Social Security takes a long time to process disability benefit cases. Here is how to check the status of your claim.

Initial applications for disability benefits:

Social Security has a webpage at http://ssa.gov/claimstatus/ which lets you check your status. Unfortunately, you will probably receive this message:

The following statements are informational only. They are current as of today. You will receive the official notice of any decision made on your claim by U.S. mail. As of today’s date, a decision has not been made on your application. If you need more information, you may call us toll-free at 1-800-772-1213 (TTY 1-800-325-0778). SSA representatives are available Monday through Friday between 7 a.m. to 7 p.m.

Other than confirming that there is a claim pending, this doesn’t tell you very much. Fortunately, you can get more information by calling Social Security directly.

• You local Social Security office can tell you if any additional information is needed before your case is transferred to Disability Determination Services for a medical review.
• Once your case is moved to Disability Determination Services, you will receive forms to be completed about your disability. These are accompanied by a cover letter with the name of your case manager and usually their direct telephone number.

Cases pending a Hearing before an Administrative Law Judge:

After the “Request for Hearing” appeal is filed, the case is moved to a Office of Disability Adjudication and Review (ODAR). The ODAR office sends out a notice, once the file arrives there, listing the mailing address, telephone and fax numbers. If you lose the notice, you can also contact the local Social Security office to obtain contact information for the hearing office.

You can call the ODAR office to check the status of your case. However, the clerk handling calls can provide limited information. They may be able to tell you the status of the case, what information it is currently waiting on, and the current wait times. However, Social Security will not be able to give you “hint” of what the outcome of the case will be.

Now this should go without saying, but don’t be a jerk when you call. The Social Security agent will provide all the information they can. Each moment on the phone takes time away from processing cases. So, be nice. They really are doing their best.

A number of attorneys suggest that if you are denied at your Social Security disability hearing, you should do two things:

1. Appeal the Administrative Law Judge’s (ALJ’s) decision to the Social Security Appeals Council, and
2. File a new claim for Social Security disability benefits.

The idea was that the new claim would be evaluated by Social Security until it got to the hearing level, the the old claim was pending on appeal. There were pros and cons to this approach.

• Since cases often take in excess of 18 months at the Appeals Council, some advised to start the ball rolling on a new claim (which might get approved sooner).
• The problem was that a denial on the new claim might reinforced the correctness of the prior hearing denial which is being appealed.
• Also, if the new claim got to the hearing level, it was put on hold until the Appeals Council decided on the appeal of the prior hearing decision.
• If the Appeals Council denied the appeal, it might have a chilling effect on the new claim’s chances waiting to be heard at the hearing office.

Well, all this is a thing of the past.

With SSR 11-01p, Social Security now effectively makes you pick whether to appeal OR start a new claim.

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

This applies to pursuing two cases of the same type. That is, both appealing and applying for SSDI benefits, SSI benefits, or a concurrent claim for both SSDI/SSI benefits.

You can still apply for benefits of a different type that those considered on the appeal.

This Ruling does not change the procedure we currently follow when you file a subsequent claim under a different title or for a different benefit type than a pending claim. When a subsequent claim under a different title or for a different benefit type shares a common issue with the pending claim, we will usually consolidate it with the pending claim through the hearing level. When you file a subsequent claim that is under a different title or is for a different benefit type and your prior claim is pending review at the Appeals Council, we will process the subsequent claim in accordance with our current procedures.

In practice, this exception to the “choose only one appeal option” will mostly come up in cases where an individual was applying for Social Security Disability Insurance (SSDI) benefits and the hearing denial deals with disability through the date last insured (DLI).

An appeal is usually the only option (unless there is a previously un-adjudicated period of disability), since the date last insured often precludes a new SSDI claim. However, an individual in this circumstance may still be able to file for Supplemental Security Income (SSI) benefits (which does not have a date last insured issue).

So, if you have a prior hearing denial for SSDI which deals with a date last insured, and can only start a new claim for SSI,  you are still able to apply and appeal. This is because the prior claim (SSDI) is a different type that then new claim (SSI).

I was recently asked the following question:

The judge at my husband’s hearing said she was going to approve him. She said she would get his letter to him in the next 2 or 3 weeks, but NO letter yet.

