7 Errors that Sabotage

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Montana Injury Attorney SOLOMON S. NEUHARDT, II

About solomon neuhArdt Solomon Neuhardt has been representing individuals against insurance companies for years. Hopefully you have already visited www.mttruckaccidentattorney.com, including up to date information about Montana truck accident settlements and verdicts.

•SolomonNeuhardtwasselectedforthe2006“Billings Business40Under40”whichconsistsofthe40most successfulbusinesspeopleundertheageof40.

•SolomonservedasaconsultantforCourtTVduringthe trialofStatev.Bieber,alsoreferredtoasthe“TinyTots DaycareCase”whereSabineBieberwasconvictedof negligentlykillingonechildandseverelyendangered otherchildrenbydruggingthemwithhighdosesofa Benadrylequivalent.

•Solomonrepresentsindividualsandfamiliesincases involvingmotorvehicleaccidents,semitruckaccidents, seriousphysicalinjuries,traumaticbraininjuries,wrongful deathcausedbydangerousordefectiveproducts,medical orhospitalnegligence,premisesliabilityandinsurance disputes.

•SolomonisaMemberoftheMontanaTrialLawyers AssociationandtheAmericanAssociationforJustice (formerlytheAmericanTrialLawyersAssociation).

Solomon grew up in Billings, Montana, attending Billings Senior High School, the University of Montana and then the University of Montana School of Law.He enjoys skiing, riding his motorcycle, and tennis. He has traveled internationally to many countries including Russia, Sweden, Germany, France, Holland, the Czech Republic, and the Ukraine.

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7 Errors That Sabotage Social Security Diability Claims

“My name is Sol Neuhardt. I wrote this book to

fi ll a gap in the information available to the public

about Social Security disability claims.

“I hope this material has made you aware of

the importance of obtaining good legal advice with-

out delay.

“If you have any questions or comments, please

call my offi ce in Billings at (406)-294-9540 or toll

free: (888)-820-3346. You may also visit us on the

web: www.mtaccidentattorney.com.

Thank you for your kind attention.”

ERRORS THAT SABOTAGE

SOCIAL SECURITY

DISABILITY CLAIMS

2


Copyright 2010 by Solomon S. Neuhardt, IIAll rights reserved.

No part of this book may be used or reproduced without the written permission of the author.

ISBN: 978-0-615-42821-5Solomon S. Neuhardt II945 Broadwater SquareBillings, Montana 59101

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Neuhardt Law Firm

One of the things we are proud of at Neuhardt Law Firm is how we treat our clients. Unlike big-box firms that may rely on quick turn-arounds and an extremely high volume of cases, I take the time necessary to review each case myself.

I know that clients are often scared, confused or overwhelmed. They often feel powerless in the face of government bureaucracy. This is only natural after a serious diagnosis or a life-changing injury. Part of my job is to reassure you that there are real options and that my firm is able to give the proper guidance and aid. You should not feel any pressure to make a snap decision or an uninformed choice.

I strive to connect with clients on a personal level; to listen and understand their particular circumstances; and to be honest and realistic in return.

I will not lie to you. If you have no hope of collecting on a claim, I will tell you. However, the situation is more often reversed; people think they do not have a case when they actually do.

Please take the time to find out more about Neuhardt Law at the firm’s website: www.mtaccidentattorney.com.

Thank you,

Solomon Neuhardt

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Remember, each client makes the decision on whether to proceed.

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Recent Testimonials

“Solomon Neuhardt is a young, enthusiastic lawyer. He is will-ing to go the extra distance for his clients.

Sol has been there every step of the way for us. He has always returned our phone calls, even when he himself was out of town. That says a lot about the communication he has with his offi ce personnel.

Though we are located way outside of the Billings area, Sol had driven many miles to be there for all of our court dates. Sol has a very calm demeanor to him, which had gone a long way towards calming down this obsessively worrying client. Amazingly, he is still not completely gray. One wonders, but I guess only his hair dresser really knows.

Sol looked at our case from all possible angles and then pro-ceeded in our best interest. We will, and do, recommend him to all our friends and others who know us.”

~Dave and Michaelle Kirchner~

“Recently my daughter required the services of an attorney. Solomon Neuhardt was recommended to us. Solomon brings a personal touch to his clients’ problems, rather than treating them like a “number”. We would highly recommend Sol to anyone who needs a personable, reliable, knowledgeable at-torney who goes above and beyond the call of duty.”

~Susan Lynch~

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Some Final Thoughts

I hope you’ve found this book to be informative. Take some time to review the information. The more you understand how the Social Security system works and under what conditions you will receive benefits, the better.

The seven errors we’ve gone over are some of the most common. Unfortunately, a booklet this size can’t contain every problem that arises in disability claims. I’d like to encourage you to contact Neuhardt Law Firm with any questions you may have.

Case evaluation

If you decide you would like to explore opening a disability case, the first thing we will do, after obtaining some basic information (medical history, employment history) is to do an initial evaluation. One question always comes up, and it’s of primary importance – are you still able to work or not?

It takes a strong person to answer this question honestly, but it will guide the next year or more of your life. If you are truly unable to work, it’s a hard admission to make. Pride will keep people trying past the point where they should seek help. On the other hand, if you are able to work and decide to pursue a claim anyway, you may be wasting a year or more under financial stress for nothing.

Think about this and be honest with yourself. We can tell you whether you have a strong or a weak case, and give you an initial recommendation. You will not have to commit to our services until you understand your options.

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How do I find a good disability attorney?

