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In case you missed it, reprinted below is Charles Martin’s excellent February 2nd, 2012 USA Today op ed article defending the Social Security disability program and the role played by claimant representatives. Mr. Martin is the President of the National Organization of Social Security Claimants’ Representatives (NOSSCR).

Social Security Disability Insurance remains a vital lifeline for citizens who once held full-time jobs but have become too ill or injured to work. It is a time-honored expression of our nation’s commitment to help care for those who must stop working due to illness or injury.

While any large government program will have problems — and Social Security is no exception — we should work on fixing the problems and not join the current rush to condemn an entire system because of rare instances of abuse or mounting political pressures to cut federal spending.

As an attorney who has spent more than 34 years helping thousands of Social Security applicants, let me be clear that getting disability approval is harder than ever. Undocumented pain, alcoholism and drug abuse have been disqualified. Mental retardation and HIV standards are tougher. Diabetes and obesity are no longer distinct disabilities. Illegal immigrants are now disqualified. Applicants must now present objective medical evidence of disability. This is no rubber-stamp process.

Moreover, it is a misrepresentation to claim that there is a surge in unemployed applicants looking to get on the public dole. Applications have increased due to social, medical and economic mega-trends (such as more insured women and aged workers).

Yes, today’s Social Security Disability Insurance system is huge, complex, costly and certainly imperfect. But it deserves to be improved, not scorned. Claimants’ representatives play an important role by discouraging frivolous applications and assisting those who can prove disability navigate a daunting and often confusing bureaucracy.

The road to restoring Social Security to full health is not to conduct a witch hunt for the rare but inevitable undeserving claimants or deficient judges, but through sensible measures such as giving more help to people with disabilities who want to work, giving employers incentives to hire them, and upgrading the gathering and delivery of medical treatment and information.

Tough times can bring out the best in people. Let’s not let our frustration over a lousy economy cause us to turn on those who are most in need. Let’s improve a system that reflects the true spirit of American compassion.

Mr. Martin is quite correct. Flaws in the Social Security disability program should be mended, while preserving the important benefits provided by the program.

Mr. Martin is perhaps too circumspect to say that the drumbeat of negative commentary regarding the Social Security disability program has come from those who disagree with the entire premise of Social Security itself. The sources of coverage speak for themselves: the Wall Street Journal, the Cato Institute, the Heritage Foundation, and Sinclair Broadcasting Group all have been beating the drum against the Social Security disability program.

I join Mr. Martin in his hope that level heads prevail, and that the Social Security disability program is improved and preserved.

Photo: Bridget during our Florida vacation

Every other week, I publish links to notable articles regarding Social Security disability law:

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Please add me to a circle on Google+ to keep up with the latest developments in Social Security disability law and practice.

 

I got one of those sad calls this week from a person who attended her administrative law judge (ALJ) hearing unrepresented. A friend of hers told her that she did not need a lawyer, and she took that advice.

Her expectation, completely unrealistic, was that she would go to the hearing, tell the judge her symptoms, and would receive disability benefits. So the medical record was not complete, and there were no opinions from her treating doctors in the disability claim file.

Now she has received an unfavorable ALJ decision, and has a past date last insured. She does not qualify financially for SSI. Even if she appeals the unfavorable ALJ decision, her liklihood of receiving disability benefits is extremely remote. It is just a sad story.

You should not go to a Social Security administrative law judge hearing unrepresented. There are things that a lawyer does that help to achieve a favorable outcome. And since there is no attorney fee unless you receive benefits, there is no risk to you.

Do not become another sad story. Get help with your disability claim. A lawyer's assistance is more important now than ever.

 

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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.

New Social Security Ruling 11-1p requires a claimant to choose between appealing an unfavorable ALJ decision and reapplying for benefits. In the words of the ruling:

we will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.

Claimants must now make a pragmatic choice between an Appeals Council request for review, which is likely to take a year or more and may be unsuccessful, and reapplying for benefits with a new onset date. This forced choice is particularly hard on SSI claimants who receive an unfavorable decision from administrative law judge.

SSI claimants leave benefits on the table by not immediately reapplying for benefits. In contrast, a disability claimant can pursue an appeal and wait a full 17 months (the 5-month waiting period plus the 12 months of benefits available prior to the new filing date) to reapply without foregoing any benefits.

 

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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.

With many Social Security administrative law judges allowing fewer claims at the hearing level, the initial application for disability benefits deserves much more attention. The allowance rates from the state DDS agencies are just as high as the allowance rate of some ALJs. That means that your initial application is more important than ever. The opportunity to obtain disability benefits at the initial application should not be squandered.

I recently assisted a new client over the telephone with his initial application for Social Security disability benefits. It went very well. I asked questions, the client answered, and I typed the application right then as we spoke. As we were completing the application, I was able to counsel the client on what to expect from the disability claim process, the importance of fully describing past relevant work, and why the SSA was asking certain questions in the application.

I have done this before, of course, but this recent experience made me realize that I should do it more often, because it is a valuable service to a new client, and it starts the claim process on the right foot.

There are several benefits of working with an experienced Social Security disability attorney at the very beginning of your disability claim.

  • The disability claim is supported by a winning theory of the case. 
  • The issues in the claim are properly framed from the beginning. 
  • Common mistakes, such as not properly describing past relevant work, are avoided. 
  • You have a guide throughout the disability claim process.
  • I make a plan for obtaining the medical evidence (particularly the medical opinion evidence) that you will need to support your claim.
  • The claim may be decided more quickly, because your attorney will keep in touch with the SSA on the status of the claim, and supply any missing evidence. 
  • If necessary, an appeal will be filed quickly.
  • You pay no attorney fee unless the claim is successful. 

