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To Work or Not to Work: Substantial Gainful Activity

By Las Vegas SSD Attorney on June 15, 2012 - No comments

NV SSDWhether or not to work while your claim is pending with Social Security is a very tough question to ask.

Any work you engage in after your alleged onset date of disability will be considered by Social Security and the administrative law judge when determining whether you are disabled. The first step of the sequential evaluation is to determine whether or not you are engaging in substantial gainful activity (“SGA”).

Social Security Guidelines specifically state, “If you are able to engage in substantial gainful activity, we will find that you are not disabled.” 20 C.F.R. §404.1571. Substantial gainful activity is work activity that is both substantial and gainful. Social Security defines substantial to mean any “work activity that involves doing significant physical or mental activities.” 20 C.F.R. § 404.1572(a). It is important to note that work may be “substantial” even if you “do less, get paid less, or have less responsibility than when you worked before.” 20 C.F.R. §404.1572(a). On the other hand, work is gainful when it is done for pay or profit even if you are not paid for the work so long as it is the “kind of work usually done for pay or profit.” 20 C.F.R. §404.1572(b). Generally, in evaluating whether work you have performed is substantial gainful activity, the primary consideration will be the earnings received from the work activity. 20 C.F.R. §404.1574(a)(1).

In order to be considered substantial gainful activity, earnings received must exceed a certain amount. If they exceed the substantial gainful activity amount for that year, Social Security cannot find you disabled.

Only in a very rare instance will earnings over substantial gainful activity thresholds be disregarded and the earnings evaluated on the merits. In fact, the rare exception to the SGA limits is essentially non-existent, so it is best to think of the SGA limit as an absolute bar to benefits. Put another way: If your monthly gross earnings exceed SGA for the year in question, YOU ARE NOT DISABLED pursuant to Social Security Guidelines. There is no judge that can or will make an exception for you for any reason. A lot of clients believe that because they were forced to return to work because of financial reasons or other obligations that the judge will make an exception in their case.

Beware: there are no exceptions. Social Security has made a bright line rule to cut off eligibility for benefits at a certain income level. If you can work over that level, even by $1.00, then Social Security assumes that you are able to work at such a level that there is no possible way that you could be considered disabled under their rules. It is irrelevant that you cannot pay all of your bills or survive on the amount that you are making. This information will not be considered by the judge if you are over SGA limits. The SGA limits are as follows:

Las Vegas SSD Lawyers

Therefore, if your earnings for the year in question exceed the amount in the chart above, you will either have to withdraw your claim, amend your onset date, or proceed for a closed period of disability depending on the facts of your case. However, you will not be able to just ignore these guidelines and proceed on the merits of your claim.

However, even if your earnings do not exceed the SGA limits in the table above, that is not the end of the analysis. Social Security takes into consideration any earnings after your alleged onset date of disability. “[T]he fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.” 20 C.F.R. §404.1574(a)(1). This means that Social Security will consider all earnings, not just those above SGA limits when determining whether or not you can engage in substantial gainful activity.

Very minimal earnings are not likely to weigh heavily in an analysis of whether you can engage in SGA. However, and this comes up quite a bit, if you are working and your gross earnings are just below SGA limits, Social Security can and often will assume that you would be able to engage in substantial gainful activity because the level of work that you are doing is very close to SGA. This is the case wherein it appears that the claimant is purposely keeping their gross earnings below SGA so as to remain eligible for benefits. However, judges will often ask claimants, “Why, if you can work 30 hours a week, can you not work 32 hours a week?” This is the case when claimants are earning within $100-$200 of SGA limits for the year in question.

Therefore, even if you are earning below SGA limits, any work that you are performing will be considered in determining whether you can engage in substantial gainful activity. If you have any questions regarding how your work after your alleged onset date of disability will be viewed at your hearing or by Social Security, you should discuss it with your Nevada Social Security disability attorney or representative prior to the hearing and supply your attorney with all of your paystubs and tax returns to show proof of income.



Does It Matter???

By Las Vegas SSD Attorney on May 30, 2012 - No comments

A question many Las Vegas Social Security lawyers hear a lot from clients before the hearing is, “Does it matter that _________?” The blank here represents just about anything. For example:

  • Does it matter that I take my dog for a walk every morning?
  • Does it matter that I watch my grandchildren after school?
  • Does it matter that I used illegal drugs six months ago?

