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Reconsideration is the next step in the Social Security disability adjudication process for those who are initially denied after applying for disability. As the waterfall chart shows, obtaining disability benefits at Reconsideration is the exception, rather than the rule.

I had a client just awarded benefits at Reconsideration on a long-haul COVID claim, so Reconsideration is on my mind today.

I have written before about winning at Reconsideration. That earlier post discusses additional medical evidence at the Reconsideration stage. Since then, I have increased my focus on the vocational aspects of the claims at Reconsideration in my practice.

The first step after an initial denial is to ask for a copy of the Disability Determination Explanation from the local Social Security office. That explanation will tell you in granular detail how the claim was evaluated by Social Security, and why the claim was denied.

Take a look at the vocational part of the determination. If you have an applicant over the age of 50 who was denied because they could perform a past relevant job as generally performed in the national economy, that is a big red flag.

Don’t be afraid to submit a new Work History Report. Claimants often file Work History Reports at the initial level (before they are represented) that are incomplete or contain errors. Give Social Security complete and accurate information in an updated report.

Finally, communicate your theory of the case to the new disability examiner. I have found it effective to write a short (usually one page) letter to the disability examiner explaining why the claim should be allowed. I usually follow up with a call to the disability examiner to briefly discuss the evidence, and make sure the examiner is aware of our theory of the case.

Follow the steps above (and continue to develop the medical evidence) and you will win more cases at Reconsideration. For the claims that you do not win at Reconsideration, the claim will be in a much stronger position at the hearing level, due to your efforts during Reconsideration.

When you are awarded Social Security disability benefits, you do not receive benefits beginning on your onset date (which is the date you became disabled, and were not working).  Rather, there is a 5-month “waiting period” before benefits accrue.

As a practical matter, however, it is often a 6-month waiting period. This is because the waiting period is 5 full months of disability. So if you have partial month of disability, that month simply doesn’t count. I have had clients with an onset date on the 2nd day of the month, and that whole first month of disability did not count. So the effective waiting period can be as long as six months before benefits begin.

The best possible onset date in this respect is the first or last day of the month.

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well. So beware the 3-day holiday weekend, like Memorial Day coming up.

New evidence includes updated medical evidence, a statement from a spouse, and the Representative’s brief. All must be filed 5 business days ahead to be timely for the hearing. While filing earlier is best, it is important to be aware of the deadline.

My first post on this blog was 15 years ago today! It is hard to believe that 15 years have gone by. Both personally and professionally, much has changed since I began.

Personally, I was newly married when I started the blog. We had just bought a house. We now have a 13 year old daughter, who is amazing. Our careers have matured. We are just in a different place than we were back in 2008.

Professionally, I did not expect a blog to be so useful as a lawyer. Of course, it is an effective platform to market a law practice specializing in Social Security disability. But writing blog posts requires me to evaluate the issues in this area of law in a very precise way.

The blog also serves as a repository for the legal research I have undertaken over the years. If I haven’t dealt with a specific issue for a while, there is often a previous blog post on that topic that has the exact language that I need, along with citations to the applicable regulations. It is an amazing resource for me, and hopefully for readers as well.

At the recent NOSSCR Conference, I attended an excellent presentation by Ohio disability attorney Scott F. Smith on winning cases for Social Security disability. One of the topics covered was a pre-hearing brief for the administrative law judge. Mr. Smith listed several goals accomplished by writing a brief:

Drafting a brief is an endeavor that I believe is essential to setting up a winning case. It helps accomplish several goals:
1. it allows you to go through the evidence in a goal oriented manner so you know what’s in the file;
2. it allows you to organize the evidence in a clear and concise manner to emphasize the strengths and deal with the weaknesses of your case;
3. it allows you a roadmap to have with you in a hearing so that you do not lose your way of what is important;
4. it provides the judge evidence that you have actually reviewed your file before the hearing;
5. it also sets up your arguments and points the judge in the direction for which you want them to ultimately go;
6. it provides a record so that if unsuccessful at the hearing, you can show the Appeals Council exactly what the arguments were and what the judge missed.

Reasons 1 through 3 are particularly important. A hearing brief is essential. Not yet convinced? Here are ten reasons to write a hearing brief.

The hearing brief is subject to the five-day rule, so get it in early. The earlier the better, so it is in the file as the judge first reviews the claim.

At the close of a hearing, sometimes post-hearing argument is needed. Social Security’s rules allow for oral and/or written post-hearing argument, upon request. See HALLEX section I-2-6-76.

