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Social Security updated its Best Practices for Claimants’ Representatives just over a year ago, in April of 2023. I was reminded of them by my recent letter from an ALJ, which set forth that particular judge’s best practices for a hearing.

This list of best practices is required reading for Social Security disability lawyers. It is worth revisiting once or twice a year, to ensure you are following best practices.

Without a doubt, following best practices makes you a more effective advocate for your clients.

I recently had a disability case with a judge from the Albany hearing office. That judge sends out a letter 30 days before a scheduled hearing setting his expectations for evidence at the hearing. I really liked the letter. It is not standard practice for most judges to send a prehearing letter like this, at least not in my area. It should be standard practice, though, because is was super helpful to get. I will explain below.

Here is the actual judge’s letter. Let’s look at it paragraph by paragraph:

Hearing Records: In this section, the judge reminds the Representative that records are due 5 business days ahead of the hearing. This is by regulation. But notice the tone of the reminder. There are no threats from the judge that evidence may be excluded at hearing if not timely filed. There is just an explanation about why timely evidence is important. In the next paragraph, the judge encourages Representatives to obtain a treating source statement.

Briefs: I loved what the judge said about hearing briefs. He gave a concise description of what to include in a brief. This judge will accept a brief 1 day ahead of the hearing. The rule is 5 business days ahead of the hearing. I wish more judges would specify when they want the brief. In the absence of that guidance, however, the earlier the brief is submitted the better.

Claimant’s Medications (SSA HA-4632): This judge wants a medication list in all cases. Fair enough.

OTR Requests: The judge wants OTR requests at least 7 days prior to the hearing, and only in appropriate cases. Makes sense. The judge also said to please call his clerk if an OTR is filed, and let the clerk know. That makes sense too; an OTR should be reviewed promptly. Since I had filed an OTR request in my case with this judge, I called the clerk to let them know. I got a call back that afternoon, saying that the OTR request had been granted. Had the letter not had the instruction to call the clerk, I would not have done so and the OTR request likely would not have been acted on so quickly.

Post Hearing Records: If the record is left open after the hearing, records should be accompanied by a letter brief explaining the purpose, relevance, and impact of the new evidence.

As I said, this letter was very helpful for me, because the case was with a judge with whom I was not familiar. We have a sense of these issues with the judges we see regularly, but it was nice to see what a judge expects written down ahead of the hearing.

In Barnhart v. Thomas, 540 U.S. 20 (2003), the Supreme Court held that past relevant work (PRW) does not have to exist in significant numbers in the national economy to be considered at Step 4 of the Social Security sequential evaluation.

Here is the story: Pauline Thomas worked as an elevator operator for six years, until her job was eliminated. She eventually applied for disability insurance benefits under Title II of the Social Security Act. After a hearing, an administrative law judge denied her disability claim, finding that Ms. Thomas had the capacity to return to her past relevant work as an elevator operator. The judge rejected the claimant’s argument that, since jobs as an elevator operator no longer exist in significant numbers in the national economy, she could not return to her past relevant work.

The Court had to interpret 42 U.S.C. 423(d)(2), which states in part:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy… “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

At issue was whether the phrase “which exists in the national economy” applies to previous work, or only applies to other work. The Court decided 9-0 that the phrase did not apply to previous work. As a result, the Court upheld the SSA’s finding that the claimant could return to her previous work, even though those jobs don’t exist in significant numbers anymore.

The holding of the Thomas case remains in force. The phrase “which exists in the national economy” does not apply to past relevant work, so there is no requirement that a past job exist in significant numbers. As a practical matter however, by reducing the past relevant work period to 5 years, Social Security will rarely need to consider obselete jobs like elevator operator as PRW. That was one of the stated goals of the rule change.

Social Security published a final rule in today’s Federal Register, reducing the period for past relevant work (PRW) from 15 years to 5 years. The rule becomes effective June 8, 2024.

Step 4 of the disability sequential evaluation considers a person’s ability to perform their past relevant work (both as actually performed and as generally performed in the national economy). At Step 5, Social Security considers whether a person has acquired job skills from past relevant work that would transfer to a significant range of other jobs. The new rule will narrow the jobs included in PRW to just the past 5 years. It is a signifant change in the rules.

Additionally, the final rule states that Social Security will not consider past work that started and stopped in fewer than 30 calendar days to be PRW.

6/05/2024 Update: The rule will become effective on June 22,2024.

There is an interesting wrinkle on the issue of missed days at work in the Second Circuit case of Sczepanski v. Saul, 946 F. 3d 152 (2nd Cir. 2020). That case probably merits wider attention.

During the ALJ hearing in that case, the vocational witness was asked about tolerated levels of missed days, specifically during the probationary period of a new job. The vocational witness testified that missing just one day per month would not be tolerated during the probationary/training period. The ALJ, however, declined to specifically consider limitations in the probationary period. The Second Circuit remanded the case, finding that the claimant’s inability to complete a probationary period of a new job was relevant to the Step 5 evaluation of whether the claimant could perform work in the national economy.

