Vocational Evidence & Credibility

Evidence is divided into objective and subjective evidence. Examples of objective medical evidence are clinical observations and diagnostic tests, while symptoms are subjective. Disability claims are frequently rejected for lack of “objective” medical evidence, or are denied on the grounds that the claimant’s subjective complaints are exaggerated or lack credibility.

Just as it is important to emphasize the objective medical evidence that supports a claim, the objective vocational evidence that supports a claim should also be highlighted. Most claimants overlook how vocational evidence can support their credibility, making it more difficult for their claim to be denied for lack of objective evidence.

One of my client’s disability applications was just approved without ever having been denied. While the claimant had medical evidence supporting his claim, there was no diagnostic testing to support his claims, just clinical records and reports. Nonetheless, the claimant’s application was approved quickly because of the emphasis placed on the vocational evidence.

It is well established in the courts that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant stopped working she did so for the reasons testified to. The presumption of credibility is even stronger where a claimant has a long work history of continuous work at the same employer.

My client’s disability application only wanted the claimant’s work history for the last 15 years. However, I stressed the claimant’s extraordinarily strong, continuous (40) forty year work history. I explained how the claimant’s work history provided objective evidence that rendered his subjective complaints credible. Considering the majority of disability claims are denied initially, and my client did not have unusually strong supporting medical evidence, the emphasis on his vocational evidence was critical to his obtaining benefits quickly

The More The Merrier

The saying, “The More The Merrier,” is particularly apt when applying for disability benefits. Most disability applications do not require more than one treating source as a prerequisite to receiving benefits. However, as the number of supporting sources increases, so too do the chances of securing disability benefits sooner.

I had a perfect application of the more the merrier saying to a disability claim last Friday. I represent a 46 year old health care attendant with her Social Security Disability (“SSD”) and her Disability Pension Retirement (“DPR”) claims. It took only a few months for her SSD claim to be approved, which should increase the chances of her DPR claim, which was just filed, also being approved. An SSD claim typically takes much longer than just a few months to be approved, particularly for a claimant less than 50 years of age.

My client’s claim was approved quickly because supporting reports from three treating sources were submitted. While the claim could have been approved eventually by relying solely on one of the physicians’ reports, it is highly unlikely that the approval would have occurred after only a few months.

When filing a disability application it is critical to ask as many treating sources as possible to prepare supportive reports, even if the doctors or other health care providers are not treating the primary medical condition. If treating sources will not complete paperwork, which happens fairly frequently for a variety of reasons, then start treating with other health care professionals who will. The sooner multiple treating reports are submitting to support a claim, the sooner the claim is likely to be approved.

Always Check The Listings

When applying for Social Security Disability (“SSD”) benefits, make sure to check to see if the disabling impairments meet a “listing”. If a claimant meets the criteria of a “listed” impairment contained in the Social Security regulations, then the claimant’s medical condition is considered to be so severe that the claimant is presumptively deemed disabled and entitled to receive disability benefits.

Despite the fact that many SSD claimants are able to submit reports from medical sources opining that the claimant is disabled, a large percentage of those claimants’ applications are still denied by the state agencies making the initial disability determinations. Submitting evidence that a claimant meets a listed impairment significantly increases the chances that the SSD application will be approved.

I filed an SSD application for an attorney last May, even though he is still working on a limited basis. While it was clear that the work isinsufficient to preclude SSD benefits, working usually gives the state agency the excuse it needs to disapprove an application. Nonetheless, I succeeded in getting the application approved in only three months’ times.

Like all of the claims I handle, I promptly submitted medical records and reports from the treating physicians. However, few applications are approved in only three months. The difference here was that I was able to show that the medical records met pulmonary listings. I have no doubt that the claimant’s application would have been approved without the memo explaining how the test data met the criteria of listed impairments. However, by providing that memo the application was approved much faster.

Avoid Early Retirement

Social Security Disability (“SSD”) benefits are available up to your full retirement age. When I submit an SSD application for a claimant who is over 62 years or old enough for early retirement, the Social Security Administration (the “SSA”) frequently suggests that I withdraw the SSD application and file an application for retirement benefits instead. The SSA reasons that it can take months, if not years, to get SSD benefits, while retirement benefits take relatively no time at all to receive after filing for them. I advise against withdrawing the SSD application.