This seems like a hard question, but it isn’t. Lawyers who handle disability claims understand their role has an outreach element built in. So they are advertising and promoting their firms on the internet and elsewhere. In short, they are trying to connect with you.

At the end of this booklet, I give my contact information for just this reason. Other ways people come to our offices include:

• Word of mouth recommendations – if you know someone who had a successful claim, this is a good way to get another perspective.

• Doctor or other professional recommendation.

• State bar association or online directory.

• Direct recommendation from another attorney.

This last may surprise you. Indeed, other attorneys will refer clients to us when they do not have the expertise to handle a Social Security claim. This is because injury law is a sub-specialty and not all lawyers feel they can render the best service in this area.

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“Sol was very dependable. He was very loyal and punctual. He is a hard worker and he really helped me out in a time of de-spair. I would defi nitely recommend him to friends and family.”

~Dan Wood~

“I would like to recommend Solomon Neuhardt to anyone who needs legal help with a caring and concerned attorney. Solo-mon has helped me tremendously when I needed an attorney and didn’t know where to turn. He was always there for all of my questions and concerns. He made a scary process much easier to deal with.”

~Ashley H. Sannon~

“He is a great lawyer. Sol did what I needed him to do and got the results I wanted. He was available for me when I had ques-tions or concerns. I will defi nitely use him again in the future if I need to. I have and will continue to refer friends and family to him.”

~Julius Koch~

“Solomon was very professional and respectful. He got the job done with absolutely no stress for me. I was very happy with the end results of my case. He was always available when I needed him. I never had to worry about things getting done. I would refer Sol to anyone.”

~Syd Eliason~

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“He has fantastic personality and is a fantastic lawyer. I was most defi nitely satisfi ed with the results of my case, my expecta-tions were very high and he met them. He was very helpful and did his job. He has a very good character. I have referred him to a friend and I will continue to refer him.”

~Andrea Axtman~

“Very satisfi ed with his services.”~Paul Blinkinsop~

“I feel like working with Sol went really well, he’s been straightforward and honest as far as looking out for me. He did what he did to try to cut costs and give us the best price pos-sible while making sure he didn’t cut corners on his service and gives every bit you pay for. I have referred him to friends and family and will continue doing so. I was looking for someone who would give me good, accurate legal service and be fair. He defi nitely got me the results I wanted.”

~Rob Carpenter~

“Sol is great. This is the second time I’ve worked with him. I chose him again because he did such a good job previously. He has a good attitude and that made me have a positive outlook on the whole situation too. Sol got the best possible deal for me. I would defi nitely refer him to anyone looking for an at-torney.”

~Amanda Heckel~

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entire government is not. They function as a needed buffer between you and the Social Security Administration.

• In some cases, your lawyer may help expedite your claim and get a quicker decision.

• Your lawyer will review your award and make sure you are getting the correct amount, the amount you deserve – including back payments.

So why don’t some people get legal help?

For many, it is simply ignorance. If they have never dealt with an attorney, they are not familiar with what an attorney does. Perhaps their view of a lawyer is formed from television or movies – a dashing courtroom advocate who solves the murder at the last minute. In truth, a lawyer’s job is more boring, but also much more useful.

The real job of an attorney is to help clients negotiate a path through a complex and confusing legal system. Lawyers thrive on understanding the details of the regulations. They use this knowledge to win cases. Smart, successful attorneys do this, and they do it every day.

Another objection is cost. Disability attorneys are paid based on performance. They will get a portion of the back payments due. If you do not collect, they do not collect.

A successful injury attorney counts on winning enough cases and getting larger awards for their clients – this is the only way for a firm to prosper. And your chances of getting a higher award are greatly improved by hiring an attorney.

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ERROR #7: Representing Yourself

First, let us tell you that some people do represent themselves and have a successful outcome. They have been able to learn the system well enough to become ‘junior experts’ and we admire those few who can do it. It’s still an error though – sure, they gambled and won, but why gamble at all?

The likelihood of winning a full and fair disability case is less without professional help.

Generally, here is what a lawyer who practices in injury and disability cases will bring to the mix:

• They will check your medical, employment, and supporting documentation and make sure the DDS has all relevant items that support your claim.

• If your claim will be improved with further medical (or other) documentation a good attorney will address this and help you get the proof you need.

• Your lawyer will have studied and learned from previous cases – as well as kept up on the latest ideas and methods other lawyers are using. They will apply this knowledge to make the best argument in support of your claim.

• They will look to see if previous filings for benefits can be reopened or if you qualify for other income from sources you may not even know exist.

• They will act as an expert advisor and help you deal with the frustrations and setbacks that occur. An attorney is on your side, even when it seems the

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“Solomon is a great lawyer and an easy person to work with. No matter how many questions I had, he was very prompt at answering them. He is very professional and knowledgeable at what he does. If anybody that I know needs a lawyer, I will defi nitely without thinking recommend them to Solomon.”

~Doug Dewitz~

“Sol did exactly what he said he’d do, was always available and even came in on a Saturday for us. I would and have referred him to my friends and family. I have his sticker on the back window of my truck.”

~Nick Zugg~

“The fi rst time I worked with Sol, he fought for my probation extension to be dropped. Basically, every time I’ve needed anything he just made it happen. Previously my expectations of working with any attorney weren’t very high but now they are. I know that Sol can get me anything I need. I can walk into his offi ce, no matter what, and sit there and talk and not have any anxiety about it. I tell people all the time about him and any-body who needs an attorney, I give them his number.”