While the list of questions that could fill the blank are infinite, the general answer is very simple…YES. As a general rule, an Administrative Law Judge (ALJ) is under a duty to develop the record. This means, the ALJ is obligated to ask questions and consider testimony regarding a claimant’s ability to work. The types of questions ALJs typically ask can be broken down into four broad categories. These categories are:

  1. Questions about a claimant’s physical and/or psychological impairments.
  2. Questions about a claimant’s ability/inability to work.
  3. Questions about a claimant’s prior statements, actions, or behavior.
  4. Questions regarding a claimant’s credibility.

Social Security ALJ Hearing Nevada

Moreover, because the rules of evidence are not strictly applied, an ALJ can ask irrelevant questions, require a claimant to speculate and ask about what another person said outside of the hearing (hearsay). Given this, an ALJ can ask a claimant and consider testimony regarding just about anything. Some extreme examples I have heard include:

  • Do you engage in sexual activity often? – This question followed a claimant’s testimony that her autoimmune disorder prevented her from doing just about anything.
  • How can you be a good parent if you can’t work? – This question followed a claimant’s testimony that his back injury made it impossible for him to help around the house.
  • Are you wearing adult diapers as you sit here today? – This question followed a claimant’s testimony that since he had back surgery he sometimes lost control of his bladder.

The above questions are extreme examples of what an ALJ can ask and what testimony they may consider when deciding a claim. Typically, an ALJ’s questions are limited to a claimant’s ability to sit, stand, walk, and eat. However, this isn’t always the case. Needless to say, claimants need to be wary when testifying before an ALJ and aware that the ALJ may throw a curve ball question.

While the general rule is that everything a claimant does may be asked about and considered by an ALJ, there are some exceptions. Many strongly advise claimants to contact a disability attorney in Nevada to learn if their specific situation qualifies as an exception to the general rule or merely party of it.



Hearing Loss and Social Security

By Las Vegas SSD Attorney on April 13, 2012 - No comments

While it may seem that hearing loss is an easy way to qualify for Social Security Disability as the ability to hear inherently affects the ability to communicate effectively in the workplace, it is actually incredibly hard to qualify for Social Security Disability based on sensory loss, especially hearing loss alone. Essentially, the only way to qualify for hearing loss is to meet the listing. A Listing describes, for each major body system, impairments considered severe enough to prevent an individual from doing any gainful activity. In order to meet a Listing, your condition must contain all of the factors described in the Listing. The only way to prove that you meet a Listing based on hearing loss is through clearly documented medical records. While your condition may seem to you and your loved ones as severe regardless, without the appropriate medical documentation, a judge will not find in your favor based on hearing loss alone.

Listing 2.10 Hearing loss not treated with cochlear implantation.
Listing 2.10 is generally the listing used to evaluate hearing loss as most people do not have cochlear implantation. Let’s examine this listing in detail. Listing 2.10 states verbatim:

A. An average air conduction hearing threshold of 90 decibels or greater in the better ear and an average bone conduction hearing threshold of 60 decibels or greater in the better ear (see 2.00B2c).

OR

B. A word recognition score of 40 percent or less in the better ear determined using a standardized list of phonetically balanced monosyllabic words (see 2.00B2e).

This sounds very simple, but when broken down, it requires much more than a simple hearing test. Let’s examine each subpart individually.Nevada SSD Claim Hearing Loss

Subpart A: Hearing Thresholds
Normal hearing ranges from 0-20 decibels in all frequencies with worsening hearing as the numbers increase. Each increase of 10 decibels represents a doubling in the amount of sound. For example, 20 decibels is twice as much sound as 10 decibels. So you can imagine how loud 90 decibels actually is. In fact, pursuant to the Occupational Safety and Health Administration (OSHA), individual hearing protectors are required when noise averages more than 90 decibels during an eight (8) hour day. When qualifying hearing loss, an air conduction hearing threshold of 90 decibels or greater represents severe to profound hearing loss, with 91 decibels or over being a profound loss. When assessing your air conduction hearing threshold, and bone conduction hearing threshold, Social Security will average your hearing thresholds for both categories at 500, 1000, and 2000 Hertz (Hz). See 2.00B2c. This does a great disservice to people with specific hearing deficits. For instance, some people have significant problems hearing low sounds or low frequencies but have slightly better hearing at higher frequencies or high sounds. Averaging the two together can minimize the actual amount of hearing loss by hedging your actual hearing test results. Thus, simple math tells you that you would have to have profound hearing loss at all frequencies in order to have an average hearing score of 90 decibels or greater. This method is a huge disservice to hearing impaired claimants.

