Maine Social Security Disability Lawyer

The Social Security Disability Lawyer Blog

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.

If you would like assistance with your Social Security disability claim, please contact Gordon Gates or complete the Free Claim Review form on the sidebar.

Apply for Disability Benefits with a Lawyer on the Telephone

With many Social Security administrative law judges allowing fewer claims at the hearing level, the initial application for disability benefits deserves much more attention. The allowance rates from the state DDS agencies are just as high as the allowance rate of some ALJs. That means that your initial application is more important than ever. The opportunity to obtain disability benefits at the initial application should not be squandered.

I recently assisted a new client over the telephone with his initial application for Social Security disability benefits. It went very well. I asked questions, the client answered, and I typed the application right then as we spoke. As we were completing the application, I was able to counsel the client on what to expect from the disability claim process, the importance of fully describing past relevant work, and why the SSA was asking certain questions in the application.

I have done this before, of course, but this recent experience made me realize that I should do it more often, because it is a valuable service to a new client, and it starts the claim process on the right foot.

There are several benefits of working with an experienced Social Security disability attorney at the very beginning of your disability claim.

• The disability claim is supported by a winning theory of the case. 
• The issues in the claim are properly framed from the beginning. 
• Common mistakes, such as not properly describing past relevant work, are avoided. 
• You have a guide throughout the disability claim process.
• I make a plan for obtaining the medical evidence (particularly the medical opinion evidence) that you will need to support your claim.
• The claim may be decided more quickly, because your attorney will keep in touch with the SSA on the status of the claim, and supply any missing evidence. 
• If necessary, an appeal will be filed quickly.
• You pay no attorney fee unless the claim is successful. 

One of the benefits of having legal help with the application over the telephone is that you do not need to have a nearby lawyer who specializes in Social Security disability law. Because Social Security is a federal program, an attorney anywhere in the country can assist you with your claim. And the various states follow the same rules, embodied in Social Security's Program Operation Manual System (POMS), when making a benefits determination.

Legal assistance with the disability application is particularly important for those age 55 or older, because your vocational background plays a major role in the determination.

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Apply for disability benefits on the phone with a lawyer

If you have been out of work for 6 months or more due to a medical condition, please contact me to assist with an initial application for Social Security benefits.

Disability Blog Roundup - January

Photo: our dog Peppermint on the Bridle Path in Kennebunk

Every other Friday, I publish links to notable articles regarding Social Security disability law:

• WHAT EXPLAINS VARIATION IN DISABILITY APPLICATION RATES ACROSS STATES? by Norma Coe, Kelly Haverstick, Alicia Munnell, and Anthony Webb
• Severe Impairment in Social Security Disability Cases - Parker-Grose v. Astrue by Insler & Hermann
• Does My VA Doctor Have to Complete My Social Security Disability or LTD Form? by John Tucker
• DDS Agencies: a Culture of "No" by Gordon Gates
• Those annual Social Security statements still aren't online, as Commissioner Michael Astrue promised by Brent Hunsberger 

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Take a look around this site

Many visitors to this site are new, so please take a look around. As a starting place, there are several links on the sidebar to Important Topics for Claimants. If you don't find the needed information there, you can search this blog, which has over 500 posts on Social Security disability topics. The search box is located near the top of the sidebar.

Post Hearing Argument or Brief

HALLEX section I-2-6-76 provides:

The Social Security regulations provide that, upon request, the ALJ shall allow claimants a reasonable time to present oral argument, or file briefs or other written statements of fact or law. Absent special circumstances, the ALJ need not fix a time limit on oral argument. Oral argument should be recorded and made a part of the record of the case.

After all testimony has been presented, the ALJ must:

1. offer the claimant and representative an opportunity to make a final oral argument at the hearing, to submit a brief or other written statement within a reasonable time after the hearing, or to give their opinion regarding what the evidence proves and what finding of fact and conclusions of law the ALJ should make; and
2. address any assertions the claimant or representative make during their final oral argument, which vary sharply with the evidence or raise new issues that may be relevant. 

In my view, an oral argument at the close of the hearing is not that much help. When post-hearing argument is needed, I prefer to submit a post-hearing brief.

In what circumstances should the claimant's representative submit a post-hearing brief? Certainly when it is necessary to rebut vocational or medical testimony from the hearing. Arguably, a post-hearing brief should be done in every case where the judge did not announce a decision at the hearing, to remind the judge why the claim should be granted. In general, I will write a short letter to the judge in close cases, when I think the judge is on the fence.

