The Main Issue in Your Arthritis Case
The main issue in your Social Security disability case is whether or not you are able to work. Although you have to identify a medical reason for your inability to work, you will not win if you focus on the details of your medical condition. Instead, your focus must be the specific ways in which your ability to function has been limited by your arthritic condition.
What Actually Happens at Your Social Security Disability Hearing?
If you have been learning about the Social Security disability process, you are no doubt reading a lot about disability hearings. Since Social Security hearings are closed to the public, you most likely have never seen one or know what to expect. While individual judges conduct hearings slightly differently, there are some common features. Here is what you need to know:
SOCIAL SECURITY HEARINGS ARE NOT LIKE STATE COURT HEARINGS
If you have ever been to a state or superior court, or even traffic court, you know that courtrooms can be very active places. Attorneys may be milling around, witnesses and spectators are seated in pews, armed bailiffs are there to keep order, there may be a jury box, and these courts are open to the public – except in very limited circumstances, anyone can come to court and watch a trial.
You will not see any of these things in a Social Security disability hearing. Firstly, Social Security hearings are not open to the public. Only the claimant, his attorney and possibly one or two witnesses will be allowed in. Social Security hearings are administrative in nature rather than judicial. As such, the rules that apply in state court do not apply to the Social Security Administration.
THE RULES OF EVIDENCE ARE RELAXED
In a state court, judges spend a lot of their time making decisions about the admissability of evidence. For example, you may have seen criminal trials where certain physical evidence was not admitted because there was some question about the chain of possession or possible tainting of the evidence.
These evidentiary issues usually do not apply in Social Security cases. Administrative Law Judges typically allow in any evidence that you or your attorney may wish to submit. This includes photocopies, letters from witnesses, and hearsay – none of which would be allowed in state court.
Are Your Medical Records Sufficient?
Arthritis cases often include medical records like this: your medical records may consist twenty pages of office notes describing thirty office visits over a three year period of time. In each day’s entry, your doctor may write down how you reported feeling, his impressions as to redness, stiffness, or swelling. Your doctor also may note what medications you are taking, how well they seem to be working and whether he intends to refer you to a specialist for more tests.
What is missing here? These notes are perfectly good as documentation of your illness and your treatment. However, they may not help you in your Social Security case.
Social Security, remember, focuses on work activity limitations. There is nothing in these records about how much you can lift, how much you can carry, or how long you can sit. There is also no analysis of your pain in terms of the extent to which your pain interferes with concentration, or causes irritability that might cause tension with co-workers.
A Social Security adjudicator would not give these notes a second look as they do not even begin to suggest limitations on your functioning. Even an experienced Social Security Judge will not presume to guess about specific work limitations from this type of office note. Some judges may, however, recognize the significance of a long treatment history, and might be more inclined to accept limitations set out in your testimony. Other judges, however, are less inclined to believe anything unless it is in your record.
Using Social Security’s Special Language
In my law office, I would approach this problem by studying your medical record, then creating a checklist form (called a “functional capacity” form) that tracks most of your symptoms. My forms (which are based on the official Social Security forms) also include the specific functional limitations set forth in the judge’s handbook used by your Social Security Judge. Further, after representing claimants at hundreds of hearings, I have a sense about which vocational factors carry the most weight with judges.
Here are some examples:
- a mild pain limitation that causes some interference with concentration such that you would not be able to understand and carry out complex job instructions is not particularly limiting, since many jobs exist that only require you to understand and carry out simple job instructions.
- On the other hand a sitting and standing limitation that says you can stand only 5 minutes at a time and that you must lie down for 30 minutes every three hours is extremely significant since there are no jobs that would permit an unscheduled 30 minute break every three hours.
Sometimes, just having the right wording by your doctor in a report can make a huge difference in the outcome of your case.
