Social Security Disability hearings follow a five-step sequential evaluation process where claimants must prove they cannot perform past relevant work (Step 4) and cannot perform any other work (Step 5), with the burden of proof shifting to the agency at Step 5. Successful claimants should adopt a respectful, non-entitled mindset, be specific about functional limitations (e.g., 'I can only stand for 10 minutes'), and understand that vocational experts rely on the judge's hypothetical questions about their residual functional capacity (RFC) to determine what work they can perform. Key evidence includes objective medical records, physical therapy documentation, and consultative evaluations that demonstrate the severity of impairments and their impact on work capacity.
Social Security Disability Livestream - tonight at 8:45pm ET
Added:[music] [music] [music] [music] [music] [music] [music] [music] [music] Good evening everybody. Hope you are all doing well. This is Jonathan Ginsburg.
It is July 22nd, 2026. Hard to believe we are already in third week of of July, 2026. The weeks just keep zooming by, but that's uh I guess that's what happened when you uh when you're having a good time. So anyway, I hope you're all doing well, staying cool. Um we are going to talk about a lot of different things tonight. I've scheduled to have a guest um attorney Jeffrey Herman. I don't see him in the waiting room yet, but hopefully he will appear along with a parallegal in his office. Hopefully they'll make it. If not, we'll do it another time, but uh hope that they do show do appear uh because a good friend of mine and uh hoping we can uh get into some interesting questions. Ah, it looks like they have arrived. Um his uh parallegal Sydney is here, it looks like. So, I'm going to go ahead and add Sydney to the stage.
Ah, Sydney, how are you doing? Hi, Jonathan. I am doing well. How are you?
>> I'm doing great. I'm doing great. I was just telling everybody I I had you scheduled for tonight. I didn't see you.
I'm like, I'm hoping you come, but I'm glad you did. So, um uh you know, if you've had a chance to watch a couple of these, what we do is we answer questions from folks um about Social Security things. But, you know, I always like to do when I have a guest, I kind of go through just a couple of things that I thought were just kind of on my mind.
I'd just be curious to how you might answer some of these questions. Um, and I guess you I know well actually let's before we do that tell us about you and I know you just got your um EDPNA certification which means that you are authorized now to try cases. First of all tell everybody what an EDPNA certification is.
>> Uh yes. So that allows non attorney reps to represent clients in court. It means that as long as you pass the EDPNA exam, you are authorized to do so. Uh you do have to have a couple of other requirements in order to take that exam.
However, uh one of those requirements being a 4-year degree or four years of relevant experience. You can have one or the other or both.
>> Okay. And obviously it looks like Jeff has arrived as well. So let's go ahead and add in two as well. Uh Jeff, how are you doing?
>> Doing great. How you doing, Jonathan?
Good to see you.
>> I'm doing I'm doing good. And Sydney is here as well. We're just talking about what a EDPNA certification is, and she was telling us what that means. And obviously, uh you know, the thing about social security, which is kind of unique, is that you don't have to be an attorney or a rep or have any qualifications, you know, formal qualifications to handle social security cases. I think people that don't, you know, they have their next door neighbor or the kid down the street, they're asking for trouble.
Um, and as Sydney was saying, when you go through the certification, you have a test, um, you know, at least you have, uh, you've done this in four years of of of college or four years, but I suspect most people it's four years of experience, and that really goes a long way to helping people, uh, know what they're doing because this is not a practice area you can dabble in. That's my feeling. I I suspect you feel the same way.
>> I certainly do. I I agree 100%.
>> All right. So, what I'd like to do is since I have both of you here, let's uh let me find my notes here, which I'm having trouble. Oh, okay. Just a couple of things I just wanted to ask. I I a lot of times I'll ask people who are in practice. Um let's just talk about preparing people for a hearing. Um, and I don't know necessarily want to I mean, we all talk about, you know, what the judge is going to say. The phone's going to ring and the judge is going to ask you your name and things like that.
That's not what I'm talking about.
What's the approach that a client or a claimant should take? For example, I always tell my clients, never have an attitude of entitlement. Never feel like you've decided you're disabled and, you know, you just want the judge to verify that you feel, you know, that you're entitled to disability. Or a second thing I always tell people is let the judge know, hey, if I could go back to work, I would. I think that really enhances credibility. Are there things like that that you tell your clients to sort of help them establish a rapport with the judge to show that they're motivated, they have the right mindset?
>> Yeah, that's that's a that's a good question. Um we you know as a firm we we follow um like an [clears throat] overall outline when we prepare every client so that from top to bottom we do have a a system in place and among some of the tips we give. We always tell clients that uh number one be respectful of the judge when you do address the judge judge in your honor. Um, number two, uh, we always encourage our clients to, uh, don't let their personal pride or other feelings about the government or the system get in the way of their disability claim and really the truth of the nature of their limitations.
Uh, we always tell clients, don't don't sound like you're reading from your notes. The best responses are the ones that are more natural and candid, and you're really just being honest with the judge.
Uh we also tell a client that you know everybody no matter what they're going through they have good days and bad but you should try to climb into the mindset of of it being a bad day when you do provide [clears throat] answers to the common questions that arise.
Um I it's kind of a fine line. I don't know how you find Jonathan and we know it's an informal proceeding but still their testimony does matter. So I I I don't want to lull a client into a false sense of because it sounds informal.
Maybe they can get overly conversational.
>> Yep.
>> Generally speaking, you know, in law, the more you talk, the more you give yourself some rope to hang yourself with. So >> yeah, >> we still want, you know, we want our clients to take this as serious as possible and we don't need to tell them that. They they already know. But don't don't don't let the informality of the proceeding lull you into a false sense of you know overconfidence or oversharing I would say.
>> Okay. Um yeah I think that um you know one of the things I have people sometimes will say as well my meeting is scheduled for you know next Tuesday.
It's not a meeting it's a hearing. I mean the this is a a it's an administrative law judge hearing but this is a judge. It's not a a judge like you'd see in in state court, but this is a judge and it's your honor. And you know, I I' I've had a couple clients over the years try to make jokes. This is not a place to show you're, you know, you're a frustrated stand-up comedian.
Most judges are not looking for a chuckle. Um, and yeah, you got to just take it very, very seriously. And one of the points you made, I think it's really important for everybody to understand is, you know, well, two points you made.
One is don't be a hero. I mean, you know, especially for men, it's very hard if you've been, you know, you played football in high school, you're very athletic to say, "I can't lift 10 pounds." Um, or people say, "I could probably lift 30 lift 30 or 40 pounds, but you got three herniated discs. You really can't lift 30 or 40 pounds." I think that's um something you have to just really come to terms with that you don't want to over exaggerate but you don't you don't want to exaggerate what you can do because many times you really can't do it. And the second point is when you talk about what you could do this is not if a gun was at your head.
You could do it one time and then you'd be in your bed for three weeks. This is doing something physical. Let's take the physical part of it day after day, week after week, month after month. That's what you got to really focus on. um because otherwise I think you just um you know you're going to give the wrong impression um and you know you have to be truthful but the other hand you don't want to exaggerate. I had a case a few several months ago judge says to my client how much can you lift? Oh about one pound and the judge is like no no no are you sure that's what you want to say? Kept asking him you know yeah just one pound. He asked him about four times. Are you sure? And finally they got the my client got the picture it's like okay maybe four or five pound by then the damage was done and it just did not have any credibility uh there right so um you know that is certainly an issue and one thing we didn't talk about by the way is your firm desert disability you're in the Phoenix area if I'm not mistaken >> that's correct yes >> okay do you do cases outside of Arizona uh or just pretty much in the southwest where where maybe focus >> we do I mean we have we got a trickle of clients through um other [clears throat] southwestern states, Utah, California, Nevada, and then as you know, the disability process does take time. So, a lot of our clients wind up moving out of state when they start here in Arizona.
So, >> um basically the Southwest area though we do get some clients in.
>> Got it. Got it. Sydney, you know, I know you you obviously've worked with Jeff for a while. Um let me ask this to you because this is a question that comes up a lot in my my practice. Um, back pain cases, that's the most common reason people file for disability. What separates a winning back pain case in your mind from one that is just it's just too mild. It's not going to not going to move the meter. What's your take on that?
>> And what do you mean by back pay case?
Are you saying a case >> back pain spinal >> back pain?
>> Yeah, I'm sorry. Back pain, back, neck, things like that. because we see a lot of people, you know, they they come in, I've got a bad back and you know, it could be a herniated disc, it could be a bulging disc. What's your take on on how do you differentiate the winners from the losers?
>> Yeah. So, I think with back pain, some of the best evidence is going to come from the objective imaging and what the impression and results show. Anytime we see moderate to severe, we know that we're working with a stronger case.
Additionally, uh physical therapy records. If a client has a lot of those, that's a great way to determine if the case is strong or not because they're constantly testing their functional limitations when they go to PT. Um, so I would say those two things.
>> Okay. Yeah, I think physical therapy, that's actually a very good point because physical therapists are focused on functionality, which is ultimately what the issue in a disability case is.
Um I would add to that you know doctors typically would put somebody if they have neck back uh you know lower back neck midback uh cases they'll start them out with maybe rest and then they may go physical therapy then they may go epidurals or facet blocks or radio frequency ablation then surgery. So you sort of see that path and ultimately if they end up where surgery is the option or long-term pain management that to me is it says that this is a case where the person really is not going to be able to work because they're either facing surgery and by the way as you as you both know you don't have to have surgery. You can say I don't want to take the risk because the the uh implications are you know the the possibility of a bad result is is too significant. um or long-term pain management where they're on pain meds and obviously if you're on narcotic pain meds you're not going to be too useful in any kind of job. So I look for that progression but I think that it's a good point the PT notes are going to really talk about uh the functionality as well.
Um Jeeoff any thoughts on your mind to add to that?
>> I agree with Sydney's points. Um >> we look for also any nerve involvement.
Uh if there's any radicular pain into the arms or legs, uh always encourage clients to get those EMGs or nerve conduction studies to show that. And [clears throat] then of course it's you know the if back is the major disabling condition then it's looking at the other factors of the case age past relevant work and we can you go from the back to find ways to perhaps knock out you know past relevant work if there's heavy hand use and you got that cervical radiculopathy.
Um, so I remember one case in particular, this was many years ago and the client was over 55 and he was a portrait photographer >> and he had, you know, a very severe back condition, but he traveled a bit and he still did some physical activities and it it really was a step four case, you know, purely and we really got into >> past relevant work. Could he do past relevant work? Right.
>> And it it was one of those cases where just the unique nature of being a portrait photographer involved a lot of kneeling um to frame that camera and all that. And we really had to develop just the additional postural limitations, not just the standard standing and walking and lifting and carrying, but also the kneeling and the crouching that you you have to do to be a portrait photographer. And we w up winning that case, but it really was a very in-depth analysis.
>> Yep. Well, you know, and and the other thing everybody that we talk about this a lot on our liveream is that Social Security still uses um as a resource to determine job requirements or job um I guess functional requirements the dictionary of occupational titles or the DOT which you can look at occupationalinfo.org.
It is like what 40 years outdated. I think it was last updated7 19 you know I don't Sydney probably weren't even born when this thing was last updated.
>> I wasn't even born.
