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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.

Case Update: Another Reversal With Award of Benefits – Karl’s Hot Streak Continues!

I recently went 32 straight hands at blackjack without losing (ok, there were several pushes, and two times when I luckily bought insurance against the dealer having blackjack); I may never have run like that again.

I also may never have another run again of reversals with award of benefits in Social Security federal court appeals like I’m having now. You may have noticed I recently posted two items regarding other cases where I had been able to obtain this rare result. And, now I get to report it AGAIN!

In this case, my client, who was over 60 years old at the time of the ALJ’s decision, and who had a 38 consecutive year work history prior to alleging disability, was denied benefits even though his doctor of 10 years explicitly detailed how his significant mental impairment resulted in his inability to work on a regular and continuous basis. The most significant aspects of the treating psychiatrist’s opinion was supported practically word for word by Social Security’s examining psychologist. The District Court (New York) found that the ALJ had improperly substituted his lay analysis for these opinions and, noting that the vocational expert had testified that a person limited like the person described by plaintiff’s treating doctor and Social Security’s examining doctor would not be able to work competitively, found that no useful purpose would be served by further remands and ordered an immediate calculation of benefits.

By the way, when I imply it may never happen again, I know that’s not true: I just received an order yesterday from the District Court in Alaska that Social Security must show cause within 10 days why it should not just reverse and remand for calculation of benefits in yet another of my cases, a claimant whose case has been pending for almost 6 years, and which has been previously remanded for further proceedings by the District Court up there. Assuming they can’t convince the court, I’ll have another of the stories fairly soon!

Cash Assistance Has Been Reinstated in Pennsylvania!

Not being able to work can be financially devastating and some applicants even become homeless while waiting on a disability hearing. The General Assistance program has been reinstated and we think it may be able to help some of our clients while they are waiting for disability benefits to be approved. The program offers $205 per month for one person and $316 per month for two people to help provide for basic needs. Pennsylvanians can qualify for General Assistance if they are in one of the following situations:

  • have a temporary or permanent disability;
  • are a child who is not living with a relative;
  • are caring for an unrelated child under the age of 13 or are caring for someone who is ill or disabled;
  • are victims of domestic violence (benefits are limited to 9 months in a lifetime); OR
  • are in a drug or alcohol treatment program that prevents them from working (benefits are limited to 9 months in a lifetime)

In addition, individuals must have less than $205 in income ($316 for two people) and less than $250 in countable assets, or $1,000 if there is more than one person applying. A house and one car do not count as assets.

Residents who believe they are eligible are encouraged to either apply online through the department of human services (DHS) website http://www.dhs.pa.gov/ or in-person at their local county assistance office. DHS helpline can be reached by calling toll-free 1-800-692-7462. For individuals with hearing impairments please call 1-800-451-5886.

House Bill 335 Would Eliminate Services and Negatively Impact the Health of 2.9 Million Pennsylvanians and Their Families

Recently, Lindsay Osterhout, OBL Managing Partner Administrative Division, met with case management staff at Southwestern Pennsylvania Human Services, Inc (SPHS) in Charleroi, PA. Among other local news, they discussed new proposed state legislation, HB 335, and the devastating effects it would have on our community.

HB 335, sponsored by Representative Seth M. Grove, would eliminate the current Behavioral HealthChoices (BHC) program thereby making it difficult for counties to provide coordinated and integrated human services and negatively impact the health of 2.9 million Pennsylvanians and their families. BHC is the statewide program through which every county delivers mental health and drug and alcohol services to vulnerable Pennsylvanians enrolled in the Medical Assistance program, and their families. The program, created 21 years ago, has allowed Pennsylvanians to receive needed mental health services.

We at Osterhout Berger Disability Law, frequently work with disability claimants who rely on these services to manage their care. If these programs are eliminated, it will be very difficult for our claimants to find affordable care to manage their symptoms. We are concerned that HB 335 passes, we will see tragic consequences. Several health and human services agencies have signed onto a letter opposing this legislation. Read the letter that was sent to Members of the House of Representatives HERE. Please consider contacting your state representatives and urge them to oppose this bill. Locate your legislator using this LINK.

