Every other Friday, I publish links to articles of note regarding Social Security disability and related topics:
It has been about a year since the SSA instituted a policy of not disclosing in advance of the hearing the identity of the administrative law judge assigned to a particular disability claim. The policy was aimed, it appears, at those declining video hearings with judges with a poor history of granting disability claims (an in-person hearing remains the perogative of the claimant).
I wrote about the new policy in a post called ALJ Unknown. At that time, I did not think the new policy would matter that much. I know my local judges, I wrote, and I can adjust to a particular judge on the day of the hearing. Well, a year of experience has proven me wrong. It really does matter, and the more experience one has with the local ALJs, the greater difference it makes.
Concern over the policy reached the Senate Appropriations Committee, which directed the SSA to evaluate alternatives to the policy, and report back on November 1, 2012. As far as I can tell, there has been no response to that directive.
The ALJ nondisclosure policy was at the direction of Social Security Commissioner Michael Astrue. I think he has done an excellent job as Commissioner, particularly given the hand he was dealt during his 6-year term. But in response to criticism of this new policy, Commissioner Astrue just dug in.
Commissioner Astrue's term is up in January. He has clearly stated that he is not seeking another term. Maybe he is just done. Or maybe he is tired of what he views as carping by disability lawyers about the policy. But it is still surprising to me that there has not been a response to the Appropriations Committee.
I just want to do the best job possible of preparing a case for hearing. I can do that job better if I know who the judge will be. That is the extent of my concern over this policy. I hope the new Commissioner rethinks it.
Thanksgiving remains my favorite holiday. Here is a little reading for the holiday weekend:
Social Security field offices are starting to fall behind on their work. I am noticing it particularly with SSI payments, which are processed by the local offices. Some SSI claims are taking months to process.
There is a hiring freeze at local Social Security offices. So when an employee leaves due to retirement, promotion or other reason, that person cannot be replaced. The hiring freeze has been in place for a while, and it is due to budget constraints. It is starting to take its toll. Here in Maine, the Portland local field office, which is perhaps the busiest district office in the state, is not keeping up with the workload.
To allow more time to catch up on the backlogged work, the hours during which the Social Security field offices are open to the public have been reduced. Offices are closed to the public at 3:30 now, and beginning January 2, 2013 the district offices will close on Wednesdays at 12:00 noon. Same idea for this Friday, the day after Thanksgiving: the local offices will be closed to the public, but the staff will be working to catch up.
As stated by the press release announcing the change, many Social Security services do not require a visit to a local office. Routine matters can be handled online. Nevertheless, people expect government offices to be open during normal business hours. I hope these reductions are temporary.
Education that "allows direct entry to skilled or semi-skilled work" is one of the variables used in the medical-vocational guideines. It rarely comes up, but I had a case last month where the claimant recently completed vocational training for medical billing (apparently, a growing field). That education allows direct entry to skilled work. If that skilled work is within the claimant's RFC, that recent education can destroy an otherwise favorable result.
This rarely comes up for a few reasons:.
Nevertheless, a person without transferable job skills who would otherwise grid favorably at step 5 using the medical-vocational guidelines, can lose at step 5 due to recent education that allows direct entry to skilled or semi-skilled work. It is worth keeping in mind, because it does come up now and then.
Social Security must consider your combined impairments to determine whether or not you qualify for disability benefits.
At step 4 of the sequential evaluation process, Social Security evaluates your ability to do your past relevant work. At step 5, the SSA considers evaluates your ability to do other work.
You can use different impairments for steps 4 and 5. This is particularly important for those claimants age 55 and over.
Social Security treats people differently depending upon their past work, or vocational background. Sometimes one specific functional limitation will preclude your past relevant work, but would not preclude other jobs.
For example, a limitation to simple instructions, as a result of anxiety or depression, precludes most office work or other semi-skilled work. Then at step 5, a person age 55 or over with physical impairments may be able to rely on the medical-vocational guidelines to demonstrate disability.
Just keep in mind that the limitations that rule out other work at step 5 may be quite different than those that rule out your past relevant work at step 4. That is why Social Security's duty to evaluate the combination of your impairments is so important.
Every other Friday I highlight articles of note regarding Social Security disability:
Each month, I shine the spotlight on a previous post that discusses an issue regarding Social Security disability law that remains highly relevant today.
Social Security classifies the physical exertion requirements of jobs as sedentary, light, medium, heavy and very heavy.
The sedentary exertional level is an important landmark in the Social Security disability landscape.
A disability claimant age 50 or over, who is unable to perform his or her past relevant work, who is limited to unskilled sedentary work will win at step 5 via the medical-vocational guidelines.
Please read previous post: Sedentary Exertional Level.
The hearing with a Social Security administrative law judge is critically important, because it is the only time that you are in the same room with the person deciding your claim for disability benefits.
The primary purpose of the hearing is to take your testimony. Many clients do not realize this, and have an expectation that the hearing is when their lawyer puts on the case. The client may assume that the lawyer will describe their functional limitations to the judge, backed up by the medical records and medical opinion evidence, and that the client is present mainly as an observer. That's not how it goes.
You will be testifying at your hearing. This means that you will be answering questions, from the judge and your lawyer. The judge wants to see you, hear you, and understand the basis of your claim for disability. And the judge wants to address any inconsistencies in your file.
At the end of the hearing, the person applying for disability benefits will have done most of the talking. And that is the way it should be.
Just prior to a recent hearing for a Social Security disability claim, the administrative law judge told me his specific concerns about the case. I wish that would happen before every hearing.
In this particular claim, there was a disparity between the objective testing of the claimant's vision in the doctor's office and the real-life experience of the claimant, who is approaching blindness. Once this inconsistency was addressed to the satisfaction of the judge, the judge quickly granted the disability claim, noting the claimant's excellent work record prior to the onset of disability.
Addressing inconsistencies in the claim file is the most important aspect of a disability hearing. Spotting inconsistencies requires a thorough review of the disability claim file and an experienced eye. A good knowledge of your client's personal story helps to address any inconsistencies you may find.
One problem is that often you do not know what the judge may view as an inconsistency. It is not always apparent, as it was in the case described above. So having the judge tell you in advance of the hearing is a significant help.
