Maine Social Security Disability Lawyer

2012 Initial and Reconsideration Allowance Rates by State

I am always intrigued by the differing DDS allowance rates among the several states. Take a look at the SSA's table showing 2012 allowance rates by nation, region and state (link opens 3-page PDF).

Is your state above or below the national average? And has the rate changed since last year? Check out the 2011 DDS allowance rates. 

Initial and Reconsideration Allowance Rates for 2011

Here is the latest compilation of DDS Initial and Reconsideration Allowance Rates by Nation, Region and State (link opens 3-page PDF chart). The data is from FY 2011, and was published in the July 2012 Social Security Forum, a newsletter for NOSSCR members.

I am always intrigued by varying allowance rates among regions of the country and the several states. The allowance rate for initial disability and SSI claims nationally is 33.5%. But look that the variation among states! What explains the difference in allowance rates, other than different attitudes and cultures among the various state DDS agencies?

Looking at the numbers in the northeast, where I practice, Maine allows 32% of initial claims and 14% of claims at Reconsideration. Massachusetts leads the region with almost 43% of initial claims allowed, and then allows another 23% of the claims that are appealed to the Reconsideration level. Again, why such a dramatic difference in allowance rates between these two states within the Boston region? 

New Hampshire is a "prototype" state, so initial claims that are denied and appealed by the claimant go directly to a hearing by an administrative law judge. There is no intermediate Reconsideration step in New Hampshire. New Hampshire's allowance rate for initial claims is 49%.

Initial claims for disability benefits approved

I have made a concerted effort over the past few months to become more involved with clients making an initial application for Social Security disability benefits. It can be very important to have the assistance of an attorney with the initial claim, particularly for claimants age 55 and over.

I was notified yesterday that two of my recent initial claims have been approved by Social Security. In one case, the client applied for disability benefits and hired me soon after. In the other case, I made an initial application for benefits with the client over the telephone. The telephone claim, where I was involved at the very beginning, took less than three months to be approved and has already been paid.

For the lawyer, working on an initial application for disability benefits means that the time required to get to know a client's case is spent at the very beginning of the claim. 

For the client, getting help during the application process means that common mistakes are avoided, all the necessary details are included, and the initial application is supported by a winning theory of the case.

For me personally, receiving these two approvals on the same day is a validation of my approach to initial disability claims, and demonstrates the value of having a lawyer involved at the application stage of the disability claim process. Both clients are immensely relieved to have the claim process over, and each is now receiving benefits rather than waiting for a Reconsideration determination and a hearing before an administrative law judge.

Both clients ended up paying a smaller attorney fee than if their claims had gone to a hearing. That does not bother me, because I can focus on the next important case. But the clients are pretty happy about it. Read more about attorney fees in Social Security cases.

Even for claim not approved right away, early assistance from a Social Security disability lawyer is helpful for the claim, because the issues are properly framed from the beginning. But with help during the application process, it is possible to receive disability benefits sooner (and to pay a smaller fee).

 

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Apply for disability benefits on the phone with a lawyer

If you are age 54 or older and have been out of work for 6 months or more due to a medical condition, please contact me to assist with an initial application for Social Security benefits.

Apply for Disability Benefits with a Lawyer on the Telephone

With many Social Security administrative law judges allowing fewer claims at the hearing level, the initial application for disability benefits deserves much more attention. The allowance rates from the state DDS agencies are just as high as the allowance rate of some ALJs. That means that your initial application is more important than ever. The opportunity to obtain disability benefits at the initial application should not be squandered.

I recently assisted a new client over the telephone with his initial application for Social Security disability benefits. It went very well. I asked questions, the client answered, and I typed the application right then as we spoke. As we were completing the application, I was able to counsel the client on what to expect from the disability claim process, the importance of fully describing past relevant work, and why the SSA was asking certain questions in the application.

I have done this before, of course, but this recent experience made me realize that I should do it more often, because it is a valuable service to a new client, and it starts the claim process on the right foot.

There are several benefits of working with an experienced Social Security disability attorney at the very beginning of your disability claim.

