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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.

The benefit of a post-hearing brief was demonstrated recently when I had testimony from a medical expert (ME) at the hearing that needed to be addressed. I submitted a post hearing brief stating that, given the specific testimony of the ME, the disability claim must be granted under Social Security's rules. The judge agreed, expressly adopting the reasoning from the post hearing brief, and quoting from the brief in the written decision. The case was granted. But it very well might not have been granted without the post hearing brief. 

Don't miss an opportunity to help your client. Write a post-hearing brief when needed.

When Social Security Security evaluates a claim for disability, it uses a 5-step sequential evaluation. For steps 4 & 5 of the sequential evaluation, Social Security assesses your functional limitations and incorporates those limitations into a Residual Functional Capacity (RFC). That RFC is then compared to the requirments of competitive work to determine whether or not a person claiming disability is disabled under Social Security's rules.

When evaluating a claim for disability, the RFC assessed by the state Disability Determination Services (DDS) should always be the starting place. What limitations did the state agency find? What work would be precluded by the RFC? These are the first questions to ask when evaluating a claim.

From this starting place, you can then evaluate the medical evidence to see what evidence may be missing and what could be supplemented. As always, opinions from a treating medical source regarding a patient's functional limitations is highly desirable.

An administrative law judge also look first at the DDS RFC. I had this discussion with an ALJ after a hearing recently, and that judge always uses the DDS RFC as a starting point (and sometimes, a finishing point). Even though an ALJ hearing is a de novo review of the claim, the DDS RFC is always considered.

If an ALJ will always begin with the DDS RFC, then that raises the issue of early involvement by a lawyer in a disability claim. If you can move the RFC closer towards disability aat the state agency level, then you may have an easier time establishing disability at your ALJ hearing. You may also win your case at Reconsideration, which is even better. Either way, the early involvement of a disability lawyer can help to frame the issues and develop the evidence well before the judge takes a first look at the case.

I had a hearing recently with a terrific Social Security administrative law judge. The experience got me thinking about the characteristics you want in a judge. Here are a few:

Good listener – the purpose of a Social Security disability hearing is to take testimony from the claimant. You want a judge who is actively listening, and who has not pre-judged the claim based upon the written record.

Empathy – this is such an important quality. A good judge will understand what effects claimants' symptoms have on their lives. By the way, this is an important quality for a disability lawyer, as well.

Unemployment benefits – this may be a corollary to empathy, but a good judge understands why a disability claimant might have taken unemployment benefits during the disability period. A person who has not been adjudged disabled, who is willing to try to work, can receive uneployment benefits. Accepting unemployment benefits is not necessarily a black mark on the claimant's credibility.

Announce decision at end of hearing – I cannot tell you the relief that is felt by claimants when a judge states at the close of the hearing that benefits will be forthcoming. From application to hearing, a Social Security disability claim can take 2 years (sometimes longer). Waiting even longer after the hearing to know the result is difficult. Announcing the decision at the close of a hearing is very considerate. A bench decision is even better.

Other characteristics of a great ALJ? Please leave a comment.

Each Spring, the SSA releases statistics from the previous fiscal year in an easy to understand format, the "waterfall" chart. The chart shows the percentage of claims approved and denied at the various levels of review. Here is the latest chart, for FY 2013:

The chart shows that allowed claims are down at every level of review, and Appeals Council remands are down as well.

I have been highlighting the annual waterfall chart on this blog for 5 years. Back in 2008-2009, ALJ allowances were steady at 63%. From that baseline, we now see a 15-point reduction to 2013. 

2010 was similar to the 2 previous years, with ALJ allowances at 62%. Since then however, each year we have seen significant reductions in allowed claims. 2011 had an allowance rate of 58%. In 2012, it fell further, to 52%. And now, we have the 2013 numbers, with 48% of claims granted at the hearing level. As I said, this documents a 15-point reduction in allowed claims in the past few years.

Many clients make first contact with me after receiving a denial letter for an initial application for Social Security disability benefits. It is crucial to appeal the denial of your benefits right away.

After an appeal, the next step in most states (including Maine) is Reconsideration (in New Hampshire, however, disability claims go directly from an initial denial to the hearing level – there is no Reconsideration step in New Hampshire). At Reconsideration the claim goes back to DDS, but gets assigned to a different disability examiner and medical team. They review the claim, consider any new evidence, and make new determination.

The Reconsideration step of the Social Security disability claim process can be an unfriendly place. On a national basis, almost 8 out of 9 claims are denied again at Reconsideration. Even when a claim is denied at Reconsideration, being involved as a lawyer at this stage can help to frame the issues for the hearing, so it is almost always worthwhile to get help at this stage.