>> Yeah. you know, um but uh you know, it's it's a um you know, just terribly outdated and you know, they still use it. And one of the things that I look at a lot is a um the form that people fill out where they describe what they had to do because that's, you know, description of their actual job requirements. And then, you know, that's where the vocational witness can come in, you know, and testify about how something has changed. you can ask them, you know, being a portrait photographer, although that's probably one area where I suspect that the equipment has gotten lighter, but on the other hand, you know, there's more stuff to carry around. So, it's probably a lot different. I mean, no question. You know, back in 1980, there was no digital photography. Um, and and the, you know, they probably use natural lights, whereas now they may carry around lights because they're more portable, although the equipment may be lighter. So, you know, very different type of thing. And of course, you know, a portrait photographer in a studio versus one in the field, very, very different things. So, um, that's where you want to really develop that with a vocational witness. And we actually have a question from Hak Assad. Hawk is a, um, a regular visitor here. Uh, and I appreciate the kind words. He says, "Hope you're doing well and thanks in advance." And he said that he's got a hearing coming up, I believe, in maybe September, August or September. He said the ALJ posted the VE's resume, the vocational experts resume to his account um or the notice says that they will post it 20 days ahead ahead of time.
What's the significance of having the VE's resume posted and how do you use that in my preparation for a hearing? Um and what if the VE's resume is not provided? Um so how would you answer that? What do you do if anything? And I have my opinions and I'll tell you in a second, but about the VE's resume, is that a relevant factor for you at all?
>> Uh, the VE's resume.
>> Yep.
>> I'll be honest. Um, [clears throat] I I'll glance through the VE resume. I I tend to see a lot of the same VES repeatedly, so I know what to expect.
But if it's a brand new VE, I do look through their resume. I look for the kind of how recent their experience is uh and if they have any specialties and if that specialty happens to be outside of the field of you know my client's past relevant work um that may cause me a little you know pause and want to prepare um you know just a couple of questions to the VE before I stipulate to allow them to testify as an expert.
But more often than not, I I just stipulate to the VE if I >> I was going to say I I kind of take the same approach is that I think the VE is I always tell my clients, look, the VE is not there to help you or hurt you.
The VE is there to answer questions from the judge. And if the judge asks the VE a question and the limitations are very very minimal, very mild limitations um you know that are not workclusive, the VE is going to say there is plenty there plenty of jobs they could do. If the question is, you know, the person's off task 20% of the day or, you know, they can't lift more than five pounds and there's no transferable skills and they're 55 years old, they meet the grids, then you're probably going to win. So, I don't worry about the VE too much. The only time, and I I would agree with you, I look at the resume. The only time it gives me pause is if I see a VE whose only experience is in the classroom. They haven't been in the field. They haven't placed anybody. And you know, one of the things that that you know, we notice and and you know, doing this is there are different approaches to ve testimony and how to cross-examine them. There's a school of thought in the social security, you know, the attorney advocate world where some people take a very very aggressive approach in cross-examining the vees. I mean, the Noscar bulletin, there's a a guy has a regular column, very bright attorney, has a regular column about how to go after vees with certain jobs and, you know, and I think there's a place for that. If the VE is coming up with jobs that are clearly obsolete, you know, you could you go after them. But I think if you're if you're fighting the VE about, you know, their qualifications or the numbers they come up with, you know, you're rearranging deck chairs in the Titanic. You know, I just I don't think that it's it's really all that fruitful to go there because judges don't like it. These hearings are designed for 45 minutes. You spend 20 minutes cross-examining the VE about their qualifications or how they came up with numbers. You know, I don't know.
I'm not sure if that's the best use of your time. Now, again, on the on the opposite side, you know, there are attorneys who will say, you know, you can because the vees may may refer to something called the sock codes. I guess the selected occupational characteristics and doesn't line up with the DOT and theoretically you could have multiple sock codes in a for every DOT code and so theoretically if the VE gives job estimates of a 100,000 jobs but in fact you know they're all concentrated in one or two sock codes and your client's you know sock code is a different one that 100,000 jobs may actually be a thousand jobs which is not vocationally relevant. You can get into all that and and you know and again the argument would be if you don't raise it at the hearing you know it's harder to raise it on appeal again I I just think that if you're having to fight a ve over job numbers you're already behind the eightball judges are going to find a way to deny the case and if they're sloppy and they use sloppy ve testimony and it gets remanded to the same judge they just come up with another reason to deny it.
So I I'm just not of the my practice is not um to really go after VE real aggressively. That so I would kind of agree. Sydney, do when you in training, what do they tell you about VE testimony and how to deal with VES?
>> Yeah. So Jeff has provided a lot of different uh training with the crossexamination, but I agree you do not want to upset the VE during a hearing.
that's probably not going to go well for you and more than likely the judge is going to agree with whatever that vocational expert testifies to.
>> Yeah.
>> Um so I think it's important to be careful. Reviewing the resume does not make too much of a difference. Uh, like Jeff said, we do kind of glance at it, go through it, but I was curious for you. Um, if you see that a V ve has, um, vocational rehabilitation on their resume, do you feel like they're going to be more supportive for the client because they understand them better?
>> I I don't know. Again, I just I have never found vees to really have a an agenda. That's been my experience. I mean, most of them are there to provide testimony, answer questions from the judge. Every once in a while, you'll hear a ve you can kind of tell that they believe the claimant and that they are trying to help the claimant, you know, in every way in the way they can. um you know and they may be a little more um reluctant to find jobs or they may take a uh the judges question and and give it an interpretation that's more favorable.
I rarely see vees that are just object or just clearly hostile to a claimment.
Um, so if anything, you know, a a VE is probably going to be and maybe the ones that have done vocational rehab that kind of understand how difficult it is when you've been deconditioned from work to get back in the workforce two or three or four years later. Um, it can be a real problem and I think some realize that. I had a hearing the other day where, you know, the judge asked a question. I thought it was a I think it's I think it's a good case. Um the judge asked only one question. It was like 5% off task or you know how many days of work could they miss and that you know it would be one day every 3 months or something like which wasn't really work preclusive. My question to the VE not in a hostile way was you know do do not or is it not is it not true that semi-skilled jobs or even unskilled jobs have a probationary period and during that probationary period you know would you know if it lasts three months would even one day off missed be a problem? Would would there be a higher standard in terms of being off task? And the VU says, "Well, yeah, probably." So, and again, I did that just to kind of protect it for appeal. But, yeah, I don't I don't find that vees are are inherently host hostile. I just think they are they're there to answer questions for the judge. Um, you know, I think the judges kind of know what the vees are going to say. Um, I have had over the years, I think twice in 30ome years where a judge literally adjourned the hearing because the VE was so completely out to lunch. I mean making no sense at all. I mean it was just bizarre. Um and the judge is like well you know I think we need to adjourn this hearing and you know actually called me later and said I had to do that because this ve is was it was a woman who was you know unfortunately a little bit older and I think was not mentally 100% there and um you know the judge is just like you know this there's no point in going through this because you know it's she's clearly not able to give testimony. But for the most part, I don't I don't get the sense that VUS are there to hurt you. I just think they're there to give testimony. But I I would agree with what we all have said is that I don't spend a lot of time looking at the resume. I'll glance at it. If it's something that jumps out at me, okay, but I'm not going to in my practice, I don't find how going after VES, you know, based on their their credentials or the numbers they come up with has really ever done any good for me. But that's just been my experience.
Okay. Um, let's see what else we got here.
Okay. Peter Potencus says, "Thanks for all you do." You're welcome, Peter. My question, this is a good one because, and this is it's a little different because basically just his question is, "How does a new Social Security lawyer start out?" Meaning it takes most cases many years to hopefully win. How does a new lawyer like yourself stay afloat in the meantime at the beginning? And obviously Sydney, you're working with Jeff, so it's not like you're starting out from jump street.
Um, you know, my take on that is it is um difficult because if you are starting out and this is all you do and and I do um I have a couple lawyers that I've mentored over the years that are starting out, it's hard because you know, you don't see any cash flow maybe for two years and then it starts real slowly. Um, the best advice I would give would be, you know, you have to find something else to do while you're waiting for the cases to turn over. Um, you know, one thing that the people do if they've got experience, they could do contract work. There are a lot of firms that will hire contract lawyers um to do hearings. Um, there's some non- attorney reps I know that hire contract lawyers.
I've done some of those. There's some, you know, insurance companies will hire contract reps, attorneys or or or uh non- attorney reps to do hearings.
That's that's one way to do it. I know people who do brief writing. Um that's a way to do it or they hire themselves out to do case development or the other thing is they, you know, find other areas of law. I mean, I did bankruptcy work for years and years. Um, and even though it's difficult because it's the fees are not real high, you know, it's pretty quick. I mean, you do a chapter 7, it's going to be $15 $1,800, you know, when you do a case. And so, you know, if you have, you know, two or three or four of those a month, you can at least keep the bills paid. But, yeah, it's hard. Jeff, how would you answer that if you're talking to somebody who's brand new?
>> Yeah, that that is a great question. Uh, and it is hard. There's no two ways about it. I personally was uh fortunate in the sense that I began practicing law in 2014 and I [clears throat] had a separate practice different area of law and then I transitioned into disability law in 2018. So I already had um some some funds lined up and I you know recognized it's going to take a couple years to really build a pipeline and see the fruits of the work that you do.
Um, I would say, you know, if there's a couple ways to go about kind of supporting yourself while you're just getting started. Uh, the first being, like Jonathan said, look to do some contract work for some other firms.
There's a lot of firms that have overflow work or they need some help at the hearing level. So, you can advertise yourself. You can contact some of these firms to ask if they do have any overflow work to get some of that hearing experience as well. Um, you can also focus advertising on trying to find clients that are on appeals versus the initial. So, you're a little closer to the um, end of the claim. Um, and then other types of work that is perhaps non-disability related. But the the, you know, the nice part about being in practice for yourself is you do set your own schedule. So, you can clear up time in your work week for other things you could be doing to uh, for gainful activity. So, yeah.
>> Yep. Yep. No, I think it's it's you know and I think you know there there's this perception you know all lawyers you know are rich and make all this money you know it's it's you like anything else you got to build it up and it's it's it's not easy I mean there's a lot of competition out there a lot of people spending a ton of money on advertising it's very hard to find you know a way to cut through the clutter um you know now one thing you said which you know you got to be careful about is you know if you say I'm going to take on you know doing some hearing work. You know, you got to learn how to do it. I mean, it's um you know, I remember my first hearing many, many years ago, I was scared to death. I didn't know what to expect. And um you know, the one nice thing now is that they record all of the hearings.
And so, you know, if you find an attorney, and I think one of the things would be useful to do is if you're starting out as an attorney or non- attorney rep for that matter, you know, try to find a mentor, somebody who's done it, and, you know, ask them for advice. I mean, again, people call me and I'm happy to to help them, you know, to the extent I have time. Um, but one thing that's that I find is helpful is, you know, listen to some hearing um trans some hearing recordings. Again, you got everybody's permission to do it.
But, you know, if let's say, you know, I somebody was to call me and say, I I'm learning this area. I want to sort of know what I'm doing. I might ask a couple of my clients, do you mind if I share the audio? Some would say no, and some would say, sure. And, you know, if I had two or three that were okay with it, and of course, the person, you know, listening to it would have to sign a confidentiality and so forth. But, assuming everybody's okay with it, you know, listen to a few hearings. um and get a sense of what goes on. Um you know, even better if you have somebody that's kind of your mentor, see if that you can you can sit in on hearings. Um I've I did that. I remember I used to do that with live hearings. I would bring a new attorney with me. They would sit in the back and watch the hearing and you know, they just kind of get a sense of it. But yeah, at some point you got to do your first one. um you know as a client you don't necessarily want to be that that person's first hearing but um you know um I would say that what I would do is you know there there are certain cases maybe that are a little more challenging um that a lot of attorneys won't take for example SSI cases are many attorneys don't want to take them because there's not a lot of fees in them you know maybe that would be a way to kind of get some experience take the case if you're starting out you know you're probably not going to make very much money the client would have to be okay with it that let it you let them know that you're kind of new at this but you've done your due diligence and you know get some experience doing it that way. It's not this is not a I don't think this is a really hard area because the law is the law. I mean it's basically you're trying to prove that somebody can't work. Um there different theory, you know, three theories of disability, you know, they meet a listing, which usually they're not going to meet at a hearing, they meet a grid rule or their functional capacity so reduce their capacity to work. There's no jobs that exist. And you know, you do your homework. It's just not especially difficult. It's just you got to just sort of know how to proceed and how to ask questions. And again, getting a good mentor, somebody who can help you is a good way to do that. But yeah, cash flow-wise it can be can be a challenge.