When do you submit a post-hearing brief?

DDS Agencies: a Culture of "No"

California disability lawyer Geri Kahn recently wrote a thoughtful blog post entitled The top four reasons why Social Security Disability cases are denied at the initial and reconsideration stages of review. Geri is referring to Disability Determination Services (DDS), the agency funded by the SSA in every state to make the initial and reconsideration determinations on disability claims. Please read her post.

Here are Geri Kahn's top four reasons:

1. The claimant has had little or no medical or mental health treatment
2. Social Security did not obtain the records prior to making a decision
3. The claimant is under the age of 50
4. The Social Security Administration works in a culture of “no”

I agree with all four of Geri's reasons, but want to comment further on reason #4. Based upon the denied claims that we see as disability attorneys, it really does seem that there is a "culture of no" at DDS.

I have addressed aspects of this problem at DDS before, including these posts:

• Different results between DDS and the ALJs
• DDS and Examining/Treating Physicians' Opinions
• Judges say too many claims are denied initially, sometimes for no logical reason
• DDS and Claims Involving Chronic Pain

But Geri's phrase, a culture of "no," nicely summarizes the overall problem at DDS.

We disability lawyers appeal claims denied at DDS all the time. After a hearing with an administrative law judge, more often than not we win an award of disability benefits for our client. Sometimes the fully favorable decision from the judge is based on the same evidence considered by DDS. Why the different result?

Of course, the judge has the benefit of the claimant's testimony at the hearing. But the judges are also lawyers, and they tend to follow the SSA's regulations and rulings much more closely when evaluating evidence. And of course, there are problems at DDS: too many claims, too little pay, too much turnover. But there is another, overarching reason for a different result at the hearing level: there is a "culture of no" at DDS.

Administrative Law Judges who are granting disability applications have been under fire lately. Before criticizing the ALJs for reversing the decisions of the DDS agency, there should be a thorough discussion and a better understanding of the culture at DDS, which has resulted in countless flawed denials of claims for Social Security disability benefits.

Disability Blog Roundup - Twelfth Night Edition

Here is the first 2012 edition of the Disability Blog Roundup, which provides links every other week to notable articles regarding Social Security disability.

Please also check out my best blog posts of 2011, if you haven't done so already.

• The top four reasons why Social Security Disability cases are denied at the initial and reconsideration stages of review by Geri Kahn
• Blaming the Victim for Being Disabled is Ignorant and Unfair by Gabe Hermann
• How Important Are Medical Records When Applying For Social Security Disability? by Declan Gourley
• ALJ Unknown by Gordon Gates
• New Social Security Rule Prohibits Multiple Pending Applications by Vaughn Clauson

Social Security Disability Benefits Getting Harder to Obtain

It's getting harder to get an application for disability benefits approved at the hearing level. I do not like having to say that, but I fear it is true.  The early FY 2012 stats already show a decline for several ALJs at my local hearing offices. I expect in a few months, when we see updated nationwide ALJ allowance/denial statistics, the stats will confirm an overall reduction in the percentage of claims allowed at the hearing level.

As a Social Security disability lawyer and a legal blogger, I talk with many people involved in the disability hearing process. Other disability practitioners confirm my own experience: ALJs are pulling back a bit. They are being pressured in the current political environment to allow fewer disability claims.

It is hard to quantify the pull back, based upon anecdotal evidence. I estimate it is something like 10% of claims. Judges who had grant rates of 80% are becoming 70% judges. Judges who were at 70% are at 60%. That may not seems like very much, but if you are one of that 10%, it means the difference between receiving disability benefits or not receiving them. And for disability lawyers, a 10% downward swing makes a huge difference in the bottom line.

Furthermore, the low-granting ALJs are, if anything, emboldened by the current environment. The Appeals Council and U.S. district court review are more important than ever.

Poorly documented claims fare the worst. It is easy to turn down a claim where the disability claimant has not had recent medical treatment, and there is no opinion from a doctor regarding functional limitations. While that may sound reasonable, remember that many people lose medical coverage when they are unable to work, and cannot afford to pay for ongoing medical treatment. You can't close the door to disability benefits for these people.

This challenging environment is likely to continue through 2012, at least. A disability applicant needs every advantage in the current environment. You have to make sure that your claim is one of the 60% that are granted at the ALJ level (according to nationwide statistics) rather than the 40% that are not. It is more important than ever to have legal representation for your disability claim. 