Since she approved him during his hearing when will his benefits start?

Social Security cannot process benefits until a decision is entered. While judges can issue a “bench decision” by orally entering a ruling into the record at the hearing, this is fairly rare.

More commonly, when a judge tells a claimant how the s/he is going to rule, that is not the decision. It is a “preview” and “summary” of the outcome to remove worry and tension. He decision still needs to be written and electronically entered so that 1) the local Social Security office (SSI cases) and/or regional payment center (SSDI case) can begin processing benefits. The electronic decision is also converted into a paper decision which is mailed to the claimant.

Note: However, with Social Security office electronically linked, the local office and/or payment do not have to wait for the paper version which can lag the electronic decision by ten days or longer.

Basically, even when a judge tells a claimant what the outcome will be, until the decision is entered, nothing happens in terms of beginning the processing of back benefits and ongoing benefits.

So, despite knowing what the outcome should be, there is still the wait to have the decision issued.

I was recently asked what it meant that the Administrative Law Judge did not have a Vocational Expert (VE) testify at an individual’s Social Security hearing.

What happens when the administrative law judge does not call the vocational expert to the hearing. Why would the judge do that?

Well, I can’t tell you “why” the judge didn’t have VE. Some judges use VEs all the time, others do not. A VE provides evidence (testimony) about steps 4 & 5 of the sequential evaluation process. 

That is, whether an individual can perform any past work (step 4) or any other type of work (step 5).

Keep in mind that the burden of proof shifts at step 5. At steps 1 through 4, the claimant has the entire burden of proving their case. If the claimant fails to provide sufficient evidence, Social Security can deny the case without lifting a finger (as it were).

However, if an individual get to step 5, *then* the burden shifts to the Commissioner of the Social Security Administration to prove that the individual can still work. From a legal standpoint, if the judge wants to deny an individual at step 5, it helps for the judge to have a VE to provide testimony. Otherwise, there is a potential appealable issue that the judge made a step 5 denial without supporting evidence.

Note: denying an individual at step 5 (being able to do other work) is not automatically appealable error. There are ways this kind of decision can be valid, eg applying the medical vocational guidelines, aka the Grids. The grids a describe various age groups (50 to 54, 55 to 59, 60 to 64) along with educational backgrounds and describe the maximum physical abilities that can still result in a disabled finding. Use of the grids in the decision process does not require a VE.

Why doesn’t a judge always have a VE? Perhaps the judge feels the case is a slam dunk and there is not need to have a VE present. Perhaps the judge feels the case had serious issues and could be resolved (either by an approval OR a denial).

I don’t want to tease you. However, I just can’t say why some judges do not have VEs. It’s asking me to read the tea leaves without even seeing the tea cup. However, I hope a brief discussion of the impact of not having a VE at the hearing was useful!

Good luck!

My friend, Maine disability lawyer, Gordon Gates, has put together a free e-book, 10 Steps To Prepare For Your Social Security Disability Hearing.

In it, you’ll learn:

• How Social Security reviews cases.
• What you can do while waiting for your hearing.
• How to expedite cases.
• The information you will need to have at your hearing.

A reader asked:

How can a vocational expert have any say on my disabilities and limitations? I mean I dont get a VE slip to give to my boss when I’m sick.

That’s true. If a Vocational Expert (VE) says that a particular limitation should not prevent someone from being able to perform the duties a hypothetical job, does not help that person find an employer who will tolerate that limitation in the real world.

However, that is not the VE’s job. The VE only provides testimony about which jobs an individual is still able to perform (if any) despite their limitations. Also, the VE tempers the often out-of-date evidence in the Dictionary of Occupational Titles with more recent job treatises and personally performed surveys of real-world jobs as they are actually performed.

However, if the VE says I can still do a job that is inconsistent with my limitations, what can I do?

If the VE’s testimony is out of sync with reality, well… When there is a discrepancy between a claimant’s experience with a job and what the VE testifies to (often as to duties or which limitations would be tolerated in a job), that can be brought up during the cross examination of the VE. For example, the VE can be asked about their experience with the particular job:

• Have you personally done a survey of the job?
• How long ago?
• For how long?
• Was the survey for this particular job title?
• Who was the employer and what was the nature of the job? This is to verify that the job cited and the job surveyed are actually one and the same.

