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Here in the Boston Region, we receive 75-day notice before a Social Security disability hearing by an administrative law judge.

Once a request for hearing is processed, the claimant receives a routine form letter from the hearing office that sets the stage for an eventual hearing. The letter starts like this:

Thank you for your request for a hearing before an administrative law judge (ALJ). This letter explains the hearing process and things that you should do now to get ready for your hearing. We will mail a Notice of Hearing to you at least 75 days before the date of your hearing to tell you its time and place.

We have found that this language is sometimes misconstrued by claimants, who read it quickly and think that their hearing will be held in about 75 days, rather than that they will receive 75-day notice of the hearing when the time comes.

So let's be clear, after a Social Security ODAR receives your hearing request, your ALJ hearing will take much longer than 75 days to schedule. How much longer depends upon where you live, and the current processing time of your hearing office. But you should plan on about a year to elapse from the time a hearing is requested to your actual hearing date.

In the meantime, of course, there are steps you can take to make your claim stronger.

Kaizen is the Japanese philosophy of continuous improvement, usually in the areas of manufacturing, engineering, and business management. It involves taking frequent small steps to improve your process. After months or a year of making small improvements, you are way ahead of the place where you started.

I have adopted this approach to my law practice, and have made lots of changes over the past year or so. Often one improvement becomes possible only after a previous change. The result is that, over time, my practice has been transformed.

When I started my practice, the primary focus was on the administrative law judge hearing. Medical records are updated just ahead of the hearing, and a medical source statement was sought from treating medical providers. In more recent years, a hearing memorandum was written for the judge.

This worked fine, but had a few problems. The process was back-loaded, and most of the work was being done towards the end, in preparation for a hearing. We were getting excellent results, but we were constantly running around at the last minute getting claims ready for hearing. I started making changes to better our process and to improve the client experience.

Today we get involved much, much earlier in the claim. We keep in touch with our clients, at least monthly, starting at the beginning of our representation. We update our clients on the status of their claims, and we inquire about their upcoming medical appointments. As soon as we can, we obtain a medical source statement from treating doctors and counselors. We have claims that are nowhere near hearing that have two or more medical source statements in the record.

As a result, claims are much more developed as they approach a hearing. We are now frequently in a position where we can make an on the record request before a claim is scheduled for hearing. Even if that request is denied, the work required to prepare for a hearing has largely been completed. The practice is much more proactive, and is more enjoyable for the laywers, the staff, and the clients. 

Our clients are much more involved with the process of preparing their claim for hearing, which helps to create a better client experience within a difficult Social Security disability claim process. Our results are even better, and we are writing more on the record requests than before. 

This transformation resulted from a series of small changes. Take a look at your practice. Make a small improvement (no improvement is too small). Next week, make another. Repeat. You will be amazed at the difference 6-12 months down the road.

I was scheduled this morning to be at a Social Security administrative hearing. But the administrative law judge, after reviewing the claim prior to the hearing (including the treatment summary and medical source statement from the treating psychiatrist), granted the claim on the record. As a result, the hearing was cancelled, and a fully favorable decision will arrive in the mail.

The client is immensely relieved and grateful. Every claimant has some anxiety and stress about the administrative law judge hearing. For claimants who are already suffering from anxiety and stress issues, the pre-hearing apprehension can be overwhelming. 

I understand that some judges want to conduct a hearing once one is scheduled, and want the opportunity to see and hear the claimant. But I appreciate those judges who, after reviewing the record, realize that the claim will be certainly granted, and make an on the record decision. It is a generous act to spare a disability claimant the anxiety and stress that accompany a hearing. 

Every other Friday, I highlight articles of note for Social Security disability claimants and their representatives:

 

        Photo: Bridget with a book

At both the Portland, Maine ODAR and the Maine Disability Determination Services (DDS), the processing of disability claims has slowed measurably due to budget constraints. My understanding is that both these offices have hiring freezes, so that departing employees cannot be replaced.

This is particularly an issue at DDS, because turnover there was already high. It is a stressful job to be a disability examiner, and the pay, even though they are doing "federal" work, is on a state employee scale. The Maine DDS shipped hundreds of claims to the Social Security's Office of Medical and Vocational Expertise in Baltimore to help with its backlog, but DDS is still falling further behind. The staffing issues at DDS are hobbling its mission. 

As for the Portland hearing office, it was #1 in the country back in 2009, with an average processing time of just 261 days. Now the average processing time has slipped to 365 days. This is due to staffing problems. The hearing office certainly has enough judges, but it takes hours of staff time to prepare a claim for hearing and to write the decision afterwards. And it is not just the Portland hearing office. Other ODARs are slowing as well, for the same reason.

All this is disheartening, because so much hard-fought progress had been made by the hearing offices to shorten waiting times and hasten decisions. Those gains are now being lost.

Imagine you are a Social Security administrative law judge (ALJ), and that you are preparing for a hearing to decide whether or not a claimant receives disability benefits. What information is available to you to review prior to the hearing?

Put yourself in the position of the ALJ looking at the file for the first time. Does it look like one of those claims likely to be granted? Remember, the judge has not had any interaction with the client, the way that the lawyer (hopefully) has. So all the judge has available is what is in the disability claim file.

The lawyer should provide the SSA with the claimant’s complete medical records, and a medical source statement from any treating source that will provide one. And that is a good start. But it can be difficult to evaluate claims based solely on the information from the medical records and the standard forms in the disability claim file. The claimant’s story is not always apparent from the claim file information.