Getting Cooperation from your Doctor
Your doctor may truly feel that you cannot work, but if he is not familiar with Social Security practice and procedure, he may not think to complete the most important questions contained in a functional capacity form. Every case is different, however, there are certain activity limitations that seem especially important to Social Security judges. As you might expect, these “threshold” activities relate to job reliability and minimal physical activities.
Over the years in my practice, I have run into some situations in which a client’s doctor “does not want to get involved.” Often this is the result of a bad experience with a legal case in the past – perhaps the doctor was forced to wait around the courthouse for hours, only to be brutally cross-examined by an aggressive lawyer. If your doctor expresses concern about getting involved in a Social Security case, you should explain to him that Social Security judges follow relaxed rules of evidence. Written reports or letters are almost always accepted. Live testimony by the doctor is extremely rare. Further, there is no cross-examination by a hostile lawyer – at the Administrative Law Judge level, there is no “government lawyer” on the other side.
In addition, if you are approved for Disability (Title II) benefits, you will become eligible for Medicare 24 months after your first date of Title II entitlement. Medicare, of course, can be a source of payment for your doctor, and may result in more cooperation.
My experience has been that most caring physicians will agree to spend ten or fifteen minutes to complete a form that can dramatically better your life. If your doctor refuses to cooperate or if he wants to charge you more than $50 to complete a functional capacity form, you may want to think about finding a more cooperative doctor.
Hearing Issues Unique to Arthritis cases
You should also be aware that many claimants – perhaps as many as half the claims filed – involve complaints of arthritis. Mild arthritis is a common ailment in most of the population over the age of 40. As a result, your Social Security Judge has seen a lot of claimants who complain of arthritis pain. Because of this experience, many judges tend to play down arthritis as a disabling condition.
Thus, if arthritis is your primary disabling condition, you and your attorney need to carefully prepare testimony and evidence to prove that your case is unusually severe and limiting.
If your case involves an unusually advanced case of osteoarthritis, or rheumatoid arthritis or inflammatory arthritis, or other rare forms of the disease, you may need to educate your Judge in order to win. Resources like the Rheumatoid Arthritis Support Network can provide helpful information to help you or a judge better understand what you are going through.
Preparing your Case File for a Hearing
My experience has also been that sometimes your doctor may simply use the term “arthritis” when he really should use a specific medical term that describes your specific diagnosis. Again, your doctor may not realize that someone else will be reading his office notes; thus terminology accuracy and specificity may not be a priority. Either you or your Social Security representative should review all office notes thoroughly ahead of time to insure that the medical records make sense.
Would you be surprised to know that most doctor’s notes are handwritten and difficult to read? In several instances, I have had to sit down with a nurse to “translate” notes so that they could be understood.
None of this is to suggest that a doctor with sloppy handwriting or sketchy office notes is not a good, caring physician. To the contrary, your doctor’s main focus is his treatment of you. His notes are simply reminders for him to review prior to your visits. For Social Security purposes, however, your doctor’s office notes can make or break your case – thus, in my practice, I see my role as one whereby I “translate” medical findings into specific work limitations.
How You Should Prepare for your Hearing
As a Social Security disability attorney, I believe that Social Security claimants are better off with lawyers than without. Since most cases do not involve up-front fees money should not be an issue. However, you are permitted to appear and argue your case on your own or with a non-attorney representative. If you proceed without an attorney, you will get the best results if you do the following:
- Review your file thoroughly – make sure that all records of medical treatment are present and up to date.
- Decide on a theory of disability – why are you unable to work. You should be able to boil this down to two or three sentences.
- Give the Judge specific information. Testimony that “it hurts a lot” or “I can’t walk very far” doesn’t say much. Testimony that “I can only stand and walk for 15 minutes every three hours” gives the Judge a specific vocational limitation.
- In my law office, I prepare for hearings by reviewing the claims file two to six weeks prior to the hearing and summarizing the claims information and medical records into a two or three page typewritten summary.
Summary: arthritis cases, more than other types of cases, require the claimant and attorney to clearly identify symptoms that limit activities, and to find support for these limitations in the medical record.