Maine Social Security Disability Lawyer

Focus on your own disability case

As I talk with clients and prospective clients, and dig into the evidence supporting a claim for disability benefits, clients sometimes say something like this: "I don't understand why my claim wasn't approved, I have a friend/neighbor/acquaintance who got disability benefits right away, and there is nothing wrong with him/her."

I have heard variations of that statement dozens of times.

Ohio attorney Gretchen Esselstein discussed this issue in her recent post entitled Debunking Common Social Security Disability Myths. Describing myth #4, Ms. Esselstein writes:

My friend, neighbor, relative, etc. was approved, but there is nothing wrong with them. The truth is, an overwhelming number of recipients have severe conditions that you are unable to see or they simply do not tell you about. It is likely that they too had to fight for their benefits. Therefore, your efforts should focus on your claim and what you need to do to be successful on appeal.

I completely agree. Do you think your neighbors and acquaintances realize how debilitating your impairments are? I bet they do not. Likewise, you are unlikely to have a complete picture of another person's impairments and functional limitations.

Do not be distracted by someone you know who is receiving disability benefits but appears outwardly to be fine. Focus on your own claim, and get the help you need to obtain disability benefits. 

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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.

Find a Disability Lawyer with these Qualities

Law firms practicing Social Security disability law come in all shapes and sizes, from "nation-wide" practices to one person offices. Is there a right size? In my view, a law firm should be “right-sized” for the needs of its clients.

More important than size however, is the distinguishing characteristics of the lawyer and firm. Look for these important qualities:

• Specialization. Seek a lawyer that spends most of his or her time doing this kind of work. Social Security disability claims are not like other legal cases. It is not a place for dabblers.
• Experience. Believe me, you do not want to be the client of the lawyer I saw last week, who did not know the location of the bathroom at the hearing office. Seriously, if your representative has not spent enough time at the hearing office to know where the bathroom is, imagine what else is unknown. Your lawyer should have conducted dozens, hopefully hundreds, of disability hearings.
• A local or regional presence. Your lawyer should know, have experience with, and have a relationship with the administrative law judges that may decide your claim. Also, familiarity with the professional staff at the Social Security offices is very helpful.
• Attorney involvement early in the process. Your lawyer should not wait until a hearing is scheduled to get involved in the claim. You may miss opportunities to develop the claim, to obtain opinions from treating providers, and to frame the issues in the disability claim. Early involvement by the lawyer is advantageous. Furthermore, for claimants with physical limitations who are age 55 or over, a lawyer should be involved when the claim is first filed.
• Responsiveness. Are you getting the answers you need? You should not be kept in the dark about your case. Regular communication with your lawyer and law firm staff are helpful to your claim. 

Keep these qualities in mind as you choose a Social Security disability lawyer. There is a permanent page on this site, with a link on the sidebar, that provides with more details about choosing a disability lawyer.

Appeal Your Denial of Disability Benefits

Judging by the incoming phone calls, emails and requests for a case review, the New Hampshire DDS, which makes the decisions on initial applications for Social Security disability benefits and SSI, just denied a bunch of claims. For some reason, they seem to send out denial letters in batches.

If you received a denial notice from Social Security, be sure to appeal your denial right away. Although you have 60 days to appeal, there is no reason to wait. 

Search SSA Rules and Regs on NOSSCR site

The NOSSCR website has a new feature that is very useful. The site has a set of Google "search boxes," each focused only on the SSA website, or the Social Security Act, or the Regulations, or the Rulings, or the HALLEX, or the POMS, or Google Scholar. Take a look.

This is a very handy tool, particularly for the searching the HALLEX or POMS, both of which have terrible indexes that make finding a particular provision difficult. With search, it is easy. Go ahead and type "good cause" in the POMS search box. You will find exactly what you need.

Tips on Using this Blog

75% of the visits to this site are from new visitors. For both new and returning visitors to the blog, here are a few tips to find what you are looking for and to share that informations with others.

Use the sidebar

A characteristic of the blog format is that the most recent posts (not necessarily the most important posts) appear at the top of the site. To counterbalance this, I created the Important Topics for Claimants list on the sidebar, which has links to permanent pages that address topics that are central to many claims. Take a look at the Important Topics to see if there is a webpage dedicated to an issue important to your claim. The sidebar also has a Resources of Note section that links directly to useful pages on the SSA website. For disability lawyers, the sidebar has links to Ten Tips for Writing Hearing Briefs and a sample brief. Check out the Twitter Updates on the sidebar for the latest information.

Use the search box

If you do not see what you are looking for, try the search box at the top of the sidebar. With over 450 posts on this site, there is a strong likelihood that I have written on a Social Security disability topic important to your claim.

Share the post with others

When you finish reading a helpful post, click one of the buttons displayed in the footer, to share it with your network on facebook, twitter, or other social site. Clicking on the Google +1 button will help others find the post you just reviewed.

Subscribe to the blog

You can enter your email in the box on the sidebar to receive future posts by email. There is also a button on the sidebar to subscribe to this blog, and receive posts by RSS reader.

I hope these tips help you to find the information you are seeking. Once you do, please share it with others.

 

Tell a Story

Recently the ABA Jounal published a post by Jim McElhaney entitled Dirty Dozen: 12 Ways to Write a Really Bad Brief. The list contained this notable tip:

Tell no story. Every brief should tell the story of an injustice, a wrong that needs to be righted or avoided.

The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events. Telling an engaging story in the statement of facts and the issues they raise gives meaning to an otherwise dry assemblage of information. How you do it depends on who you are writing the brief for.

Trial judges are folks in the trenches whose goal is to do elemental justice. Appellate judges want to right wrongs, too—within their job of weaving and repairing the fabric of the law.

Always keep in mind who is going to read your story.

This is particularly true in the context of a Social Security claim. With judges hearing so many claims, a compelling client story is more important than ever.

Every client has a story. Sometimes the story is obvious. Sometimes it takes some digging and some thought. But there is always a story worth telling.

Until I have a compelling story to tell, my hearing preparation is not complete.

Notice of Reconsideration - What To Do Next

A "Notice of Reconsideration" letter states that your disability or SSI claim has been denied for a second time by Social Security. When you get a Notice of Reconsideration in the mail, there are a few things to remember:

1. The first is do not be discouraged. 7 out of 8 Reconsideration claims are denied, and the majority of these denied claims are approved at the hearing level. See this chart to see how the percentages improve at the hearing level.
2. The second is to call or email your lawyer, and let him or her know. We are supposed to get copies of all correspondence going from Social Security to our clients, but it does not always happen. Just last week I had a client receive a Reconsideration denial, and this office was not sent a copy. If the client hadn't called me, I would not have known until the next time I checked on the claim. It is possible to miss the 60 day appeal deadline under these circumstances. Don't let that happen. Contact your lawyer, and make sure the claim is appealed right away. Chances are the lawyer's office has also received the notice. That's fine. It is also good time to discuss a plan to develop the evidence necessary to turn the negative result around, so you get a fully favorable decision at the hearing level.
3. If you do not have a lawyer, be sure to appeal the denied claim right away by contacting your local Social Security office.
4. Lastly, if you are not represented by a lawyer, it is a good time to seek out counsel. There is usually plenty of time after a Recon denial and before the hearing to develop the evidence that will support a favorable decision. The next step after Reconsideration is a hearing before an administrative law judge. You want a lawyer for that, in my view. It does not cost one penny to hire a lawyer for a Social Security claim. Any fee will be paid in the future, if you win your claim. There is no fee should you lose your claim. You can read more about attorneys fees here.

In summary, if you receive a Reconsideration denial from Social Security, don't get discouraged. There is hope. Make sure the denied disability claim gets appealed, and get in touch with your lawyer or find a disability lawyer if you don't have one yet.

Statement from a Spouse

Remember that you can submit a statement from a spouse, parent or friend in support of a disability claim. 20 CFR 1513(d)(4) states that Social Security will consider evidence from other non-medical sources (for example, spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy).

When you have the right person with the right story to tell, it can be powerful evidence. A non-medical, or "lay" statement is powerful evidence because it puts a disability case in a human context. Lately I have been requesting a statement from the spouse more frequently. I have yet to receive one that has not been thoughtfully written and compelling.

The statement is usually a 2 or 3 page typed document. It will usually tell the story of how the claimant used to be, what changed medically, and what life is like now.  There is a genuineness to these statements, and they are often very moving. 

Ideally, the statement should be in the record when the judge reviews the claim prior to the hearing. In a typical case, prior to the hearing the judge can only review the medical records and various Social Security forms that are in the claim file. The human element is pretty scarce until the actual hearing, when the judge finally meets the applicant. The statement adds the human element to the disability claim file in advance of the hearing.

The statement often provides an excellent summary of the claim. And since the statement is in the record as evidence, you can refer to it in your pre-hearing brief. 

Look at the cases you have coming up for hearing. One or more of them might benefit from a statement from a spouse.

 

Keeping a Journal of Symptoms

From time to time I ask certain clients to keep a journal to keep track of their symptoms. For people with symptoms that are subjective, or are variable day to day, a journal can be be a good tool to quantify how often the symptoms are severe.

Every case is different, and everyone's symptoms are different. So a journal is not for everyone. But for some disability applicants with fibromyalgia, chronic fatigue syndrome, migraines, vertigo, chronic pain, depression or anxiety, a journal can really help. 

Usually these claims are decided at steps 4 and 5 of the sequential evaluation. Furthermore, these impairments do not fit well into the Social Security physical RFC format, because on a given day, a claimant may be able to perform all the requirements of light work. The next day, however, the same claimant may be unable to get out of bed due to pain secondary to the impairment.

The most likely route to a favorable decision for such a claim is that the administrative law judge determines that for several days each month you will be unable to work due to your impairment. As a result, the judge rightfully concludes that you are unable to work on a regular and continuing basis, and therefore qualify for Social Security disability benefits (see Social Security Ruling 96-8p). 

You can help the judge make this determination by keeping a journal, so that you have an accurate record of how many "bad days" you have each month due to your impairment.

Appeal your Denial

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

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

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

  

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

Get to the hearing level

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

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

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

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

Statement from a Spouse, Parent or Friend

Every now and then I submit a statement from a spouse, parent or friend in support of a disability claim. 20 CFR 404.1513(d)(4) states that Social Security will consider evidence from other non-medical sources, such as a spouse or a parent.

In an appropriate case, where you have the right person with the right story to tell, it can be powerful evidence. A non-medical, or "lay" statement is powerful evidence because it puts a disability case in a human context.

The statement is usually a 2 or 3 page typed document. It will usually tell the story of how the claimant used to be, what changed medically, and what life is like now.  There is a genuineness to these statements, and they are often very moving. 

The statement should be in the record when the judge reviews the claim prior to the hearing. In a typical case, prior to the hearing the judge can only review the medical records and various Social Security forms that are in the claim file. The human element is missing until the actual hearing, when the judge finally meets the claimant. The statement adds the human element to the disability claim file.

The statement often provides an excellent summary of the claim. And since the statement is in the record as evidence, you can refer in your hearing brief. 

Look at the cases you have coming up for hearing. One or more of them might benefit from a statement from a spouse, parent, sibling or friend.

Disability Claim Granted for Worker over Age 55

As often as I can, I help workers over the age of 55 who can no longer perform their past work due to physical impairments with their initial disability applications. I have worked with many clients in this age group, and often a claim can be granted without the necessity of an appeal or a hearing, because the initial application is completed properly. 

These claimants come to my office, we talk about their case, and together we apply for disability online on Social Security's website. 

I ensure that I have a winning theory of the case before filing. Then, I help the client thoroughly complete the work history report, being sure to fully describe the requirements of past work. I analyze the past work for transferable skills. Then, I ensure that the claimant describes his or her functional limitations, and ensure that all sources of medical treatment are listed (so that Social Security gets a complete medical record). Lastly, I ask the client which of his or her doctors are the most supportive, so that I can get a doctor's opinion right away.

I recently received the favorable determination for a client who came to my office applied for disability and early retirement. He is pleased to have his disability benefits without any of the delays that can result from errors in the application process.

I think it is important for this group of claimants to have help with their initial application, because mistakes can be very costly, in terms of time waiting for a favorable determination, appeals and the possibility of denied disability benefits. I strongly believe you can maximize your opportunity for the benefits you have earned by involving a disability lawyer at the initial stage, either with the application itself or shortly thereafter.

NOSSCR Presentation - Hearing Brief Tips

I had the privilege of presenting a workshop at the Fall Conference for the National Organization of Social Security Claimants' Representatives (NOSSCR) in Chicago.

The workshop was Ten Tips for Writing Effective Hearing Briefs for the ALJ. My presentation also included Ten Reasons to Write a Hearing Brief and a sample hearing brief.

Presenting at the NOSSCR conference was a terrific experience. Thank you to all who attended. The linked Ten Tips contains a few updates that were discussed during the workshop, but were not included in the printed conference materials.

A Regular and Continuing Basis

Social Security must evaluate a claimant's ability to work on a regular and continuing basis at steps 4 and 5 of the sequential evaluation. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule (essentially, full-time work). See Social Security Ruling 96-8p and POMS Section DI 24510.057.

For most of the disability and SSI claims that I see, the claimant's ability to work on a regular and continuing basis is severely compromised. 

A disability lawyer should develop evidence that will lead the decisionmaker to the conclusion that full-time work is not possible. Several different types of evidence can help: 

• At the top of the list is a medical source statement from a treating physician or other medical professional stating that the claimant cannot perform essential work-related functions on a full-time basis.
• A statement of a friend or a relative.  This statement should be considered by the ALJ regarding the severity of the claimant's impairments. See Social Security Ruling 06-03p.
• Keep a journal. This will help to track your symptoms, and how many "bad days" you experience. 
• The claimant's testimony at the hearing. I always spend time preparing my client for this testimony, because I want to present a genuine and authentic portrait of what the claimant's life is now like. I often have the claimant discuss specific examples of events that were missed due to the impairments.

You will be found disabled at step 5 if the judge determines that you cannot work on a regular and continuing basis. You should present compelling evidence to lead the judge to this conclusion.

Appeal your Denied Claim Right Away

If you have received a letter from Social Security denying your disability claim, you need to appeal that denial within 60 days. But there is no reason to wait. Appeal that denial right away, and move on to the next step of the process. 

The appeal period is always 60 days, at every level of the disability review process. Whether you receive an initial determination, a reconsideration denial, or an administrative law judge decision, your deadline for an appeal is 60 days from receipt of the denial letter. The SSA will presume that you received the denial 5 days after the date of the letter, so you have an extra 5 days if needed.

It can be very discouraging to receive that denial letter in the mail. It is a good time to consider getting legal help with your claim. A Social Security disability lawyer can take care of the appeal paperwork for you. Remember, there is no attorney fee unless you win, and Social Security pays the lawyer directly from your award of retroactive benefits.