• The disability claim is supported by a winning theory of the case. 
• The issues in the claim are properly framed from the beginning. 
• Common mistakes, such as not properly describing past relevant work, are avoided. 
• You have a guide throughout the disability claim process.
• I make a plan for obtaining the medical evidence (particularly the medical opinion evidence) that you will need to support your claim.
• The claim may be decided more quickly, because your attorney will keep in touch with the SSA on the status of the claim, and supply any missing evidence. 
• If necessary, an appeal will be filed quickly.
• You pay no attorney fee unless the claim is successful. 

One of the benefits of having legal help with the application over the telephone is that you do not need to have a nearby lawyer who specializes in Social Security disability law. Because Social Security is a federal program, an attorney anywhere in the country can assist you with your claim. And the various states follow the same rules, embodied in Social Security's Program Operation Manual System (POMS), when making a benefits determination.

Legal assistance with the disability application is particularly important for those age 55 or older, because your vocational background plays a major role in the determination.

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Apply for disability benefits on the phone with a lawyer

If you have been out of work for 6 months or more due to a medical condition, please contact me to assist with an initial application for Social Security benefits.

Lost in Translation

The phrase "lost in translation" aptly describes what often happens with a Social Security disability claim at Disability Determination Services (the state agency that makes disability determinations at the initial application and reconsideration levels).

DDS obtains your medical records and usually has them reviewed by a DDS in-house doctor (for physical impairments) and/or a psychologist (for mental impairments). However, Social Security assesses your ability to work based upon functional limitations. When reviewing your medical records, often your true limitations are lost in translation.

For those applying for disability benefits, there is often surprise that their medical records did not establish their disability claim. Those who then look at their medical records are usually surprised again that the records do not set forth the limitations that they experience in their daily activities. Be sure to tell your doctor about your limitations, and make sure that your doctor writes it down in your progress notes.

To avoid the problem of your limitations being lost in translation, your doctor must speak the language that Social Security uses, which is the language of functional limitations. Obtain a medical source statement from your doctor, which will set forth your doctor's opinion of your specific functional limitations. Your functional limitations will be used by the person deciding your disability claim, so don't those limitations get lost in translation.  

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

It is Possible to Win at Reconsideration

The Reconsideration step of the Social Security disability claim process can be an unfriendly place.

On a national basis, 87% of claims are denied again at Reconsideration. That's 7 out of 8. I would say that my practice in Maine experiences a similar percentage of Reconsideration denials (In New Hampshire, however, disability claims go directly from an initial denial to the hearing level - there is no Reconsideration step in New Hampshire). It is frustrating to have so many claims denied again at Reconsideration. Nevertheless, being involved at this stage helps to frame the issues for the hearing, so it is almost always worthwhile.

However, 13% of claims are allowed upon Reconsideration, and it is nice when those allowances actually do happen.

When a claim is granted at Reconsideration, there is usually some new medical evidence. Sometimes when we look at the claim file after the initial denial, we find that some important medical records were never seen at the initial level before a medical decision was made. A Reconsideration allowance is often based upon a more complete picture of the applicant's functional limitations.

The 2010 Waterfall Chart

The Social Security Administration has released its "waterfall" chart for Fiscal Year 2010. These are very recent statistics.

At the Initial application level, on a nation-wise basis, 35% of disability claims were allowed, and 65% were denied. At the Reconsideration level, of the denied claims that were appealed, just 13% were allowed, and 87% were denied again.

Note how the allowance rate increases at the hearing level. 62% of the claims that are appealed to the hearing level were allowed. That is why it is so important to appeal your denial.

It is also worth noting, on the bottom row of the chart, that 51% of federal court appeals were remanded or allowed. That's a high number.

You can see the statistics for the previous year in the 2009 waterfall chart.

Maine DDS Claims Sent to Baltimore

When you file a Social Security disability claim, it goes to a state agency for a medical determination. The agency is called Disability Determination Services (DDS) in Maine, but some other states have slightly different names for their agencies. In Maine, the first appeal of a denied disability claim also goes to DDS for Reconsideration.

