Today the United States District Court for the District of Delaware granted Chermol & Fishman, LLC’s motion for attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).  Additionally, the Court reaffirmed and discussed its underlying order to overturn the Social Security Administration’s (SSA’s) attempt to deny Plaintiff’s application for disability benefits. (Click here to read the full text of the decision).

EAJA Award

Despite lengthy objections from the Office of General Counsel (OGC), the Court awarded Chermol & Fishman, LLC, every single penny of the $9,540.95 in attorney fees that we requested.  All of OGC’s objections to attorney fees were flatly rejected by the Court.

Order Overturning SSA’s Denial of Benefits and Remanding the Case

Through diligent and meticulous work, Chermol & Fishman, LLC, demonstrated to the Court that that the Administrative Law Judge (ALJ) in this case had committed multiple legal and factual errors. In ordering remand, the Court reaffirmed several key legal principles that Plaintiff’s attorney, David F. Chermol, had argued:

In 1996 Congress passed legislation prohibiting the award of Social Security disability or SSI benefits on the basis of drug and alcohol abuse. SSA interpreted this new legislation as prohibiting an award of disability benefits only where the person’s inability to work resulted from continuing drug or alcohol abuse. What this means is that you cannot get disability benefits because you continue to abuse drugs or alcohol. In other words, if you are disabled without considering your drug and alcohol abuse, you can still get benefits.

What many people do not know, including many lawyers and judges, is what happens when it is impossible to determine if you would be disabled if you stopped abusing drugs or alcohol. Few people know that Social Security’s official policy is that benefits must be awarded in such situations. Many of the judges who decide these cases have a fundamental misunderstanding on this point. They often believe that they are required to deny benefits in such situations. They are wrong. It is Social Security’s own policy that on the issue of drug and alcohol abuse the benefit of the doubt goes to the person seeking benefits.

Now that we know what the law is, what can be done when you have to deal with an adjudicator or judge who does not know the law? This is when it is important to have a knowledgeable Social Security disability attorney who can write a compelling brief correctly stating the law. Just as importantly, if the judge still rules incorrectly, you will need an experienced attorney who is willing to litigate in federal court (which many Social Security disability attorneys do not do).

The bottom line is that just because you have a drug or alcohol problem does not mean that you are precluded from receiving disability benefits from Social Security disability. Do not believe it if someone tells you otherwise. At the same time, if you have a history of drug and alcohol use, it would be wise to get an experienced attorney involved in your case early.

Yes.

There are three basic ways in which children can receive some type of disability benefits from Social Security:

1. The first is by receiving disability benefits under the earnings record of their parents. In other words, if a child’s parents become disabled or die, the child can collect disability benefits under the parents’ earnings record. If you are applying for disability benefits and have any children under 18, it is very important to tell Social Security about your children. If your claim for disability is approved, your children will start receiving benefits automatically. As you can see, these types of benefits are dependent upon the health of the parent, not the health of the child. The concept behind these benefits is that there be some protection for children who have lost a parent’s earnings power that would otherwise be providing for their financial well being.

2. The second type of child’s benefit is related to the first. An adult child who can prove disability since before age 22 can receive disability benefits on the basis of their deceased, retired, or disabled parents’ earnings records. Often the disabled child may be in their 30s or 40s by the time one of their parents become disabled, retire, or die. Very few people even know that such benefits exist. Proving such cases is very complicated and you should almost always seek legal representation even for what seems like an obvious case.

3. The third major way in which children can receive disability benefits is by being approved for supplemental security income or SSI. SSI is limited to only those with very little money or resources. It is a Welfare program. If you do not met the resources test for SSI, no benefits can be awarded no matter how sick the child is. In performing this resource test, Social Security looks at the child’s assets and the parents’ assets. Because of the resource test, there are many, many families with sick children who cannot qualify for SSI. Assuming you pass the resources test, the child must then prove disability.

