Maine Social Security Disability Lawyer

Happy New Year

Best wishes for a Happy New Year to our clients, our colleagues, and the many Social Security and medical professionals we work with every day. 

"Total Disability" under Social Security Rules

Every now and then I see a decision that contains a sentence like this: "The evidence on record does not support a finding of total disability." I find the use of the term "total disability" in an ALJ's decision worrisome, because total disability is not necessary to prevail in a Social Security disability claim under all circumstances.

For example, for a claimant age 53 with past relevant work at the light or medium exertional levels, a finding of "disabled" is appropriate with a sedentary residual functional capacity (assuming, of course, no transferable skills). A sedentary residual functional capacity reflects a substantial work capacity, yet medical-vocational rule 201.14 directs a finding of "disabled" at step 5. So a person can still have a capacity for work, and nevertheless be found disabled under Social Security's rules. That is one reason why legal help is particularly helpful for claimants over age 50.

"Total disability" is a misnomer that, in my view, does not belong in a Social Security disability decision. It is a workmen's compensation term. In that area of law, a worker might be found partially or totally disabled. You also see percentages of disability in VA benefits claims. With Social Security disability however, use of the term total disability is imprecise language at best. There is no partial disability or total disability; you are either disabled under the rules or you are not. 

It may seem like a minor point, but legal professionals use precise language for a reason. It tends to avoid misunderstandings. There are already many people who mistakenly believe that Social Security disability requires a total inability to work at any job. It does not, and we should not further that misconception by using language that suggests otherwise.

Fourth Quarter Review

Here are links to a few articles from the past 3 months that are worth reviewing, or reading for the first time if you missed them when originally published.

• Binder Sues the SSA for 3-way Video
• On the Record Requests
• Different results between DDS and the ALJs
• Hearing Brief Excerpt for Ruling 06-03p
• Statement from a Spouse, Parent or Friend
• Appeal your Denial

As always, thank you for reading.

All is Calm, All is Bright

Our offices will be closed on Friday for the Christmas holiday.

Persuade the Judge

A lawyer's principal task at a disability hearing is to persuade the judge that the claimant can't work due to his or her medical condition. The judge, having reviewed the medical record and the rest of the file, must agree that the claimant cannot work or meets a listed impairent.

This task of persuasion starts way before the hearing. Everything the lawyer does - develop a winning theory of the claim, obtain medical records and opinions from doctors regarding the claimant's functional limitations, meet with the client and finally write a hearing brief - should all happen well ahead of the hearing. Hopefully everything is submitted to Social Security early enough to be in the record when the judge first reviews the claim.

Persuasion is the best way to win a claim, and it is the way most hearings are resolved. But you also have to be ready for the alternative.

If the judge is not fully persuaded that the claimant can't work, the representative must use of the full array of Social Security rules and regulations, including the sequential evaluation process, to the claimant's advantage.

You need to have a plan for the hearing to rule out past relevant work at step 4 and other work at step 5. Be ready to contest the RFC with the judge, and to cross-examine a vocational or medical expert.

Do not go down without a fight. You owe that to your client, to yourself, and to the nonadversarial Social Security process, which requires the best of a claimant's representative.

And lastly, if you can't persuade the judge, make sure that you have created a record for appeal. As recent statistics show, almost 25% of cases considered by the Appeals Council are sent back to the hearing level or allowed outright, and over half of the claims appealed to federal district court are remanded or allowed. So build a record for appeal, and keep the claim alive to persuade the judge another day.

 

Same Thing, Different Year

The 2009 Social Security statistics for disability allowances and denials at the various levels of review have been released.

I discussed the statistics briefly in my previous post, Appeal your Denial.

The notable thing about the new 2009 statistics is how close they are to the 2008 statistics. On a percentage basis, the allowance/denial rates are almost identical.

Here is 2009:

Here is 2008:

The similarity year over year is almost eerie. It makes you wonder.

By the way, here is the full 2009 Waterfall Chart, which shows the Appeals Council and federal court decisions as well.

Appeal your Denial

If you receive a denial letter from Social Security regarding your application for Social Security disability benefits, you must appeal that denial of benefits within 60 days.

Initial disability claims get denied for many reasons, and many denials have nothing to do with the merit of your disability claim. A common mistake made by claimants is that, instead of appealing a denied claim, they reapply again (and are denied again). Avoid that mistake! You will improve your chances of receiving benefits if you get some help from a lawyer and appeal that denied claim.

By appealing, you will ultimately have a hearing with a U.S. Administrative Law Judge (ALJ). The hearing level is your best chance to have your claim for disability benefits granted. The chart below, which shows year 2009 allowances/denials, demonstrates this point.

