Lindsay Osterhout Explains Why She Loves Social Security Disability Law

Huge Mistake People Make When Filing for Long Term Disability

Erik Berger, OBL Partner – Long Term Disability Division, explains:

Congratulations to the New Class of EDPNAs!

Every year, the Social Security Administration administers a rigorous exam to non-attorney disability representatives who wish to have direct fee withholding like attorneys do. The exam is not for the faint of heart and usually requires months of study. The National Association of Disability Representatives provides a comprehensive exam prep course, but even with that, most of the test questions are designed for individuals that have years of experience in working with disability claims. The exam is only offered once a year, in one location, and is fairly expensive. If the test taker passes, they become an “EDPNA” or Eligible for Direct Pay Non-Attorney.

Scores are currently being released for this year’s exam and Osterhout Berger Disability Law would like to congratulate everyone who passed!  Your competency has been validated and you are ready to represent claimants who need knowledgeable representation.

Unfortunately, sometimes that just isn’t enough. You will have cases that get denied by an Administrative Law Judge when they should have been approved. When that happens, do not hesitate to contact us. We can provide a quick review and let you know whether we feel the case should be appealed. If we do, we can even write the Appeals Council brief for you. Some representatives may feel embarrassed about losing at hearing. Don’t let that be a reason not to consult with us. Representation is a learning process and Karl Osterhout is passionate about helping administrative representatives learn how to continue to improve, without shame or condemnation.

If you recently passed this exam, Karl wants to know! Email him at Karl@MyDisabilityAttorney.com. Use OBL as a resource so that you can continue to sharpen your skills as a representative, which ultimately is better for your clients. We hope to see you around!

Appealing a Disability Claim in Pennsylvania Recently Became More Complicated. What You Need to Know About Reconsideration.

There are four stages in the administrative disability review process: initial application, reconsideration, ALJ (administrative law judge) hearing, Appeals Council review. Until recently, Pennsylvania was a part of a ten-state program initiated in 1997 that allowed claimants to bypass the second stage, reconsideration. Last summer, SSA announced plans to reinstate the reconsideration process in these ten prototype states citing a 2001 detailed study of the prototype program as well as a need for uniformity amongst all states. The announcement to end the prototype program drew sharp criticism from legislators and advocacy groups. Our own Senator Bob Casey called the reversal an “attack on individuals with disabilities” saying the extra step will make “obtaining disability benefits more complicated and more frustrating for Pennsylvanians.”  Despite the public outcry, reconsideration has now been reinstated in Pennsylvania as of April 20^th. Before this reinstatement, if a claimant filed a disability application and was denied by the state agency, the next step was to appeal the determination and wait for a hearing before an administrative law judge (ALJ). But now, if an application is denied an appeal will send it right back to the state agency to be reviewed a second time by a different specialist. Unfortunately, national studies show that only 13% of the cases are approved at this level. If it is denied again, then an appeal will be a request for hearing before the ALJ.

This FY 2018 SSA “waterfall chart” shows how many claims are allowed and denied at each of the four administrative stages.

Despite our dissatisfaction with the decision to end the prototype program, OBL is committed to giving our clients the best chance of success at the initial and reconsideration stages. If your initial application is denied, we will take quick action to review the determination and appeal the decision. Before we appeal at the reconsideration level, we will ask the following questions:

• Are there any new treatment dates or new providers?
• Have there been any changes in your condition(s)?
• Have you attempted to work?

We understand what evidence the decision makers need in order to approve the case, and we assist our claimants in providing the information necessary to make the claim as complete as possible. By working with our team and responding with the updated information quickly, we are able to submit a strategic appeal at this stage.

If you have been denied disability benefits, we would like to speak with you about your claim. Your appeal deadline may be approaching, so please call immediately! 1-866-438-8773

Is It Okay to Post on Facebook While Applying for Disability?

Lately, there seems to be a lot of buzz about social media and disability claimants. This is likely because of a Social Security Administration proposal to evaluate whether social media can be used by disability examiners and judges to assess consistency and supportability of evidence in a claimant’s case. The full SSA FY2020 Budget Request can be found HERE, the paragraph about social media is on page 26.