There's no question about it. No question about it. Um, all right. Sonia Stringfellow says, "Hello from Chicago."
Hello, Sonia. Hope you're doing well.
I've got Ron Kimbro from Arlington, Texas. I assume it's somewhat warm in Arlington, Texas because it's somewhat warm here. Um, and uh Sonia says, "Hello." Oh, I think she said Cindy. He thinks she means Sydney. Um, but okay, we got hello from Puerto Rico. Juan Gonzalez, hello from Puerto Rico. Baxter is one of my regulars. I have an intractable seizure disorder, medication resistance, and take two high dosage anti-seizure meds. How much weight would that hold in an SSDI case? Okay, so seizure cases are a little bit of a challenge. Um because in my experience, you know, there's really unless that you wear some sort of a monitor, it's very hard to know objectively how often somebody has seizures. How do you guys approach seizure cases?
>> Yeah, we we also agree with that. Uh we have had quite a number of seizure cases and uh we've won a bunch, we've lost a bunch. Typically the the theory of the case is fairly straightforward. If you don't meet the the listing for epilepsy or a seizure disorder, you're really arguing that [clears throat] these uncontrolled seizures are happening despite treatment with a neurologist and trying different medications. But because a person's having seizures beyond their control, they would have to take too many breaks from work. They'd be absent from work. They're also a liability at work. So there's the theories are there. It's a question of is there enough evidence to prove to the judge that the seizure disorder is real?
Yep.
>> And the the the vast majority of clients that we've seen with seizure disorders, they are legitimate seizures, but we've also had a couple of clients few and far between where it's more sematic and the seizure activity, I mean, it's not shown up on EKG or EEGs, >> and occasionally clients will take videos or photographs and they'll send it to us. and we're not doctors, but when we look at some of the evidence that they're providing, we can tell it's it doesn't appear to be a seizure.
>> Um, so [clears throat] I um I'd say from my side, and I'd like to hear Sydney as well, but um what I typically tell clients is uh you know, try your best to you know, if you have to take a few of these EEG tests just to, you know, hopefully one or two will show that there's some abnormal activity. Next best is to try to build a record with as many third-party statements, witnesses.
Um, some of the best, you know, secondary evidence are going to be observations from doctors. So, a lot of times clients with seizures, they wind up going to the ER and some of those doctors that initially, you know, see the patient, they note in the progress notes some seizure activity. So, we'll call that out. Um Sid, what what else do we do you think that we do?
>> Yeah, so I think that you did name all of it. Um some of the most important evidence is going to be that EEG is anything showing up on it. Um but more often than not, we do find that those results come back normal. So like Jeff said, you need to supplement, supplement, supplement. Get those witness statements in. Have people talk about how they've seen your seizure affect you. Talk about what happens. We also want to find out, you know, what the severity of those seizures is. Are they biting their tongue? How long is it lasting? What is the recovery process like? Because if someone has a one minute seizure, but it takes them three hours to recover, they're going to be out of work. And additionally, we ask clients to document their seizures uh whether that be by video in a seizure diary and to make sure that they are reporting those to their doctors. That way when the judge looks at the medical records, they can see how frequently that person is actually having a seizure.
>> Yeah. I think, you know, Jeeoff, one of the things you said uh really resonates with me is the word seizure sometimes takes on a very broad definition. I mean, a seizure medically would be, you know, where you lose control. I mean, you really have no control of, you know, your either your body or your mind or whatever it may be. I've had people tell I have seizures and it's, you know, where they're staring straight ahead, you know, but again, without evidence and objective evidence and one of the themes that that, you know, all of us really focus on is objective evidence.
If you don't have objective evidence, it's really really hard to to win because I think this is one of these conditions that people use the term a little fast and loose at times. And I think it's can it can be it can be um you know judges can can be a little cynical about it. Now I would a second point though and I think Baxter um you know you sort of talk about it you're taking two high dosages of medications that's actually pretty relevant to me because you know when a doctor prescribes high dosage of medication um that means the doctor is accepts the fact that you're having seizures and the medications to control seizures are are you know pretty powerful and they're going to have significant side effects.
So, you're taking two high dosage anti-seizure medications. That says to me that there's, you know, something going on here that would work in your favor. Um, but, you know, you're also working against you is the is the reality that judges see a lot of people claiming seizures. you know, just like they claim fibromyalgia, they claim fatigue, but you know, it's it's sort of this generalized term, you know, let's call it a lowercase S with a seizure, but a a seizure that is an epileptic seizure or neurologically based seizure is really what judges are looking for.
And that's where, you know, the the high dosage medication would come into play.
>> And I would add one one final point there, too. Um just as as you've seen as well, I'm sure Jonathan, like certain cases, certain conditions, they tend to have a certain overall profile to them.
>> And something that we've seen with, you know, seizure disorder type cases is a lot of times our clients will have a lot of unsuccessful work attempts. They they just have a difficult time sustaining work, but they keep trying because they keep having these seizure activities while at work. And that that's generally why the job ends. So I tend to see that a lot with seizure cases, just a lot of shortlived jobs.
>> Yep. And that that's actually good evidence as well. Um you just mentioned something that really brought something to mind in in terms of you know just approaching cases and that was profile and my experience has been that judges when they see a case and if I was a judge I would do this too a back pain case there's a certain in their mind what they expect to see to pay a back pain case or or neck pain case if it's a cardiac case they have certain expectations.
So, you know, part of what a rep can do for you is, you know, if you try enough cases, you kind of know what these profiles look like. There may be informal and every judge is going to be a little bit different, but, you know, I know if I'm going to pursue a low back pain case, there better be an MRI in there, and it needs to show something.
That's what judges expect. There needs to be, you know, physical therapy and epidurals and maybe a surgical order.
Those are the things that kind of meet that profile. Um, and if you go in and you're saying, you know, let's let's go back to the seizures. You know, I have these seizures, but that it doesn't meet the profile the judge had in mind. Um, that is going to be a problem. So, you know, you're you know, you if you're pursuing disability, you're focused on what's going on in your life. what you what a representative does for you is to say, "Let's step back and look at your case in light of all the other cases I've handled and are you meeting that profile?" And if you're not, you know, you're going to have a real uphill battle. Um, you know, and I will tell you one of the things that I think is a really, really important two things that are really important every case. Your age is much easier to win when you're over 50 and even more so over 55. A 35-year-old is gonna have a really tough time no matter what the condition is.
And I think work experience is really important. I've had judges tell me that somebody comes in with 25 or 30 years of work experience, that means something.
That person's credibility is is going to be higher. Even though they can't judge can't say that, let's say on the record, it makes a difference. So, you know, having a sense of of what it takes to win cases um just by because you've done enough of them. You know, for example, in a negative way, um I have tried a number of fibromyalgia cases over the years. I have never won a fibro case for a male. Now, maybe that's just me, but I've never seen a male fibromyalgia patient win disability. I I think judges expect it to be a female for whatever reason. my experience, maybe you had different experience, but just things like that. So, if somebody reaches out to me and they're a man claiming fibromyalgia, probably not going to take that case because it's just I've not had any success with it. U would you agree that that these you know, do you have I assume you have profiles in your mind when you're talking to people as far as whether this is a case that could be won or not.
>> Oh yeah, 100%. Um, and in fact, I would echo that uh [clears throat] on the profile for fibromyalgia cases. I don't think we've ever um had a client with fibromyalgia be approved. Sydney, correct me if I'm wrong.
>> You're wrong. There was one and he was a male, but he also had severe back pain.
>> Okay. Now, I've won a few I've won a number of women. Um and I think you know the the generally my approach my look and I don't want to get into a whole discussion about fibromyalgia but you know what I find a lot of times it's very high achieving typea women who have who who've achieved professional success at a level much higher than their education or training would otherwise allow for. they've kind of just, you know, they've really been high achievers and it's almost like there's a it's almost like a mental shock reaction. It almost seems like that, you know, they just they've been, you know, playing the game so long and so hard and working at 100% so long um that they just kind of burn out. It's that that's kind of what I find. Um and a lot of my fibro clients are very organized. They'll come in with notebooks that are labeled and tabbed with all their medical appointments.
They've gone from doctor to doctor and you know I am I have no doubt they are truly suffering and and judges sometimes will will approve those cases. The problem with fibro fibromyalgia is that it was so overused a number of years ago that many judges just kind of you know they just kind of you know put their hand on their heads when they they see it because it's so overused. But a legitimate fibro case with the rheumatologist, you know, support um can be a winning case because it is very very real. And you know, I've known people that have had it and it is devastating. You can't function. Um but again, proving it, how do you prove it?
You know, that that's that's the real issue.
>> That's real issue. All right, Sydney, looks like one of somebody in your fan club is here. Son Janna is there. Um, okay. Um, Big Ta. Um, okay. Big Ta received his brief yesterday from his federal appeals attorney. You know what kind of timeline I'm looking at from this point? So, it it would appear that, um, Big Ta is in federal court. Um, and by the way, you know, so everybody knows, you know, the disability process, you file your application. That's called the initial application. usually takes about 8 to 12 months to get a decision depending on where you are could be a little less could be a little more. you if you lose there which you know 65% 70% of people are not going to get approved at initial you file what is called a reconsideration appeal the first appeal another 6 7 8 10 months you lose it recon you file request for an ALJ hearing seven or eight months you get the ALJ doesn't see it your way you're denied you file an appeal to the appeals council um that could take two or three months it could take a year just depends on their their how busy they If you lose with the appeals council, you can then file case take a case to federal court.
I personally don't do federal court work. I' I've done a little bit of it.
It's a different enough practice for me that I don't do it. I refer it out, but it is the people that many of the people that do it are, you know, they there's they're citing case law. They've got to know the case in their particular circuit. Um it can take I don't know what do you what do you find? year, eight months a year to get a decision out of federal court.
>> Yeah, [clears throat] I'd agree with that. Um, we've had a probably about 10 to 12 federal remands over the last few years. And yeah, generally after an appeals council denies and then uh we same thing as well, we we don't handle federal appeals in house. We have a a couple really sharp attorneys that we refer that work to. And it's nice because when they do um you know when they get the job done at the federal level and we get a remand the the client does return to our firm and it's always nice to get another opportunity um to get that claim approved and I I don't know how much truth there is to this but it does feel like we're at more of an advantage when there is a federal remand. Perhaps there's more pressure on the judge. Mhm.
>> Um, it depends, of course, on the underlying issue. If it's poor audio quality the first time or if it's a non really a non-factor, but still a a technical reason that warrants a remand, it may not make a big difference in the overall um claim. But more often than not, we we've had pretty good success with the federal cases. Yeah, that question comes up here sometimes is, you know, if a judge if if you appeal a judge, an ALJ, and it goes to appeals council or federal court, then it gets remanded back. Number one, is the judge going to be upset that you appealed him or her? The second question is, do you have an advantage or not? My answer would be, I don't think the judges take it personally. We're representing our clients zealously, which is what we got to do, and it's not personal. It's just, you know, we think the judge made a mistake. Um, and quite frankly, the judges don't actually, they have decision writers. They don't really write the decisions anyway. So, a lot of times the sloppiness is because of the decision writer more so than the judge.