There was a great deal of litigation regarding child’s cases in the 1980s and 1990s. Ultimately, the Supreme Court found the child disability standard to be unconstitutional. As a result of that decision, Congress passed legislation setting a new standard for child disability under SSI. It is an extremely strict definition. Due to that fact, it can often be very difficult to obtain SSI benefits. Children are assessed in 6 general areas of functioning. They must prove marked limitations in at least 2 of the 6 areas or 1 area of extreme limitation. Many people who have problems with their children file for SSI claiming “ADD,” “ADHD,” or “ODD.” These generic and overly diagnosed conditions are generally not sufficient to prove eligibility absent evidence of profound functional restrictions and constant medical care.In proving child’s disability, it is absolutely essential to have the full support of a physician or physicians that the child sees on a very regular basis.

If you are considering pursuing child’s disability benefits through SSI or if you seek disabled adult child benefits, it is important that you seek the assistance of an experienced lawyer.

I believe that the most important thing to consider is whether the firm you are hiring does federal court litigation.

What Does That Mean and Why Is It Important?

As we noted in prior articles, the Social Security disability adjudicative system in Pennsylvania is an administrative process involving an initial stage, a hearing level, and the Appeals Council. If you lose before the Appeals Council, then your only choice is to file a law suit in federal court against the Social Security Administration.

Most Social Security Disability Law Firms Don’t Do Any Federal Court Litigation At All

That means if you lose your claim at the administrative level, in all likelihood your attorney is going to drop your case. At that point you are in a bad situation. You will have to scramble in a very short time period to find a lawyer who might take your case. You may have great difficulty finding one. So, in the end, you could be seriously out of luck.

If instead you had hired a Social Security disability law firm, like our office, which does pursue federal court litigation, then you would be in a much better situation. We have a two part strategy in all of our cases. First and foremost, we are working to win the case at some point during the administrative process. But at the same time, we are always preparing the case for an appeal to federal court if we do not prevail during the administrative process. This is critically important. The best appeals are those which were already being created while the case was pending before the agency. So if you had hired a firm like ours, which pursues federal court litigation, you would be in a really good position to potentially bring a lawsuit against the Social Security Administration in federal court. You don’t have a desperate scramble, you already have the lawyer you need.

Another critically important aspect of choosing the right law firm to represent you is whether they handle cases at all levels. Some offices will represent you only if you are already at the hearing level. In other words, they won’t help you file an application and complete the mountain of paperwork that you need to submit at the beginning of the application process. By contrast other firms, like ours, will help you no matter what stage of the process you are at currently. That is what you want: a full-service Social Security disability law firm.

One final thing to consider which I think is important: personal contact. Far too many Social Security disability law firms have elaborate phone systems designed to make it impossible for you to ever speak to a human being. I don’t know about you, but I hate that. We always have staff answering our phones (including me). If you get our voice-mail, that means the lines were busy or we are temporarily out of the office. Nevertheless, you will get a personal return phone call from our office. While our time is extremely valuable, we believe in personal contact as much as possible and not machines.

With this information, I think you can make an educated choice about who you want to represent in your Social Security disability or SSI claim.

That shouldn’t be the case. In order to best represent your clients, federal court appeals must be part of your overall strategy.

I want to briefly describe the federal court appeals process and then explain how it can benefit both you and your clients.

The Federal Court Process

After the Appeals Council denies a request for review, you have approximately 60 days to bring a federal court action challenging the denial of benefits._ As a non-attorney representative, you will need to establish a relationship with an attorney who does this kind of federal court work. Unlike the administrative process, non-attorneys are barred from pursuing appeals in federal court on behalf of their clients.

The federal court appeals process is entirely different than the administrative process. The biggest difference is that you are not trying to prove that your client is disabled. Instead, the focus of any federal court appeal needs to be on the legal errors committed by the ALJ. The goal is to identify such errors and explain why they require a remand for additional administrative proceedings. In other words, you are not looking for an outright award of benefits, but rather another bite at the apple. The key is to hone in on specific legal errors which violate agency policy, as opposed to asking the Court to re-weigh the evidence and reach a different disability decision than the ALJ did. Based on my 10 years at SSA litigating these cases in federal court, asking for a re-weighing of the evidence is usually totally futile.

