Maine Social Security Disability Lawyer

Do not wait until your hearing to call a lawyer

I got one of those sad calls this week from a person who attended her administrative law judge (ALJ) hearing unrepresented. A friend of hers told her that she did not need a lawyer, and she took that advice.

Her expectation, completely unrealistic, was that she would go to the hearing, tell the judge her symptoms, and would receive disability benefits. So the medical record was not complete, and there were no opinions from her treating doctors in the disability claim file.

Now she has received an unfavorable ALJ decision, and has a blown date last insured. She does not qualify financially for SSI. Even if she appeals the unfavorable ALJ decision, her liklihood of receiving disability benefits is extremely remote. It is just a sad story.

You should not go to a Social Security administrative law judge hearing unrepresented. There are things that a lawyer does that help to achieve a favorable outcome. And since there is no attorney fee unless you receive benefits, there is no risk to you.

Do not become another sad story. Get help with your disability claim. A lawyer's assistance is more important now than ever.

 

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Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

Post Hearing Argument or Brief

HALLEX section I-2-6-76 provides:

The Social Security regulations provide that, upon request, the ALJ shall allow claimants a reasonable time to present oral argument, or file briefs or other written statements of fact or law. Absent special circumstances, the ALJ need not fix a time limit on oral argument. Oral argument should be recorded and made a part of the record of the case.

After all testimony has been presented, the ALJ must:

1. offer the claimant and representative an opportunity to make a final oral argument at the hearing, to submit a brief or other written statement within a reasonable time after the hearing, or to give their opinion regarding what the evidence proves and what finding of fact and conclusions of law the ALJ should make; and
2. address any assertions the claimant or representative make during their final oral argument, which vary sharply with the evidence or raise new issues that may be relevant. 

In my view, an oral argument at the close of the hearing is not that much help. When post-hearing argument is needed, I prefer to submit a post-hearing brief.

In what circumstances should the claimant's representative submit a post-hearing brief? Certainly when it is necessary to rebut vocational or medical testimony from the hearing. Arguably, a post-hearing brief should be done in every case where the judge did not announce a decision at the hearing, to remind the judge why the claim should be granted. In general, I will write a short letter to the judge in close cases, when I think the judge is on the fence.

When do you submit a post-hearing brief?

Social Security Disability Benefits Getting Harder to Obtain

It's getting harder to get an application for disability benefits approved at the hearing level. I do not like having to say that, but I fear it is true.  The early FY 2012 stats already show a decline for several ALJs at my local hearing offices. I expect in a few months, when we see updated nationwide ALJ allowance/denial statistics, the stats will confirm an overall reduction in the percentage of claims allowed at the hearing level.

As a Social Security disability lawyer and a legal blogger, I talk with many people involved in the disability hearing process. Other disability practitioners confirm my own experience: ALJs are pulling back a bit. They are being pressured in the current political environment to allow fewer disability claims.

It is hard to quantify the pull back, based upon anecdotal evidence. I estimate it is something like 10% of claims. Judges who had grant rates of 80% are becoming 70% judges. Judges who were at 70% are at 60%. That may not seems like very much, but if you are one of that 10%, it means the difference between receiving disability benefits or not receiving them. And for disability lawyers, a 10% downward swing makes a huge difference in the bottom line.

Furthermore, the low-granting ALJs are, if anything, emboldened by the current environment. The Appeals Council and U.S. district court review are more important than ever.

Poorly documented claims fare the worst. It is easy to turn down a claim where the disability claimant has not had recent medical treatment, and there is no opinion from a doctor regarding functional limitations. While that may sound reasonable, remember that many people lose medical coverage when they are unable to work, and cannot afford to pay for ongoing medical treatment. You can't close the door to disability benefits for these people.

This challenging environment is likely to continue through 2012, at least. A disability applicant needs every advantage in the current environment. You have to make sure that your claim is one of the 60% that are granted at the ALJ level (according to nationwide statistics) rather than the 40% that are not. It is more important than ever to have legal representation for your disability claim. 

ALJ Unknown

Beginning last week, Social Security's hearing offices do not disclose in advance of a disability hearing the identity of the particular administrative law judge (ALJ) that is assigned to a claim. So your hearing notice will arrive in the mail without stating the name of the judge that will hear the case and decide the claim. When you arrive at the hearing, you see who the judge will be.

