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In Region 1, which comprises the New England States, we have the Decision Review Board (DRB) as a legacy of the DSI process. Most claims that are denied at the ALJ level are selected by the DRB for review. So instead of an Appeals Council appeal, we have the Decision Review Board. The DRB review takes 90 days. When the DRB selects the case for review, it is automatic. You don't have to do anything. In my recent experience almost all unfavorable decisions are selected for review. 

You have the option of submitting a written statement to the DRB within 10 days explaining why you disagree with the ALJ's decision. So you have to act pretty fast. Nevertheless, I almost always submit a detailed written statement. 

But here's the thing. The DRB process must be completed within 90 days. If 90 days go by, and the DRB doesn't get around to reviewing the claim, you get a letter saying sorry, we did not get around to reviewing the decision. As a result of that nonreview, the ALJ's decision becomes the final decision of the Social Security Administration.

So far, every claim I've had go to the DRB has resulted in a letter saying that the DRB did not conduct it's review within 90 days. Every one. It is very frustrating. Furthermore, you lose the option of going to the Appeals Council. The usual complaint about the Appeals Council, which is the next level of review after the ALJ for most of the country, is that the Appeals Council review takes a long time. I have had claims at the Appeals Council for well over a year. But at least they get around to conducting a review eventually, and almost a quarter of those claims are remanded or allowed.

When the DRB process is not completed within 90 days, it says to the claimant: "Your claim was not important enough for us to review." It is really a terrible message from a federal agency to a citizen requesting services.

I have a few decisions pending at the DRB that are particularly egregious ALJ decisions. The same person at SSA is in charge of the Appeals Council and the DRB. I have emailed her to ask (to beg, really) that the DRB review a each of these claims within the allotted 90 days. I have received no response.

A DRB 90-day non-review means that federal district court is now the de facto first level of appeal of the ALJ decision. The number of district court filings is increasing dramatically in New England, because obviously flawed decisions that would be routinely remanded by the Appeals Council are now being sent to the DRB and then not getting reviewed within 90 days. Making the U.S. District Court the the first level review of an ALJ's decision is a poor use of scarce federal judicial resources. Our district court judges and magistrates are going to see those 25% of cases that are usually sent back by the Appeals Council. 

While DSI process has been mostly abandoned, the DRB still lives on. One wonders whether the DRB has the resources it needs. Until it is dissolved, however, it is a cause for concern here in New England. 

In a Social Security disability case, the record often contains a Residual Functional Capacity (RFC) or a medical source statement that sets forth limitations like these: lifting and carrying 10 pounds occasionally and less than 10 pounds frequently, standing and/or walking for about 2 hours in an 8-hour work day, sitting about 6 hours in an 8-hour day, occasional postural limitations, and occasional reaching. This is basicially a sedentary RFC with occasional posturals and occasional reaching.

Reaching means extending the hands and arms in any direction, and includes working with your hands in front of you. Occasionally mean up to one-third of the work day. Read more about manipulative limitations and Social Security Disability.

This should be a winning RFC. Social Security Ruling 83-10 states that sedentary work requires “good use of the hands and fingers for repetitive hand-finger actions.” Social Security Ruling 83-14 states:

a limitation to unskilled sedentary work with an additional loss of bilateral manual dexterity that is significant…warrants a conclusion of “Disabled.” (The bulk of unskilled sedentary jobs requires bilateral manual dexterity.)

Whether you are doing desk work or factory work (the two main categories of sedentary jobs), you must have good use both hands. As a result,the unskilled sedentary occupational base is severely eroded by the limitation of occasional reaching. Other nonexertional limitations would further erode the occupational base. See Social Security Ruling 96-9p for the implications of an RFC for less than sedentary work. Under Social Security’s rules, a fully favorable decision is appropriate in most cases based upon this RFC.

But when the judge has a vocational expert (VE) at the hearing, this outcome could change. If the judge asks that VE a hypothetical questions with the same functional limitations described above, the VE likely will testify that two unskilled sedentary jobs described in the Dictionary of Occupational Titles are available: surveillance system monitor (DOT Code 379.367-010) and call-out operator (DOT Code 237.367-014).