Two Simple Things to Help Set Up Strong Federal Court Appeals

First, ask the following question of every VE who has just finished identifying jobs in response to an ALJ’s hypothetical questions: “It is correct that in responding to the ALJ’s questions you considered no functional limitations beyond those specifically identified by the ALJ?”_ The VEs almost always say yes. In the event that the ALJ left anything out of the hypothetical questions, as is often the case, you just set yourself up for a strong federal court appeal. Most federal courts will remand for a new hearing because the hypothetical questions did not include all of the relevant functional limitations.

Second, any requests you make should be documented in the record either in writing or at the hearing. For example, if you request any subpoenas, consultative examinations, an additional hearing, or anything else, you need to have a record of that. Having off the record conversations with the ALJ or a clerk will not be enough. If the requests are honored they may help you build your case. If the ALJ ignores them, as is common, then you have a built in issue for an appeal to the federal courts.

Along these lines, do not believe ALJs who say the record is closed at the end of the hearing. That is simply not true. The reality is that the regulations and the Social Security Act provide that the record is open until the date of the ALJ’s decision. It is utterly routine for an ALJ to fail to address evidence submitted after the hearing. This is often a very strong issue on which to pursue an appeal to federal court.

There are almost a limitless number of ways in which ALJs can commit legal errors in writing their decisions. However, if you do the two simple things I talked about above in every case, you are setting yourself up for some strong appeals in federal court.

Is it worth it to appeal to federal court?

Yes, for several reasons. First and foremost, you are providing a higher quality of representation for your clients when you anticipate the possible need for federal court appeals. Second, the allowance rate for remanded cases is very high. In fact, it is much higher than the normal allowance rate at the ALJ level. Obviously an award of benefits helps the client. However, it also benefits you because the additional time delay caused by the federal court litigation has caused the back benefits to grow. Therefore, your fee is higher. In the end, a case that you would have otherwise just written off could end up generating a max fee or better. Third, you win more cases. Of course you get the direct benefit of winning cases that were remanded by the federal courts. But even more important is the indirect benefit. Once you get a reputation as someone who will appeal to the federal courts, ALJs are much more inclined to rule in your favor on those borderline cases. It is a subtle but very real phenomena.

Overall, you should include appeals to the federal courts as part of your overall strategy for effectively representing your clients. If you do, it will produce benefits for both your clients and your business.

People are losing their jobs and new ones are not being created. It does not look like things will be getting better any time soon.

So what does this mean for the Social Security disability system?

I have some very definite opinions on that based on my many years of experience both inside SSA and as a private attorney.

The United States SSA Is Not Large

Unlike many European countries, the social safety net in the United States is not so large. Many of the programs and subsidies that exist for the unemployed in Europe have no comparable substitute in the United States. As a result, many of the people in need of such programs or subsidies are crammed into the Social Security disability system. With the economy worsening, SSA’s disability workload is certain to grow dramatically. This is particularly true because the baby boomers (the largest generation in this country’s history) are reaching their disability prone years.

With an ever expanding workload and fewer resources available to address it, SSA will be facing a crisis. Because it takes so much more effort to issue a decision denying benefits than to issue one allowing benefits, the ultimate outcome to me is clear. In the end, SSA is going to have to start granting benefit applications on a very large scale. The Agency’s history confirms that this is so.

It is Going To Get Tougher For Certain Groups

So what cases will be affected by this tendency to be more permissive in granting benefits? Probably all cases, but one particular type of case may benefit from this new policy in a disproportionate manner. I strongly believe that it will be the disability applications filed by those over 50 years of age which are singled out for particularly favorable treatment. The reason for this is that the rules set forth in SSA’s regulations favor disability for those over 50 years of age. SSA can easily become more permissive in allowing benefits in such cases because of the way the regulations are written. Granting benefits for those over 50 will not cause much dissent. Combined with an administration intent on expanding the social safety net in these terribly difficult times, I believe that this will start happening sooner rather than later.

