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A headwind is blowing for those applying for Social Security disability benefits these days. It is getting harder to get claims approved, and it is more important than ever to have excellent representation before the SSA.

If an administrative law judge is now just granting 50% of claims, you had better make sure that everything possible is done to make your claim one of the 50% that is approved rather than one of the 50% that is denied. You must be prepared for your hearing.

The same is true for those filing an initial application for disability benefits. In the current environment, the opportunity to have your benefits approved at the initial application should not be squandered. In my view, a lawyer's help from the beginning provides many benefits, particularly for those who are age 55 or over.

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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.

 

Photo: Bridget having a snack

Today is February 29th, a date that only occurs every four years. So I wanted to reflect briefly on the past four years of my life and practice.

A lot can change in four years.

Most of my clients were able to work productively four years ago. It is a huge life change to go from working to not being able to work, and to endure the many hardships (often including poor health and financial stress) that go along with disability.

On a personal note, my wife Joanna and I had just moved into our home in Kennebunk four years ago. Our daughter Bridget, pictured above, was still two years away. I knew a lot less about a lot of things. 

Professionally, four years ago this blog was just in the planning stages (now, I cannot imagine my professional life without it). My law practice has grown in the past four years, and these days there is a second lawyer, a paralegal, and a legal assistant in the office. 

A lot can change in four years, and it is worth taking a look back on this Leap Day.

I had a remand hearing last week, and the principal issues were the level of the claimant's chronic pain and the objective medical support for her pain complaints and resultant functional limitations.

Since this was the second time around with the same judge, I wanted to ensure that I had all the bases covered. So I reviewed the rulings and regulations regarding subjective complaints. However, "subjective complaints" issues are at the heart of many disability claims, so reviewing the Rulings from time to time is a good practice.

James Publishing provides an excellent discussion of the Social Security disability law, regulations and rulings concerning subjective pain complaints. The key takeaways are:

  • There must be an underlying medically determinable impairment (or impairments) that could reasonably be expected to produce the individual's pain symptoms. See Social Security Ruling 96-3p.
  • Once the relationship between the objective medical findings and pain symptoms is established, the ALJ must evaluate the intensity, persistence, and functionally limiting effects of the symptoms to determine the extent to which the symptoms affect the individual's ability to do basic work activities. See Social Security Ruling 96-7p.
  • Here in the First Circuit, the Avery factors must be considered. See Avery v. Secretary of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986). The ALJ must consider: (1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) precipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and adverse side effects of any pain medication; (4) treatment, other than medication, for pain relief; (5) functional restrictions; and (6) the claimant’s daily activities. 

If you are concerned ahead of the hearing about the nexus between the available objective medical evidence and your client's pain complaints (usually the nexus is obvious, but sometimes it is not), you should ask a treating doctor for a short opinion on the topic. If there is a medical expert (ME) at the hearing, the ME will often help to at least establish the relationship between the diagnosis and the pain complaints.

Regarding the intensity and persistence of the claimant's pain and functional limitations, you need to have the claimant ready to testify in some detail. The Avery factors listed above provide a good roadmap for a client's testimony.

Regarding daily activities, it is wise to look at the activities noted in the Adult Disability Report (which was completed at the time of the disability application, often before a lawyer became involved in the claim), and have the client specify what can and can't be done, and whether or not an activity depends upon the claimant's pain level on a particular day.

If the client's physical activites are sporadic, depending upon how the client is feeling on a given day, make sure that testimony gets into the record. The testimony should be specific about limitations. Details about daily activies supply an authenticity to the testimony that helps with the judge's credibility assessment.

 

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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.

 

Photo: Bridget in her swimsuit and hat

Here are links to notable posts from the Social Security law blogs, including links to a couple of posts of mine:

 

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When you receive a written decision from a Social Security administrative law judge (ALJ), in almost all cases the decision is drafted by hearing office staff using the Findings Integrated Template (FIT). The template allows the person drafting the decision to input information regarding the claim and the judge’s determination, and the template spits out a completed written decision, which is then reviewed and signed by the judge. The result is a written decision that is mostly boilerplate language. 