We value our community partnership with SPHS and thank them for bringing this proposed legislation to our attention.

New Rule Makes it Easier for Military Spouses to Find and Keep Jobs in the Law

On January 29, 2019, the Pennsylvania Supreme Court’s Board of Law Examiners adopted the Military Spouse Licensing Rule, which allows military spouse attorneys who accompany active duty service members to Pennsylvania to apply for a temporary license to practice law in the state. Historically, because service members are subject to frequent military-ordered relocations, attorney spouses were presented with the difficult choice of remaining in a jurisdiction where they were licensed to practice without their spouse or incurring the significant costs of obtaining a bar license in the relocation state. Osterhout Berger Disability Law is very excited to hear that Pennsylvania has joined the trend of issuing licensing accommodations for these attorneys. The new rule goes into effect in July 2019.

OBL is very fortunate to have several military spouses who are attorneys on our team. Hannalore Merritt, Managing Associate of our Appellate Department, who was a military spouse herself and knew the struggle of trying to maintain a career being married to an active service member, was familiar with a group called Military Spouse JD Network comprised of individuals in similar situations. Due to growth of the firm, when it came time to hire additional attorneys, she suggested that the firm look to this population. “I knew there was lots of talent out there but that it was hard to maintain a job when you were facing having to take a bar exam every few years with changes in orders and duty stations.” Merritt explained. “To be honest, until Hannalore brought it to my attention, I really hadn’t thought about this issue at all,” explained managing partner Karl Osterhout. “Since we have always had at least some attorneys in our Appellate Department who worked remotely, that part was a natural fit, and I like very much feeling like I am, and some small part, being helpful to these families who sacrifice so much for the defense of our Country,” said Osterhout.

The first active military spouse hire was Christine Huber, Senior Associate Attorney; she and Hannalore attended law school together in Seattle. Christine’s family is currently based at Kings Bay Naval Submarine Base in Georgia, and they typically move every 2 years. She describes numerous difficulties to maintaining a career as a military spouse; “As an attorney, one of the biggest hurdles is obtaining a license to practice in every state. While many states have or will soon have the military spouse exemption, it still involves a lengthy process and high fees.” Another difficulty faced by many career spouses who also have children, is being the primary caregiver. “It is difficult to find an employer, especially in the legal field, who is willing to accommodate you being the sole person responsible when school calls for an unexpected pick up or when your child is home sick,” explained Huber. Finally, another difficulty is maintaining a resume that is attractive to employers. “Often with moving every few years, your resume begins to look quite choppy and most employers will pass right over it as it appears you would not have loyalty to their firm. While this is far from the truth, it often gets in the way of securing an interview,” said Huber.

Christine Huber, OBL Sr. Associate Attorney, and husband Mike

Christine describes the profound impact her employment at OBL has provided; “All of the difficulties mentioned previously disappeared with working at OBL. I can maintain my bar license and ability to practice, without having to retake a bar examination in every state we move to. I am able to have a resume which shows my loyalty and retention at a law firm. I have now worked at OBL over the course of 3 separate moves, something I had never thought was possible.  Further, being able to work remotely allows me to maintain my workload while also handling any issues that may arise for my family.  It has afforded us the ability to be present for the special moments in military life (i.e., homecomings, meetings, send offs, etc.) without having to put my professional career on hold or take time off or work. Perhaps most importantly, working at OBL and being exposed to various areas of law has allowed me to realize that my true passion is advocating for the rights of those who feel like they are being lost in the system, for those who can no longer work due to physical or mental impairments, and for those who were wrongly denied benefits.”

Since hiring Christine in 2015, OBL has hired two more associate attorneys who are military spouses, Amanda Whitt-Downs, found through MSJDN, and Meghan Lambert, found through a military spouse page. They are all attorneys in our Appellate Department, and work on researching and drafting briefs to Federal District Courts across the country for our clients who have been denied SS disability benefits by the Agency. Explains Osterhout, “It’s just been a privilege to get to know these women. I am particularly indebted to Christine, who really stepped up when I had an illness last year; she was an incredible help to Hannalore in making sure that we continued to meet our deadlines in the Appellate Department. She really, as they say, ‘went over that wall’ for me and I’ll never forget it.” Merritt states, “They are all highly versatile women who are driven and compassionate, not to mention able to balance a lot in addition to their careers. They also have excellent resumes – we are fortunate to have been able to set them up remotely because they are really talented and do great work.”

