Maine Social Security Disability Lawyer

NOSSCR Conference This Week

The Spring conference of the National Organization of Social Security Claimants' Representatives (NOSSCR) takes place this week in Philadelphia. I will be travelling today to attend the conference.

I will be presenting a workshop Friday morning at 8:30 AM. My workshop is titled: "Writing Effective Hearing Briefs for the ALJ."

Here is the workshop description:

Win more cases at the hearing level by writing a pre-hearing memorandum for the ALJ.  This presentation will persuade you to submit a brief in advance of every hearing, and will offer useful tips for writing a more effective memorandum.

If you will be attending the Philly NOSSCR conference, please go to the workshop! And please say hello to me while at the conference. I look forward to meeting you.

Statements - get more than one if you can

I like to get a statement from a spouse for Social Security disability claims. I think a non-medical, or "lay," statement is helpful to the claim. These statements are often quite powerful, because they describe the loss that has accompanied the inability to work, and often describe the struggles the household has undergone as a result of the claimant's disability. The statements provide good evidence in support of a claim for disability benefits.

Further, the statement is already in the claim file before the ALJ first reviews the claim, so the judge can get a good idea of a claim in advance of the hearing.

Statements are not limited to spouses, however. Anyone with knowledge of the disability applicant's situation can write a statement, and these statements must be considered by the judge. See 20 CFR 404.1513(d)(4).

I had a meeting last week, in preparation for an upcoming hearing, with a client who obtained four statements in support of her claim: her husband, her mother, her best friend, and a previous employer who is also a friend. The four statements together paint a clear picture of the client's limitations. They add quite a bit to the overall case. Each statement describes similar problems that the client is having, but describe the client's limitations in different ways. Each statement is very genuine, and together they offer persuasive evidence of disability.

Two thoughts on presentation of the statements:

1. Sometimes handwritten statements are very hard to read. In such cases, my legal assistant types the statement, and we submit the typed version together with the original handwritten one. You want the judge to be able to read the statement, so type it if necessary.
2. A speaker at a recent conference suggested that statements should be submitted in the form of an affidavit: typed, sworn and notarized. The speaker's thinking was that, if you end up in federal court, the affidavit format is familiar, and the statement would carry more weight. In my view, it is the authenticity and genuineness of the statements that make them such good evidence. An affidavit is a lawyer-produced document, and seems less persuasive to me. I think the statement in its original form is more effective at the hearing level.

Regardless of the format, get statements in support of your claim!

Update: Please also read Statement from a former employer can enhance credibility

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Download our free ebook:

Ten steps to prepare for your Social Security disability hearing

 

Instant Access to the ALJ Decision

For those who are enrolled in Social Security's online Representative Services, you have instant access to the ALJ's decision, on the day the decision is made and the case is closed.

Once you see on your hearing office status report that a particular case has been closed, access that claimant's electronic folder online. The ALJ's decison is not included on the exhibit list, which is the default screen for the electronic folder. But if you click on the "case documents" tab (on the top left corner, as shown above), the ALJ decision will be right there in the "A" section. You can select the decision, download it, and send it off to your client by email.

For those who are anxious about the result of their disability hearing, which is pretty much everybody, it is wonderful to obtain the actual judge's decision in near real time, rather than ten days later in the mail.

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Continuance Possible for Last Minute Representation

Twice recently I was contacted by claimants who moved to Maine, and had their pending Social Security disability claims transferred to the Portland, Maine ODAR, which quickly set the claim for hearing. In one case, I was able to pull everything together for in time for the hearing. The other case, however, needed a continuance.

The HALLEX has a provision regarding rescheduling hearings. See HALLEX section I-2-3-10.E.2.

The ALJ may also find good cause for changing the time or place of a scheduled hearing, based on other circumstances. ...

Examples of other circumstances a claimant may give for requesting a change in the time or place of a scheduled hearing include, but are not limited to, the following:

a. the claimant has attempted to obtain a representative, but needs additional time;

b. the representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing;

c. the representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing;

Take a look at the HALLEX provision, which is linked above. It is definitely worth reviewing for those situations when a hearing must be rescheduled.

For another look at this topic, read Tomasz Stasiuk's article on postponing a hearing.

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Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

 

Social Security Disability Blog Roundup - April

Every other Friday, I publish links to articles of note regarding Social Security disability.

• Applying for Social Security Disability? What your attorney is doing to prepare for your hearing and assist in your claim by Joseph Tunstall
• The Importance of Activity Limitations in Social Security Disability Cases by Vaughn Clauson
• Addressing treating opinion evidence in ALJ decisions by Gordon Gates
• Chronic pain and mental Health by Erin Schmidt
• Filing for Disability is not easy -- contrary to the opinions of some by Tim Moore
• Lay Witnesses and Your Disability Claim by Anna Westfall and Andrew November

Get Medical Source Statements as early as possible

I frequently remind readers of the importance of medical source statements for Social Security disability claims.