~Kerry Dangerfi eld~

“My name is Harley Wildman and I was in a lot of trouble with the law. I was looking at a lot of time and my lawyer had dropped my case. A friend told me about Solomon Neuhardt. He was way more helpful and friendly than my last lawyer so I hired him and he got me out of going to jail. It surprised me because my last lawyer said I would be going to prison. I consider Solomon to be a close friend and the best lawyer I’ve ever known.”

~Harley Wildman~

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“I was charged with a DUI and Sol was able to get it reduced. Sol is a great lawyer! He makes you feel at home in his of-fi ce. His staff is very polite as well. Sol worked very hard on my case and took good care of me. I recommended Sol to my friends and family. I would like to thank Sol and his staff for taking such good care of me.”

~Joe Warren~

“Solomon exhibits mastery over his fi eld while maintaining a focus on his client’s interests. While working on cases with him, I have witnessed skill, tact and a keen sense of strategy. His growing practice and his ability to adapt to an ever chang-ing and challenging environment attests to his leadership. In litigations, he is a true courtroom warrior that thrives on the challenge—a challenge that would wilt others. I have witnessed his courage. He is willing to introduce cutting-edge arguments that challenge the status quo--as long as they will advance his client’s case. I would hire him in a heartbeat.”

~Genet McCann~

“Solomon is very knowledgeable about the law and knows how to get the work done in a timely manner. He is very honest and professional in his dealings with people. A great resource of Real Estate Law; I would recommend him to anyone.”

Top Qualities: Great Results, Personable, and High Integrity~Charlie Hamwey~

“Solomon provides excellent work and keeps his clients up-to-date on his efforts keeping in mind how to best serve his cus-tomers legally and professionally.”

Top Qualities: Great Results, Personable, and Good value~Christopher Fryett~

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ERROR #6: Unemployment Benefits

It is stunning how many otherwise intelligent people make this mistake. When you file for unemployment benefits, you are stating that you could work, but there is no work available to you. When you file for disability, you are claiming that you cannot work, even if there were work available.

The two filings are at odds. One says, “I can work” and the other, “I am unable to work.”

Perhaps it is a need for income that fuels this error. But from the Social Security Administration’s point of view, you are either committing fraud or filing for disability by mistake. In either case, it is grounds to deny your claim, or at least refuse to award any benefits for the time period you collected unemployment.

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ERROR #5: Damaging Your Credibility

A disability claim is a request for money due you. You have every right to collect it if you meet the qualifications. The job of the Social Security Administration, and the administrative judges who will hear your case, is to determine whether or not you qualify. The two main supports of your claim are your medical records and your own credibility.

Every year there are many claims that are denied. A significant number of those are based on fraud or deceit.

If you have a ‘golden diagnosis’ your medical records may be enough to establish you have a valid claim. However, in most cases, your medical records partially reflect what you report to your doctor. No one can see inside your head when you report pain or state that you cannot move in a certain way.

Your credibility is affected a great deal by how consistent your statements have been. Everyone knows this – when a story changes in response to objections, it’s a sign of lying or exaggeration. A consistent record shows you have been honest and upfront.

This means that all your descriptions should be as accurate and truthful as possible. Everyone you talk to, doctors, Social Security employees, your past employer, friends, relatives, and your attorney – there is no reason to tell a different story to anyone.

A lack of credibility will make a judge suspect your complaints are not genuine.

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“In 2009, my son was a passenger of a car involved in an auto accident that resulted in high dollar medical bills as well as life-long injuries. My son and I hired Solomon Neuhardt to represent us and help us legally pursue the parties responsible so that I wouldn’t have to absorb all my son’s medical bills/costs as a result of the accident. Sol is focused and detailed oriented. He listened and showed a deep sense of understand-ing and respect for my concerns. He is very knowledgeable and is good at what he does. He has the drive and experience. Hiring him has given me peace of mind because he is trustwor-thy, consistent, and reliable. If you need legal advice or need representation, I would recommend Solomon Neuhardt.”

~Jill Vasseur~

“Working with Solomon has been a great experience. I have worked with him for several months now. So far he seems to always have his clients’ best interests at heart and works to ensure that they can fi nd the information they need as easily as possible. He has a great sense of humor, he is smart and he has a strong work ethic. I hope we continue working with each other for many years to come!”

~Jennifer Anderson~

“Solomon Neuhardt’s expertise in handling personal injury cases is second to none. He is a dedicated, hard working at-torney, who, in my opinion, is about principle and integrity. It is not about the money to him, it is about doing what is right in the best interest of his clients. I truly believe that this man would pro bono a case if he felt he did not represent a client to the best of his ability. I feel fortunate that I made the choice to hire him to represent me. I live by honor and I believe he is a man of integrity and honor. I feel very confi dent in having him represent me.”

~Laurah Peron~

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“Solomon’s work ethic and attention to detail coupled with a consistent, reliable, punctual and selfl ess demeanor are an excellent recipe for success. I highly recommend his service, counsel and excellent direction.”

~Robert Berhow~

“Sol is articulate and committed to the important things in life. He spends a great deal of time studying different ways to mar-ket his fi rm. I would consider him a very driven individual with a great deal to offer. He is a caring person that has provided me with great advice when I needed it. I am glad to know him.”

~Jody Bergstrom~

“Solomon is a detailed and energetic personal injury attorney who puts in long hours at night and on weekends to get the case right. He is always prompt about sending complete medi-cal records and all information I request.

Solomon knows that using experts who provide an honest opinion of merit is always in the best interest of his clients. It has been a pleasure working with Solomon Neuhardt and I look forward to serving more of his clients.”