I prefer to submit a post-hearing brief, rather than make a statement at the close of the hearing. I think a brief has far more impact.

Post hearing argument is necessary when an important issue has been left unresolved. Sometimes it is the testimony of the vocational witness at the hearing. Response to this evidence is specifically permitted under Social Security Ruling 96-9p, footnote 8. Similarly, the hearing testimony of a medical expert may require a post-hearing response.

Sometimes the judge raises a quirky issue at the hearing. This happened to me recently when the judge wanted to reconcile the claimant’s many absences from work (we submitted attendence records from the last employer) and the lack of cancellations of scheduled medical appointments. He asked the claimant “If you were missing all this work due to your symptoms, why did you only cancel one medical appointment, of many?” The claimant gave a good answer, but I thought the issue deserved a further response. I let the judge know at the hearing that I would file a post hearing brief.

We do so much to prepare for hearings. But follow up after the hearing is sometimes necessary, and can strengthen your case.

The annual NOSSCR conference will be in Washington, DC next week, beginning Wednesday, May 3rd. I am a sustaining member of NOSSCR, and will be there.

The NOSSCR conference is always a good chance to learn, and to get perspectives from others around the country who also specialize in Social Security disability law.

Please say hello if you see me!

Most disability claims are decided on a medical-vocational basis. Sometimes too little attention is paid to the vocational part of the analysis.

At Social Security disability hearings, the administrative law judge will typically give the DDS residual functional capacity assessment as the initial hypothetical question to the vocational expert (VE) at the hearing. I have had hearings where the VE answered that past work was precluded, and that other work would also be precluded by the functional limitations assessed by DDS. Game over! With that testimony, the judge awards disability benefits.

Sometimes the main problem with the determination made by DDS when evaluating a claim for disability benefits is not so much the functional limitations resulting from the claimant’s medically determinable impairments, but rather than vocational consequences of those limitations.

Vocational evidence is particularly important for disability claimants who are 55 years or older. Those claims often are allowed or denied based upon on the nature of the claimant’s past work, whether or not it can still be performed by the claimant, and whether or not the claimant acquired transferable job skills.

The medical aspects of a case are always important. But don’t forget the vocational evidence, because you can win the case that way as well.

There is an organization within Social Security called the Quality Review Board, also known internally as the Disability Quality Branch (DQB). The DQB samples initial and reconsideration determinations from state DDS agencies to ensure that Social Security’s disability rules and regulations are being interpreted and implemented properly by the various state DDS agencies – a quality control function.

The SSA do not notify the claimant or the representative when a case goes to quality review. If your claim is overdue for a determination from DDS, it may be at quality review. The local field office with jurisdication over the claim can tell you if the claim is at quality review. The quality review process often takes 2-3 weeks. The claim is then either returned to DDS for further review, or the DDS determination is left in place, and the claim is transmitted to the local office.

At Step 4 of Social Security’s sequential evaluation, the SSA considers the claimant’s ability to perform their past relevant work, both as actually performed and as generally performed in the national economy. That means that Social Security will evaluate your ability to do the jobs you have had over the past 15 years, both as described in your work history report and as generally performed.

If the job you had as a cashier was more demanding physically than that job is generally, and you could perform the job as generally performed, you will not be awarded disability benefits. On the face of it, this is a fair rule. But in practice, problems arise.

The first problem is that, to determine how a particular job is generally performed, Social Security refers to the Dictionary of Occupational Titles (DOT), a Department of Labor publication that hasn’t been updated since 1991 (and many jobs in the DOT date back to the 1970’s). So the description of a job’s requirements may be woefully outdated. I had this issue at a hearing recently, where an office-type job description in the DOT dated back to before there were PCs in the office, and before the internet. The job today is all about working on a computer and keyboarding, in a way the job wasn’t performed 30+ years ago. It took a lot of cajoling to get the vocational expert at the hearing to acknowledge that the job had evolved over time from its DOT description, and now required extensive use of the hands (which was a problem for my 63-year old client with severe psoriatic arthritis).

The disparity between the reality in the workplace and the dated job desciptions in DOT continues to grow with time. The issue has started to garner some media attention because of its unfairness. Claims are being denied using outdated vocational information.

Another problem is that a disability examiner at DDS may select a job title in the Dictionary of Occupational TItles that has the same name as the job performed by the claimant, but is a actually a different job.

Continue Reading Past Relevant Work as Generally Performed