Those are the two sedentary jobs in the DOT that require less than frequent reaching. Call-out operator requires only occasional reaching, and surveillance system monitor requires no reaching at all. These two jobs are a thorns in the side of a claimant’s representative, because VEs cite them all the time.

Now, with only two jobs remaining out of the entire unskilled sedentary occupational base, one would think that the unskilled sedentary job base would be severely eroded. Nevertheless, those two jobs are enough to lose a disability claim.

Of course, this raises two fairness issues:

  1. Claimants with the same limitations are getting one result at a hearings without a VE, and potentially getting a different result after a hearing with a VE.
  2. The SSA uses the occupational data contained in the Dictionary of Occupational Titles (Fourth Edition), which was compiled by the U.S. Department of Labor back in 1991 and has not been revised or updated since that time. So your claim is denied based upon occupational data that is 20 years out of date. Think about how much the workplace has changed in 20 years.

But complaining about fairness is not going to help your client at the hearing. If you cannot persuade the judge that there are additional limitations to those listed above, and the VE lists these two jobs, what do you do?

Well, of course you can cross-examine the VE on the job numbers. It is pretty well known that there are no statistics available with job numbers by DOT code, so the VE’s job numbers are going to be, to put it gently, an estimate. The judge knows it, and a vigorous cross may not change the result.

Nevertheless, surveillance system monitor, as that job is described in the DOT, does not really exist today. So it is definitely worth asking the VE about the DOT definition, which specifies government-owned transportation centers. If the VE strays from that definition, then what is the source for his statistics regarding numbers of jobs?

Both these jobs are GED Reasoning level 3 jobs. So if there is an additional limitation to simple tasks, the jobs should be precluded by that limitation.

You must anticipate this VE testimony ahead of the hearing and prepare for it. You should never be surprised to hear the VE list these two jobs in response to a hypothetical containing the above RFC. Ideally, you can scour the record and find some nonexertional limitations that would preclude these two particular jobs. And have your cross-exam ready.

The Social Security disability blog roundup is back from its holiday hiatus. Here are the links to recent notable posts from the disability blogs:

It is not exactly news, since it was announced months ago, but it is worth noting at the beginning of the new year that the substantial gainful activity (SGA) amount for 2011 will remain at $1,000 per month for non-blind individuals. Here are the SGA amounts since 1975.

The SGA determination is step 1 of Social Security's 5-step sequential evaluation. For Social Security disability or SSI, you must have (or expect to have) a 12-month period during which you do not have earnings at the SGA level.

If you are an employee earning more than $1,000 per month, you are probably not eligible for Social Security disability benefits. See 20 C.F.R. 404.1574. I say probably not, because other factors are considered, including IRWEs and UWAs. 

If you are self-employed, the test for SGA is a more complicated. See 20 C.F.R. 404.1575.

When you file a Social Security disability claim, it goes to a state agency for a medical determination. The agency is called Disability Determination Services (DDS) in Maine, but some other states have slightly different names for their agencies. In Maine, the first appeal of a denied disability claim also goes to DDS for Reconsideration.

The backlogs at the Maine DDS have been growing, particularly for Reconsideration claims. Some claims that were appealed in September have not yet been assigned to a disability examiner.

The Maine DDS is now getting help with its backlog. Hundreds of disability claims have been transferred from the Augusta DDS to Social Security's Office of Medical and Vocational Expertise in Baltimore. That office, which has a substantial staff, will assign disability examiners and conduct medical-vocational reviews of the claims. This arrangement will continue until the Maine DDS gets caught up on its workload.

I have started getting mail from disability examiners at the Office of Medical and Vocational Expertise as they ramp up on the Maine claims.

There is a great expression that you sometimes see in federal court decisions that are reviewing Social Security administrative law judge (ALJ) decisions. It goes like this: “The ALJ failed to build a logical bridge from the evidence to his conclusions.” See, e.g., Gaylor v. Astrue, No. 07-2206 (7th Cir. Sept. 8, 2008)(link opens a pdf).

The logical bridge is a polite, federal-judge way of saying that the reasons given in an ALJ decision make no sense, and do not support the conclusion reached.

