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Typically in a Social Security disability claim, DDS only obtains the medical records for one year prior to your alleged onset date. DDS is concerned with the severity of your impairments during the period of disability. They understandably focus their efforts on that time frame.

However, older medical records can be important. First, older record can help to establish a favorable onset date. And if there is a previous application, you are going to want to get the older records for reopening.

More importantly for me, the older records can help to tell the story. Every case has a story, and older medical records provide invaluable context for the judge at the hearing. Often, for example, a claimant has been struggling with an impairment for years, and only recently did the impairment become truly disabling. Those older records will help to the judge to see what changed to make employment impossible. So get the older records.

Hat tip to Tim Moore, who mentioned obtaining older records in a recent article discussing tips for your disability claim.

I recently submitted an on the record (OTR) request to the Manchester, New Hampshire hearing office. It was a particularly strong case, with compelling evidence of disability. Further, much of the evidence (school records, vocational rehabilitation assessments, medical source statements from treating doctors) had not been developed by DDS or considered when the claim was initially denied. 

I filed that OTR request on a Monday. Before 9 AM on Wednesday morning I got a call from a staff member at the Manchester hearing office saying that a judge had reviewed the claim and that a fully favorable decision would be issued. So less than 48 hours after I submitted the OTR request, I learned that it would be granted. That is tremendous efficiency, by any standard. Perhaps this is one reason why the average processing time for claims at the Manchester hearing office continues to improve.

There are a three quick lessons from this experience:

  1. You should file on the record request when you have a clear winner. The hearing office judges and staff will take advantage of the opportunity to resolve the claim without having to expend the resources required for a hearing. And of course, the client avoids the stress of a hearing and will appreciate the award of disability benefits.
  2. I have done better with OTR requests since I started explaining why the DDS decision was wrong. Rather than just ask for a favorable decision, I point out the errors made by DDS, and how those mistakes affected the DDS determination. Often, if the DDS mistakes are corrected (and the new evidence considered), a fully favorable decision is appropriate. So don't treat the OTR request like a de novo review of the claim; instead, explain why the determination below was erroneous.
  3. Finally, if you are an attorney-advisor or judge's assistant at a Social Security hearing office, and you are granting an OTR request, give the claimant's attorney a call! It's a welcome professional courtesy, and believe me, that lawyer will be happy to talk with you.

AV-rated attorney Geri Kahn has an excellent article on her California Social Security Lawyer Blog entitled It helps to be local.

Geri tells a story of visiting the local Social Security office to resolve a payment issue for a client. A supervisor approved the payment on the spot.

Geri concludes her post with this thought:

I wonder how attorneys at national firms are able to represent claimants effectively.  Despite the existence of amazing technology, I have learned that it sometimes takes a personal inquiry to obtain a result.

Well, I could not agree more. Sometimes a visit to the local Social Security office can help to expedite a claim. The ability to stop by the local office (or the hearing office) is part of the home field advantage enjoyed by a local disability attorney.

Autism is certainly a basis for a Social Security disability claim, and there is a listed impairment for “Autistic disorder and other pervasive developmental issues” See Adult Listing 12.10 and Childhood Listing 112.10.

Typically we see autism as the basis for a childhood disability claim. However, we also see it quite a bit with a 19 year old claimant as the basis for a Social Security disability or an Adult Child Disability claim.

Every autistic child exhibits different symptoms and has a different place on the autism spectrum. These cases can take some time to see where your client fits.

Here is the adult listing:

12.10 Autistic disorder and other pervasive developmental disorders: Characterized by qualitative deficits in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity. Often, there is a markedly restricted repertoire of activities and interests, which frequently are stereotyped and repetitive.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied.

A. Medically documented findings of the following:

1. For autistic disorder, all of the following:

a. Qualitative deficits in reciprocal social interaction; and

b. Qualitative deficits in verbal and nonverbal communication and in imaginative activity; and

c. Markedly restricted repertoire of activities and interests;

… AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration.

Overall, the “B” Criteria of listing 12.10 are a natural fit for an autistic claimant. Common symptoms of autism include restricted daily activities, difficulty in social functioning, and difficulty with concentration, persistence or pace. If the criteria of part A are met, in most cases part B will also be met, because the two parts are describing and measuring the same areas of functioning.

The autism listing differs in this respect from the other mental disorder listings where the disorder is defined in part A and the severity is measured in part B. Usually the two parts are largely unrelated. See, for example, listing 12.06 for anxiety. But with the autism listing, both the A and B criteria describe the same general areas of functioning.

Of course, it is quite possible for a mildly autistic person not to meet the “B” criteria. But this natural fit between the A & B criteria of the autism listing makes the listing much more likely to be met.

 

A claimant's school records can often provide valuable evidence in a Social Security claim. Obviously, in a child SSI claim, the school records are always necessary. In an adult child disability claim, the school records may help to establish that the disability existed prior to age 22. Likewise, in a case involving listing 12.05, school records may contain an IQ test or other evidence that the mental impairment existed prior to age 22 – a requirement of the listing.

