Avoid These 7 Mistakes and Improve Your Chances at Winning Social Security Disability
In most cases, your Social Security disability application and appeal will take two to three years from application to final decision, and this time frame is getting longer. According to the government’s Office of Personnel Management, Social Security employs fewer people now than it did 10 years ago, even while the total number of disability applications continues to increase.
Over the past 20+ years I have represented hundreds of claimants applying for disability benefits. During that time, the percentage of cases approved has deceased by about 20%. Deserving disability claimants are and will continue to win approvals. However, you should not assume that Social Security will parse your file looking for evidence to approve your claim. You should also understand that Social Security decision makers will not give you the benefit of the doubt.
Claims adjudicators and administrative law judges are looking for medical and other evidence that addresses the main issue in your disability claim: do you have a longstanding medical or mental health issue that prevents you from performing the duties of a simple, entry level job 8 hours a day, 5 days a week ongoing.
Here are seven of the biggest mistakes to avoid that can doom your disability claim, and what you can do to avoid these problems:
1. Gaps in medical treatment. Medical care is expensive and if you are not working, insurance can be a big problem. However, if you show up at a disability hearing and there are gaps of 6 months or a year in your treatment record, the judge will most likely conclude that your condition really isn’t all that serious. You have to find a way to visit your doctor at least every 3 to 4 months.
2. Lack of treatment with a specialist. In 2017 and beyond, judges expect to see treatment with a medical specialist. Your family doctor’s opinion about your capacity to work usually will not be enough to persuade a judge that your condition is serious enough to preclude all work. This is especially true if you are pursuing disability for a common medical condition like back pain, diabetes, depression or PTSD.
3. Part time work or work attempts of longer than 3 months. Social Security defines disability in terms of how your medical problem that has lasted or is expected to last 12 consecutive months prevents you from performing the duties of a simple, entry level job. If you work part time after applying, the judge may conclude that you could work full time if the hours were available. Similarly, a work attempt that lasts more than 3 months will usually be seen as a successful work attempt and can disqualify you from the 12 consecutive month duration requirement. Always talk to your lawyer before trying to return to work.
4. Drug seeking behavior or use of street drugs or alcohol to self medicate. Social Security rules say that a judge can deny your claim even if you are otherwise disabled if drugs or alcohol is a material contributing factor to your disability. If a judge senses that you are misusing pain medications, or that you have turned to street drugs like marijuana, there is a strong chance that you will be denied.
5. Pursuing disability for a condition that cannot be confirmed with objective testing. Social Security judges are increasingly reluctant to approve claims based on so-called “invisible illnesses” that cannot be confirmed with blood tests, imaging tests (MRI, CT scan) or other objective testing (including mental health tests for depression, schizophrenia, etc.). This is why fibromyalgia, chronic fatigue, CRPS, and other idiopathic conditions are so difficult to win. If you are hoping to win disability benefits for an invisible illness, you will need strong and consistent support from one or more medical specialists.
6. Pursuing disability for more than one or two medical conditions. If you appear at your hearing and tell the judge that you cannot work because of six or seven medical conditions, the judge will most likely conclude that you have a very low tolerance for pain or that you have developed an attitude of entitlement and he/she will discount what you say in testimony. Unless your medical record clearly and objectively documents more than two, or at most three conditions, you are usually better off focusing on one or two objectively determinable medical conditions as opposed to trying to convince the judge that you have multiple body system failures.
7. Absence of opinion evidence from your doctor about work capacity issues. Remember that Social Security defines disability in terms of how your medical problems limit your ability to perform a simple, entry-level job. If your doctor will complete a functional capacity evaluation or a narrative report that addresses your work activity limitations and reliability problems, your chances of winning go way up.
Disability adjudicators at the initial application and first (reconsideration) appeal stage, and judges at the hearing stage are under a great deal of pressure to only approve claims that can be solidly documented by evidence. Your goal, as a claimant (or claimant’s representative) should be to provide your disability decision maker exactly what he/she needs to issue a favorable decision.