Maine Social Security Disability Lawyer

Kaizen and Social Security Disability Law Practice

Kaizen is the Japanese philosophy of continuous improvement, usually in the areas of manufacturing, engineering, and business management. It involves taking frequent small steps to improve your process. After months or a year of making small improvements, you are way ahead of the place where you started.

I have adopted this approach to my law practice, and have made lots of changes over the past year or so. Often one improvement becomes possible only after a previous change. The result is that, over time, my practice has been transformed.

When I started my practice, the primary focus was on the administrative law judge hearing. Medical records are updated just ahead of the hearing, and a medical source statement was sought from treating medical providers. In more recent years, a hearing memorandum was written for the judge.

This worked fine, but had a few problems. The process was back-loaded, and most of the work was being done towards the end, in preparation for a hearing. We were getting excellent results, but we were constantly running around at the last minute getting claims ready for hearing. I started making changes to better our process and to improve the client experience.

Today we get involved much, much earlier in the claim. We keep in touch with our clients, at least monthly, starting at the beginning of our representation. We update our clients on the status of their claims, and we inquire about their upcoming medical appointments. As soon as we can, we obtain a medical source statement from treating doctors and counselors. We have claims that are nowhere near hearing that have two or more medical source statements in the record.

As a result, claims are much more developed as they approach a hearing. We are now frequently in a position where we can make an on the record request before a claim is scheduled for hearing. Even if that request is denied, the work required to prepare for a hearing has largely been completed. The practice is much more proactive, and is more enjoyable for the laywers, the staff, and the clients. 

Our clients are much more involved with the process of preparing their claim for hearing, which helps to create a better client experience within a difficult Social Security disability claim process. Our results are even better, and we are writing more on the record requests than before. 

This transformation resulted from a series of small changes. Take a look at your practice. Make a small improvement (no improvement is too small). Next week, make another. Repeat. You will be amazed at the difference 6-12 months down the road.

Two Months With Very Few Hearings - Revisited

I had a stretch of time this summer where our little Social Security disability law firm had very few hearings scheduled, due to slowdowns at the Portland, Maine and Manchester, New Hampshire hearing offices. I devised a four-point strategy to use the extra time of our two lawyers, our paralegal, and our legal assistant. 

Now that Labor Day is around the corner, we are back to a more normal hearing schedule. I thought it was worth taking a look at how the strategy worked out. Each of the four points is discussed below:

1. Get a head start on the claims that will be scheduled in the Fall

We are in great shape for our September and October hearings. But as it turned out, it was not much of head start on what we would have done anyway. We were prepared a little earlier than usual. So no big deal on this item.

2. Write "on the record" requests for every appropriate claim

We filed several on the record requests, but only a few of them were granted. I don't know why more of the OTR requests were not granted, but the claims that were not approved are basically now all set for hearing.  We will continue to focus on these OTR requests, because they are a very efficient use of our time. I feel pretty good about this item.

3. Redouble our efforts to communicate frequently with our clients

We talked with our clients, updated them on status (and received updates from them), and put a medical source statement form in the hand of everybody with an upcoming doctor's visit. We also captured as many client email addresses as possible, so that we can stay in touch that way as well. This was time very well spent, and is an ongoing effort. As a result of our efforts, we are making progress earlier in the case, and even more claims are ready for an OTR request.

4. Focus on outreach

Our excellent ebook, 10 steps to prepare for your Social Security disability hearing, was released in July, and has been downloaded hundreds of times since then. Regular visitors may have noticed some minor changes to the look of this blog, and there is a new New Hampshire Social Security Lawyer website. Our outreach efforts continue apace. 

Summary

Overall, it wasn't as big of an activity gap as I feared back in June. We stayed busy, enjoyed our Summer, and made good progress in the four areas described above.

When there is more than one appointed representative

NOSSCR (the National Organization of Social Security Claimants' Representatives) sent out a good reminder to its members recently by email: SSA will divide the authorized fee among all appointed representatives in the same firm.