The VE can also be asked questions such as:

• Don’t these jobs require… (production minimums, constant sitting, no unscheduled breaks, etc)?
• Don’t these jobs limit… (restroom breaks, standing, moving about the work area, not remaining at the work station, standing and stretching, etc)?
• Would the following limitations… interfere with… (production requirements, call-time limits, etc)?

These are just some examples. The questions have to be suited to the situation. However, I hope to give you some idea of possible questions that can be asked.

Keep in mind that you may not necessarily get the VE to change their mind. Each question attacking the VE’s testimony about whether a hypothetical employer will tolerate certain limitation may be met with a rejection and an affirmation of the original testimony.

However, if you present a good argument, you may end up convincing the ALJ that the VE’s responses are not credible. In which case, the VE’s testimony may be thrown out even though you never get the VE to change what they say.

Note: this is only one method of attacking VE testimony. There are others including having your own VE at the hearing (which you will have to foot the bill for), or providing a supplemental VE report after the hearing (ditto).

Honestly, I don’t believe bringing a notebook to a hearing is helpful. Or, more specifically, I believe the negatives outweigh the positives.

If you bring notes, you won’t answer naturally. You will likely end up clutching and flipping through the notebook throughout the hearing.  You’ll know that that some answers are in your notes, but you will forget which ones. So, you will check your notebook before answering the judge’s questions. You will use your notes to avoid eye contact with the judge, and end up answering questions looking at the table and not making any human connection with the person who needs to decide your case.

For another reason, the answers are not there. If you bring a few key pieces of information, 95% of the judge’s questions will be unrelated to your notes. If you bring voluminous notes, you won’t be able to find the information you need in the pressure of a hearing setting.

Plus, skimming through a notebook at a hearing just doesn’t look natural. This is YOUR CASE. The judge will be asking you about YOUR DISABILITY. How do you think it looks to the judge when s/he asks where do you feel pain, and you have to check your notes before answering?

Keep in mind that much of the factual information is already in the file in front of the judge: where you worked, your medical providers, and, of course, your medical records. If the judge asks you about any of this, the s/he may be asking for clarification, but the information is likely already in the file.

This is another reason to have an attorney with you at your hearing. The attorney has the same information as the judge and can help locate where things reside in the file. The attorney can also provide information and can help you remember things in case you forget or get things wrong.

You should also know that judges don’t expect you to remember everything. They may expect you to know the big things. But not the minutiae of things that happened years ago. Also, judge’s know that people are nervous during hearings and a likely to forget things.

The best thing you can do during the hearing is to just be yourself. Answer the best you can. However if you do not know an answer, just say you do not know, or that you can’t remember. Your lawyer can help you fill in the details if you falter.

People are naturally nervous at their hearing. However, a notebook only acts as a crutch. The only exception concerns bringing a list of your current medications (if you did not fill out a form for Social Security shortly before the hearing). However, do not take it out unless you are answering about medications. And then put it away once you are done. Otherwise, you may end up staring a single piece of paper, looking for answers that are not there.

photo credit: Markus Rödder

Social Security frequently has single decision makers (SDMs) complete forms describing what an individual can and cannot do in the workplace. These are very important case since the ultimate issue in a Social Security disability is whether an individual can still perform some type of work.

§404.906 describes the SDM process:

(2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions for entitlement to benefits based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see §404.1615). However, before an initial determination is made that a claimant is not disabled in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see §404.1617). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions for entitlement to benefits are met.

The problem with a SDM deciding an individual’s limitations is that SDMs are not doctors, nor nurses, nor any type of medical professional. The SDM is often the Social Security case manager working in the Disability Determination Services (DDS) office.

The SDM often works with a medical expert to evaluate the extent of a claimant’s impairments and the resulting limitations. However, it is the SDM, not the medical professional, who often completes the limitations forms and decides whether an individual is disabled.