The FIT template has bothered me for a long time, because parts of the actual written decision produced by the template are simply untrue. The decision states that the judge considered numerous specific issues, and it is highly unlikely that the ALJ actually made all of the findings that are described in the boilerplate language contained in the decision. Often there is little or no relationship between the language of the written decision and the actual facts of a particular claim. If you look at 10 (or 20, or 100) written decisions, you will see the exact same language over and over again. It is disturbing.

Disability claimants who receive an unfavorable ALJ decision are often surprised by the language in the decision, which typically questions the claimant’s credibility. However, it is all part of the boilerplate language contained in the template.

Social Security ALJs are tasked with deciding 500-700 claims per year. That is a huge workload, and the Findings Integrated Template helps to get that many decisions out the door. But at what price? In my view, a disability claimant who is denied benefits (for which he or she has paid a mandatory premium through FICA taxes withheld from wages) deserves better. 

Continue Reading Social Security’s Findings Integrated Template

The latest statistics for processing times for Social Security hearing offices around the country have been released by the SSA, and reprinted in the January 2012 NOSSCR Social Security Forum newsletter.

In Maine, the average wait for a hearing decision is now 392 days – just about 13 months. This is a slight improvement over the waiting time of 412 days that I reported four months ago. The Portland, Maine hearing office continues to farm out some of its claims to nearby hearing offices to help manage its backlog. The claims that are being transferred to other hearing offices seem to be claims that will be scheduled for video hearings in Bangor or Augusta. If you live nearer to Bangor or Augusta than Portland, there is a distinct possibility that your video hearing will be with a judge outside of Maine.

Processing time runs from the date of the hearing request (which is the appeal of a Reconsideration denial) to the day a decision is issued. The 392 days is an average. Some disability claims are resolved more quickly, but a Social Security disability claim that requires a hearing and a lengthy written decision may take longer.

The Social Security Electronic Records Express (ERE) system now allows a claimant representative to access the status of his/her claims pending at the Social Security hearing offices.

Just log into your ERE account. There is now a selection in the list of Appointed Representative Services to "Get Hearing Office Status Report."

The status of your claims at the hearing level can be viewed online. The online "quick view" shows your 100 oldest claims, by hearing request date. This makes sense, since these are the claims that are being scheduled for hearings, or have recently had hearings. The list appears to be in real time.

I checked the status of my claims and found the new system to work well. There were a quite a few closed cases still on the report, however, and it may take as long as three months for a closed claim to disappear from the report.

The list of your pending claims can be downloaded into a spreadsheet as well. The spreadsheet version has additional information, such as whether a decided claim was favorable, unfavorable or a dismissal.

I expect this online report will replace the T3 Representative Report that was provided to representatives by many hearing offices.

This is a welcome upgrade to the Representative Services available online. Hat tip to Charles Hall for writing first about the ERE update.

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Ten steps to prepare for your Social Security disability hearing

There were many notable posts this week from the Social Security disability blogs. So here is a bonus edition of the Social Security disability blog roundup:

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Many visitors to this site are new. So please take a look around. 

There are several links on the sidebar to Important Topics for Claimants. If you don't find the needed information there, use the search box to search this blog.

As I talk with clients and prospective clients, and dig into the evidence supporting a claim for disability benefits, clients sometimes say something like this: “I don’t understand why my claim wasn’t approved, I have a friend/neighbor/acquaintance who got disability benefits right away, and there is nothing wrong with him/her.”

I have heard variations of that statement dozens of times.

Ohio attorney Gretchen Esselstein discussed this issue in her recent post entitled Debunking Common Social Security Disability Myths. Describing myth #4, Ms. Esselstein writes:

My friend, neighbor, relative, etc. was approved, but there is nothing wrong with them. The truth is, an overwhelming number of recipients have severe conditions that you are unable to see or they simply do not tell you about. It is likely that they too had to fight for their benefits. Therefore, your efforts should focus on your claim and what you need to do to be successful on appeal.

 

I completely agree. Do you think your neighbors and acquaintances realize how debilitating your impairments are? I bet they do not. Likewise, you are unlikely to have a complete picture of another person’s impairments and functional limitations.

Do not be distracted by someone you know who is receiving disability benefits but appears outwardly to be fine. Focus on your own claim, and get the help you need to obtain disability benefits. 

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