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This search query brought a reader to this site today: how strong does your case have to be to request an on the record decision?

An on the record request asks Social Security to grant your case "on the record" without a hearing. This request is for claims awaiting a hearing at Social Security's Office of Disability Adjudication and Review (ODAR).

An on the record (OTR) decision can only be fully favorable. You cannot lose your case on the record. Rather, if the OTR request is denied, your claim simply goes back in line for an eventual hearing.

Your claim should be clear cut for a good chance at an OTR decision. A strong case would have not just strong medical evidence, but also clear evidence of your functional limitations. If it is clear from the record that the five-step sequential evaluation process would yield a finding of "disabled," then an OTR request is a good idea. It also helps if DDS made an error in its earlier decision.

One group of claimants that are good candidates for OTR requests are those who are over the age of 50 (or better yet, over the age of 55), are clearly unable to perform their past relevant work, and are limited to unskilled work. Social Security's Medical-Vocational Guidelines direct a finding of "disabled" for such claimants, so an OTR decision is a strong possibility.

Of course, a Social Security attorney can help you with an on the record request.

I am asked this question on a regular basis: Should I apply for Social Security disability benefits? 

People who unable to work and are thinking about filing a claim for disability benefits will often contact me. They don't know how the Social Security system works, and perhaps they have heard some horror stories about the disability claim process. So they call me.

I enjoy these conversations, because they are very helpful to the people who call. We talk for a while, and I ask the caller some questions. A typical conversation goes something like this:

Are you working now? No.

When was the last time you worked? June of 2008.

What is keeping you from working now? The caller describes his or her impairments.

Are you being treated by a doctor? Yes. We talk more about the doctor(s).

What kind of work did you used to do? The caller tells me, and we talk about the types of work he or she has done in the last 15 years, and whether the person ever had a "desk" job.

How old are you? The caller tells me.

For callers under age 50, I describe the requirements of sedentary work. Could you do a sedentary job? I don't think so.

At this point, depending upon our conversation, I have usually learned enough to evaluate the claim under Social Security's sequential evaluation process. I often tell the caller: You should apply for disability benefits.

We then discuss the different ways to apply for disability benefits (in person, by telephone or online), and what to expect from the Maine Social Security claim process or the New Hamsphire Social Security claim process (they are actually different).

If you live in Maine or New Hampshire, I would be happy to have this conversation with you. You can call me, or you can complete the free evaluation form, and I will call you. 
 

Disability Determination Services (DDS) is the state agency that makes the initial and reconsideration determinations on Social Security disability claims. 

I saw three different claims denied at the reconsideration level this month. All involved chronic pain. All were productive people prior to developing debilitating medical conditions. All had terrific medical source statements from the treating physician, which were ignored by DDS.  I just don’t understand these denials. I expect all three of these claims to be granted at the hearing level.

There seems to be a real disconnect at DDS when evaluating disability claims that involve chronic pain. For some claimants, such as those with back problems or those with fibromyalgia, it is the chronic pain that prevents that person from working.

Maybe there is an empathy gap at DDS, or perhaps better training is needed. I don’t know. There certainly seems to be a disregard (or a skewed interpretation) of Social Security regulation 20 C.F.R. 404.1527(d)(2) and related Social Security Ruling 96-02p, which require that controlling weight be given to a treating physician’s opinion, if that opinion is not inconsistent with the case record.   

Continue Reading DDS and Claims Involving Chronic Pain

The Portland, Maine hearing office has an average processing time of 258 days for Social Security disability claims, according to the latest backlog report distributed by NOSSCR. Of the 150 hearing offices around the country, Portland's processing time is the second shortest. Congratulations to Philip Smith, the Hearing Office Director, to the administrative law judges, and to the entire staff at the Portland ODAR for this ongoing achievement.

Processing time runs from the day the hearing office receives a hearing request to the day a decision is issued. Since the hearing office gives 75 days notice when scheduling a disability hearing, that means just 6 months elapses from when the hearing office gets a claim until a hearing date is scheduled. These times are consistent with my actual experience with claims at the Portland hearing office.

If there is a downside to this remarkable performance, I think the Portland hearing office has become less receptive to on the record requests. I file an on the record request from time to time, when the medical evidence is particularly strong or when the claimant is over 50 years old and would grid favorably under the Medical-Vocational guidelines. I haven't been getting these granted lately, and it may be that there is little incentive to grant an OTR request when a hearing would be just a few months away.

The latest statistics regarding processing times at the Social Security hearing offices show a 377 day average processing time for claims at the Manchester, New Hampshire hearing office. Processing time runs from the day the hearing office receives a hearing request to the day a decision is issued.

Social Security claims in New Hampshire do not require the intermediate step of Reconsideration. A claim proceeds from an initial denial directly to a hearing. Skipping that Reconsideration step shortens the overall waiting time by 4 months or so. As a result, the overall waiting time in New Hampshire is comparable the overall waiting time for Social Security claims in Maine.