In cases with physical disabilities, the medical consultant does not need to sign the disability determination forms (typically a Physical RFC Form SSA-4374-BK). In cases with psychological impairments, the regulations a bit stricter requiring the SDM, “every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.” So, even in mental impairment cases, it is not an iron clad requirement that the medical consultant sign off on the claimant’s limitations.

I don’t want to go too far off on a tangent. The main point is that during the initial evaluation of disability claims under the SDM system, technicians and not doctors are deciding individual’s abilities and limitations. If you are still saying, “so what,” keep in mind that if the situation were reversed, a claimant’s representative providing the same form filled out by someone with no medical credentials in support of the claimant’s disability, would be laughable. It would neither be an “acceptable medical source,” nor an “other acceptable source.” See SSR 06-03p.

Ok. This simply means the situation is not equal. Social Security has to trust someone to decide an individual’s limitation and the issue of disability at the initial determination level. And, instead of a medical consultant, it can be a Social Security case manager with no medical credentials.

Question: Are these SMD determinations of abilities and limitations still valid as opinions at the hearing level?

Answer: NO!

Maine and New Hampshire Social Security disability attorney Gordon Gates has great posts (post 1, post 2) about the how much weight a SDMs Residual Functional Capacity can be given at the hearing level:

A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.

At the hearing level, a single decisionmaker RFC should be placed with the jurisdictional documents in the “A” exhibits in the disability claim file, rather than with the medical evidence in the “F” exhibits.

For “prototype” states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.

The basis for this are two memoranda from the Chief Administrative Law Judge’s office at Social Security. On May 19, 2010, then Chief Administrative Law Judge Frank Cristuado issued a Memorandum stating the following:

SDMs often complete the Physical RFC Form, SSA-4374-BK, which is commonly completed by State agency medical consultants. Some ALJs and AAs treat the SDM RFC assessments as non-medical opinions and weigh them accordingly. However, this approach is inconsistent with agency policy clarified by POMS instruction DI 24510.050C, which states SDM form are not opinion evidence at the appeal levels. Thus, agency policy requires ALJs and AAs to evaluate SDM RFC assessments as adjudicatory documents only, and not accord them any evidentiary weight when deciding cases at the hearing level. Emphasis added.

Not only was Chief Judge Christuado stating that SDM residual functional capacity statements were not medical opinions, he indicated that they were not opinion evidence at all. Therefore, NO EVIDENTIARY WEIGHT was to be given to SDM RFC forms!

Then on September 14, 2010, Acting Chief Administrative Law Judge John Costello issued a revised memo which strengthening this position:

Agency policy is that findings made by SDMs are not opinion evidence that Administrative Law Judge, (ALJ) or Attorney Adjudicator, (AA) should consider and address in their decisions. See, for example POMS DI 24510.050C, which states that SDM-completed forms are not opinion evidence at the appeal levels. SDM finding, are not “medical opinion” evidence since they do not come from medical source. However, agency policy is, that they are also not the opinions of non-medical sources, as described in SSR 06-3p.

Therefore, ALJs and Aas must not consider SDM RFC assessment forms and other findings as opinion evidence and must not evaluate them in their decisions.

…

When a case that contains a copy of an SDM’s SSA-4734-BK is appealed to the hearing level, the form will be located in the “F” section (Medical Records). At case workup SDMs form should be moved to the “A” section (Payment Documents/Decision,); any forms signed by MCs or PCs should be left in the “F” section.

If you worked your way to the end of this post, you may be wondering what does this mean for you?

If you have a RFC form in the file signed by a SDM (and there will be “SDM” after the signer’s name), the SDM’s findings as to the residual functional capacity (RFC) — what the individual can and cannot do — cannot be used as evidence at the hearing level. One way to bring this to the judge’s attention is to request that the SDM RFC form be moved to A section of the file, and provide a copy of the September 14, 2010 memo along with the request.

Many thanks to New York disability attorney Jeff Delott and Maine and New Hampshire Social Security disability attorney Gordon Gates.

Since Social Security has started provided encrypted Social Security exhibit CDs, many people contacting my office have not been able to access their files. The Social Security encrypted disks are keeping claimants from accessing their data.