This is a new policy, which just became effective December 19th. So hearing notices without judges' names are just beginning to arrive. 

The policy was a response, it seems, to representatives declining out-of-area video hearings when the assigned judge was a low-granting ALJ. Currently, a video hearing may be declined by a claimant or claimant's representative (see this post on video hearings). The only advantage of a video hearing is that your claim may be heard a little sooner. Why have a quicker hearing if you have a judge who grants half as many claims as the other judges in the hearing office? The SSA has responded to this practice by withholding the name of the Administrative law judge assigned to the claim.

The new policy is unfortunate. It is reassuring to know who your judge is for a hearing. Even if it is a judge who is difficult or has a low approval rate, at least you know. Clients are understandably very concerned about their hearings, and are often reassured by knowing a little about the judge assigned to decide their claim.

I can adjust my presentation at the hearing to the judge assigned to the case, because I know my local judges. So it is not the end of the world that you do not know the identity of the judge ahead of time (that is an advantage, by the way, of hiring an experienced Social Security disability attorney in your state, as opposed to a "national" advocacy firm). But different judges do conduct hearings in different ways, and it will no longer be possible to prepare the client for the particular judge conducting the hearing.

What is lost from my perspective is efficiency. It is much more efficient to prepare a case for hearing when you know the judge. When you are preparing for ALJ Unkown, you must prepare all aspects of the claim to a level of detail that would satisfy the most difficult judge in the hearing office on that particular issue. Of course, every claim should be prepared thoroughly, regardless of the judge assigned to it. 

My expectation is that this new policy will result in fewer video hearings with out-of-area judges, which is exactly the opposite of what the SSA is seeking to accomplish with the rule change.

The Second Time Around

When a Social Security administrative law judge issues an unfavorable decision, and that decision is later vacated upon appeal to the Appeals Council or to federal court, the SSA has a policy of sending the claim back the very same ALJ that denied the claim the first time around. Strange, but true. A HALLEX provision sets the policy. See HALLEX I-2-1-5 section D.11. After two hearings with the same judge, if the claim is remanded to the hearing level again, it is assigned to a different ALJ.

Some judges, the second time around, see the error in the earlier decision, and issue a favorable decision after a fairly brief hearing. But many judges have already made up their minds, and the purpose of the second hearing is to strengthen the reasons supporting a denial of benefits.

These second hearings can be gems. Typically, the ALJ is instructed by the Appeals Council to obtain expert testimony upon remand, so it is not unusual to have a doctor, a psychologist, and a vocational expert for a second hearing, where none of those characters were present at the first hearing.

I have one of these hearings coming up. While the hope for every Social Security hearing is to persuade the judge that your client is entitled to benefits, in this situation the principal task often becomes to make a record supporting the next appeal. I will keep in mind the top reasons for Appeals Council remands as I prepare the claim for the second hearing.

I have suggested that Social Security change the policy of assigning the same ALJ to "second time around" claims. See A Modest Proposal. But until the policy changes, these second hearings will continue to be challenging.

Ten Steps for your Social Security Disability Hearing

It has been a little over four months since I published my ebook, entitled 10 Steps to Prepare for Your Social Security Disability Hearing. Those who are waiting for their Social Security disability hearings will find helpful information in the book, and can learn how to make their claims stronger.

Although I wrote the book for my clients, it is available on my law firm website to anyone as a free PDF download. The book has now been downloaded thousands of times.

There is no form to fill out; no name or email address is required to download the book. This link will take you to the page on my law firm website to download 10 Steps to Prepare for Your Social Security Disability Hearing. 

Here are the ten steps:

1. Appeal within 60 days
2. Prepare for the wait for a hearing
3. Determine why your claim was denied
4. Learn how Social Security evaluates disability claims
5. Think about your functional limitations in a specific way
6. Know your work history for the past 15 years
7. Continue with your regular medical treatment
8. Obtain a medical source statement
9. Consider a statement from a spouse, parent, sibling or friend
10. Get legal help

Again, you can download 10 Steps to Prepare for Your Social Security Disability Hearing for free, without providing any information about yourself to me. I hope the book empowers you to make your claim stronger for your hearing. 

Medical Expert Testimony by Telephone at an ALJ Hearing

There is a truly excellent decision by Connecticut U.S. District Court Judge Mark Kravitz on the topic of medical expert testimony by telephone at a Social Security disability hearing. The case is Edwards v. Astrue (D. Conn. August 10, 2011). Download Edwards v. Astrue. 

Kudos to New York attorney Jeff Delott, who wrote about the Edwards decision recently on his legal blog, after learning about it at the Second Circuit meeting at the Fall NOSSCR Conference. Please read Jeff's post about the Edwards decision.

The Edwards decision concerns telephone testimony by a medical expert witness. Sometimes an administrative law judge arranges for a medical expert (ME) to testify at a disability hearing. A medical expert is always a doctor, when the issue is the claimant's physical impairments. The ME is usually psychologist when an opinion regarding the claimant's mental impairments is desired (occasionally, both a doctor and a psychologist will appear at a hearing). A medical expert is available to assist the judge to determine a claimant's medically determinable impairments, and whether or not a medical condition meets or equals a listed impairment. Frequently the ME will offer an opinion on the claimant's functional limitations. 

Certain judges use medical experts more often than others. We disability lawyers know which judges typically utilize medical experts, and we know the medical experts who routinely testify in our locale. 

Sometimes the medical expert is not going to be friendly to the claimant's cause. There are some bad apples out there in medical expert land, who are known to consistently (and often forcefully) testify that a claimant's impairments do not meet a listing and do not impose disabling functional limitations. When the judge lines up a "bad apple" expert to testify at your hearing, you know you have an uphill battle.

Since these bad apple medical experts tend to testify at hearings all over the country, they almost always testify at the hearing by telephone. Which brings us to Edwards v. Astrue, and Judge Kravitz's truly excellent decision. 

What to do with a Scary Administrative Law Judge?

I have a hearing coming up with a judge who, historically, grants just 33% of disability cases. For both the disability claimant and for the Social Security disability lawyer, that is scary.

In general, I do not worry about ALJ disposition rates these days. I am more concerned with the match between the claimant and the particular judge. 

But when you have an ALJ that is granting claims at half the rate of the other judges in the same hearing office, you have to take note. I use a two-pronged approach for such cases.

First, you want to persuade the judge that this claim is one of the 33% that should be granted. That means making the claim as strong as possible prior to the hearing. You want a compelling personal story, backed up by medical evidence, including a medical source statement from a treating source. A statement from a spouse is a plus. A hearing brief also helps. Of course, you want to persuade the judge that the claimant is disabled in every case. But with a scary judge, you must leave no stone unturned.

Second, be prepared to appeal an unfavorable decison. Ensure the claim is an appropriate candidate for Appeals Council review. Of course, the merits of your appeal will depend greatly upon the details of ALJ's written decision. Carefully review the decision for the top issues that lead to Appeals Council remands. But the stronger the evidence supporting disability, the more likely you are to find good issues for Appeals Council review.

Be Specific at Your ALJ Hearing

I counsel clients with a Social Security disability claim to be specific about their functional limitations. This is especially true at a Social Security disability hearing, where the administrative law judge is trying to assess your functional limitations to establish your residual functional capacity (RFC). It does not help the judge to say "I can't walk very far" or "I can't lift very much." But saying "after standing for 20 minutes my back pain forces me to sit or lay down for at least 10 minutes" is more specific and much more helpful.

Try not to generalize about your abilities. When considering your physical ability to work, Social Security considers very basic tasks, such as lifting, carrying, sitting, standing, walking, stooping, climbing, and the like. All jobs required a certain amount of lifting and carrying, sitting, standing and walking. So be specific about your limitations. 

Specific examples help to convey useful information to the judge about your abilities. Real examples from your daily life about the difficulties you experience can be compelling testimony. When these details are given at a hearing in a genuine way, they are highly believable, and tend to reinforce the credibility of the disability claimant. 

In summary, specific evidence and real-life examples help the judge determine your remaining abilities, and also help the judge assess your credibility in a favorable way.

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

75 Days

Here in the Boston Region, we receive 75-day notice before a Social Security disability hearing by an administrative law judge.

Once a request for hearing is processed, the claimant receives a routine form letter from the hearing office that sets the stage for an eventual hearing. The letter starts like this:

Thank you for your request for a hearing before an administrative law judge (ALJ). This letter explains the hearing process and things that you should do now to get ready for your hearing. We will mail a Notice of Hearing to you at least 75 days before the date of your hearing to tell you its time and place.