Um, you know, so judges don't take it personally. And I would say that some judges, you know, kind of read between the lines. If the appeals council is going to send it back, they're basically saying send trying to send a message to the judge. Some of them don't get that.
Um, there's a couple of judges I know that don't care at all. they're going to, you know, do what they're going to do. But I think you're probably right that that many judges, if they see the case coming back from the federal court, you know, they're they're sort of going to understand that there's a reason this case was sent back that um that that the federal court is sort of telling them, you know, you need to give this case a really long look. So, I would I would agree with that. Um not every judge, though. It's going to depend. And that's that's another thing, you know, that always bothered me about this practice area is, you know, you have an anyone hearing office. I don't know if you see that out in Phoenix or not. I know again I'm I'm I do work nationally, but you know when when I just did stuff most of my work in Atlanta, you might have a judge, there was one judge here is 13% approval rate. You know, the judge in the next office was 75%.
And that used to really tick me off that, you know, it just depends on it's a lottery. You know, why why should it be a lottery? I mean, shouldn't there be some sort of a standard? um you know because nationally it's about 50% of cases going to hearings are either fully or partially approved but I mean that used to just bother the heck out of me.
It still does but you know what are you going to do but uh that that is that is a problem. I don't know if there's any fix to it but um you you get the wrong judge. You're just not going to win.
Yeah, it does seem like some judges they look for reasons to approve, you know, the claims that are they feel are deserving and then there's some judges for whatever the reason is, they look for reasons to deny.
>> Yep. Yep.
>> Do you do you tell your clients to look at the judges? I mean, there's statistics out there. There's websites.
Do you discuss that with your clients?
Do you talk about, you know, this judge has got a 43% approval rate or this one's got a 55 or 27? Do you even mention that or do you just sort of say, "Let's just take it as it comes and we'll deal with it uh when we get to the hearing."
>> Personally, if a judge is a a stronger approving judge, I usually just tell a client, you you've been assigned to a good judge. If it's one of the poorer judges that say has a less than 40% approval, I'll actually tell them the the the approval just to perhaps manage some client expectations. But my usual spiel in talking about judges is the the poorer the judge, the more mistakes they tend to make. And the hearing is not the end of the road. There is a final recourse with the appeals council and even with the federal. So, um that's usually what I tell clients.
>> Yeah. Yeah. Well, I find even I mean and I think you mentioned 40% that's kind of my rule of thumb too. I think you know again if the average is 49 or 50% the last waterfall chart showed that you know any judge in the 40 to 50% or 40 to let's say 40 to even 55%.
You know it's probably pretty reasonable. I mean you know not every case is a great case and it also depends on how many how many hearings the judge has has heard. If it's 15 cases, that's not going to really be accurate, gonna tell you very much. You get be below 40, >> that's starting to become a little troublesome because that's that's pretty far off the standard. And and I just, you know, that does and you know, and again, I I I tell my clients, look, got a tough draw. Doesn't mean we can't win.
It's just we're going to have to really, you know, make our case very very strong. But I would agree with you.
lower approval judges tend to there tend to be mistakes in the decisions that you can exploit and uh again nobody wants to have to go to appeal but if you got to do it you got to do it. Um Sonia Stringfell Stringfellow says hello to you as well. U Mary Simmons hello Mary Simmons hope you're doing well. Michelle says just passed the EDPNA.
Thank you and congratulations Michelle.
Uh I can do it on paper. I'm not sure what that means, [laughter] Michelle. Maybe you could clarify. Um, but congratulations on passing it and good luck with uh, you know, with taking on cases.
Uh, pre-hering tips. Yeah. I mean, you know, I think that, you know, everybody, you know, I can tell you and and I do and I think it's important to know just so you won't be freaked out about the process. You know, what the judge is going to say. The judge is going to welcome you and ask you to verify your identity and ask for your birth date, your address, and your last four digits of your social and ask you are you recording the hearing and are you okay with the telephone hearing and you know are you by yourself? Yeah, that all that stuff. We I can give you a piece of paper that shows that. I do think that you have to have the right mindset and even again judges are human beings and you know they are also under pressure because the social security trust fund is running out of money and there is pressure that not to approve cases that are not you know deserving cases and there have been instances where judges are brought in front of subcommittees in the congress and they are you know just cross-examined like nobody body's business. You know, there was one judge um and and and I've got the video someplace. Um there was a former I think he's South Carolina Congressperson, Trey Gouty. Um and he was very former prosecutor, you know, kind of a you know, just buzzcut kind of guy, you know, just really hardline prosecutor type. And he gets this judge, and I'd been in front of this judge before, and the judge had a 99% approval rate. and Craig Gaudy, who's no longer in the in the Congress, he's like a radio commentator now or something, but he just >> ripped this guy, you know, backwards and forwards. And how can you possibly approve 99%. It was painful to watch. It was just really, and like I said, this judge was a nice guy, you know, he shouldn't have been approving 99%. And the case he approved for me, he didn't do any. I mean, he really literally just said to the client, you know, so you're so you're you feel like you're disabled, right? Yes. Okay. And then we spent the next 20 minutes talking about restaurants to go to in Atlanta. Um, but you know, I don't think that any judge wants to be in that situation where they're questioned about what they did. So, yeah, they're very aware that Congress believes that there's too many approvals and that they're running out of money and, you know, so they're going they're going to, you know, they are going to make sure that you prove your case. And uh you know, I think like I said, some judges just have the feeling like I'm looking for a reason to turn you down >> as opposed the other way around.
>> Um okay. Uh hello. Would you mind? I would not mind. Uh and no, you are one of many. You are one of 68 people. Would you mind right now here? Um okay. Should I expect CES during reconsideration?
uh Haimey Guerrera says and what Haime is asking is a CE is a consultative evaluation where the adjudicator basically uh when you file your application the case is assigned to a division of your state typically called DDS or DAS um and they have claims specialists or adjudicators who are basically adjusting the file like a claims adjuster and they have the The certainly at the initial it's very common but at recon as well they can send you out for a consultative evaluation. Do you see many at recon or is it mostly at initial?
I think we tend to see more at initial and if uh and then if there wasn't any at initial and it's a denial um then we'll sometimes see them at recon but I I think just general sense would be twothirds at the initial maybe you know one quarter at recon and occasionally we we'll get to the hearing and there have been no CE scheduled so >> yeah yeah occasional well I find that sometimes um the recon adjudicator will send the person back to the same doctor for a second, especially for a psychological evaluation for a second one. Has anything really changed? Um, and so that's not that uncommon, but I would agree. I would probably say in my experience, it's probably maybe even only probably 25% recon, you know, 75% initial, but you know, it it it is within their purview to do it. Um, you know, this actually came up with one of my clients. They were quite upset. you know, why do they schedule me for a mental health consultative, a psychological consultative? There's nothing wrong with me mentally.
>> How do you answer that?
>> Uh, there's not an easy answer for that.
Um, but I usually if I mean I find if they're going to schedule a psyche, it must have been brought up in some capacity, some level of depression or anxiety. It's just one of those trigger words where if if it shows up even a little bit, I think a lot of examiners are trained to just simply go ahead and schedule it for a psych CE and they're just covering their bases in doing so.
It may not be a primary disabling condition. It might not be a severe impairment even. Um, but [clears throat] a lot of times, you know, if if the condition is rooted in a physical uh medical condition, a lot of clients wind up developing that depression or anxiety. It's just a byproduct of um seeing the you know their the limitations that they have and not being able to do the things that they once were able to do >> or being in chronic pain or not working and having no money coming in. Yeah.
It's it's and just you know I had a lot of people say to me you know my job was my identity and I'm not able to work and I'm like you know what's I don't have any purpose in life. So that can be depressing. um you know medications uh again being in chronic pain um family pressure I mean I'm sure you guys have seen it as well I've had a number of clients you know go through divorces because um they're not bringing money in and you know their spouse becomes very you know disenchanted with you not there's no money they're not in a good mood they can't really help out around the house yeah it's it's it's so and I would also say my experience and and again I'd be curious to see if yours is the same the psychological consultatives often will provide some value in terms of evidence that I can use. It may not eliminate every job but it can eliminate maybe skilled jobs or semi-skilled jobs because of focus and concentration or emotional stability. You know I don't get as much benefit out of the physical consultatives but the psych consultatives I think you know many times not always but many times can give me benefit. Has that been your experience as well?
>> Oh, sure. Yeah, absolutely. Um, sometimes it could just be social interaction. Um, you know, claimant can attend a psych and be in a bad mood and or have poor eye contact and give a little attitude to the examiner and there's something mentioned in the social interaction domain. And now we're looking at occasional interaction with the general public and co-workers and supervisors.
So, um, more often than not, you know, it's those psyches don't ne necessarily support a listing level argument, but it can be used to erode the job basis to some degree.
>> And that and that's really a lot of what what you want to do is you got to just chip away. I mean, if you just imagine, you know, there's I don't know how many thousands of jobs in the DOT, but you can chip away. So like for example, if you had seizure issues, even if it's not enough to win the case, it may eliminate you may not have a driver's license. So jobs that involve driving would be eliminated. Jobs involving a forklift would be eliminated. Jobs working on hazardous equipment or moving mechanical, you know, moving machinery would be eliminated. Then you may have something else that eliminates other jobs. Just chip away at the job base is really what you want to do to the point where there are no jobs. And again, ultimately, a lot of cases turn on the offtask question or the mist time from work question. But yeah, that's that's what you're trying to do here. Um, all right. Mike Ramirez says, "Hello from Arizona. That's your neck of the woods."
Woods. Um, >> Mike.
>> All right. And would you mind is in San Diego. Very nice place. Been there. Bala who's one of my clients. We I just checked to see. It still says poster review. We're going to win. Um, I know you're anxious that we want to get that uh in, but it's still in postering review, which means I think that the uh that just they don't have space at the decision writer's office yet, but we'll get a positive result there. Um, what if what if Well, that's that's a very open-ended question, so I don't know how to answer that, but okay. Um what if um Patrick Ali um I am in the reconsideration phase and received a phone call to call the Marl Georgia office. I spoke to Mr. Strickland. Then I received a phone call from Georgia DDS. Both calls came on seven seven uh well I'm not sure what the date is but um I maybe the question here is is it typical to get calls from the DDS? Oh wait there's the rest of it here. just happened to check it knows my case is now with the uh SS alphabet medical closed out final review. Is that a good sign? Okay. So, basically Patrick got some phone calls from Social Security and online it says [snorts] um that it's in final review. Is there anything we can tell him that that this means or is it simply we don't know because this is just this is all procedural. Is there anything this tells you?
Well, um, [clears throat] a lot of times I, uh, I would say if it's a non-medical review and DDS or the field office is calling, it likely means they might be missing a piece of information about perhaps past work or work activity or maybe a workers's comp component or just something that's not part of the medical review, but there's a question mark there that that's needed to fill a gap.
I don't think you can read too much into it one way or the other if it's if it's a good or not.
>> Yeah, I would agree. I think that, you know, they're calling you. There may be something specific they want, but that doesn't mean you've won or you've lost.
Um, it's just it's gone. What what actually is happening is the adjudicator or the claim specialist is gathering up medical information. and they sent it to a doctor who worked for them kind of on contract to look at the file and to help make a decision about whether this is significant enough to erode you know make them erode the work the base there's no jobs out there the adjudicator makes the final decision on that um where it is in the process just means that it's getting close to the end of that process it doesn't mean positive it doesn't mean negative it just means that your case is getting close to having a decision made is what I would I would say. Um Chloe says, "Good evening."
Hello, Chloe. Okay, this is an interesting one. 52 Kimmy. Um Sydney, I'll throw this one to you. How does a suicide attempt affect your case, especially if you end up in ICU and stay in the hospital for a month?