I filed an SSD application for a 62 year old client last November. The SSA repeatedly argued that withdrawing the SSD application would be to my client’s benefit because he would not have to wait a long time to receive early retirement benefits. Despite rejecting the SSA’s advice, it sent a letter last March “confirming” the withdrawal of the client’s disability application, which I immediately disavowed in writing.

It took longer than usual to get the SSD application approved, eight and a half months, which may be related to the claimant’s refusal to withdraw it in favor of filing a retirement benefits application. Despite the delay, the client will ultimately be in a stronger financial position for refusing to withdraw his SSD application. SSD benefits can continue until the individual reaches full retirement age. By avoiding early retirement, the client’s eventual monthly retirement benefit will be larger.

LTD & SSD

Just because you qualify for long term disability (“LTD”) benefits does not mean that you qualify for Social Security Disability (“SSD”) benefits, and vice versa. I have a 40 year old client from Wisconsin who was denied SSD benefits even though he had been receiving LTD benefits for years.

After reviewing the client’s LTD and SSD files I learned that the client was relying primarily on medical evidence from his chiropractor. The medical evidence previously submitted revealed that a cervical disc was deforming the claimant’s spinal cord. The claimant also submitted an attending physician statement from his chiropractor, which concluded the claimant was permanently disabled and had a less than sedentary residual functional capacity (“RFC”). While the contractual language of the LTD plan did not distinguish between a chiropractor and a physician, the Social Security Administration (the “SSA”) regulations do.

On appeal, I obtained two things from the claimant’s neurologist. First, an opinion that the claimant met a “listed impairment” of the spine. Second, an RFC assessment concluding that the claimant could not do sedentary work. Additionally, I obtained an RFC assessment from the claimant’s family doctor that also concluded the claimant lacked a sedentary RFC. I submitted the evidence in connection with a request for a fully favorable decision on the record (“OTR”).

Based on the new medical evidence the claimant’s OTR was granted. Therefore, not only was the claimant’s application approved, but he did not have to appear for a hearing, which probably would not have been scheduled for another year or two.

Getting Benefits Faster

It is true that in order to obtain Social Security Disability (“SSD”) benefits you only need one treating physician to support your application. However, with only one supporting medical source it may take you several levels of appeals, possibly including having to go to federal court, to secure SSD benefits.

One of my client’s with neck, back and shoulder impairments had his application approved in only four months. The claimant is being treated by a neurologist, which is an appropriate specialist for his impairments. However, if I had only submitted medical evidence from the neurologist, it is unlikely that the application would have been approved so quickly.

I obtained medical reports from the claimant’s family doctor and chiropractor. Although not a specialist, because of the family doctor's long term treatment of the claimant’s overall health, he was familiar with the claimant's medical status, which rendered that doctor's functionality assessment significant. And while the chiropractor is not a medical doctor, the frequency of his treatment rendered his opinion regarding the severity of the claimant’s condition important. Additionally, I referred the claimant to a rheumatologist and a physiatrist, whose opinions corroborated those of the other treating medical sources.

Thus, instead of presenting one medical opinion to support the claimant’s application, I submitted five. Since most estimates are that it typically takes a year or two to secure SSD benefits, the additional medical support obviously was instrumental in securing the rapid approval.

Medical Records & Reports

Disability claimants frequently express shock and befuddlement that their applications for benefits were denied despite the fact that they submitted records from their doctors who all support the claimant’s inability to work. Many of these claimants’ incomprehension results from their not being aware of the difference between treatment records and medical reports.

A common rationale given for denying a claim is that while it is not disputed that the claimant has the alleged medical condition, the medical evidence fails to show that the condition is serious to prevent the individual from working. The treatment records typically provide a diagnosis identifying the medical condition, and treatment for the condition. Diagnostic tests can corroborate the clinical findings that led to the diagnosis. However, records and tests usually do not address the extent to which the medical condition affects the patient’s ability to function or work because that is not the doctor’s focus.

Yesterday, I received an approval on an LTD claim illustrating the difference between medical records and reports. The claimant had submitted records and confirming tests from five different medical specialists, each of whom supported the claimant’s application for disability benefits, yet the application was denied on the grounds that there was no evidence that the claimant’s back condition was severe enough to prevent him from working. On appeal, without securing any additional treatment records or tests, I obtained reports assessing the claimant’s functional capacity from each of the specialists. The claim was approved after the reports were submitted.

When seeking disability benefits, it is imperative to submit reports addressing functionality. It is the functionality opinions, backed up by the treatment and test records, that reveal the severity of a medical condition.