Make a Resolution to Appeal your Denied Disability Claim

It is the time of year for New Year's resolutions. I have made a few for next year.

If you have a disability claim pending with the Social Security Administration, please make the following New Year's resolution: I will appeal my claim immediately if it is denied.

I speak with people frequently who did not appeal a denied claim within 60 days, and then must start over by reapplying for Social Security disability benefits. Although you have 60 days to appeal a denied claim, there is no reason to wait to appeal.

Remember, Social Security disability is an insurance program, not a government welfare program. You have paid an insurance premium, through the FICA taxes withheld from your wages, for disability coverage. If you cannot work, you should pursue the disability benefits that you have earned.

If you received a letter denying your disability benefits at the initial or reconsideration level, it is a good time to talk with a disability lawyer. But please be sure to appeal that denial right away. Make it a resolution.

ALJ Unknown

Beginning last week, Social Security's hearing offices do not disclose in advance of a disability hearing the identity of the particular administrative law judge (ALJ) that is assigned to a claim. So your hearing notice will arrive in the mail without stating the name of the judge that will hear the case and decide the claim. When you arrive at the hearing, you see who the judge will be.

This is a new policy, which just became effective December 19th. So hearing notices without judges' names are just beginning to arrive. 

The policy was a response, it seems, to representatives declining out-of-area video hearings when the assigned judge was a low-granting ALJ. Currently, a video hearing may be declined by a claimant or claimant's representative (see this post on video hearings). The only advantage of a video hearing is that your claim may be heard a little sooner. Why have a quicker hearing if you have a judge who grants half as many claims as the other judges in the hearing office? The SSA has responded to this practice by withholding the name of the Administrative law judge assigned to the claim.

The new policy is unfortunate. It is reassuring to know who your judge is for a hearing. Even if it is a judge who is difficult or has a low approval rate, at least you know. Clients are understandably very concerned about their hearings, and are often reassured by knowing a little about the judge assigned to decide their claim.

I can adjust my presentation at the hearing to the judge assigned to the case, because I know my local judges. So it is not the end of the world that you do not know the identity of the judge ahead of time (that is an advantage, by the way, of hiring an experienced Social Security disability attorney in your state, as opposed to a "national" advocacy firm). But different judges do conduct hearings in different ways, and it will no longer be possible to prepare the client for the particular judge conducting the hearing.

What is lost from my perspective is efficiency. It is much more efficient to prepare a case for hearing when you know the judge. When you are preparing for ALJ Unkown, you must prepare all aspects of the claim to a level of detail that would satisfy the most difficult judge in the hearing office on that particular issue. Of course, every claim should be prepared thoroughly, regardless of the judge assigned to it. 

My expectation is that this new policy will result in fewer video hearings with out-of-area judges, which is exactly the opposite of what the SSA is seeking to accomplish with the rule change.

Best Social Security Disability Lawyer Blog Posts of 2011

Photo: Bridget reading on the couch

Here are eleven posts from 2011 that are worth revisiting, or worth reading for the first time if you missed them when originally published:

1. The Social Security "Logical Bridge"
2. One Residual Functional Capacity, Two Outcomes
3. The 2010 Waterfall Chart
4. Statement from a Spouse
5. A Modest Proposal
6. 75-Day Hearing Notice Should be Nationwide
7. Top Reasons for Appeals Council Remands
8. Be the ALJ
9. Your Functional Limitations are the Nuts and Bolts of Your Social Security Disability Claim
10. Medical Expert Testimony by Telephone at an ALJ Hearing
11. Ten Tips for Writing Effective Hearing Briefs

It is worth noting that this blog now has over 500 posts. When I started writing for the blog in May of 2008, I had no expectation that I would reach such a milestone. This site has become an integral part of my life as Social Security disability lawyer, and I cannot imagine my law practice without it.

Thank you for reading.

December Social Security Disability Blog Roundup

Photo: Reading on the couch

Every other Friday, I highlight notable articles regarding Social Security disability:

• The Eastern District of California - Fresno Division by Lawrence Rohlfing
• Potential Clients and Representation by Aaron Rifkind
• The Second Time Around by Gordon Gates
• Social Security Disability Benefits: No subsitute for Medicare! by Karen Bojar
• Withholding ALJ Assignment Information by Charles Hall

The Disability Blog Roundup will take its annual holiday hiatus, and will return on Friday, January 6, 2012.