Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.
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I am still mining the gold from Charles Martin’s excellent set of practice tips, entitled Ten Common Reasons a Hearing or Court Appeal May Be Lost, which appeared in the January 2009 Social Security Forum.

Listed below are three related reasons from Mr. Martin why a hearing may be lost (I have added links for certain phrases). Avoid these mistakes:

Failure to prove the specific functional limitation(s) precluding past relevant work, and to verify which work is PRW by verifying recency, SGA-level earnings, and duration satisfying the SVP (specific vocational preparation) requirement.

Failure to get claimant testimony identifying functions necessary for past relevant and other work the claimant can no longer do, and why.

Failure to get treating physician(s) opinions showing that the claimant cannot do functions required for past relevant and other work, and why.

Establishing your functional limitations is the “nuts and bolts” of a Social Security disability claim. But sometimes these basics are overlooked in the heat of the moment at the hearing.

The claimant has the burden of proof. Don’t forget to prove the limitations that prevent you from working. If humanly possible, get a treating doctor’s opinion establishing functional limitations that would preclude your past work and other work under Social Security’s rules. Don’t forget the basics.

 

The latest statistics have been released regarding average processing times in the hearing offices around the country. The Portland, Maine ODAR remains #1 in the country with an average processing time of 274 days. This is a remarkable performance, and the hearing office director, judges and staff at the Portland ODAR deserve kudos for this country-leading performance.

As a practical matter, I must point out that 274 days is the average processing time. 274 days is about 9 months. I have claims at the hearing office that were appealed in December and January that have not yet been set for hearing. The Portland office is currently scheduling hearings for November  (because it gives 75 days notice prior to a hearing). So the 9 month time frame is an average. You may have to wait a bit longer. For example, my most recent case set for hearing was appealed on December 18, 2008 and has been set for hearing on November 4th.

In the Manchester, New Hampshire hearing office, the average processing time is 385 days, which ranks #21 in the country. While that seems a lot longer than in Maine, New Hampshire does not have the Reconsideration step, which often takes 4-5 months. As a result, a claim that receives an initial denial in New Hampshire is likely to get to a hearing ahead of a similar claim in the state of Maine.

An excellent summary of the sequential evaluation process is available online. The summary is excerpted from Social Security Disability Practice by Thomas E. Bush.

Here is the first section to get you started (I have added links for certain terms):

Under the five-step sequential disability evaluation process described in 20 C.F.R. §404.1520 the following must be proved by a claimant in order to be found disabled:

1. The claimant is not engaging in “substantial gainful activity” (SGA); and

2. The claimant has a “severe” impairment; and

3. The impairment meets or “equals” one of the impairments described in the social security regulations known as the “Listing of Impairments”; or

4. Considering the claimant’s “residual functional capacity” (RFC), that is, what the claimant can still do even with his or her impairments, the claimant is unable to do “past relevant work” (PRW); and

5. Other work within the claimant’s RFC, considering age, education and work experience, does not exist in the national economy in significant numbers.

Watch out for the terms identified by quotation marks above and the initials that go with some of them. They have precise meanings in the regulations and rulings that are not necessarily the meanings one would expect. It will be necessary for you to learn these terms if you want to make sense out of social security regulations.

Whether you are a Social Security disability claimant or a claimant’s legal representative, you should take a few minutes to read the entire summary.

Failure to formulate a complete and detailed theory of the case, covering ALL FIVE steps of the sequential evaluation is the #1 reason that a Social Security disability claim may be lost at a hearing or court appeal, according to Atlanta disability attorney Charles Martin.

Mr. Martin wrote a very helpful set of practice tips, entitled Ten Common Reasons a Hearing or Court Appeal May Be Lost, that appeared in the January 2009 Social Security Forum. And I completely agree with his #1 reason.

You gotta have a theory of the case. If you can't articulate why each step of the sequential evaluation should lead to a finding of "disabled," you can't really expect the ALJ to reach a different conclusion at the hearing. The most important task for a disability lawyer is to develop a winning theory for the claim, and one reason to write a hearing memorandum is to test drive your theory of the case.

As Mr. Martin says, make sure your theory of the case covers all five steps of the sequential evaluation.

There is an offbeat little provision in the Social Security regulations that grants benefits for a worker who fits a particular vocational profile. This is the "worn out worker" rule. See 20 C.F.R. 404.1562(a).

The rule has 3 requirements for claimants:

  1. a marginal education,
  2. 35 years or more of only arduous unskilled physical labor,
  3. the claimant is unable to do this kind of work because of a severe impairment(s).

Social Security Ruling 82-63 clarifies the requirements of the regulation, and is a must-read if you have a claimant who may meet the criteria of the rule.

For many situations, the same result would be reached by the Medical-Vocational Guidlelines. However, a worn out worker would still be found disabled at the medium exertional level if he could no longer do his past work, because the worn out worker rule would be used rather than the grid rules. Ruling 82-63 states that section 404.1562 is a "pre-grid" rule, and must be applied prior to the numbered rules of the Medical-Vocational Guidelines.

A mine worker, a farm worker and a commercial fisherman are examples of workers that might benefit from this rule.

At step 5 of the sequential evaluation process, Social Security considers four factors to determine whether or not you are disabled: your residual functional capacity, your age, your education, and your work experience. 20 C.F.R. 404.1520(a)(4)(v).

Social Security defines several educational levels. See 20 C.F.R. 404.1564.

  • Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name.
  • Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education.
  • Limited education. Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.
  • High school education and above. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.
  • Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do.

Upcoming posts will discuss the effect of your education level upon the step 5 disability determination.