But school records can come in handy unexpectedly. Sometimes the claimant doesn't tell you everything. Occasionally a straight-on physical impairment case takes on a new dimension when the school records are obtained. You just never know. So get the school records.

School records are also easy to obtain. Just send a polite letter to the school requesting them, along with an information release signed by the claimant.

This is the 200th post on the Social Security Disability Lawyer blog. I've been thinking about it, and I feel that I just have to acknowledge the milestone.

I did not anticipate this when I began, but the blog has become part of my daily life. My first post was exactly 16 months ago, on May 10, 2008. My 100th post was 8 months later. And here we are at post number 200. I am proud to have maintained such a workmanlike pace.

Writing this blog has made me a more disciplined writer, and a better lawyer. It has changed the way that I think about myself. And the monthly visitors to the blog include readers from all 50 states. That is just terrific.

Most importantly, I think the blog has helped its readers. Just today I received an email from a reader in Vermont with a pending Social Security disability claim. He had accurately analyzed his claim under Social Security's sequential evaluation by reading this blog. That is awesome.

Thank you for reading.

The hearing office in Portland has lost an administrative law judge. Judge Stephen Ponticiello left the Portland ODAR this Summer, to return to the Department of Justice. We wish him well. On a personal note, while I only had a few hearings with Judge Ponticiello, I really liked the way that he made claimants feel comfortable at the hearing.

Visiting judge Virginia Kuhn, a Hartford Connecticut ALJ, has been deciding Portland claims all year. She will continue to hear Portland claims until (I assume) a new judge is permanently assigned to the Portland ODAR.

The SSA has released a excellent set of Social Security Rulings regarding child SSI claims. The Rulings are comprehensive, and offer invaluable guidance regarding determining childhood disability.

SSR 09-1p: Title XVI: Determining Childhood Disability Under the Functional Equivalence Rule —The "Whole Child" Approach

SSR 09-2p: Title XVI: Determining Childhood Disability — Documenting a Child's Impairment-Related Limitations

SSR 09-3p: Title XVI: Determining Childhood Disability — The Functional Equivalence Domain of “Acquiring and Using Information”

SSR 09-4p: Title XVI: Determining Childhood Disability — The Functional Equivalence Domain of “Attending and Completing Tasks”

SSR 09-5p: Title XVI: Determining Childhood Disability — “Interacting and Relating with Others”

SSR 09-6p: Title XVI: Determining Childhood Disability — The Functional Equivalence Domain of “Moving About and Manipulating Objects”

SSR 09-7p: Title XVI: Determining Childhood Disability — The Functional Equivalence Domain of “Caring for Yourself”

SSR 09-8p: Title XVI: Determining Childhood Disability — The Functional Equivalence Domain of “Health and Physical Well-Being”

These Rulings are a must read before you prepare your next childhood disability claim.

I filed an "on the record" request yesterday for a client with severe Charcot-Marie-Tooth disease. Charcot-Marie-Tooth (named after the three doctors that first identified the disease) is a hereditary neurological disease that affects the peripheral nerves. The resulting peripheral neuropathies cause loss of function and, in the case of my claimant, chronic pain.

The unusual thing about this claim file is the RFC assessment from Disability Determination Services (DDS). Of course, the DDS physical RFC assessment did not consider the primary care doctor's opinion regarding the claimant's functional limitations. That happens all the time. But additionally, the DDS physical RFC also contained this summary:

With medical evidence as above, expectation is for gradual worsening… . However, it is our sense that, at least currently, claimant’s musculoskeletal status has not (as yet) quite reached the point where all work is not possible.

As I worked on the OTR request, I read that summary over and over again. I mean, come on! Naturally, the staff at DDS must ascertain whether or not a claimant has the capacity to work. But this RFC assessment goes too far, and they knew it when they wrote it. I have never read a more apologetic RFC.

The claimant can't work. He states that his life has been ruined by this hereditary disease and the accompanying chronic pain and loss of function. 

The claimant's primary care doctor expressly listed numerous work related activities that the claimant could not perform. Not considered by DDS.

Now that the claim is at the hearing level, we also have a medical source statement from the treating neurologist, setting forth limitations precluding work at step 5 of the sequential evaluation.

There is no contrary evidence in the claim file. The claim should have been granted by DDS. Now, it will hopefully be granted on the record, so that this claimant does not have to wait for a hearing.

{update: this claim was granted on the record on 9/24/2009}

I am frequently asked about the timeline for a Social Security claim. How long does it take?

The initial consideration of your claim usually takes 4-5 months. If your claim is denied and you appeal,  the next step depends upon where you live. 40 states, including Maine, use an intermediate Reconsideration step in the claim process. In 10 "prototype" states, denied claims proceed directly to a hearing by an administrative law judge.

For states with Reconsideration, that process usually takes another 4-5 months. Claims that are denied at Reconsideration and are appealed will go to a hearing.

The wait time for a hearing varies dramatically in different regions of the country. In Maine, the average processing time is just about 9 months, which is a country-leading performance. In other parts of the country, average claim processing times are significantly longer, and can be as long as 24 months.

Tip: To shorten your wait, appeal a denied claim right away.