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

Reason #5  The claim has a glitch

Sometimes a claim has a glitch. Maybe there was work after onset that is close to SGA, or an unsuccessful work attempt. Maybe there is a remote date last insured. Maybe there is a DAA issue. And perhaps a particular listing, regulation or Ruling should be reviewed prior to the hearing. All these issues can be addressed in your prehearing brief. If there is something quirky about your claim, deal with the issue in your memorandum.

A hearing memorandum should be written for every Social Security disability hearing, and submitted well in advance of the the hearing.

 

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

Reason #4   The Judge wants a Memorandum

A hearing brief can be very helpful to the judge. That's the point, after all. Since the memorandum is part of the disability claim file, it is available to the judge before, during and after the hearing.

A concise pre-hearing memorandum is on the list of best practices for claimants' representatives collected by the ALJs. Further, with hundreds of newly hired ALJs deciding claims, a memorandum is even more important.

A hearing memorandum should be written for every Social Security disability hearing, and submitted well in advance of the the hearing.

 

We are taking the first ten days in July to list ten top reasons to write a hearing brief. Although our office is closed today for the 4th of July weekend, the list of top ten reasons marches on.

Reason #3   Test drive your "theory of the case"

Every hearing memorandum should explain how the evidence and law affect each step of the 5-step sequential evaluation process. Writing the hearing brief will help you to evaluate your theory of the case. If you can't get past step 4 in your memorandum, you can't expect a judge to reach a different result.

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 a request for concise pre-hearing briefs.

To ensure you receive these daily updates, please subscribe to the feed in your reader (or you can sign up for updates by email).

 

We are taking the first ten days in July to list ten top reasons to write a hearing brief. Look for a reason a day through the 10th of July.

Reason #2   Be More Prepared for the Hearing

There is no doubt about this one. Writing a good pre-prehearing memorandum makes you better prepared for the hearing. It forces you to go through the entire record and put everything in context. Furthermore, you can refer to your brief at the hearing. Need the exhibit and page number for that 2nd MRI when the judge asks about it? It's in the brief.

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 a request for concise pre-hearing briefs.

To ensure you receive these daily updates, please subscribe to the feed in your reader (or you can sign up for updates by email).

 

A hearing memorandum should be written for every Social Security disability hearing, and submitted well in advance of the the hearing. I have previously written about the hearing memorandum in Maine and in New Hampshire. The exhortation to submit concise pre-hearing briefs is among the best practices for claimants' representatives recently compiled by the ALJs.

We taking the first ten days in July to list ten top reasons to write a hearing brief. Look for a reason a day through the 10th of July.

Reason #1   Be a Professional

Do your job as a lawyer. Just getting the medical records, a medical source statement, and attending the hearing with the client is not enough. Your opening statement to the judge could be forgotten by the time the next hearing starts.

A Social Security disability claim may have 10, 20 or 30 thousand dollars or more of back benefits. The future benefits are tens of thousand of dollars even for a claim with a low PIA. So for a case with a value of over $50,000 why wouldn't you write a hearing memorandum?

To ensure you receive these daily updates, please subscribe to the feed in your reader (or you can sign up for updates by email).

Last week I objected to two video hearings that were scheduled for August. I continue to be ambivalent about video hearings.

I have done dozens of video hearings. I think the technology works great. And in a case with very strong medical evidence, a video hearing can be fine. But in a case where the medical evidence alone does not demand a favorable decision, the client's testimony is very important. And something is lost in a video hearing: a personal connection is hard to achieve by video. So the claimant's testimony is less compelling.

The other factor that goes into my calculus is there is little reason for a video hearing at the Portland, Maine ODAR. This ODAR is #1 in the country for average processing time of disability claims. The wait time for a hearing in Maine is half the wait in much of the country. Since we have plenty of terrific ALJs live and in person in Portland, it makes no sense to me to go to the Portland hearing office for a video hearing with a judge somewhere else.