  

The chart shows that in 2009 there were 2,686,152 initial claims, but only 546,599 Reconsideration determinations. Ten states, including New Hampshire, don't have the intermediate Reconsideration step, so you can't exactly compare those two sets of figures. Nevertheless, it is clear from these statistics that many Social Security disability claimants did not appeal the initial denial of their claim. Yet the chart demonstrates that the likelihood of receiving benefits increases if you appeal your claim.

Get to the hearing level

The top row of the chart shows that 37% of the initial disability applications were granted nationwide. 63% were denied. These are national statistics, but the allowance rate in Maine is almost identical.

The second row shows that, of the denied claims that were appealed, 86% were denied again at the Reconsideration level. 

But look at what happens at the hearing level (row 3). On a national basis, 63% of the claims are allowed. I would say that percentage is even higher at the Portland Maine hearing office and at the Manchester NH hearing office. So if you appeal your denied claim to the hearing level, your chances of receiving disability benefits increase significantly. So please make sure to appeal your denial of benefits.

Here is the full 2009 Waterfall Chart, which also shows Appeals Council decisions and federal court decisions.

Recent Posts from the Disability Blogs

Every two weeks I publish a roundup of the notable posts from Social Security disability blogs:

• The Unsuccessful Work Attempt – Information for Claimants from the Musings on Social Security blog published by Thomas O'Brien
• Social Security Hearings: Competitive and Non-Competitive Work from the Colorado Social Security Law blog published by the Stasiuk Firm PC
• Statement from a Spouse, Parent or Friend from the Social Security Disability Lawyer blog published by Gordon Gates
• Social Security Disability and Unemployment Compensation from the Social Security Disability Law published by Dirk May
• How Does The Family Maximum Affect Social Security Disability Benefits? from the Disability Secrets blog published by Tim Moore

The Disability Blog Roundup will take its customary hiatus for the holidays, and will return on Friday, January 7th, 2011.

Step 2 Decision - No "Severe" Impairment

It has been a while since I have seen a step 2 decision, but I saw one last week. A step 2 decision means a disability claim is denied at step 2 of Social Security's sequential evaluation. That step is a determination of whether or not your impairment, or combination of impairments, is "severe" under Social Security's rules. 

It is pretty rare to see a step 2 decision, because the bar is set pretty low. Social Security Ruling 85-28, entitled Titles II and XVI: Medical Impairments That are Not Severe, states in part: 

A claim may be denied at step two only if the evidence shows that the individual's impairments, when considered in combination, are not medically severe, i.e., do not have more than a minimal effect on the person's physical or mental ability(ies) to perform basic work activities. If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.

As a practical matter, you see a step 2 decision when the judge wants to deny the claim and knows better than to throw the claimant into the briar patch of steps 4 and 5. For example, in this recent case, past work was "very heavy," and the claimant is over 60, and would grid "disabled" at step 5 at anything less than medium exertional work. Under these circumstances, from the perspective of a denying judge, it is worth a try to write a step 2 decision. 

There is an excellent discussion of the definition for a severe impairment on my New Hampshire disability site (thanks to the folks at James Publishing).

Act of Grace

It is really an act of grace when a judge decides to cancel a scheduled disability hearing, and grant the claim on the record.

I cannot tell you what a tremendous relief it is, every time, for the client to be spared the anxiety and stress that accompany the hearing.

This happened today with one of Manchester's senior judges. And an act of grace is just right for this season of Hanukkah and Advent.

There is No Partial Disability for Social Security

I get inquires regarding partial disability every now and then. Potential claimants believe they may qualify for partial Social Security disability benefits. They could still work a bit, but can no longer do the same job, or earn the same income, they earned before.  Or perhaps, due to their medical condition, their earnings have dropped significantly because of lost time at work.

The Veterans Administration awards partial disability. And often in workmen's compensation claims, you will see a doctor's opinion that the patient has a certain percentage disability. But these are generally medical-based findings. A Social Security disability determination also has a vocational element.

With Social Security disability, it is all or nothing. Either you can work or you can't. If you are working and earning wages more than $1,000 gross pay per month (that's substantial gainful activity for 2010), then you do not qualify for disability (there are some limited exceptions, such as Impairment Related Work Expenses; so if your income is very close to $1,000 per month, do not assume that you can't qualify for disability; talk to a Social Security disability lawyer). There is no partial disability for Social Security.

When Social Security assesses your ability to work, they must assess your ability to work full-time, on a regular and continuing basis. So this "all or nothing" approach can benefit certain claimants, who may retain an ability to work part-time. Those claimants are still eligible for full disability benefits.