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Author Topic: Curious - anyone have to find a new lawyer after an AC denial?  (Read 2867 times)

fibro_in_wv

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Curious - anyone have to find a new lawyer after an AC denial?
« on: January 03, 2021, 12:44:29 am »
Received my AC denial about three weeks ago, and I'm getting extremely nervous because I have not heard from the attorney... The first time I went through the whole application process and got to a point where the AC denied to review, that attorney was silent until close to the end of the sixty days to file for federal. Dropped me. I know it's the holidays, and I'll hopefully hear from my attorney on Monday, but I wanted to see if anyone here had luck finding a new attorney to take their case to federal court when the attorney previously representing them dropped them...

I have a pretty extensive post I did previously detailing my ALJ decision. The gist was that SSA had me under surveillance and claimed I lied about struggling to walk/climb stairs. They never notified my attorney in advance that that report was part of my file, something their handbook says they are to do. It was added to the electronic file within five days of of my hearing... The attorney checked five days before that everything looked in order, then he checked again the night before when he called me, because I asked if a particular medical report was listed (it wasn't). He saw the surveillance report then. I had no chance to give it to my doctor for a rebuttal, nor could we subpoena the investigators with that short notice. He didn't object to it at the start of the hearing, likely because he agreed with me that the investigators' conclusions did not match with the evidence - I think he figured the judge would be smart and see that. NOPE! And likely based on that, the judge accused me of seeing the doctor I do out of state because he MUST have been willing to fraudulently support SSDI claims. So, my doctor's opinion, who I've seen for almost eight years now, and all those notes were ignored for state for reviewers and the little cursory medical and psych evals they sent me to. And beyond that, whoever was supposed to move files into some kind of folder to indicate they were for the judge to look at didn't put my strongest evidence in. The attorney fixed it when I spoke with him the night before, but the judge must've already grabbed files or something, because his report has no mention of those tests.

I'm just getting really antsy, not hearing anything from the lawyer. I warned my case manager that I was going to be out of town most of the upcoming business week (I was doing that super useful testing with the Workwell Foundation for a third time). I was in a different time zone, away from home, so I just thought it would be smart to warn them I might be harder to reach. No word. The next business week, of Dec 21, no word. Week of New Year's Eve, no word. When you have one attorney screw you over, you're a tiny bit more worried it'll happen again. They could've at least sent an email saying they'd review things and we'd talk soon...  Anxiety -> catastrophizing, so I'm just trying to make sure I have a plan B if this firm does the same shady thing. Is there someone a lot of people that post here reach out to if they find themselves needing representation for federal? Or is it pretty much hopeless if you get to that point and your representation won't press it further?

(Side note: screw the disability laws and systems of the US. A judge shouldn't be able to throw out that accusation of doctor fraud without VERY solid supporting evidence. Just really ticks me off. My doctor is well respected in the field and has a massive CV listing all his published research. A way better doctor than I would see around here. Down the road, if you guys still like getting members to share their decision letters, I should really share mine. If I do get to federal court and they remand to that judge, I'm gonna have a hard time being respectful. My way of confronting people is kind of condescending and makes it clear how much of a dumb*ss I think they are (hey, at least I'm aware of it!!))

Just Me

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #1 on: January 03, 2021, 08:16:50 am »
You should call your attorney. Be prepared for it to be at least several days to weeks before he gets back with you. But hopefully I am wrong about how long it will take for you to hear back from him. Depending on how busy he is. The first of the year can be very busy. They have their regular case load, phone calls ect in addition to those from over the holidays.

Receiving a email.tellung you he will be in contact with you after the holidays. Might not be realistic. Although I understand your individual concerns based on previous experience. Hang In There
Nerve damage in upper and lower extremities. Degenerative Disc Disease, RA.

Hope the size of a mustard seed can produce Faith that can move mountains.

DisabilityDiscussed

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #2 on: January 04, 2021, 08:48:17 pm »
“anyone have to find a new lawyer after an AC denial?”  Title this thread.

“The first time I went through the whole application process and got to a point where the AC denied to review, that attorney was silent until close to the end of the sixty days to file for federal. Dropped me...

