By G. Thompson Miller, Of Counsel
The attorneys at Brinkley Walser work with Social Security disability clients, in many cases meeting these individuals for the first time after their initial disability claim has been denied. Many of them turn to us for help, not understanding why their claim was denied. I have put together this scenario between an attorney and a theoretical client that I hope will answer many questions you may have about denial of disability benefits:
Potential Client: “Why was my claim denied when I really need it and there are so many people on disability who don’t deserve it? John Doe, who lives down the street from me, got his disability even though there is not a thing wrong with him. Can you help me?”
Lawyer: “I can’t tell you how John Doe got his disability because I only see people in need who have been turned down. I don’t see the people who get it that don’t deserve it, but don’t be too quick to judge the book by the cover. John Doe may look fine for all outward appearances but may actually be dealing with some very serious problems; otherwise, he would probably not be on disability. It is not at all easy to get on disability, and in the absence of fraud on the system I see little chance that someone who can work will get on disability.”
Potential Client: “Why is it so difficult to be approved?”
Lawyer: “Let’s start with the basics. The term ‘disability’ is defined in the Social Security Act as the inability to engage in ANY substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. In other words, one must prove that he is unable to do ANY kind of work. Many people who have worked in labor intensive jobs can prove that they cannot do that type of work any longer, but they must be able to go further and prove that they cannot do any type of work, such as laundry folder or security guard.”
Potential Client: “But no one in his right mind is going to hire me with all my problems. I would be a liability.”
Lawyer: “Social Security does not have to prove that someone will hire you. They assume that employers don’t discriminate as long as you can perform the job. They just have to prove that there is some kind of work that you are physically and mentally able to do taking into account your age, education, and past work experience.”
Potential Client: “Well, I can’t imagine any kind of work that I could do. I would not be a dependable employee. When I have flare ups with my pain I can barely make myself get out of bed in the morning and I have to lie down several times during the day if I do any household chores at all. I also stay depressed and can’t function like I ought to. Do you think you can help me?”
Lawyer: “I can certainly try to help you. Social Security does have to find that you are able to work on a regular and continuing basis, generally eight hours a day, five days a week. If you would frequently have to be absent from work, come in late, or leave early, then you could not maintain even simple light employment and would qualify for benefits. Since pain is subjective and there is no way to measure it, we will have to submit evidence which clearly lets the judge know how often and much pain you are in. Your description of your pain will be important. If you have a strong consistent work record then your credibility with the judge should be good as long as you don’t try to exaggerate things. If you are taking a lot of medications and undergoing pain therapy, that should help also. Depression goes hand in hand with being disabled and feeling a sense of hopelessness. We can submit evidence of your depression and how it interferes with your ability to function. It is very difficult to prove that depression in and of itself is totally disabling, but it does corroborate the fact that you are disabled. Otherwise, there may be no reason for you to be so depressed. There is other evidence we can submit to try to persuade the judge that you deserve your disability benefits. We have handled many of these types of cases in the past. That is why it is important that you have an attorney representing you before the judge.”
About the Author
G. Thompson Miller is an Attorney and Of Counsel at Brinkley Walser, PLLC, in Lexington and Greensboro, NC. Miller can be reached at (336) 249-2101 or via e-mail. Brinkley Walser prides itself on providing new and cutting edge legal counsel built on a foundation of knowledge and integrity more than 125 years in the making. The firm has offices at 10 LSB Plaza in Lexington and in the First Citizens Building, 620 Green Valley Road, Suite 306, in Greensboro. Visit Brinkley Walser on the web at www.brinkleywalserstoner.com.