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Rutgers law professor Jon Dubin has an article in the latest Administrative Law Review entitled “Overcoming Gridlock: Campbell after a Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Adjudication in the Social Security Administration’s Disability Programs” (follow this link to read an executive summary or download a free pdf of the article).

Aside from his penchant for the word “gestalt,” which appears seven times in the article and once again in the executive summary, Professor Dubin makes excellent points regarding the gaps and exceptions in the medical-vocational guidelines, or “grids,” which are used to determine disability at step 5 of the sequential evaluation.

Since the grids do not take into account non-exertional limitations, either a) vocational evidence is required or b) the judge must make a determination regarding the erosion of the occupational base due to the non-exertional impairment(s). The particular approach taken by the judge can make the difference between winning and losing the claim. Professor Dubin writes:

Under the ad hoc “common sense” gestalt approach of ascertaining significant numbers without reference to the grid’s occupational and job base numbers (and without considering issues of adaptability based on age and the combination of adverse statutory vocational factors), the claimant would likely be found not disabled. However, if the grid framework approach described in the agency guidance above is interpreted as requiring analysis of the extent to which the grid’s occupational and job bases are eroded by the nonexertional limitations and the comparative size of the remaining bases, this claimant would be found disabled. 62 Admin.L.Rev. 937, 983 (2010).

I addressed this same issue in my recent post One Residual Functional Capacity, Two Outcomes. Based upon an erosion of the occupational base approach, a claimant is often found disabled. But under “ad hoc common sense approach” involving a VE, a finding of “not disabled” is quite possible. Such different outcomes on similar facts casts doubt on the Social Security disability process, which as Professor Dubin points out, has the largest adjudicative system in the western world.

The article offers an approach to resolve these issues, and is also worth reading for the history and context it provides regarding medical-vocational determinations since the landmark case of Heckler v. Campbell.

Every other Friday, we publish links to recent notable articles from the disability blogs. 

This is the 400th post on the Social Security Disability Lawyer blog. Thank you for reading!

Two years is the average time in Maine for a Social Security disability or SSI claim to get from an initial claim to an ALJ decision.

From the day you apply for disability benefits, the initial claim process takes 4 to 6 months. If your claim is denied (as 2 out of 3 are, on average), the Reconsideration determination can take another 6 months.

The Reconsideration step is particularly slow these days, due to backlogs at the Maine DDS (the state agency that makes the determinations at the initial and reconsideration levels). At Reconsideration, 85% of claims are denied again, and the next step is to request a hearing by a U.S. administrative law judge (ALJ). In Maine, the average processing time at the hearing level is almost 12 months.

So from start to finish, the better part of two years goes by. 

Since being disabled means you can't work, that is two years with no income. Two years of financial stress. Two years of doctor visits trying to find money for the copays (if there is insurance at all). For many claimants, it means two more years of chronic pain. And for all claimants, two years of having to cope with the fact that you can't do what you used to do. It is a difficult road, and I am amazed how claimants manage during this difficult time.

At my law office, we try to speed cases along. We always appeal right away, so no time is lost. We try to get favorable determinations at the DDS level, when possible. At the hearing level, we ask for an on the record request when appropriate. But the fact is, for the majority of claims, a hearing is still required. So two years goes by.

Often we can use that time to the claimant's advantage. As more medical records are generated during the waiting period, it often becomes more apparent that a claimant's impairments are more serious than originally thought. During this time we try to get medical source statements from your treating sources that describe your functional limitations. All this is important evidence for the hearing. So if we cannot get your claim resolved without a hearing, we will certainly make your claim stronger for the day the hearing arrives. 

Two years is a long time. Don't go it alone. 

Just a few short years ago, Social Security disability claim files were paper, and getting a copy of the claim file meant literally making a photocopy of the file. You still see paper files every now and then, but they are the exception rather than the rule.

Most claim files are now electronic, meaning that the documents in the claim file are stored electronically, and reside in Social Security's vast database. A copy of the disability claim file is provided to the claimant or claimant's representative by via a CD. The whole file is on the CD, which takes up much less space than a paper file.

The CDs are a huge improvement from the old paper file days. The downside is that some hearing offices are better than others when it comes to providing current copies of those CDs. The Portland, Maine hearing office is particularly good about providing updated CDs. You receive a CD upon intake at the hearing office, and an updated version when the claim is ready to schedule; another CD is sent 15 days ahead of the hearing, and a CD is made on the day of the hearing and provided to the representative to review and use at the hearing.

On-line Access

Most recently, Social Security has been rolling out on-line access to disability claim files. This service is for registered claimant representatives only; it is not for the individual claimant. I signed up at my local ODAR a couple months ago, and have been using it regularly since. For security purposes, each time you access the system on-line, Social Security sends a text message to your cell phone with a one-time numerical password needed to log on. So you need internet access and a suitable mobile phone to use the new service.

I have found some distinct advantages and a few disadvantages with on-line access.