First, you have to be running Microsoft Windows. Fortunately, some early concerns about having the encryption system only working in Windows Vista seem to be unfounded. I have been able to access the encryption system in Windows 7. However, if you are using a Mac (like I am) or Linux, you are out of luck unless you virtualize a Windows system.

Let’s go through how to get at those file!

When you open the Social Security cd in your file explorer, you will see a window like this.

Double click on the “PME” icon and you will see the following dialog:

In the first box, titled “account name,” enter “ssa”. Do not capitalize or enter the quotation marks. According to Social Security, the account name stays the same for all disks sent to claimants or attorneys.

The “password” is first 4 letters of the claimant’s first name (all lowercase), followed by a “#” and the last 4 numbers of the claimant’s Social Security Number. Make sure not to capitalize the first name!

So, for John Smith, SSN 123-45-6789, the password is john#6789

If the first name is less than four characters long, add #’s until you have 4 characters for the first name.

For Tom Jones, SSN 987-65-4321, the password is tom##4321

For Al Jackson, SSN 567-89-1234, the password is al###1234

If the password does not want to work, try the following:

1. Make sure you are not capitalizing either the account name or the password.
2. If you have to add #’s to make the first name 4 characters long, don’t forget to add the extra # which has to be between the 4 characters of the first name and the last 4 digits of the SSN.
3. If you reviewing a cd on a child’s claim, make sure you are using the child’s first name.

For attorneys, I recommend signing up for electronic access to the Social Security files through the ERE (Electronic Records Express) system. Not only can you access files instantly (including case documents which have not yet been made part of the exhibit file), you can download the file either in the web format previously available on the Social Security CDs, or as a PDF. Either format in unencrypted which means you do not have to jump through hoops to access case files, and you can review exhibit files on Mac or Linux systems.

Another nice feature is the ability to download individual files instantly. If there is a downside, it is that if you want to download the entire file (either as a zip file or a PDF) you have to request the download, which is then queued up. You are notified by when the file is available for download. In the first couple of months using the new system, files are ready in an hour or two on business days, and almost immediately on weekends. We will have to see if processing times increase as more lawyers come on line and begin to use the ERE system to access case files.

Top photo credit: gitsul.

If you go to a mental health clinic for disabling mental impairments. They usually score you and document how impaired you are and what your level of functioning is. So, I would think it would be easier getting your case approved for a mental health disability if the mental health clinic has documentation showing you have extreme low level of functioning vs. someone applying for disability for say chronic fatigue or something that is subjective.

There is nothing wrong with this analysis. However, Social Security disability cases are rarely formulaic. Winning a case is almost never as simple as having “A, B and C.” While some evidence is better than others, an individual does not necessarily have a better chance of winning  because they have one type of evidence over another.

In Social Security cases, an objective diagnosis is nice. However, the totality of the evidence is almost always more important. Even cases with the same diagnosis have widely varying chances of success based on the individual evidence each case has. That means that there isn’t a cook book for handling disability cases. You have to individually evaluate each one.

Put another way, you cannot Rock, Paper, Scissors your way to winning a disability case.

photo credit: Meme!

1. Establish a medically determinable impairment. In any Social Security disability case, you have to prove the existence of not only symptoms, but also an underlying cause — a diagnosis. When the records are not clear, or when different doctors have provided different diagnoses (especially over time), a Medical Expert can help clarify what the underlying conditions have been and are today.
2. Determine if the impairments meet or equal a listing level impairment (step 3 in the Sequential Evaluation Process). If a Medical Expert states your impairments either meet the requirements of  listing level impairment, or have the same limitations as a listing level impairment, the case may be approved very quickly.
3. Provide limitations from the impairment(s). In many cases, treating doctors do not want to make any kind of opinion about work-place limitations. They refuse to complete forms which often results in a gap in your evidence. Even though Social Security often has one of their own doctors review a case and determine limitations during the initial case review (before the first decision), the Medical Expert can provide a new opinion. This can be a better opinion since it is based on evidence that has been developed over the course of the case.
4. Establish an onset date. If the Medical Expert is supportive of the disability, they may also be asked to estimate how far back the limitations existed. This is important to establishing the correct onset date in a case.
5. Provide a prognosis. In order for a condition to be disabling it has to either be expected to result in death or be disabling for 12 months or longer. If a condition has not clearly been disabling for 12 months, a Medical Expert may be asked whether it is likely to continue until the durational requirement is met.