This Can Benefit You

If you are considering applying for disability benefits, especially if you are over 50 years of age, you should find a good attorney to help you through the process. You will want an attorney who really knows the system and how to make your case stand out as one deserving of an easy allowance. Times are tough and just getting worse. In these circumstances, it is important to maximize whatever opportunities you have to protect the financial well being of yourself and your family.

I can think of quite a few cases where mistakes were made and deserving people got no benefits.

There are three common mistakes people make in these cases.I want to highlight these mistakes because they are entirely too common, even though they are easily avoided.

First Mistake:

Not having a disability lawyer. In some of my prior articles, I have talked about this issue. You do not want to go through this process alone. There are a thousand ways to lose or harm your case that you just cannot know about if this is your first (or even your tenth) time through the Social Security disability system. Deserving people miss out on benefits all of the time because they did not have a highly trained advocate in this area of the law on their side. From the completion of forms to the gathering of evidence, a skilled disability lawyer can assist you at every step of the process.

Second Mistake:

Not appealing an unfavorable decision. The Social Security disability adjudication system sometimes seems like it is built to discourage people. At the initial stages of the process you should expect to be denied. Most cases are denied at this stage. The mistake people make is they give these initial denials too much credit. In all likelihood, your case was not seriously reviewed before you were denied. You can be almost certain that important medical evidence is missing from the record. If you believe you are disabled, you should always appeal a denial. Yet if you look at the statistics, hundreds of thousands of people every year get an initial denial and just give up. This can be heart-breaking because in many instances too much time has passed to do anything about such an earlier denial. Interestingly, this second mistake is really caused by the first mistake. If you had gone through the process with a lawyer from the beginning, then you would have filed an appeal. A lawyer would know that your chances of winning after an initial denial are very good and would have appealed your case immediately. So again, getting good representation when you apply for Social Security disability allows you to avoid the two most common mistakes.

Third Mistake:

Not going for medical treatment. There are many reasons why people do not go for medical treatment. Sometimes it is due to money issues. However, either through Welfare or free clinics some level of regular medical care is usually possible. Sometimes people do not continue with treatment because they have a chronic condition and they feel that treatment has not gotten them any better. This is a huge mistake. On the medical side, although you may not get cured, staying in treatment consistently allows your medical providers to try out different treatment modalities which often can at least decrease your symptoms. On the legal side, you have essentially doomed your Social Security disability case. Every year millions of people apply for disability. So obviously just saying you are disabled will never be enough. The people who win benefits are those who have stayed in treatment, even if it was not very effective, and can point to a medical record showing their attempts to get better. Through being consistent with treatment and getting the support of your medical providers, you make it very hard for SSA to deny your claim.

If you are applying for Social Security disability benefits, make sure you avoid these three common mistakes. That way you have a strong chance of getting all of the benefits you deserve

Assuming your inability to work is due to medical problems, federal law identifies the time period necessary to claim disability. Under the Social Security Act in order to be considered disabled, you must have been out of work or be expected to be out of work due to medical problems for at least one year. That means if you have already been out of work for one year as a result of medical conditions, you would be eligible.

However, it is the second part of this definition which is the most important. Specifically, if you are expected to be unable to work for at least one year due to your medical conditions, then you are eligible immediately even if you have not been out of work for one day on the date you apply.

A lot of people call my office indicating that they want to apply for disability due to medical problems. They describe their medical conditions and explain how awful they are. I then ask how long they have been out of work. They say they still work full time. At that point I tell them they have no case at all. Before you can claim disability (an inability to work), you must generally not be working in any significant capacity. If you are still working then you cannot claim that you are unable to work. Again, you must have been out of work or be expected to be out of work for at least one year before you apply.

The toughest scenarios are when someone has been seriously injured but it is not entirely clear whether they will be out of work for a full year. My recommendation in that instance is always to apply and see what happens later. If you apply and later return to work before a year is up, then you can just drop your application at that time. If you end up not being able to work for a year or longer, then you will be glad that you got the process started already. If you are over 50 years of age, I would always recommend being on the safe side and applying for benefits as soon as possible.

