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Everyone applying for Social Security disability benefits wants to know when his or her claim will be decided. Since by definition a disabled person cannot work, a long wait for a decision is a real struggle for most disability claimants. However, there are a couple of steps you can take to speed up the disability claim process.

First, when Social Security sends you forms to be completed, complete and return them right away. Many claims are delayed for weeks or months because the claimant is slow to return necessary paperwork.

Second, if you receive a denial letter from the SSA, contact a Social Security disability lawyer and appeal right away. Why wait? Although you are allowed 60 days to appeal, do it right away. In Maine, where you have to appeal both an initial denial and a reconsideration denial before getting to an ALJ hearing, you can shave 4 months off your waiting period by acting quickly.

Although medical evidence is the centerpiece of a Social Security disability claim, non-medical evidence can play an important role, and help to persuade an administrative law judge that your are disabled from competitive employment.

Atlanta, Georgia Social Security disability attorney Jonathan Ginsburg wrote a good article on this subject, entitled "Unconventional, Non-Medical Evidence That Can Help You Win." You should read it.

Attorney Ginsberg correctly notes that the medical record alone often does not contain a complete picture of a person's capacity to work. Ideally, an opinion from your doctor will specify the functional limitations that prevent you from working. But you should not stop there. Non-medical evidence can contribute to your case.

Work records can be helpful. Those records may show a pattern of absences due to your medical condition. Or they may show that a person, before stopping work altogether, tried to stay employed with a series of jobs that were progressively less demanding. Written statements from co-workers or supervisors can also help to shed light on the difficulties experienced in the workplace. These statement can enhance a disability claimant's credibility. 

Attorney Ginsberg phrases the overall issue very well. The goal is "to paint a picture of a person who is applying for disability as a last resort and only because you cannot – not will not – work anymore."

In addition to work records, I also will seek out statements from a spouse, family, or a friend. These also can help to paint that picture.

The patient is doing well.

I wish I had a nickel for every time I read that sentence in a progress note for a patient who is applying for disability benefits.

This statement (and similar language) in a patient’s medical records can cause problems in a disability claim, because it is routinely misinterpreted by those making disability determinations (whether or not it is wilfully misinterpreted is a separate issue). 

Saying the patient is doing well is relative. A patient who is no longer suicidal may be doing “well.” A patient who is no longer bedridden half the time due to chronic pain may be doing “well.” But neither patient may be able to work, let alone maintain competitive employment on a regular and continuous basis, as required by Social Security ruling 96-8p.

As a disability lawyer, you have to show the context for statements like this in medical records, each and every time. Same for statements like “patient is improving,” or “doing better.” Otherwise, you run the risk of an unfriendly ALJ latching on to those statements in the medical records to support an unfavorable decision.

Unfavorable decisions routinely cite such statements as evidence that the disability claimant’s functional limitations are not as severe as alleged. You have to make it as difficult as possible for an ALJ to do that, by providing context for these statements. 

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Ten steps to prepare for your Social Security disability hearing

 

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 frequently talk to clients and potential clients, who say "I am diagnosed with x, y, and z" so I cannot work." I hear this statement almost every day (sometimes several times a day). Here is how I respond:

"Well, x, y, or z can certainly be a basis for disability. But the issue in your case, and the reason your claim for disability benefits has been denied so far, is that Social Security needs to assess the severity of your symptoms from these ailments. Your diagnosis was a necessary step, but it is just the first step. The big issue is: what are your functional limitations that result from your diagnoses, and do those functional limitations prevent gainful employment on an ongoing basis?"

As I have written many times on this blog, disability is functionality. Your ability to function in the workplace is the issue in your disability case, not so much your diagnoses.

The task for disability claimants and disability lawyers is to provide evidence of those functional limitations. Ideally, that evidence includes the patient's medical progress notes, as well as medical source statements from treating physicians. Evidence can also include opinions by "non-acceptable" medical providers, as well as statements from family and friends. See Social Security Ruling 06-03p. Lastly, your testimony at the hearing will address your functional limitations. Judges usually want to know about your activities of daily living, so that they can infer your level of functioning from that evidence.