OBL applauds the Pennsylvania Supreme Court in adopting the Military Spouse Licensing Rule and the effort the Military Spouse JD Network put forth in advocating for these talented group of attorneys.

Read more about the Supreme Court adoption HERE

Very Recent Decisions from Three Separate Circuit Courts Clarify ALJ’s’ Obligations Under SSR 00-4p

As we know, SSR 00-4p, among other things, obligates an ALJ to identify and resolve any inconsistencies between the DOT and a VE’s testimony. Cases evaluating this issue have typically set the bar fairly low in terms of the nature of the ALJ’s obligations under 00-4p. In particular, courts have tended to find that unless the inconsistency was very obvious and/or was brought to the attention of the ALJ (usually, what the court means here is that the Claimant waives this issue if it is not brought to the ALJ’s attention), the ALJ does not have any, or much, obligation to “play detective” and look behind the VE’s testimony. Three decisions issued recently by the Eleventh, Fourth, and Second Circuits are very favorable to Claimants on this issue.

In Washington v. Comm’r of Soc. Sec., 906 F.3d 1353 (11th Cir. 2018), issued in October 2018, the court held that “[the ALJ’s obligations under 00-4p] is not fulfilled simply by taking the VE at his word that the testimony comports with the DOT. When the record reveals an apparent conflict between the VE’s testimony and the DOT.” Here, and very notably, the 00-4p issue was preserved, in the court’s opinion, over the Agency’s argument that the issue had been waived at the administrative level because the representative did not bring it to the ALJ’s attention. This was so based on the court’s interpretation, with a detailed survey of Agency policy and of how other circuits have resolve the issue, of “apparent inconsistency”, because the VE’s testimony that the Claimant was able to perform the job identified despite a limitation to occasional fingering, what is in direct conflict with information in the DOT companion volume, Selected Characteristics. Thus, Washington joined in the interpretation of an ALJ’s obligations under 00-4p, as found in the Seventh, Eighth and Tenth circuit’s (e.g. Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005); Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008); Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014); Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015); Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)).  Congratulations to Michael Steinberg, Esq. of Tampa Florida for obtaining this very helpful decision.

In Thomas v. Berryhill, 2019 U.S. App. LEXIS 1312 (4th Cir., January 15, 2019) there were two favorable aspects to the court’s decision to remand for further proceedings. First, at issue was the ALJ’s evaluation of the Claimant’s mental RFC, which the court held “contains too little logical explanation” for meaningful judicial review.  Id. at *6.  In particular, the court emphasized that (1) the ALJ had drew no explicit conclusions about how the Claimant’s mental limitations affected her ability to work on a full-time basis, (2) the ALJ did not explain sufficiently how she weighed the evidence contradicting her finding that the Claimant had no mental limitations at all, (3) the ALJ had expressed her RFC finding first, and only then concluded that the limitations were consistent with the RFC and (4) although the ALJ stated that the Claimant could not work at a “production rate or demand pace,” she had given no insight into what those terms mean.

Very interestingly, the court went on to discuss an issue related to 00-4p, “since it is likely to come up again below…”  Id. at *9 (it is unclear whether the court considered this issue sua sponte, or whether it was an issue briefed by the parties). With respect to 00-4p, the court held that “an ALJ cannot rely unquestioningly on a VE’s testimony,” but rather must identify and elicit a reasonable explanation for any conflicts between the testimony and the DOT.  Id. at *10-11 (citing Pearson).  The court then identified as an apparent contradiction the VE’s identification of jobs with a “reasoning level” of 2 (requiring detailed tasks) with the RFC/hypothetical assumption that Claimant was limited to “short, simple instructions,” may not be able to carry out detailed but uninvolved instructions required by reasoning level 2.  Id. at *12.  Congratulations to Dana Duncan, Esq. of Nekoosa, Wisconsin for obtaining this very helpful decision.

