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Every now and then, you just have to savor a victory.

I had a hearing recently in Boston for a client with severe symptoms of chronic lyme disease, and the claim has now been granted. I spent a great deal of time working on the case, and even more time worrying about it as the hearing approached. I am elated with the result.

The two interesting aspects to the case are that the disability claimant had been working successfully as a physician before becoming disabled due to her symptoms, and also (and this was a huge potential stumbling block) the claim had a date last insured (DLI) of March 31, 2004. Yes, that's 2004.

Fortunately, the client had an extensive record of medical treatment dating back before the DLI, and were able to obtain retrospective opinions from two specialists who treated our client for many years around that time. Further, we were also fortunate to draw a lyme-literate administrative law judge, who understood the cognitive impairments that can occur when lyme disease is undiagnosed/untreated for years.

The judge definitely made the correct decision in this case.

I am pleased for our client, and for the positive difference that Social Security disability benefits will make in her life. I am pleased that the system worked the way it should work; justice was done. And I am pleased that my efforts, and the efforts of my peerless staff, achieved an remarkable outcome for our client.

Social Security published today new Ruling 12-02p, which is called “Title II and XVI: Evaluation of Fibromyalgia.”

Upon first read, the ruling seems to raise the bar for fibromyalgia as a medically determinable impairment. The ruling states:

We cannot rely upon the physician’s diagnosis alone. The evidence must document that the physician reviewed the person’s medical history and conducted a physical exam. We will review the physician’s treatment notes to see if they are consistent with the diagnosis.

It seems that the SSA wants the fibromyalgia diagnostic criteria to be spelled out in the claimant’s treatment notes before a fibromyalgia diagnosis can become a medically determinable impairment. Unfortunately, doctors don’t tend to keep records that way.

This new ruling will play a central role in fibromyalgia disability cases, starting today. You need to measure the medical evidence you have against the requirements of the ruling. You may need to send a claimant back to the rheumatologist for an exam, to document physical findings. And of course, you should address the ruling in your prehearing statement.

For the forseeable future, it appears that ALJ allowance rates for disability claims will be lower than they were from 2005 through 2010. Time will tell where falling allowance rates stabilize. My prediction is that we will see the rate of favorable decisions level off at about 50% nationally.

What does this new environment mean for those applying for disability benefits?

1. Ongoing medical care is crucial. Current medical treatment notes are central to a successful disability claim. The easiest claims to deny are those that do not have adequate medical documentation, and lack of ongoing medical treatment is frequently cited by administrative law judges as a reason to deny a claim. To be blunt, no treatment usually means no benefits.

When there is a lack of treatment due to no medical insurance, or poor insurance that doesn't cover everything, or if the copays are too much to afford, you have to be sure to explain this to the judge. See Social Security Ruling 96-7p.

2. Representation is always important, but now more than ever. You need to do everything possible to improve your claim for disability benefits. 

Unfortunately, finding a lawyer is going to be more difficult for some, because attorneys have responded to the changed environment by screening cases more rigorously. Cases that are winnable but problematic are getting screened out. I know this is happening by the calls I get from disability claimants who have been turned down by other lawyers. 

3. I asked a few of my colleagues to provide their tips for claimants:

 

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Ten steps to prepare for your Social Security disability hearing

 

With June well behind us, we are halfway through the calendar year and three-quarters through the Fiscal Year for Social Security, which ends September 30th. It is a good time for a look around, to see where we are with Social Security disability claims in the current political and economic climate.

I started the year with a post called "Social Security disability benefits getting harder to obtain," and that has been proven to be true. Allowance rates are down sharply. And anecdotally, even when a favorable decision is received, onset dates are under pressure.

I handle Social Security disability claims primarily in Maine and New Hampshire. I have looked at the statistics for allowance rates of all our administrative law judges (ALJs), and they are down almost across the board, some as much as 20%. Judges who were granting 85% of claims last year are now granting 65% of claims. That is a huge change.

The statistics show that allowance rates for the ALJs in my two ODARs (in Manchester, NH and Portland, ME) now range from 33% to 75% favorable decisions. Two years ago, the lowest judge in the group was at 60% favorable.

I have seen it in my practice. Some close cases have gone the wrong way. It is very frustrating, because these are deserving claimants with claims that have real merit. Similar claims were being granted a year or two ago. 

When we see the full FY 2012 statistics, the extent of this sea change will be apparent.

For reference, see the 2011 Waterfall Chart.

When I talk with clients and potential clients, I often hear stories about their inability to find work. Unfortunately, whether or not you can realistically get hired for a job is not a consideration for Social Security disability benefits. Instead, the SSA must find that you are unable to work before you will be awarded disability benefits.

There is an important distinction in Social Security disability practice between the inability to find work and the inability to perform work. The SSA has a regulation on this issue. See 20 CFR 404.1566, which states in part:

We will determine that you are not disabled if your residual functional capacity and vocational abilities make it possible for you to do work which exists in the national economy, but you remain unemployed because of—

(1) Your inability to get work;

(2) Lack of work in your local area;

(3) The hiring practices of employers;

(4) Technological changes in the industry in which you have worked;

(5) Cyclical economic conditions;

(6) No job openings for you;

(7) You would not actually be hired to do work you could otherwise do; or

(8) You do not wish to do a particular type of work.