The backlogs at the Maine DDS have been growing, particularly for Reconsideration claims. Some claims that were appealed in September have not yet been assigned to a disability examiner.

The Maine DDS is now getting help with its backlog. Hundreds of disability claims have been transferred from the Augusta DDS to Social Security's Office of Medical and Vocational Expertise in Baltimore. That office, which has a substantial staff, will assign disability examiners and conduct medical-vocational reviews of the claims. This arrangement will continue until the Maine DDS gets caught up on its workload.

I have started getting mail from disability examiners at the Office of Medical and Vocational Expertise as they ramp up on the Maine claims.

The Single Decisionmaker RFC

Every now and then I see a New Hampshire disability claim where the only physical RFC in the record is from a single decisionmaker. That means the RFC assessment from DDS was not completed by a doctor. At the hearing level, a single decisionmaker RFC should be placed with the jurisdictional documents in the "A" exhibits in the disability claim file, rather than with the medical evidence in the "F" exhibits. A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level. 

This topic was the subject of a memorandum from Chief Administrative Law Judge Frank Cristaudo, dated May 19, 2010. The Memorandum was reprinted in the June 2010 Social Security Forum, a newsletter for NOSSCR members (Download ALJ Cristaudo Memo).

Typically, the DDS RFC can be a problematic piece of evidence at the hearing level. After all, the claim was denied initially based upon that RFC, and the judge may rely on it to support an unfavorable decision at the hearing level. But with a single decisionmaker RFC, the judge does not have that option. And since New Hampshire is a "prototype" state without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.

Be sure to check whether or not the DDS RFC is from a single decisionmaker. You do that by checking the signature on the RFC. If it is, alert the judge in your hearing brief.

Different results between DDS and the ALJs

In a recent blog post, attorney Charles Hall asked Why The Differences Between DDS And ALJs?  Mr. Hall's post discussed an Office of Inspector General report which addressed the issue of differing allowance rates among the ALJs and the various state DDS agencies. The OIG report is definitely worth a look (link opens a pdf).

Former disability examiner Tim Moore answers a similar question in this post: Does Social Security Deny Strong Disability Claims? Mr. Moore concludes that yes, Social Security denies strong claims, particularly at the DDS level. Mr. Moore states:

Disability examiners really do not give proper weight and consideration to the statements provided by a claimant's treating physician when such statements have been obtained or delivered. 

I agree, and have written before that the DDS agencies do not give proper weight to treating physician opinions (See DDS and Examining/Treating Physicians' Opinions). In my view, a principal reason why so many claims denied by DDS are granted at the hearing level is the failure of DDS to follow Social Security regulations and rulings, particularly the "treating physician rule" embodied in 20 CFR 404.1527 and Social Security Ruling 96-2p. I still do not understand it.

The lesson for claimants is keep your claim alive so that it gets to a hearing. If you have a Social Security disability or SSI claim, remember these three things:

• don't get discouraged if your claim is denied after your initial application or Reconsideration. Your claim may well be granted at the hearing level.
• Be sure to appeal your denial within 60 days. 
• If you haven't already, get some legal help for your claim. When the next step is a hearing by an Administrative Law Judge, you do not want to be unrepresented at the hearing.

Consultative Examinations

When you apply for Social Security disability benefits, the medical record is not always sufficient for a disability determination. A disability examiner (or an administrative law judge) may schedule a consultative exam (CE) with a physician or a psychologist to assist them in assessing your medical condition and functional limitations. 

The claimant should plan on attending this exam, but talk with your disability lawyer first. Because some doctors that perform CEs are better than others, and your own doctor is the best of all.

We have one local doctor, an orthopedist, who does a thorough CE and always includes a medical source statement. His report is almost always helpful to the claimant's case. However, sometimes DDS assigns the CE to a different local doctor. The second doctor - and I am not making this up - is a proctologist, which may not be what you want (at least metaphorically) for your disability consultative exam. His examination and reports tend to be more perfunctory, and rarely help the claimant in my experience. 