~Susan Schaab~

“Solomon is not just an incredible lawyer, but an all-around great guy. I’ve had the chance to help him with some market-ing, but it doesn’t matter how many headlines you get in the paper and interviews you get on TV if you aren’t running your business with honor and integrity. He’s the real deal.

Give him one percent of your confi dence. He’ll earn the rest!”~Jeff Crilley~

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ERROR #4: Failing to Contribute to Your Case

What I mean by ‘contribute’ here is time, effort and attention.

The application and appeals process can be a very stressful one. Often, clients get understandably upset at the slow and painful way their government is treating them. However, if you take out your frustrations by being ‘difficult’, you are only hurting yourself.

There will be long pauses where nothing seems to be happening and then out of the blue a request will come down. The DDS may call and request information or a send you a letter about a missing document. They may want you to see a different doctor or ask you to have a test done.

You need to take these requests seriously and act on them. This will sometimes mean inconvenience and it can often seem unnecessary. Understand that thousands of people share your situation and commit to staying the course.

At every step, pay close attention. When you do not understand something, ask questions. Your input is critical, but you can’t help your own case if you don’t participate. Any contact or letter you receive from Social Security should be copied and given to your attorney – this will help keep your files current. If you change your residence or phone number, let your lawyer’s office know.

Sometimes, the simplest oversight will have nasty consequences – you need to take an interest and help manage your claim. In short, contribute.

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ERROR #3: Delaying Your Application or Appeal

As soon as you know you will be unable to work full-time for a year, you should apply for benefits. This will usually be the result of a doctor’s opinion about your disability. The date you first file is important and waiting to file an application can cost you.

There is another excellent reason to apply as soon as it is reasonable – processing a disability claim at the state level can take up to (or more than) a year. Because of staff cuts and budget limitations, Disability Determination Service offices process applications quite slowly. As of fall, 2010, the Billings office has a delay that is more than 400 days from when they receive an application.

For Supplemental Security Claims, waiting too long may even keep you from getting any benefits at all. Remember, the ability to file an SSI claim disappears five years from the last employment period. Also, you are only allowed to get benefits for SSI from the date you file.

Appeals – If your initial application is denied, and most are, you will receive a notification from Social Security. You have 60 days to respond and file an appeal from the date of this notification. Failing to file an appeal before the deadline means you have to start the whole application process over again.

Since a large amount of your money will be tied up in back payments, filing on time is essential. For instance, if you miss your appeal deadline, you may lose your right to get benefits owed you. Your second application will reset the clock.

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“I met Sol at the lowest time of my life and when he took over, he got right to business and did not drag my case any more than was needed. Sol took care of business.”

~Marla Anderson~

“Solomon was very helpful as I was clueless on what to do when I called him a couple days after my accident. Solomon explained to me the process and reasoning behind what he was doing – he was in contact throughout the entire process. His legal assistants were helpful as well, and showed the quality of professionalism that every client deserves. At any time that I had a question, they were immediately there to answer them. Solomon handled the case professionally and profi ciently. He never gave up and was honest and communicated with all parties involved. I would recommend his services to anyone I know in need.

~Gabrielle Denio~

“I heard about Sol through a family member. I am extremely thankful that I took their advice and called him. I was terri-fi ed at the thought of going to court and standing in front of a Judge to plead my case. Sol helped calm my nerves by explain-ing the legal situation and the possible outcomes. He was very straight-forward, knowledgeable and great at what he does. I would highly recommend him to other friends and family mem-bers.”

~Ginger Chinn~

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“My name is Sara D. Fein, and I would like to share with Solomon Neuhardt’s potential clients why I choose Sol every time. To begin with, I come from a family of lawyers, so my experience with lawyers has all been family and exemplary and extremely positive.

Sol represented me in 2002. Sol was the best thing that ever happened to me. He went way above and beyond what I would anticipate from an attorney.

On March 17, 2009, I was in a devastating car accident. I called Sol from the scene and he has since diligently represent-ed me, taking care of lost wages, medical bills and every worry that could possible come up. I have had several attorneys within a family law case and Sol is the most organized, effi cient and active attorney of them all. If he says something is han-dled, it is. I refer to Sol as my good attorney. I am so grateful for him and everything he has ever helped me with. I owe him for life for the superb professionalism he and his excellent staff have graced me with. When it comes to my accident, Sol and his staff take care of every minute detail and they still are.

I recommend Solomon Neuhardt to anyone with a personal in-jury case. Sol really listens, really cares and most importantly, always gets the job done.”

~Sara D. Fein~

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ERROR #2: Using Illegal or Harmful Substances

An unavoidable fact of filing a disability claim is that you will be putting yourself in the hands of various medical practitioners. This also means there will be blood and other tests performed on a regular or semi-regular basis. And one consequence of this is that if you abuse illegal substances or alcohol, you will not be able to conceal this.

If you use drugs or abuse alcohol, you are putting your claim at risk. This can happen in two ways – either because the law prohibits giving benefits to those who are committing a criminal act or because drugs and alcohol are affecting your medical condition.

Drug addiction and alcoholism are not covered disabilities under the Social Security Act. If your disability is made worse because of substance abuse you will be denied. Merely testing positive for cocaine or heroin can result in an examiner rejecting your claim.

Tobacco use can also be used against you if your claim is related to anything connected to smoking, such as emphysema or another lung condition. Quitting smoking would be the usual recommendation and one you would have to follow to keep a disability claim valid.

The consequences of positive drug or alcohol tests will be that you will have to prove that these things are not adversely affecting you. And your credibility will diminish if you are found to be using illegal drugs.