While a Medical Expert may touch on any or all of these, the make or break issues are whether the impairments meet a listing, or if not, what limitations are expected to result from the impairments.

Is having a Medical Expert good or bad?

Unfortunately,  you have no way of knowing until the ME testifies at the hearing. I have had cases where the ME is completely supportive of the disability and we are done and have an approval five minutes after the ME testifies. I have also had cases where the ME is completely unhelpful and the rest of the hearing is like trying to scale Mount Everest. MEs make or break cases. When they are helpful, it is like the heavens part. When they are not, it is as if they threw and hand grenade into the room and then walked out. Why do MEs have such a critical impact on Social Security hearings?

• Medical Expert testimony is often the last evidence the Judge receives. In trial presentation theory, there are the concepts of recency and primacy. This simply means that jurors, or in this case the Judge, is more likely to accept what is heard first or last. When a Medical Expert testifies at the hearing, that testimony has the benefit of recency.
• Medical Experts are perceived as independent.
• Medical Experts provide live testimony. Unlike other doctors’ reports and records in the file, the Medical Expert is providing live testimony and responding to the Judge’s questions. Combined with the other two factors, Medical Expert testimony is usually quite persuasive at hearings.

What to do about bad medical expert testimony:

So, is that it? If a Medical Expert testifies, is that the entire case?

No. You have several options:

1. Object to the Medical Expert / object to certifying the witness as an expert. You can always object to a witness at the hearing. However, this cannot be done willy-nilly. There has to grounds for the objection, and the Judge may overrule the objection. Another risk is that you can only object to the ME before they testify. If you object, and the ME testimony was going to be good, you may be loosing the best evidence you could possibly get.
2. Have your own doctor testify at your Social Security disability hearing. This is one of those things that sounds perfectly reasonable and yet, rarely happens. I have had a number of clients tell me that their doctor testify. However, when the hearing date is set and the doctor is notified, it turns out they will not attend. I can count on one hand the number of times I have seen a treating provider actually come in to testify. Keep in mind that even if a doctor is willing to testify, you may have to pay from two hours to half a day for the doctor’s time — even if they only testify for 20 minutes. This can easily cost several thousand dollars.
3. Submit a post hearing rebuttal opinion. Some Judges will allow you to provide a written report from your doctor addressing the Medical Expert’s testimony. Even doctors who were previously unwilling to get involved are sometimes spurred to take action by the Medical Expert’s testimony. A rebuttal report may be free, or may cost several hundred dollars.
4. Put on the best damn case you have. Even if the Medical Expert is not helpful, all you can do is present the case you have prepared. Remember that the Medical Expert has never examined you and does not know you as well as your own doctors. Social Security has to give consideration to the length, extent, and nature of treating relationship between you and your doctors.

Even if the Medical Expert is not helpful, there is often evidence in the file that supports your disability. You just have to fight extra hard to bring it to the Judge’s attention.

You made to the hearing. The Judge has gone over your impairments, your limitations, your daily activaties. Just when you think you are done, the Judge turns to you and asks:

So, what do you see for yourself in the future?

You freeze. You ask yourself silently, “what is the Judge looking for here? This isn’t a job interview!” You need to know what this question is about.

The first thing you need to understand is that Social Security hearings are largely credibility assessments. By the time you get to the hearing, the Judge already has your medical records and statements of limitations from your doctors. In other words, the evidence is in the file.

So, why hold the hearing at all (other than to to give you your day in court)?

The Judge wants to give you a chance to show something beyond what appears in the medical records. The Judge wants to know, “what are you going through.”

Even medical records which include a “subjective” section (where the doctor’s office notes your complaints on the day of the visit), provide only a filtered version of what you are going through. The judge wants to hear what you are experiencing in your own words!

After you tell the Judge what you are going through and how your impairments affect your life, the Judge may ask you that question, “what do you see for yourself in the future.”

In my opinion, the Judge is asking:

Can I believe you? Can I believe how severe you tell me your pain is? Can I believe how often your condition keeps you from doing anything?”