Assuming these technical criteria are satisfied how does the Social Security Administration determine if you are disabled?

In every case, SSA uses a 5 step test in order to determine your disability.

1. They ask whether you are working under their rules. If you are working under their rules, then you lose. If you are working more than 10 hours a week and making more than minimum wage, SSA will likely conclude that you are working.
2. Assuming you are not working, SSA will ask whether you have a “severe” impairment. This sounds very serious, but it is not. This is one of many examples within the SSA disability system where words do not mean what you would think they mean. A “severe” impairment for SSA means any medical or psychological condition which has more than a minor effect on you. It is very unlikely that you will be denied at this step so long as you have some type of genuine medical condition.
3. SSA will compare your condition to a set of rules contained in their regulations called “the Listings.” “The Listings” include very specific medical criteria and are generally extremely complex. Many medical conditions are included in “the Listings,” but most are not. To meet a Listing, you must show a truly profound level of limitation, well beyond mere disability. If you meet or equal a listing, then the analysis ends and you are conclusively entitled to benefits.
4. Assuming your case has reached this step, you must prove an inability to do your prior work. You must prove not only the inability to do your prior job as you actually performed it, but also that you cannot do that job as it is generally performed in the national economy. Even if your old job no longer exists, if you are medically capable of doing it, then you will be found not disabled. As you can see some of the rules and regulations in this process are counter-intuitive. In many respects the disability adjudication process is a game and has little to do with things occurring in the real world.
5. Assuming you can no longer do your prior job, SSA will seek to determine whether you can perform other jobs that exist in the national economy. It is irrelevant that you may not be able to find such jobs or that an employer would not actually hire you for them. On the other hand, the rules at this fifth step are very favorable to those over 50 years of age if the case is handled properly. In fact, they may find you capable of other jobs and still find you disabled, if you can present a well-crafted argument. Again, these are just more aspects of the Social Security disability system which are divorced from real world factors and seem based on purely hypothetical considerations.

But they are the law and you must know these rules if you want to win. Assuming you can satisfy step five, then you are entitled to benefits.

Your case may be dependent on crafting the right argument at any of these 5 steps. Every case is different with strengths and weaknesses at probably each one of these 5 steps. In order to win, you need someone who can guide you through each of these 5 steps to get the outcome you desire.

Probably not.

If you do not treat regularly for your medical problems, you probably cannot win your case. There are some rare instances where this is not true. But generally you must be seeking active treatment for your condition to be considered disabled.

Many clients come to my office complaining of what they say are terrible medical problems. I ask how often they go to the doctor. They say never. I then tell them that they don’t have much of a case. Regular treatment is probably the most critical factor which makes Social Security judges willing to find someone disabled.

Many times clients in this situation raise two points:

1. There is no cure or effective treatment. The reality is that this doesn’t matter. In order to feel comfortable finding you disabled, generally a judge is going to want to see that you go for treatment regularly. Even if the treatment does nothing for you, without it you cannot win your case. Social Security judges are going to want to see that you go for treatment regularly and that you have consistently complained about similar problems over a long period of time. Sometimes clients tell me that they had a traumatic and terrible health problem 15 years ago. I ask whether they worked after that health problem. They say of course. I then tell them that they may have no case unless they can prove that their condition got much worse. Without treatment records from a doctor showing such a worsening, that may be impossible.
2. I don’t have health insurance. This is a serious problem. Without health insurance you cannot get the treatment documentation that you need in order to win your case. There are no easy solutions to this problem. One option is to apply for Welfare and attempt to get Medicaid coverage through the state. If you have too much money or assets, this may not be possible. A second option is to buy health insurance. However, many clients cannot afford this. At that point, the only possible hope is to find a treatment center which will offer free medical care.

It is a stark reality, but generally unless you are going for treatment regularly you probably cannot win your disability case. Whatever the reason is for not getting such treatment, it is very unlikely that one of Social Security’s judges will grant you benefits in such a situation. Treatment is absolutely necessary.