difficult and will needlessly slow the disability process down. Your treating doctor will not be enthusiastic about performing a specific exam for a paltry government fee.

You should secure the opinion of your own treating doctor in the form of a medical source statement (a qualified social security disability attorney will know exactly what this is) not bound by the narrow confines of the government-ordered consultative examination.

What Does the Consultative Examiner Do?

The consultative examiner’s job is simple: (i) perform the examination of you that social security ordered him to perform and (ii) prepare a report for social security documenting his findings.

Many disability applicants are under the false impression that the consultative examiner will determine whether they are entitled to social security disability. The consultative doctor does not “put you on” disability.

Rather, the social security administrative determines whether a person’s medical condition meets the requirements of the Social Security Act for disability benefits.

The social security administration will, however, consider and analyze the medical findings and opinions in the record – including the results of the consultative examination.

What Can I Expect at the Social Security Disability Consultative Examination?

Uneven Quality Social Security Disability Consultative Doctors

Complaints from disability applicants about the quality of consultative doctors are widespread.  While it is unfair to label doctors who do consultative examinations for social security across the board as “low quality”, it is true that these doctors would likely not be doing consultative examinations for the social security administration if they had a thriving private practice.

The fee paid to consultative doctors for disability examinations is well below what doctors can expect to earn as a physician. Younger physicians still building their practice are less problematic, but many older consultative disability doctors have simply failed to thrive in private practice. There could be many reasons for this, including that they may simply not be very good doctors.

No Doctor-Patient Relationship with Your Consultative Examiner

The consultative doctor is not “treating” you; you are not his or her patient. The fact that the CEs are really “working for the government”  perhaps leads some of the examining doctors not to extend the same courtesy to CE patients as they would have if they were regular patients with whom they hope to maintain an on-going cordial relationship.  Many social security disability claimants have complained that the doctor that performed their CE was grumpy, angry, or rude.

The Consultative Exam is Limited to What Social Security Has Ordered

There you are: sitting in front of the consultative doctor in her white coat and stethoscope – just as if you were seeing your own doctor.  It is very hard not to “default” to normal doctor-patient behavior.  We all expect that our doctor wants to hear every detail about our health, right?

Not the consultative doctor. Her job is to perform the examination that the social security administration has ordered: no more, no less. Her role is not to delve into every physical or mental problem you have that impacts your ability to work. If she has been asked to perform an x-ray of your knee, she is not interested in hearing about your problems with anxiety.

The Consultative Exam Will Be Brief

Besides having a dour demeanor, consultative physicians often give extremely quick exams leaving patients feeling as though the physician didn’t really try to understand their problems.

Realize, however, that the scope of what the consultative doctor has been asked to do (i.e., the specific examination that social security is paying for) is limited, and may not take much time to perform. The low fee paid by social security, unfortunately, encourages consultative doctors to move quickly through their disability patient examinations.

What Should I Bring to the Consultative Examination?

Review your notice of the consultative examination carefully.  You will need to bring proper identification.  You may bring medical treatment records in your possession that you think are relevant, but there is no guarantee that the consultative doctor will agree to review them.

Advice for Your Social Security Disability Consultative Examination

Lower your Expectations and Adjust Your Attitude

Social security disability applicants typically have unrealistic expectations of the consultative exam. Many see the CE as an indication that social security is finally taking their complaint seriously and wrongly assume the CE will be thorough and will cover all their disabling impairments – both physical and mental.

As noted above, the CE will be very limited in scope and duration, perhaps in a crowded and unattractive office setting.  The CE is apt to feel more like a “cattle call” than a professional medical treatment office.

Presenting to your CE with unrealistic expectations will likely lead to disappointment and frustration.  Many disability claimants allow that frustration to show, creating tension between the claimant and the examiner.  A claimant that communicates disappointment and anger with the examiner is less likely to find the examiner receptive to their cause.

