Maine Social Security Disability Lawyer

Ruling 11-1p Particularly Unfair to SSI Claimants

New Social Security Ruling 11-1p requires a claimant to choose between appealing an unfavorable ALJ decision and reapplying for benefits. In the words of the ruling:

we will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.

Claimants must now make a pragmatic choice between an Appeals Coucnil request for review, which is likely to take a year or more and may be unsuccessful, and reapplying for benefits with a new onset date. This forced choice is particularly hard on SSI claimants who receive an unfavorable decision from administrative law judge.

SSI claimants leave benefits on the table by not immediately reapplying for benefits. In contrast, a disability claimant can pursue an appeal and wait a full 17 months (the 5-month waiting period plus the 12 months of benefits available prior to the new filing date) to reapply without foregoing any benefits.

 

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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.

Top Reasons for Appeals Council Remands

The Social Security Appeals Council tracked the reasons for the remands from the 102,062 claims it reviewed in FY 2010, and compiled a list of top reasons for remands. The summary was published in the July Social Security Forum, a newsletter for NOSSCR members. Download Top Remand Reasons (link opens a 1-page pdf file).

The Appeals Council continues to remand about 22% of its cases. When you consider how many perfunctory AC requests for review are made, that strikes me a significant percentage. But you can increase your odds of a remand by focusing on high percentage reasons. We will take a look at the top 5 reasons here.

1. The top reason for remand, constituting almost 42% of all remands, was evaluation of the medical evidence or RFC assessment. This includes weighing opinion evidence and assessing RFC. This makes sense, since weighing the medical evidence and RFC assessment are at the heart of almost all Social Security disability cases.
2. The second place reason, constituting almost 15% of remands, was error in the step 2 analysis of severe/nonsevere impairments. 
3. Procedural errors/improper dismissal is the number 3 reason, with almost 14% of remands. I think these errors are clear-cut, and are easy for the AC to analyze.
4. Step 5 - grid and vocational testimony issues constitute the number 4 reason, with about 10% of remands.
5. Lastly, credibility determinations provided the number 5 reason, with almost 8% of remands. Frankly, I am surprised that this one is so high, because it this argument never seems to prevail in federal court.

So there you go. Depending upon the facts of your particular case, be sure to highlight the errors that are most likely, statistically speaking, to result in an Appeals Council remand.

Social Security Ruling 11-1p

Social Security Ruling 11-1p, entitled "Titles II and XVI:  Procedures for Handling Requests to File Subsequent Applications for Disability Benefits" was published today in the Federal Register.

The Ruling prohibits a new application for benefits while a prior claim of the same title and benefit type is at the Appeals Council. This is a change in policy, and it forces disability claimants to make a choice between pursuing an appeal or filing a new application.

Social Security Rulings are binding on all components of the SSA. See 20 CFR 402.35(b)(1).

 

Eliminating the Decision Review Board

The SSA has published a final rule eliminating Decision Review Board.

For those of us in Region I (a.k.a. "the Boston Region"), that means that after June 13, 2011 the Appeals Council will once again be our forum for appeals of administrative law judge decisions.

I, for one, welcome the change.

The Decision Review Board

In Region 1, which comprises the New England States, we have the Decision Review Board (DRB) as a legacy of the DSI process. Most claims that are denied at the ALJ level are selected by the DRB for review. So instead of an Appeals Council appeal, we have the Decision Review Board. The DRB review takes 90 days. When the DRB selects the case for review, it is automatic. You don't have to do anything. In my recent experience almost all unfavorable decisions are selected for review. 

You have the option of submitting a written statement to the DRB within 10 days explaining why you disagree with the ALJ's decision. So you have to act pretty fast. Nevertheless, I almost always submit a detailed written statement. 

But here's the thing. The DRB process must be completed within 90 days. If 90 days go by, and the DRB doesn't get around to reviewing the claim, you get a letter saying sorry, we did not get around to reviewing the decision. As a result of that nonreview, the ALJ's decision becomes the final decision of the Social Security Administration.

So far, every claim I've had go to the DRB has resulted in a letter saying that the DRB did not conduct it's review within 90 days. Every one. It is very frustrating. Furthermore, you lose the option of going to the Appeals Council. The usual complaint about the Appeals Council, which is the next level of review after the ALJ for most of the country, is that the Appeals Council review takes a long time. I have had claims at the Appeals Council for well over a year. But at least they get around to conducting a review eventually, and almost a quarter of those claims are remanded or allowed.

When the DRB process is not completed within 90 days, it says to the claimant: "Your claim was not important enough for us to review." It is really a terrible message from a federal agency to a citizen requesting services.