Part of how the Judge decides these questions is your outlook. Do you have a positive outlook or are you a gloomy Gus.

If you see nothing positive for the future, that may affect your perception of your pain and/or limitations. The result is the Judge may discount your self-reported problems and limitations.

Is this fair? Maybe not, but in my years of taking cases to hearings, that is what I believe is happening.

Now, I don’t believe that there is necessarily a right answer. However, I believe Judges tend to respond more favorably to a more optimistic viewpoint. Judges want people who are optimist that through treatment and/or medications they will get better. If you are waiting for Medicare or Medicaid to kick it so you can get a procedure, afford a different medication, or see a specialist, this is the time to bring it up.

However, I again want to caution that there is no right answer. The best answer you can give is from the heart. Hearings are largely about assessing your credibility and if you are just saying what you think the Judge wants to hear, the Judge will know it.

I realize this post may frustrate some of you: “be optimistic” but “be honest.”

What if my honest answer isn’t optimistic?

Well, I could play lawyer-ball for a while and tell you that “every case is different,” and “not all advice will apply in every case,” and “this is just general information and not legal advice.” Hopefully, you already understand that.

My advice to my clients is always the same: be honest. Even if the answer is not optimistic, it is your best way of addressing the Judge’s questions and giving yourself the best chance of winning your case.

CC image credit: Tambako the Jaguar

What does it mean if the Administrative Law Judge or Vocational Expert mentions “non-competitive work” during a Social Security disability hearing?

“Non-competitive” refers to types of work:

• Competitive work is, well, just regular work; with no set-asides, no accommodations beyond the norm.
• Work that is performed under special circumstances or that is set aside for disabled individuals (for example: work through Goodwill Industries) is typically viewed as “non-competitive.”

SSR 05-02 (a Social Security Ruling) provides guidance about what constitutes “work under special condition.”

Performance of Work Under Special Conditions: One situation under which your SGA-level work may have ended, or may have been reduced to the non-SGA level, as set out above, is “the removal of special conditions related to your impairment that are essential to your further performance of work.” That is, you may have worked under conditions especially arranged to accommodate your impairment or you may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evidenced in many ways. For example, you:

a. May have required and received special assistance from other employees in performing the job; or
b. Were allowed to work irregular hours or take frequent rest periods; or
c. Were provided special equipment or were assigned work especially suited to your impairment; or
d. Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
e. Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
f. Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

Remember that these are examples only and other accommodations may also qualify as work performed under special conditions.

Social Security only considers competitive work in deciding disability cases. If an individual is not able to perform “competitive work” or is “limited to non-competitive employment” or if there is “no competitive work available” that is usually a good sign for a disability case

Keep in mind that a Social Security Administrative Law Judge (the hearing judge) often asks the vocational expert several hypothetical questions with different sets of limitations. There could be “no competitive work” under one set of limitations, and still be work possible under another set of limitations. What I am saying that while hearing “non-competitive work” come up in a hearing is usually a good sign, it does not automatically mean the case will be approved.

CC photo credit: Philippe Put

Note: Social Security disability benefits may be in addition to any benefits paid by the VA.

To have the case flagged under this program (and receive critical case / dire need expedited processing) apply online through www.socialsecurity.gov/woundedwarriors, or at your local Social Security office.

After reading the online material, a question I had was whether expedited processing applies through the hearing level (if the case is denied) or only in the initial disability determination process. The initial application process is the short part of a disability claim taking about 4 to 6 months for a decision. On expedited cases, the initial decision is reached in about 2 months based on the cases I have seen. However, at the appeal stage, it can take 12 to 14 months (or longer) for a case to be scheduled with an Administrative Law Judge. If the expedited process only applied to the initial decision, it would not help veterans very much.

I contacted my local ODAR (Office of Disability Adjudication and Review) appeals office. I was informed the expedited process applies through the hearing level as well and that the cases continue to be flagged as expedited.

However, to be on the safe side, it is a good idea to add a cover letter to the appeal specifically requesting expedited processing under the Wounded Warrior program.

CC photo credit: uhuru1701

The vocational expert at a Social Security hearing may testify that there is an, “erosion in the job base.” I have had a number of people ask me what this means?

