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At the recent NOSSCR Conference, I attended an excellent presentation by Ohio disability attorney Scott F. Smith on winning cases for Social Security disability. One of the topics covered was a pre-hearing brief for the administrative law judge. Mr. Smith listed several goals accomplished by writing a brief:

Drafting a brief is an endeavor that I believe is essential to setting up a winning case. It helps accomplish several goals:
1. it allows you to go through the evidence in a goal oriented manner so you know what’s in the file;
2. it allows you to organize the evidence in a clear and concise manner to emphasize the strengths and deal with the weaknesses of your case;
3. it allows you a roadmap to have with you in a hearing so that you do not lose your way of what is important;
4. it provides the judge evidence that you have actually reviewed your file before the hearing;
5. it also sets up your arguments and points the judge in the direction for which you want them to ultimately go;
6. it provides a record so that if unsuccessful at the hearing, you can show the Appeals Council exactly what the arguments were and what the judge missed.

Reasons 1 through 3 are particularly important. A hearing brief is essential. Not yet convinced? Here are ten reasons to write a hearing brief.

The hearing brief is subject to the five-day rule, so get it in early. The earlier the better, so it is in the file as the judge first reviews the claim.

At the close of a hearing, sometimes post-hearing argument is needed. Social Security’s rules allow for oral and/or written post-hearing argument, upon request. See HALLEX section I-2-6-76.

I prefer to submit a post-hearing brief, rather than make a statement at the close of the hearing. I think a brief has far more impact.

Post hearing argument is necessary when an important issue has been left unresolved. Sometimes it is the testimony of the vocational witness at the hearing. Response to this evidence is specifically permitted under Social Security Ruling 96-9p, footnote 8. Similarly, the hearing testimony of a medical expert may require a post-hearing response.

Sometimes the judge raises a quirky issue at the hearing. This happened to me recently when the judge wanted to reconcile the claimant’s many absences from work (we submitted attendence records from the last employer) and the lack of cancellations of scheduled medical appointments. He asked the claimant “If you were missing all this work due to your symptoms, why did you only cancel one medical appointment, of many?” The claimant gave a good answer, but I thought the issue deserved a further response. I let the judge know at the hearing that I would file a post hearing brief.

We do so much to prepare for hearings. But follow up after the hearing is sometimes necessary, and can strengthen your case.

The annual NOSSCR conference will be in Washington, DC next week, beginning Wednesday, May 3rd. I am a sustaining member of NOSSCR, and will be there.

The NOSSCR conference is always a good chance to learn, and to get perspectives from others around the country who also specialize in Social Security disability law.

Please say hello if you see me!

Most disability claims are decided on a medical-vocational basis. Sometimes too little attention is paid to the vocational part of the analysis.

At Social Security disability hearings, the administrative law judge will typically give the DDS residual functional capacity assessment as the initial hypothetical question to the vocational expert (VE) at the hearing. I have had hearings where the VE answered that past work was precluded, and that other work would also be precluded by the functional limitations assessed by DDS. Game over! With that testimony, the judge awards disability benefits.

Sometimes the main problem with the determination made by DDS when evaluating a claim for disability benefits is not so much the functional limitations resulting from the claimant’s medically determinable impairments, but rather than vocational consequences of those limitations.

Vocational evidence is particularly important for disability claimants who are 55 years or older. Those claims often are allowed or denied based upon on the nature of the claimant’s past work, whether or not it can still be performed by the claimant, and whether or not the claimant acquired transferable job skills.

The medical aspects of a case are always important. But don’t forget the vocational evidence, because you can win the case that way as well.

There is an organization within Social Security called the Quality Review Board, also known internally as the Disability Quality Branch (DQB). The DQB samples initial and reconsideration determinations from state DDS agencies to ensure that Social Security’s disability rules and regulations are being interpreted and implemented properly by the various state DDS agencies – a quality control function.

The SSA do not notify the claimant or the representative when a case goes to quality review. If your claim is overdue for a determination from DDS, it may be at quality review. The local field office with jurisdication over the claim can tell you if the claim is at quality review. The quality review process often takes 2-3 weeks. The claim is then either returned to DDS for further review, or the DDS determination is left in place, and the claim is transmitted to the local office.