Finally, in Lockwood v. Comm’r of SSA, No. 17-2591-cv, 2019 U.S. App. LEXIS 2104 (2d Cir. Jan. 23, 2019) the Second Circuit became another circuit which has held regarding the 00-4p requirement to identify and obtain a reasonable explanation for inconsistencies, that a limitation to no overhead reaching was inconsistent with the DOT descriptions of the jobs identified by the VE, since the jobs required occasional or frequent reaching/handling. The critical discussion in this decision is repeated here:

But while “this Court could guess” what the three jobs [the vocational expert] identified “require in reality, it [was] the  [Commissioner’s] duty to elicit an explanation from [Heller] as to whether th[ose] occupations actually require . . . overhead reaching.” Spears v. Colvin, No. 15-CV-6236, 2016 U.S. Dist. LEXIS 127084, 2016 WL 4973890, at *5 (W.D.N.Y. Sept. 19, 2016). The importance of teasing out such details is precisely why the Commissioner bears an “affirmative responsibility” to ask about “any possible conflict between [vocational expert] evidence and information provided in the [Dictionary].” SSR 00-4p (emphasis added). Absent such an inquiry, the Commissioner lacks a substantial basis for concluding that no such conflicts in fact exist. [citing Washington and Pearson]

Lockwood, 2019 U.S. App. LEXIS 2104, at *13-14.  Congratulations to Patrick Radel, Utica, New York, for obtaining this very helpful decision.

Lockwood therefore explicitly joins Washington, Pearson, et.al., and dovetails nicely also with Thomas. Washington, Thomas and Lockwood are three really nice, very recent decisions that we need to take full advantage of.

The “Social Security 2100 Act,” championed by Rep. John Larson (D-CT), is getting a hearing in Congress!

The “Social Security 2100 Act,” championed by Rep. John Larson (D-CT), which was the subject of another recent OBL News post, is getting a hearing in Congress!

Social Security 2100 proposes to shore up this benefit program for 62 million beneficiaries while ensuring the program’s financial stability. Among its proposals are that any increase in benefits under its provisions wouldn’t affect eligibility for other key federal programs, including Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program.

 

https://thehill.com/opinion/finance/427835-a-bill-to-boost-social-security-will-finally-get-a-full-and-fair-hearing

 

One-third of all Americans between the ages 35 and 65 will become disabled for more than 90 days and 1 in 7 workers will be disabled for more than five years

Over the years, we have handled tens of thousands of disability claims for injured workers. The one thing they have in common is that none of the clients planned on having a disability. According to the American Council of Life Insurers, one-third of all Americans between the ages 35 and 65 will become disabled for more than 90 days and one in seven workers will be disabled for more than five years. Short Term/Long Term Disability policies can be purchased through an employer from companies like Aetna, MetLife, New York Life, etc. This type of policy can provide more immediate financial relief than relying on Social Security Disability alone. Read more to learn about various disability insurance options:

https://www.disabled-world.com/disability/insurance/

 

New proposed rule sets a “floor” for social security benefits at 25% above the poverty level, among other pro-claimant recommendations.

Congressman John Larson of Connecticut is again making the rounds with Social Security 2100, a set of proposals he has been making for a few years to both protect the Fund and to ensure the meaningfulness of the benefits for our lowest earning neighbors:

  • Immediate increase in Social Security benefits equal to about 2% of the average benefit amount.
  • Adoption of a new way to adjust for inflation for determining annual cost-of-living adjustments to benefit payments, based on the CPI-E, an inflation benchmark that incorporates goods and services that are more appropriate for the older and low income Americans.
  • A minimum benefit set at 25% above the federal poverty line to ensure that low-income workers avoid poverty in retirement.
  • Higher income thresholds for tax-free benefits, with the income levels at which a portion of Social Security can become included in taxable income rising from $25,000 to $50,000 for single filers and from $32,000 to $100,000 for joint filers.
  • Collection of Social Security payroll taxes on wages and self-employment above $400,000 ($132,900 currently).
    phase-in of higher payroll tax rates for Social Security, which would eventually take the current level of 6.2% up to 7.4% by 2042.

The bill would ensure that any increase in benefits under its provisions wouldn’t affect eligibility for other key federal programs, including Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program.