>> Yeah. So, that is extremely helpful for a case because that would support the offtask or absenteeism argument. If you're going to be in the hospital for 30 days, you're going to be out of work.
And the more hospitalizations um that are in the record, the better chance you have of getting approved. So, I'm so sorry if you know anyone or if it was you, but it will be helpful for your case.
>> Yeah, I I would say, you know, I would take it as I would say agree with what you said. And I would also say that when I'm looking at mental health cases, you know, again, just like back and neck pain, very common. Um, mental health cases, you know, there's a lot of people out there with depression. And as Jeff said, part of it's because, you know, you're in chronic pain, you're not working, external factors. Judges see depression, you know, people are taking, you know, anti-depressants or maybe seeing a psychologist or psychiatrist. It's very common. anxiety, PTSD. It's unfortunately very common in our our world. So, what separates a really strong mental health case from one that's that's, you know, maybe a factor, but not not enough to push over the finish line? You know, I look for things like inpatient hospitalizations, suicide attempts, multiple failed medication trials, extensive ongoing treatment with psychologists. again the medication they've tried multiple different medications nothing really works but a suicide attempt is you know evidence of a pretty significant problem um now I would my opinion would be you know a one-time suicide attempt four years ago is probably not going to make as much of a difference but I think that if it's more than one they're fairly recent and it seems to be kind of an ongoing problem suicide ideation or suicide attempts that can signal a pretty significant mental health issue.
Um Jeff, would you agree?
>> Yeah, definitely [clears throat] agree with that.
>> Yeah, it's it's uh those are hard mental health cases. And I'll just ask both of you. I mean, what do you look I mean, that's what I look for is sort of the I call menish of severity is that's the sort of thing you guys look for as well.
What what makes a a really strong mental health case in your mind and how what kind of evidence do you need?
>> Yeah. uh said you want to field this first.
>> Yeah. So I think just to start with um talking about hospitalizations that is extremely supportive evidence for any type of mental health case. And additionally you want to make sure that they are um seeing a psychiatrist.
That's important to show that they are being prescribed different medications.
Um, like you said, Jonathan, talking about a different uh list of medications, what have they tried? Um, are they resistant? Is it not helping?
And, uh, also seeing a therapist or psychologist, those records are really good because they're different than psychiatrist records. Um, a lot of times when you see the psychiatrist, they're in there for five minutes and it's a very short note. Um so when they are seeing a therapist or a psychologist frequently those can be really great records.
>> Yeah. Yeah. I agree with >> that. What your take >> just to add on that [clears throat] I I I think the you know it the psych related disability cases are very challenging to get approved and I find that the the strongest medical evidence is going to be a persuasive medical opinion. And as a judge, they're looking at different factors to weigh the persuasiveness of a medical opinion. So, I'm looking to, you know, if a client contacts us, potential client contacts us, I look to see, do you already have a good relationship with a therapist? Have you been in treatment for some time? Um, if somebody's [clears throat] looking to apply for disability for the first time and they're not currently in treatment, I usually encourage that client to get the process started on their own. Get into treatment as soon as you can. And then if you're denied, which you know, we know there's a high probability that's going to be the case, especially for psycho related cases, [clears throat] contact our firm and we can help on appeal. But I do look to make sure that or look to see if there's already an existing relationship with that provider and do we feel as though there's a great chance to get um a medical source statement completed from that provider.
>> What is your take on VA Veterans Administration site treatment?
>> Yeah, that's uh that's a whole different ball of twine right there. [laughter] Those VA uh providers, they're very sticky. They always stand behind a I think it's a fictitious policy that they don't complete these disability forms.
We actually have a customized uh request that we send to VA providers pointing to a regulation that says that's that's bogus. You can complete forms. Um, and a lot of times we do have to suggest to clients to, you know, VA, veteran clients to look for treatment outside of the VA system because of the value of those medical opinions. When when they when you go to a psych, >> you know, evaluation, it's a 60 90 minute evaluation and >> they, as you know, they administer a very >> surfacey mini mental status exam. You know, can you remember three words? Can you do serial sevens? These are very basic questions and they're very often times judges will use a score of a 27 out of 30, a 29 out of 30 as a basis to show that it's just certain areas are not that severe. But that's far from the truth. Just like the psych the physical CES and the little tests they do for hand functioning. Can you lift up little coins or twist a bolt or a nut around a bolt? I mean, very basic. So it's super important to get um some treating source statements especially for the site cases.
>> Yeah, I find with the VA I mean a VA records tend to be voluminous. I mean hundreds and hundreds of pages with a lot of duplication in it. Um second is a lot of the psychological treatment is group therapy which is less valuable in my opinion because it's not going to really talk about the individual person as much as what the group is doing. they tend to prescribe overprescribe meds.
You have people that are just on, you know, 15 different types of medications.
You really kind of wonder, is this really appropriate treatment? Um, and a lot of times they limit them as far as how long they can get treatment for. So, I I completely agree. I think that if you're giving treatment for psychological issues at the VA, it's probably worth trying to get treatment outside the VA if you're going to pursue social security disability. I just think that's unfortunate, but it is. Not always, but but it is a lot of the times.
>> Um, all right. So, wonderful says, "Is it normal to apply for disability and they give you SSI?" Um, I'm guessing what happened here was they approved you, but they changed the onset date to after your date last insured or you applied for disability, you were not insured. Is that what how you would you would assume this is what's going what this what happened to this uh this this young lady?
>> I I mean, if you're applying for disability, there's either SSDI or SSI.
So maybe it was a concurrent claim file, but like you said, there's they didn't have an insured status when they medically became disabled. We've also have clients that simply [clears throat] return, you know, refer to early retirement as SSI. So, and sometimes they file at age 62 for disability and then they receive um their early retirement and >> they call it SSI. And to add some confusion even to reps, when you look at a claim file at a hearing and there's early retirement, they'll call that a notice of award.
>> Yeah, I've had that. Exactly. I've had that happen to me. We get this notice, my my staff will get a notice of war.
They approved the case like no, no, no.
They approved early retirement, not the disability part of it. So, >> yeah. Big, big whoop. [laughter] >> Yeah. Yeah. But yeah, I mean and that's actually, you know, you raised another point and that is a lot of people think when they say social security disability, they call it SSI. It's like calling, you know, the tissues you have in your bathroom Kleenex, you know, or the the copy machine a Xerox. Um SSI is a type of disability, but it is not a generic term, and it means something very specific, and that is supplemental security income, which you would get if you don't have the credits for disability. I suppose the other thing that could have happened to wonderful here is when she applied, she may have said, "I want to apply for SSI and didn't actually apply for disability."
I've seen that happen a couple of times.
Um, so, you know, you might want to check to make sure that they actually considered a title 2 SSDI application in addition to your SSI application if in fact you were insured. So, uh, you know, can't really answer your question without knowing more, but that would be my thought on that.
>> Um, do I answer qu? Yeah, we are answering questions. Would you would you mind? Um, okay. Uh, okay. I think we've already talked about Patrick's case. Um, absolutely, Patrick. Um, yes. So I think that uh our conclusion I think in in the three of us would be that the notices are getting more seem to be more procedural in nature and there's nothing we can really draw out of that in terms of whether that's positive or negative news. I just procedural I think is what it is. Um all right Hak Assad asks if granted how do written ve interrogatories usually work?
Um, and so I think what he's asking would be, can he pose written interrogatories to the VE? And I guess the judge would have to approve that.
Um, I've seen that happen a couple of times by judges where they'll ask the VE a series of questions. Um, you know, my understanding, and I could be wrong, is that that's something a judge would have to agree to. Um, and I don't know that a judge would agree to it before the hearing. I think that you know you could certainly again if you take this approach you could you know decide to pursue or may in fact if you're going to do this I would let the judge know um you know that you're going to challenge the ve's qualifications or methodology and you know if the judge does not wish to spend the time at the hearing you know I would like to pose you know interrogatories but it's not very typical That's my answer to that. Would you agree?
>> Yeah, I [clears throat] I agree with that. I I I have there have been a couple of cases where judges after a hearing will uh send out interrogatories to the vocational expert and then provide our firm with an opportunity to respond to that or ask questions of our own via interrogatories.
The only other [clears throat] thing I can think of along, you know, lines of the of Hakasad's question is there are a few cases I can recall where, you know, I knew it was going to be a step four case and I [clears throat] we we we do we have uh consulted with other vocational experts where we've produced as evidence a report and we I would ask interrogatories to a VE that's obviously [clears throat] not testif ifying at the case just want a vocational expert that that's their profession just to introduce new evidence into there to perhaps refute potential testimony.
>> Yeah, I've done that once or twice. I've gotten case right now where um we you know submitted a um you know a report from a separate VE because as an appeal matter because yeah because we felt that the VE was just really not not was kind of out to lunch. Um Jeff Brown says, "Good evening." Good evening, Jeff Brown. Uh we have um Masangea Washington. Hi from beautiful Michigan. Hello.
>> Hello.
>> Umah.
Okay. So Patrick says, "Does this medical decision?" Patrick was the one who's asking about he closed in his uh portal. Um, again, our feeling is that what you're seeing there is procedural. Um, a decision appears to have been made. You'll know hopefully good news in the next week or two. But because it says a decision's been made doesn't mean it's a good decision or a bad decision. Just means it's a decision.
So, okay. KU Thunder. Good evening, Jonathan, Jeffrey, and Sydney. It could even be KU Thunder. Uh Chloe asks, "Many applicants focus on proving they can't do their old job. The VE is often talking about other jobs. Um and what's the most biggest misunderstanding people have about how vocational experts decide what work someone can still do?" So, sort of a two-part question. Um first part is, and Jeff has referred to step four, which is the uh can they return to past work. Social Security uses something called a five-step sequential evaluation process. Step one is are you working at SGAA levels assuming you're not working. Step two is do you have a severe impairment? Severe basically is do you have something that could potentially prevent you from working being treated that there's some diagnosis? Pretty minimal, but you know cases do get denied at step two. Step three, do you meet a listing? You know, if you have lifelimiting condition, you might make a listing, but most people don't. Step four is can you return to your past relevant work. Step five is can you do any other work? And at step five, what they call the burden of proof changes from the agency uh from from us uh the claimant to the agency. Um so one of the things we have to get through is step four, um that you know they cannot return to past work. And the question Khloe's asking is, you know, do people get they misunderstand that just because you can't do your past work, that doesn't mean you're disabled.
Um, do you have this do people in your practice, this is something that people misunderstand? Uh, do you have to educate about?
>> I think so. uh a some clients they've gone through the short and long-term disability which is really more of a focus on can you do that job can you do that your last job and [clears throat] as we know with social security disability it is about other work as well uh other work does shrink as uh an individual hits age 50 and then age 55 so under 50 I tell clients we're up against the world of jobs doesn't matter really so much what you did in the past we have to show you can't do any work whatsoever full-time. Um, [clears throat] but as you as a claimant gets older, if a cla a client's above 55, oftentimes it is more of a focus that you can't do your past work because that generally will eliminate other work. So, that really depends on I would say age is a big the biggest factor on what the focal point ought to be.
>> Yeah. But I I would say, you know, for those who are applying for disability, realize that yes, past work is relevant, but you need to really think about it in terms of could you do anything. Um, now again, if you're over 55, maybe the grid rules aren't going to make you go that far. But I think in terms of your mindset, you know, I've had people say to me, well, I've been a bus driver my entire life, or I've been a truck driver, or I've been a warehouse, you know, forklift driver. I don't know anything else. I couldn't work in an office, you know, or there are no jobs near me, um, that, you know, that would be unskilled jobs or I don't have a car.