The Pros:

  • You have immediate access to any claim file at the hearing level after your Apointment of Representative (form 1696) has been processed. I can look at a new disability file right away, before I would have received a CD of the file from the hearing office.
  • Downloading a copy of the file is a fairly simple procedure. And a pdf copy is available. I prefer a pdf copy over the tiff files that are on the CDs. A pdf is much easier to navigate.
  • You can look at a file any time. All you need is internet access, and the claimant's Social Security number, and your mobile phone. So I can check a file at night from home without difficulty.
  • You get access to the live file. You are not looking at the file as it was on the day the CD was created. It is quite reassuring to look at the file on-line a couple days ahead of the hearing and see all your evidence and your hearing brief there.

The Cons:

  • Only one representative at a time has on-line access to the file. If you are not the sole designated representative, you can't access the file on-line. So for firms with more than one lawyer, it makes it difficult to share work on a case.
  • Staff is not permitted on-line access. This is a deal-breaker for many offices, and the issue needs to be addressed by the SSA before the internet becomes the prevalent method of providing access to a file. For my office, it means I have to access the file and download a copy for anyone else to work on the claim.

Overall, I have had an excellent experience with the new on-line access program. I need to do some further work on my office procedures to maximize the benefits of this new system.

Here is a selection of recent notable posts from the disability blogs. This roundup is published every other Friday.

It has been a while since the Best Practices for Claimant's Representatives was published on the Social Security Administration's website.

If you are representing clients before the SSA, this list of best practices is full of useful reminders, and is worth revisiting every now and then. Take a look when you get a chance.

I often handle Social Security disability claims of those age 55 and over. Some of these clients contact me at the beginning of the process, to help with their application for disability benefits. I encourage this practice, since it can avoid a long wait for benefits and increase the chances of an award of benefits by avoiding some common mistakes in the disability process.

Focus on the Requirements of Past Relevant Work

If a disability claimant is age 55 or over, and you can establish a physical RFC for less than medium exertional work, then the whole case revolves around the step 4 determination of whether or not this claimant can perform his or her past relevant work. If you can get past step 4 to to step 5, the claimant will grid "disabled" under Medical Vocational Guidelines 201.06 or 202.06 (assuming no transferable skills that would allow a significant range of skilled work within the claimant's RFC, and no recent education that provides direct entry into skilled work).

When I first review one of these claim files (assuming it is a case that I did not assist the claimant with the initial application), I get the details about past relevant work from the adult disability report and the work history report. I spend a significant amount of time evaluating these reports and comparing the job requirements against the claimant's current abilities. A claimant must be unable to perform both the past work as actually performed and as generally performed in the national economy.

What can be frustrating about these claims is that the lawyer knows that he will win the claim at step 5 of the sequential evaluation if he can only get past step 4. But getting past step 4 is not always easy, because Social Security's regulations treat claimants with different vocational backgrounds differently.

Find a limitation that rules out past work

Remember, Social Security must consider your combination of impairments. No limitation is too small to rule out past relevant work. Often, even the DDS RFC assessment will assess a functional limitation that precludes past relevant work.  

You can "mix and match" these impairments in steps 4 and 5. Perhaps a functional limitation from a mental impairment, such as an inablility to work with the general public, rules out one past job. A limitation to only "occasional" reaching might rule out another. And then a less than medium physical RFC will win the claim at step 5 for a claimant age 55 or over (in the absence of transferable skills that would allow a significant range of skilled work within the claimant's RFC, or education that provides direct entry into skilled work).

Getting past step 4 of the sequential evaluation is always important, unless a listing is met. But for claimants of advanced age, or closely approaching advanced age, the step 4 finding will usually determine the success of the claim. 

Recently, I went online and did a search for “disability lawyers”.  As expected, the search produced hundreds of results. For someone looking for a disability lawyer, the options initially seem overwhelming. However, with a little more in-depth investigation one soon discovers that many of these web sites actually advertise for nationally based firms that handle disability cases all over the country, not just Maine or New Hampshire. Let me offer 3 advantages of choosing a small local firm that routinely handles cases in the state in which your hearing will be heard. 

1. Experience with the judges that will decide your case. Since we only handle cases in Maine and New Hampshire, it’s likely we have presented cases before the judge deciding your case – not once, but many times. This means we are familiar with a judge’s style in conducting the hearing including what types of questions a particular judge likes to ask, and whether he or she is likely to issue a bench decision. 

2. In-person client contact. Many firms handling disability cases are so-called “high volume” practices with several attorneys juggling multiple hearings per day or flying to hearings in multiple states. Since we are a small and local practice, we are able meet with our clients in-person and well in advance of the hearing. If your attorney is arriving from out of town or busy handling multiple hearings, chances are your first meeting with your attorney will occur just a few minutes prior to your actual hearing. Meeting your attorney in a relaxed, non-pressured environment well before the hearing is highly preferable to having your first meeting just a few minutes before you see the judge.

3.  Extensive attorney involvement. To handle large case volumes, many firms heavily utilize either paralegals or case managers to prepare your case, with the attorney only becoming involved just prior to the hearing. I have a great legal assistant who keeps in touch with clients regularly and obtains the medical records neeeded to prove a disability case. However, the essential case preparation is done by the attorney. Early in the process, I determine what medical records and medical source statements are needed from your doctors, and develop a winning theory for your case.

In summary, I believe it’s the preparation that happens well before your hearing that can distinguish a small local firm. Keep that in mind when selecting the right attorney for you.

Every other Friday I publish a selection of notable articles published recently in the disability blogs: