Can This Case Be Won? Episode 3

This feature appears from time to time as a means of illustrating the challenges that most applicants for social security disability benefits undergo, in their efforts to be approved.  These challenges include the many levels of decision-making for a social security disability claim (Initial application, Reconsideration, Hearing, Appeals Council, Federal Court), the specific issues raised by alcohol and drugs, the need to demonstrate that you cannot do past work or sometimes, any work at all, and the like.  Cases are derived from actual clients I have represented but their names, details and key facts are changed to protect privacy. 

“I don’t want you to focus on my so-called mental issues.”

“Why can’t we just rely on my physical issues?” asked Moira, age 55.  Her body language said it all – she wanted to be in charge of her case and she didn’t like the direction I was going in emphasizing her mental health issues.

“After all, no one knows better than me what’s keeping me from working!  And I don’t agree that it’s mental.  It’s not.  The reason I can’t work is my hearing.  I can’t hear anything anymore and I can’t wear this hearing aid.”

“What do you want me to say?” Moira’s husband Greg looked resigned.  “She doesn’t want to accept the diagnosis that the doctors have given her of borderline personality disorder.  I know it’s not about her hearing and you know it but this is what she wants.”

The lawyer’s view:
Moira’s case posed some difficult challenges:
1. Social Security claimants don’t always accept their doctors’ diagnoses.  Moira didn’t like the idea of presenting as disabled on any mental health issue and she wanted her lawyers to follow her directions.
2. Moira’s hearing issues were unlikely to be sufficient for the judge to find that she could not do her past work. 

What happened?
At the hearing, Moira’s borderline personality disorder led her to put on an exaggerated performance of a severely hearing-disabled person.  She impressed the judge in the wrong way.  He concluded that she was faking and therefore not credible.  Because she had prohibited our arguing that there was a mental health reason for her behavior, he had nothing else to rely on.  When a client wants to dictate how his or her case will be presented, it’s no different than a patient instructing his surgeon.  It’s not likely to come out well.  We lost at hearing. 

It was time to try something different at the Appeals Council. 

Although Moira resisted initially, her experience at the hearing had convinced her that following legal advice might be a good idea.  For the Appeals Council, we took full advantage of the rule that allows submission at the AC of new medical evidence relevant to the period of time that disability is alleged to have begun.  We obtained a letter from Moira’s treating psychologist who discussed her diagnosis and explained how her borderline personality disorder included a pattern of excessive emotionality and attention- seeking behavior.  We were then able to explain the behavior at the hearing that had led the judge to doubt her credibility.  The new medical evidence was enough to obtain a remand for a new hearing.