That doesn't matter. It's if you had a, you know, if one of these jobs came available, even if there are no jobs near you, could you do it? And again, if you're under 50, you've got to prove, and I I give the example, imagine a job where you're sitting at a table putting ink pens in a box. I mean, it's a warm body, can you fog a mirror job? I used to have a video I put on there where there was a guy like watching like, you know, plush toys coming down an assembly line and if he saw one that was the stitching was off, he would knock it off the line. I mean, literally, you know, you can fog a mirror, you can do this job. But that's part of that, you know, that mental state or that attitude you've got to have is, you know, this is not about just could you go back to being a structural engineer or is this is not about could you afford to work a minimum wage job. you know, you may be a um you know, you may may be a nuclear physicist, you know, working at a technical university making, you know, six figures, but you know, if you were 43 years old, you know, you got to prove you couldn't be a greeter at Walmart.
And you're saying, well, you know, I would never I would never do that. Well, yeah, that's what they're saying. That's how you have to approach it. This is about work capacity. Definitely work capacity. Um, all right. Uh, what's the biggest misunderstanding people have about how vocational experts decide what work someone can do? Sydney, what do you think? What do what do you think the people misunderstand about um what voca how vocational witnesses do their analysis maybe because they hear this, you know, you're in this hearing and they got this person they've never heard of before talking about, you know, that they can do this job. Um, what do you think? What do you think the biggest misunderstandings are?
Yeah. So I think for a lot of people uh something they don't understand is we not only have to show that they cannot do their past work as it was actually performed but we also have to show that they can't do it as it's generally performed.
>> So that vocational witness um >> here's an example of a story uh that recently happened. We had someone that was an HR person and she was walking for six to eight hours during her shift. She was required to lift up to 20 pounds and she thought, well, if the judge finds that I can do a um if she finds I cannot do my past work, then I'll be approved.
However, the judge is going to consider how the job is generally performed. So, how does an HR person usually do this job? It's usually a sitdown job >> and because of that, she was denied. Um, so that's one thing is people need to understand they're looking at how you actually performed your job and how it's defined in that dictionary of occupational titles. Um, another thing is I don't think people understand all of the jargon that they're hearing.
those DOT codes, they're wondering um where is the judge coming up with this hypothetical. So, the judge is going to come up with a list of restrictions for an individual. For example, they might say that the person can stand and walk for 4 hours, um would be off task 10% of the time, and can frequently handle, finger, or feel. They don't understand where they're getting that information from and generally that information is coming from the consultative exam reports or any medical opinions in the file.
>> Yeah. And I think I think that you know and I would also say this that judges many times let's say you testify that you can um you can only stand for for two hours and the judge may put a 4hour standing or that you cannot you know balance or you can't climb stairs. Let's say the judge will say the person can occasionally climb stairs. They are doing this to kind of draw lines. And part of it's going to be because it may come from the consultative report or part of it is because the judge wants to sign signal to the next level up. I gave this person the benefit of the doubt.
You know, I'm assuming they could do more than they could really do, but they're still being found, you know, disabled or whatever or I'm not finding them believable in in what they're doing. So, yeah, it's it's it's ultimately the hypothetical question is going to dictate what the vocational witness is going to say. So, a vocational witness is not deciding on the work that you can do, you know, after looking solely at you and interviewing you. They've never met you before. They're relying on the judge to give limitations. So, if the judge says, you know, standing and walking four hours, you're saying to yourself, I can only stand and walk for 45 minutes. But the vocational witness is going to give jobs that allow for four hours standing because that's what the judge told the vocational witness to do. So, we're kind of at the mercy of the question the judge asks. Now, we as representatives can ask the vocational witness whatever question we want. I could say the vocational witness, well, instead of four hours, let's assume person can only stand and walk for one hour. Well, the vocational witness will say in that case, there's, you know, the jobs identified are no longer available. But unfortunately that when the judge drafts the decision they may use the the you know the hypothetical uh that was a little more expansive in as as to to make that decision. The hypothetical questions are in fact the judge's conclusion about your what is called RFC residual functional capacity. Residual means left over. So what is your capacity that is left over? It's residual after we take into account your limitation. So the judge is the one deciding on those limitations and you may disagree with it. Um and you may think the medical says otherwise but if the judge is you know used reasonable analysis to come up with those limitations that's probably going to fail an appeal as well. So, you know, again, this is why it's important to have the right approach when you go into it. Have as as I think Jeff or Sydney said, a strong medical source statement so that you give the judge a very little wiggle room to identify functionality that is really not there. So, um that is a uh you know, kind of a a primer about how vocational witnesses do, but they're not talking about you in a vacuum. and they're doing it in the context of a question the judge has has already asked.
Um, do I answer questions from the chat room? Um, I'm sorry. Would you mind? But I've been that's what we've been doing this whole time. So, I'm not sure why you're not getting your you're you're asking me quite you're saying do you answer questions? Post your question. I don't really understand what you're what you're asking me here because you're just asking me questions and I'm telling you yes, we are. That's what we're doing here. That's what this is all about. Um, Shana Coats, I've had a mineral exam on the 13th. What comes next? Applying to cervical and lumbar nerve root compression and vertebrae and disc with bulges and herniations. Um, well, you know, the first question I would ask you, Shannon, is your age.
Because if you were over 50, then the grid rules might be implicated here. Um, and if you've got nerve root compression, um, that's most likely going to limit you to, you know, no more than light work, probably sedentary. Um, and you've got, you know, um, vertebrae and disc diss I think you mean desiccation as opposed to dissemination with bulges and herniation. And again, that's there's two different things. Bulges and herniations are different things. Nerve root compression is is pretty significant. Um, if you're over 55 and you've got nerve root compression, you're probably going to be limited to le light or less. And assuming no transferable skills, you have a grid rule argument. If you're 50 to 55, you'd have to be limited to sedentary. So, you know, they may send you out for a physical fun a physical consultative evaluation or ideally if you can get your orthopedic doctor um or pain medicine doctor to complete a functional capacity form or medical source statement or narrative report that would go a long way to uh making your case stronger. Would you would that be the way you'd look at this as well, Jeff?
>> Yeah. Um, I think, you know, when you have cases that have physical and mental components to it, I'm always, you know, really looking at [clears throat] the physical first.
>> Yeah, there's a more objective evidence.
Uh, judges are more inclined to approve cases that have a strong physical component to it.
uh if we can [clears throat] get a client or claimant down to a sedentary functional capacity that reduces that limits a lot of jobs at step five. And then if there is a mental component to it as well and we're looking at this small class of jobs that are considered [clears throat] sedentary and unskilled um oftentimes that you know there's just not enough job numbers in the national economy to uh for the commissioner for SSA to meet its burden at step five.
Stop.
>> Yeah. And again, you know, just I sound like a broken record. Social Security disability is about vocational capacity.
You don't win with a diagnosis. You could have a herniated disc with nerve root compression, but if it doesn't stop you from working and doesn't create specific limitations on your ability to function, you're not going to win. So again, you don't win because you've got congestive heart failure. You don't win because you've got type 1 diabetes. You don't win because you've got, you know, uh, chronic kidney disease. You win because those conditions produce activity limitations that limit your functioning. That's how that's how you win. Um, okay. Uh, Khloe says, "There have been growing criticism that some occupations identified by vocational witnesses are outdated. Have you noticed this jud judges becoming more skeptical with these job numbers? And where do you think that issue is headed?" Um well my first answer would be that there have been a number of what they call emergency messages issued by social security where they basically tell vocational witnesses do not refer site these jobs surveillance system monitor was one of them. There's a couple others I can't remember off the top of my head but there's a number of jobs that are perceived to be you know outdated. A microf fish operator you know they're just you know typewriter repair person.
I mean there just certain jobs that just don't exist anymore. um you know there are other jobs I mean you know that what they do is like for example there was a there's a telegraph operator job I remember that's come up a couple of times and the vocational witness will say well it doesn't exist as a telegraph operator but the equivalent is you know something else and I don't remember what they use. So yeah you got to be alert to that. Um, I think that, you know, every once in a while, Social Security will come out with a list of jobs they've deemed obsolete.
You know, every once in a while I'll have a vocational witness site one of those obsolete jobs. Um, and I have kind of a list of them kind of on a little, you know, notepad. And so I just keep it open. And if they come up with that, I'll, you know, ask them, "Are you not aware the commissioner declared this as obsolete?" They then come up with another one is what they'll do. But um you know, so that's probably not going to go very far. Um although or you could choose to remain silent and then attack it on appeal. I don't know. For the most part, I'm just going to say that that's, you know, kind of that's sort of ridiculous. And that does kind of suggest the vocational witness is not uh up to date with things. Um but, you know, they're going to continue to to have that problem. Look, I think that Social Security has been looking for years for replacement to the DOT because they know it's outdated, but they've tried they spent untold millions of dollars trying to find other systems.
And you know, there was what is the there was what was the one um they were using for a little while? Uh not the um I forget. There's another system similar to the DOT. Um now they they came up with a ruling. In fact, when you any hearing you go to, um, the judge will ask the vocational witness, "What are your sources?" And they'll say the DOT and the selected characteristics of jobs or job browser pro, whatever. And they have to ask them because this ruling says that if they don't identify their sources and they're only using the DOT, that by definition would be appealable.
So, they do this as a I forget the ruling was SSR or something 14. I I forget what which one it was, but they all ask that question. Um, but um, I think to answer Khloe's question, um, there are jobs that are obsolete. If you sense that jobs doesn't make sense to you, you can certainly ask the vocational witness, have you ever placed a person in this job? You know, is this job, does it really exist in significant numbers? Where do you come up with those numbers? Again, you could do a little, you know, kind of mild cross- examination, but I think that, you know, Social Security, they know they have a problem with the DOT. They've come up with enough ways to cover so that the cases are not wholesale remanded and every decisions is reversed. That that's my take.
>> Yeah. Um [clears throat] couple points that come to my mind. Uh when I first started practicing disability law, this [clears throat] was um there was the the the past relevant work period was 15 years. So we had a lot more jobs to go through at step four. And in I think it was 2024, we got the SSR 243P.
This was uh the [clears throat] social security's attempt to basically um you know recognize that the DOT is way outdated and they recognize it. Uh so what they did was they reduced that past relevant work period from 15 years to five years >> which is helpful >> very helpful and and it just overall makes the process a little smoother.
That's a lot of information that field offices have to collect for 15 years of work history. Reducing that to five just saves a lot of time from that, you know, portion. But the same regulation also really empowered vocational experts. The regulation allows vocational experts to supplement the archaic DOT with their own experience.
So that's [clears throat] where judges will ask additional questions of a job expert about where are you getting your numbers from, where are you getting your testimony from, and if the VE says it's based on my own experience, a judge will likely accept that. And when it relates to some of these outdated jobs, I think the VES are now they're still using those jobs that are from that emergency message, but they're adding something to it, explaining how it's performed in modern times. Um, the surveillance, you know, moni monitoring job or the micro fish and paramutual ticket checker. I mean [laughter] ves will have the ves will come up with um how the how what job or how the job is modified over the years >> but because basically I'm I'm looking at the emergency message and for those who are interested you can look up emergency message 2426 which lists 114 jobs that cannot be used anymore unless the ve can come up with exceptions. So it always says the VE can say yes, this job really does exist.
There's a second one that's scrutinized um and a heightened evidentiary requirement is emergency message 2427.
So um examples of jobs in 2426.
Um what's interesting um astronomer, you think that would be a geographer?