You may see this expression in a federal court decision when the ALJ’s credibility determination fails to articulate why the claimant’s allegations of disability were contradicted by the claimant’s activities of daily living.

I saw this description of a claimant’s activities of daily living (ADLs) in a recent decision: 

In July of 2009, she reported that she was able to perform light housework, cook meals, and care for a small dog. She was able to shop in stores, drive a car, and visit with friends or family on a weekly basis. Such activities are inconsistent with a finding of total disability, and would rather suggest the ability to perform at least light exertion work.

Why do these activities suggest the ability to perform at least light work? The judge doesn’t say. Remember, light exertional work, in addition to lifting and carrying 20 pounds occasionally, requires a worker to be on her feet for most of a workday. That means up to 6 hours a day. See Social Security Ruling 83-10. Further, competitive work requires a person to work on a regular and continuing basis – 8 hours a day for 5 days a week, or an equivalent schedule (Social Security Ruling 96-8p). So what is the logical connection between the judge’s list of activities and the ability to stand and/or walk for 6 hours a day for a 5 day workweek? There isn’t one. The ALJ’s decision provides no explanation.

The claimant, both in her Adult Disability Report and her hearing testimony, was very clear that her activities in a day varied dramatically depending upon how she was feeling on that particular day. On most days, she would be unable to perform many of the “daily” activities listed in the decision.

Judge Posner wrote about a similar situation in the Seventh Circuit case of Carradine v. Barnhart:

But there is a deeper problem with the administrative law judge’s discernment of contradiction. He failed to consider the difference between a person’s being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week.[citing cases] Carradine does not claim to be in wracking pain every minute of the day. When she feels better for a little while, she can drive, shop, do housework. It does not follow that she can maintain concentration and effort over the full course of the work week. The evidence is that she cannot.

Judge Posner’s opinion also summarized the case of Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001), which noted that the claimant’s daily activities “did not consume a substantial part” of the claimant’s day, and that her ability to do those activities does not necessarily transfer to the work setting, in terms of the impact of pain. Therefore, the ALJ’s unfavorable decision was reversed.

When you receive an unfavorable ALJ decision for a claim that should have been granted, look for an explanation of why the claimant’s activities of daily living are inconsistent with her allegations of disability. Look for the logical bridge between the evidence and the ALJ’s conclusion. It is often missing, and that is cause for reversal.

I am pleased to begin the new year by welcoming Collette Cushing to this blog. Collette joined my law office last year as of counsel. She has extensive experience with Social Security disability hearings. Look for Collette's posts, in addition to my own, in the future.

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I am asked what to expect at the hearing by almost every client. I would like to dispel some of the more common misconceptions and concerns that exist about the hearing. 

1. On my hearing day, I’m going to court.

Disability hearings are federal administrative proceedings, and are not held at your local courthouse. Most hearings are actually held in office space rented by the Social Security Administration or in federal buildings. In some states, hearings are held in conference rooms of a hotel. For our clients in Maine and New Hampshire, hearings are held in both office buildings (Portland, Maine, and Manchester, New Hampshire) and federal buildings (Augusta and Bangor, Maine). The hearing room is usually a moderately sized “non-descript” room, where there will be a table for you and your attorney, as well as tables for the hearing reporter, any experts requested to attend your hearing, and the judge. In some cases, the hearing will held by video-teleconference, where you and your attorney are in one location and the judge is in another. While the hearing is informal, testimony is taken under oath, and an audio recording is made. Take some time to read the Notice of Hearing, which will give you the time, date and location of your hearing and whether it will be held by video-teleconference. 

2. I should wear my “Sunday best” for my hearing.

In general, I tell claimants to come as they are. It actually could send the wrong message if you dress in a way that is inconsistent your typical attire. Often medical providers, especially therapists and counselors, will mention your overall appearance and sometimes even what you are wearing. However, you do want to be respectful to the judge, so I would stay away from clothes that could be distracting or disrespectful. If in doubt, don’t be afraid to ask your attorney. 

