by Paul L. Jenkins, Esq.
As you pursue Social Security Disability benefits, it’s important to understand the most common mistakes people make to ensure your claim is successful.
- Becoming Discouraged.
There are three metaphorical ladder rungs to the Social Security Disability claims determination process: Initial, Reconsideration, and ALJ Hearing.
Claimants often don’t realize that the best chance of winning is at a Hearing that typically occurs one-to-two years after an application is initially filed.
In fact, more than 70% of Claimants must appeal each of two early level “denials” before being given the opportunity to request a Hearing before a U.S. Administrative Law Judge (ALJ).
After these lower level denials, which rarely ever speak to the true merits of an individual case, many claimants miss the 60-day window to request a Hearing. That’s because they either fail to keep up with all the paperwork Social Security sends in the mail, or they simply become discouraged from pursuing the process at its most crucial stage.
- Alleging an Incorrect Disability Onset Date.
Considering that less than 30% of applicants are awarded at either of the first two levels of the process (“Initial” and “Reconsideration”), the biggest early mistake a person can make is asserting an incorrect “alleged onset date” of disability (AOD).
In a Social Security case, the AOD is akin to the sun around which a planet of medical facts revolves. Getting the AOD wrong on the initial application means that the Agency will either fail to identify relevant medical evidence or otherwise fail to properly weigh the value of any medical evidence submitted. Any possibility of an early award is substantially eroded by that single error.
A Claimant might ask “Shouldn’t my AOD be the same as my date last worked?” And the answer is: not necessarily.
The right AOD should be consistent with the best legal theory of disability, marshalling all available medical evidence in support of it. An expert Social Security Disability attorney can help you identify the right AOD to give your disability application the best chance at an early award.
- Not Understanding the Role of Proper and Continuous Medical Treatment.
As challenging as it can be financially to secure and maintain health coverage while not working, a Claimant MUST make every effort to see doctors on a regular basis throughout the entire life cycle of a Social Security Disability claim.
On the day of a Hearing, the judge will expect to see all medical records in existence from as far back as the AOD.
If medical evidence is insufficient to bear out the objective severity of your disabling impairments, your subjective sworn testimony—however impressive—will not get you across the finish line.
At a minimum, it’s critical to treat with a primary care physician who listens well and does a good job of documenting your complaints, month after month and year after year! If a particular doctor is not listening to you, then find one who will!
A doctor who doesn’t listen well is probably also failing to take thorough office visit notes. Poorly prepared medical records can be just as legally detrimental as having no medical records at all.
If you have the financial means, be sure to also continue treating with specialists, such as orthopedists or neurologists. If your case involves both mental and physical impairments, it’s important to likewise establish and maintain care with both a psychiatrist and a psychologist. Remember that the opinions of specialists tend to matter more to Social Security than those of internists.
Finally, and within reason, of course, it’s important to follow all of your doctors’ advice. If medical evidence points to “non-compliance” with recommended treatment for an allegedly disabling condition, such documentation can be fatally prejudicial to a judge’s interpretation of the facts at issue.
- Not Understanding the Role of SSA “Function Reports.”
Throughout the pendency of a Social Security Disability Claim, the Agency will request a completed “Function Report” (also known as Form SSA-3373) on as many as three separate occasions at seemingly random points in time.
These forms ask disarmingly open-ended questions, such as “How do your impairments affect your ability to work?” and “What do you do from the time you wake up in the morning until the time you go to bed?”
Other questions ask the Claimant to identify any changes with respect to driving a car, performing household chores, personal grooming, household meal preparation, as well as hobbies and activities. There are also curious sounding questions like “how well do you get along with authority figures?”
Without expert legal advice from an attorney, many Claimants might view these forms as a friendly expression of concern by the Social Security Administration for their general well-being, instead of what they are: a discovery tool used by a federal agency to assess a Claimant’s overall consistency and credibility. And so, it’s best to answer all “Function Report” questions with the seriousness they deserve.
That means avoiding any attempt at humor, and staying focused on what’s typical or average about changes in daily life, rather than appearing hyperbolic by dwelling only on “worst days.” It’s also a good idea to make copies of every completed Function Report before returning these documents to the Social Security Administration.
When the next Function Report is sent to you, you can then refresh your memory about previously provided answers before supplying new ones.
Ideally, an expert Social Security Disability Attorney attorney will be able to guide your understanding of all questions asked, and oversee any and all Function Report submissions to the Social Security Administration.
- Not Hiring a Social Security Disability Attorney to Present Your Case at an ALJ Hearing.
Consider this the mother of all mistakes.
Many ALJs will refuse to hold a hearing until you secure proper legal representation. Other ALJs will not be so kind, and will gladly move forward if you choose to represent yourself in a complicated federal proceeding.
If you have recently requested a Hearing or you have one scheduled, the time is now to get an attorney actively involved. Social Security Disability law is a maze of intersecting regulations that, in many ways, is its very own language, with both procedural and substantive pitfalls that only a skilled practitioner can be trusted to spot and resolve.
From a medical standpoint, the skilled attorney will ensure your “exhibit file” is 100% complete. Through oral argument, he or she will transform hundreds, if not thousands, of pages of medical evidence into a useful roadmap, which allows an ALJ to see how one or possibly multiple theories of disability might apply to your case.
Your attorney will also take sworn testimony from you in a way that factually illustrates the legal arguments.
In turn, the ALJ will schedule either or both a vocational expert and medical expert to provide additional sworn testimony.
These are officially neutral parties, but, in reality, they are paid for their time by the Social Security Administration. Your attorney will ensure that any such experts are properly cross-examined in furtherance of your interests.
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