When I was a young boy, Carl Yastrzemski was the left fielder for the Boston Red Sox. His years of experience at Fenway Park gave him an advantage, and he was adept at playing the carom off the left field wall and working with the odd angles in the left field corner.  In contrast, visiting players were sometimes bewildered by that ballpark's unusual characteristics.

I limit my Social Security disability practice to the states of Maine and New Hamsphire. I don't restrict my practice to these states to avoid travelling to distant hearing offices. I do it because it makes me a more effective advocate for my clients. Think of it as a home field advantage.

There are three main reasons why you should consider a local Social Security specialist rather than an out-of-state firm:

  1. I work with the same staff and the same judges all the time. I know what to expect from the staff at my local Social Security offices, and I have learned how each administrative law judge has a different approach to a Social Security disability hearing.

  2. I also work repeatedly with many of the same doctors and counselors. I have a good relationship with these professionals. I explain to these medical providers why a medical source statement is so important for a Social Security disability claim.

  3. Most importantly, I get to spend time with my clients well in advance of the hearing. I have an office in both Maine and New Hampshire. I can meet with my clients at the beginning of the case. This helps me to better prepare each claim.

By limiting my practice to this corner of New England, I believe I can more effectively represent my clients. Regardless of where you live, look for a lawyer with extensive experience in your state.

For Social Security disability, retroactive disability benefits can be paid for up to 12 months prior to the date you filed your claim, if you were disabled during that time. 

Here is a simple example:

Assume that a person filed for Social Security disability benefits today, August 1, 2009.  Disability benefits are available for the past 12 months, depending upon the claimant's onset date. If the claimant became disabled on June 1, 2008, then the retroactive benefits would begin after the 5 month waiting period, on November 1, 2008.

However, if the onset date were earlier, say on March 1, 2008, then the full 12 months of retroactive benefits would be paid, since the 5 month waiting period would be over by August 1, 2008. Benefits would begin on that date. An onset date 17 or more months prior to your filing date maximizes your retroactive disability benefits.

For an SSI claim, benefits simply begin on your filing date if your claim is granted. There is no waiting period for elegibility, and there are no benefits available prior to your filing date for SSI.

The hearing offices have senior staff attorneys, called attorney advisors, who review claims prior to hearing for possible on the record decisions. If an on the record (OTR) decision is appropriate, they draft a fully favorable decision. If an OTR is not appropiate, they complete an "Attorney Advisor Worksheet," and the claim goes back to its place in line for an eventual hearing.

As a claimant representative, you don't get to see that attorney advisor worksheet. So if there is a perceived flaw in the claim, you can't find out what it is, so that you can address it prior to the hearing.

I had a recent hearing for a claim that received an OTR review by an attorney advisor months prior to the hearing. For the first time, I got to see the attorney advisor worksheet. It was part of the electronic disability claim file on the hearing CD, but was not numbered as an exhibit. It was in a section of the disability claim file marked "Private." The worksheet contained a helpful summary and analysis of the claim, and stated why a hearing was necessary.

I realized later that the only reason that I had the worksheet on my CD is that the receptionist had given me the ALJ's copy of the hearing CD by mistake. The worksheet is not part of the claim file normally available to the claimant or the representative.

In my view, the attorney advisor worksheet should be available to the claimant's attorney. We see other internal claim evaluations, such as the medical-vocational analysis from DDS. Why not the attorney advisor worksheet from the hearing office? It would help us to better prepare our claims for hearing, and it might lead to more on the record decisions, which would help to preserve scarce ALJ resources.

The First Circuit has a new memorandum decision which discusses fibromyalgia symptoms in the context of a Social Security disability claim.

In Johnson v. Astrue, 597 F.3d 409 (1st Cir. 2009), the Court heard an appeal of an ALJ’s denial of disability benefits. The ALJ in her decision discounted the opinion of Dr. Ali, the treating rheumatologist. The First Circuit panel looked at the reasons offered by the ALJ, and found each of them to be unpersuasive. Here is an excerpt from the First Circuit’s opinion:

This leaves what appears to be the ALJ’s primary reason for giving little weight to Dr. Ali’s limited RFC assessment — i.e., that such limitations were “of necessity based on the claimant’s subjective allegations as the doctor’s examinations of the claimant were, with the exception of the presence of tender points, relatively benign.” Trans. at 27. Dr. Ali’s “need” to rely on claimant’s subjective allegations, however, was not the result of some defect in the scope or nature of his examinations nor was it even a shortcoming. Rather, “a patient’s report of complaints, or history, is an essential diagnostic tool” in fibromyalgia cases, and a treating physician’s reliance on such complaints “hardly undermines his opinion as to [the patient’s] functional limitations.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (internal punctuation and citation omitted). Further, since trigger points are the only “objective” signs of fibromyalgia, the ALJ “effectively [was] requiring objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines,” and this, we think, was error. See id. at 106-07

The ALJ’s decision also discredited the claimant’s allegations of severe chronic pain. On this issue, the First Circuit panel had quite emphatic language:

Second, once the ALJ accepted the diagnosis of fibromyalgia, she also “had no choice but to conclude that the claimant suffer[ed] from the symptoms usually associated with [such condition], unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms.” See Rose, 34 F.3d at 18 (emphasis added). The primary symptom of fibromyalgia, of course, is chronic widespread pain, and the Commissioner points to no instances in which any of claimant’s physicians ever discredited her complaints of such pain. Given this, we do not think that the ALJ’s decision to discredit claimant was supported by substantial evidence.

This is good stuff. It is an important acknowledgment of fibromyalgia’s unique signs and symptoms, and how that uniqueness affects the analysis in a Social Security disability claim.