Here is an excerpt of that reminder:

When a claimant appoints more than one concurrent representative in the same firm and the fee agreement is approved, SSA's stated policy has long been to divide the authorized fee by the number of appointed representatives and to send a check of equal amount to each appointed representative who has not waived a fee, regardless of who has worked on the case. If one representative waives the fee, that portion of the fee will be sent to the claimant. See POMS GN 03940.009 and GN 03920.017. In the past, SSA rarely followed this procedure. For reasons unknown to us, SSA is now regularly following this rule. 

If all appointed representatives are members of the same firm, and all sign the same fee agreement, the fee agreement will be approved. See HALLEX I-1-2-12. None of the representatives have to withdraw and no one should waive the fee, or their fractional share will be released to the claimant. 

Because each portion of the fee is payable to the individual representative, be sure that each representative has submitted a 1699 form, and that the firm has submitted the 1694 form, and that a 1695 and 1696 form is submitted for each claim.

I have also noticed this change. When my colleague, Collette Cushing, attends a disability hearing, the fee is now divided between us, and we receive two checks. It was not that way until a few months ago.

Two Months With Very Few Hearings

I am in a stretch of time where my local hearing offices (Portland, Maine and Manchester, New Hampshire) have scheduled only a very few hearings for my clients. Naturally, the summer season in Maine is a perfect time to have things slow down a little. Everyone can get caught up on vacation while the weather is beautiful. We also have a U.S District Court brief due soon. But this office has two lawyers, a paralegal and a legal assistant. What to do when the hearing schedule is slow?

Here is the strategy I have devised:

• We are getting a head start on the claims that we know will be scheduled in the Fall.
• We are writing on the record requests for every claim that we can identify as appropriate. Not only will these requests get some of these claims granted, but the claims that are not granted are basically all set for hearing.
• We are redoubling our efforts to communicate frequently with our clients. This is a process we already started, and we know that the earlier we delve deep into a claim, the better.
• I have taken the opportunity to focus on outreach. It is not happenstance that our ebook, 10 steps to prepare for your Social Security disability hearing, was released this week.

What else? What would you do? Please feel free to leave a comment.

*************************

Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

The Importance of Regular Updates

I recently read a blog post by North Carolina divorce lawyer Lee Rosen, entitled How a Two-Minute Call Changes Your Clients' Opinion of You. Mr. Rosen explains that in North Carolina, an absolute divorce or Qualified Domestic Relations Order requires substantial waiting period for the client, and during much of that time there is really nothing going on with the case. But some of his clients were miserable during that waiting period, because they did not know the status of their case and imagined the worst. So Mr. Rosen assigned a paralegal the task of calling every client each week regarding the status of the case. Often the call is simply "we are waiting for X." But that simple status phone call turned around his clients' attitudes.

I, of course, saw a parallel between that divorce client waiting for a final decree and a Social Security disability client waiting for a hearing. The disability Reconsideration process in Maine can take several months. The subsequent wait for a hearing can be 12 months or more. During most of this time, there is not much going on with a disability claim. So for several months, the client is simply waiting for a hearing. Not only that, but our clients are also unable to work due to disability, and often have stress over health and financial issues.

I realized after reading the post that I wanted to keep my clients better informed of the status of their claims during this period when they were waiting for a hearing. Even if there was nothing new to report, I wanted to give our clients more frequent updates regarding the status of their claims, and ensure each client knew exactly where they were in the disability claim process. So I hired a legal assistant, who among other tasks, contacts each client regularly to provide an update on the status of the claim, and to check in about the client's medical condition. Sometimes the client has a question for me; sometimes the status call is all that is needed. We also use this opportunity to ask if the client has any upcoming appointments with medical providers who could complete a medical source statement.

I wish I had done it earlier. Our clients appreciate the extra communication, and the practice runs more smoothly because we have very current updates on each and every client.