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I stand up or sit down. It takes two or three minutes for the dizziness to pass, but even then I cannot focus or remember what I’ve just seen on television. I am unable to read because text looks blurry. I only sleep about three hours a night before the pain wakes me up. I cannot seem to eat much and I have lost 10 pounds…”

The important thing to notice in the second example is that numbers and facts matter. If you need to, keep a diary where you can make notes on times and symptoms.

Report your limitations and any side effects from medications. When you are following a recommended treatment, explain what has and has not changed in your condition.

Fourth rule: When warranted, see a specialist

Modern medicine is fractured into specialties and sub-specialties. This is just a result of how medicine is practiced. One result is very important – an opinion of a specialist carries more weight than another physician.

The reason is simple, a specialist sees many more patients with similar conditions. They have studied a specific area of medicine and primarily treat people in that category. Even when a specialist is merely confirming what your general practitioner already said, their evaluation is worth more.

Do not be concerned that you are insulting your regular doctor by asking for a referral to a specialist. They will understand the reasoning behind it. In most cases, they will be happy to recommend someone to you.

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“Solomon was very forthcoming with information regarding my accident claim and informed me about what was happening or what was going to happen in my case before I even asked. Ev-ery time I came to the offi ce for something, his legal assistants were very helpful and answered my questions to get me what I needed. My case is currently in litigation, but so far I have had great service from Sol and his staff and would recommend them to friends in need.”

~Louis Jolliff~

“Mr. Neuhardt was great in my case. I had a very complicated issue and thought I was going to have a hard fi ght with it. But he went about it in a great way, making sure I was getting the best out of the situation. I was very satisfi ed with the results of my case and I feel that I was better off because I hired him. Thank you so much. He rocks!”

~Felicia Bond~

“Sol and his staff are great. Everyone is very helpful with answering questions and breaking things down when I did not understand it. I was very satisfi ed with the outcome of my personal injury case and I have referred several people already to Sol.”

~Ellie Marble~

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Table of Contents

A Note to Readers ....................................................................16

Why I want you to have this information ..........................17

Background ..............................................................................19

Understanding what Social Security is meant to do ..........19

Social Security in practice ..................................................20

A key difference – qualifi cation verses benefi ts ................21

What are the differences between DIB and SSI? ...............22

Retirement Benefi ts .................................................................24

What will my retirement benefi ts be? ................................24

Survivor Benefi t .......................................................................26

Disability Insurance Benefi t (DIB) Supplemental Security Income .......................................27

How a Disability Case is Handled .........................................27

Application for benefi ts ......................................................30

Appeal .................................................................................32

Administrative hearing .......................................................32

Direct appeal to Social Security ........................................33

ERROR #1: Medical Record Mistakes .................................34

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The second rule: Follow your doctor's treatment

This will demonstrate that you have done what you can to address your disability and that you haven’t recovered in spite of your best efforts. If you fail to follow prescribed treatment (including medications) you have to have an excellent reason for doing so.

Minor problems with your physician are not enough. If the treatment is reasonable, examiners will want to know why you didn’t follow recommendations. They will put more weight on a medical professional’s opinion than they will on your opinion. If, for some reason, you cannot continue with one doctor, make every effort to start treatment with another.

There may be one exception to this rule – when a procedure recommended has a risk of making your condition much worse. This sometimes arises with surgeries. If a surgery has a risk associated with it that you find unacceptable, you have every right to avoid it. But if you do, make sure that the risks are documented – you will have to justify your decision later.

The third rule: Make sure you are communicating effectively with your doctors

Doctors sometimes focus on symptoms that are specific and will make notes that reflect this. If you stick to general statements, they may not be properly documented. Remember, these records will be read and evaluated based on what they record, not on what you actually said.

For this reason, saying something like, “I feel miserable all the time and don’t have any energy” is too general to be of much help. Everyone feels miserable when they are sick, even if they only have a cold. Better would be, “I get dizzy whenever

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ERROR #1: Medical Record Mistakes

A disability claim lives or dies based largely on medical records. And, as one wise lawyer said, “If it isn’t documented, it didn’t happen.”

The first rule: Document

When you file a disability claim you will be giving a number of people permission to view your medical records. Their job is to evaluate your claim based on what medical professionals have documented in your files. Regardless of how you personally feel about your ability to work, it can only help you if those medical reports support your case.

When a disability is documented more than once, it creates a history and tells a very powerful story. Because of this, you should get recorded treatment early and continue to receive medical care. Medical conditions often change over time; they may get a bit better or worse. The more your story hangs together in a series of records, the better.

Regular appointments and evaluations are the best evidence that your disability is real and ongoing. So get treatment early and often and keep copies of your medical records.

From the point of view of an examiner, you are showing that you cannot work (at least to the extent that you qualify as disabled). When there is a medical problem that keeps us from working, we consult a doctor. Not only that, but we continue to seek treatment and follow the treatments recommended.

15


ERROR #2: Using Illegal or Harmful Substances ..............37

ERROR #3: Delaying Your Application or Appeal .............38

ERROR #4: Failing to Contribute to Your Case .................39

ERROR #5: Damaging Your Credibility ..............................40

ERROR #6: Unemployment Benefi ts ....................................41

ERROR #7: Representing Yourself .......................................42

So why don’t some people get legal help? .........................43

How do I fi nd a good disability attorney? ..........................44

Some Final Thoughts ..............................................................45

Case evaluation ...................................................................45

Neuhardt Law .....................................................................46

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A Note to Readers

Dear Friend,

I hope you find this book helpful and informative. It is based on extensive experience with those who are seeking benefits from the Social Security Administration. If you or a loved one has recently become disabled, this book will give you some guidance and information about what your next steps should be.

