Fighting for Your Rights in Social Security Disability Cases With Susan O’Malley

September 11, 2024 | Written by Gladiator Law Marketing

Susan O’Malley is a Partner at O’Malley Tunstall, a personal injury and disability law firm that handles serious and catastrophic injuries and disability claims throughout North Carolina. As a Board Certified Specialist in Social Security Disability Law, she leads the firm’s disability cases in Federal Court and up to the Fourth Circuit Court of Appeals. Few lawyers have spent as much time helping disabled people throughout their careers as Susan. She was also instrumental in forming the specialization committee for the State Bar and has played a significant role in landmark cases.

Here’s a glimpse of what you’ll learn:

[1:54] Susan O’Malley shares how and when she knew she wanted to be an attorney
[3:02] How Susan found her niche in Social Security Disability Law
[3:52] Common misconceptions about Social Security Disability cases
[5:59] The importance of accurately documented medical treatment to fortify disability claims
[10:38] Success in federal court and the importance of being well-versed in the law
[13:20] How Susan remains current with updates and trends in Social Security Disability Law
[18:36] Handling the emotional aspect of representing clients in distressing situations
[22:00] Unexpected business challenges faced by attorneys after law school

In this episode…

Navigating the complexities of Social Security Disability Law can feel overwhelming, especially when common sense and legal sense don’t always align. How can you ensure that your case is presented in the best possible light, and what are the key strategies for overcoming the most common obstacles in these cases?

According to Susan O’Malley, a seasoned expert in Social Security Disability Law, the key is persistence and understanding the unique intricacies of the system. She highlights that many applicants face repeated denials but advises against giving up, stressing that the proper documentation and a thorough understanding of the legal framework can make all the difference. Susan also emphasizes the importance of having an experienced advocate who can help you build a compelling case that is compliant with legal standards. This approach can significantly impact the likelihood of a successful outcome, especially in a system that has become increasingly stringent.

In this episode of 15 Minutes, host Chad Franzen sits down with Susan O’Malley, Partner at O’Malley Tunstall, to discuss the challenges and strategies involved in Social Security Disability cases. They explore the importance of persistence, the critical role of accurate medical documentation, and how an attorney’s understanding of Social Security nuances can turn the tide in complex cases.

Resources mentioned in this episode:

Chad Franzen on LinkedIn
Gladiator Law Marketing
Susan O’Malley on LinkedIn
O’Malley Tunstall PC: Website | Contact no.: 252-823-2266

Special Mentions

Quotable Moments

“Don’t give up. It’s a very long and frustrating process, but don’t give up.”
“Common sense and Social Security sense are not the same thing.”
“If you think you’re right, keep fighting.”
“I’m absolutely making a day-to-day difference in my clients’ lives.”
“Being good in court isn’t the same as being good in business.”

Action Steps

Consistently seek medical treatment and ensure it’s well-documented for a stronger disability claim: This addresses challenges with case legitimacy and supports the claimant’s evidence base.
Remain persistent through all stages of the Social Security claims process, as tenacity can be pivotal in the success of your case: This step emphasizes the importance of not being discouraged by initial denials.
Educate yourself on the differences between “common sense” and “Social Security sense” to align expectations with legal realities: Understanding these differences helps manage expectations and improves case presentation.
Consult with a specialized Social Security Disability attorney to navigate the legal process effectively: Specialized expertise is crucial for accurately interpreting and applying Social Security law.
Stay informed about changes in Social Security regulations and maintain a network of professionals: Being current and well-connected enhances strategic decision-making and case outcomes.

Sponsor for this episode…

This episode is brought to you by Gladiator Law Marketing, where we deliver tailor-made services to help you accomplish your objectives and maximize your growth potential.

To have a successful marketing campaign and make sure you’re getting the best ROI, your firm needs to have a better website and better content. At Gladiator Law Marketing, we use artificial intelligence, machine learning, and decades of experience to outperform the competition.

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Episode Transcript

Intro 0:01

You’re listening to 15 Minutes where we feature community leaders sharing what the rest of us should know but likely don’t.