Snippets from U.S. District Court - Maine

I have been working on a federal court brief, which will be filed today. Here in Maine, we have local rule 16.3, which streamlines Social Security appeals. These cases are routed to the magistrate judge in Portland, Hon. John Rich III, who decides the appeal based upon an Itemized Statement of Errors filed by the Plaintiff and the oral argument of both parties. Well, technically the magistrate judge issues a recommended decision for the district court judge, but that recommended decision is routinely adopted by the distict court judge, so as a practical matter, the magistrate judge decides the appeal. 

All the decisions of Judge Rich are available on-line. It has been a while since I did a federal court appeal, so I reviewed his recent Social Security cases, to make sure I wasn't arguing an issue that had been decided the other way, and to have current citations for the issues I briefed. And, of course, to see if there were some helpful cases for my issues on appeal.

Below are a few snippets from the District of Maine cases that were relevant to my appeal. Those of you who do Appeals Council briefs or federal court work will recognize familiar, recurring issues:

Evaluating treating source opinions

A medical opinion by a treating source is given "controlling weight" when it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record. See 20 C.F.R. § 404.1527(d)(2); Social Security Ruling 96-2p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2010) ("SSR 96-2p"), at 111. When such an opinion is not given controlling weight, it is nonetheless evaluated pursuant to the factors enumerated in section 404.1527(d)(2)-(6). See id. § 404.1527(d)(2). The fact that a medical opinion is not entitled to controlling weight does not mean that it should be rejected. See SSR 96-2p at 114. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927." Id. The commissioner must "always give good reasons in [his] notice of determination or decision for the weight [he] give[s] your treating source’s opinion." 20 C.F.R. § 404.1527(d)(2).

RFC determinations

While administrative law judges are not precluded from “rendering common-sense judgments about functional capacity based on medical findings,” they are “not qualified to assess residual functional capacity based on a bare medical record[,]” Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). See also, e.g., Eshelman v. Astrue, No. 06-107-B-W, 2007 WL 2021909, at *3 (D. Me. July 11, 2007) (rec. dec. aff’d July 31, 2007) (“While the First Circuit does permit an administrative law judge to pick and choose among physicians’ findings and opinions, it does not permit the crafting of an RFC based on the raw medical evidence of record unless common-sense judgments about functional capacity can be made.”) (citations, internal quotation marks, and footnote omitted). Kaylor v. Astrue, No. 2:10-cv-33-GZS (D. Me. December 30, 2010)(rec. dec. aff'd February 7, 2011) 

The administrative law judge, as a layperson, is not competent to assess the plaintiff’s physical RFC on the basis of the raw medical evidence of record. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) ("The ALJ’s findings of fact are conclusive when supported by substantial evidence, but are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.")

Step 2 and Harmful Error

Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28). Guber v. Astrue, Civil No. 1:10-cv-172-JAW (D. Me March 30, 2011).

"[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim." Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010).

Simple instructions

A limitation to simple instructions and tasks correlates to jobs with a GED R level 1 or 2. Pepin v. Astrue, Civil No.09-464-P-S (D. Me. August 24, 2010)(rec. dec. aff'd September 16, 2010).

7/7/11 update: After reviewing the Statement of Errors and the administrative record, Assistant Regional Counsel determined that a remand is appropriate. Excellent!

On-line Access to the Electronic Claim File

Just a few short years ago, Social Security disability claim files were paper, and getting a copy of the claim file meant literally making a photocopy of the file. You still see paper files every now and then, but they are the exception rather than the rule.

Most claim files are now electronic, meaning that the documents in the claim file are stored electronically, and reside in Social Security's vast database. A copy of the disability claim file is provided to the claimant or claimant's representative by via a CD. The whole file is on the CD, which takes up much less space than a paper file.

The CDs are a huge improvement from the old paper file days. The downside is that some hearing offices are better than others when it comes to providing current copies of those CDs. The Portland, Maine hearing office is particularly good about providing updated CDs. You receive a CD upon intake at the hearing office, and an updated version when the claim is ready to schedule; another CD is sent 15 days ahead of the hearing, and a CD is made on the day of the hearing and provided to the representative to review and use at the hearing.