There are many pieces to a successful claim for disability benefits (particularly these days, since disability benefits have become harder to obtain). Understand that your diagnosis is just a beginning step to establishing disability.

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Ten steps to prepare for your Social Security disability hearing

 

When the SSA reviews your initial disability claim, it obtains your medical records, and determines your residual functional capacity after analyzing those records. The problem with this approach is that the SSA does not obtain your doctor's opinion about your limitations. Rather, the SSA reviews your medical records and makes its own determination.

However, a doctor's treatment notes are intended to manage a patient's medical care, not to establish the functional limitations that Social Security uses to evaluate a claimant's ability to work. As a result, the method used by Social Security to evaluate claims often results in a denial of the initial claim for disability benefits, because often your functional limitations usually are not clear from a review of your medical records.

To remedy this situation, it is very important to obtain your doctor's opinion regarding your physical and/or mental limitations, and how those limitations affect your ability to work. A medical source statement from your doctor setting forth your limitations due to your impairments is usually the most powerful medical evidence in support of your disability claim.

In general, an administrative law judge will give greater weight to the opinion of a treating physician, as opposed to a doctor who examined the claimant just one time, or never at all. However, a judge is not obligated to accept the opinion of a treating physician. Rather, the judge must consider several factors when evaluating a treating medical source opinion. See 20 CFR 404.1527(c). 

The key evidence for Social Security disability claims is often a medical source statement, which is an opinion from a treating physician (or other acceptable medical source) regarding the functional limitations resulting from your impairments. The doctor's actual progress notes usually do not have meaningful information regarding a patient's functional limitations (my clients are often surprised by this), so an opinion on this issue is quite important for your disability claim. Further, Social Security must give special consideration to a treating source opinion.

However, a medical source statement is not always available. Many doctors will not provide them. I have several clients who go to a New Hampshire pain management clinic, and the clinic simply has a policy not to complete medical source statement forms. Whatever the reason, it is intensely frustrating when you have a disabled client who cannot get a treating doctor's opinion regarding functional limitations.

What can an administrative law judge infer from a lack of a medical source statement? In my view, nothing. There are lots of reasons why a doctor may not choose to complete the form. Nevertheless, I see ALJ decisions where the absence of a medical source statement is cited as a reason supporting an unfavorable decision.

What to do for a disability claim with no medical source statement?

  • Try again. Exhaust every avenue to get a medical source statement.
  • Beef up the other aspects of the claim, including nonmedical evidence. Consider a statement from a spouse, family member, or friend. Develop any evidence you can that demonstrates disability.
  • Explain at the hearing that this particular doctor does not provide these opinions. Don't allow the judge to assume that the doctor does not think that the claimant has significant functional limitations.

Lastly, hope for the best. The absence of a medical source statement gives the judge much more leeway, in my view. Nevertheless, disability claims without a treating doctor's opinion are approved every day.

There is an interesting Practice Tip provided by Illiniois attorney Eric Schnaufer in the September 2013 Social Security Forum, a newsletter for NOSSCR members. Attorney Schnaufer suggests submitting a treating source's curriculum vitae (CV) to the disability claim file. 

I think this is a great idea in certain cases. Some clients have treating specialists with impressive backgrounds. Submitting that doctor's CV can help to make the point that the claimant's treating doctor has a more reliable opinion than the guy who performed the consultative exam for Social Security.

In a Social Security disability claim, you want to be specific when describing your symptoms and resultant functional limitations. Remember these three words when developing evidence about symptoms: frequency, severity and duration.

Whether you are talking about physical pain/fatigue, or mental health symptoms, these are the 3 things you must describe with medical evidence and with the client's testimony: 

  • Frequency… how often do you have the symptoms?
  • Severity… how intense are the symptoms?
  • Duration… how long do the symptoms last?

These three words should be a mantra for any disability lawyer. Keep them in mind as you develop evidence for a Social Security disabilty claim, so that you can provide specific examples that demonstrate the frequency, severity and duration of symptoms.