Um, you know, it's just interesting here. Um, >> ge historic. I don't know some of these, you know, radio radio telegraph operator. Okay. There's not any telegraphs anymore. Um, wire transfer clerk. Okay. I mean, they're typically done in banks now. Um, you know, telegraph agent. Okay. Uh, pay station attendant, you know, things like that. Um, so yeah, so they're just, you know, some of these fur farmer, I mean, there's a whole bunch of them in here that, um, you would think they still exist. I mean, animal breeder, canary breeder. I mean, there's a lot of canary breeders here in Georgia. I don't know why they're they would take that one out. Um, but yeah, some of these are they just feel like there's just, you know, not enough of these jobs out there. They've been me mechanized. And I suspect with AI, you know, we're going to see a lot more of that. Um, so anyway, uh, but yeah, it's kind of interesting that they've come up with all these, uh, these jobs, but if you want to look them up, that's what they are. All right. Uh, Kathy Clayton says, "Good evening." Good evening, Kathy. How does the ALJ decide if you've got transferable skills, age 62, 38 years at one company, worked at an insurance company changing updated medical benefits? Well, I'll give you two two answers to that. One is that at age 60, there is a regulation. It's called it's a they call it a palms regulation and I'll give you that palms regulation specifically.
Um it is PALM's POMS which stands for program operations manual DI25015-017 255015-017 that says that if you're limited to light work or sedentary work at age 60 the [clears throat] um there is a heightened standard there's an assumption that there needs to be a a minimal vocational adjustment to transfer any skills. So, at age 60, if you're limited to light or age 55 if you're limited to sedentary, there's a minimal vocational adjustment standard, which basically means that they've got to be able to prove that you could walk into another job that's so similar to what you did that you could just sit down and start doing it. Obviously, if you couldn't do your past job for for some reason, then you're probably not going to be able to do that. That gives you a real benefit. So, at age 60, you know, some of you limited to light work.
Uh you're probably in pretty good shape there. Otherwise, um the the the vocational witness will identify what skills you may have obtained. And they could be, you know, skills are not traits. you know, skills are things like ability to type or ability to, you know, answer phones or ability to um you know, process um spreadsheets or things like that. So, the vocational witness would do it. That that's my answer is that the uh ALJ is not making it up. It's coming from a vocational witness testimony.
>> Agreed.
>> Okay. Um All right. Michelle, who's the new ED?
Is Is there Sydney? Is there like a do you call what do you call is there like an a word for it EDP? I don't I'm calling I'm spelling out EDPNA. What is the um what is the title for an ED just a non- attorney rep or is it uh >> Yeah, that's exactly right. You just say non- attorney rep.
>> Okay. It's not like Edpina or something like that. I don't know.
>> No, no, no, no, no. Social Security is known for all of their acronyms, you know, DLI and, you know, AODD and POD and SSDI and title two. You know, it's it's like a different language. I think somebody said this before. It's like a different language. Um, so I just assume there'd be another AC acronym, but I guess not. Okay. Michelle, who is the um uh non- attorney rep, do you take clients who are all mental health? I will if the treatment history is there and they're compliant, but some reps will not take mental health cases or child cases. Um, I'll give you my answer, then we'll see what uh what Jeff and Sydney say. Um, I will if there are if the evidence is really compelling.
Again, the addition of severity, um, long treatment history, you know, suicide attempts, inpatient hospitalizations, failed treatment, things like that. Um, but you know, if it's if it's not a level of severity like that, I'm going to be real reluctant because those are just really really hard cases. Uh, child cases.
I used to do them. I don't do them anymore um for two reasons. One is that usually well they're all SSI and so there a lot of times there's going to be offsets for household income and there's usually going to be means that the past due benefits are going to be greatly reduced and it ends up being such a small fee that I'm losing money on the case. So that's one reason. The second reason is I I did a lot of them for years and I just saw too many cases where a family or mom would bring in the kid and you know the kids got ADHD or ADD whatever and this poor kid would get labeled and it was just you know I remember had a judge who was a very high approval judge said to me he said you know he goes I think it's a shame that these kids are going to get labeled as disabled it's going to follow them the rest of their life. He goes, "I'm looking at he talked to me about my He goes, "Your client, this is not in the client's hearing." He goes, "Your client's child is just poorly behaved, you know, wasn't not properly disciplined. There's nothing wrong with him. He's getting B's in school. You know, doesn't have ADHD. It's just he was never socialized."
So that kind of stuck with me and I just, you know, I realize there are people with true have ADHD that is truly disabling and there are certainly child cases where somebody has a terrible disease. Um, I just tend not to take them. That that's just my, you know, my way. So I know what do you guys do? Do you take them or or uh >> from the [clears throat] child cases?
I've we've represented a few cases over the years, but we we generally do not um take pure [clears throat] child disability cases for some very similar reasons that you pointed out. Um and a lot [clears throat] of times I personally question, you know, is this truly a disability or is this over, you know, is it a parenting um considerations at play? [clears throat] And as far as on the mental health side, uh, you know, I think that there are categories of, you know, based on the type of medical condition there is. Uh, for example, if if it's a PTSD, uh, we get a lot of clients that are veterans and that they've served and they've had deployments. Um, [clears throat] oftentimes we'll take those cases because we know through experience that that profile, it's going to result in some real strong testimony.
And I'd like to think that a lot of the judges out there, they appreciate the service. They understand the atrocities that happen in deployments and so they [clears throat] tend to be um just a bit more I would I would say a little bit more lenient in deciding those cases. Um then you know [clears throat] non nonveteran mental health cases if there's diagnoses of schizophrenia with hallucinations those tend to be very very serious very severe schizopeeffective disorder uh very severe if it's pure you know say [clears throat] anxiety depression and ADHD now we're looking at some more intang some other factors is there a lot of work attempts I I would like to see a lot, you know, five, six, seven work attempts, different kinds of jobs, mainly unskilled jobs, little [clears throat] interaction with other people, low stress jobs. Um, and above all, just consistency in treatment, trying different medications, having those medications adjusted, good relationship with a therapist or psychologist. Um, but we'll take those cases if you know those factors are met.
>> Yeah. Yeah. They're they're challenging.
There's no question about it. And uh you know, again, you have the right evidence and you get a reasonable judge, they they can be they can be approved. Um PTSD, I I agree with you. I mean, I I you know, if I can help a veteran, I'm going to do it because they've you know, put their life on the line for me. Um I will say that I find that many judges are, you know, if somebody's talking about something that happened to them, you know, it's different than if they saw something. I don't know. I've had people come in and say, 'Well, you know, I was around a lot of dead bodies and it really freaked me out. I've got nightmares.
>> That a lot of times doesn't really move the meter. If they were in a, you know, an armed, you know, a vehicle and, you know, their their buddy next to them got head blown off, might be a different story. So, it just kind of depends also on what happened to them and how long were they deployed. Was it, you know, eight months of just being under constant pressure, constant, you know, threat threat of death? uh as opposed to a couple of weeks. Um things like that.
Kathy said she had an MRI and EMG nerve test done October 25th. So um or done October 20, I'm assuming of October of 2025. So I guess the question is what were the results of that test? Were they will be helpful for you? Um okay. Um, what would it take to reverse the 2017 rule change that made SSA decouple its final determination from the decisions of other government agencies such as the I don't I mean, correct me if I'm wrong, but I don't think the VA determinations were ever as long as I've been doing this ever bonding on social security.
You're >> I agree with you because it's such a different standard, right? Um, so I don't think there I I maybe I may be wrong, but I I don't recall a time where >> Yeah, I'm not I'm not familiar with that. 2017. Maybe if you can give us the rule, but I'm not familiar with it at all. Um, Baxter is the one with about talking about seizures. EEG showing beta activity, MRI, high frontal. So again, I mean, this is objective evidence. I'm not sure what all these things mean. Um, but I mean it does suggest objective evidence which is certainly to your favor. Um, and that's that's a helpful thing in a seizure case. Would you mind?
Okay, so I think you you've got a question here. Someone has lumbar spondylosis which is essentially degenerative disc disease, cervical spine disease and spinal stenosis with disc flattening spinal cord and sciatica. Does that person have a case for SSDI? Again, you're giving me diagnosis. The question is what are the functional issues now having degenerative disc disease? It can be mild or it can be severe. Um spinal cord flattening again how severe is it? And then are the functional limitations consistent with that objective evidence.
That's really what a judge is going to ask. So if you've got spondylosis, which is the same thing as degenerative disc disease, and you're saying, "I have complete numbness below my knees, not really consistent." Okay? If you have significant spinal cord impingement and you have numbness below your knees, that is consistent. So it kind of depends on what the MRI evidence shows. Um, so the conditions you're talking about again it's how severe are they? How do they affect your functioning?
Um, okay. Ricky 340. Good evening.
Thanks for all you. Sure, we are happy to do it. Um, big top. Um, if it's been since July of 2020 since you worked SGA, do I need to fill out the work history form since been over five years? Well, if you have a hearing, well, I think you're the one who was an appeal, but if you have another hearing in 2026 and you have not worked, um, you would probably just fill out the form say no. I mean, normally they're going to send you a form and if you've had no work since 2020, that's more than five years, you would just put no work since 2020. Um, I'm not a big fan of just saying don't fill it out. I think you need to respond to it. Um, again, if you're represented, your lawyer could respond saying, "We received this form. The claimant has had no work, you know, since 2020." I would look at the earnings record in the file that, you know, we'll have we your attorney will have access to and confirm there's no earnings being shown. Um, every once in a while you see a situation where either A, unusual, but it does happen. Somebody else's earnings get posted on your earnings record or B there's something showing up, long-term disability, something else is showing up. So, you want to make sure that nothing is showing. But again, if I was your attorney, I would just respond to the request saying there is no work in the last five years and you don't need to reveal anything else. I think um Hawk Assad is there a framing mindset for responding to the ALJ's question sit stand walk push sustain I think the biggest thing is specifics h the biggest thing is 5 minutes 10 minutes 30 feet you know 15 pounds not you want to stay away from not very much and not very far that would be the that's something I tell everybody till I'm blue in the face. You you got to do that. Second thing would be, you know, in terms of like say standing and walking generally speaking, if you've got a back issue, you know, significant back issue, your standing and walking is probably going to be limited to 100 feet or 50 yards or something like that or 10 minutes. If you say you can stand and walk for three hours, that's not much of a limitation. So, I think that's what kind of judges are expecting to see based on your limitation. But be specific is the real key. Uh Jeff Sydney, any any thoughts on that?
>> Uh well, [clears throat] with sitting, I always uh kind of frame it with clients to let them know that we're talking about sitting in an upright position.
You're not a or climbing your legs at all [clears throat] and it's in the context of an eight hour period. Um, and then if [clears throat] you are only able to sit for say five or 10 minutes, explain why. Explain what is happening after that 5 10 minute span that is causing you such discomfort that you're no longer able to maintain that position. Um, and I'll usually encourage clients and we'll prepare them before the hearing to think about uh descriptive adjectives to describe the pain that they're feeling. Be very specific where you feel that pain. What does it feel like? Where does it travel to perhaps um really, you know, plant in the judge's mind, you know, certain key words to punctuate uh the reason why you can't sit for x amount of time. Yeah, I think what you're saying I you're painting a picture. You're painting a picture for the judge about here's a person who through no fault of your own has these medical issues that limit you and that this is what happens if you overdo it and this is how much you can do comfortably. Um and that you've got to take rest breaks during the day and you've got to you've got to get your legs extended. You can sit in an office chair. You can only sit for 10 or 15 minutes. You're sitting in front of a computer, your neck starts to ache, your hands get numb. You're just painting a picture. You don't want to sound like a complainer. So, it's a fine balance, but the other hand, you're saying, "This is what I got. This is what's going on."
>> Um, all right. Kathy says, "MR and EMG in late 25 favorable C exam. Does this impact transform?" Absolutely.
Absolutely. because those objective tests are going to give rise to specific limitations and pain and realize that pain is going to impact transferability of skills. You know, if you have significant pain or medication side effects, these are called non-exertional impairments. And so if your case is primarily based on exertional impairments like neck and back pain or midback pain to get rid of transferable skills you need to show non-exertional problems that would make skills not transferable. Chronic pain interferes with focus and concentration.
