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As often as I can, I help workers over the age of 55 who can no longer perform their past work due to physical impairments with their initial disability applications. I have worked with many clients in this age group, and often a claim can be granted without the necessity of an appeal or a hearing, because the initial application is completed properly. 

These claimants come to my office, we talk about their case, and together we apply for disability online on Social Security's website. 

I ensure that I have a winning theory of the case before filing. Then, I help the client thoroughly complete the work history report, being sure to fully describe the requirements of past work. I analyze the past work for transferable skills. Then, I ensure that the claimant describes his or her functional limitations, and ensure that all sources of medical treatment are listed (so that Social Security gets a complete medical record). Lastly, I ask the client which of his or her doctors are the most supportive, so that I can get a doctor's opinion right away.

I recently received the favorable determination for a client who came to my office applied for disability and early retirement. He is pleased to have his disability benefits without any of the delays that can result from errors in the application process.

I think it is important for this group of claimants to have help with their initial application, because mistakes can be very costly, in terms of time waiting for a favorable determination, appeals and the possibility of denied disability benefits. I strongly believe you can maximize your opportunity for the benefits you have earned by involving a disability lawyer at the initial stage, either with the application itself or shortly thereafter.

Every now and then I see a New Hampshire disability claim where the only physical RFC in the record is 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 placed with the jurisdictional documents in 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 Chief Administrative Law Judge Frank Cristaudo, dated May 19, 2010. The Memorandum was reprinted in the June 2010 Social Security Forum, a newsletter for NOSSCR members (Download ALJ Cristaudo Memo).

Typically, the DDS RFC can be a problematic piece of evidence at the hearing level. After all, the claim was denied initially based upon that RFC, and the judge may rely on it to support an unfavorable decision at the hearing level. But with a single decisionmaker RFC, the judge does not have that option. And since New Hampshire is a "prototype" state 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 on the RFC. If it is, alert the judge in your hearing brief.

I attended a good panel discussion regarding on the record requests at the last NOSSCR Conference in Chicago. There were several good points made, and I will summarize a few here.

  • You should write your OTR for a "middle of the road" judge. That is the likely perspective of the attorney advisor reviewing your request.
  • Short or long? I favor a 2-3 page OTR request. My experience has been that the attorney advisors will carefully comb through the file regardless of the length of your request, so I keep it short. 
  • An on the record request gives you the opportunity to present your case at its peak. Over the course of the year or two waiting for resolution of the disability claim, the claimant's condition may vary. Particularly, a claimant with mental impairments may have ups and downs during the claim period. You can file your OTR when the medical record is the most favorable, perhaps just after a hospital stay. Remember, you never know what happens in the future. The claimant may move away prior to their hearing. Or the last progress note before the hearing might read: "Patient feels much better. He is looking for work." Avoid all that by filing an OTR request at the peak of the medical evidence.
  • An OTR request may allow you to avoid an unfriendly judge. I hadn't thought about this before, but maybe your hearing office has one of those dreaded ALJs that only grant 10%, 20% or 40% of the claims they hear, while the other judges in the office have more favorable disposition rates (the national average is around 65%). The attorney advisors are likely to have a viewpoint more like the regular judges in the hearing office. By getting the claim granted OTR, you avoid the chance of having the claim assigned to a judge who would deny an otherwise winning claim. 
  • I find on the record requests very helpful to even out my work load. When I have a few days at the office with no hearings, no deadlines, no appointments, that is a perfect time to write an on the record request in an appropriate case. Even if the request is denied, it will save time in the future when that claim comes to a hearing, because your hearing brief is mostly written.

Clients really appreciate on the record requests. There is much anxiety about the hearing process, and being able to avoid the hearing altogether is always a huge relief. 

I often receive a smaller fee when an on the record decision is made. Because the decision is made quicker, there is a smaller amount of retroactive benefits upon which to base the attorney fee. But a lawyer puts a client's interests first. Further, I think that I make up the difference in good will, future referrals, and by not having to spend two days focused on that claim around the time of the hearing.

