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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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.

The June 2009 Social Security Forum, which is published by NOSSCR for its members, has a good update regarding Requests for Hearings by ALJ.

SSA has revised HALLEX I-2-0-40, which deals with the Request for Hearing filing requirements. The HALLEX provision has been revised to reflect the elimination of the signature requirement when filing a request for hearing.

A claimant should still use form HA-501 to request a hearing, but neither the claimant’s nor a representative’s signature is required on the form.

The Portland, Maine hearing office is still #1 in the country, according to the latest statistics released by the SSA and republished in Social Security News. The Portland hearing office has an average processing time of 270 days. Processing time runs from the day the hearing office receives your hearing request to the day a decision is issued.

Since the Portland hearing office gives 75 days notice prior to a hearing, that means that a hearing is scheduled within 6 months of the claim arriving at the Portland, Maine ODAR. That's the good news.

The bad news is that the Reconsideration level in Maine is turning into a black hole. Claims at Reconsideration are going months without even being assigned to a disability examiner.

By comparison, in New Hampshire (which is a prototype state that skips the Reconsideration step), the Manchester hearing office has an average processing time of 379 days, which is 109 days longer than in Maine. But since months are not being lost in New Hampshire waiting for Reconsideration, claims are moving through the system much quicker.

 

In the first ten days of July, we listed ten top reasons to write a hearing brief. Here is a recap:

Reason #1 – Be a Professional

Reason #2 – Be More Prepared for the Hearing

Reason #3 – Test Drive Your "Theory of the Case"

Reason #4 – The Judge Wants a Memorandum

Reason #5 – The Claim has a Glitch

Reason #6 – Have the Judge "On the Same Page"

Reason #7 – Differentiate Your Claim

Reason #8 – Get a Bench Decision

Reason #9 – Your Client Deserves It

Reason #10 – You Will Win More Claims

A hearing memorandum should be written for every Social Security disability hearing, and submitted well in advance of the the hearing. The list of best practices for claimants' representatives includes request for concise pre-hearing briefs. I always write a hearing memorandum in Maine and New Hampshire, which are the two states where I handle disability claims.

I hope these top ten reasons have persuaded you to write a pre-hearing memorandum for each and every hearing!

Update: See a sample hearing brief.

Well organized ODARs, like the Portland, Maine hearing office, send out a Representative Report T3 each month. The report lists all your clients' claims at that ODAR, sorted by the date of the hearing request. The report gives the status of each and every claim.

This report is a goldmine for the Social Security disability practitioner. In addition to the status of all your claims, you can see at a glance which claims will be set for hearing next. This allows your staff to update the medical records for those claims, so that you are already prepared for the hearing when the notice arrives in the mail.

If you are not receiving a representative report regularly from your ODAR, ask for one. Just fax a letter to the hearing office director and ask for a Representative Report T3. I did this recently for the Manchester, New Hampshire hearing office, and received a report back right away.

Take a look at these statistics for 2008, which were recently released by the SSA and published by NOSSCR in the May 2009 Social Security Forum.

The top row shows that 36% of the disability and SSI initial applications were granted nationwide. 64% were denied. These are national statistics, but the allowance rate in Maine is almost identical.

The second row shows that, of the denied claims that were appealed, 86% were denied again at the Reconsideration level. That is very frustrating, and I warn clients all the time that their claims are likely to be denied again at Reconsideration. Tim Moore has a good recent post about why so many claims are denied again at Reconsideration.

But look at what happens at the hearing level (row 3). 63% of the claims are allowed. Other statistics show that success rates are improved when a lawyer is involved. So if you can appeal your denied claim, get some help, and hang in there for a hearing with an administrative law judge, your chances of approval rise dramatically.

There is another lesson in these statistics. Most people do not appeal that initial denial. In 2008, there were 2,526,298 initial claims, but only 546,599 Reconsideration determinations. Now there are ten states, including New Hampshire, that don't have the intermediate Reconsideration step, so you can't exactly compare those two sets of statistics. Nevertheless, it is clear that the majority of Social Security disability claimants did not appeal the initial denial.

Don't make that mistake! Appeal your denial within 60 days, get help with your Social Security disability claim, and be better prepared for your hearing when it arrives. That way, you have a much better chance for the disability benefits you deserve. The statistics prove it.

 

We have arrived at reason #10 of our ten top reasons to write a hearing brief.

Reason #10  You will win more claims

Trust me on this. This is the reason that persuaded me to write hearing briefs years ago. We learned that the judges were really reading them. And we won more cases. All the previous reasons in this list lead to this one. You will win more claims.

I hope these reasons have persuaded you to write a pre-hearing memorandum for each and every Social Security disability claim. As always, please leave a comment with your thoughts.

 

We are listing ten top reasons to write a hearing brief.

Reason #9  Your Client Deserves It

Would you ever tell your client that his claim is not important enough for you to spend a few hours writing a pre-hearing memorandum? Of course not. Your client is relying on you to do everything possible to achieve an award of disability benefits. You know how important those benefits are to your client. So just do it.

 

We are listing ten top reasons to write a hearing brief. Look for a reason a day through the 10th of July.

Reason #8  Get a bench decision

If your claim qualifies for a bench decision under HALLEX I-5-1-17, mention it to the judge. A bench decision can take a little preparation, so give the judge a heads up in the hearing memorandum.