In recent months I have had several clients granted disability benefits at Reconsideration. When a claim is allowed at Reconsideration, there is usually new medical evidence. When I look at the claim file after the initial denial, I sometimes ascertain that important medical records were never seen at the initial level before a determination was made. We then provide that missing evidence. When possible, we also develop medical opinion evidence that supports disability. All this new evidence provides a more complete picture of the applicant's functional limitations, leading to an allowance of the claim at Reconsideration.

I have a whole booklet about preparing your case for a Social Security disability hearing (you can download a pdf of the booklet for free). This post concerns preparing your testimony for the disability hearing.

You should expect to testify at your hearing, and that testimony can be critically important to your claim. One of the tasks of a disability lawyer is to prepare you to testify. That does not mean telling you what to say at your hearing. But preparation does often include things you should not say. Here are two examples:

  1. The answer to the question "Why can't you work?" should never be: "Because no one will hire me." I hear this all the time. But "No one will hire me" is not a basis for disability. Working with clients over the years, I have learned that when they say "No one will hire me," it is almost always a shorthand way of saying "No one will hire me because I cannot do the job as required." So, a much better answer for the hearing is: "I cannot work because I am unable to ___." 
  2. In appropriate cases I counsel clients when talking about daily activities to make the point that what they do on a given day depends upon how they are feeling that day, and to make clear that daily activities are sporadic, depending upon symptoms. Judges often inquire about daily activities in an effort to infer a claimant's limitations and abilities. You do not want the judge reach a false conclusion about what you are able to do. Remind the judge that your daily activities depend upon how you are feeling.

Time with a client going over these issues is always well spent, and is an important benefit of local representation.

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Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

As promised, the SSA has updated its online services for representatives to include the name of the administrative law judge (ALJ) assigned to claims at the hearing level.

Just log in to your online services account, go to Electronic Records Express (ERE) Home, and select "Get Hearing office Status Report." Both the "quick view" version and the spreadsheet version of the report now include the name of the administrative law judge assigned to each claim.


The "secret ALJ" policy implemented in late 2011 has come to an end. For the past year and a half or so, the particular administrative law judge (ALJ) assigned to your disability case was not disclosed prior to the day of the hearing. It was a terrible policy, and now the policy has changed.

Ask the name of the judge assigned to your hearing, and the hearing office staff will tell you. Starting the weekend of April 20th, the assigned ALJs will be listed on ARS, the SSA's online service for representatives. After that weekend, hearing notices will include the name of the administrative law judge assigned to the claim.

I see on the record decisions for Social Security disability claims in two different circumstances.

An "on the record" (OTR) decision refers to Social Security disability and SSI claims pending at the hearing level at the Office of Disability Adjudication and Review (ODAR) that are granted on the record prior to a hearing. An on the record decision can only be a fully favorable decision.

The usual circumstance for an OTR decision is the lawyer submits a short letter brief requesting an OTR decision. The letter should outline why the DDS denial was wrong, and why the claim should be granted now.

Sometimes supplementing the medical evidence with treating medical opinion evidence will strengthen a case sufficiently for an OTR. Sometimes the vocational evidence needs further development. Whatever the reason, it is entirely appropriate to ask the SSA to grant a strong case on the record, and scouting cases for possible OTR requests is an ongoing endeavor in my office

The second circumstance for an OTR decision is just prior to the hearing, often the day before. It is not unusual for a judge to look at the cases scheduled for hearing on the following day, and decide that one or more of them could be granted on the record.

Not all judges follow this approach. Some judges believe a hearing is an integral part of the process, and want to see and hear the claimant. Other judges, however, realize that OTR decisions save time a great deal of time, and that the hour scheduled for a hearing of a case to be granted OTR can be used quite productively outside the hearing room. A pair of judges in each of the hearing offices I regular visit (Portland, Maine and Manchester, New Hampshire) regularly grant cases in this fashion.

The onset date is the beginning of your Social Security disability claim. It is the date when your impairments prevented you from working at the level of substantial gainful activity.

In our current climate for Social Security disability claims, onset dates have been under pressure from both DDS and from administrative law judges. Even very favorable judges are looking at onset dates much more closely.

At the hearing level, part of my preparation is a hard look at the medical evidence and whether or not it supports the alleged onset date.

In the January issue of Social Security Forum, a newletter for NOSSCR members, there is a good article by California attorney Peter S. Young describing the factors to discuss with your client before agreeing to an amended onset date.
Read Practice Tip – Amended Onset.