“…but I wanted to see if anyone here had luck finding a new attorney to take their case to federal court when the attorney previously representing them dropped them...”
Initial post this thread.

Possible but it would be highly unlikely.  Most attorneys do not want to take a case with as many obstacles to winning as you present, not the least of which is having to split the attorney fees should you not be able to get the current attorney to renounce his fee. 

“I had no chance to give it to my doctor for a rebuttal, nor could we subpoena the investigators with that short notice.”  Ibid.

The attorney could have asked for a delay to review the new evidence and/or subpoena the witnesses. 

“I warned my case manager that I was going to be out of town most of the upcoming business week…” Ibid.

Who is this case manager?  Is he with the attorney’s office, the Disability Determination Service Office, the ALJ office, or …?  Whatever the answer, I am not sure how this changes anything.  Unless you were going to be out of town so long that you did not get the notice before the Consultative Examination.  Of course, if you were going to be out of town that long, you could have arranged for some help in forwarding the mail to you. 

“Side note: screw the disability laws and systems of the US.”  Ibid.

Yep, the whole system is screwed up and is designed to break the back of the little guy.

Let’s see, your application was denied by an initial examiner, a reconsideration examiner, an ALJ, and the Appeals Council – then the process was started over - with the same results.  By my count, your application was reviewed eight times by different people, and you were not able to prove your Medically Determinable impairments met the SSA definition of Disability???  Is it possible, just possible, that the adjudicators know SSA rules and properly applied them?  (Remember the Golden Rule – “He who has the gold, makes the rules.”)  We may not like the rules, but they are the rules.

In another thread you, apparently, completely disregarded Just Me’s reference to https://secure.ssa.gov/poms.nsf/lnx/0424515076 which offers a more recent set of guidelines for the Evaluation of Fibromyalgia rather than the reference you offered that deals with Chronic Fatigue Syndrome.  Which Medically Determinable Impairment prevents your performing Substantial Gainful Activity?  How?  So far, you have not been able to answer those questions in a manner that would convince adjudicators you cannot perform SGA. 

Obviously, this is a long and complicated case.  There is no way anyone on this board can give you anything but general impressions.  Your best hope is that your current attorney is willing to continue to the District Court.  If he will not, you will have two choices, find a new attorney who will take the case at this late date, or file a new, initial, application. 

Lacking that, you may want to try to find work within the limits you have.  There are multiple resources available to help those who want to transition into different types of work but you will have to do the looking - these agencies will not look for you.   


fibro_in_wv

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #3 on: February 05, 2021, 07:30:05 pm »
Okay, first log-in in a while. Responsesto DisabilityDiscussed:

1) Yes, I guess my attorney could have potentially asked for a delay. He didn't, though.  The way Social Security is SUPPOSED to handle CDIU reports, according to the POMS, "If the claims file contains OIG/CDIU evidence, modify the standard “acknowledgement of notice of hearing” to advise the claimant or representative of such evidence in file. " This was not done. A report that they had for ~9 months prior to my hearing was not made known to me until a day before the hearing, by it appearing in my exhibits folder.

2) The case manager bit is just me elaborating on not hearing from my attorney. I reached out to the case manager at my lawyer's firm the day I got the AC denial, to say, "Hey, this came in. Just to let you know, I may be hard to reach next week, as I'm going out of town to take care of something related to my ERISA policy." This is not an exam for Soc Security. I was getting nervous, having not had my attorney message me up to the point I posted my first message to talk next steps. This was from the first time I applied for Soc Security, where the attorney I'd hired in-state failed to actually submit an argument to the Appeals Council and then dropped my case when my sixty days to appeal to the federal courts was almost up. Not hearing from new attorney after that old attorney's behavior, when I'm someone with anxiety problems to begin with, was stressful. Since I'd warned them I'd be out of town the next week, I doubted they'd call me then, but they didn't contact me any other time during December, either (whether from holidays or just overlooking me, I don't know.) Regardless, it doesn't really matter. I'm just verbose.

