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A lawyer's principal task at a disability hearing is to persuade the judge that the claimant can't work due to his or her medical condition. The judge, having reviewed the medical record and the rest of the file, must agree that the claimant cannot work or meets a listed impairent.

This task of persuasion starts way before the hearing. Everything the lawyer does – develop a winning theory of the claim, obtain medical records and opinions from doctors regarding the claimant's functional limitations, meet with the client and finally write a hearing brief – should all happen well ahead of the hearing. Hopefully everything is submitted to Social Security early enough to be in the record when the judge first reviews the claim.

Persuasion is the best way to win a claim, and it is the way most hearings are resolved. But you also have to be ready for the alternative.

If the judge is not fully persuaded that the claimant can't work, the representative must use of the full array of Social Security rules and regulations, including the sequential evaluation process, to the claimant's advantage.

You need to have a plan for the hearing to rule out past relevant work at step 4 and other work at step 5. Be ready to contest the RFC with the judge, and to cross-examine a vocational or medical expert.

Do not go down without a fight. You owe that to your client, to yourself, and to the nonadversarial Social Security process, which requires the best of a claimant's representative.

And lastly, if you can't persuade the judge, make sure that you have created a record for appeal. As recent statistics show, almost 25% of cases considered by the Appeals Council are sent back to the hearing level or allowed outright, and over half of the claims appealed to federal district court are remanded or allowed. So build a record for appeal, and keep the claim alive to persuade the judge another day.

 

If you receive a denial letter from Social Security regarding your application for Social Security disability benefits, you must appeal that denial of benefits within 60 days.

Initial disability claims get denied for many reasons, and many denials have nothing to do with the merit of your disability claim. A common mistake made by claimants is that, instead of appealing a denied claim, they reapply again (and are denied again). Avoid that mistake! You will improve your chances by appealing. You will ultimately have a hearing with a U.S. Administrative Law Judge (ALJ). The hearing level is your best chance to have your claim for disability benefits granted.

Every two weeks I publish a roundup of the notable posts from Social Security disability blogs:

The Disability Blog Roundup will take its customary hiatus for the holidays, and will return on Friday, January 7th, 2011.

It has been a while since I have seen a step 2 decision, but I saw one last week. A step 2 decision means a disability claim is denied at step 2 of Social Security’s sequential evaluation. That step is a determination of whether or not your impairment, or combination of impairments, is “severe” under Social Security’s rules.

It is pretty rare to see a step 2 decision, because the bar is set pretty low. Social Security Ruling 85-28, entitled Titles II and XVI: Medical Impairments That are Not Severe, states in part:

A claim may be denied at step two only if the evidence shows that the individual’s impairments, when considered in combination, are not medically severe, i.e., do not have more than a minimal effect on the person’s physical or mental ability(ies) to perform basic work activities. If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.

As a practical matter, you see a step 2 decision when the judge wants to deny the claim and knows better than to throw the claimant into the briar patch of steps 4 and 5. For example, in this recent case, past work was “very heavy,” and the claimant is over 60, and would grid “disabled” at step 5 at anything less than medium exertional work. Under these circumstances, from the perspective of a denying judge, it is worth a try to write a step 2 decision. 

It is really an act of grace when a judge decides to cancel a scheduled disability hearing, and grant the claim on the record.

I cannot tell you what a tremendous relief it is, every time, for the client to be spared the anxiety and stress that accompany the hearing.

This happened today with one of Manchester's senior judges. And an act of grace is just right for this season of Hanukkah and Advent.

I get inquires regarding partial disability every now and then. Potential claimants believe they may qualify for partial Social Security disability benefits. They could still work a bit, but can no longer do the same job, or earn the same income, they earned before.  Or perhaps, due to their medical condition, their earnings have dropped significantly because of lost time at work.

The Veterans Administration awards partial disability. And often in workmen's compensation claims, you will see a doctor's opinion that the patient has a certain percentage disability. But these are generally medical-based findings. A Social Security disability determination also has a vocational element.

With Social Security disability, it is all or nothing. Either you can work or you can't. If you are working and earning wages more than $1,000 gross pay per month (that's substantial gainful activity for 2010), then you do not qualify for disability (there are some limited exceptions, such as Impairment Related Work Expenses; so if your income is very close to $1,000 per month, do not assume that you can't qualify for disability; talk to a Social Security disability lawyer). There is no partial disability for Social Security.

When Social Security assesses your ability to work, they must assess your ability to work full-time, on a regular and continuing basis. So this "all or nothing" approach can benefit certain claimants, who may retain an ability to work part-time. Those claimants are still eligible for full disability benefits.

Every now and then I submit a statement from a spouse, parent or friend in support of a disability claim. 20 CFR 404.1513 states that Social Security will consider evidence from other non-medical sources, such as a spouse or a parent.

In an appropriate case, where you have the right person with the right story to tell, it can be powerful evidence. A non-medical, or “lay” statement is powerful evidence because it puts a disability case in a human context.

The statement is usually a 2 or 3 page typed document. It will usually tell the story of how the claimant used to be, what changed medically, and what life is like now.  There is a genuineness to these statements, and they are often very moving.

The statement should be in the record when the judge reviews the claim prior to the hearing. In a typical case, prior to the hearing the judge can only review the medical records and various Social Security forms that are in the claim file. The human element is missing until the actual hearing, when the judge finally meets the claimant. The statement adds the human element to the disability claim file.

The statement often provides an excellent summary of the claim. And since the statement is in the record as evidence, you can refer in your hearing brief.

Look at the cases you have coming up for hearing. One or more of them might benefit from a statement from a spouse, parent, sibling or friend.

Update: I have written several additional posts on this topic:

Here is a collection of recent posts on the topic of Social Security disability to read over the holiday weekend.