Persistence and pace medication side effects again interferes with focus concentration. um mental processing um maybe there's some depression non-exertional but it impacts with emotional stability all these things are going to erode transferable skills that's how I make the argument same would you approach it the same way Jeeoff >> yeah [clears throat] most definitely um depending on the C the nature of the CE exam I mean if it's [clears throat] a say it's a fa favorable psych exam there may be you know, transferable skills because may find >> a person is has is reduced to an unskilled level. Um, >> so some some variables there, but yeah, I I agree.
>> Now, what do you know? You know, a lot of times I'll look at the um initial and recon decisions. And let's say the adjudicator found the person limited to unskilled work, but denied the case to step five on the grounds there other work they could do. Um, is that something and I I assume you you use that. How important is that at a hearing for a judge to see that the adjudicator found them limited to unskilled work? I mean, the judge is going to make a new determination, but I I ref I'll rely on that. I'll I'll mention that in my brief because I think it's important. Would you agree?
>> Oh, yeah. Oh, yeah. I mean, this is a a medical opinion from an acceptable medical source that reviewed the file and based on the evidence before that um provider, they determined that this individual has deficits [clears throat] with memory, concentration. They're reduced to simple instructions, simple work-related decisions. Um, [clears throat] usually, you know, a supportive DDS opinion isn't very common. And I do think it's important that as reps we lean on that when we have it as part of our arsenal.
>> Yeah. Well, again, sometimes, you know, I I actually what I find the two things that I look at the DDS opinions for, one would be if they find the person limited to unskilled and it does happen or they found they could return to past work that is guess what? Outside the five-year look back period.
>> Yep.
>> So, hey, there's no past work that they could do that the DDS found. a judge is going to make a new determination, but many times there's no past work at all.
That they were denied an initial recon because there was past work in that five-year look back. By the time you get to a hearing, it's now, you know, two years later, no past work. And that happens a lot. Happens an awful lot. And and you got to be aware of that, I think. Um, all right, we have time for just a couple more because we're getting close to our twohour mark here. Um, let us ask. I was approved by the medical and federal review only to have the local SSDI person deny my appeal for reconsideration. I doubt they read my job descriptions with the judge hearing.
So, I'm not sure if I understand the question. You're approved by medical and federal review. [clears throat] I don't know if that makes any sense. I mean, I would say I'll just say big picture, a judge at a hearing is going to make it what they call denovo review and look at everything with a brand new pair of eyes, not being bound by anything done uh at initial or recon. But I'm not sure when you say medical and federal review what that means. Does that make I mean am I missing something? Do you do you understand what they're asking? Um I'm not sure what the medical and >> yeah federal actually means but I yeah the judge is not bound by any prior determination. The judges new set of eyes making a brand new decision and judges typically go through the same gambit of questions uh to learn about what are the severe impairments, what are the functional limitations. So it's basically a brand new slate when you get to a hearing.
>> All right. And this is a second part of Martin um Martini shot. I suspect the person who denied my original application of my appeal even though medical review federal review are favorable. No clue I read my not read my job descriptions.
Let me let me look let me let me just address this kind of big picture. Nobody likes to get denied. No no question about it. Nobody likes it when an adjudicator, someone who you've never met, somebody who's never been, never seen you, um, and just looking at medical records, denies you. Um, in what you're writing here, you're kind of assuming kind of nefarious intent to it.
And I don't think that's a good way to look at it. I mean, the adjudicators are doing, you know, they're making the decision based on, you know, the the the I guess the the the direction they've been given, the the decisions or the opinions of the medical specialist. It's not personal. Um, they don't know you and again, they're under pressure to to limit the to only approve people that are clearly uh, you know, should be approved and a lot of them don't have a lot of time to work, but there's not usually not anything nefarious in there.
I'm kind of getting a sense here that you're sort of seeing this as a personal attack on you and I think that's not a good approach because a judge is going to not find that compelling.
Um would you agree? I mean would you guys agree that's just I don't I don't think you want to take that that tack where it's you know they I sometimes the judge lied. The judge didn't lie. The judge just made a decision that was not favorable to you. That's not the same thing as you know that that's personal against you. Um, okay. Time for a couple more here. Um, all right. One grandm seizure five years ago, lost consciousness, taken to hospital for three days, take daily medications for life, was fired, no work since, using medicine. Brain fog is you.
Again, this is an example of in a seizure case. You had a grandma 5 years ago. It seems to be under control with medications. If the medication side effects are significant enough to make it impossible for you to function in a simple entry- level job, then perhaps you win. But the grand mile seizure part is probably less important other than to explain why you're on these medications would be my take on this.
Um, okay. Uh let's see if we've got um okay so Michelle says writing briefs in case of paper due to actual hearings.
Okay. And then you that's again perfectly fine. Um just try to listen to some if you can. Okay. Let's take this last one then we'll call it a night. Um severe rheumatoid arthritis with fibromyalgia. 57y old male works since 1989. applied for SSDI September of 25, denied last month, claims some limitations, able to perform previous work, which is physical security, yet you cannot function. All right, Sydney, this person comes to you. What do you tell them?
>> Yeah, so I would say that uh just based on reading that, it would appear that you do have a more favorable chance of being approved based on your age and your diagnosis.
Um, however, security work nowadays has changed and the concern would be that they found that you could do a position that was similar but maybe not as physically demanding.
Uh however, if you were required to stand and or walk for six to eight hours or if you were required to frequently lift 10 pounds or occasionally lift 20 pounds, you would have a great shot at approval at the hearing level. You should just work on getting some medical opinions from your providers to demonstrate that you have a um light or sedentary RFC.
>> Yeah. And that would that would be for the grid rule. If you look at I have a website grid rules.net. If you look at the light grid rules like 202.06 or 202.04 I think and you got RA um I think you probably have a pretty good way to argue that you'd be limited to light work or less. And then um if you've got no transferable skills um depending on what you've done physical security probably not going to have any transferable skills. Um, you know, I think I think you got a got an argument. Again, I'm still going to tell you male fibromyalgia not my favorite, but RA is, you know, I think a little more I think going to give you a little more argument. Jeeoff, anything to add to that?
>> Yeah, the severe RA that tells us he's got the um what is it? [clears throat] The u the positive RNA or um that's the objective there in fibromyalgia. If you haven't had a a trigger point exam, make sure you have one of those. Um, and this is a kind of case where, you know, when when you're over 55, there is a little bit of, you know, strategy that goes into that work history report. You the the note here says physical security.
So, make sure you emphasize the heaviest weights. You'd have to lift and carry as that security. Maybe that gets classified as a medium job by the vocational expert and you can um grit out at the 20206.
If, let's say, it was more of a lighter security job and there's difficulties in mobility, try to get a a cane prescription from your doctor because that could get you to sedentary and then you'll grit out at the 201106.
>> Yeah. And you and just and just one quick point you raised and I think it's worth mentioning a at the state agency level, the state agency will identify many times they'll identify jobs using a DOT code. Many times at hearings the VE will come up with a different >> um DOT code which might be more or less restrictive. I may offer a third one.
So, you know, I'm going to look at that person's, you know, job description and you look at the DOT and I'm not a vocational expert, but some jobs are what they call composite jobs where they may include two DOT codes and the judge has to look at the most limiting or the most physically demanding of those uh jobs um when they figured out whether you could do past work again for grid rule purposes. So, you know, it may be that the job, you know, is described one way, but there's another DOT code that's closer to what you actually did. Even though the job description may have been, you know, physical security, maybe there's another job title in the DOT, which is medium that really describes what you did. So, just things to look at. Again, you know, when we're preparing cases, we're looking at the what the state agency did, but you got to sometimes get creative and just you can't take anything at face value. Just because the adjudicator called it a particular DOT code, doesn't mean that's the DOT code. And just because, you know, the the vocational witness calls it a certain DOT code doesn't mean that there's not another one that could apply or that, you know, that there's a composite element to it that there's a second code that maybe part of that job is involved. So, you know, I will just say this. When you're filling out your work description, your work history form, be very careful about how you and be very specific of what you did. And, you know, really emphasize the physical part of it. If you, you know, once a quarter you had to lift 75 pounds, put 75 pounds is the most, you know, we had you had to lift because that's part of the job description. Even though you'd only did it once every two, you know, once every three months, you had to do it. So, that counts. And I think, you know, people overthink it and say, "Well, I'm only going to do that once every three months. I'm not going to put that down." No, you got to put that down or I got help. So, no, you put it down because that was you're supposed to be doing it or you did it at one point, then you stopped doing it. So, anyway, all right. I'm blabbing enough here. Um any final thoughts? Let's start with you, Sydney. Any final thoughts um about uh about some of the questions you've got or about how to best approach disability cases?
Um, well, I just want to first thank you for having Jeff and I on here, and we'd love to come back if you have any additional questions for us. But as far as disability cases go, um just be sure that you are being treated for your conditions, that you are relaying all of the symptoms that you experience to your providers, and that you are doing your due diligence in filling out any forms that come in and ensuring that you are attempting to get disability assessments completed by your providers. Those go a long way for cases. Yeah, I I would agree. A a statement from a doctor and a functional capacity form, a narrative report, medical source statement addressing vocational issues can really make the big make the difference. Uh Jeff, uh any final words and also tell people how they could reach out they where they can find you online.
>> Sure.
>> Well, first thank thanks Jonathan for having uh Sydney and I on.
>> Sure. Absolutely.
>> First I have to acknowledge Sydney. Uh she's been with Desert Disability for uh just over four years and I I I remember when she first started I had her watch a slew of your videos actually as a little entry point. Um and then to [clears throat] see her flourish in her role as a hearings parallegal and then to take and pass the EDPNA on her first time and and perform extremely well on it. Uh I'm I'm very proud of you Sydney.
Uh it's been remarkable to watch your professional development and I'm very glad that I've been a part of that journey for with you as well. Um Jonathan, I myself when I got into this area of law, you were one of my mentors.
I I watched practically every single video you had on your YouTube channel, I watched other attorneys videos, and the reason why I gravitated towards yours is because of how natural you are. And also they're they're shorter videos so it keeps the you know limited attention span these days. But um I you could tell right away in watching your videos that you just knew your stuff. You know you're an experienced attorney. You've been doing this your whole career and you can see that right away in your videos. So I want to thank you for you know not just making all these videos but you know for really um uh you know the the type of person that you are. uh you're paying it forward through your channel and uh I'm a product of that. So I wish to thank you and >> thank you very much.
>> Just the [clears throat] audience you listening there there when it comes to that work history report here's my final tip. Some people when they fill it out, they fill it out based on how they last performed it with potential accommodations where they might not have, you know, performed it, that job throughout the entirety of that career, but rather how they filled it out in the last month or so. That's a big mistake because usually you're going to fill that out [clears throat] without highlighting those heavier weights and or the standing and walking requirements. So, just make sure you fill that work history out highlighting those, you know, those heavier weights, especially if you're 50 or older.
>> Very good. I think that's great advice.
Well, thank both of you for taking your Wednesday evening to visit with me.
We'll definitely do it again uh in the near future. I hope uh I assume it's probably rather warm out in the Phoenix area, so uh stay cool. Um it's kind of warm here. It's very hot and muggy here in Atlanta. So about it was about 90° and about 85 90% humidity. So uh I'm sure it's h it's a dry heat out there but a little warmer. So uh anyway uh we will see you guys soon and thanks again and everybody thank you all for tuning in. Uh we hope that you found this uh enjoyable and entertaining and we'll do it again next week. Take care. Bye bye.
>> Bye. Thank you for driving.
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