How To Win Your Disability Claim!
Lesson 5 - Top Reasons Why Claims Are Denied And 
How To Appeal Your Denial

Attorney Karl Osterhout  gives a step-by-step explanation of the
denial and appeal process for a Social Security Disability claim.  

(Learn how to go over Social Security's head and appeal your claim,  
how to select the right lawyer that will get the job done,  and why you should 
think twice before giving up on your denied disability claim!!)



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Up to this point, we have discussed how to improve your chances at winning your Social Security case. Now, let's talk about common problems that can hurt your case.

Problem #1: Lack of on-going medical treatment. It is very hard to win a Social Security case when the only medical records on file are two or three emergency room visits dating back a year and a half.  Judges expect you to seek regular medical treatment, even if treatment is at a free clinic or public hospital.

Problem #2: Absence of a treating physician who is willing to help you. We must accept the fact that some doctors do not believe in the idea of disability. Some doctors feel that your well being will be hurt if you are labeled as disabled, while other doctors have a problem with bureaucracies like Social Security. I know doctors who refuse to fill out forms. Others produce unreadable, handwritten medical records.

If you make the difficult decision that you are unable to work and that you need to obtain disability benefits, you need to have a talk with your doctor. Let him know that disability is a last resort, but that you believe that you may qualify. Ask him if he will support you if he will fill out forms or write a letter or two.

If your current doctor is uncooperative, you may want to find a different doctor. Remember, you are trying to win a case and you need to assemble as much helpful evidence as you can. Medical records from a doctor with a grudge against the system will probably not help.

Problem #3: Statements in your medical record that you are malingering. A malingerer is someone who exaggerates or fakes symptoms for the purpose of staying off work or getting pain killing medication.  If you are labeled as a malingerer by one doctor, other doctors will pick up on the characterization and suspect you even before they have met you.

Medical schools now train physicians to identify symptoms of  malingering. As a result, when you see a doctor, tell the truth, don't overstate your symptoms and always have the attitude that you want to feel better and that you would work if you could.

Problem #4: Evidence of drug seeking behavior. I have seen instances where a patient will see two different physicians for the same problem, each of whom prescribes a narcotic pain killer. Besides being unhealthy and dangerous, this type of behavior will damage your chances at recovering Social Security. In fact, a judge can  deny your case if he feels that drug or alcohol abuse is a material contributing factor to your inability to work.

If you call your doctor asking or demanding a refill of a pain killing medication, that request will go into your record.  If your medical condition is one that requires narcotic pain killers, discuss with your doctor your concerns about continued use and possible addiction. You want your doctor to see you as a reluctant consumer of pain killing medications.

Problem #5: History of alcohol or drug abuse. If you have a history of alcohol or drug abuse, you can expect that the judge will want to know more about this part of your life. Help yourself by attending Alcoholics Anonymous or a drug abuse support group. Demonstrate that you have been sober and compliant with your sobriety program. Recognize that any lapses on your part will hurt your case. And finally, don't lie about your past or any drug or alcohol problems. There is a good chance that your medical record will expose this problem to the judge.

Mr. Jonathan Ginsberg, an experienced disability attorney, recently tried a case for a client with a psychological problem called PTSD (post traumatic stress disorder). This person had a history of drug abuse and had sought help at a psychiatric hospital. The record showed that he had attended his meetings regularly for about 18 months, but that he had relapsed and had positive drug tests recently. At the hearing, his client denied any relapse and claimed that the lab must have mixed up his records.

As you might imagine, the judge did not believe him. Further, by lying about his drug use, my client called into question the truthfulness of his other testimony.

Problem #6: Lack of current medical records. When you fill out your application for benefits, Social Security asks for the name, address and phone number of all of your physicians and health care providers. If you leave one out, those records will not be part of your file. Further, if you are denied, the denial letter will identify which records had been received and were used to make the decision.

You need to take an active role to make sure that Social Security has an updated list of all physicians and current records. Read any denial notices. Encourage your doctor's office to cooperate with Social Security. Help build a solid medical record by asking your doctor to create a letter or fill out a form that identifies the specific work like activities that you can no longer perform.

Here's another tip. If your reconsideration appeal is denied, you will receive a denial notice. You then must request a hearing (Form HA-501-U5) within 60 days from that denial. If you fail to appeal within this 60-day period, your claim will be closed and you will have to start all over again. Your hearing may not be scheduled for eight months to a year -- possibly even longer. During this period, no one will be updating your medical record unless you or your lawyer do. Why?

When a hearing is requested, your file is physically moved from the Disability Adjudication Section (DAS) to the Office of Hearings and Appeals (OHA). Unlike the DAS, the OHA does not have staff in place to request updated records. Thus, you or your lawyer needs to periodically update the OHA with current medical records.

Therefore, if you or your lawyer does not make the effort to update your medical record with the Social Security hearing office, you may find yourself at a hearing before a judge who will be upset that there are no records from the past year or longer.

So, if you have requested a hearing, remember that you - not the Social Security Administration - must take the responsibility for updating your medical records.

That's all for today. Tomorrow, I am going to explain why Social Security takes so friggin' long to make a decision.

   The Disability Answer Guide is the comprehensive, step by step, Plain English instruction manual you need to help you apply for and win your case.  You'll discover real-life examples of over 100 pages of Social Security forms you'll be dealing with before, during, and after being processed through the disability system. 

     Each form is filled out with sample answers for you to copy and modify. If you are in pain or have trouble concentrating, this will save you time and stress and eliminate a lot of frustration. 

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Brian Therrien
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