The Administrative Procedure

Requesting a Residual Functional Capacity from your Treating Physician

Published on: August 7, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

In our prior blog post we discussed how important it is to obtain supportive residual functional capacity questionnaires from one’s treating physicians. In this follow-up blog, we’ll advice you as to the best way to go about requesting these forms from your doctors.

First, and of primary importance, it’s important to understand that an ongoing, consistent and lengthy relationship with your provider should be established prior to requesting they provide you with a questionnaire. Your doctor is more interested in attempting to treat your condition and they want to see that this remains your priority as well.

In order to establish a claim for Social Security disability, one needs to show that they remain totally disabled from all forms of gainful employment, despite prescribed treatment, for what will be a year or longer. With this in mind, exhausting medical treatment avenues prior to seeking opinions from your physicians needs to remain one’s first priority. Continue Reading ›

How Substance Abuse can Adversely Impact one’s Social Security Disability Claim

Published on: July 25, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

The issue of substance abuse can come up in a variety of ways as part of a Social Security disability claim. It might be a circumstance, very routine in this day and age, where somebody is taking too much of their narcotic medication. Or, one might be taking medications that their friend or relative has suggested they try. And then, there’s the very common scenario seen by our office where an individual is smoking marijuana or drinking alcohol in order to help them sleep at night.

Each of above scenarios can serve to derail a Social Security disability claim. Understanding Social Security’s rules can help avoid the pitfalls we many times see individuals face as a result of the use of substances either not prescribed or in a manner that was not provided for by their physician(s).

There are two (2) provisions to keep in mind when considering an application for Social Security disability benefits. 20. C.F.R. §404.1530 provides that the Social Security Administration (SSA) will not find a claimant disabled if they, without good reason, fail to follow prescribed treatment. Likewise, the Social Security Act additionally provides that one cannot be found entitled to benefits if in fact drug addiction or alcoholism is found to be a “contributing factor material to the determination of disability.”

Collecting Social Security Disability Benefits and your Date Last Insured

Published on: July 10, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

To those who do not practice Social Security disability law, the acronym DLI (which stands for “Date Last Insured”) does not mean much. However, if you are looking into applying for Social Security disability insurance (SSDI) benefits, understanding this term and knowing its importance can prove critical.

The Social Security regulations require, in order for one to collect a Social Security disability check that you be “insured” for benefits. Much like one needs to pay a premium for car or health insurance in order to be insured, in the event you are in an accident or incur a medical bill, one needs to be insured at the point in time one becomes disabled from working. One’s DLI is the last day a disability claimant (who is claiming a disability other than blindness) meets the “insured” requirement for the disability program.

The Social Security Administration (SSA) will look to see if you have earned sufficient “quarters of coverage” (QOC) much in the way an insurance carrier would look to see if you’ve paid a premium in order to have coverage. One earns a “quarter of coverage” or a “credit” based on ones Social Security taxed earnings in a particular year. In 2017, a quarter of coverage or a credit is earned for each $1300.00 in Social Security taxed earnings you have posted to your Social Security record. Thus, by working for an employer who has paid you $5200.00 (or by claiming a net profit of $5200.00 as a self-employed individual) during the course of 2017, you will accrue 4 quarters of coverage. Continue Reading ›

Preparing for your Maine, MA or NH Social Security Disability Hearing, Part II

Published on: July 5, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

And so now you’ve been provided with your upcoming hearing date and time and you have no idea what to expect. In part II, we’ll attempt to make you feel comfortable about the hearing process itself and what you should expect on the day of your hearing.

You can expect you’ll be provided advanced notice of your hearing before an administrative law judge (ALJ) at least 75 days in advance. Ordinarily, 3-4 days prior to the hearing you’ll receive a recorded message explaining that you should show up to the hearing an hour in advance. It will be important to read carefully the notice of hearing you’ve been provided in the mail months in advance as it will contain important information such as where and when the hearing will be held, the items you should bring (such as a picture ID) and what issues will be addressed at hearing.

Upon arrival at the hearing office, you can expect to be met by a security guard who will check you in and will scan you for weapons. With this in mind, be sure not to bring with you anything that can be construed as a weapon: whether it be mace, a pocket knife or even needles you might require for your diabetes condition (leave this in your car, and should you need to test your sugars, plan on doing this outside of the hearing office location).

Preparing for your Maine, MA or NH Social Security Disability Hearing

Published on: June 26, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

You’ve filed your Request for Hearing and now you’re playing the waiting game, wondering what to expect next in your Social Security disability claim. Whether you’re in Maine, Massachusetts or New Hampshire, the wait can be a long one. In part 1 of this blog entry we’ll fill you in as to what you can expect. In part 2, we’ll make sure you understand soup to nuts what to expect on the day of your hearing.

First and foremost, it’s important to understand that whether you request a hearing following an initial denial letter out of New Hampshire, or a reconsideration denial out of Maine or Massachusetts, the hearing itself will not take place soon. The likely wait for a hearing is in the neighborhood of what can be anywhere from 8 to 12 months with the Massachusetts and New Hampshire hearing offices (although some hearings out of the Portland, Maine hearing office are still taking up to 14 months). Soon after you file your request for hearing (within ordinarily 2-4 weeks of filing your request for hearing) , you will receive a letter from Office of Disability Adjudication and Review (ODAR) acknowledging the hearing office’s receipt of your file.