I try to get medical source statements as early as possible in the claim process. Get them while you can,  because you may not be able to get an opinion from that treating source later. 

I recently had a conversation with a client that demonstrates the wisdom of that practice. We obtained medical source statements from her psychiatric nurse practitioner (Ruling 06-03p requires adjudicators to weigh "other source" opinions to show the severity of an individual's impairment and how it affects the individual's ability to function) and from her primary care physician early in the case.

A few months ago, the client moved to a different part of the state, and is still in the process of reestablishing medical care. The hearing is approaching. If my office had waited until the hearing was scheduled to seek treating source opinions, we would be out of luck. But since we sought them early, all is well.

Stuff happens. Clients may move. Clients may lose their insurance, and not be able to afford to go to the doctor. Sometimes the relationship with the treating doctor goes downhill. Treating doctors can move away, change practices, or retire. 

Get medical source statements as early as possible. 

Bridget in her Easter dress

Our two year old on Easter

Addressing treating opinion evidence in ALJ decisions

I write regularly about the importance of medical opinion evidence in a Social Security disability claim. Hopefully a treating doctor's opinion helps to persuade the judge that you are disabled.

Whether or not the administrative law judge (ALJ) is persuaded to allow your claim for disability benefits, a treating source opinion triggers certain requirements for the ALJ's written decision.

Social Security Ruling 96-2p states:

the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.

 

Social Security Ruling 96-5p states:

Medical source statements submitted by treating sources provide medical opinions which are entitled to special significance and may be entitled to controlling weight on issues concerning the nature and severity of an individual's impairment(s). Adjudicators must remember, however, that medical source statements may actually comprise separate medical opinions regarding diverse physical and mental functions, such as walking, lifting, seeing, and remembering instructions, and that it may be necessary to decide whether to adopt or not adopt each one.

 

Social Security Ruling 96-8p states:

The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.

Keep these key provisions from the Rulings in mind when you appeal an unfavorable ALJ decision to the Appeals Council or to federal court. Remember, most Appeals Council remands are due to improper weighing of the medical evidence.

 

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Get help from a lawyer with your disability claim 

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates for a free consultation.

 

Disability Blog Roundup

Every other Friday I highlight articles of note from the Social Security disability law blogs:

• Is Facebook causing you to be denied Social Security Disability Insurance Benefits? by Steven Butler
• Don’t Accept the Social Security Representative Recommended to You By Your Long Term Disability Insurer by McDonald & McDonald
• Living Arrangements And SSI Disability Benefits and Tips For Your Next Consultative Examination by Aaron Rifkind
• Who is the Vocational Witness and Why is He Testifying at my Hearing? by Vaughn Clauson
• The Role of the National Hearing Centers in Reducing the Hearings Backlog by the SSA Office of the Inspector General
• They’re Not Moochers and It’s Not Welfare by Alicia Munnell

 

Five Years

I had a Social Security disability hearing last week that took place five years after the claimant first applied for disability benefits. At the end of the hearing, the judge kindly announced that he would award disability benefits to my client. A fully favorable decision has already been issued.

Since the hearing, I have been thinking about what a long road it has been for this disability claimant, who has been unable to work for so long due to chronic pain.

The client came to my office after receiving an unfavorable ALJ decision in New Hampshire, and after getting no relief from the Appeals Council. I reviewed the ALJ's decision and the claim file, and accepted the case for a federal court appeal. I was able to obtain a remand back to the SSA for a new hearing, and that second hearing took place last week. Since the claimant had moved from New Hampshire to Maine to stay with a relative, there was a different judge for the second hearing. 

It can be heartbreaking to hear clients' stories of their difficulties while waiting for a favorable determination on a disability claim. Many clients have dramatically changed lives due to their health conditions (and the financial ruin that can accompany the loss of the ability to work).

As a Social Security disability lawyer, it is very gratifying when a claim is granted due to my efforts (and the efforts of my excellent staff) on the client's behalf. Personally, however, it is humbling to think about what the client has experienced during the time the disability claim has been pending. 

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Get help from a lawyer with your disability claim 

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates for a free consultation.

 

Predicting the assigned ALJ

Since December of 2011, the SSA has had a policy of not disclosing the identity of the particular ALJ assigned to conduct a hearing and decide the case. This policy is unfortunate. It is helpful to know who the judge is for a hearing, rather than preparing your case for an unknown ALJ.

For my practice, however, I really do not need to know who the ALJ is ahead of time. I know my local judges, and can adjust accordingly at the hearing.

Nevertheless, it became something of a challenge to prognosticate the assigned ALJ, given the information provided in the hearing notice. So I went to work on the problem.

I have developed an algorithm that predicts the particular ALJ assigned to a hearing from the information contained in the hearing notice. It has proven to be 94% accurate predicting the judges assigned in the Portland hearing office. 

