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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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.

Severe depression is a basis for Social Security disability. Depression is analyzed under listed impairment 12.04.

Sometimes a patient's depression is so deep, and/or so unresponsive to medication, that electroconvulsive therapy (ECT) is prescribed. It is not a procedure to undertake lightly, because the risks and potential side effects can be significant.

Having representing several Social Security disability clients who have undergone ECT, I have found that ECT can make an important difference in your disability case.

For one, it tends to validate the severity of your depressive symptoms in a way that routine medical notes and Social Security function reports cannot. ECT is something of a treatment of last resort, and it is not usually considered unless the depression is severe and continuing.

Second, side effects of ECT are not uncommon. Short-term memory, cognitive thinking and concentration can all suffer. Many disability claimants suffering from severe depression have these same symptoms without ECT. But when ECT is involved, these impairments seem to be given more weight.

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). 

Until a few years ago, we all used to receive a Social Security statement in the mail each year. The statement contains a record of the earnings upon which you have paid Social Security taxes over the years, and an estimate of the benefits you may earn as a result.

To save money, these statements are now longer mailed. However, they are available online at ssa.gov. Anyone considering a disability claim should go online to obtain a copy of the statement. 

The statement will show your estimated disability benefit should you become disabled, as well as the family maximum for benefits, should you have children under the age of 18. Of course, the statement also shows your estimated retirement benefit.

The statement is a very handy guide for the Social Security beneifts you have earned. I urge you go check it out. You can create an account and then view your statement by clicking on this link: my Social Security.

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 is Reconsideration. 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.

For several years, Social Security has had a list of medical conditions that qualify for compassionate allowances. If you have one of these diagnoses and have stopped working, then the SSA has an expedited process to establish disability.

In general, compassionate allowance claims are granted before a disability lawyer ever becomes involved. So it is not something we see that often.

This week I worked with a new client on an initial application for Social Security disability benefits. The gentleman has spinocerebellar ataxia, a degenerative nerve condition which is on the list of SSA compassionate allowances. He cannot perform his past relevant work, and is over the age of 55 (although this should not matter, since he clearly meets listed impairment 11.17A). See how Social Security evaluates disability claims.

This gentleman just stopped work in the past few months, so there is unlikely to be an award of back disability benefits (due to the 5-month waiting period) to support a contingency fee. As a result, my work with him is likely to be pro bono. However, it is an honor to spend time with a person facing progressive loss of function with such understanding and dignity.

I flagged the claim as a compassionate allowance claim when I submitted it to Social Security. I am curious to see how quickly the claim gets granted. I will let you know.

3/31/2014 Update: This compassionate allowance claim was processed immediatey by the Saco Social Security field office, and a claim examiner has already been assigned by DDS. Typically, a claim examiner would be assigned a month or two after filing, not a week. This claim is moving fast.

Social Security is working on an updated version of its Best Practices for Representatives at the Appeals Council (link opens PDF of the new draft). This draft is much more extensive than the current version, and is worth reviewing.

Thanks to NADR for circulating this new draft. If you have comments on the draft, they can be emailed to Patricia.Jonas@ssa.gov.

Since we are discussing the Appeals Council, here is a copy of the always helpful Appointed Represesentative Guide to Requesting Appeals Council Review (link opens 2-page PDF)