3) Yes, I have had all those different eyes on my case. And yes, they've all ruled incorrectly. There was a recent court ruling in my district that had a LOT of the same problems my case has. It was in South Carolina, which is in the Fourth District with West Virginia... The judge's decision calls out the misunderstanding of how fibromyalgia presents, and how if a judge's decision to deny is based on incorrect facts, that's not an appropriate decision. As an example, when you go to physical CEs, doctors typically check Range of Motion. This would typically show no issues in a fibromyalgia case - we'll typically have normal range of motion. So, saying that my normal range of motion test is proof I can work is absolutely nuts. That puts an impossible burden on a claimant, when you require evidence that they just cannot give. You cannot say a person is lying about their capabilities when you film them walking <40-50 feet and they told you they can at most walk 2-3 blocks. You can't look at the mechanical motion of of the foot/ankle/leg while they're walking and say that they clearly do not have trouble walking when fibromyalgia isn't the result of a mechanical issue. It's not like I have a broken ankle that would cause me to limp with every single step. Fibromyalgia is shown by a problem in continuing an action for an extended amount of time (I'm sorry, I can't think of the word right now.) Problems show up when you 'overdo' things. And, in my day to day life, I do my best to NOT overdo things, preferring to NOT cause myself pointless pain. I show up to an consultative exam on any particular day, and odds are I was doing my best to not cause myself pain the day before. And, realistically, if I know I have to go out one day? I make extra sure I'm careful the day before. Why? Because I don't want to spend the next day, or two, or however many after that CE in worse pain.

3) I'm well aware of SSR 12-2p. I've had it cited at me over and over when talking to my ERISA attorney. When I reference that ruling on CFS, I do so because that ruling specifically calls out a medical test I did that is not mentioned in the SSR for fibromyalgia. I took a 2-day cardiopulmonary exercise test that, specifically in the CFS SSR, is listed as evidence of an MDI. I only mention that ruling to show that there's reason for a judge to look at those test results. Should I get my case remanded, I've now done the test a third time, which shows the exact same thing - the safe level of energy exertion for me precludes even nonskilled, sedentary work.


Unfortunately, while my attorney was willing to take my case to District Court, he had to drop my case when he could not get an attorney in this state to sign on as local counsel. So, I'm on the look for an attorney again - part of why they dropped me as a client was that the attorney felt he spoke to people who might've taken the case if they didn't have to deal with another attorney. Still waiting for my previous attorney to get me those names, so I know who to reach out to. I've filed my case pro se to retain my right to file (sixty days was almost up). And, should I be unable to find an attorney, I'll do it myself. I'd just rather have someone help me that knows what they're doing.

DisabilityDiscussed

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #4 on: February 06, 2021, 10:45:02 am »

This forum simply cannot adjudicate cases, especially one as convoluted as this one.  There are too many unknowns.  Having said that, I like it when posters “get into the weeds”.  It makes me think. 

The Cooperative Disability Investigations Unit is involved in fraud investigations.  The CDIU has the authority to become involved in pending, unadjudicated, cases but it is exceedingly rare. 

Now that you have the CDIU file, what does it contain that affects your case?  More importantly, how can that information be presented to a “new set of eyes” and change opinions? 

What has happened in the past is of little importance today.  What IS important is what can be done today?  How can the applicant get a new bite at the apple?  This means understanding what went wrong with the last apple pie and understanding how can the pie, in the legal sense, be made to have an award-winning taste?  Saying “I feel” means nothing. 

The adjudicator will want to know, specifically, how the previous adjudicator erred.  How does the recent Court opinion relate to the specific case being appealed?  There is not much more that can be done except with the advice of a competent attorney or, if done without an attorney, without a lot of legal research.  Few on this forum have the time or expertise for this. 

Applicants need to remember; it is up to the applicant to prove the inability to perform Significant Gainful Activity.  SSA does not need to prove anything

Bonzai

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #5 on: February 06, 2021, 02:00:39 pm »
No one has mentioned this, and me, well being me, will.

What concerns me most about your posts is the following "The gist was that SSA had me under surveillance and claimed I lied about struggling to walk/climb stairs.".  If they had you under surveillance and you walked up or down stairs without any noticeable difficulty, then your credibility is shot at that point.  When an ALJ finds evidence that a claimant has lied about what they are able to do, then they consider any other evidence as non-credible and will deny benefits based upon fraud.  The biggest hurdle to tackle is to explain why you were able to do something that you had told the ALJ you couldn't.