On-line Access

Most recently, Social Security has been rolling out on-line access to disability claim files. This service is for registered claimant representatives only; it is not for the individual claimant. I signed up at my local ODAR a couple months ago, and have been using it regularly since. For security purposes, each time you access the system on-line, Social Security sends a text message to your cell phone with a one-time numerical password needed to log on. So you need internet access and a suitable mobile phone to use the new service.

I have found some distinct advantages and a few disadvantages with on-line access.

The Pros:

• You have immediate access to any claim file at the hearing level after your Apointment of Representative (form 1696) has been processed. I can look at a new disability file right away, before I would have received a CD of the file from the hearing office.
• Downloading a copy of the file is a fairly simple procedure. And a pdf copy is available. I prefer a pdf copy over the tiff files that are on the CDs. A pdf is much easier to navigate.
• You can look at a file any time. All you need is internet access, and the claimant's Social Security number, and your mobile phone. So I can check a file at night from home without difficulty.
• You get access to the live file. You are not looking at the file as it was on the day the CD was created. It is quite reassuring to look at the file on-line a couple days ahead of the hearing and see all your evidence and your hearing brief there.

The Cons:

• Only one representative at a time has on-line access to the file. If you are not the sole designated representative, you can't access the file on-line. So for firms with more than one lawyer, it makes it difficult to share work on a case.
• Staff is not permitted on-line access. This is a deal-breaker for many offices, and the issue needs to be addressed by the SSA before the internet becomes the prevalent method of providing access to a file. For my office, it means I have to access the file and download a copy for anyone else to work on the claim.

Overall, I have had an excellent experience with the new on-line access program. I need to do some further work on my office procedures to maximize the benefits of this new system.

On the Record Requests

I attended a good panel discussion regarding on the record requests at the last NOSSCR Conference in Chicago. There were several good points made, and I will summarize a few here.

• You should write your OTR for a "middle of the road" judge. That is the likely perspective of the attorney advisor reviewing your request.
• Short or long? I favor a 2-3 page OTR request. My experience has been that the attorney advisors will carefully comb through the file regardless of the length of your request, so I keep it short. 
• An on the record request gives you the opportunity to present your case at its peak. Over the course of the year or two waiting for resolution of the disability claim, the claimant's condition may vary. Particularly, a claimant with mental impairments may have ups and downs during the claim period. You can file your OTR when the medical record is the most favorable, perhaps just after a hospital stay. Remember, you never know what happens in the future. The claimant may move away prior to their hearing. Or the last progress note before the hearing might read: "Patient feels much better. He is looking for work." Avoid all that by filing an OTR request at the peak of the medical evidence.
• An OTR request may allow you to avoid an unfriendly judge. I hadn't thought about this before, but maybe your hearing office has one of those dreaded ALJs that only grant 10%, 20% or 40% of the claims they hear, while the other judges in the office have more favorable disposition rates (the national average is around 65%). The attorney advisors are likely to have a viewpoint more like the regular judges in the hearing office. By getting the claim granted OTR, you avoid the chance of having the claim assigned to a judge who would deny an otherwise winning claim. 
• I find on the record requests very helpful to even out my work load. When I have a few days at the office with no hearings, no deadlines, no appointments, that is a perfect time to write an on the record request in an appropriate case. Even if the request is denied, it will save time in the future when that claim comes to a hearing, because your hearing brief is mostly written.

Clients really appreciate on the record requests. There is much anxiety about the hearing process, and being able to avoid the hearing altogether is always a huge relief. 

I often receive a smaller fee when an on the record decision is made. Because the decision is made quicker, there is a smaller amount of retroactive benefits upon which to base the attorney fee. But a lawyer puts a client's interests first. Further, I think that I make up the difference in good will, future referrals, and by not having to spend two days focused on that claim around the time of the hearing.

Both the New Hampshire ODAR and the Portland Maine ODAR send out a monthly T3 Representative Report. That report, which shows the queue for hearings, is an excellent tool to plan on the record requests. Make sure you are getting these reports from your hearing office.

Social Security Processing Center Phone Numbers

The Social Security Processing Centers calculate and pay a claimant's disability benefits, once a favorable decision or determination has been made.

The SSA has posted on its site the numbers for the various processing centers. Disability cases are broken up into two different groups for processing: claimants under age 54 and claimants age 54 and over. From there, you can find the phone number for the correct processing center with the claimant's Social Security number.

This really works, and Social Security is keeping these pages updated. I have found the numbers to be helpful tracking down a retroactive payment or fee payment that is due.

Medical Source Statements vs. Functional Capacity Evaluations

I send a medical source statement to the claimant's doctor in pretty much every case, because it is the most powerful evidence available of the claimant's functional limitations. Social Security's rules put the opinions of treating physicians at the top of the hierarchy of medical evidence. See 20 CFR 404.1527(d) and Social Security Ruling 96-2p. A good medical source statement is often the difference between winning and losing a disability claim. I cannot overstate its importance.

Now, doctors are busy, and primary care doctors are very busy, and in general they do not like completing these forms. They are not paid for it, either. But lately I have noticed an uptick in doctors avoiding the task of completing the form by saying that it requires a functional capacity evaluation (FCE). 

Functional Capacity Evaluation

A functional capacity evaluation is performed by a physical therapist by actually physically testing the patient. FCEs have become a big business. The inherent flaw in the FCE process, however, is that physical testing for a day or two cannot reliably predict what the patient can do on a regular and continuing basis in the workplace. Drawing conclusions about residual functional capacity from an FCE is closer to voodoo than science. 

Social Security's medical source statement form does looks like it requires a FCE, because it has precise categories for lifting and carrying, standing and walking. So you can see how a misunderstanding could develop at the doctor's office about the nature of the form. But sometimes, the FCE issue is just a convenient excuse to avoid completing the form. 

An FCE can help your case, but not the way a medical source statement can. An FCE is not from your treating physician, so it is not entitled to the deference of 20 CFR 404.1527(d)(2). It may not be from a physician at all, so you now have a non-acceptable medical source issue. See 20 CFR 404.1513.

Most importantly, a functional capacity evaluation does not address the critical issue of what the claimant can do on a sustained basis. An assessment of what you can do on a given day has little to do with what you can do day after day or week after week. The FCE doesn't tell you that, and that's what an residual functional capacity must determine. See Social Security Ruling 96-8p.

Get a Medical Source Statement instead

What the medical source statement requires, as the name implies, is a doctor's opinion - a medically informed opinion about what the claimant can and can't do. Knowledge of the patient's medical condition and common sense are all that is required.

By the time someone from the doctor's office calls me to say that an FCE is required to complete the medical source statement, it is usually too late to persuade them otherwise. I deal with this situation now by involving the client. I tell the client that the doctor will not complete the form, and would they please take the blank form with them to their next doctor's visit. At the next visit, with the patient right there in front of the doctor, the form is usually completed. But if you are not careful, a hearing can be scheduled before the next doctor's appointment, and you can miss the opportunity for this type of patient intervention.

What is the solution?

• This issue requires outreach to physicians. I mention it whenever I talk to a doctor, but I don't talk with doctors that frequently. I would like to address local meetings of physicians to spread the word. The issue is too important to just let the situation get worse.
• I always thank the doctor when I get a form back. I think positive reinforcement helps.
• I may start paying to have the form completed, and simply send a check for $50 to the doctor's office with the blank form. But this cost gets passed on to the client at the end of a successful case, and I am reticent to make this my standard practice.
• I am considering abandoning the Social Security medical source statement form, SSA form HA-1151-BK. I mean let's face it: the form does look like it requires a functional capacity evaluation. I may create a different form, or request more narrative reports from doctors. Narrative reports take more of a doctor's time, and are correspondingly difficult to obtain, but at least there is no easy excuse to avoid giving an opinion.

I would welcome your suggestions. What do you do to obtain medical source statements? Please leave a comment.

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

How a Disability Lawyer Helps Your Claim

When I first talk with prospective clients, there is often some confusion about the benefits of having an attorney's help with their disability claim. Obviously, I believe that disability claimants are much better off with an experienced Social Security lawyer overseeing their claim, but I sometimes need to explain why to prospective clients.