Most of us don’t give much thought to our Social Security benefits until we reach retirement age, lose a working spouse, or become impaired. Some of the questions you might have:

• What should I expect from Social Security?

• How should I go about getting benefits?

• Will I lose my opportunity if I fail to follow the proper government regulations?

• Do I need an attorney to handle a Social Security claim?

• If my initial claim is denied, is there still hope?

I’ve addressed these questions, and more, in this book.

Please understand that this material is not legal advice. Legal advice can only come from an attorney who is familiar with your case. What I can do is share facts with you. I can point out the common mistakes and tell you how to avoid the traps, but only in a general way. That said, you may be wondering why an attorney would share this information – doesn’t it work against me?

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process stops and you will receive benefits. If the case is still denied, there is a further appeal available.

Direct appeal to Social Security

The next level of appeal is to the Social Security Administration itself. This does not involve a hearing or a judge, but rather a request for a new disability hearing -- another try before an administrative law judge. This may be appropriate if you feel your case was not fairly heard at your first hearing.

The request is made to the Appeals Council at the Social Security Administration. It will be granted if you can show a mistake was made and may be granted for other important reasons. A positive decision does not give you benefits, but gives you another chance to make your case at another hearing.

If the Appeals Council decides against you, the only options left are either to accept the decision or start an action in federal court. You can sue the Social Security Administration and seek either to have your claim approved directly or to have another hearing before an administrative law judge.

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Appeal

The appeal is filed as a “request for reconsideration” with the Social Security Administration. It is an inconvenient but necessary step between a denial of your claim and a hearing before an administrative judge.

The reconsideration process is meant to catch any honest errors that might have been made in an initial application and evaluation. The process of determination is repeated in the same way as it was for your first application, but another set of examiners is used.

Occasionally, this does result in a new determination, but for most claims, the denial is upheld. This means your next appeal will result in a hearing before a judge.

Administrative hearing

An administrative law judge will preside over a hearing on the merits of your case if you continue with your claim. The purpose is to evaluate all the medical and financial evidence and come to an unbiased conclusion. The judge is not bound by the previous denials and will take a fresh look at your case.

You are allowed to testify before the judge and can tell them how your disability is affecting your life. Expert testimony may be part of the hearing. You will be able to support your case with medical testimony on your condition and the judge may also hear from others who do not agree with your claims.

Many of the cases that come to a hearing are approved, although not all are. If the judge decides in your favor, the

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The simple answer is no, it doesn’t. In fact, the more informed clients are, the better they are able to make good decisions about their case. The public needs to understand what Social Security is meant to do and what it cannot do. The more realistic clients are, the more we can work as a team toward getting a fair and complete result.

Why I want you to have this information

By publishing this guide, my firm actually saves a great deal of work. An informed client makes a Social Security claim go more smoothly. The time once spent explaining the basics to clients can now be used more efficiently.

There’s plenty of information in this book, so take your time going through it. If we do end up assisting you, keep the questions that arise in mind. Some areas will need clarification. You may also want to know which parts apply to your case and which do not. Use a highlighter or pen to mark pages you have questions about.

Whether you purchased this material or received it for free, please use it. Pass it on if you know someone who could benefit from it.

The idea of having this in a complete guide is so that you can go over the information at your own pace. Read and reread it. I have tried to keep everything in easy to digest chunks, but one of the great things about having a book at hand is that there’s no pressure to get everything right away. So take your time, get informed.

At the end of the day, this is real money we are talking about. Real lives are affected every time a mistake is made on a Social Security claim.

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One other thing…

If you already have legal representation, I do not wish to damage that relationship. You can still get valuable information from this guide, but you should discuss your questions and concerns with your current attorney.

If there is a seeming conflict between what I describe and how your case is being handled already, it doesn’t mean you have bad representation. Every law firm follows their own ‘best strategy’. Social Security benefits are a complex area and there is no best way to handle all cases.

You should bring up any concerns you have with your current attorney. Neuhardt Law Firm is not likely to take on a case when another lawyer has already been involved. The best course is to solve any problems with your existing lawyer because they are already familiar with your case. It doesn’t make sense to jump ship mid-stream.

I am not in the business of taking cases from other, qualified experts – don’t ask me to.

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• Types of jobs and dates you worked for your last 5 jobs. • Information about any insurance or workers' compensation claims you filed, such as claim number and name, address and phone number of insurance company.

It is a good idea to keep this information available, even after you have filed your application – you may get calls to verify information later.

After the application is filed, it will be checked and then forwarded to your home state for evaluation. Each state has its own Disability Determination Service (DDS). This is where the first determination will be done.

Your state’s DDS may ask you to provide additional information or even have you get evaluated by other doctors. They may also check with past employers, neighbors and others to get confirmation about your activity levels. Part of the application process is giving permission for this investigation, including examining your private medical records.

How thorough the investigation will be depends on the nature of your claim and the resources the state has available. In no circumstances would it be proper to lie or exaggerate in the hope that you will get benefits by doing so. Fraud is an ongoing concern and you may be prosecuted criminally if you attempt it.

Once the DDS has assembled and judged your application you will either get approved or denied. If the claim is approved, you will receive benefits immediately. If it is denied, you will receive a letter stating this and to keep your claim ‘alive’, you will have to appeal the decision.

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How a Disability Case is Handled

Application for benefits

The process starts when you fill out an application, or claim, for benefits. This is a formal request to the Social Security Administration for payment.

Applications are available online at the Social Security website as well as at any local Social Security office. You can also call: 1-800-772-1213 and request an application.