At step 5 of the sequential evaluation, Social Security will match your residual functional capacity to the requirements of jobs in the national economy. For the purposes of a Social Security disability determination, it doesn’t matter if no employer would hire you.

You may be unemployable as a practical matter, but still not disabled under SSA rules. That is why disability lawyers focus on developing evidence of your functional limitations. We must demonstrate your inability to maintain employment, regardless of whether or not an employer would hire you.

Likewise, when I prepare clients for their hearings, I always discuss the answer to the question “Why can’t you work?” An answer unrelated to your functional limitations is not an appropriate answer to that question.

When Social Security denies a claim for disability benefits at the initial or reconsideration level, the SSA provides a personalized "Explanation of Determination," usually on the last page of the denial letter. The denial letter is otherwise a form letter. Often my first contact with a prospective client is after that person has received a letter from Social Security denying disability benefits. 

The reasons given in these explanations for denying benefits often leave the recipients bewildered and sometimes, really angry. Because the reasons given for the denial are often completely disconnected from the claimant's reality. The explanations are occasionally so wrong that it would be funny, if it weren't so sad. The explanations typically do not meaningfully address the issues that keep the person out of work. Needless to say, these denial letters cause a significant amount of distress to claimants.

Unfortunately, I see this all the time.

Here are 4 things to keep in mind if you receive a letter from Social Security denying your application for disability benefits:

1. Realize that it is a form letter. The explanation of determination may be wrong, and will not reflect the severity of your symptoms. The letter is not meant to be insulting.

2. Realize that the letter is not binding if you appeal. At your hearing, the admininstrative law judge will make a new decision on your disability claim, regardless of the wording of that denial letter.

3. The letter sometimes contains helpful information. It can provide a reference point for how Social Security views your claim. The letter lists the medical sources that were considered in the decision, so you know that you need to obtain any missing records that were not reviewed. Often the denial notice will state that you could return to a specific past job, or do other work. This information will give a disability lawyer a starting place to evaluate your claim, and make early decisions about what evidence will be necessary to get a favorable result at hearing.

4. Realize that you may need some help. If you don't already have the assistance of a Social Security disability attorney, it's time to talk with one.

Try not to get upset or discouraged by a denial letter. Take action instead! Make sure to appeal the denial within 60 days. 

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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.

In the New England states, we are fortunate to receive 75-day notice of disability hearings. This is a carry-over of the DSI process which was implemented in SSA Region I. We also must submit evidence 5 business days ahead of the hearing. See 20 C.F.R. 405.331. In the rest of the country, you only receive 20 days notice of administrative law judge hearing, but you can bring new evidence to the hearing, and it must be considered by the ALJ.

Ideally, all your evidence is submitted well ahead of the hearing. This is one of the best practices of Social Security claimants' representatives. Nevertheless, sometimes there is an important piece of evidence, usually a medical record or a treating doctor's opinion, that could not be obtained earlier.

The regulation specifies 5 business days. Weekends and holidays are not counted. And when counting the 5 days, our judges at the Portland, Maine ODAR do not count the day of the hearing. As a result, the 5-day rule is really an 8-day rule. For a hearing that is held on a Thursday, your evidence must be received by Wednesday of the previous week. This is a trap for the unwary. 

Continue Reading In New England, the 5-day rule is really an 8-day rule

Photo: Bridget and cousin Grace at the beach

Every other Friday, I link to articles of note regarding Social Security disability.

 

The Work History Report is important to your Social Security disability claim, because most cases are decided on a medical-vocational basis. Everyone understands the medical part, which is your health conditions (including mental health conditions) that prevent you from working. However, the medical aspect is only part of the disability analysis.

The other part of the disability analysis is the vocational part, which is your work history as described in the Work History Report, as well as your age and education.

The Work History Report is particularly important to claimants who are approaching age 55, or older. These disability claims tend to focus on the ability to do your past work, and whether or not you have acquired transferable skills. As a result, the Work History Report takes on a monumental importance, because it will be used to assess the physical and mental requirements of your past work.

Avoid Common Mistakes

Claimants often spend all their time on the first page of the report, which asks you to list the jobs performed during the past 15 years, and the dates of employment. People labor over this part, but then when they get to the pages asking them to describe the requirements of each job, they speed through and are not meticulous or thorough. This is a mistake.

The pages of the report that ask you to describe the requirements of your past work are the important part of the work history report. If you do not describe the work requirements accurately, Social Security may conclude that you can still perform that past relevant work. You should fully describe all of the requirements of the work you have performed in the past 15 years. 

Continue Reading How to fill out a Social Security Work History Report

I cannot overemphasize the importance of meeting with clients as early as possible in the disability claim process. You rarely get a complete picture of a claim until you meet the client in person.

The more time you spend talking with the client, the better the claim is developed and presented to the judge.

Whenever possible, client hearing preparation should be face to face with the client. I find one thing often leads to another with these conversations, and you discover interesting details that tend to demonstrate disability.