Thursday, January 01, 2009



Will you get Approved for Disability if you have an Open and Shut Case?

Someone in a forum wrote that they filed an application for disability and got approved without the need for an appeal. They were definitely lucky, because the chances of being approved on an initial claim tends to go against claimants, i.e. most claimants are denied and are forced to file an appeal.

This particular individual's situation was interesting to me because, in addition to being approved on his initial claim, he made the following statements (I'm paraphrasing):

1. "I had an open and shut case".

2. "I was still required to see the government's doctors".

3. "If you qualify for disability, there is no reason you should be denied".

Ok, what do we deal with first regarding these statements?

Well, first of all, let me state once again that when a person goes to a social security medical examination, they are not being seen by a "government doctor". They are being seen by a doctor who has their own practice. This doctor has simply agreed to conduct consultative examinations (known as CEs) for social security in exchange for compensation.

Secondly, if you are sent to a consultative medical exam, or CE, there's a more than fair chance that you do not have an "open and shut" case. Why is that? Because claimants are usually sent to CE appointments for one of two reasons (and these are the reasons I sent claimants to exams when I was a disability examiner). Those reasons are A) the claimant has not been treated for a condition that was listed on the disability application and/or B) the claimant has not been seen by one of their own doctors for a considerable amount of time (as an examiner, I would send claimants to exams if they hadn't been seen in 90 days, but sometimes even if they hadn't been seen in 60 days, depending on the nature of the condition itself).

Basically, being sent to a social security medical exam, by definition, connotes some level of deficiency in the case. That deficiency may, of course, be very small or inconsequential--however, the point is that if you are sent to such an exam, the case is not "open and shut".

Thirdly, "if you qualify for disability, there is no reason you should be denied". This is probably the most off-target statement made by this individual. Social security routinely, and in huge numbers, denies cases in which claimants qualify for disability based on social security disability criteria and what their records have to say about them.

If that wasn't the case, there wouldn't be so many disability lawyers and disability advocates in practice and there wouldn't be the status quo that currently exists in which so many claimants get denied on their claims and then eventually get their cases heard by an administrative law judge at a disability hearing...and get approved.

If you think about it, it's rather crazy that so many claimants finally get approved for social security disability or SSI disability at a hearing when they've been denied on a disability application and then been denied again on a disability reconsideration appeal. You have to ask yourself, what was the point of making a claimant wait an additional two years, often forcing them in to financial catastrophe, if they were simply going to get approved for disability at a hearing anyway (note: not everyone is approved at a hearing, but the statistics indicate that the majority of claimants who go to a hearing do get approved).

Here's an answer that is very cynical, I admit. Many have speculated that the aim of the current system is to have as many people as possible become discouraged and give up on their claims, by not filing their first appeal, and by not filing their second appeal that gets them in front of a judge. Does that sound like a conspiracy theory? It does, and, of course, there may be nothing to it. However, I have made the observation over the years (from working in representation and working as a social security disability claim examiner) that a very hefty percentage of claimants do, in fact, give up after being denied on their claims. And when people learn that going to a disability hearing can involve years of waiting, that only cause many more individuals to give up as well.

Here's a tip: if you get denied on a claim for disability, never give up and always appeal.



Return to the Social Security Disability SSI Benefits Blog




Other Posts

My Disability Claim was Denied, Should I Reapply?
How to Qualify for Disability - social security disability or SSI
Social Security Disability and Proving you Can't Work - Other Work
How do you earn credits for social security disability?
Being Prepared for a Social Security Disability Hearing

3 Comments:

Blogger Wendy said...

This is a very insightful post, and makes excellent points about the system as it exists. I do believe that although there may not be an organized conspiracy to make claimants give up on their claims, the system is purposly made as difficult as possible to navigate.

I applied two years ago, with fibromyalgia, rheumatoid arthritis, bipolar disorder, migraines, back and neck pain, and reynaud's syndrome. The SS CE totally discounted the back and neck issues, not taking them into consideration at all, and made the bipolar disorder the main issue, when the physical diseases are the ones that cause the most disability.

By the time my appeal was denied, my husband had lost his job, and we had no income whatsoever. We lived in a house with no way to cook for 2 months, and without water for two weeks, before a friend agreed to allow us to live in a one room, 1/2 bath cottage on his property. My husband was unable to find another job, so I was forced to return to work, taking the first available job (fast food) at minumum wage just to survive.

Not only was the job pure torture, forcing me to stand up for 8 to 10 hours a day, it derailed the application process, since you have to be out of work a minumum of 3 months before you can even apply, and returning to work "proves" that you are able to work. (The only thing it really proves is that you are not willing to become homeless or starve to death.)

The system as it currently exists is a joke. Even if you succeed in getting disability benefits after years of fighting the system, you're forced to live in poverty, with no chance of improving your circumstances.

2:48 PM  
Blogger genevere said...

Wendy,
Hello, I know exactly where you are coming from. When I first applied for disability they to denied me, and I had asthma, a speech problem, and recovering from shoulder surgery. They told me to not be around people who wear perfume, smoked, or be around dust, mites, etc. As for my shoulder, they told me not to move it above my head. They did not even suggest anything for my speech problem.
Thank God I had parents willing to help me fight for this. For two years, they helped both me and my husband, while I fought this. I did finally get my disability last Tuesday and I thank god for Judge Walters, he is an understanding man. I did, however have to file with an Attorney from Levine Benjamin who won my case for me.
The first time appealing I had the following issues with my health:
chronic asthma
severe vertigo
headaches and migraines
osteoarthritis of the left hip and the left knee - and also my left knee has a benign cyst that is holding my knee together, so they will not remove the cyst. I also have arthritis in my left hand which is my primary hand. I too have Reynard's Syndrome.
And again, I thank god for my parents, for I too would have to probably go and get a job, even though I am walking with a cane permanently now.
I wish you and your husband the best of luck.
Kathleen Hough

3:31 PM  
Blogger Polly said...

I more than qualify for disability.. I have an attorney and she couldn't believe the judge denied my disability. I had over 900 pages of medical records which the judge never even reviwed, and used the 15 minute visit to a SS psycologist who decided I was ok although my 2 years with my psycologist says otherwise, in writing, yet again the judge just omitted all my medical records and obviously decided not to award me disability before I even went to my hearing. I have no choice to appeal. I can't hear, I can't work, even if there were any jobs. This may be a death sentence for me by the judge denying my claim. Again, my attorney of 25 years esperience has had only one judge in her entire career who did this. The judge had bad form, and again, never even looked at all my medical records throughly, and just wanted to get the paperwork off the desk. this is an unfair and deliberate way of denying a disabled person disability, so when a person is denied, it isn't always because my attorney nor I didn't produce an obvious case of disability, but a judge who just decides to destroy the lives of the disabled. It isn't always a fair hearing, that is a fact.

5:08 PM  

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