I have added a page to my Maine Social Security lawyer website to address the issue. The new page discusses 7 ways that a Social Security lawyer can help. They are: 

1. Develop a winning theory for your claim.
2. Obtain the necessary evidence.
3. Keep your claim moving.
4. Help you tell your story.
5. Represent you at the hearing.
6. Ensure that you are paid correctly.
7. Be your guide.

Check out the how a lawyer can help page for an explanation of each. I think it is a good list. Any thoughts on items that might be added?

Vocational Resources

Posted over at David Traver's Connect Board are links to scanned pdf copies of the out-of-print Dictionary of Occupational Titles and the hard-to-find Selected Characteristics of Occupations. They are available as free downloads.

These are the books you need in front of you when in the trenches with a recalcitrant vocational expert. Now, instead of lugging the volumes around just in case you need them at the hearing, you can have them available on your laptop.

Click on the volume you want to download. The link will take you to a site where you can download a copy for free.

• Dictionary of Occupational Titles (DOT) Volume 1
• Dictionary of Occupational Titles (DOT) Volume 2
• Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO)

This is great stuff. Thanks to Tim Wilborn for the time and effort to scan these volumes, and for the thoughtfulness to make them available to his colleagues. Thanks also to David Traver for posting the links on his site.

Follow up on Ruling 96-8p and Full-Time Work

The challenge with claims involving Ruling 96-8p, where the issue is the claimant's ability to maintain a full-time schedule, is that Social Security's forms - such as the Medical Source Statement of Ability to do Work-Related Activities (Physical) - have no spot for a doctor's opinion regarding a patient's ability to maintain a regular work schedule.

As a disability lawyer, you need to get the doctor's opinion on this issue. It's really important.

Do you whatever you have to do. Ask the doctor for a narrative. Type in the question on the form you send to the doctor. But somehow, get the doctor's medical opinion about whether or not the claimant can sustain a full-time work week (and if not, why not).

Reopening a Prior Claim Reminder

Reopening a prior claim is one of the neatest things you can do as a Social Security disabiity lawyer. From the "posted one year ago today" file, here is a reminder to check for prior claims. Reopening a prior claim can add substantially to the retroactive benefits payable to the claimant.

Reopening is governed by 20 C.F.R. 404.988 for disability claims and 20 C.F.R. 416.1488 for SSI claims. 

A prior claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim to the filing date of the subsequent claim.

A prior Social Security disability claim can be reopened within 4 years if there is good cause. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause. The 2-year and 4-year time periods run from the date of the initial determination of the prior claim.

Social Security disability law is unusual in its ability to reopen claims. Reopening runs contrary to the notions of res judicata and issue preclusion that we all learned in law school. But it makes a great deal of practical sense in the context of Social Security disability, because many deserving claims are not appealed after an initial denial.

Please be sure to always check for prior claims that may be subject to reopening.

Onset Date Language for Medical Source Statements

Sometimes in a disability case, the medical evidence lags behind the disability. There is often not a strong medical record as of the day an impairment became disabling. Over time, however, with repeated doctor visits, the medical picture usually becomes clear.

So the problem is: how do you prove disability as of the alleged onset date?

To provide the judge with medical evidence regarding onset, I will often add the following language to the medical source statement form that I send to the claimant's treating physician:

Based upon my training, education and experience, and based upon my treatment of <claimant's name>, the limitations set forth above reflect my opinion of <claimant's> functional limitations from <alleged onset date> to Present.

That language gets typed just above the doctor's signature line, where the doctor will definitely see it. If the doctor disagrees with the alleged onset date, he crosses it out. 

Once the form is signed, the treating source is giving an opinion that the claimant's functional limitations have existed since onset. This is great stuff!

Should the judge ask "well what about the onset date?" at the hearing, you can point out that language on the form, and that the treating source opinion relates the claimant's functional limitations back to the onset date. It is a very tidy solution to this problem.