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I have received several calls lately from individuals who are currently receiving Social Security disability benefits, and have just gotten a letter from the SSA saying that their disability status is being reviewed. Obviously, the receipt of such a letter causes a great deal of concern.

Social Security periodically conducts continuing disability reviews (CDRs) of those receiving disability or SSI benefits. See 20 C.F.R. 404.1589.

A medical review determines if an individual continues to meet the medical requirements to collect disability benefits. If the person does not meet the medical requirements, the SSA may terminate that person’s disability benefits. These reviews are scheduled every few years, depending upon the likelihood of medical improvement in a particular case. However, I believe the current political climate has led the SSA to devote more of its limited resources to CDRs.

If you are notified of a continuing disability review, do not ignore the SSA’s request for records and forms. Provide the required information. The worst thing to do is to not respond to the SSA’s request.

Should you receive a notice that your benefits are being terminated, appeal right away – within 10 days. You will then receive ongoing benefits while your appeal is pending.

When a Social Security administrative law judge issues an unfavorable decision, and that decision is later vacated upon appeal to the Appeals Council or to federal court, the SSA has a policy of sending the claim back the very same ALJ that denied the claim the first time around. Strange, but true. A HALLEX provision sets the policy. See HALLEX I-2-1-5 section D.11. After two hearings with the same judge, if the claim is remanded to the hearing level again, it is assigned to a different ALJ.

Some judges, the second time around, see the error in the earlier decision, and issue a favorable decision after a fairly brief hearing. But many judges have already made up their minds, and the purpose of the second hearing is to strengthen the reasons supporting a denial of benefits.

These second hearings can be gems. Typically, the ALJ is instructed by the Appeals Council to obtain expert testimony upon remand, so it is not unusual to have a doctor, a psychologist, and a vocational expert for a second hearing, where none of those characters were present at the first hearing.

I have one of these hearings coming up. While the hope for every Social Security hearing is to persuade the judge that your client is entitled to benefits, in this situation the principal task often becomes to make a record supporting the next appeal. I will keep in mind the top reasons for Appeals Council remands as I prepare the claim for the second hearing.

I have suggested that Social Security change the policy of assigning the same ALJ to "second time around" claims. See A Modest Proposal. But until the policy changes, these second hearings will continue to be challenging.

Every other Friday, I round up notable articles regarding Social Security disability.

It has been a little over four months since I published my ebook, entitled 10 Steps to Prepare for Your Social Security Disability Hearing. Those who are waiting for their Social Security disability hearings will find helpful information in the book, and can learn how to make their claims stronger.

Although I wrote the book for my clients, it is available on my law firm website to anyone as a free PDF download. The book has now been downloaded thousands of times.

There is no form to fill out; no name or email address is required to download the book. This link will take you to the page on my law firm website to download 10 Steps to Prepare for Your Social Security Disability Hearing. 

Here are the ten steps:

  1. Appeal within 60 days
  2. Prepare for the wait for a hearing
  3. Determine why your claim was denied
  4. Learn how Social Security evaluates disability claims
  5. Think about your functional limitations in a specific way
  6. Know your work history for the past 15 years
  7. Continue with your regular medical treatment
  8. Obtain a medical source statement
  9. Consider a statement from a spouse, parent, sibling or friend
  10. Get legal help

Again, you can download 10 Steps to Prepare for Your Social Security Disability Hearing for free, without providing any information about yourself to me. I hope the book empowers you to make your claim stronger for your hearing. 

I came across a Social Security disability law blog recently, and liked what the lawyer had to say. Check out the North Carolina Social Security Disability Attorney blog by Vaughn Clauson.

I enjoyed the blog because the author provided his opinion and insight regarding many of the topics of his posts, rather than just reciting a news story or providing a disability law tip. Furthermore, there is engagement in the blog, which is all to rare in this space. He commented on a post on another blog, and gave his opinion. That's the way it is supposed to be.

I follow dozens of Social Security law blogs. Too many are written in a vacuum, as if no one else is writing about the same area of law and discussing similar issues. Ideally, the Social Security disability law "blogosphere" should be a group conversation. It is refreshing to see a legal writer reach out to the disability law community through his blog. We are all the better for it.

Please take a look at Vaughn Clauson's blog. You can then subscribe to it by email, or through your RSS Reader.

There is a truly excellent decision by Connecticut U.S. District Court Judge Mark Kravitz on the topic of medical expert testimony by telephone at a Social Security disability hearing. The case is Edwards v. Astrue (D. Conn. August 10, 2011). Download Edwards v. Astrue. 

Kudos to New York attorney Jeff Delott, who wrote about the Edwards decision recently on his legal blog, after learning about it at the Second Circuit meeting at the Fall NOSSCR Conference. Please read Jeff's post about the Edwards decision.

The Edwards decision concerns telephone testimony by a medical expert witness. Sometimes an administrative law judge arranges for a medical expert (ME) to testify at a disability hearing. A medical expert is always a doctor, when the issue is the claimant's physical impairments. The ME is usually psychologist when an opinion regarding the claimant's mental impairments is desired (occasionally, both a doctor and a psychologist will appear at a hearing). A medical expert is available to assist the judge to determine a claimant's medically determinable impairments, and whether or not a medical condition meets or equals a listed impairment. Frequently the ME will offer an opinion on the claimant's functional limitations. 

Certain judges use medical experts more often than others. We disability lawyers know which judges typically utilize medical experts, and we know the medical experts who routinely testify in our locale. 

Sometimes the medical expert is not going to be friendly to the claimant's cause. There are some bad apples out there in medical expert land, who are known to consistently (and often forcefully) testify that a claimant's impairments do not meet a listing and do not impose disabling functional limitations. When the judge lines up a "bad apple" expert to testify at your hearing, you know you have an uphill battle.

Since these bad apple medical experts tend to testify at hearings all over the country, they almost always testify at the hearing by telephone. Which brings us to Edwards v. Astrue, and Judge Kravitz's truly excellent decision. 

Continue Reading Medical Expert Testimony by Telephone at an ALJ Hearing

Photo: Bridget in her room

Every other Friday, I highlight notable articles on the topic of Social Security disability.

I had a discussion with a colleague recently about acceptable medical sources for mental impairments. This issue is part of proving a Social Security disability claim. So, for the purpose of this post, let’s assume that a person aplying for disability suffers from severe depression. Who is qualified to diagnose that depression?

For a starting place, the Social Security Act requires a medically determinable physical or mental impairment as the basis for a finding of disability. The regulations specify that a medically determinable impairment must be established by an acceptable medical source. So to have the depression recognized as a severe impairment at step 2 of the sequential evaluation, it must be diagnosed by an acceptable medical source.

In my view, any physician (or a psychologist) can diagnose depression (or another mental impairment) as an acceptable medical source under the regulations.

My colleague had the viewpoint that the depression diagnosis must come from a psychiatrist or psychologist, who deal with mental issues all the time. In support of this position, my colleague noted that the DDS state agencies use psychologists instead of M.D.’s to determine mental MDIs and resultant functional limitations. Furthermore, at the hearing level, a psychologist or psychiatrist is used as a medical expert on the issue of a claimant’s mental impairments, and a “regular” doctor is used to evaluate a claimant’s physical impairments. So my colleague’s view is that a plain vanilla primary care physician is not an acceptable medical source to diagnose depression.

Let’s see what the regulations say.

Continue Reading Acceptable Medical Sources for Mental Impairments