I recognize that having to reschedule a hearing and then fill the hole in the schedule is a thankless task for the Portland hearing office staff. But a recent memorandum from Social Security Chief Judge Frank Cristaudo makes clear that an in person hearing is the absolute right of a claimant.

Again, I have no problem with video hearings in general. But when the testimony of the claimant is particularly important, I would much rather be in the same room as the judge.

Disability Determination Services (DDS) makes the medical-vocational determinations for Social Security claims at the initial and reconsideration levels.

I have noticed that claims are moving slower lately at the Maine DDS. I checked yesterday on a claim on Reconsideration. The Reconsideration request was received by the Maine DDS on May 12. That's 6 weeks ago. The claim has yet to be assigned to a disability examiner for Reconsideration. Nothing happens with a claim until it is assigned to a disability examiner. So that 6 weeks is just lost time.

I inquired about the delay, and was told that it was due to an increased volume of claims and reduced level of staff at Maine DDS.

Unfortunately for the disabled worker with a Maine Social Security claim, this growing backlog at the Maine DDS threatens to offset the recent gains at the Portland Hearing office. So while the wait for a hearing in Maine is several months shorter than it was a year ago, those several months may now be spent at the DDS level.

Sometimes workers in chronic pain reduce their hours from full-time to part-time to try to stay employed and manage their pain. If this part-time work is above the SGA level, it can cause a problem for an eventual Social Security disability claim.

Social Security considers whether or not you can return to your past relevant work at step 4 of the sequential evaluation. Even part-time past work is past relevant work if the wages were above the level of substantial gainful activity and you performed the work long enough to learn it. See Social Security Ruling 96-8p, footnote 2.

This can be a trap for the unwary. When Social Security determines your residual functional capacity, it typically must consider your ability to work on a “regular and continuing basis,” which means 8 hours a day, for 5 days a week, or an equivalent work schedule. Ruling 96-8p. However, part-time past relevant work performed at SGA is an exception to this rule.

This provides yet another reason to prepare a detailed work background.

I recently read a good practice tip from Mobile Alabama Social Security lawyer Gilbert Laden in the April Social Security Forum, which is a newsletter published by NOSSCR for its members. Mr. Laden’s article is entitled Preparing a Detailed Work Background for the ALJ. Here is an excerpt:

I order a “Detailed Earnings Query” (DEQY) in every case and use it to prepare a work background, which I submit in advance to the ALJ. It can be used to trigger a client’s memory about forgotten jobs. Also, sometimes, there are mistakes on the DEQY. On the work background, I note the amount of the earnings [from the DEQY] for a particular job and if they are below SGA. I can readily call it to the ALJ’s attention when the VE is giving an assessment of purportedly past relevant work, but which was not done at the SGA level.

This is excellent advice. Ordering a DEQY well in advance of the hearing is a good practice. The DEQY is usually not in the claim file until just before the hearing. Getting a copy early avoids surprises at the last minute.

Since past relevant work extends back 15 years, the claimant may not remember each job that was held. The DEQY can refresh the client’s memory. Also, since the DEQY contains earnings information, it can tell you when a job was performed below the level of SGA, and therefore does not constitute past relevant work.

Unless a listed impairment is met or equaled, you must be unable to perform your past relevant work to have a chance at obtaining Social Security disability benefits. A DEQY can help to define your past relevant work.

Workers with chronic illnesses face chronic uncertainty. That astute observation appears in Lesley Alderman's recent New York Times article, entitled Protecting Your Job While Coping With a Chronic Illness. In addition to uncertainty about their health, workers with chronic illnesses face uncertainty about their jobs.

Many of my clients have experienced that uncertainty. Because a chronic illness does not keep a regular schedule, it is almost impossible for these workers to maintain regular attendance at work.

Once the work ends, however, the uncertainty remains. There is financial uncertainty, and often financial hardship, as these disabled workers await resolution of their Social Security disability claims. Workers with chronic illnesses do face chronic uncertainty, and I spend part of every workday trying to reassure clients who are dealing with chronic uncertainty.