I intervened recently in one of these. I cancelled the CE scheduled by Social Security, because the claimant was able to schedule an examination with her primary care physician. Her doctor completed a medical source statement that should be very helpful to the claim.  

A CE conducted by the claimant's treating doctor is preferred under Social Security's rules. See POMS DI 22510.010 section B. However, it is often difficult to get the claimant's doctor to do the CE. Social Security does not pay much for the exam, so most doctors decline the opportunity.

Read the posts below for differing perspectives on consultative exams:

• What to Expect at a Social Security Disability Medical Exam by Tim Moore
• Anxiety and Panic before a Social Security Disability Medical Exam by Tim Moore
• Social Security Consultative Examinations by Tomasz Stasiuk
• Secrets of the Social Security Consultative Examination by Tomasz Stasiuk
• The Consultative Exam (CE): Part 1 by Jonathan Ginsberg
• The Consultative Exam (CE): Part 2 by Jonathan Ginsberg
• The Consultative Exam (CE): Part 3 by Jonathan Ginsberg
• Consultative Examinations and Social Security Disability Benefits by Scott Lewis
• Consultative Examinations by Jeffrey Delott
• PLEASE don’t act a fool at a Social Security Consultative Evaluation by Anthony Reeves
• Psychologist Exam for Social Security Disability by Tim Moore

Reconsideration Will Return

Reconsideration is an intermediate step in the Social Security disability claim process. If DDS denies your initial claim and you appeal, the claim goes back to a different claim examiner at DDS for Reconsideration. In 5 out of 6 claims, the new examiner denies the claim again. For most claimants, Reconsideration is an unnecessary detour on the way to a hearing by an administrative law judge.

There are ten "prototype" states, however, that skip the Reconsideration step. In those states, the appeal of a denied claim proceeds directly to a hearing with an Administration Law Judge. The 10 prototype states are: Alabama, Alaska, California (Los Angeles North and West areas), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York (Brooklyn and Albany areas), and Pennsylvania. Social Security has been evaluating this streamlined disability process in these states since 1999.

The SSA is planning to reinstate the Reconsideration step in the prototype states, starting with the state of Michigan, and then Colorado. Commissioner Astrue testified before Congress on April 27th on this issue.

I handle Social Security disability cases in both Maine and New Hampshire. Maine has Reconsideration, and New Hampshire does not. So I see claims routed to a hearing both with and without the Reconsideration step. Personally, I do not think that Reconsideration adds much to the process, and it is the source of significant delays here in Maine.

Of course, about 15% of claims are allowed at Reconsideration, so the number of claims appealed to the hearing level is reduced by the Reconsideration step. But that reduction comes at the expense of an additional 4-6 month wait for the 85% of claimants whose claims are denied again at Reconsideration.

So while reinstating Reconsideration would help to reduce the backlog at the Social Security hearing offices in prototype states, it mostly just shifts the backlog from the hearing offices to the DDS state agencies. From the claimant's perspective, there is no difference. 

The SSA wants to have the same Disability Case Processing System for all the DDS agencies. Currently, each state DDS has its own unique computer software, and that has got to be a nightmare for Social Security.  Having one software system shared by all the DDS agencies pretty much requires that all the states have the same claim process, which means all the states must have the Reconsideration step. That, rather than backlog reduction, is the real reason for the switch back to Reconsideration for the prototype states.

Another Reason to Appeal Your Denial

In a recent blog article entitled Another Reason You May Be Denied Your Social Security Disability Benefits, Indiana Social Security disability attorney Tom Ebbinghouse makes an excellent point regarding denials of Social Security disability claims by the various DDS agencies determining Social Security disability and SSI claims. [These agencies are known by slightly different names in certain states; they are called Disability Determination Services (DDS) in Maine and New Hampshire, but called the Disability Determination Bureau (DDB) in Indiana.] 

