Jonathan Ginsberg is a colleague and fellow-social security disability lawyer based in Atlanta Georgia who has a national reputation as a social security disability expert. I had the good fortune to catch-up with Jonathan this month, and his valuable advice and opinions are important for all social security disability claimants, whether in Atlanta, Dallas, or any other part of the US. Here is the text of our conversation:
Stanley Denman: What are the biggest mistakes you see clients make at disability hearings and how do you counsel your clients to avoid these problems.
Jonathan Ginsberg: I’d say that most new clients I meet have the mistaken belief that disability is primarily about medical problems. The truth is that Social Security disability is not about your medical problem or medical diagnosis. Instead, it is about how your medical problem negatively impacts your capacity for work.
I’d tell my clients to focus on the “how” and “why” they cannot work. You could have 3 herniated discs and Type II diabetes but still be capable of performing a simple, entry-level job if there is no compelling evidence to the contrary.
But if you testify credibly about your pain and limitation of movement, you have medical records reflecting on-going treatment, and your doctor goes on record in a narrative report or with a functional capacity evaluation identifying work activity restrictions that arise from your condition, you have a realistic chance at winning disability benefits.
Stanley Denman: Social Security defines the work “disability” in terms of how a claimant’s medical problems prevent that person from engaging in substantial daily activity for at least 12 consecutive months.
Jonathan Ginsberg: That’s right. You recently wrote a blog post explaining in detail why judges call vocational experts as witnesses in disability hearings. Disability hearings are just as much about vocational capacity as they are medical problems so gear your testimony to work capacity limitations.
I’d say to always present yourself as a person who hates the idea of pursuing disability and is only doing so because you have no choice. Judges pick up on claimants with an “attitude of entitlement” and that will hurt your case. Judges also do not like claimants who appear to have given up and are not doing everything they can to improve their health and increase the likelihood of returning to work.
Recognize that judges are under a lot of pressure to only approve claimants who truly cannot work. If the judge sees you as someone who cannot work now but who may be able to return to the workforce in the future, you are more likely to get the benefit of the doubt.
I advise my clients to explain to the judge how frustrating it has been to not work, how it has impacted my client financially and how my client misses the social interaction that arises from working.
Stanley Denman: I published a post on my blog entitled “Top Five Bad Answers to the Question “Why Can’t You Work” that speaks to the importance of getting into the right mindset during your hearing preparation.
Jonathan Ginsberg: Yes and those sample answers you gave made me cringe more than a little! I tell my clients to remember that your judge may hear 10 to 15 cases per week and that almost every claimant she sees will be claiming that he is in too much pain to work, that every body part hurts, that there is nothing he can do. If you bring a hopeful, positive attitude to your hearing, you will stand out.
Stanley Denman: What should a claimant do about potentially negative facts or information in his medical file?
Jonathan Ginsberg: Never lie about anything to the judge. Many judges look for relative minor facts in your medical record and ask you about these to see if you tell the truth. For example if you are trying to stop smoking but still smoke 5 to 10 cigarettes per week, don’t say “I have stopped smoking” because that is not completely true. You can say that you cut back significantly because you want to improve your health and you understand how damaging and expensive smoking can be.
If you were self medicating with liquor and the judge asks you if you have stopped drinking, only say “yes” if you have had nothing alcoholic to drink since a set date. If you had 2 beers at Thanksgiving and a glass of wine at Christmas, that is not consistent with claiming that you have had nothing to drink.
Stanley Denman: What advice do you offer your clients about how to prepare for their hearings.
Jonathan Ginsberg: I remind my clients that most hearings last about 45 minutes so every second counts. Avoid using generalities like “not very much,” “not too far,” or “just piddling around my house.” These statements mean nothing. If, for example, a judge asks you how much you can lift, be as specific as you can.
Instead of saying “not very much,” you can answer like this: “the most I can lift is a gallon of milk, which I can carry from the refrigerator to my kitchen table. I need both hands to lift it and I have to carry it from the bottom because I get extreme pain in my right hand if I try to grip anything heavier than a coffee cup. I might be able to lift and carry 5 to 8 pounds twice or maybe three times per day, but only if I had time to recover in between.”
If you had a medical condition that may have been a significant problem at the time you applied but now is better, tell the judge that your treatment has been successful and that this problem is no longer an issue in your case. The judge will see this in your medical record but if you come out and take a medical problem off the table, the judge will appreciate your honesty.
Stanley Denman: Jonathan, you live and practice in Atlanta, Georgia. How would a Georgia resident go about learning more about you online?
Jonathan Ginsberg: my website is called GeorgiaSocialSecurityDisabilityAttorney.com. I have dozens of case studies there about how I handled hearings for clients with a wide variety of medical problems. I also have a fairly robust YouTube channel and a podcast at ssdRadio.com where I talk Social Security disability 24/7. I hope I can get you on the podcast soon.
Stanley Denman: Happy to do so and let’s talk again soon.
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