Chad Franzen 0:12

Hi. Chad Franzen here, one of the hosts of Share Your Voice, where we talk with top notch law firms and lawyers about what it takes to grow a successful law practice. This episode is brought to you by Gladiator Law Marketing, delivering tailor made services to help you accomplish your objectives and maximize your growth potential to have a successful marketing campaign and make sure you’re getting the best ROI your firm needs to have a better website and better content. Gladiator Law Marketing uses artificial intelligence, machine learning and decades of experience to outperform the competition to learn more, go to gladiatorlawmarketing.com, where you can schedule a free marketing consultation. My guest today is Susan O’Malley, Partner at O’Malley Tunstall. Her expertise spans various practice areas including workers compensation, personal injury and medical malpractice. Graduating cum laude from the University of North Carolina at Charlotte, she pursued her legal education at the University of North Carolina at Chapel Hill. She was one of the lawyers who drafted the first Social Security specialization test in North Carolina for the state bar. As a North Carolina State Bar certified specialist in Social Security Disability Law, she played an integral role in the formation of the specialization committee, and has been involved in landmark cases such as Joyner versus Barnhart and Hines versus Barnhart. Her dedication to advocacy is further evidenced by her active engagement with the organizations like North Carolina Advocates for Justice and the American Association for Justice, where she has held leadership positions and contributed significantly to their disability law sections. Susan, it’s great to have you today. How are you?

Susan O’Malley 1:45

Thank you. I’m doing well. Chad, how are you doing?

Chad Franzen 1:47

I’m doing great. Thank you so much. Hey, so tell me how and when did you know you wanted to become an attorney?

Susan O’Malley 1:54

Actually, pretty darn young. We have attorneys running throughout our family. I have an uncle on my mother’s side, I had an aunt on my father’s side, and I just, I don’t know why, I kind of assumed in my head I would be an attorney, and my sister’s an attorney, and her husband’s an attorney. So it kind of runs rampant.

Chad Franzen 2:13

So how did you so you decided that pretty darn young, what was your path toward getting into the legal industry? And how did you get started?

Susan O’Malley 2:21

Well, of course, college, law school, you know, I kind of went into law school thinking I wanted to work in criminal law. And my first job out of law school was with Jimmie Keel in eastern North Carolina, and he had a variety of areas, the workers comp, the medical malpractice, personal injury and social security, which I did all but I kind of found my niche in Social Security disability, and although that was a smaller area of practice, when I started with Jimmy, I grew that practice and and I have enjoyed helping people in that way.

Chad Franzen 3:02

Great. So how did you how did you kind of find that niche in Social Security Disability Law?

Susan O’Malley 3:09

Part of it was Jimmie’s overall philosophy, if you’re right, keep fighting. So I would believe I was right for my client. So I would appeal it beyond the hearing level, and I would appeal it into federal district court, and I found that I had a good understanding of how social security laws work and how it should be applied to my client’s case.

Chad Franzen 3:40

So you’re the first person I’ve ever spoken to about Social Security Disability Law. Tell me about maybe some common misconceptions and just some elements that people should know.

Susan O’Malley 3:52

First thing, don’t give up. It’s a very long process, a very frustrating process, but don’t give up the they you get typically denied at the application, typically denied at reconsideration, and have to go to a hearing, and it takes a while to work your way through that. So the biggest thing is to not give up. The other biggest thing is get the medical treatment. Medical treatment is kind of like the foundation of the house you’re trying to build. What you say needs to match up with that medical treatment. And if it does, then you’ve got a strong case. If it doesn’t, you don’t have a strong case. And the third thing is common sense and Social Security sense are not the same thing. So that’s where an attorney can be very helpful, because they’ll understand how Social Security is looking at your case, where that doesn’t necessarily make any common sense to you as to how they should look at it.

Chad Franzen 4:55

At what point should somebody consider using an attorney? Me right away or after, you know, being denied once. Or what would you recommend?

Susan O’Malley 5:04

You know, what I tell people is the attorney can help you at any point. They can help you at the application level. They can help you at the first appeal. They can help you at the hearing level, if you’re comfortable filling out paperwork, getting that information to them at the application level, I would certainly encourage somebody to do that on their own and see if they’re the exception to the rule and they get approved. It’s possible. But once you get that first denial, you have to remember, you only have 60 days to appeal it, and if you let the 60 days come and go, you have to start over from the beginning with a new application. So certainly if you get that first denial, that’s when you want to get help and you want to get help before the time runs out to appeal. So an attorney can be helpful at any stage. But if you’re comfortable and want to try the application and see what happens first, that’s always fine.

Chad Franzen 5:59

Can you you kind of elaborate on your thought that Social Security sense and common sense are not the same thing.