It is also important to remember that Subpart A requires both (1) air conduction hearing threshold of 90 decibels or greater AND (2) bone conduction threshold of 60 decibels or greater. In addition to that, the average used to determine if you meet a listing is the average threshold in the better ear. This is almost an impossible standard to meet, and even at the administrative law hearing level, few claimants are allowed based on hearing loss alone.

Subpart B: Word Recognition Scores
A word recognition test is the portion of the hearing test wherein the audiologist tests your ability to recognize a standardized list of phonetically balanced monosyllabic words in the absence of any visual cues. This test is presented at the maximum level of amplification that will measure your maximum ability to discriminate words. See 2.00B2e. Using this standard to determine an ability to work in the workplace would assume that all people are going to speak to a hearing impaired individual in the workplace at the maximum level of amplification for their specific hearing impairment. This is unrealistic to say the least. Nonetheless, it is the standard used. In order to meet the listing for Subpart B, you must be able to recognize or distinguish 40% of the words, or in other words, be unable to distinguish 61% of the words given to you. This, again, is given at the “maximum level of amplification that will measure your maximum ability to discriminate words.” Thus, even at this maximum level, you must still be unable to distinguish 61% of the words given. This again is almost an impossible standard to meet.

The only saving grace to this listing is that you are not allowed to wear hearing aids during the testing, nor does the listing state that it is your “best corrected” hearing. In fact, the explanation prior to the sensory listings specifically states that “You must not wear hearing aids during the testing.” See 2.00B2b. Additionally, unlike the vision listing which requires the person’s “best corrected” vision to be used to determine whether they meet the listing, the hearing listing does not state that it is the “best corrected” hearing loss. Therefore, the use or nonuse of hearing aids and any benefits they may provide are irrelevant for the purposes of determining whether or not you meet the listing. This may seem like Social Security is giving you a break, but for all intents and purposes, these two points are ignored at all stages in the Social Security Disability process. Even at the administrative hearing level, judges do not take hearing loss cases seriously. Not only will judges routinely ask about hearing aids and how those help with day to day interactions, but they also discount any special accommodations you may need in order to be able to work effectively and independently in the workplace. On rare occasions, claimants present to the administrative hearings and their hearing issues are apparent to the judge upon questioning; however, unless the judge himself has significant hearing loss or knows someone with hearing loss, it is unlikely they will understand the problems that face a hearing impaired person on a daily basis. Unless there is an absolute inability to communicate with the person, it is unlikely the judge will consider any hearing loss prohibitive to gainful employment.

That being said, there are things that you can point out to the judge at the Social Security Disability hearing that may help him understand how your hearing loss prevents you from working. The main issue to be sure to address is what makes your hearing better and what makes it worse. For instance, some people with hearing loss can actually hear better in environments with background noise while they are almost incapable of hearing things in quiet environments. Another thing to point out is if you read lips. Reading lips is a skill that you develop over time to compensate for hearing impairments. However, if you are a skilled lip reader, it will seem to others as though you have no trouble communicating at all. But, if you are clear in pointing out that you are unable to follow conversations with more than one speaker, have problems reading lips of people who are not familiar to you, even something as simple as pointing out that you cannot read someone’s lips unless you know they are talking and you can see their mouth. Other things to point out are difficulties you have talking on the telephone or any accommodations you have made to be able to do so such as having a trusted family member make all important phone calls for you, relying solely on texting, or getting special phone equipment to transcribe all conversations. Even pointing out the simplest of details can help your case, such as the fact that you cannot go to movies or watch television or listen to seminars without subtitles because you cannot hear to comprehend what is being said. The key to every successful hearing is in the details. Talk to your Las Vegas SSD attorney or friends and family to determine what they think your issues are in communicating and be sure to describe all of your issues, both self-diagnosed and otherwise, to the judge at your hearing.