Last Spring, three years after the Second Circuit decision, Social Security issued an Emergency Message (EM-23021) for pending disability cases that may be affected by the decision. There is an excellent post by the Empire Justice Center on the topic.

Often at a Social Security disability hearing, there is testimony from the claimant and the vocational witness about missed days at work.

Many disability claims at the hearing level are decided on the basis of missed work days. This is because a claimant’s symptoms and limitations often do not fit neatly into Social Security’s physical RFC categories. And for mental impairments with symptoms that are not at listing-level severity, the issue of missed days is sometimes the most practical basis for an award of benefits.

Claimants frequenty have “bad days,” when their symptoms flare. For some it is more often than not, but for others it might be a bad day every week or two. Quantifying these bad days, and preparing the client to testify about this issue, is an important part of the preparation for hearing. Any supporting evidence of bad days, beyond the claimant’s testimony is highly relevant, and can help to persuade the judge on this issue. That is why I ask some of my clients to keep a journal.

Typically, a vocational witness will testify that 1 absence from work a month would be tolerated by employers, but that two or more absences would not be.

Social Security relies primarily on medical evidence to evaluate disability claims. However, they also look at nonmedical evidence, including the forms that claimants complete during the disability evaluation process. See 20 CFR 404.1513(a)(4).

Nonmedical evidence can also include a statement from parent, spouse, other family member, or a friend. That statement is typically 1 or 2 typed pages. It should be typed; don’t make the judge read your handwriting! It often tells the story of how the claimant used to be, what changed medically, and what life is like now.  There is a genuineness to these statements, and they are often very moving. When you have the right person with the right story to tell, it can be powerful evidence.

For example, I have a case where my client simply is unable to perform their daily activities. Their mother comes to the home several times a week to clean, prepare meals, and do whatever needs to be done, because the client simply cannot do it. The typed statement from the mother is strong evidence regarding the claimant’s daily activities, which address the severity of their functional limitations. Presenting that evidence as a narrative, in the mother’s own words, is much more powerful than providing the same information on one of Social Security’s forms.

The statement should be in the record well ahead of the hearing, so it is there when the judge reviews the claim prior to the hearing. 

Social Security now provides a check sheet, in the form of an online fillable PDF, for on the records requests.

An “on the record” (OTR) request asks Social Security to grant your case on the record without a hearing. This request is for claims awaiting a hearing at the Office of Hearings Operations (OHO). On the record decisions can only be fully favorable. You cannot lose your case on the record. Rather, if the OTR request is denied, your claim simply stays in line for a hearing.

OTRs are favored by Social Security, when appropriate. Why go though the hearing process, and all the work to prepare a claim for hearing, if the claim is definitely going to be granted? Cases granted on the record free up resources for other claims.

In my view, OTR requests should only be filed in a minority of cases, where a favorable result is mandated by the evidence and by Social Security’s rules and regulations. The medical evidence in the record should be up to date before an on the record request is filed.

An OTR request is certainly appropriate 1) if the claimant meets a listed impairment, or 2) if PRW is clearly precluded at Step 4 and the claim would be decided favorably at step 5 by direct application of the Medical-Vocational Guidelines. Such claims are clear-cut winners. Claims that require a decision based on subjective evidence (such as the level of the claimant’s pain), or claims that would require vocational evidence, are not strong candidates for an on the record decision.

Next time you are considering an on the record request, check out the check sheet.

I first starting tracking allowance rates on this blog over 15 years ago. Back in 2008 and 2009, ALJ allowance rates were steady at 63%. From that level, there has been a significant slide in allowance rates at the ALJ level:

  • 62% in 2010
  • 58% in 2011
  • 53% in 2012
  • 48% in 2013
  • 45% in 2014
  • 45% in 2015
  • 46% in 2016
  • 47% in 2017
  • 45% in 2018
  • 45% in 2019
  • 49% in 2020
  • 51% in 2021
  • 51% in 2022
  • 45% in 2023

To be fair, allowance rates at the initial level of review have crept up from the 2010 baseline of 35% of initial claims to 38% in 2022 and 39% in 2023. Since there are many more initial claims than claims at the hearing level, it is a notable increase.

Those of us practicing Social Security disability law are well aware of the changes in allowance rates at all levels over the past 15 years. ALJ allowance rates slid downward in the years after 2010, stabilizing at around 45%. They trended up slightly during the COVID era, and are now back down to 45% again, which seems to be the new baseline.

This is not just an abstract discussion. With 200,000 to 300,000 claims at the hearing level every year, the reduction of allowance rates means tens of thousands of claimants have their disability claims denied instead of granted each year. Not every disability case is a clear winner or a clear loser. For those claims in the middle, the chances of receiving benefits at the hearing level are now significantly lower.