Susan O’Malley 6:06

For instance, if you have a medical condition that has not been diagnosed by a doctor you went to on your own, it cannot be considered so let’s say you put in your application and the Social Security doctor diagnoses you with a condition. If you haven’t gone to your own doctor and gotten that independent diagnosis, they will not consider that medical condition. They can almost they don’t have to consider whether you would be hired for a job. What they’re looking at is, could you do the job, not whether you’d want to do the job, not whether you would get paid the same amount of money that you did for your past work. So for instance, a very common sense approach is, well, I have to take this medication, and nobody would hire me on that medication. That’s common sense. That’s not Social Security sense. They’re looking at, could you do that job on that medication, not whether you’d be hired by anybody. So again, that’s very confusing, because it makes no sense.

Chad Franzen 7:15

Sure, sure. So hey, can you tell me about maybe some memorable cases, or a memorable case you worked on. I mentioned you were involved in some landmark cases, Joyner versus Barnhart and Heinz versus Barnhart. Can you tell me, is there a particularly memorable case you’ve worked on, and are those one of them?

Susan O’Malley 7:29

Well, let’s talk about Heinz. There had been a series of cases prior to Heinz where they had to they other attorneys were making Social Security acknowledge that pain, by itself, can be disabling, and that if you had a medical condition that could reasonably result in pain, then your subjective testimony, what you have to say about your pain, has to be given weight, as opposed to requiring medical proof, requiring an x ray and requiring something objective, you have to establish that you have that medical condition, but then it can be disabling because of pain. So Heinz was one of those cases where it was a pain case. And by that, I mean he had the medically diagnosed condition, if there was no argument about that, but one of the the reason that it was denied at the initial level was he, he had no end organ damage. Well, certainly that would be an objective sign of the seriousness of the medical condition, but that’s not required. So his testimony regarding the difficulty with his stamina, the deaf, the difficulty he had with the flare ups with his condition, were all should have been accepted evidence of pain, and there was actually nothing that contradicted that he had those problems. And in fact, in the very report that the judge used to deny the case initially, even the doctor put in the fact that end organ damage doesn’t exist doesn’t mean they don’t have severe symptoms. So that was again kind of happy, and they called those prior pain cases Hyatt cases. And that was reestablishing that Hyatt was, in fact, the law, and that once you’ve established your medical condition, your subjective evidence, what you have to say about your health condition has to be given properly.

Chad Franzen 9:41

Is that the most memorable case you’ve been involved with?

Susan O’Malley 9:44

Well, yes, I won at federal district court. Now I have no proof of this, but my oldest brother was a reporter at the time and knew the US attorney that lost to Me and. I called him up and laughed at him for losing to his little sister, and the case got appealed to by the US Attorney’s Office to the Fourth Circuit Court of Appeals. So that’s the last stop before the Supreme Court. So I was going up to the Fourth Circuit Court of Appeals, driving up to DC, going and arguing in front of that panel to defend the win I had below, and I successfully defended that win. So that makes it very equitable.

Chad Franzen 10:28

Sure, sure what, uh, what do you think makes you success or has made you successful in cases like that?

Susan O’Malley 10:38

Certainly understanding the law, but also tenacity. It’s it’s easy to give up, it’s easy to say, Okay, I’m just not going to take it to that level. I’m not going to practice that way. But this was one of those cases where the way I interpreted the law and it should have been applied, was being decided wrongly, and goes back to Jimmy telling me, if you think you’re right, do what you need to do. So that tenacity to not give up and to push it when I know that my client’s case should have been approved.

Chad Franzen 11:21

Has the field of social security law evolved since you began practicing?

Susan O’Malley 11:28

It has obviously always, regulations change and different things like that. I would say now it is harder to get disability, and that’s where the attorney can come in and be even more helpful. I think there has just been overall sort of a tightening down on approvals. So again, understanding how medical records are going to be looked at. For instance, many, many, many, many, many, years ago, I had a client, and I was reviewing their records, and the doctor had put down that the client had taken up panning for gold as a hobby. That doesn’t sound very disabled. Turns out you could mail order dirt and sift through it at your kitchen table. Very different idea. But again, you know, rather than cut and run on that case, because I had seen they had taken up panning for gold, I called the client, I asked them what was going on, and then we could put context to that record. So a lot of times for clients, I’m giving them the advice of, remember that what you’re saying is being written down. Don’t use words like, Okay, fine or good. When the doctor asks you how you are, the doctor understands that you mean you’re no worse, but then it looks like you have no complaints. So I tell my clients complain. Don’t whine. Nobody likes a whiner. But you’ve got to complain. You’ve got to get that documented, no matter how many times you’ve said that, if it’s a consistent problem, Social Security is going to expect it to show up consistently in your medical records.

Chad Franzen 13:13

How do you kind of, given that it’s kind of evolving, how do you stay updated with the latest developments and trends?