Some information you will need for the application:

• Military Service discharge information (Form DD 214) for all periods of active duty.

• W-2 Form (or your IRS 1040 and Schedules C and SE if self-employed) from last year.

• Social Security Number(s) for your spouse and minor children (if applicable).

• Checking or savings account number and bank routing number, if you want Direct Deposit for your benefit checks.

• Name, address and phone number of someone who knows about your medical conditions and can help with your claim (primary care physician is ideal).

• Names, addresses, phone numbers, patient ID numbers, and dates of treatment for all doctors, hospitals, and clinics.

• Names of medicines you are taking and who prescribed them.

• Names and dates of medical tests you have had and who sent you for them.

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Background

Understanding what Social Security is meant to do

The Social Security Administration was created by an act of Congress in 1935. It was meant to address a very worrying problem at the time: as many as 50% of retired Americans were living below the poverty level. Another large percent, although elderly, were unable to quit working because they simply couldn’t afford to do so.

This problem was compounded by a general economic slowdown and a scarcity of jobs. Younger workers weren’t getting hired because older workers couldn’t afford to retire. Furthermore, most workers had no survival or disability benefits. If a working spouse died or was unable to work, the family was almost certain to become impoverished.

To address this need and establish a system that would prevent the problem in the future, the Social Security Act was passed. The introductory paragraph is worth reading:

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These are certainly noble goals. How well they have been achieved is an ongoing political debate.

Social Security in practice

The idea was to fund this program as a type of government run pension plan. Every worker would have a deduction from their paycheck and this money would be invested on their behalf.

The deductions are listed on paychecks as FICA, which stands for Federal Insurance Contributions Act. This is the funding mechanism for Social Security. Pay stubs sometimes list just FICA or may break this down into Social Security payments and Medicare payments.

The payments from FICA are distributed into three main areas under the umbrella of Social Security.

• Federal Old Age, Survivors and Disability Insurance

• Medicare – a program added in 1965

• Other, mixed programs. For instance, Supplemental Security Income is administered by Social Security but funded by the U.S. Treasury. Welfare programs and medical programs for children are also mixed contributions between States and the Federal government.

Our focus will be on the first in this list, but we will also touch on Supplemental Security Income because it often overlaps with ‘regular’ Social Security benefits.

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Supplemental Security Income

This program is designed to fill a ‘gap’ in the disability insurance provided through Social Security. Because DIB does not cover those who either never worked, are retired, or who didn’t work recently enough to qualify for benefits, another program was created.

SSI provides assistance to those who are disabled, have limited household income and who are not covered by DIB. It is based on three criteria: disability, assets and income.

Demonstrating a disability is the same as for receiving Disability Insurance Benefits and the same standards apply. (See previous section.) Along with this, SSI also requires limited assets. The assets counted will not include your house or car, but will include other assets. The standard is quite low and your assets cannot exceed $3000 (for a married couple, $2000 for a single person).

Finally, just like with DIB, there are limits on how much income you can receive through work and still qualify for benefits. If you are working part-time, your income above a certain amount will reduce your benefits.

For children who are disabled, income is calculated as a percentage of the parents income – so benefits for a child may be reduced if the parents make enough on a monthly basis.

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cannot perform ‘normal’ activities, such as walking, sitting and remembering you will be able to demonstrate a disability. There is a listing of ‘automatic’ conditions that are considered disabling if you are diagnosed with one of these problems.

The current list can be found on the Social Security Administration website: www.ssa.gov/disability/professionals/ bluebook/listing-impairments.htm.

Some of these are: • Statutory blindness • Loss of function from joint destruction or amputation • Spinal or back problems that prevent certain postures

or weight restrictions needed for work. • Mental impairment (Schizophrenia, paranoia,

psychosis) that results in memory, mood, or cognitive problems which restrict daily activity.

• Epilepsy, Parkinsonism, multiple sclerosis or other neurological conditions which cannot be controlled by medication.

• Many others

The number and types of disability are revised and updated as medical care progresses. Some diagnoses are added and some removed. The essential element that remains is whether or not someone is capable of working full-time. This is the standard that will be applied in the end.

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A key difference – qualification verses benefits

Because Social Security was designed to be a type of pension or insurance, there are two steps involved when discussing claims. The first step is whether or not someone qualifies, and the second step is determining how much they qualify for. These are separate things. Two people with similar situations may both qualify for benefits but receive different amounts.

The differences are related to how much they have paid into the system. Someone who has worked many years has usually paid more than someone who has not. Higher salaries also mean larger contributions were made.

For most benefits, there is a ‘floor’ that keeps payments for qualifying individuals above zero, so that even someone who has never worked at all will get some benefits, although where those benefits come from will change.

An example of this is how Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) are handled. Each type of benefit pays money for those who are unable to work because of a disability, but the first (DIB) comes by way of Social Security taxes paid into the system, and the second (SSI) does not.

Let’s start by clearing up a common mistake: Supplemental Security Income, or SSI, is not funded by taxes on wages. It’s an unfortunate coincidence that the abbreviation—SSI -- looks like it comes from ‘Social Security’, but it does not. To make it a little more mixed up, SSI, which is funded by the U.S. Treasury, is administered by the Social Security Administration even though it is not funded by payroll taxes.

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What are the differences between DIB and SSI?

A disability is defined the same way between the two systems and is governed by your ability to work at a full-time job. To qualify for either program, you have to have a physical or mental problem that keeps you from working and that will last more than 12 months. These are called “permanent” disabilities.