Many consultative examiners are unwilling to review medical records that claimants bring to the examination.  This can be frustrating to claimants, but realize that consultative doctors often see claimants who try to unload stacks of unorganized medical treatment notes on the doctor, or even bring actual radiographic images.

If there are specific objective medical tests such as x-rays or MRI results reports (not the actual films) that document the problem for which the consultative doctor is examining you, be prepared with those most recent results at hand.

If you present no more than 5 or 6 pages of diagnostic test results to the consultative examiner, it is likely he will be willing to review them.   If the consultative examiner refuses to review any medical evidence you have brought, refrain from arguing the matter.

What not to tell a disability doctor: Don’t downplay, brag, exaggerate or “sell”

Many consultative doctors seem to be on the lookout for malingerers or people exaggerating an injury in an attempt to get disability so they don’t have to work. Since consultative doctors typically perform a lot of CEs because of the low reimbursement rate from social security, they may see a lot of “fakers” in their exams.  Exaggeration and “over-endorsement” of symptoms is a hallmark for those trying to work the system.

But you don’t have to be a faker to exaggerate and “over-endorse” in a social security disability consultative exam. Disability claimants who are in fact entitled to disability can also fall victim to this practice because they fear being denied disability benefits if the doctor fails to notice problems or if they admit that they have no problems in certain areas.

For example, a person who is qualified for disability and who walks with a slight limp may act as if it is suddenly worse or constantly moan in the examination.  Or a middle-aged man with limited education and past work as a construction worker may wrongly assume that his ability to sit will keep him from getting disability.  If he tells the consultative doctor that he has significant problems with sitting because he fears admitting this ability may hurt his case- even though he has no medical evidence to support sitting problems – he may appear to be malingering in the eyes of the consultative doctor.

What not to say to a consultative doctor in a consultative exam is important; but so is what you need to say.  Do not fail to admit to limitations that you actually have.  Men are more prone to this unwillingness to admit to problems, but false pride can lead men and women alike to brag about abilities they do not possess and undermine their own disability claim.

For example, when you first see the doctor and they ask “how are you today?” don’t just play nice and reply “fine, how are you?” That may end up in your report. Instead, just tell the doctor how you are really feeling and explain what is wrong.

You should also be aware that the consultative doctor and her staff are not just paying attention to your words; they may also be carefully observing how you walk and move.  Many have been known to watch patients walking in the parking lot or to drop things on purpose to see if the disability claimant quickly picks it up.

The watchword in a consultative exam is to be authentic: don’t try to draw attention to yourself, exaggerate, or try to sell the doctor on your claim.  But don’t “put your best face forward” or worry about what the doctor might think of you either.

Can a doctor put you on disability? Do CE exams usually end in denials for disability?

Ultimately, the results of consultative exams are just one consideration in social security disability cases. The consultative doctor’s opinion is not the final word on whether you qualify for disability or not.  That may be a good thing for disability claimants.

Sadly, most consultative examination reports are not helpful to disability claimants.  Typically the findings support the denial of benefits or are so limited in scope that they provide little evidence to support claim approval.

But when consultative examination results support a finding of disability, they are worth their weight in gold.  Because Administrative Law Judges widely regard consultative examiners as unfriendly to disability applicants, they find consultative opinions that do support disability to be particularly credible.

ALJs often would prefer to support a favorable disability decision with consultative report findings than with those of a treating doctor.  The social security administration worries about bias in results from a treating doctor due to that doctor’s personal relationship with the claimant, an issue not present with consultative examiners.

As a social security disability lawyer for over 25 years, I can tell you that favorable consultative exam reports have often provided critical support for favorable disability findings. In fact, my routine practice in case hearing preparation is to start with the review of consultative examiner reports.

Even consultative examinations that as a whole do not support a disability case may include particular findings that, when combined with other medical findings in the record, support a winning claim.

A hallmark of skilled social security disability representation is the ability to carefully mine the “gold nuggets” that may be found in an otherwise hostile consultative exam report.

Fort Worth and Dallas Disability Attorney

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