Susan O’Malley 13:20

Well, of course, there’s continuing legal education. I belong to the Social Security section for the North Carolina Academy, and there’s online education classes. There’s also just in general, being part of that community of lawyers, and we communicate regularly about our cases, about what we see coming down the line, so it’s a very active online community as well.

Chad Franzen 13:51

Can you tell us about your involvement in the formation of the specialization committee for Social Security Disability Law for the State Bar?

Susan O’Malley 13:57

I was approached by Charles Hall to be on the initial committee. And the committee, we went through everything. We went through if you’re applying, how long should you have been in practice? How much of your practice needed to be social security, specific? How much CLE were we going to require? Also, you have to have a certain number of recommendations from the professional community, and then we literally drafted every single question on the test. And then when the first test was taken, we graded every single question on the test. But that was there are lots of national because Social Security is a national program. It’s a federal program. All the laws in the different states are actually the same. There are national programs for recognizing specialists, but not social security. So that was part of what had been worked on, is to get a Social Security Disability Law specialty. So. Specific to North Carolina, because that helps clients understand the level of knowledge that a practitioner has. Social Security, again, is unique in the fact that until you get into the federal district court level, you don’t have to be an attorney to represent somebody in Social Security Disability. So we wanted to make sure that we had a way of reassuring people who came to us that we actually had the skill and the experience to make the difference.

Chad Franzen 15:37

How do you kind of handle the the emotional weight that comes with representing clients who are maybe are stressed out or whatever, involved in social security disability cases?

Susan O’Malley 15:47

That’s certainly difficult. You certainly have to listen, but you also then have to educate. And again, that goes back to what I was saying common sense and Social Security sense are not the same thing. So they’re asking you questions like, well, if I’m taking this medication, I can’t get hired to do that. And I say I understand that, but that’s common sense. That’s not Social Security sense. So we need to go back and break down why you couldn’t do that job regardless of the medication. So you certainly have to listen, understand how difficult it is, but then also try to help them understand how we can move forward with the Social Security Disability case, and what is going to help Social Security understand their disability.

Chad Franzen 16:39

Did you kind of have to learn like, is there like a fine line between being empathetic and forthright in terms of conveying what the your client needs to hear, regardless of their emotional state?

Susan O’Malley 16:53

Yes, you do have to tell them the truth. And the example I would use is very early on when I practiced substance abuse, was actually a disability and that got removed from the system. So when I go through records, if I see the records are not being substance abuse, I have to deal with them straight up on that, you know. And there’s always some sort of, you know, I do. I was self medicating this, you know, all sorts of reasons like, okay, I get that. However, if the substance abuse was a reason, you are not able to work, the judge is not allowed to approve you. So first of all, we need to be honest. We don’t need to sugarcoat it, because if you sugarcoat it, then the judge is going to simply assume you’re sugarcoating everything, and we need to say what you’re doing, how much you’re doing. Now, there’s a couple of ways to address that some people have approached the point of no return. What I mean by that is it might be somewhat helpful if they stop the substance abuse, but it’s not going to undo the damage, and their disability is going to remain regardless. Or to show that there are periods of time where they were not using substances, but the problems remained as severe as they are when substances are being used, obviously not using substances, or that isn’t you know the best action, and I encourage that, and I encourage them to go to their doctor and get the help that they need, and to follow their doctor’s recommendations. But you have to tackle that head on, and you can’t sugarcoat it.

Chad Franzen 18:36

What do you what do you find most rewarding about this field?

Susan O’Malley 18:41

That I’m absolutely making a day to day difference in my clients lives. Getting their disability approved means that they can, you know, afford the daily living expenses, but what also means is that they will become Medicare or Medicaid eligible, and they will be able to afford their medicines. They’ll be able to afford going to the doctor, they’ll be able to afford going to a specialist, when perhaps all I could afford was their general practitioner. They won’t have to choose between medication and food or medication and the power bill.

Chad Franzen 19:14

In terms of what you do day to day, what do you enjoy most about, you know, whatever tactical or what you know, tasks that you do on a day to day basis. What do you enjoy most?