First, Tom quotes from the Winter newsletter of NADE (the National Association of Disability Examiners):

It takes an average of two years for a newly hired disability examiner to become fully trained and proficient to the point they can function independently and contribute to the process of making timely and accurate disability decisions. ... Low salaries, hiring restrictions and the stress of the job have contributed to high attrition (12.3%) in the DDSs.

Tom then concludes:

Constantly having to replace 12.3% of the workforce and it taking two years before they can function independently, plus the stress of the job to get the work out fast, combined with low pay, may be a reason that DDB makes the wrong decision so many times.

The important point for you is that you should not be discouraged when your claim is turned down at the initial or reconsideration stages. [bold emphasis added]

I completely agree. 

Do not be discouraged by the initial or reconsideration denial of your disability claim. A denial by DDS does not mean that your claim does not have merit. 

Make sure that you appeal that denial within 60 days. And, while you're at it, please get some help with your claim, which may improve your chances of ultimately receiving disability benefits.

DDS and Examining/Treating Physicians' Opinions

I just received an on the record decision from the Portland Hearing Office for one of my clients. An "on the record" decision is a fully favorable decision granting the claim on the record without a hearing.

What is notable about this particular decision is that it was made on the exact same record evaluated by DDS when it denied the claim at Reconsideration. No new evidence had been filed at the hearing level. So a judge reviews the case and sees it as a clear winner, yet DDS denied the claim. What gives?

My view is that DDS does not give the requisite weight to examining and treating doctors' opinions. In this claim, both the consultative exam report and the treating physician assessed limitations that precluded work. While these opinions are not totally ignored by DDS, they are not given the weight to which they are entitled under Social Security's regulations and rulings. See 20 C.F.R. 404.1527 and Social Security Ruling 96-2p. 

I am not alone in this view. A recent post by Tim Moore, a former disability examiner, states that Social Security rulings are simply not considered by DDS examiners.

The opinions of examining doctors and treating doctors receive much more deference at the hearing level, in my opinion. This is one of the reasons why getting to the hearing level is so important, and why you must appeal the denial of your claim at the initial or reconsideration level.

New Year's Resolution: Appeal Your Denied Claim

If you have a disability claim pending with the Social Security Administration, please make the following New Year's resolution: 

    I will appeal my claim immediately if it is denied.

Although you have 60 days to appeal a denied claim, there is no reason to wait. I speak with people almost every week who did not appeal their denied claims within 60 days, and then had to start over by reapplying for Social Security disability benefits.

If you receive a denial letter in the mail, it is a good time to talk with a disability lawyer about your options. But please be sure to appeal that denial right away. 

Is the DDS system broken?

Social Security has an odd, two-tiered system for disability claims. The initial and reconsideration claims are decided by Disability Determination Services (DDS), a state agency. For denied claims that are appealed to the hearing level (and you should always appeal your denial), the claim goes to a Social Security hearing office, which is actually operated by the the SSA. At the hearing level, your claim is evaluated by staff attorneys and ultimately decided by a U.S. Administrative Law Judge. 

Nationally, the majority of claims that reach the hearing level are granted. This raises the obvious question: Why were they denied by DDS in the first place?

Sometimes there is new evidence by the time a claim gets a hearing. But often, there was no logical reason for the initial DDS denial. 

Tim Moore, a former disability examiner, wrote about this disconnect between the state DDS agencies and the federal Social Security hearing offices recently on his blog. Here is an excerpt:

if a claim that was denied twice by a disability examiner (initial claim and reconsideration levels) is later approved by a judge, what was the point? 

More specifically, what was the point of so needlessly wasting so much agency time and money, otherwise known as taxpayer dollars, in this fashion. 

And, further, what was the point of forcing so many tens of thousands of individuals who were initially denied but were likely to get approved later at a hearing into a needlessly drawn out wait often resulting in bankruptcy and home foreclosure?

Answer: there was no point.

Read his entire post, entitled Social Security Disability Problems.

It is frustrating to have disability claims that you know will be granted at the hearing level denied by DDS. And it is difficult to reassure clients that these DDS denials can be turned around. It is unfortunate that we are asking the question: Is the DDS system broken?