I have an untreatable form of bipolar disorder, and have good and bad days.  If I was under surveillance, then the investigator would only see and document my good days, as I don't leave the house on my bad days.  During my wait for my remand hearing, I was under surveillance for a bit.  I was volunteering to help an elderly couple at their Bar-B-Que restaurant, and assisted with loading whole hogs onto racks and helping to place the full rack into the smoker.  One day, the investigator went in to talk to the owners about what I did.  They told them that I helped out when I could, because there were some days that my wife told them I was having a bad day.  I do not even talk on the phone when I'm having a manic state, as the conversations take too long and I am off on another tangent.

Hope this helps....
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Just Me

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #6 on: February 06, 2021, 06:09:44 pm »
Received my AC denial about three weeks ago, and I'm getting extremely nervous because I have not heard from the attorney... The first time I went through the whole application process and got to a point where the AC denied to review, that attorney was silent until close to the end of the sixty days to file for federal. Dropped me. I know it's the holidays, and I'll hopefully hear from my attorney on Monday, but I wanted to see if anyone here had luck finding a new attorney to take their case to federal court when the attorney previously representing them dropped them...

I have a pretty extensive post I did previously detailing my ALJ decision. The gist was that SSA had me under surveillance and claimed I lied about struggling to walk/climb stairs. They never notified my attorney in advance that that report was part of my file, something their handbook says they are to do. It was added to the electronic file within five days of of my hearing... The attorney checked five days before that everything looked in order, then he checked again the night before when he called me, because I asked if a particular medical report was listed (it wasn't). He saw the surveillance report then. I had no chance to give it to my doctor for a rebuttal, nor could we subpoena the investigators with that short notice. He didn't object to it at the start of the hearing, likely because he agreed with me that the investigators' conclusions did not match with the evidence - I think he figured the judge would be smart and see that. NOPE! And likely based on that, the judge accused me of seeing the doctor I do out of state because he MUST have been willing to fraudulently support SSDI claims. So, my doctor's opinion, who I've seen for almost eight years now, and all those notes were ignored for state for reviewers and the little cursory medical and psych evals they sent me to. And beyond that, whoever was supposed to move files into some kind of folder to indicate they were for the judge to look at didn't put my strongest evidence in. The attorney fixed it when I spoke with him the night before, but the judge must've already grabbed files or something, because his report has no mention of those tests.

I'm just getting really antsy, not hearing anything from the lawyer. I warned my case manager that I was going to be out of town most of the upcoming business week (I was doing that super useful testing with the Workwell Foundation for a third time). I was in a different time zone, away from home, so I just thought it would be smart to warn them I might be harder to reach. No word. The next business week, of Dec 21, no word. Week of New Year's Eve, no word. When you have one attorney screw you over, you're a tiny bit more worried it'll happen again. They could've at least sent an email saying they'd review things and we'd talk soon...  Anxiety -> catastrophizing, so I'm just trying to make sure I have a plan B if this firm does the same shady thing. Is there someone a lot of people that post here reach out to if they find themselves needing representation for federal? Or is it pretty much hopeless if you get to that point and your representation won't press it further?

(Side note: screw the disability laws and systems of the US. A judge shouldn't be able to throw out that accusation of doctor fraud without VERY solid supporting evidence. Just really ticks me off. My doctor is well respected in the field and has a massive CV listing all his published research. A way better doctor than I would see around here. Down the road, if you guys still like getting members to share their decision letters, I should really share mine. If I do get to federal court and they remand to that judge, I'm gonna have a hard time being respectful. My way of confronting people is kind of condescending and makes it clear how much of a dumb*ss I think they are (hey, at least I'm aware of it!!))


I wonder if your attorney really did the things he said he did. It seems like too many things are being blamed on the ALJ or their office. Have you asked for and received Everything that is in your file that the ALJ saw?
Nerve damage in upper and lower extremities. Degenerative Disc Disease, RA.