What does this mean for disability applicants?  While we at OBL completely oppose this measure and find it unfair, ultimately, not much has changed.  Social media has always been problematic for disability applicants.  Even if adjudicators can’t use posts to make determinations, why would an applicant risk putting something in print that could conflict with their claim for disability?

There are a few reasons why social media usage could sink a disability claim, especially if SSA starts using it to assess credibility:

Reason #1 – Shiny Happy People. It is generally true that people only post positive things on social media platforms, especially Facebook. Reading the constant posts about how “perfect” everyone’s life is can even cause depression and anxiety. Why do people focus only on the good rather than telling it like it is?  There are a variety of reasons, but not wanting to share personal information or be seen as a “downer” are probably the biggest factors.  If a person who is truly disabled posted everything they actually felt, the post would look something like this:

So instead, someone, who is in pain and likely depressed about the ways their life has changed, will find positive things to post about. This can make it appear to an outsider that everything going on in their life is good and there’s no problem. That’s not the message we want to send to SSA when filing for disability.

Reason #2 – Conflicting Information. Let’s looks at a hypothetical disability applicant, Grandma Gabby. In the function report she completed for SSA, she talks about the impact Rheumatoid Arthritis has had on her ability to interact with her family. She writes about not being able to enjoy spending time with her grandkids. She posted this in her Facebook profile:

What you don’t see is that her hands were hurting so badly that her daughter-in-law had to actually prepare the ingredients, put the pan in the oven and take it out. Grandma Gabby was able to sit at the table with her grandchildren and watch them as they decorated the cookies with sprinkles and icing. After 15 minutes of sitting with them, she had to stand up and walk around to relieve stiffness. If a disability examiner or Administrative Law Judge were to see this post, would they take the time to get all of the background information from Grandma Gabby about what really was going on?  They likely would not and may see it as a conflict with her statements about being unable to spend time with her grandchildren. They may even use it to discredit medical evidence since her post shows she is able to function. Even though SSA isn’t (currently) supposed to monitor posts for determinations, there may be no such rule for therapists and other participants that work with Grandma Gabby. If a copy or reference to a post ends up in the file, then SSA can address it.

Reason #3 – Capability. Participating in social media shows you have abilities and skills outside of what you may have reported to SSA. For years now, Social Security judges have asked clients in hearings if they use Facebook.  SSA does not allow judges to review social media to make determinations at this time, so why do they ask this question in hearings?

Let’s look at Grandma Gabby again. She has alleged that she is disabled due to Rheumatoid Arthritis, with one of her main symptoms being severe hand pain that limits her ability to use her hands and fingers. If a judge asked her if she uses Facebook, she has to answer honestly as she was sworn in before testimony. If she answers yes, will the judge use the fact to discredit her? Will the judge use the fact that she is able to use her fingers to type, turn on the computer, and click the mouse to conflict her allegation that she has limited functioning due to RA? Maybe.  A good representative would have her to clarify that she is only able to do these things for less than five minutes each day, and would argue that 5 minutes per day doesn’t equate to being able to work full time. Still, why take the chance?

Social media participation can be dangerous for a disability applicant, or even a current recipient, regardless of whether the proposal to allow SSA to monitor accounts is passed. Please note that we are not suggesting that applicants stay off of it entirely. Sometimes social media is the only way for individuals with disabilities to stay in constant communication with family and friends and feel like they are a part of the world around them. However, it is important to consider how Social Security adjudicators may view posts or online activities when claimants do choose to engage on social platforms. Our advice to Disabled Dan and Grandma Gabby is simple; post about hardships every now and then, write as accurately as possible, limit the number of posts and keep all profiles set to private so that only family and friends can view and engage. The disability process is a long and difficult one; do not take chances online that could jeopardize your claim!