One of the benefits of having legal help with the application over the telephone is that you do not need to have a nearby lawyer who specializes in Social Security disability law. Because Social Security is a federal program, an attorney anywhere in the country can assist you with your claim. And the various states follow the same rules, embodied in Social Security's Program Operation Manual System (POMS), when making a benefits determination.

Legal assistance with the disability application is particularly important for those age 55 or older, because your vocational background plays a major role in the determination.

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Apply for disability benefits on the phone with a lawyer

If you have been out of work for 6 months or more due to a medical condition, please contact me to assist with an initial application for Social Security benefits.


Photo: our dog Peppermint on the Bridle Path in Kennebunk

Every other Friday, I publish links to notable articles regarding Social Security disability law:

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Take a look around this site

Many visitors to this site are new, so please take a look around. As a starting place, there are several links on the sidebar to Important Topics for Claimants. If you don't find the needed information there, you can search this blog, which has over 500 posts on Social Security disability topics. The search box is located near the top of the sidebar.

HALLEX section I-2-6-76 provides:

The Social Security regulations provide that, upon request, the ALJ shall allow claimants a reasonable time to present oral argument, or file briefs or other written statements of fact or law. Absent special circumstances, the ALJ need not fix a time limit on oral argument. Oral argument should be recorded and made a part of the record of the case.

          After all testimony has been presented, the ALJ must:

  1. offer the claimant and representative an opportunity to make a final oral argument at the hearing, to submit a brief or other written statement within a reasonable time after the hearing, or to give their opinion regarding what the evidence proves and what finding of fact and conclusions of law the ALJ should make; and
  2. address any assertions the claimant or representative make during their final oral argument, which vary sharply with the evidence or raise new issues that may be relevant.

In my view, an oral argument at the close of the hearing is not that much help. When post-hearing argument is needed, I prefer to submit a post-hearing brief.

In what circumstances should the claimant’s representative submit a post-hearing brief? Certainly when it is necessary to rebut vocational or medical testimony from the hearing. Arguably, a post-hearing brief should be done in every case where the judge did not announce a decision at the hearing, to remind the judge why the claim should be granted. In general, I will write a short letter to the judge in close cases, when I think the judge is on the fence.

When do you submit a post-hearing brief?

California disability lawyer Geri Kahn recently wrote a thoughtful blog post entitled The top four reasons why Social Security Disability cases are denied at the initial and reconsideration stages of review. Geri is referring to Disability Determination Services (DDS), the agency funded by the SSA in every state to make the initial and reconsideration determinations on disability claims. Please read her post.

Here are Geri Kahn's top four reasons:

  1. The claimant has had little or no medical or mental health treatment
  2. Social Security did not obtain the records prior to making a decision
  3. The claimant is under the age of 50
  4. The Social Security Administration works in a culture of “no”

I agree with all four of Geri's reasons, but want to comment further on reason #4. Based upon the denied claims that we see as disability attorneys, it really does seem that there is a "culture of no" at DDS.

I have addressed aspects of this problem at DDS before, including these posts:

But Geri's phrase, a culture of "no," nicely summarizes the overall problem at DDS.

We disability lawyers appeal claims denied at DDS all the time. After a hearing with an administrative law judge, more often than not we win an award of disability benefits for our client. Sometimes the fully favorable decision from the judge is based on the same evidence considered by DDS. Why the different result?

Of course, the judge has the benefit of the claimant's testimony at the hearing. But the judges are also lawyers, and they tend to follow the SSA's regulations and rulings much more closely when evaluating evidence. And of course, there are problems at DDS: too many claims, too little pay, too much turnover. But there is another, overarching reason for a different result at the hearing level: there is a "culture of no" at DDS.

Administrative Law Judges who are granting disability applications have been under fire lately. Before criticizing the ALJs for reversing the decisions of the DDS agency, there should be a thorough discussion and a better understanding of the culture at DDS, which has resulted in countless flawed denials of claims for Social Security disability benefits.

Here is the first 2012 edition of the Disability Blog Roundup, which provides links every other week to notable articles regarding Social Security disability.

Please also check out my best blog posts of 2011, if you haven't done so already.

It's getting harder to get an application for disability benefits approved at the hearing level. I do not like having to say that, but I fear it is true. The early FY 2012 stats already show a decline for several ALJs at my local hearing offices. I expect in a few months, when we see updated nationwide ALJ allowance/denial statistics, the stats will confirm an overall reduction in the percentage of claims allowed at the hearing level.

As a Social Security disability lawyer and a legal blogger, I talk with many people involved in the disability hearing process. Other disability practitioners confirm my own experience: ALJs are pulling back a bit. They are being pressured in the current political environment to allow fewer disability claims.

It is hard to quantify the pull back, based upon anecdotal evidence. I estimate it is something like 10% of claims. Judges who had grant rates of 80% are becoming 70% judges. Judges who were at 70% are at 60%. That may not seems like very much, but if you are one of that 10%, it means the difference between receiving disability benefits or not receiving them. And for disability lawyers, a 10% downward swing makes a huge difference in the bottom line.

Furthermore, the low-granting ALJs are, if anything, emboldened by the current environment. The Appeals Council and U.S. District Court review are more important than ever.

Poorly documented claims fare the worst. It is easy to turn down a claim where the disability claimant has not had recent medical treatment, and there is no opinion from a doctor regarding functional limitations. While that may sound reasonable, remember that many people lose medical coverage when they are unable to work, and cannot afford to pay for ongoing medical treatment. You can't close the door to disability benefits for these people.

This challenging environment is likely to continue through 2012, at least. A disability applicant needs every advantage in the current environment. You have to make sure that your claim is one of the 60% that are granted at the ALJ level (according to nationwide statistics) rather than the 40% that are not. It is more important than ever to have legal representation for your disability claim.