Appealing Partially Favorable Social Security Disability Decisions

By Las Vegas SSD Attorney on April 11, 2012 - No comments

Las Vegas SSD Claim ApprovalThere are three types of decisions you can receive after a Social Security Administrative hearing: Fully Favorable, Partially Favorable, and Unfavorable. Fully Favorable and Unfavorable are straightforward, either you won or you lost. However, Partially Favorable decisions are not so easy to interpret. A Partially Favorable decision means that the judge found you disabled, but either not for the time period you alleged in your application or for a closed-period of disability.

A Partially Favorable decision that grants benefits but not for the time period you alleged in your application just means that the judge agrees that you are disabled but believes that you did not become disabled until a later date. All the judge has done in this case is change the onset date of your disability. This affects your benefits in two ways:

  1. You are not awarded any benefits for the time period prior to the new onset date in your decision; and
  2. The new onset date in your decision will be used to determine when you are eligible for Medicare (in SSDI cases only).

A Partially Favorable decision that grants benefits for a closed-period of disability means that the judge agrees that you were disabled for a definite period of time, but that since then, you have improved to the point that you are able to return to work. This affects your benefits in two ways as well: (1) you are only awarded benefits during that time period and will not receive any more benefits going forward; and (2) you are not going to be eligible for Medicare except in the most rare of occasions, and it will not be current Medicare coverage, but eligibility for those services in the past.

As with any Social Security Disability Decision, the claimant has the option of appealing a Partially Favorable Decision. However, when deciding whether to appeal a Partially Favorable decision, you must keep a few things in mind. First, you are not just appealing the “Partially” part of the decision, you are appealing the entire decision. The Appeals Council will not look at only the amendment of your onset date, but your case as a whole. This means that the Appeals Council could determine that you are not disabled and take away all of your benefits. Second, any benefits which you have received or receive while the Appeals Council is determining whether the Partially Favorable decision was correct will have to be repaid to Social Security if you are found to be not disabled by the Appeals Council or at a subsequent hearing. Third, there must be a plain error of law or new and material evidence to justify overturning the prior judge’s decision. It cannot be that you are just dissatisfied with your decision. Therefore, you should carefully evaluate the evidence in your case with your attorney to determine if your case warrants an appeal.

If you receive a Partially Favorable decision, you should consider the risk involved in appealing that decision versus the benefits that you are currently receiving or will receive. While it is oftentimes hard or seemingly impossible to wait for Medicare coverage, the risk of appealing these decisions is sometimes not beneficial. While there are obvious cases wherein the administrative law judge has made an error, not every case will warrant an appeal. Therefore, if you receive a Partially Favorable decision, you should weigh your relative options and make an informed decision as to whether you will appeal that decision or not.

To better understand your case and find quality legal representation, call the Nevada SSD benefits lawyers at Shook & Stone for a consultation at (877) 910-2220.



I Lost My Nevada SSD Case, Now What?

By Las Vegas SSD Attorney on April 9, 2012 - No comments

You waited almost two years for your hearing, you told the ALJ the truth about your limitations, and now, you are holding the decision denying your Social Security Disability claim. You think to yourself, “It’s not fair” and wonder what to do next. At this point, you must decide which of three options you will take. What option is “best” varies from person to person and case to case.

The sad truth is that the majority of all disability claims will be denied. Last year, 2,878,920 people applied for social security benefits. However, disability was awarded only 1,025,003 times. In other words, across the nation only 35% of all claimants “won” their case. In 2000, 1,330,558 people applied for disability and only 621,650 or 47% of the claims were granted. Put differently, even during the “good years” for Social Security Disability benefits, more than half of all claimants lost. Given these numbers, the choice on how to move forward after receiving an unfavorable or partially favorable decision should not be made hastily.

Clients have three general options on how to proceed after receiving an unfavorable or partially favorable decision. The first option the Las Vegas SSD lawyers at Shook & Stone encourage a client to consider is the “do nothing” option. While this may sound lazy, it may be the best option given your specific situation. We often advise clients to carefully consider this when they have received a partially favorable decision, have recently received a job offer, or honestly believe they can work. In these situations, letting the unfavorable or partially favorable decision stand may make the most sense.