The Manchester, New Hampshire ODAR handles Social Security claims for Vermont residents as well.

Severe depression or anxiety is often a component of a Social Security disability claim. For claims involving mental health, the Global Assessment of Functioning score assessed by your mental health provider can provide a convenient benchmark for the administrative law judge.

The GAF scale is Axis V of the multiaxial assessment used by mental health clinicians. The GAF score offers a snapshot of a patient's functioning at that time. Although the GAF score does not correlate directly to the severity requirements Social Security's mental disorders listings, it still offers a convenient distillation of a clinician's progress notes.

In general, for claimants who have primarily mental impairments, I like to see a GAF score below 50. When a GAF score is in the range of 35-45, I always point it out to the judge in my hearing memorandum. For example, if the treating psychologist assessed a GAF score of 45, I note that a score from 41-50 equates with "Serious symptoms OR any serious impairment in social, occupational, or school functioning." In such a case, the GAF score provides compelling, contemporaneous evidence of the severity of a claimant's mental health problems.

A GAF score of 55, on the other hand, doesn't help that much. A score from 51-60 corresponds with "Moderate symptoms OR any moderate difficulty in social, occupational, or school functioning." Moderate symptoms do not make for a successful Social Security disability claim. In such cases, I highlight the other evidence in the record that better demontrates the severity of the claimant's impairments.

A GAF score of 65, which I see from time to time, is actually evidence that your mental health is not dramatically affecting your occupational functioning. Mild symptoms and some difficulty in social or occupational functioning are not likely to result in a favorable disability determination, without other medical evidence of severe work-related limitations.

Go to the Claimants with Mental Impairments page to learn about the issues involved with Social Security disability claims involving depression, anxiety and other mental health conditions.

If you are wondering if your mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

In the context of Social Security disability, the touchstone for job skills is Social Security Ruling 82-41. That Ruling states:

A skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner. This includes activities like making precise measurements, reading blueprints, and setting up and operating complex machinery. A skill gives a person a special advantage over unskilled workers in the labor market.

At a Social Security disability hearing, a vocational expert may testify regarding a claimant’s acquired job skills. In my experience, vocational experts can be cavalier about what exactly constitutes a skill. I have had disability hearings where vocational experts named things like making change and dealing with the public as acquired job skills from a cashier job. To me, those things do not rise to the level of skills, as defined by the Ruling.

What constitutes a skill is important, because the existence of transferable skills can doom your Social Security disability claim.

Judge Joseph Shortill is being transferred to the Portland Maine hearing office. His first day of hearings will be Easter Monday, April 13th.

Judge Shortill has been a Social Security administrative law judge in the Springfield, Massachusetts hearing office. I have had several hearings with him there, and in Worcester. He will be a terrific addition to the Portland, Maine ODAR.

Judge Shortill practiced law for many years in Sanford, Maine, so this new assignment represents a homecoming for him. Welcome home.

Social Security considers your Past Relevant Work (PRW) at step 4 of the sequential evaluation process. It is important to properly define your past relevant work, because it can only hurt you in a Social Security disability claim. If Social Security determines that you have the capacity to return to your PRW, your disability claim will be denied.

But not all past work qualifies as past relevant work. Past relevant work is "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 404.1560(b)(1). Let's look at each requirement:

  • First, past relevant work must be in the past 15 years. The 15 years runs back from the date of determination, or from the date last insured, whichever is earlier.
  • Second, past work must have been substantial gainful activity to qualify as PRW. If you were an employee, the work must have been performed at the SGA level. If you were self-employed, see 20 C.F.R. 404.1575. Remember that an unsuccessful work attempt is not substantial gainful activity and therefore not past relevant work. By definition, an unsuccessful work attempt must occur after the onset of disability. See 20 C.F.R. 404.1574(c).
  • Third, the work must have "lasted long enough for you to learn to do it." Unskilled work can be learned in less than 30 days. Skilled work takes longer. The length of time depends on the nature and complexity of the work. There are no firm rules here, but the vocational training times set forth in the Specific Vocational Preparation (SVP) section of Appendix C of the DOT are a good guide.

These rules are important. For certain claims, eliminating a problematic job from past relevant work can make the difference between winning and losing.

What weighs 50 pounds? This has been on my mind lately, because I have been working on a Social Security disability claim for a client who was given a medium exertional residual functional capacity by a physician at Disability Determination Services (DDS). A medium RFC requires (among other things) the ability to lift and carry 50 pounds for up to one-third of a workday.

I am often puzzled when I see a medium RFC, particularly for a claimant who is 55+ years old and has worked steadily for 35 years. Do they think that this person stopped work for no reason? Did they not look at the sterling work history? Do they understand that when someone complains repeatedly about back pain to the doctor, and has xrays and MRIs, that there is a genuine impairment? It is perplexing that a DDS physician or examiner would consider these things and still assess an RFC at the medium exertional level.

Continue Reading 50 pounds