If you were the judge, do you think that a hearing brief would be helpful at the time of the first review of the claim file, giving the claimant’s perspective of the case, and telling the claimant’s story? Do you think that a “lay” statement from a family member or friend, describing how life has changed since the disability began, would be helpful?

Put yourself in the shoes (or the robe) of the ALJ, and provide the information that will distinguish the claimant as a person with a compelling story, deserving of benefits, and disabled under Social Security’s rules. And have the information in the record well ahead of the hearing, so it is there when the judge first reviews the claim.

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Ten steps to prepare for your Social Security disability hearing

 

With the recent multi-million dollar investment by Google Ventures into Rocket Matter, and the apparent success of LegalZoom, there is much discussion about the role and effect of venture capital on legal services. 

There is a long list of reservations about the intersection of venture capital and legal services, and many are watching to see what develops. Consumer Reports recently reported that do-it-yourself legal forms have some problems, yet many are predicting disruptive effects upon the legal profession.

However, for those practicing Social Security disability law, venture capital is already here, and has been for several years.

Why did venture capital go first to Social Security disability law? Three reasons come to mind.

  1. The first is that you don't have to be a lawyer to represent claimants before the Social Security administration. I have never understood why, but that's the way it is. So a nonlawyer firm can represent clients before the SSA, and that "advocacy" firm has no worries about unauthorized practice of law, or the ethical requirements of the state bar associations. 
  2. Social Security disability is a national program. The rules are pretty much the same around the country, with a few local variations (such as prototype states, and slightly different processes among the various ODARs). So with advertising on tv, radio, or online, it is possible for an advocacy firm to capture clients around the country.
  3. It can be lucrative. The often-ignored fact about Social Security disability is that the overwhelming majority of people who apply for disability benefits are, in fact, actually disabled. So even a bad firm can win 50% or more of its claims. If a company can keep its costs down (venture capital is good at that, right?), it will make money.

So that's why venture capital came: The convergence of opportunity and money.

What can we Social Security disability lawyers, who have been living with this situation for years, share with the broader legal community? Not much, really.

The big venture capital-backed advocacy firms are doing the same thing in basically the same way as smaller law firms. They are just doing it on a massive scale. Unlike the products offered by Rocket Matter and LegalZoom, these advocacy firms offer no cost savings to the client. The advocacy firm receives the exact same fee as a lawyer would.

For the disability legal community, the disruption (for lack of a better word) is on the client acquisition front. The VC-backed firms have big advertising budgets available. The challenge for boutique firms like mine, which are practicing on a retail rather than a wholesale scale, is to reach potential clients and differentiate our legal services. 

This site is designed to educate those applying for disability about the disability claim process. The more knowledge and insight a claimant has, the better the likelihood that the claimant will make a good decision about representation.

 

 

Every other Friday, I publish articles of note regarding Social Security disability.

Photo: Bridget at 16 months

I had a stretch of time this summer where our little Social Security disability law firm had very few hearings scheduled, due to slowdowns at the Portland, Maine and Manchester, New Hampshire hearing offices. I devised a four-point strategy to use the extra time of our two lawyers, our paralegal, and our legal assistant. 

Now that Labor Day is around the corner, we are back to a more normal hearing schedule. I thought it was worth taking a look at how the strategy worked out. Each of the four points is discussed below:

1. Get a head start on the claims that will be scheduled in the Fall

We are in great shape for our September and October hearings. But as it turned out, it was not much of head start on what we would have done anyway. We were prepared a little earlier than usual. So no big deal on this item.

2. Write "on the record" requests for every appropriate claim

We filed several on the record requests, but only a few of them were granted. I don't know why more of the OTR requests were not granted, but the claims that were not approved are basically now all set for hearing.  We will continue to focus on these OTR requests, because they are a very efficient use of our time. I feel pretty good about this item.

3. Redouble our efforts to communicate frequently with our clients

We talked with our clients, updated them on status (and received updates from them), and put a medical source statement form in the hand of everybody with an upcoming doctor's visit. We also captured as many client email addresses as possible, so that we can stay in touch that way as well. This was time very well spent, and is an ongoing effort. As a result of our efforts, we are making progress earlier in the case, and even more claims are ready for an OTR request.

4. Focus on outreach

Our excellent ebook, 10 steps to prepare for your Social Security disability hearing, was released in July, and has been downloaded hundreds of times since then. Regular visitors may have noticed some minor changes to the look of this blog, and there is a new New Hampshire Social Security Lawyer website. Our outreach efforts continue apace. 

Summary

Overall, it wasn't as big of an activity gap as I feared back in June. We stayed busy, enjoyed our Summer, and made good progress in the four areas described above.

There has been quite a bit of chatter about a recent report and subsequent Associated Press article stating that the Social Security disability trust fund is running dangerously low. My strong advice to you is not to worry about it. The sky isn't falling.

Negative headlines about Social Security get repeated over and over these days, often by those who simply disagree with the Social Security disability insurance system. 

There were also some unfortunate comments from SSA Commissioner Astrue in that AP article, suggesting that those out of work due to a poor economy "take a shot at disability" due to economic desperation. That certainly has not been my experience with clients applying for disability benefits, and Commissioner Astrue really should know better.

Those with Social Security disability claims have enough to worry about without adding concerns about Social Security's solvency. My advice to those applying for disability benefits is to spend your energy managing your health and making your claim stronger prior to your hearing.