The variables are:

1. the day of the week of the hearing, 
2. time of the hearing, 
3. the hearing room, and 
4. whether or not a vocational expert (VE) has been assigned.
5. whether or not a medical expert (ME) has been assigned

All this information is set forth in the notice of hearing. 

Hearing Monitors at the Portland Maine Hearing Office

The hearing monitor at a Social Security disability hearing is akin to a court reporter in court. The hearing monitor is present at the hearing, sitting in front of a computer, and manages the digital recording of each Social Security disability hearing. Along with an administrative law judge, hearing monitors are a constant presence in the hearing room.

For as long as I can remember, hearing monitors have been contract employees, coming and going from the hearing office as needed. However, that has changed in the Portland, Maine ODAR, and according to reports, in many hearing offices around the country.

The new hearing monitors are the senior case technicians and case technicians from the hearing office staff. To save money, rather than contract out the hearing monitor assignments, the SSA is using its existing staff to perform the task. 

Preparing for the Social Security ALJ Hearing

Many Social Security disability claims are not approved until a hearing is held before an administrative law judge (ALJ).

The preparation in advance of the hearing represents most of the work done by a Social Security disability lawyer, and that preparation will usually determine the outcome of the claim.

Preparation for an ALJ hearing is like the iceberg pictured above: only a small part of it is apparent above the surface.

Preparation includes:

• obtaining updated medical records
• obtaining a medical source statements from treating physicians, if possible
• a complete review of the disability claim file
• developing a complete and detailed theory of the case
• preparing the client for his/her hearing testimony
• writing a pre-hearing memorandum for the judge

There is always a great deal of focus on the hearing itself. But I find hearings almost always go better when I am well prepared.

 

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

March Social Security Disability Blog Roundup

Photo: Bridget with sunglasses

Every other Friday, I publish articles of note regarding Social Security disability:

• Scapegoating Social Security Disability Claimants (and the Judges Who Evaluate Them) by Jon C. Dubin & Robert E. Rains
• Limitation forms for Social Security disability cases by Tomasz Stasiuk
• Medical Source Statements by Jeffrey Delott
• Chronic Pain as a Basis for Social Security Disability Benefits: Part 1—Objective Evidence and Part 2– Intensity and Persistence by Claudeth Henry
• Medication Side Effects Can Support a Favorable Decision by Jonathan Ginsberg
• Notable News on Social Security this week by Erin Schmidt
• It's Not Just Social Security ALJs Who Are Inconsistent by Charles Hall

Initial claims for disability benefits approved

I have made a concerted effort over the past few months to become more involved with clients making an initial application for Social Security disability benefits. It can be very important to have the assistance of an attorney with the initial claim, particularly for claimants age 55 and over.

I was notified yesterday that two of my recent initial claims have been approved by Social Security. In one case, the client applied for disability benefits and hired me soon after. In the other case, I made an initial application for benefits with the client over the telephone. The telephone claim, where I was involved at the very beginning, took less than three months to be approved and has already been paid.

For the lawyer, working on an initial application for disability benefits means that the time required to get to know a client's case is spent at the very beginning of the claim. 

For the client, getting help during the application process means that common mistakes are avoided, all the necessary details are included, and the initial application is supported by a winning theory of the case.

For me personally, receiving these two approvals on the same day is a validation of my approach to initial disability claims, and demonstrates the value of having a lawyer involved at the application stage of the disability claim process. Both clients are immensely relieved to have the claim process over, and each is now receiving benefits rather than waiting for a Reconsideration determination and a hearing before an administrative law judge.

Both clients ended up paying a smaller attorney fee than if their claims had gone to a hearing. That does not bother me, because I can focus on the next important case. But the clients are pretty happy about it. Read more about attorney fees in Social Security cases.

Even for claim not approved right away, early assistance from a Social Security disability lawyer is helpful for the claim, because the issues are properly framed from the beginning. But with help during the application process, it is possible to receive disability benefits sooner (and to pay a smaller fee).

 

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Apply for disability benefits on the phone with a lawyer

If you are age 54 or older and 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.

Remember to e-file your appeals

Those representing clients before the Social Security Administration must file Reconsideration Requests and Hearing Requests for medically denied Title II and Title XVI disability claims online. The requirement went into effect Friday, March 16, 2012.

The new mandate applies to representatives who request and are eligible for direct fee payment, which is pretty much everybody. 

The requirement for online appeals includes the Disability Report - Appeal form.

For more information, there is SSA webinar entitled "Filing a Disability Appeal Online" available for viewing at any time.

Making claimants' representatives responsible for e-filing the Disability Report- Appeal is a major shift of responsibility from the Social Security Administration to those representing claimants before the SSA. The new mandate will save thousands of hours of staff time at local Social Security offices at the expense of claimants' representatives.