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I just received an on the record decision from the Portland Hearing Office for one of my clients. An "on the record" decision is a fully favorable decision granting the claim on the record without a hearing.

What is notable about this particular decision is that it was made on the exact same record evaluated by DDS when it denied the claim at Reconsideration. No new evidence had been filed at the hearing level. So a judge reviews the case and sees it as a clear winner, yet DDS denied the claim. What gives?

My view is that DDS does not give the requisite weight to examining and treating doctors' opinions. In this claim, both the consultative exam report and the treating physician assessed limitations that precluded work. While these opinions are not totally ignored by DDS, they are not given the weight to which they are entitled under Social Security's regulations and rulings. See 20 C.F.R. 404.1527 and Social Security Ruling 96-2p. 

I am not alone in this view. A recent post by Tim Moore, a former disability examiner, states that Social Security rulings are simply not considered by DDS examiners.

The opinions of examining doctors and treating doctors receive much more deference at the hearing level, in my opinion. This is one of the reasons why getting to the hearing level is so important, and why you must appeal the denial of your claim at the initial or reconsideration level.

Every now and then I see a claim involving mental impairments where the GAF score assessed in the clinician’s treatment notes is higher than you want to see as a disability lawyer. 

A GAF score of 65, for example, normally would not denote a disabling mental impairment. However, most of the GAF scores in a disability case are assessed in periods when claimant is not working. The GAF score would not necessarily remain as high should the claimant attempt to work.

This reasoning is recognized in Social Security’s regulations and rulings. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00C3 states:

We must exercise great care in reaching conclusions about your ability or inability to complete tasks under the stresses of employment during a normal workday or work week based on a time-limited mental status examination or psychological testing by a clinician, or based on your ability to complete tasks in other settings that are less demanding, highly structured, or more supportive.

Social Security Ruling 85-15 states, in part:

The reaction to the demands of work (stress) is highly individualized, and mental illness is characterized by adverse responses to seemingly trivial circumstances. The mentally impaired may cease to function effectively when facing such demands as getting to work regularly, having their performance supervised, and remaining in the workplace for a full day. A person may become panicked and develop palpitations, shortness of breath, or feel faint while riding in an elevator; another may experience terror and begin to hallucinate when approached by a stranger asking a question. Thus, the mentally impaired may have difficulty meeting the requirement of even so-called “low stress” jobs.

First Circuit case law echoes this conclusion. See Lancellotta v. Sec’y, H.H.S., 806 F.2d 284 (1st Cir. 1986), which cites Ruling 85-15 and notes its requirement for an individualized consideration of the claimant’s reaction to the stress of the workplace.

In summary, a GAF score of 65 is not what you want to see as a Social Security disability attorney for a claim relying principally on mental impairments. But it is not the end of the world, and the GAF score should be put in a proper context for the U.S. administrative law judge deciding the claim.

Every two weeks, we round up articles of note from the Social Security disability blogs:

The latest statistics for average processing time have been released by the SSA. The Portland Maine Social Security hearing office has a waiting time of 326 days, or about 11 months, for a decision.

Processing time runs from the day the hearing office receives your hearing request to the day a decision is issued. The 326 days is an average. Some claims are resolved more quickly. A claim that goes to hearing and a written decision may take longer.

While it is hard to wait for a hearing date, the Portland office has one of the shortest waiting times for a hearing in the country.

The Manchester, NH Social Security hearing office has an average processing time of 412 days, or about 14 months, for a decision in a disability case.

While the average waiting time for a hearing decision in New Hampshire is 86 days longer than in Maine, New Hampshire is a prototype state that skips the intermediate Reconsideration step of the Social Security disability process. Since months 4-5 are not being lost in New Hampshire waiting for a Reconsideration determination, claims are actually moving from the initial denial to hearing more quickly than in Maine.

We just got the news that a client's initial disability claim was granted. I could not be more pleased. 

This client is over 55 years old and has a 30 year work record. He came to see me before applying for disability benefits. We were able to gather all the important details before completing the online application. We listed all his medical sources. We wrote a detailed work history report. We explained in the application what his functional limitations were, and why his past relevant work was precluded. This process takes several hours.

For the lawyer, it means front-loading the time spent on a disability claim. The hours of getting to know a client, the medical history and work history, are all spent before even applying for benefits.

For the claimant, getting help prior to the application process means that common mistakes are avoided, all the necessary details are included, and the application is supported by a winning theory of the case.

If you can no longer do the sort of work you've done in the past, consider getting a disability lawyer involved early in the process.

I recently came across this website for two Florida chiropractors who are holding themselves out as Social Security disability specialists representing Social Security disability claimants nationwide.

The site repeats this statement several times: The Social Security Administration requires that, "You must prove the MEDICAL condition, NOT the legal reason why you cannot work." The clear implication is that a doctor would be a better choice than an attorney to handle a Social Security disability claim. 

I must disagree. Here are 7 quick reasons why:

  1. Proving your medical condition is just the beginning of a successful Social Security disability claim. You must then prove that your medical condition either meets a listed impairment or prevents you from working. (see Social Security's sequential evaluation). Either approach requires interpreting Social Security's extensive regulations and rulings, which is squarely the province of a lawyer.
  2. A Social Security claim requires one to develop a winning theory of the case and then develop evidence in support of that theory. Legal training is central to these tasks.
  3. Representing a claimant requires determining how the detailed Social Security regulations interact with the unique facts of a particular claim. Applying the law to the facts of a case is what lawyers do.
  4. A Social Security claimant's representative must persuade the decisonmaker that the claim should be granted. Persuasion is what lawyers do.
  5. I write a prehearing memorandum for every case, explaining to the judge why the claim should be granted under Social Security's rules. Lawyers are trained writers.
  6. The judge is a lawyer. Who do you want sitting next to you at the hearing?
  7. Should your claim be denied at the hearing level, you can appeal to the Appeals Council and, when necessary, file suit in U.S. District Court. You won't see any doctors there.

That's the first 7 reasons that came to mind. I am sure that there are others. If you have another reason, or if you disagree, please leave a comment.

When I first talk with prospective clients, there is often some confusion about the benefits of having an attorney's help with their disability claim. Obviously, I believe that disability claimants are much better off with an experienced Social Security lawyer overseeing their claim, but I sometimes need to explain why to prospective clients.

I have added a page to my Maine Social Security lawyer website to address the issue. The new page discusses 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.
  4. Help you tell your story.
  5. Represent you at the hearing.
  6. Ensure that you are paid correctly.
  7. Be your guide.

Check out the how a lawyer can help page for an explanation of each. I think it is a good list. Any thoughts on items that might be added?

Here is the (every other) Friday Roundup of notable articles from the Social Security disability blogs. This Roundup includes an excellent new Social Security disability law audio podcast from Steven Butler: 

It's that time of year, and many successful Social Security disability claimants who received a lump sum of retroactive benefits in 2009 are now assessing the income tax consequences.

I am not a tax lawyer, and you won't be getting tax advice from me. However, there is an excellent web page available from the National Organization of Social Security Claimants' Representatives (NOSSCR) on Social Security and income tax. The page answers most common questions regarding disability benefits and income tax.

I will repeat NOSSCR's caveat: the page provides general quidance only. Consult a tax professional for specific advice.