Both are intended to partially replace income you would otherwise get by working. Since the Disability Insurance Benefit (DIB) is part of Social Security, you have to have already worked enough to qualify for payments. How much you have paid is called your ‘credit’. SSI, which is not funded by payroll taxes, does not have this requirement.

Another way of saying it is that your previous work history matters a great deal for DIB but not for SSI.

Since DIB is a payoff from an insurance policy you’ve funded through payroll taxes, your financial status doesn’t apply – except that you cannot collect disability if you earn more than $1000.00 a month working part-time. You can collect even if you are otherwise quite well off, perhaps from investments.

On the other hand, SSI is not related to your work history but is related to your household income – no matter what the source may be. If your household income is above a certain set level, you will not qualify for Supplemental Security Income.

If any of this is unclear, don’t worry, we’ll cover it again under specific benefits. The important difference is that DIB is an insurance policy that you have already paid for if you

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Disability Insurance Benefit (DIB)

When Social Security disability is mentioned, the benefit they are talking about is the Disability Insurance Benefit (DIB). This is an insurance policy funded by payroll taxes that pays for claims made when someone is unable to work.

This is separate from unemployment insurance or Supplemental Security Income (SSI). The premiums have been paid while working and coverage is only in place during the working years. In fact, if you stop working for five years or more, or you retire, you are no longer considered to be in the pool of covered people and cannot make a claim.

This is sometimes relevant when a claim is delayed. The insurance policy may lapse in the meantime.

The definition of ‘disabled’ is related to the idea of working as well. To qualify for payments, you must meet the following standards:

• A physical or mental impairment (excluding drug abuse and the results of drug abuse) that is demonstrated by medical records.

• You cannot do any full-time work. Please note that this does not mean just the job you used to have or the job you are trained for – a qualifying disability prevents you from working full-time, period.

• You cannot work in a substantial way (more than $1000 a month income) for a year.

A determination of a ‘severe’ disability will occur at the state level, in the state where you reside. Generally, if you

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Survivor Benefit

The immediate family of a deceased person who has met the minimum requirements to receive Social Security benefits may qualify for benefits. These survivor benefits fall under three classes:

1. Surviving spouse – 65 or older -- full benefits 60 to 64 – partial benefits 50 to 59 – no benefits unless the survivor is disabled Under 50 – no benefits as spouse, but benefits may be available if there is custody of a minor child.

2. Surviving child (or child of a disabled person)

Minor child of a deceased worker may receive 75% of the deceased worker’s benefits.

Minor child of a disabled worker may receive 50% of the benefits.

Amounts are restricted to a maximum per household or family.

3. Parents of a deceased worker

The parents may be eligible to receive benefits if they were depending on the income of their child who was caring for them.

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worked in the U.S. and paid taxes. SSI is not. SSI is a welfare program offered to impoverished U.S. citizens.

How much you are able to collect for DIB depends on how much you have paid into the Social Security system, while the amount you can collect on SSI is set at a maximum (currently $674 a month) and is reduced if you have any other income.

Health insurance benefits are also different between the two programs. Medicare is part of Social Security and Medicaid is the parallel program with SSI.

Children may receive benefits that flow through a Social Security claim for your disability. With a Supplemental Security Income claim however, they would only receive benefits if, for some reason, they too were disabled – no benefits flow to them from your claim.

DIB SSI

Work History Required Not required

Income limits Max $1000 a month through part-time employment

All household income and assets considered

Claim maximum Depends on work history and amount paid in

$674/month and reduced if there is other income

Health Insurance Medicare Medicaid

Eligibility Anyone who worked, their spouses and dependants

Those who meet income requirements

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Retirement Benefits

If you have paid into the Social Security system while you were working, you received credits for that work. Before 1978, credits were calculated as $50 worth of paid work in every three month period. After 1978, credits were calculated based on yearly income, no matter what part of the year you worked.

Currently, if you pay Social Security taxes on $4,480 of income in a year, you have earned the maximum of 4 credits.

To receive retirement benefits from Social Security, a qualified retiree has to have at least 40 credits in their account. This translates to 10 years of work at 4 credits per year. Any other combination that reaches a total of 40 will do, no matter how the credits were earned. You could, for example, work for a year, take a year off and repeat this cycle for 20 years to reach the same total.

While 40 credits is the minimum for retirement benefits, there is no maximum. Credits above the minimum of 40 do not increase your benefit amount. Benefits are calculated by the amount you made and contributed as well as the number of years you participated in the program.

What will my retirement benefits be?

There is no easy answer to this question because it depends on how many years you worked and how much you paid into the system. If you are approaching retirement age or just want to check this information, you can request a Social Security Earnings Statement online at www.ssa.gov/ (the link is on the first page).

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The statement will show what the Social Security Administration has on file for your account. It will include your earnings by year and an estimate of the retirement benefits you qualify for.

Currently, to receive full benefits from retirement, you will have to wait until you reach the full retirement age as set by Social Security. This varies a bit, depending on what year you were born –

1943- 1954 66 years old 1955 66 years, 2 months 1956 66 years, 4 months 1957 66 years, 6 months 1958 66 years, 8 months 1959 66 years, 10 months 1960 or later 67 years

While these figures represent the full retirement age, you can receive retirement benefits early if you choose to. The minimum retirement age for benefits is 62.

The consequences of retiring before the guidelines above will be a reduction in monthly benefits that is permanent. In other words, while you can retire early, you will receive less money and that amount will not ‘jump up’ when you reach the full retirement age.

If you request an Earnings Statement from Social Security, you will get a breakdown of the different amounts you are entitled to at different retirement ages.

7 Errors that Sabotage

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