Susan O’Malley 19:26

Certainly, I love kind of discovering something that I think really gets our foot in the door strongly. And what I mean by that is, if the doctor has is either willing to write a disability letter or fill out a form. It has to be more than John Doe is disabled. That means nothing to Social Security. But if the doctor has treated the patient for a significant amount of time so that they they’re familiar with their conditions, they run the appropriate tests and they have given specific restrictions, like no. Lifting over five pounds, no standing for more than 20 minutes at a time, or have verified the need for a walker, a chain a service animal. Those are the sorts of things that I can use to try to get Social Security’s attention in a disability case before the hearing level. If I get something like that, I will write a letter to Social Security, summarizing why these elements make this a case you can improve without making it wait for a hearing. The other thing I enjoy is hearings, when issues come up that either I was expecting or was not expecting, but I’m able to run with it and work use my knowledge to show why those issues don’t stand in the way of an approval.

Chad Franzen 20:51

How did how did your firm, O’Malley Tunstall, how did that come about?

Susan O’Malley 20:55

That was a journey. I came out to work with Jimmie Keel in 1995 it was Keel offices. I became a partner when I turned 30 years old. Joe Tunstall joined us later. Joe is was Jimmy’s nephew. He had gone to law school. We were Keel O’Malley Tunstall for a while, and unfortunately, Jimmy passed away in an unexpected car accident in 2010 and Joe and I looked at each other and said, Do you want to keep going? We both agreed on it. We shook hands, and we dug in and made our way through that. And Joe and I have been working together ever since.

Chad Franzen 21:43

Okay, great. How? What? What is it like a challenge that you, you face as a result of being a business owner, as opposed to just challenges, a legal challenge that you, you know, that you kind of didn’t expect, maybe when you first started?

Susan O’Malley 22:00

Nobody teaches you how to run an office in law school, you the law so, learning how to deal with personnel, learning how to treat people fairly, but at the same time, you have to get productivity from people making the hard decision as to who to let go, even the decision learning how to make better decisions, as to who to hire, as to what things we need to ask, as to what things we need to know before we just hire somebody so and then figuring out the financial end, how to deal with the banks appropriately. What are the banks looking for? How do we make sure we have cash flow so that everything stays open? Those are the and how do we deal with the IRS and what’s the right legal format for our firm to exist in? Initially we exist in as a partnership, but eventually we’ve, now, you know, morphed, as you go on, into an S corp, and that’s nothing you learn in law school. That’s been a lot of speed of the pants.

Chad Franzen 23:10

Yeah, yeah, I bet. I bet. Hey, I have one more question for you, but first, tell me how people can find out more about your firm, O’Malley Tunstall.

Susan O’Malley 23:19

Well, you can find us on our website, which of course, is www.omalleytunstall.com you can reach us at 252-823-2266, we have Joe, my partner, does personal injury work so that can involve anything from bouncy house cases to car injuries, to truck accidents, to construction case accidents. We have other law firms that we partner with, for instance, in medical malpractice cases. And we have, now I’m primarily doing the Social Security work, but we have three other associates, in addition to Joe, who are working on our personal injury side. And the other thing that, again, is part of the learning curve, is if somebody calls us, and it’s not an area of practice that we have, we have built a referral network so that we can try to send you to somebody who can help you with your particular issue. So the network of professionals that we work with is also amazing. So and we get referrals from other professionals because of the type of work we do. So those relationships that we built up over time make a big difference.

Chad Franzen 24:40

Okay, awesome. Hey. Last question for you. I just, I just, you just mentioned something that you learned that from working that you didn’t learn in law school. If somebody who you know, maybe a young person who’s you think is kind of an impressive individual, came to you and said, I really want to get into law, maybe even social security law, what could you tell them? That only you would know based on, you know, walking through the experience that they couldn’t learn in law school.

Susan O’Malley 25:09

Well, the first thing I always tell anybody going into law school is, sign up to be the Barbary rep, because armory classes are free. And that’s the after you go through law school, then you have to go through a whole set of review classes just to study for the bar. But what I would tell them is, if they can do insurance in term ships in different practice areas, that’s good, because I went into law school assuming I wanted to do one thing, and I’ve done something very, very different, if you have the opportunity to take any business classes, not that law school isn’t hard enough, it is. But an MBA would make a big difference in you understanding the back office part of it, because being good in court isn’t the same thing as being good in business and understanding how income goes, How long business loan works, all of those things, learning how to deal with personnel appropriately, things that you can ask, things that you can’t ask, all of that would be tremendously helpful into making You more well rounded and less seat of the pants.

Chad Franzen 26:23

Sure, sure. Hey, Susan, it’s been great to talk to you. Thank you so much. Really informative and insightful. I appreciate your time today.

Susan O’Malley 26:31

I appreciate you talking to us and reach out to us anytime.

Chad Franzen 26:34

Okay, thanks so much. So long everybody.

Outro 26:40

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