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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 am always intrigued by the differing DDS allowance rates among the several states. Take a look at the SSA's table showing 2012 allowance rates by nation, region and state (link opens 3-page PDF).

Is your state above or below the national average? And has the rate changed since last year? Check out the 2011 DDS allowance rates. 

Each month I highlight articles of note regarding Social Security disability. This month brought several stories in the mainstream press regarding the Social Security disability program. Links to three of them are below:

Social Security disability lawyers must bear in mind that part-time past work at SGA can be past relevant work. I had this issue come up in a hearing recently, and it could have derailed the claim, had I not been prepared for the issue.

Social Security considers whether or not you can return to your past relevant work at step 4 of the sequential evaluation process. Even part-time past work is past relevant work if the wages were above the level of substantial gainful activity and you performed the work long enough to learn it. See Social Security Ruling 96-8p, footnote 2. This can be a trap for the unwary, because it does not come up that often.

When Social Security determines your residual functional capacity, it must consider your ability to work on a “regular and continuing basis,” which means 8 hours a day, for 5 days a week, or an equivalent work schedule. See Ruling 96-8p. However, part-time past relevant work performed at SGA is an exception to this rule.

Sometimes workers suffering chronic pain reduce their hours from full-time to part-time to try to stay employed and manage their pain. If this part-time work is above the SGA level, it can cause a problem for an eventual Social Security disability claim.

The 2012 waterfall chart has been published by the Social Security Administration, and is available on its website: 2012 Disability Decisions (link opens a PDF).

The chart shows that the ALJ allowance rate for Social Security disability hearings is down to 52% nationally. This should not be surprising to anyone practicing in this area, but it neverthess reveals a remarkable adjustment to ALJ allowance rates, and continues the downward trend reflected in the 2011 waterfall chart. Overall, there has been a 10% reduction from the baseline year of 2010, when allowance rates nationally were at 62%.

Of course, the 52% is the national average. Regions of the country vary, and the allowance rates of individual judges vary even more.

The lesson for claimants from the waterfall chart is to appeal your denial. The statistics demonstrate that those who persevere with their claims have a better chance of receiving disability benefits. The hearing level remains your strongest opportunity to obtain a favorable determination.

Sometimes when Social Security denies a disability claim after an initial review, the denial letter states that the disability applicant could return to past relevant work. In addition to developing the medical evidence, these claims require a detailed look into the vocational evidence.

Social Security treats people differently based upon their vocational backgrounds. If the SSA determines that you have the capacity return to your past relevant work, your claim will be denied at step 4 of the sequential evaluation.

I had a case recently where the claimant did not fully describe the physical requirements of his past relevant work (he was not represented by an attorney when he completed the Work History Report). It was a job he did 13 years ago, and he would be unable to do it today. Perhaps because the job was so long ago, on the Work History Report he only described the part of that job performed was a sedentary desk job, leaving out the aspects of that job that were more physically demanding. Given his residual functional capacity and his description of that past job, it appeared that he was still able to perform that job. His disability claim was therefore denied.

After interviewing this new client and reviewing the disability claim file, it was apparent that updating the vocational evidence would likely resolve the case. I filed a statement from the claimant providing complete details on the job in question, and filed an on the record request. The claim was granted after just two months at the hearing level.

For those applying for disability at age 55 or older with physical limitations, the primary focus of the claim is often past relevant work. In such claims, developing the vocational evidence can be as important as developing the medical evidence.

Here in Maine, we have the original L.L. Bean retail store, which has a well-deserved reputation for outstanding customer service and a knowledgeable staff. We visited over the weekend, and got outfitted for Spring tricycle season with our (almost) 3-year old daughter.

Whenever I experience great customer service, as we did at the L.L. Bean store, I think about the guidance that we provide to our clients at our Social Security disability law firm.

A lawyer should an experienced guide for your Social Security claim, someone who has been through the process hundreds of times with others. You should get the benefit of that experience, just as our daughter Bridget did when fitted for her bike helmet at L.L. Bean.

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Get help from a lawyer 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 a free consultation.

As I review Social Security disability files to prepare for hearings, I have noticed that the “Summary Earnings Report,” which is found in the “D” exhibits in the disability claim file, is sometimes incomplete. Lately I have had several claims where the report only dates back 15 years from onset.

In one respect, an earnings report dating back 15 years prior to onset makes sense. Past relevant work goes back 15 years. So an earnings report dating back 15 years makes sense in terms of establishing whether or not past work was performed at the level of substantial gainful activity. For this reason, the “Detailed Earnings Query” in the file only goes back 15 years.

But that is not the only role played by an earnings record. Workers with an excellent work history are entitled to a favorable credibility inference.

A claimant’s credibility is at the heart of a Social Security disability claim. The judge must determine if the claimant’s subjective symptoms are as severe as alleged. This necessarily requires a credibility determination.

A strong work record bolsters the conclusion that, since the claimant has worked for 30+ years, he or she would be working currently if able. A person doesn’t work for 30 years and then stop and apply for disability for no reason. It is a common-sense conclusion. As a result, the work record affects the administrative law judge’s determination whether or not the claimant’s impairments are preventing continued work.

To support the favorable inference however, you should have the complete earnings history, not just the last 15 years. So make sure it is in the file somewhere. Often the claim file will contain a “certified earnings record” that shows complete earnings. If not, request a complete report from the local office.

As always, mention the strong work record in you hearing brief and in your opening/closing statement.

Sequestration's mandatory budget cuts are scheduled to take effect tomorrow, March 1, 2013.

The press has reported that "Social Security will not be affected." This is not completely accurate. While it is true that the payment of benefits will not be affected, the sequestration cuts will affect all other aspects of the SSA, including the day-to-day operations of the agency, by reducing its administrative budget.

According to the SSA Fact Sheet (sorry, no link yet) on the effect of sequestration on SSA's operations, field office and hearing office operations will be impacted. SSA estimated that sequestration will result in longer waits in field offices and for the 800-number. Pending levels of initial disability claims are likely to rise, and claimants may have to wait about two weeks longer for an initial disability determination. Sequestration could result in the loss of over 5,000 SSA employees.

All this is in addition to the staffing problems that the field offices already have. There has been a hiring freeze for some time, so when an employee departs, that person is not replaced. Field offices are already closing to the public earlier (3:30 PM most days, and 12:00 noon on Wednesdays). My law office is just down the hall from the Saco, Maine Social Security office, and people are quite surprised to find a government office closed on a Wednesday afternoon.

At the hearing level, claimants may have to wait nearly a month longer for a hearing decision and the progress in reducing the hearings backlog would be eroded. While SSA will try to prioritize reductions to avoid furloughs, they still remain possible. 

Time will tell how much operations are impacted by the sequester.