The initial letter from the hearing office will inform you that you will be notified as to the time and place of your hearing at least 75 days in advance of the hearing. Likewise, the letter will explain to you that in some circumstances your case can be heard more quickly and efficiently by way of videoteleconference or what is termed a VTC hearing. Should you agree to proceed by way of VTC, this will mean that your case will not be heard in person before an Administrative Law Judge (ALJ). Instead, you will appear in front of a judge by way of a video camera, much in the same way that those charged with a crime and held in jail, might make a preliminary appearance before a judge for purposes of bail. While this process may be an expeditious one for the Social Security Administration’s (SSA’s) purpose, as they can assign and schedule cases before judges that are in other parts of the country that might not be as busy and can hear the case more quickly, this process is quite impersonal as you can well imagine. This is not to mention the fact that if your attorney is being asked to prepare before a judge with whom he has no familiarity, this may put your attorney and you at a disadvantage. You will be provided with only twenty (20) days to Object to Proceeding by way of VTC and so you do not want to miss this deadline. Our office always objects. Continue Reading ›

Initiating a Social Security Disability Claim in Maine, MA & NH: the Duration Requirement

Published on: June 20, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

One of the most typical misunderstood requirements for purposes of establishing a Social Security Disability claim is the duration requirement. The Social Security Act and its corresponding regulations require that one prove they are suffering from a severe medical impairment that has lasted or or expected to last 12 months or longer, or result in death. This provision has been interpreted quite strictly, and for anybody who is considering an application for Social Security disability benefits, it’s important to pay heed to this rule or a denial is very likely to follow.

The Social Security Act defines a “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §(d)(1)(A). It is important to recognize that the language of the statute is meant to exclude from entitlement conditions those conditions which are of shorter term duration, and which will allow one to return to work within a matter of months. For example, while having back surgery (even a multilevel fusion) may constitute a severe impairment which will cause one to be out of work for a stretch of time, most such surgeries would not anticipate a recovery time of a year or longer.

The more difficult type of situation comes about with conditions that may have periods of remission (with, for example, periods of exacerbation) which require you to remain out of work for stretches of time but might allow for returns to work for stretches of time. In such a circumstance, one may still be able to reach the duration requirement of a year or longer by establishing that the attempts to return to work are what are deemed to be unsuccessful work attempts: this is something an experienced Social Security disability lawyer will be able to evaluate for you. Continue Reading ›

Maine, Massachusetts and New Hampshire Social Security Lawyers: The Sometimes Difficult Decision Whether to Appeal a Social Security Decision

Published on: April 4, 2017 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

When pursuing a Social Security disability claim, it is important to understand that the disability determination process is not a perfect one. The majority of individuals are denied on their initial application, and, at the end of the appeals process, only 1 in 3 are ultimately approved for receipt of disability benefits. When a claimant receives a partially favorable decision of their claim, which is not entirely uncommon, there are some very important considerations to take into account before deciding whether you should appeal that decision. A wrong decision can prove to be devastating.

Receiving a partially favorable decision typically involves receiving a decision that means the Social Security Administration (SSA) has found you are “disabled” as that term is defined under Social Security’s rules, but that you are being found disabled with an onset date different than the one you alleged on your application for benefits. For a Social Security disability lawyer, properly advising a claimant as to whether to appeal that decision is not always an easy one.

Initially, it may be clear that because of the need to show that one has remained disabled from a “severe medically determinable impairment” that either has met a medical listing of impairment or had remained severe and disabling such that the individual will remain disabled from all forms of gainful employment for what will be or what has been a year or longer (or is likely to result in death) that either the condition was not diagnosed or treated until a later point in time (and so the proof of the condition simply does not exist at an earlier time). This may make the decision whether to appeal much easier.

The Use of Medical Experts by Administrative Law Judges in Social Security disability claims

Published on: September 23, 2016 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

There are a number of different scenarios in which one will find Administrative Law Judges (ALJ’s) in Social Security disability claims consult with medical experts. Understanding why such experts may be consulted and how their opinions may impact your case is important and can help relieve some of the stress involved with attending a hearing before an ALJ. Continue Reading ›

The Role of the Vocational Expert at the Administrative Hearing, Part II

Published on: August 9, 2016 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

In the first part of our blog series on Vocational Experts and their role in the Administrative Hearing process we explained the legal issues that arise in a Social Security disability claim and the manner in which an Administrative Law Judge (ALJ) will go through their sequential evaluation process and, if appropriate and necessary as part of that, utilize the services of a Vocational Expert (VE) at hearing. In Part II of this series, we’ll discuss the process by which a VE will prepare for and testify at the actual hearing. Continue Reading ›

The Role of the Vocational Expert at the Administrative Hearing, Part I

Published on: August 5, 2016 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

Should it become necessary to proceed to a hearing before an Administrative Law Judge (ALJ), Social Security disability claimants will typically see from their notice of hearing that a Vocational Expert has been called to testify at hearing. Understanding the role of the Vocational Expert (VE) at hearing goes hand in hand with understanding the hearing process generally and the process that the ALJ will go through in coming to a decision in their case. Continue Reading ›