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February 2013 Archives

How will the Federal Government's Sequester affect my Social Security Disability?

Sequestration's mandatory budget cuts are scheduled to take effect on Friday, March 1, 2013. The sequestration cuts are not supposed to effect those already receiving Social Security Disability payments.  Those persons that are still in the application and hearing stages may be affected depending on the length of time of the sequester. Sequestration could result in the loss of over 5,000 more Social Security Administration employees.  This reduction in the number of SSA employees will be felt at the field and hearing offices.  Field office operations may eventually be impacted resulting in longer waits to be seen by staff to handle applications and less total applications taken on any given day.  A delay in initial decision of applications may also result due to the lack of staff to review applications and make recommendations.  Finally as staff is reduced, hearings may be delayed resulting in additional time waiting for a hearing decision due to lack of staff to process the decision, man the hearings and write the decision. We certainly hope that the Federal Government will address these issues quickly, but the projection above could result in delays for those most in need of assistance.  

Social Security Disability, SSI Hearing: Witnesses? Friends and Family

Witnesses Will Help Your Social Security Disability Case When you go before a disability judge, also known as an Administrative Law Judge or ALJ, you will have the opportunity to tell your story about why you are disabled and cannot work. But it's not just up to you! Of course the experienced disability attorneys at O'Malley Tunstall can help you put on the best case possible and ask all the right questions, but your spouses, friends, family, children, case managers, former employers, and other people who know about your disabling conditions can also testify on your behalf. And it can really help your case! In fact, the disability judge is required by Federal law to listen to your witnesses, and the judge must take their opinions into account when making the decision about your disability. Always continue to treat and follow your doctors advice. Evidence from non-medical sources including "spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy" is explicitly allowed to "show the severity of your impairment(s) and how it affects your ability to work." 20 C.F.R. § 404.1513(d); see also, 20 C.F.R. § 416.913(d). "Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations .... other persons report, which can reasonably be accepted as consistent with the objective medical evidence" must be considered in the ultimate disability conclusion. 20 C.F.R. § 404.1529(c). The ALJ may only reject lay testimony regarding functional limitations "by giving specific reasons germane to each witness." Glover v. Astrue, 835 F.Supp. 1003 (9th Cir. 2011)(quoting, Reginnitter v. Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999)). The sufficiency of the reasons given "will depend on the thoroughness with which the ALJ conducts and discusses his or her evaluation of the evidence." Id. "The rejection of the testimony of the claimant's family members because the claimant's medical records did not corroborate her fatigue and pain violates SSR 88-13, which directs the ALJ to consider the testimony of lay witnesses where the claimant's alleged symptoms are unsupported by her medical records." Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). What this law means is that your disability judge must consider testimony from your lay witnesses. If the witnesses' testimony is consistent with the medical evidence, the disability judge can only reject the testimony if he has good, specific, germane reasons that he explains thoroughly. If you have questions about lay witness testimony in your disability case or have any other questions about disability, call or email our firm. One of our disability lawyers Susan O'Malley, Joseph Tunstall, or Amos Waranch will be in contact with you shortly.

How Social Security looks at alcohol or drug use when applying for SSI or disability?

What are the standards used to evaluate drug and alcohol abuse in a Social Security or SSI disability setting? If an ALJ (Administrative Law Judge) determines a claimant is not disabled based upon drug and alcohol abuse ("DAA"), the ALJ must go through the normal five-step sequential evaluation process, find them either disabled or not disabled, and then make a specific finding that drug abuse or alcoholism is material to the claimant's disability. Susan O'Malley discusses substance abuse and its effect upon your disability application The standard for materiality is whether the claimant would still be disabled if s/he did not abuse drugs or alcohol. If the ALJ finds that the claimant's DAA is material to her disability, then he goes through the five-step sequential evaluation process again to determine what her RFC would be without the DAA. If, after going through the sequential evaluation process without the functional impairments caused by the DAA, the ALJ finds that the claimant would not be disabled, then they are not disabled. Put differently, if the ALJ finds that but for the claimant's DAA, they would not be disabled, they are not disabled under the below cited law. Basically if the ALJ makes a finding that the DAA is material to the claimant's disability more likely than not there will be a decision of no disability a loss unless you have very compelling evidence that she would be disabled regardless of the DAA.

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