The SSA has published a final rule eliminating Decision Review Board.
For those of us in Region I (a.k.a. "the Boston Region"), that means that after June 13, 2011 the Appeals Council will once again be our forum for appeals of administrative law judge decisions.
I, for one, welcome the change.
I had a hearing yesterday where I thought I would be able to finally invoke the worn out worker rule. This is an offbeat provision in the Social Security regulations that grants benefits at step 5 of the sequential evaluation for a worker who fits a particular vocational profile. This is the "worn out worker" rule. See 20 C.F.R. 404.1562(a).
The rule has 3 requirements:
Social Security Ruling 82-63 clarifies the requirements of the regulation, and is a must-read if you have a claimant who may meet the criteria of the rule. A mine worker, a farm worker and a commercial fisherman are examples of workers that might benefit from this rule. But the requirement for a marginal education is hard to meet.
My client had been a marine worm and clam digger since age 10, on a seasonal basis. That certainly qualifies as arduous, unskilled physical labor. He performed that job, and other seasonal work, for his whole working life. He is now 48 years old. He can no longer perform that job due to peripheral vascular disease in both legs.
DDS assessed a sedentary RFC, and denied the claim under Medical-Vocational Rule 201.18. However, in this situation, a different result would be reached by the worn out worker rule than under the Medical-Vocational Guidlelines. A 49 year old worn out worker would be found disabled at the sedentary exertional level if he could no longer do his past work, because the worn out worker rule would be used rather than the grid rules. Ruling 82-63 states that section 404.1562 is a "pre-grid" rule, and must be applied prior to the numbered rules of the Medical-Vocational Guidelines. DDS did not develop sufficient information to use the rule: they only went back 15 years for work history, and they did not investigate the applicant's marginal literacy.
I have been waiting to win a case under the worn out worker rule since I learned about it at my first NOSSCR Conference. Finally, I had a case where the claim would have been lost under the Medical-Vocational Guidelines, but would win because of the worn out worker rule! And that is what would have happened, except the judge determined at the hearing that the claimant met a listed impairment, so the case was granted at step 3. As a result, the issue of worn out worker rule at step 5 was not reached.
In a recent blog post entitled “Get It Written Down!” Chicago disability attorney Aaron Rifkind tells the story of a claim that was granted quickly due to the completeness of his client’s medical records.
I told her that it was because of her thorough medical records that we were able to win so quickly. She responded, “My records are so thorough because every time I go to the doctor, I tell him to make sure to write down everything I tell him, every complaint, and every pain I have, if you don’t do that then no one will ever know what you have.” And you know something, she is right!
One of the best things an individual can do when applying for Social Security disability benefits is to make sure that all of the complaints and medical issues are in writing.
This is an important point. Be sure to tell the doctor your symptoms, and make sure that your doctor writes them down.
Your medical records – the doctor’s treatment notes and progress notes – are maintained to keep track of your medical care, as a tool to assist your doctor with your treatment. Those notes are not created to be used for the purpose of establishing a disability claim. However, your medical records are the principal evidence for your Social Security disability claim, and the symptoms listed in your records will be used by the Social Security Administration to assess your work-related limitations.
In general, doctors do not focus on how your symptoms affect your daily activities. You should tell your doctor about your symptoms and how they affect your life. This information will help your doctor better understand your medical condition. The resulting medical record may also help your disability case, since your symptoms and their effects on your activites will end up in the doctor’s progress notes, and those notes will be used by SSA to establish your work-related limitations.
Be specific. Instead of saying to the doctor “my back hurts when I stand too long,” say “after 15 minutes of standing my back hurts so much that I have to sit down for 15 minutes.” Give the doctor some specific details to describe the effects of your medical condition. The same is true for mental limitations, such as depression or anxiety. Rather than saying “my depression is a little better (or a little worse) this month,” say “I was so depressed that I could not leave the house for 6 days last month.” Give your doctor some specifics. And make sure the doctor writes it down.