We have found that this language is sometimes misconstrued by claimants, who read it quickly and think that their hearing will be held in about 75 days, rather than that they will receive 75-day notice of the hearing when the time comes.

So let's be clear, after a Social Security ODAR receives your hearing request, your ALJ hearing will take much longer than 75 days to schedule. How much longer depends upon where you live, and the current processing time of your hearing office. But you should plan on about a year to elapse from the time a hearing is requested to your actual hearing date.

In the meantime, of course, there are steps you can take to make your claim stronger.

The Way it Should Be

I was scheduled this morning to be at a Social Security administrative hearing. But the administrative law judge, after reviewing the claim prior to the hearing (including the treatment summary and medical source statement from the treating psychiatrist), granted the claim on the record. As a result, the hearing was cancelled, and a fully favorable decision will arrive in the mail.

The client is immensely relieved and grateful. Every claimant has some anxiety and stress about the administrative law judge hearing. For claimants who are already suffering from anxiety and stress issues, the pre-hearing apprehension can be overwhelming. 

I understand that some judges want to conduct a hearing once one is scheduled, and want the opportunity to see and hear the claimant. But I appreciate those judges who, after reviewing the record, realize that the claim will be certainly granted, and make an on the record decision. It is a generous act to spare a disability claimant the anxiety and stress that accompany a hearing. 

Be the ALJ

Imagine you are a Social Security administrative law judge (ALJ), and that you are preparing for a hearing to decide whether or not a claimant receives disability benefits. What information is available to you to review prior to the hearing?

Put yourself in the position of the ALJ looking at the file for the first time. Does it look like one of those claims likely to be granted? Remember, the judge has not had any interaction with the client, the way that the lawyer (hopefully) has. So all the judge has available is what is in the disability claim file.

The lawyer should provide the SSA with the claimant's complete medical records, and a medical source statement from any treating source that will provide one. And that is a good start. But it can be difficult to evaluate claims based solely on the information from the medical records and the standard forms in the disability claim file. The claimant's story is not always apparent from the claim file information.

If you were the judge, do you think that a hearing brief would be helpful at the time of the first review of the claim file, giving the claimant's perspective of the case, and telling the claimant's story? Do you think that a "lay" statement from a family member or friend, describing how life has changed since the disability began, would be helpful?

Put yourself in the shoes (or the robe) of the ALJ, and provide the information that will distinguish the claimant as a person with a compelling story, deserving of benefits, and disabled under Social Security's rules. And have the information in the record well ahead of the hearing, so it is there when the judge first reviews the claim.

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

Average Processing Time - Portland Maine ODAR

The latest statistics for processing times for Social Security hearing offices around the country have been released by the SSA, and reprinted in the July 2011 NOSSCR Social Security Forum newsletter.

In Maine, the average wait for a hearing decision is now 365 days - exactly one year. Processing time runs from the date of the hearing request to the day a decision is issued. The 365 days is an average. Some disability claims are resolved more quickly, but a disability or SSI claim that requires a hearing and a written decision may take longer.

The bottleneck with claims seems to be staffing and budget concerns. I am seeing this in other ODARs as well. There seem to be enough judges to handle the claim volume, but many hours of staff time are required to get a claim ready for hearing, and staff hours are definitely down. The Portland, Maine hearing office has farmed out a small number of claims to other hearing offices to help manage its backlog. 

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

Administrative Law Judge Disability Decisionmaking

A 28-page working paper entitled What Should We Do About Administrative Law Judge Disability Decisionmaking? was recently published by Richard J. Pierce, Jr., who is currently a GWU law school professor. 

Pretty much all you need to know about the author's perspective on the issue of ALJ disability decisionmaking is contained in the first sentence and last sentence of the paper.

First sentence: The 1400 Administrative Law Judges (ALJs) who work for the Social Security Administration (SSA) are making a significant contribution to the economic problems the US is now experiencing.

Last sentence: My preferred solution would be to abolish the ALJ-administered part of the disability decisionmaking process and to use at least part of the resulting savings to implement a system of reviewing past decisions to grant disability benefits to determine whether each beneficiary actually suffers from a permanent disability so serious that he can not perform the functions needed to hold any job in the US economy.