3. I’m not sure if I should take my medications before the hearing.

This is a tricky question. I usually suggest that clients consult their doctor if they are concerned about medication side effects, including sedation. While you want to be comfortable at the hearing, you must be mentally competent to provide testimony and for the attorney to represent you.   

4. I’ll need to bring in witnesses or subpoena medical providers.

In general, the only people in the hearing room will be the claimant and attorney, hearing reporter, any experts, and the judge. This is because the claimant is usually the best witness for their own case. However, there have been occasions where I’ve had a spouse, parent or close friend testify. I’ve also had the even rarer occasion where a medical provider has voluntarily come to provide their expert opinion. But, I cannot compel or subpoena a witness; only the administrative law judge has that power. Instead, a medical source statement from your doctor or a third party statement from someone who knows you well is often just as powerful. This is why it’s important to have an attorney who will meet with you well ahead of the hearing to discuss what evidence will be needed to prove your disability.

5. My attorney will do most of the talking.

While the attorney will have the opportunity to question the client and cross-examine any experts as needed, the claimant will do most of the talking. This is the point of the hearing. The attorney’s primary job at the hearing is to elicit testimony which can only come from sworn witnesses, such as the claimant. 

6. I’m afraid I’ll forget to tell the judge an important detail about my case.

The hearing can be stressful and this is a good reason why having an attorney represent you is important. I meet with clients well ahead of the hearing. This meeting not only helps our clients prepare for the types of questions that will be asked but also helps the attorney to remember and ask about those important details, in case you forget. 

7. If I don’t “look disabled” the judge will not find me disabled.

Commonly, I get this question from younger clients as well as those suffering from conditions that aren’t readily apparent, such as vertigo, or those conditions that “flare” intermittently such as fibromyalgia or arthritis. To this question, as with other concerns about how the judge will perceive their condition, I usually respond by telling the client not to concern themselves with trying to figure out what the judge is thinking. This usually doesn’t work anyway. For the most part, judges are sensitive to the fact medical conditions do not always outwardly manifest themselves, and that many medical conditions may cause “good” and “bad” days. It’s also important remember that judge is supposed to decide the case on the medical evidence not whether or not you “look disabled.” 

8. I’ll know the outcome of my hearing the same day.

It depends. Again, this is why it’s important to choose an attorney familiar with the judge that will decide your case. In Maine and New Hampshire, there are a couple of judges that routinely indicate when the claim will be approved that same day. There are judges that will issue a bench decision. There are also judges that, in the appropriate case, will issue an on the record decision, eliminating the need for the hearing altogether. And, there are judges that give no indication and prefer to review the record again before issuing the written decision.

Certainly, there are many other common concerns that deserve mention. Again, this is why it is important to meet with your attorney well before the hearing to better understand what is likely to happen at your hearing, and the areas likely to be covered in your testimony.

Every now and then I see a decision that contains a sentence like this: "The evidence on record does not support a finding of total disability." I find the use of the term "total disability" in an ALJ's decision worrisome, because total disability is not necessary to prevail in a Social Security disability claim under all circumstances.

For example, for a claimant age 53 with past relevant work at the light or medium exertional levels, a finding of "disabled" is appropriate with a sedentary residual functional capacity (assuming, of course, no transferable skills). A sedentary residual functional capacity reflects a substantial work capacity, yet medical-vocational rule 201.14 directs a finding of "disabled" at step 5. So a person can still have a capacity for work, and nevertheless be found disabled under Social Security's rules. That is one reason why legal help is particularly helpful for claimants over age 50.

"Total disability" is a misnomer that, in my view, does not belong in a Social Security disability decision. It is a workmen's compensation term. In that area of law, a worker might be found partially or totally disabled. You also see percentages of disability in VA benefits claims. With Social Security disability however, use of the term total disability is imprecise language at best. There is no partial disability or total disability; you are either disabled under the rules or you are not. 

It may seem like a minor point, but legal professionals use precise language for a reason. It tends to avoid misunderstandings. There are already many people who mistakenly believe that Social Security disability requires a total inability to work at any job. It does not, and we should not further that misconception by using language that suggests otherwise.

Here are links to a few articles from the past 3 months that are worth reviewing, or reading for the first time if you missed them when originally published.

As always, thank you for reading.