Every two weeks, I publish links to notable posts from the Social Security disability blogs. And sometimes I add a picture of my daughter Bridget, shown above.
Having to complete the Disability Report – Appeal (Form SSA-3441-BK) means that your claim has been denied. This form accompanies the appeal of the unfavorable determination of your application for Social Security disability benefits.
That initial denial is often a shock to people who have applied for disability benefits because they can no longer work. Don't miss the 60 day appeal deadline. You do not want to start all over with a new claim. The form can be completed online, or you can complete the form by hand. Download a copy of the form SSA-3441-BK here.
The Disability Report – Appeal is an update. The form specifically asks about any changes in your medical condition, new limitations, and new treatment since you filed the last a disability report. The report also asks for a list of your current medications. You don't have to rewrite the entire Adult Disability Report that you completed (either online or on that green paper form) when you first applied for benefits.
This is an appropriate time in your case to obtain legal help. The appeal process is an excellent opportunity to frame the issues in the claim for an eventual hearing. I would much rather get involved right now than later in the process. Remember, an attorney fee is contingent upon winning your claim, so it does not cost a penny to get help right away.
Social Security periodically conducts continuing disability reviews (CDRs) of those receiving disabillty 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 stop the disability benefits. These reviews are scheduled every few years, depending upon the likelihood of medical improvement in a particular case.
Sometimes you see a recommended time period for a CDR in an administrative law judge's decision. For example, I had a case recently where the judge granted disability benefits to a 39 year old worker suffering from severe thoracic back pain. The very end of the decision stated: "Medical improvement is expected with appropriate treatment. Consequently, a continuing disability review is recommended in 18 months."
A spoonful of sugar helps the medicine go down.
In my view, when a judge makes a recommendation for a quick CDR, it makes the judge feel better about granting disability benefits, particularly to a younger individual. In general, judges do not like the prospect of putting a person on disability for what might turn out to be many years. However, knowing that the claim will be reviewed again soon tends to relieve this concern.
Every other Friday, I publish links to a selection of notable posts from the disability blogs.
I have linked to four posts written this week about the remarkable lawsuit against the SSA alleging anti-claimant bias by five administrative law judges in the Queens, NY hearing office. Here is the New York Times article on the lawsuit. Here is a copy of the complaint (link opens a pdf).
Here are the recent notable posts that are not related to the Queens hearing office bias case:
Sometimes there is a physical residual functional capacity (RFC) assessment in the disability claim file from a single decisionmaker. That means the RFC assessment from DDS was not completed by a doctor. At the hearing level, a single decisionmaker RFC should be located with the "A" exhibits in the disability claim file, rather than with the medical evidence in the "F" exhibits. A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.
This topic was the subject of a memorandum from former Chief Administrative Law Judge Frank Cristaudo, dated May 19, 2010. However, that memorandum has been revised by a September 14, 2010 memorandum by Associate Chief Administrative Law Judge John P. Costello. Here is a copy: Download Revised SDM memo. Thanks to New York disability attorney Jeff Delott for emailing the revised memorandum to me.
An Administrative Law Judge may not rely on a single decisionmaker RFC to support an unfavorable decision at the hearing level. For "prototype" states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.
Be sure to check whether or not the DDS RFC is from a single decisionmaker. You do that by checking the signature line on the RFC form.
A "Notice of Reconsideration" letter states that your disability or SSI claim has been denied for a second time by Social Security. When you get a Notice of Reconsideration in the mail, there are a few things to remember:
In summary, if you receive a Reconsideration denial from Social Security, don't get discouraged. There is hope. Make sure the denied disability claim gets appealed, and get in touch with your lawyer or find a disability lawyer if you don't have one yet.
Every other Friday, I publish links to recent notable posts from the Social Security disability blogs. From time to time, I also take the opportunity to show a recent picture of my daughter Bridget, who will have her first birthday this month.
Here are the recent notable posts from the disability blogs:
