Difficulties in Obtaining Social Security Disability Benefits
by Josephine Gottesman
jogoesq@optonline.net
I am an attorney who has practiced disability law for over seventeen (17) years. This article will focus on the difficulties involved in obtaining Social Security disability or SSI benefits for individuals who are unable to engage in full-time employment due to impairments such as Lyme Disease, Fibromyalgia, Chronic Fatigue Syndrome, Lupus, and other "soft" illnesses.
These illnesses are termed "soft" because, for many individuals, the most disabling aspects of such afflictions are unable to be objectively demonstrated. That is, the symptomatology can seldom, if ever, be demonstrated by CT scans, MRIs, X-rays, etc. Because of this, the Social Security Administration ("SSA") is reluctant to grant disability benefits to people who are unable to work due to these illnesses. Note also that these same difficulties are encountered when one attempts to obtain long-term disability benefits or a disability pension from an employer.
Some frequent issues which arise in attempting to obtain disability benefits for people who suffer from these illnesses are: lack of medical documentation; objective vs. subjective evidence; credibility of the Claimant; testimony of "experts" against the Claimant; and duration of the illness. I will treat each of these subjects separately.
For many who suffer from these illnesses, the prospect of ongoing professional medical attention seems to be useless. Once the diagnosis is made, many people believe that there is nothing to do but go along, day by day, doing the best you can, without resorting to a revolving cast of mainstream medical professionals who seem to be unable to do anything definitive. Or, many people resort to alternative remedies and practitioners out of desperation. Yet, SSA requires that a Claimant's impairments be documented by "medically acceptable" evidence.
For a disability claimant, the way to handle this is to have a mainstream doctor with whom you can "check in" on an as-needed basis, or at least once every three months, who is willing to document your complaints in detail. The doctor may or may not prescribe specific medications or actions to take, and you may or may not follow his/her directions, but your signs and symptoms will be documented. Additionally, if there are any objective medical tests available that can assist in documenting your illness (e.g., blood tests, trigger point tests, neuro-psychological or other cognitive examinations) you should make sure to undergo these tests, even if the best they can do is to rule out other similar illnesses. There is no harm in being treated by an alternative practitioner, and such treatment should still be documented, as it is a useful adjunct to more mainstream treatment.
For many people who suffer from these "soft" illnesses, the mental or emotional aspects or symptoms are more uncomfortable than the physical. Yet many Claimants either cannot afford, or are reluctant to use, ongoing psychotherapy as a way to deal with their illness. Thus, despite the great usefulness of a mental health diagnosis in supporting a claim of disability, many Claimants do not have access to such documentation.
The reason such documentation is important is that a mental health diagnosis cuts across all occupational levels and titles. Thus, if you have a clearly documented mental or emotional impairment, it does not matter how much education or experience you have. You can be determined to be disabled based solely on your mental health diagnosis, even if you are in good physical condition.
Unfortunately, many Claimants with these impairments "look healthy." To the Administrative Law Judge who makes the decision on your claim, who may see you for 30 minutes in an artificial setting, you appear to be fine. Many times you are able to perform activities of daily living with some exceptions. If the Judge does not ask about the exceptions, that aspect of your illness is not recorded or considered. The Judge is allowed to make findings of credibility, which means that he or she is allowed to state in the decision that you are either a credible witness or not. Such findings of credibility are not easily overturned if your claim must be appealed.
Here is where it is useful to have a "lay witness" (someone who is not appearing as an expert in your case). Such lay witnesses can be used to corroborate your story, or to add a different perspective. It does not matter who the person is, and sometimes it is even better to have more than one person appear to testify in your case. The person must know you well and must be able to tell the Judge how you have functioned in the past and contrast it with how you function presently.
Additionally, one of the most effective pieces of evidence you can produce is a contemporaneous diary. This is a notebook or pad in which you make frequent entries about how you are feeling and what you are doing on any particular day. It is written with an emphasis on your limitations and your mental state during your illness or during bouts of exacerbation of your illness. Its worth is that it is written in an ongoing manner at the same time as the feelings or symptoms are occurring.
At your hearing, a so-called "Medical Expert" may be called to testify. The stated purpose of SSA producing such a witness is so that the Judge can question him/her on those aspects of your illness which prevent you from working. The real purpose is so that the Judge can gather additional ammunition against you if needed. The same for "Vocational Experts," who can tell the Judge which of thousands of jobs you can theoretically hold given your limitations. It makes no difference if an employer would never hire you, and it makes no difference if the job, as stated in the nearly 20-year old Dictionary of Occupational Titles, is obsolete as described. The "job" is a theoretical construct. If you could theoretically do it, you are not disabled.
Unfortunately, if an expert witness is called to testify against you, you will almost certainly need the services of an attorney who is able to cross-examine the witness. Your Notice of Hearing should state whether an expert has been retained to testify against you. If you find that there is an expert who will testify at your hearing, you are urged to ask the Judge for an adjournment so that you may obtain an attorney. As most Judges do not like surprises, and because SSA pays the expert to come to the hearing, it is best if you ask for an adjournment the minute you know that an expert will appear. If you are not sure, you can call the hearing office and ask about whether an expert has been assigned to your case. If there is one, you can ask at that time for an adjournment.
SSA requires that the successful Claimant be actually disabled for at least 12 months, or be expected to be disabled for at least twelve months. For many Claimants who must leave a job or who get fired because of severe problems performing on the job, their financial situations force them to apply for disability benefits before too much time passes. Benefit denials in such cases occur many times because SSA believes that the Claimant will get well enough to be able to return to work in less than twelve months.
It cannot be stressed enough that you must appeal a claim denial, not start a new claim. If you start a new claim rather than appeal, you will lose all of the retroactive benefits that have accumulated since you started the initial claim. In addition, if you have appealed to the hearing level and lost, and you start a new claim instead of appealing the hearing decision, you may lose the second claim simply because a Judge has already decided the issue of your disability in the first hearing, and it then becomes legally binding.
The Social Security disability process is a complicated and time-consuming one. When you are not feeling well, it becomes particularly onerous. This article's purpose has been to alert the reader to some of the more difficult issues involved in maintaining a claim for Social Security disability or SSI benefits, and to assist the reader in dealing with them.