Both the New Hampshire ODAR and the Portland Maine ODAR send out a monthly T3 Representative Report. That report, which shows the queue for hearings, is an excellent tool to plan on the record requests. Make sure you are getting these reports from your hearing office.

It can be difficult to get a treating doctor to complete Social Security's medical source statement. When a doctor balks at completing the form, sometimes the doctor will suggest a referral to a physiatrist or a physical therapist for an evaluation, so that the form regarding work-related limitations can be completed. One of my clients had that happen in July.

I just received a partially favorable decision for that case, and the ALJ's written decision contained this gem: "in July 2010 the claimant was referred for a Work Capacity Evaluation, which suggests that the claimant retained the ability to work in a capacity that needed to be determined." 

I have been thinking about that statement, and I think the judge was actually serious, rather than being deeply cynical. Either way, since the claimant was the person requesting the evaluation, it seems a bit harsh to draw that negative inference.

But wait, there's more.

The claimant was referred to a physiatrist prior to the hearing for an evaluation, and that doctor did complete the medical source statement form, assessing functional limitations that were less than the sedentary exertional level. The judge's decision gave no weight to that opinion, for this stated reason: "His opinion contained in a Medical Source Statement conflicts with his referral for a Work Capacity Evaluation."

So the reasoning here seems to be: since the doctor was asked to do a work capacity evaluation, there must be a capacity for work, and therefore the doctor's actual opinion that there is not a meaningful capacity for work will not be given any weight.

I suppose there is a certain circular logic to it.

There is no way to know if this is really the judge's thinking, or if a decision writer just ran amok. Reasoning like this is not usually analyzed in a public way, because Social Security ALJ decisions are not public documents. Even when appealed, the language of the underlying ALJ decision is rarely quoted in a district court opinion. I think it is worthwhile shining a little light on the subject. Perhaps a similar inference can be avoided in the future.

 

I have a new spot on the web for New Hampshire Social Security disability claims. The site is very informative, and was put together by James Attorney Marketing, an arm of James Publishing, a respected publisher of law books on Social Security law and many other topics.

If you scroll down to the bottom of any page, you will find links to helpful articles on a number of Social Security disability topics. James Publishing has developed this material through its library of Social Security books.

In the top left corner, you find links to important topics that I frequently write about, including appealing your denial, and claimants over age 55, and a description of the New Hampshire Social Security disability claim review process.

I have had a site focused on Maine disability claims for several years, so a site for New Hampshire claims was overdue. This blog will continue to address topics that arise in my Social Security disability law practice in both states.

Here are links to recent notable articles from the Social Security disability blogs.

The latest average processing time statistics for Social Security hearing offices around the country were distributed by NOSSCR in the September 2010 Social Security Forum, a newsletter for NOSSCR members. 

The average processing time for the Portland, Maine hearing office is now just 336 days, which is about 11 months.

Processing time runs from the date of the hearing request to the day a decision is issued. The 336 days is an average. Some disability claims are resolved more quickly, but a disability or SSI claim that requires a hearing and a written decision may take longer.

The judges and staff of the Portland hearing office should be commended for this excellent processing time, which is among the best in the country. The delays in Maine are now at the Reconsideration level, where 6 months can be lost waiting for a determination.

 

Loyal readers know that I am a strong proponent of the hearing brief, which is filed into the record ahead of a Social Security disability hearing to assist the judge in the evaluation of the claim. Sometimes a post hearing memorandum is also called for. 

In my experience, a post hearing memorandum is needed when there has been vocational expert (VE) testimony at the hearing, and the VE identified available jobs in response to the judge's hypothetical questions. After 3-4 hypotheticals from the judge, and cross-examination by the claimant's representative, the step 5 analysis can be muddled. A post hearing memorandum can help to clarify.

Social Security Ruling 96-9p, footnote 8 states in part: "Whenever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision." So a quick post hearing memorandum on the topic of the VE testimony is entirely appropriate.

It may be that the judge has already made up her mind by the end of the hearing. But maybe not. You have to assume that the judge is still considering the matter, and that a short post hearing memorandum will be helpful for your claimant.