I have a few decisions pending at the DRB that are particularly egregious ALJ decisions. The same person at SSA is in charge of the Appeals Council and the DRB. I have emailed her to ask (to beg, really) that the DRB review a each of these claims within the allotted 90 days. I have received no response.

A DRB 90-day non-review means that federal district court is now the de facto first level of appeal of the ALJ decision. The number of district court filings is increasing dramatically in New England, because obviously flawed decisions that would be routinely remanded by the Appeals Council are now being sent to the DRB and then not getting reviewed within 90 days. Making the U.S. District Court the the first level review of an ALJ's decision is a poor use of scarce federal judicial resources. Our district court judges and magistrates are going to see those 25% of cases that are usually sent back by the Appeals Council. 

While DSI process has been mostly abandoned, the DRB still lives on. One wonders whether the DRB has the resources it needs. Until it is dissolved, however, it is a cause for concern here in New England. 

The Appeals Council Delivers Again

I just received an Appeals Council decision vacating an unfavorable ALJ decision and remanding the claim for a new hearing. The Appeals Council did the right thing.

This was an unusual case, because there was a obvious error in the judge's unfavorable decision. The judge's decision reasoned that, since the claimant had no records of mental health treatment for the 14 months prior to the hearing, the claimant's statements about the severity of her mental impairments were not fully credible. That is a fairly common conclusion.

The problem with the judge's decision is that I had submitted the recent mental health records. Further, I submitted the medical records via Social Security's electronic records express, so I had proof of submission of the medical records. For whatever reason, the judged overlooked those records. The Appeals Council has now vacated the decision and remanded the claim for a new hearing.

The Appeals Council offers relief for a significant number of claims. The Appeals Council review process is particularly effective when you can point to clear-cut errors (as in this case). It also helps to write a very focused Appeals Council brief.

Appeals Council - practice note

If your disability claim is denied after a hearing with an administrative law judge, you have the right to request review of that denial by the Social Security Appeals Council. The appeal must be taken within 60 days of the date of the ALJ's unfavorable decision. You can read more about the Appeals Council review process here.

Writing an Appeals Council request for review is something of an art form. I think the "two minute rule" is the best way to approach your appeal. You should write your request for review so that the person reviewing the appeal can tell in two minutes that the judge made an error, and that the claim should be remanded for a new hearing.

To accomplish this, make pinpoint cites to the ALJ's decision - give the page, the paragraph and the line number for each alleged error in the decision. Also give a pinpoint cites to the exhibits - by exhibit number, page and paragraph - that demonstrate that the judge erred. And if you are citing to a digital recording of a hearing, you can cite to the hour, minute and second of the statement you want to reference. Accurate, pinpoint citations save a great deal of time for the person reviewing the appeal.

As always, keep your argument short and focused. My requests for review are rarely over three pages.

Appeals Council - local office

The Appeals Council is now connected to Social Security's electronic system. So now it is possible to check on the status of an Appeals Council request for review at the local Social Security office.

I checked on the cases I have at the Appeals Council from the Saco, Maine office this week. It took less than a minute. It is very efficient to check the status at the local office, which is oriented towards customer service.

An Appeals Council request for review may also be filed at the local office.

Digital Recording of the ALJ hearing

Today I have been working on an Appeals Council request for review. In addition to reading the unfavorable decision and reviewing the administrative record, I listened to the digital recording of the hearing conducted by an administrative law judge. The client was unrepresented at the hearing.

Listening to the digital recording was an interesting experience for two reasons:

First, it was fascinating to listen to how the disability hearing was conducted without a lawyer present for the client. The unusual thing about this particular hearing is that the claimant wanted to call a witness, and so informed the judge at the beginning of the hearing. However, the judge never provided the claimant with an opportunity to do so, even though the witness was waiting outside the hearing room. The judge segued from questioning the claimant to questioning the vocational expert, and then back to the claimant. Then the hearing was over before the claimant knew what had happened. The claimant never was told "Okay, call your witness now." As I said, unusual.

Second, the digital recording and playback technology used by Social Security is outstanding. You can request a copy of the hearing recording from your local Social Security office - it is part of a claimant's electronic file. It comes on a CD containing several audio files, each with exactly five minutes of the hearing audio. The CD is played on your computer using For The Record software, which can be downloaded free.

As you listen, the player displays the exact time from the hearing - hour, minute and second. So when I want to refer in the appeal to a statement during the hearing, I can reference the exact spot to the second on the recording. That is a great timesaver for the person at the Appeals Council reviewing the case.