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The Reconsideration step of the Social Security disability claim process can be an unfriendly place.

On a national basis, 87% of claims are denied again at Reconsideration. That's 7 out of 8. I would say that my practice in Maine experiences a similar percentage of Reconsideration denials (In New Hampshire, however, disability claims go directly from an initial denial to the hearing level – there is no Reconsideration step in New Hampshire). It is frustrating to have so many claims denied again at Reconsideration. Nevertheless, being involved at this stage helps to frame the issues for the hearing, so it is almost always worthwhile.

However, 13% of claims are allowed upon Reconsideration, and it is nice when those allowances actually do happen.

When a claim is granted at Reconsideration, there is usually some new medical evidence. Sometimes when we look at the claim file after the initial denial, we find that some important medical records were never seen at the initial level before a medical decision was made. A Reconsideration allowance is often based upon a more complete picture of the applicant's functional limitations.

The Social Security Administration has released its “waterfall” chart for Fiscal Year 2010. These are very recent statistics.

At the Initial application level, on a nation-wise basis, 35% of disability claims were allowed, and 65% were denied. At the Reconsideration level, of the denied claims that were appealed, just 13% were allowed, and 87% were denied again.

Note how the allowance rate increases at the hearing level. 62% of the claims that are appealed to the hearing level were allowed. That is why it is so important to appeal your denial.

It is also worth noting, on the bottom row of the chart, that 51% of federal court appeals were remanded or allowed. That’s a high number.

Every two weeks, I publish links to a selection of notable posts from the Social Security Disability Blogs.

I always spend some time talking with my clients after a Social Security disability hearing to discuss how the hearing went. It is a chance to look back and tell the client what was good (and bad), and give a prognosis. There is a great deal at stake at these hearings, and I want the client to return home with a fair idea of the probable result.

Disability hearings are completely unfamiliar to most applicants. Ideally, at the end of the hearing the judge states that the claim will be granted, and that a written decision will be forthcoming. But that does not happen as often as it should, and applicants often leave the hearing office without knowing the outcome of their claim.

Nevertheless, certain events at the hearing mean that the claim will be granted. However, these events are often not recognized by clients as an indicator of a fully favorable decision. 

You know you will receive Social Security disability benefits after your hearing if:

  1. The judge issues a bench decision. You know you have won your case, because the decision has already been made.
  2. The medical expert said you meet a listing. Meeting a listing means you are found disabled at step 3 of the sequential evaluation.
  3. The judge says you meet medical-vocational rule 201.06 or 202.06 (these are the most commonly used for favorable decisions, there are others rules that also mean you will be found disabled.
  4. The judge only asks the vocational expert a single hypothetical question, and the vocational expert said that you could not return to your past work, and that there were no other jobs. 

At a Social Security disability hearing, sometimes it is very clear that the claim should be granted. In such cases, a bench decision is available to the administrative law judge. A bench decision must be a fully favorable decision.

The last two hearings attended by my colleague Collette Cushing both resulted in bench decisions. A bench decision results from excellent preparation and consistent testimony. A good hearing brief helps to pave the way for a bench decision as well.

For a bench decision, the judge sets forth his reasons for granting the claim orally "from the bench" at the hearing. The written decision that follows within a few days is just a few paragraphs in length, and basically incorporates by reference the reasons given on the record at the hearing. Bench decisions are authorized by regulation, see 20 CFR 404.953(b), and are governed by HALLEX I-5-1-17.

Bench decisions preserve scarce resources at the SSA, since staff writers do not have to spend as much time producing favorable decisions. It makes sense. If you are granting the claim, why write a lengthy decision?

Every two weeks, I publish a roundup of notable articles from the Social Security disability blogs.

There are many ways that a disability lawyer helps with your Social Security disability claim. I have a list of 7 ways that a Social Security lawyer can help. They are: 

  1. Develop a winning theory for your claim.
  2. Obtain the necessary evidence.
  3. Keep your claim moving (and ensure all appeal deadlines are met)
  4. Help you tell your story.
  5. Represent you at the hearing.
  6. Ensure that you are paid correctly.
  7. Be your guide.

Of course, winning the claim and getting disability benefits for the client is the most important task. It is number 1 on the list above for a reason. Nevertheless, the last item – be your guide – is terribly important.

Clients (and potential clients) have questions. I spend a good part of each day listening, answering questions and explaining the Social Security disability application and hearing process. It can be very frustrating for applicants to be denied benfits, and then have a long wait for a hearing. It helps to have a guide along the way.

Some physical conditions do not outwardly manifest themselves. So while you may not “look disabled” or be suffering from obvious pain, you may be suffering from symptoms that would prevent you from returning to your past work at step 4 or holding any full-time job at step 5 of the sequential evaluation (see #7 of What can I expect to happen at my hearing?). Vertigo is an excellent example where disability case can be proven at step 5. 

Vertigo is a symptom, caused by a variety of underlying medical conditions. Commonly, vertigo results from a disorder of the inner ear (vestibular labyrinth), caused by inflammation or viral infection. Meniere’s disease is an example of an inner ear problem that can produce vertigo. In other cases, vertigo may result from problems within the brain, including tumors. For this reason, it is important to consult with a medical provider to determine what medically determinable impairment may be causing your symptoms. 

Vertigo is the sensation that either you or your environment is moving (and often spinning). Vertigo may also be associated with: difficulty walking (balance disturbance); abnormal eye movement; impaired concentration; sweating; nausea; vomiting; hearing loss or ringing in the ears. Symptoms may be aggravated by: change of position (i.e. sitting to standing, or stooping); certain head movements; and visual stimuli. 

Symptoms may come on without warning; last minutes to hours; and be episodic or constant. Often, individuals will need to rest or lie down to relieve symptoms. Serious symptoms are highly disruptive to even simple daily activities of living. 

In determining whether you can return to your past work at step 4 or other work at step 5, Social Security must determine your residual functional capacity (RFC). According to Social Security Ruling 96-8p,  RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.

If vertigo is affecting you on a regular basis, it’s likely to seriously or markedly interfere with your ability to compete a normal workday and workweek without interruption. If the judge determines that an individual is unable to compete a normal workday and workweek without interruption, a finding of disability should follow at step 5 of the sequential evaluation. Sometimes it can be helpful to track the frequency and severity of your vertigo attacks by keeping a journal.

By talking and meeting with our clients well before the hearing, we are able to determine not only what medical records are needed to prove your underlying impairment, but also request a vertigo-based medical source statement from your doctor in order to develop a winning theory for your case.

Social Security has procedures to identify disability applicants who have very serious medical conditions that obviously meet disability standards, and to fast-track those claims so that they are granted quickly. These are called compassionate allowances.

The SSA website now has a page that explains compassionate allowances, and provides a complete list of the 88 medical conditions that qualify. There is also a webpage describing how compassionate allowance claims are processed, with links to the appropriate POMS sections.

It is a handy reference. If your practice is like mine, you get calls from people exploring the disability process who have advanced stages of cancer. Often the call will come from a spouse. The SSA's compassionate allowance page offers a good starting place for these individuals. I usually say that the disability claim will very probably be granted, hopefully quickly, and also tell them about the five month waiting period for benefits and the 24 month Medicare waiting period.

It is a great privilege to spend time on the phone with these people. Of course, most will never become clients, because their disability claims will be granted promptly. But they have urgent questions, and are unfamiliar with the Social Security disability application process. I am more than happy to answer those questions and explain what to expect from the Social Security application and claim review process.