Nevada SSD Denial AppealMany claimants call our legal team wanting to appeal their unfavorable or partially favorable decision within days after receiving it from the Social Security Administration. While appealing an ALJ’s decision is a claimant’s right, it isn’t always the best option for a number of reasons. First, statistically speaking, most appeals lose. Second, the appeal process itself can take up to a year and sometimes longer to resolve. Third, not all ALJ decisions raise appealable issues. Lastly, even if an appeal is filed and won, 99% of the time the reviewing Court will send the case back to an ALJ for a new hearing rather than outright grant disability. For all of these reasons, deciding to appeal an ALJ decision should be well thought out and discussed with a professional.

The last option a claimant should consider after receiving an unfavorable or partially favorable decision is whether he or she should re-file the claim. However, should a claimant choose to re-file, he or she must deal with the Chavez rule. The Chavez rule requires claimants to show that their condition has become substantially worse since their prior claim. Consequently, a claimant simply repeating themselves from claim to claim will not be effective. While the Chavez rule is a hurdle that must be cleared, it is usually not a major issue in Nevada as very few programs offer affordable comprehensive health care. As such, many claimants are unable to get the type of treatment that would improve their situation. Usually, by the time the claimant is seen again by an ALJ, their condition is substantially worse and the Chavez rule does not bar the claim.

In recent years, more and more claims are being met with unfavorable or partially favorable decisions. This reality does not automatically mean that you won’t receive Social Security benefits. It does, however, mean that you must choose one of three options moving forward. There is no universal “best” option and each warrants careful consideration as what is best changes from person to person and case to case.

If you are unsure how to proceed, speak to an experienced lawyer at Shook & Stone who can assess and advise you when taking into account your specific situation. Call us today for a consultation on your case at (877) 910-2220.



Begin at the Beginning – Ways to Win Your Nevada Social Security Claim

By Las Vegas SSD Attorney on April 4, 2012 - No comments

Nevada Social Security Disability Benefits ApprovalOne of the most basic questions prior to a Social Security Disability hearing a claimant should ask is, “How do I win my claim?” In general, there are three ways to win.

The first way a claimant can win his or her case is if the claimant meets a listing. The Social Security Administration provides dozens of different physical and psychological ailments (i.e. listing) along with checklists of symptoms for each one. If a claimant’s medical records can satisfy each “box” or element in the checklist for a listing, he or she will win the case. Generally, when a claimant meets a listing, his or her physical or psychological health has significantly deteriorated, usually requiring immediate surgical or psychological intervention.

Very few people at the hearing level meet a listing. However, a claimant can still win the case if the Administrative Law Judge (ALJ) determines that he or she equals a listing. Equaling a listing requires medical evidence showing that a claimant’s physical or psychological condition, while not meeting a listing, is just as severe as if a listing had been met. Generally, when trying to prove a case this way one should focus on the severity, frequency, and impact of the disabling symptoms.

Lastly, if a claimant doesn’t meet or equal a listing, he or she can still be found disabled from a vocational standpoint. In general, this requires the ALJ to decide that:

  1. The claimant lacks the physical or psychological ability to perform even a simple desk-type job;
  2. The necessary accommodations (physical or psychological) needed to permit the claimant to maintain full-time employment would render the claimant unemployable (e.g. excessive absences); or
  3. The claimant “grids.” The “grid” is a long list of circumstances specified by law that requires the ALJ to award disability based on the claimant’s age, education, work history, and physical limitations.
  4. If a claimant’s medical records and hearing testimony persuades the ALJ to decide that the claimant meets a listing, equals a listing, or is vocationally disabled, a claimant will win his or her claim.

    However, this is no easy task and an attorney should be consulted. Contact the Social Security Disability attorneys in Las Vegas at Shook & Stone for a consultation on your case and to learn how they can help you find proper compensation by calling (877) 910-2220.



Unemployment and the Social Security Claim

By Las Vegas SSD Attorney on April 2, 2012 - No comments

The Social Security Disability determination process is painfully slow. Right now, the average claim is taking approximately 16 to 18 months from the date the application is filed to the date of the hearing in front of an Administrative Law Judge (ALJ). However, even if a claimant “wins” their claim, they may have to wait up to another three to four months until they see any money. Many claimants lack the financial resources to meet their basic needs, provide for their family, and pay for their medication care without seeing a Social Security Disability check for almost two years. Given this, many claimants seek unemployment benefits as a way to keep things above water while they wait.

Nevada Disability Benefit PaymentsReceiving unemployment benefits while waiting for the hearing is often problematic. In order to receive unemployment benefits, one has to sign a document essentially stating that he or she is ready, willing, and able to work. Additionally, in order to receive unemployment, one must actively be looking for work. When seeking disability, however, one states that he or she is unable to work due to a total and permanent disability. Needless to say, one cannot both be able to work and disabled at the same time.

Receiving unemployment will not automatically preclude an award of disability benefits; however, an ALJ may be more hesitant to grant the claim. When an ALJ notices that a claimant has received unemployment benefits following their application for disability, the ALJ may ask the claimant to explain how he or she is both able to work and disabled at the same time. The best approach in answering this question is raw honesty. If a claimant truly feels they are disabled, but needed the money to support their family while they waited 16 to 18 months … tell the ALJ. However, it is important to be aware that no matter how a claimant answers, some ALJs will view the above fact as very negative.

If a claimant has received unemployment benefits while waiting for their hearing they basically have three options to choose from when dealing with this issue. The first option is to hope that the ALJ will either not ask or not notice that the claimant’s social security number reflects additional earnings. The odds of this happening are very low. The second is to hope that receiving unemployment benefits will not harm the claim’s odds of success. The third option is to change or amend the initial date of disability to after the claimant stopped receiving unemployment benefits. Because of the potential negative impact unemployment benefits could have on a claimant’s claim for disability, it is highly recommended to speak with an advocate on this issue to learn what option is best given the facts of your situation.

A Nevada Social Security Disability attorney at Shook & Stone can help guide you through this process and make sure you receive your proper benefits.



Las Vegas SSD Vocational Expert Testimony

By Las Vegas SSD Attorney on March 30, 2012 - No comments

Nevada Social Security Disability Hearing TestimonyA lot of claimants are scared by the presence of a Vocational Expert at their Social Security Disability hearing. It is understandable that claimants are worried about every aspect of their disability hearing, and Vocational Experts are no exception. However, the mere presence of a Vocational Expert is not in and of itself something to be scared of.

Vocational Experts are present at the hearing to provide testimony regarding two main things:

  1. Classifying any work that you have done in the past 15 years; and
  2. Identifying any work that would be available to a hypothetical person with limitations which the judge lists.

The Vocational Expert can also answer any questions which the judge or your attorney may have regarding the particular demands of a job. The Vocational Expert does this based on government documents recognized by the Social Security Administration, namely, The Dictionary of Occupational Titles, The Selected Characteristics of Occupations, Department of Labor statistics, and his professional experience. When the Vocational Expert testifies, it is likely that you will not fully understand his testimony as it is replete with codes and numbers which are not explained at the hearing.

Essentially, the Vocational Expert’s testimony goes as follows:

The judge starts by asking the Vocational Expert if he or she has had any personal or professional contact with the claimant. The judge then asks that if the Vocational Expert’s testimony differs or conflicts with the Dictionary of Occupational Titles, that the Vocational Expert inform the judge of the conflict and the basis for it.

The judge will then ask the Vocational Expert to describe the claimant’s past work based on the testimony at the hearing and the documents in the claimant’s Social Security file. The Vocational Expert will do this by classifying the work according to the Dictionary of Occupational Titles (DOT). The DOT provides a short description of all occupations and identifies them with a nine-digit DOT code. The Vocational Expert will list the jobs held by the claimant, provide the DOT code, and then classify these jobs by exertional level and skill level. Again, these pieces of information may mean nothing to you, but they provide valuable information for your attorney.

The judge may or may not follow up this testimony by asking the Vocational Expert a series of hypothetical questions. Instead of saying, “Can the claimant perform the following work?” the judge will create a hypothetical claimant and impose limitations similar to the claimant’s, and then ask the Vocational Expert if that hypothetical person could perform the claimant’s past work or any work in the national economy.

After the judge has finished with his line of hypothetical questions, then your attorney may or may not ask additional hypothetical questions.

While the Vocational Expert’s testimony is very important in a disability hearing, he or she does not decide your case. The judge will review the records in your file, your testimony, and the testimony of the Vocational Expert and determine which hypothetical, if any, is supported by the record. He can then rely on that portion of the Vocational Expert’s testimony in determining your case. That means that even though the Vocational Expert testified that there were no jobs which a hypothetical person in a similar position as you could perform in response to questioning, he may still find that you are not disabled and vice versa.

However, you have nothing to worry about because even though the Vocational Expert’s testimony seems to be relatively complicated, the good news is … if you have an attorney, they will handle the Vocational Expert for you. At Shook & Stone, our Las Vegas Social Security Disability lawyers have the knowledge and experience to guide you through your hearing and find your proper compensation. For more information on how we can help you, call our offices at (877) 910-2220.



Unemployment Benefits While Applying for SSDI/SSI

By Las Vegas SSD Attorney on March 21, 2012 - No comments

It is normal for a claimant to allege an onset date back to the last date worked; however, with no income coming in and other government benefits more readily available in the short term, a lot of claimants apply for and receive unemployment benefits. This is a tricky issue when it comes up in a disability hearing. When you apply for disability benefits through Social Security, you are telling the federal government that you are unable to engage in substantial gainful activity; however, when you apply for unemployment benefits, you are telling a state agency that you are ready and willing to work but unable to find employment. This dichotomy can often land claimants in trouble when testifying before an administrative law judge. There are several ways to deal with this issue at the hearing; the key is being prepared for the question.Nevada SSD and Retirement

First, Social Security has officially expressed that the receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits and is but one of the many factors to be considered when determining whether a claimant is disabled under Social Security Guidelines. See, Memorandum from Chief Administrative Law Judge Frank A. Cristaudo dated 08/09/10. Ultimately, judges will take into consideration the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment. Id.

While each case is different regarding the significance of the receipt and application for unemployment benefits, there are several factors which are of increased importance. The main areas which arise are:

  1. the type of work the claimant is allegedly looking for as it compares to his/her assessment of current abilities;
  2. the manner in which the jobs are applied for by the claimant;
  3. why the claimant quit working prior to receiving unemployment benefits; and
  4. financial difficulty during the process of applying for SSDI/SSI.

Other issues may arise given the particular circumstances of each case.

The type of work the claimant is applying for as it compares to their current assessment of their own abilities is relevant because it reflects on the claimant’s credibility. Any apparent inconsistency should be explained immediately at the hearing. The manner in which these jobs are being applied for is important to show the amount of the claimant’s effort expended to attempt to attain a job. If a claimant is applying to five (5) craigslist posts a week by forwarding his resume via email which would take mere seconds, that is significantly less activity than someone who actually physically goes to establishments and inquires about work. The reason the claimant stopped working in the first place is relevant for many reasons, but specifically for unemployment purposes, if the claimant’s prior work ended for reasons unassociated with his disability, this would seemingly contradict the claimant’s statements that his application for unemployment was not based on a real belief that he could return to the workforce. Finally, financial difficulty during the pending SSDI/SSI process can be taken into account, though this is not as strong an argument as it would seem. Just because the government is offering to give you these benefits, that is not in and of itself a reason to take them. A further explanation is required.

There are many ways to deal with these questions at the hearing. However, as previously stated, the key is to be prepared to answer them. One key argument is that the standard for receiving SSDI/SSI is that the claimant is unable to engage in substantial gainful employment. This means that the claimant is unable to work either full time or conduct work that exceeds a certain income threshold. However, unemployment benefits are not predicated on any such standard. It is not required that unemployment recipients be looking for or able to do work at any given level, just that they are applying for available positions. This is a key distinction between the two benefits. That is why what kinds of jobs the claimant is applying for is so important for them to receive the unemployment benefits.

Ultimately, judges do not like it. However, generally they ask the question to see how the claimant responds and in their decisions state that the receipt of unemployment benefits negatively affects the claimant’s credibility. As with a lot of SSDI/SSI issues, judges are given a lot of discretion in dealing with this issue. The key is to be prepared to deal with it when it comes up at the hearing.



