Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.
Free Claim Review

Here are ten posts from the first half of this year that are worth revisiting, or worth reading for the first time if you missed them when originally published:

The Social Security "Logical Bridge"

One Residual Functional Capacity, Two Outcomes

On-line Access to the Electronic Claim File

The 2010 Waterfall Chart

Statement from a Spouse

A Modest Proposal

Tell your Doctor to write down your symptoms

75-Day Hearing Notice Should be Nationwide

ALJ Disposition Rates – How Low is Too Low?

Who is your Administrative Law Judge?

Photo: Bridget with the Radio Flyer last Sunday

I recently read a blog post by North Carolina divorce lawyer Lee Rosen, entitled How a Two-Minute Call Changes Your Clients' Opinion of You. Mr. Rosen explains that in North Carolina, an absolute divorce or Qualified Domestic Relations Order requires substantial waiting period for the client, and during much of that time there is really nothing going on with the case. But some of his clients were miserable during that waiting period, because they did not know the status of their case and imagined the worst. So Mr. Rosen assigned a paralegal the task of calling every client each week regarding the status of the case. Often the call is simply "we are waiting for X." But that simple status phone call turned around his clients' attitudes.

I, of course, saw a parallel between that divorce client waiting for a final decree and a Social Security disability client waiting for a hearing. The disability Reconsideration process in Maine can take several months. The subsequent wait for a hearing can be 12 months or more. During most of this time, there is not much going on with a disability claim. So for several months, the client is simply waiting for a hearing. Not only that, but our clients are also unable to work due to disability, and often have stress over health and financial issues.

I realized after reading the post that I wanted to keep my clients better informed of the status of their claims during this period when they were waiting for a hearing. Even if there was nothing new to report, I wanted to give our clients more frequent updates regarding the status of their claims, and ensure each client knew exactly where they were in the disability claim process. So I hired a legal assistant, who among other tasks, contacts each client regularly to provide an update on the status of the claim, and to check in about the client's medical condition. Sometimes the client has a question for me; sometimes the status call is all that is needed. We also use this opportunity to ask if the client has any upcoming appointments with medical providers who could complete a medical source statement.

I wish I had done it earlier. Our clients appreciate the extra communication, and the practice runs more smoothly because we have very current updates on each and every client.


Notable posts from the Social Security disability blogs are linked here every other Friday:

Photo: Bridget taking one of her first walks, with a little support.

In the Boston region, we receive 75-day notice of hearings, but all evidence to be considered by the ALJ needs to be submitted 5 days ahead of the hearing. See 20 CFR 405.331(a).

The 5-day rule is permissive ("the administrative law judge may decline to accept the evidence"), and often is not enforced. But if you show up at the hearing with new evidence, you are taking a risk. Your claim-winning medical source statement may not be admitted into the record. There are exceptions to the rule, so if you have late evidence, have your story ready for the judge.

Sometimes a claims fall off the DSI/electronic-file track for some reason, and the disability claim file is an old-style paper file. For these cases, the "normal" rules apply, and there is not 5-day limit for new evidence. Regardless, it is a best practice to submit evidence into the record as soon as possible.

Recently the ABA Journal published a post by Jim McElhaney entitled Dirty Dozen: 12 Ways to Write a Really Bad Brief. The list contained this notable tip:

Tell no story. Every brief should tell the story of an injustice, a wrong that needs to be righted or avoided.

The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events. Telling an engaging story in the statement of facts and the issues they raise gives meaning to an otherwise dry assemblage of information. How you do it depends on who you are writing the brief for.

Trial judges are folks in the trenches whose goal is to do elemental justice. Appellate judges want to right wrongs, too—within their job of weaving and repairing the fabric of the law.

Always keep in mind who is going to read your story.

This is particularly true in the context of a Social Security claim. With judges hearing so many claims, a compelling client story is more important than ever.

Every client has a story. Sometimes the story is obvious. Sometimes it takes some digging and some thought. But there is always a story worth telling.

Until I have a compelling story to tell, my hearing preparation is not complete.

The latest statistics for processing times for Social Security hearing offices around the country have been released by the SSA, and reprinted in the May 2011 NOSSCR newsletter. In Maine, the average wait for a hearing decision is now 381 days. This is a month longer than it was last year, and the hearing office has farmed out a small number of claims to other hearing offices to help manage its backlog.

Processing time runs from the date of the hearing request to the day a decision is issued. The 381 days is an average. Some disability claims are resolved more quickly, but a disability or SSI claim that requires a hearing and a written decision may take longer.