That's nice. So, not only should we abolish those pesky ALJs who are granting disability claims, but let's use those savings to review the decisions of those disability claimants who have already been granted benefits. 

A working paper is not a law review article. It is an essay, a work in progress. So maybe we should not judge it too harshly. But this essay is just so slanted, it is surprising that is being described as "legal studies." It reads like a policy paper from the Heritage Foundation.

The paper discusses four areas that demonstrate the problems with ALJ decisions. Let's take a look at each. 

Ten Steps to Prepare for Your Hearing

I have written an ebook, entitled 10 Steps to Prepare for Your Social Security Disability Hearing.

I have been sharing this book with my clients, and have now added it to my law firm website. It is available to anyone as a free PDF download. There is no form to fill out; no name or email address is required to download the book. This link will take you to the page on my website to download 10 Steps to Prepare for Your Social Security Disability Hearing. 

My hope is that those who are waiting for their Social Security disability hearings will find helpful information in the book, and that they will learn how to make their claims stronger.

Here are the ten steps:

1. Appeal within 60 days
2. Prepare for the wait for a hearing
3. Determine why your claim was denied
4. Learn how Social Security evaluates disability claims
5. Think about your functional limitations in a specific way
6. Know your work history for the past 15 years
7. Continue with your regular medical treatment
8. Obtain a medical source statement
9. Consider a statement from a spouse, parent, sibling or friend
10. Get legal help

Again, you can download 10 Steps to Prepare for Your Social Security Disability Hearing for free, without providing any information about yourself. I hope the book fulfills its purpose, and you are empowered to make your claim stronger for your hearing. 

Traits versus Transferable Skills

There is an excellent discussion of job traits versus transferable skills in Kramer v. Astrue, No. 1:10-cv-207-JAW (D. Me. March 25, 2011).

Here is the relevant excerpt (I have removed citations to the administrative record):

The administrative law judge found that the plaintiff’s past jobs as a firefighter and an emergency services dispatcher required the following skills: “[p]erform a variety of duties, deal with people, perform effectively under stress, and make judgments and decisions.” These were identified by the vocational expert in his testimony as the transferable skills he would consider in responding to the administrative law judge’s hypothetical questions. The plaintiff contends that these are not job skills in the world of Social Security, but rather traits, the existence of which has no effect  on the question of whether an applicant has transferable work skills.

In order to find that a claimant who cannot return to his past relevant work can perform other work of a skilled or, as in this case, semi-skilled nature, an administrative law judge must find that the claimant has skills developed in his past work that can be transferred to the specific other work identified as available for him.  20 C.F.R. § 404.1568(d); Social Security Ruling 83-10, reprinted in  West’s Social Security Reporting Service  Rulings 1983-1991, at 26;  see also Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998).  In the instant case, the vocational expert so testified, and the administrative law judge relied on his testimony.  The plaintiff’s challenge here, then, is not to the administrative law judge’s  findings, but rather to the vocational expert’s testimony.  

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The listed “skills” are: performing a variety of duties, dealing with people, performing effectively under stress, and making judgments and decisions. As the court noted in Ellington v. Secretary of Health & Human Servs., 738 F.2d 159, 161 (6th Cir. 1984), skills identified as “independence of judgment” and “responsibility for work product” “are too vague to constitute particular skills which are transferable.”   Such “skills” are not distinguishable “from those of a lawyer, a secretary or a nuclear physicist.”  Id.  In Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002), the court, holding that “there is an inherent difference between aptitudes and skills” in Social Security parlance, id. at 474, found that the following abilities were not transferable skills:  to learn and apply rules and procedures, to use reason and judgment in dealing with all kinds of people, to think clearly and react quickly in an emergency, to keep physically fit, to make conclusions based on facts and one’s personal judgment, and to change easily and frequently from one activity to another.  Id. at 476-77.  Remand was ordered in both of these cases. 

For the case at hand, the identified “skills” do not differ significantly from those rejected in Ellington and Draegert, and I, therefore, reject them as a basis for the vocational expert’s identification of three semi-skilled jobs that the plaintiff could perform, given the RFC assigned by the administrative law judge. 

Judge Rich made the correct analysis. Bear this case in mind next time a vocational expert takes a liberty with the applicant's transferable skills. Don't let the VE testify about traits instead of transferable skills. Object to that testimony, and say that those traits are not "transferable skills," as that terms is defined by the Social Security Administration.