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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. 

It is the time of year for New Year's resolutions. I have made a few for next year.

If you have a disability claim pending with the Social Security Administration, please make the following New Year's resolution: I will appeal my claim immediately if it is denied.

I speak with people frequently who did not appeal a denied claim within 60 days, and then must start over by reapplying for Social Security disability benefits. Although you have 60 days to appeal a denied claim, there is no reason to wait to appeal.

Remember, Social Security disability is an insurance program, not a government welfare program. You have paid an insurance premium, through the FICA taxes withheld from your wages, for disability coverage. If you cannot work, you should pursue the disability benefits that you have earned.

If you received a letter denying your disability benefits at the initial or reconsideration level, it is a good time to talk with a disability lawyer. But please be sure to appeal that denial right away. Make it a resolution.

Beginning last week, Social Security's hearing offices do not disclose in advance of a disability hearing the identity of the particular administrative law judge (ALJ) that is assigned to a claim. So your hearing notice will arrive in the mail without stating the name of the judge that will hear the case and decide the claim. When you arrive at the hearing, you see who the judge will be.

This is a new policy, which just became effective December 19th. So hearing notices without judges' names are just beginning to arrive. 

The policy was a response, it seems, to representatives declining out-of-area video hearings when the assigned judge was a low-granting ALJ. Currently, a video hearing may be declined by a claimant or claimant's representative (see this post on video hearings). The only advantage of a video hearing is that your claim may be heard a little sooner. Why have a quicker hearing if you have a judge who grants half as many claims as the other judges in the hearing office? The SSA has responded to this practice by withholding the name of the Administrative law judge assigned to the claim, whether or not it is a video hearing.

The new policy is unfortunate. It is reassuring to know who your judge is for a hearing. Even if it is a judge who is difficult or has a low approval rate, at least you know. Clients are understandably very concerned about their hearings, and are often reassured by knowing a little about the judge assigned to decide their claim.

I can adjust my presentation at the hearing to the judge assigned to the case, because I know my local judges. So it is not the end of the world that you do not know the identity of the judge ahead of time (that is an advantage, by the way, of hiring an experienced Social Security disability attorney in your state, as opposed to a "national" advocacy firm). But different judges do conduct hearings in different ways, and it will no longer be possible to prepare the client for the particular judge conducting the hearing.

What is lost from my perspective is efficiency. It is much more efficient to prepare a case for hearing when you know the judge. When you are preparing for ALJ Unkown, you must prepare all aspects of the claim to a level of detail that would satisfy the most difficult judge in the hearing office on that particular issue. Of course, every claim should be prepared thoroughly, regardless of the judge assigned to it. 

My expectation is that this new policy will result in fewer video hearings with out-of-area judges, which is exactly the opposite of what the SSA is seeking to accomplish with the policy change.

Here are eleven posts from 2011 that are worth revisiting, or worth reading for the first time if you missed them when originally published:

  1. The Social Security “Logical Bridge”
  2. One Residual Functional Capacity, Two Outcomes
  3. The 2010 Waterfall Chart
  4. Statement from a Spouse
  5. A Modest Proposal
  6. 75-Day Hearing Notice Should be Nationwide
  7. Top Reasons for Appeals Council Remands
  8. Be the ALJ
  9. Your Functional Limitations are the Nuts and Bolts of Your Social Security Disability Claim
  10. Medical Expert Testimony by Telephone at an ALJ Hearing
  11. Ten Tips for Writing Effective Hearing Briefs

Thank you for reading.

Photo: Reading on the couch

Every other Friday, I highlight notable articles regarding Social Security disability:

The Disability Blog Roundup will take its annual holiday hiatus, and will return on Friday, January 6, 2012.

The Los Angeles Times is running an excellent series of articles on children with autism. Part 2 of the series, entitled Warrior parents fare best in securing autism services, notes that "not all families have the means to battle for coveted assistance." To get what is best for your child, you often have to fight for it, even if it requires hiring an attorney and "waging a small war with the gatekeepers of state and school district services."

Most people cannot afford to hire an attorney to take on a school district that does not recognize the need for special education services for a child. How do those parents learn the system so that they can advocate for special education services for their child?

There is a new website that will empower parents to advocate for special education services: www.YourSpecialEducationRights.com. Hosted by Special Education Attorney Jennifer Laviano and Special Education Advocate Julie Swanson, the site provides answers to complex questions and offers practical strategies that will empower parents to advocate for their child. The site has an extensive library of videos on all aspects of special education.

The site has a yearly subscription of $85. In my view, that is a small price to pay to help manage a child's special education services. 

The requirement to provide special education comes from the Individuals with Disabilities Education Act (IDEA), which is federal law. A parent of a disabled child anywhere in the country would benefit greatly from this site.

When Social Security receives your disability claim, it reviews your medical records, and makes a determination on your claim. The SSA rarely obtains your doctor's opinion about your work-related functional limitations.

Rather, the SSA makes its own determination of your functional limitations. An in-house doctor infers your limitations from your medical records and the disability claim file, and completes an RFC form. 

The problem with this approach is that a doctor's treatment notes are intended to manage a patient's medical care, not to establish the functional limitations that Social Security uses to evaluate a claimant's ability to work. As a result, the method used by Social Security to evaluate disability often results in a denial of the initial claim.

Further, the in-house doctors at Social Security are reviewing hundreds and hundreds of claims. It is difficult to make your true limitations stand out in such an environment.

To remedy this situation, it is very important to obtain your doctor's opinion regarding your physical and/or mental limitations, and how those limitations affect your ability to work.  A medical source statement from your doctor setting forth your limitations due to your impairments is often the most powerful evidence in support of your disability claim.

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An excellent report came out of the Daily Yonder blog, entitled The Geography of Disability. The article demonstrates that Social Security disability rates tend to be higher in rural areas. The article also provides state by state disability rates, and offers a national map showing relative disability rates by county, based upon 2009 statistics. The article is a certainly worth reading, and has been discussed extensively elsewhere.

Take a look at the disability map published by Daily Yonder:

Maine and New Hampshire follow the national trend. You can see that the rural areas of northern Maine and northern New Hampshire each have much higher disability rates than the rest of the state. That is not surprising to me.

I was surprised, however, by the percentage of the working age population disabled in Maine. 7.6% of the working age population is receiving disability benefits, according to a chart in the article. That is a much higher percentage than I expected, and Maine ranks #6 in the country in this category.

New Hampshire is a full 2 percentage points lower, with 5.6% of the working age population receiving disability benefits. New Hampshire ranks #15 in the country in this category.

The two states are adjacent, and have nearly identical populations. Why the difference in disability rates? Maine is almost 4 times larger than New Hampshire, with the same population; Maine therefore has much more rural area. The differing rates for these two states tend to support the thesis of the Daily Yonder article, that disability rates are higher in rural areas. 

I commend the authors, Bill Bishop and Robert Gallardo, for a thought-provoking article.