Hope the size of a mustard seed can produce Faith that can move mountains.

fibro_in_wv

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #7 on: February 07, 2021, 01:20:09 am »
Okay, lots to respond to...

Just Me: I'm planning to call my local SS office on Monday about getting my files, now that I'm going it alone. I want to see if they can give information about these two "folders" as it was explained to me, of all submissions and then of all exhibits the judge will review. I'd like info on timestamps of when things were put in my file, to back up what the attorney told me, so I have the evidence to show the CDIU report was sat on for 8-9 mos, only being revealed to my representation the day before my hearing. I know for the brief I have to get away from "he said, she said" stuff. I need the hard evidence of changelogs. I can't say with 100% certainty that my attorney was being straight with me, but the things he did mention, like what attorneys he reached out to said, were in line with what I heard when I initially looked for representation in state, it rang true to me. *shrugs*

Bonsai: I'm in a similar position. I very rarely leave the house, so surveiling me at these exams they set up was the only way. I don't like pain and I do what I can to minimize my risk, especially if I'm going to go somewhere and know it'll be taxing. The paperwork Social Security has us fill out about Activities of Daily Living is where this issue comes from. It asks for yes/no answers on if you have trouble walking, standing, climbing stairs, etc. It's somewhat vague, and later on in the paperwork, it asks for clarification on just how far you can walk, how long you can stand, etc. If someone asked me if I have trouble climbing stairs and I said no, that would be false as I can handle fewer stairs than a typical person my age. Fibromyalgia, since it causes good and bad days and worsens with activity, means I could look perfectly fine taking three stairs. Up that to ten, or watch me take those three steps at the end of a more active than usual day,  I might struggle. Had I had the report before the hearing, I would have sent it to my doctor for an opinion. What was recorded shows nothing, if you understand how fibromyalgia presents. It's not a mechanical problem, kind trying to walk on a broken ankle; it's a problem of sustained exertion. But in the case of them recording me walking <50 feet? They chose to ignore where I wrote on my forms that I could at best walk 2-3 blocks. The distance from vehicle to building entrance was more like one block at most. It again says nothing about my credibility, because 50 ft is less than 2-3 blocks.

DisabilityDiscussed: Thank you for your comments. I realize the wording I use on here wouldn't fly for legal argument, and whatever I write up needs to be carefully worded so my arguments are based on logical or legal errors. It just hurts my brain, so I'm being lazy here. My CDIU issue is a potential due process problem. It's like how prosecutors are required to turn over all evidence in discovery and not hold on to some "secret weapon" to blindside defense. I just don't know if the file being made available the day before my hearing is enough (no notice was given, it just showed up in the exhibits folder)... But I do know that SSA's internal documentation says they should have notified me when the notice of hearing date being set was mailed. They did not do this. The ALJ also has a duty to develop the record. My ALJ posed questions in his decision with no record of his attempting to reconcile things. For example, he makes his little remark about my doctor's "degree title/status otherwise unknown." There's no evidence he reached out to my doctor's office, nor was I asked to give, say, his CV. The decision throws out suppositions that were not brought to anyone's attention in advance of his decision. Those are just two arguments I can make. The recent Arakas decision helps me lay out more, like how my ALJ ignored qualifying information that helps explain why his point isn't strong.

It's hard for me to make my points when you have no clue what the decision looks like. I'm not comfortable widely sharing my hearing decision yet while still fighting, but I can edit the pdf to hide my personal info and share privately if you'd like. I just know that my post-midnight writing may not get across what I want it to (and, thankfully, if I do have to write the brief, I'll have some time to reread, edit, and add things I forgot or make clarifications.) It's frustrating, writing now. Things just don't flow or come to me as easily as they did before I got sick. I spent maybe an hour and a half writing this much...

SteelCity1981

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #8 on: February 07, 2021, 04:02:38 am »
This is what this forum is hear for. At times it may seem that people are judging what you say, but in reality they are just trying to understand where you might have gone wrong so that they can help you move forward so that you do get award disability.

Just Me

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Re: Curious - anyone have to find a new lawyer after an AC denial?
« Reply #9 on: February 07, 2021, 05:02:47 pm »
Okay, lots to respond to...