What to Expect After Your Social Security Disability Hearing

By Las Vegas SSD Attorney on March 19, 2012 - No comments

When Will I Get My Decision?

As experienced Social Security Disability attorneys in Nevada, we are often asked this question. A lot of claimants believe that they will attend the hearing, the judge will listen to their testimony and give a ruling right then and there. While this is true in a very small minority of the cases, the majority of the time, judges do not give any indication as to whether the case is going to be approved or denied at the conclusion of the hearing. There are generally three different scenarios of what could happen after the hearing:

1) The Case Does Not Need Additional Development

In cases where all of the medical records were received and submitted prior to the Social Security Disability (SSD) hearing, the record will close at the conclusion of the hearing and the judge will make his or her decision based on that evidence alone. Judges will generally review the medical records and other documents in the Social Security Administration (SSA) file as well as review the testimony and make a decision. Normally it takes at least 1-2 months before a decision is made, and then additional time for it to be written and mailed to the claimant.

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2) There Are Outstanding Medical Record Requests

In some cases, for a myriad of reasons, all of the relevant medical evidence could not be obtained and submitted prior to the hearing. Depending on the judge, this will not be a problem. A lot of judges will allow for additional time after the hearing to submit additional evidence. In this case, judges will hold the record open for a specified number of days to allow the claimant to obtain and submit those records. At the conclusion of that specified number of days, the record will close and the judge will review any new evidence submitted as well as the existing evidence and the claimant’s testimony at the hearing.

If additional time is needed to submit evidence after the hearing, the decision will obviously be delayed by that amount of time. This means that if your attorney is given 30 days to submit additional evidence that will delay the usual 1-2 month wait time for a decision by an additional 30 days. However, should the evidence be obtained early, a simple letter can be sent to the judge to notify him that the evidence is complete and the record can be closed. This could speed up the process just a bit.

3) The Judge States That The Claimant Will Be Sent for a Consultative Examination

In some cases, judges want additional objective evidence concerning the claimant’s current condition. This can be for any number of reasons; the judge believes there is not enough evidence in the file to make a decision, the evidence in the file is wildly inconsistent and the judge wants a current assessment, or the judge believes that the records received do not explain the claimant’s presentation at the hearing. In these cases, the judge will order that the claimant attend a consultative examination at SSA’s expense.

The judge does not have to inform the claimant at the hearing that he intends to order a consultative examination. The only notice required is by mail and includes only a date, time and place to appear. This appointment is mandatory and SSA provides transportation to and from this appointment. There is no good reason other than being hospitalized why a claimant should not attend and cooperate with a consultative examination ordered by a judge. It is very likely that your claim will be denied if you fail to go to this appointment.

After the examination, the examining doctor will write a report which is sent to both the judge and the claimant/attorney. The claimant and their Social Security Disability attorney then have a specified number of days to either object, submit additional evidence or respond in writing to this report. This is often a good chance to have the last word in your case. Not only is it wise to respond to these reports by showing how it supports your claim for disability, but it also provides an excellent opportunity to make a closing argument after you have all of the information from the hearing, additional records and the latest consultative examination. These responses can prove to be very persuasive.

If you are sent out for a consultative examination after the hearing, it will generally delay your decision by at least a couple of months. The reason for this is that the appointment must be scheduled with the doctor, the report must be written, mailed to the judge, who mails it to the claimant, then the claimant/attorney has at least 10 days to respond in writing, and then the record is closed. Again, following all of this it is likely still going to be another 1-2 months before you get a decision.

Preventing a Long Wait

At Shook & Stone, our dedicated Social Security Disability lawyers in Las Vegas understand that it is discouraging to know that your decision could be delayed for such a long time, however, it is important to remember that it is always better to give the judge additional information which could help your claim rather than get an unfavorable decision without further development.



About Shook & Stone

Shook & Stone is a Nevada Injury and Disability law firm with offices located in Las Vegas and Reno, Nevada. The firm represents individuals injured in accidents of various types and individuals suffering from disabilities entitling them to social security benefits. This blog specifically addresses Social Security claims, but you are encouraged to navigate to our Main Page to review our other Practice Areas.

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