Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.
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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.

Binder & Binder, a nation-wide firm of advocates for those seeking Social Security disability or Supplemental Security Income benefits, is roughly $40 million in debt and is preparing declare bankruptcy under Chapter 11, according to the Wall Street Journal. 

For those of us who represent clients before the Social Security Administration, this is quite a milestone.

Three years of sharply lower allowance rates have taken their toll. Additionally, backlogs at the hearing offices have increased significantly over the past year, so fewer cases are getting scheduled for hearings. Fewer hearings and lower allowance rates is a nasty combination. Add high overhead and high advertising costs, and you have a recipe for bankruptcy. Here is attorney Charles Hall's take on the Binder situation.

I won't miss Binder. I have heard too many stories from its former clients about the level of representation received. In my opinion, disability claimants are better served by local attorneys who develop a relationship with their clients, have a working relationship with the administrative law judges in their area, and work frequently with the staff at local Social Security offices.

Nevertheless, Binder's apparent collapse is the latest evidence the grim new reality in the world of representing clients before the Social Security Administration. It is a tough time to be representing those claiming Social Security disability benefits. All of us have had to make adjustments in our practice.

For those of you applying for disability benefits, you cannot simply trust the system to do the right thing anymore. Good representation is more important than ever.

12/19/2014 Update: The bankruptcy has been filed. During its Chapter 11 reorganization, Binder projects it will reduce its staff by 60% or so over the next 2 years. 

1/02/2015 Update: More Binder & Binder updates, courtesy of Charles Hall. Apparently Binder has stopped ordering medical records for its clients, which if true, is outrageous. And not surprisingly, a lot of Binder employees will be losing their jobs.

Substantial Gainful Activity (SGA) is the amount of money you can earn through wages and still be eligible for Social Security disability benefits. The SGA amount is important for two classes of people:

A person applying for disability benefits must have (or be expected to have) a period of 12 consecutive months with wages below SGA (subject, of course, to the rules for unsuccessful work attempts and Impairment Related Work Expenses).

A person receiving Title II disability benefits can earn up to the SGA amount and still receive benefits (be sure to also take a look at the trial work rules).

The SGA amount is adjusted each year for inflation. Here is a table showing SGA amounts by year.

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There are several links on the sidebar to Important Topics. If you don’t find the needed information there, you can search this blog, which has over 600 posts on Social Security disability topics. The search box is located near the top of the sidebar.

 

Having a claim for Social Security disability benefits means being out of work (or at the very least, living on a limited income). That often means that a person can no longer afford to live where they were living before, because there is insufficient money to pay the rent or the mortgage.

Some claimants have a spouse who is working, or sufficient resources to stay where they are; others are not so fortunate, and may have to move to another place to live with family or a friend.

Moving to a new place does not matter to the Social Security Administration. It will transfer your pending disability claim to your new jurisdiction. However, a big move can cause problems with proving your disability claim, because you will be ending treatment with doctors who may know you very well. Once treatment has ended, it is very difficult to obtain a medical source statement or opinion letter from your previous doctor.

To lessen the impact of your move on your disability case, get an opinion from your treating doctor(s) before you move. As I said above, if you do not get an opinion while you have an ongoing doctor-patient relationship, it is unlikely you will be able to get one later. So get an opinion while you can, and your disability claim will be stronger.

Once you relocate, re-establish medical care as soon as you can. A big gap in your medical treatment will not help your disability case. Find a new doctor right away.

And be sure to find good local representation for your Social Security disability 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.

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.

Columbus Day is one of those stealth federal holidays that does not get the attention of Memorial Day or Labor Day. It is relevant for those of us practicing Social Security disability law in the Region 1 (the New England states), because we have a 5-day rule for new evidence.

The 5 days excludes weekends and holidays. So if you have a hearing during the week following Columbus Day, you must take the holiday into account when figuring the deadline for new evidence.

Our office will be closed for the holiday. But our evidence for the upcoming cases has already been filed.

 

Social Security recently changed its rules regarding videoteleconferencing (VTC), and is now sending notices regarding VTC at an early stage of the hearing level. The new notice requires a decision within 30 whether or not to object to a video hearing. Previously, the objection to VTC was not made until the time a hearing was actually scheduled.

By moving forward the date by which an objection can be made, the issue to VTC or not is separated completely the identity of your judge or the timing of the hearing. Which in my view, makes it much easier to say no to a video hearing.

The SSA likes VTC, which gives it lots of options in terms of providing hearings from central locations. VTC is an effective way to clear cases in hearing offices that have substanital backlogs of pending claims. There are national hearing centers now, where administrative law judges hear cases all day long by video from somewhere else in the country.

I believe SSA expected that moving the date for an objection forward would lead to fewer objections to video hearings. In my view (and others), it will have the opposite effect, and Social Security will receive many more objections to VTC hearings.

I have hearings in Maine and New Hampshire (and occasionally in Massachusetts). I know the local judges, and always prefer and in person hearing. In general, I will be objecting to VTC hearings, because I do not want the possibility of my cases being heard by a distant judge with whom I am not familiar, and who is unfamiliar with our stoic New England claimants.

Some of my clients live in more remote parts of the state, and expect to have a video hearing anyway, so that they do not have to travel as far. For now, I expect that these claims will be kept in the local hearing office, and will not object to these clients having a video hearing. However, if the local hearing office starts farming out video hearings to other hearing offices, I will revisit that issue for future cases. 

I suppose like anything else in law, you need to make a case-by-case determination. But in the abstract, I think objecting to a VTC hearing under this new system is a good idea.

Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.

If you would like assistance with your Social Security disability claim, please contact Gordon Gates or complete a Free Claim Review form.

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.

The latest 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.