Just Me: I'm planning to call my local SS office on Monday about getting my files, now that I'm going it alone. I want to see if they can give information about these two "folders" as it was explained to me, of all submissions and then of all exhibits the judge will review. I'd like info on timestamps of when things were put in my file, to back up what the attorney told me, so I have the evidence to show the CDIU report was sat on for 8-9 mos, only being revealed to my representation the day before my hearing. I know for the brief I have to get away from "he said, she said" stuff. I need the hard evidence of changelogs. I can't say with 100% certainty that my attorney was being straight with me, but the things he did mention, like what attorneys he reached out to said, were in line with what I heard when I initially looked for representation in state, it rang true to me. *shrugs*

Bonsai: I'm in a similar position. I very rarely leave the house, so surveiling me at these exams they set up was the only way. I don't like pain and I do what I can to minimize my risk, especially if I'm going to go somewhere and know it'll be taxing. The paperwork Social Security has us fill out about Activities of Daily Living is where this issue comes from. It asks for yes/no answers on if you have trouble walking, standing, climbing stairs, etc. It's somewhat vague, and later on in the paperwork, it asks for clarification on just how far you can walk, how long you can stand, etc. If someone asked me if I have trouble climbing stairs and I said no, that would be false as I can handle fewer stairs than a typical person my age. Fibromyalgia, since it causes good and bad days and worsens with activity, means I could look perfectly fine taking three stairs. Up that to ten, or watch me take those three steps at the end of a more active than usual day,  I might struggle. Had I had the report before the hearing, I would have sent it to my doctor for an opinion. What was recorded shows nothing, if you understand how fibromyalgia presents. It's not a mechanical problem, kind trying to walk on a broken ankle; it's a problem of sustained exertion. But in the case of them recording me walking <50 feet? They chose to ignore where I wrote on my forms that I could at best walk 2-3 blocks. The distance from vehicle to building entrance was more like one block at most. It again says nothing about my credibility, because 50 ft is less than 2-3 blocks.

DisabilityDiscussed: Thank you for your comments. I realize the wording I use on here wouldn't fly for legal argument, and whatever I write up needs to be carefully worded so my arguments are based on logical or legal errors. It just hurts my brain, so I'm being lazy here. My CDIU issue is a potential due process problem. It's like how prosecutors are required to turn over all evidence in discovery and not hold on to some "secret weapon" to blindside defense. I just don't know if the file being made available the day before my hearing is enough (no notice was given, it just showed up in the exhibits folder)... But I do know that SSA's internal documentation says they should have notified me when the notice of hearing date being set was mailed. They did not do this. The ALJ also has a duty to develop the record. My ALJ posed questions in his decision with no record of his attempting to reconcile things. For example, he makes his little remark about my doctor's "degree title/status otherwise unknown." There's no evidence he reached out to my doctor's office, nor was I asked to give, say, his CV. The decision throws out suppositions that were not brought to anyone's attention in advance of his decision. Those are just two arguments I can make. The recent Arakas decision helps me lay out more, like how my ALJ ignored qualifying information that helps explain why his point isn't strong.

It's hard for me to make my points when you have no clue what the decision looks like. I'm not comfortable widely sharing my hearing decision yet while still fighting, but I can edit the pdf to hide my personal info and share privately if you'd like. I just know that my post-midnight writing may not get across what I want it to (and, thankfully, if I do have to write the brief, I'll have some time to reread, edit, and add things I forgot or make clarifications.) It's frustrating, writing now. Things just don't flow or come to me as easily as they did before I got sick. I spent maybe an hour and a half writing this much...
I

I was detailed on my SSA forms. For example, I could heat up a can of soup in the microwave. But I did not open the can. I had little to no feeling in my hands/fingers. I frequently cut and burned myself. My daughter opened any cans that needed opening before she went to school or work. I explained this on the forms. My medical records noted the cuts and burns my doctor observed. My daughter mentioned opening the cans in the letter she wrote to the adjudication
Nerve damage in upper and lower extremities. Degenerative Disc Disease, RA.

Hope the size of a mustard seed can produce Faith that can move mountains.