In New Hampshire, the Manchester hearing office has an average processing time of 343 days. This is an improvement of over two months since last year for that hearing office, which has been aggressive about reducing its wait time. Further, there is no Reconsideration level of review in New Hampshire; denied disability claims that are appealed go directly to the hearing level. So a claim from start to finish in New Hampshire is much quicker than in Maine.

When I receive a hearing notice for a Social Security disability claim, the first thing I want to know is the name of the administrative law judge (ALJ) who will hear the case and then decide the claim. It shouldn't matter which judge hears your case, since they all interpret the same regulations and would be looking at the same set of facts. But it really does matter.

Different judges approve claims at different rates. The current statistics for each ALJ are available on Social Security's website. When you look at the allowance/denial rates for the various ALJs, it is remarkable how different they can be. Each judge evaluates a disability claim in a unique way.

It is helpful to know before the disability hearing how a particular judge tends to look at a case. Also, each judge conducts the hearing in a particular way. 

I handle disability and SSI cases in Maine and New Hampshire, so I see the same judges again and again. I am able to prepare a case for hearing in a way tailored to the ALJ who will decide the claim.

You do not get to pick the judge that decides your case. However, you do get to pick the disability lawyer who handles your case. Consider obtaining the assistance of a Social Security disability lawyer who has extensive experience with the judges in your area.

Every other Friday I post links to notable posts from the Social Security disability blogs: 

I have been working on a federal court brief, which will be filed today. Here in Maine, we have local rule 16.3, which streamlines Social Security appeals. These cases are routed to the magistrate judge in Portland, Hon. John Rich III, who decides the appeal based upon an Itemized Statement of Errors filed by the Plaintiff and the oral argument of both parties. Well, technically the magistrate judge issues a recommended decision for the district court judge, but that recommended decision is routinely adopted by the distict court judge, so as a practical matter, the magistrate judge decides the appeal. 

All the decisions of Judge Rich are available on-line. It has been a while since I did a federal court appeal, so I reviewed his recent Social Security cases, to make sure I wasn't arguing an issue that had been decided the other way, and to have current citations for the issues I briefed. And, of course, to see if there were some helpful cases for my issues on appeal.

Below are a few snippets from the District of Maine cases that were relevant to my appeal. Those of you who do Appeals Council briefs or federal court work will recognize familiar, recurring issues:

Evaluating treating source opinions

A medical opinion by a treating source is given "controlling weight" when it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record. See 20 C.F.R. § 404.1527(d)(2); Social Security Ruling 96-2p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2010) ("SSR 96-2p"), at 111. When such an opinion is not given controlling weight, it is nonetheless evaluated pursuant to the factors enumerated in section 404.1527(d)(2)-(6). See id. § 404.1527(d)(2). The fact that a medical opinion is not entitled to controlling weight does not mean that it should be rejected. See SSR 96-2p at 114. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927." Id. The commissioner must "always give good reasons in [his] notice of determination or decision for the weight [he] give[s] your treating source’s opinion." 20 C.F.R. § 404.1527(d)(2).

RFC determinations

While administrative law judges are not precluded from “rendering common-sense judgments about functional capacity based on medical findings,” they are “not qualified to assess residual functional capacity based on a bare medical record[,]” Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). See also, e.g., Eshelman v. Astrue, No. 06-107-B-W, 2007 WL 2021909, at *3 (D. Me. July 11, 2007) (rec. dec. aff’d July 31, 2007) (“While the First Circuit does permit an administrative law judge to pick and choose among physicians’ findings and opinions, it does not permit the crafting of an RFC based on the raw medical evidence of record unless common-sense judgments about functional capacity can be made.”) (citations, internal quotation marks, and footnote omitted). Kaylor v. Astrue, No. 2:10-cv-33-GZS (D. Me. December 30, 2010)(rec. dec. aff'd February 7, 2011) 

The administrative law judge, as a layperson, is not competent to assess the plaintiff’s physical RFC on the basis of the raw medical evidence of record. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) ("The ALJ’s findings of fact are conclusive when supported by substantial evidence, but are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.")

Step 2 and Harmful Error

Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28). Guber v. Astrue, Civil No. 1:10-cv-172-JAW (D. Me March 30, 2011).

"[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim." Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010).

Simple instructions

A limitation to simple instructions and tasks correlates to jobs with a GED R level 1 or 2. Pepin v. Astrue, Civil No.09-464-P-S (D. Me. August 24, 2010)(rec. dec. aff'd September 16, 2010).

7/7/11 update: After reviewing the Statement of Errors and the administrative record, Assistant Regional Counsel determined that a remand is appropriate. Excellent!