At Step 4 of Social Security’s sequential evaluation, the SSA considers the claimant’s ability to perform their past relevant work, both as actually performed and as generally performed in the national economy. That means that Social Security will evaluate your ability to do the jobs you have had over the past 15 years, both as described in your work history report and as generally performed.

If the job you had as a cashier was more demanding physically than that job is generally, and you could perform the job as generally performed, you will not be awarded disability benefits. On the face of it, this is a fair rule. But in practice, problems arise.

The first problem is that, to determine how a particular job is generally performed, Social Security refers to the Dictionary of Occupational Titles (DOT), a Department of Labor publication that hasn’t been updated since 1991 (and many jobs in the DOT date back to the 1970’s). So the description of a job’s requirements may be woefully outdated. I had this issue at a hearing recently, where an office-type job description in the DOT dated back to before there were PCs in the office, and before the internet. The job today is all about working on a computer and keyboarding, in a way the job wasn’t performed 30+ years ago. It took a lot of cajoling to get the vocational expert at the hearing to acknowledge that the job had evolved over time from its DOT description, and now required extensive use of the hands (which was a problem for my 63-year old client with severe psoriatic arthritis).

The disparity between the reality in the workplace and the dated job desciptions in DOT continues to grow with time. The issue has started to garner some media attention because of its unfairness. Claims are being denied using outdated vocational information.

Another problem is that a disability examiner at DDS may select a job title in the Dictionary of Occupational TItles that has the same name as the job performed by the claimant, but is a actually a different job.

Continue Reading Past Relevant Work as Generally Performed

I frequently talk with prospective clients who are thinking about applying for Social Security disability but are still working (and earning more than the 2023 SGA amount of $1,470 per month, gross pay).

These prospective clients sometimes want to discuss the likelihood of success for a disability claim, should they stop working and apply for benefits, and whether their particular medical condition can provide a basis for an award of disability benefits. I typically explain that it is not the diagnosis, but rather the severity of the symptoms from the diagnosed condition that will likely determine the success of a disability claim.

Once SGA work ends, you can apply for the disability benefits for which you have paid a premium through your FICA taxes over the years. But until that work ends (or falls below the level of substantial gainful activity), you are not eligible for Social Security disability benefits.

NOSSCR has developed what it calls a “Hearing Format Election Statement,” which is an excellent one-page, fillable form that contains all four types of hearing modalities (in-person, VTC, telephone, and online video) and allows for a simple way to notify the hearing office of how the claimant wants to appear at their hearing.

Using NOSSCR’s form, this information can be communicated to the hearing office on a single, straightforward form, which cannot be accomplished using SSA’s forms (the HA-55 and the COVID-19 Remote Hearing Agreement Form).

I have already started to use this form. You should too.

The “waterfall” chart shows what percentage of disability claims were allowed and denied nationwide at each level of review. Social Security publishes this chart each year.

  • 38% were allowed after an initial review of the application. That’s a bit more than last year.
  • Just 15% of the claims appealed were allowed at Reconsideration. So 5 out of 6 were denied a second time.
  • 51% were granted at the hearing level. This percentage is unchanged since last year.
  • Of those unfavorable hearing decisions that were appealed, 84% were denied review by the Appeals Council, 12% were remanded, and 1% were allowed.
  • And for those claims that went to federal court, 58% were remanded back to the Social Security Administration.

I had a hearing for a client who has been unable to work due to the symptoms of long-haul COVID, sometimes also referred to a postviral fatigue syndrome (PVFS).

My main challenge as a Representative has been to make sure Social Security recognizes that long-haul COVID cases are not like other cases. An appropriate RFC for a long-haul COVID case is an RFC for complete inability to do sustained work-related activity (see POMS section DI 24510.057B.2.b). See also EM 21032 REV . If you have a client with long-haul COVID, that Emergency Message and the POMS are good starting places when putting a case together.

At the DDS level, I have not had success getting disability examiners to grant claims on this basis. COVID is just too new to overcome the bureaucratic inertia. This was my first ALJ hearing for a long COVID case.

The judge was great. All the evidence was there, and the judge will grant the claim. Because my client may hopefully get better with time, the judge will recommend a short time frame for a continuing disability review, which is entirely appropriate.

I think the long-COVID claims will remain challenging at the DDS level. But my hearing today gave me renewed hope that well supported claims will be granted at hearing.