Preponderance of the Evidence Standard is Killing SSD Claimants

Now, of course, I don’t literally mean that, but in this case the Social Security ALJ’s failure to understand or apply the standard of proof in SSD cases ended up simply being tragic. Our client, we will call her Brenda, filed her claim for benefits in January 2012; about a month ago we finally received a favorable decision, and last week we received the Notice of Award indicating the amount of her past due benefits (quite a bit, actually) and monthly benefits. The date of this Notice is the same date Brenda died.

In Social Security disability cases an ALJ is required to apply a preponderance of the evidence standard in evaluating the evidence. 20 C.F.R. § 404.953. Preponderance of the evidence simply means that the evidence in favor of a finding outweighs, even if only slightly, the evidence against the finding. If we imagine the classic Lady Liberty and her scales, the preponderance of the evidence standard in an SSD case is met even if it tips the smallest amount to the favor of awarding benefits to the claimant. However, it is quite clear that Brenda did not get the benefit of this standard in her case.

Brenda alleged that she had been disabled since 2009 due to a combination of chronic obstructive pulmonary disease, orthopedic impairment, and hypertension. She submitted a clear opinion from her longtime treating physician describing how these impairments affected her ability to work, mainly because she had frequent exacerbation of breathing problems that required immediate treatment, as well as pain which resulted in many days where she was trapped at home taking care of herself. Her doctor’s opinion was supported by his extensive treatment notes. Numerous friends submitted statements on her behalf, describing their observations of her difficulties even performing common daily activities. Although Social Security ordered a medical examination by one of its physicians, the doctor who examined Brenda only commented generally regarding her breathing condition but did not assess whether she had limitations because of this condition.

Social Security claimants have the burden to provide evidence in their case to establish the nature and extent of their disability, and by any reasonable interpretation of that burden, Brenda had done all that any SSD claimant can do to establish their eligibility for benefits. But, the ALJ denied her claim in 2014. We were able to obtain a remand from the United States District Court in 2015 and the case was reheard, by the same ALJ. However, still not having obtained any evidence to rebut the opinion of Brenda’s treating physician, the ALJ again denied the case in 2016. Our office appealed the case to the United States District Court and the case was again remanded. Because of SSA’s rules, at this third hearing, we had a different ALJ than the first two hearings, and this is when, finally, we received an appropriate review of the record and evidence, and of Brenda’s testimony at three hearings, and the favorable decision.

The SSD program has been the subject of many attacks, especially in the last 10 years or so. There have been scandals in New York and Kentucky/West Virginia that were truly awful and the wrongdoers in those situations (two of them ALJs), as near as I can tell, have all been punished. But what has happened in the process is that claimants are being generally painted with this brush, as being lazy, or frauds, and worse, and that is simply not right. I have been representing SSD claimants for 35 years and, while there are always a few bad apples, I can honestly say that most of my clients by far would rather be sitting anywhere than in my office or in a Social Security hearing. Social Security disability is a beneficent program and including the preponderance of the evidence standard reflects the humanitarian vision of the program in general and SSD in particular. Yet, what everyone is seeing is that many ALJs are applying something more like a “clear and convincing” standard that is entirely inappropriate.

Brenda submitted the assessment and complete records of her longtime treating doctor, consistently described her limitations in forms filed with Social Security and at three hearings (at all three hearings, by the way, my notes show that after the short walk from the waiting room to the hearing room Brenda was limping and short of breath), submitted confirmation of her daily struggles from several of her friends, and submitted to an examination ordered by Social Security which did not even address what her limitations were. After the second hearing, the ALJ stated that she did not find Brenda’s description of her limitations credible because there was “no evidence” of frequent breathing treatments, a statement which was categorically false.

Such ridiculous rationales are only possible because many ALJs don’t understand (or understand and fail to apply) the preponderance of the evidence standard that is consistent with the benevolent mission of the Social Security disability program. And the worst thing: Brenda is not alone. I seriously debated even publishing this article, not because I did not believe anyone would be interested, but because, sadly, claimants dying while waiting for their SSD benefits is an all too common phenomenon. See “Thousands Die Each Year Waiting for Action on Their Social Security Disability,” available at https://socsecnews.blogspot.com/2014/10/thousands-die-each-year-waiting-for.html.

Rest in peace, Brenda. You deserved better.