As I wrote about before, the vocational expert’s job is to testify about the availability of different jobs in the national economy. The vocational expert responds to be Administrative Law Judge’s (ALJ’s) hypothetical questions about the effect of limitations on an individual’s ability to perform job duties.

In other words, the vocational expert testifies about what jobs (if any) a person can still do despite their limitations.

However, not every job is performed the same way, and, jobs can be performed differently (with different abilities and limitations) in different industries.

Example 1: cashier. Working as a cashier typically requires an individual to stand for the entire shift. However, some hospital cafeteria cashiers can sit while working as a cashier. So, a vocational expert may testify that an individual as follows:

An individual with those limitations still has the capacity of working as a cashier, with a 65% erosion in the job base.

In other words, 65% of cashier jobs (note: this is a number out of the air) requires standing, but 35% of cashier jobs allow an individual to work while sitting down (cashiers in hospital cafeterias).

Example 2: parking lot attendant. This is a job where a person provides tickets and takes payments at a parking lot. Since this job requires an individual to be at the parking lot during the blazing heat of summer and the biting cold of winter, this position is often eliminated if an individual has limitations on exposure to temperature extremes.

However, some parking lots have been enclosed booths with temperature controls (air-conditioning and heating) which might allow an individual to perform the duties of a parking lot attendant even they cannot be in temperature extremes. This would result in an erosion in the number of parking lot attendant jobs the individual would be able to work at, but a percentage of parking lot attendant positions would remain.

• An erosion does not mean that an individual will be found disabled. In order to win an adult Social Security facility case, an individual has to show that that there is not a substantial number of jobs the he or she can perform.
• If the erosion is particularly high, and the actual number of available jobs is very small, the erosion might mean that Social Security would approve the claim. However, that is not guaranteed.

It all depends on he final number of jobs still available that the individual can still perform.

CC photo credit: nateOne

I was talking to a woman who was upset with her attorney. Her Social Security case had been denied at the hearing level. The Administrative Law Judge did not think she was disabled. With her attorney’s help, she appealed to the Social Security Appeals Council.

After months and months, her appeal was denied.  Even more than being denied, she was upset that her lawyer could not tell her why she had been denied.

We discussed that there is no way the attorney could know. When the Appeals Council denies an appeal, all you get is a form letter that says in part:

We found no reason under our rules to review the Administrative Law Judge’s decision. Therefore, we have denied your request for review.

No matter how many arguments your attorney put forward in the appeal, or how good they were, you do not get an explanation of why your appeal was denied. All you get is a form letter. It is a bit like getting a rejection letter from a publisher: you don’t know what they didn’t like about your story; you just know that it was rejected.

It is just as frustrating for the lawyer to not know why the appeal was rejected. What it comes down to, is that even your lawyer cannot tell you why the appeal was denied since Social Security does not tell us.

You have been denied disability benefits by an Administrative Law Judge at your Social Security hearing. You filed an appeal with the Social Security Appeals Council. If they approve the appeal, you can get your disability benefits? Right?

Probably not.

The Social Security Appeals Council generally looks at three things:

• Was there an error of law? Did the Judge apply the wrong standard, or misapply a standard?
• Were the Judge’s actions, findings and conclusions supported by substantial evidence?
• Is there as broad policy or procedural issue which may affect the general and public interest?

Of these three, the Appeals Council (AC) mostly deals with legal error.

Why am I discussing this? Because, even if there is legal error, that does not necessarily mean you are disabled. It only means there were mistakes at the hearing level; and that is not enough to win disability benefits.

So what do you get if you win at the Appeals Council?

The majority of the time, the Appeals Council will not approve a case outright. Instead, if there were significant mistakes at the hearing level, the Appeals Council will send the case back to the hearing level with instructions on what needs to be done to correct the mistakes.

You don’t win, you get sent back for another hearing. Here is the other shoe dropping: the second hearing is typically with the same judge that heard the case at the first hearing.

While you can request a new Judge, or ask the Judge to recuse him/herself if you feel that you were treated unfairly, you generally get the same judge when a case is remanded from the Appeals Council. The exceptions to this are as follows:

• If you had an out-of-state Judge at the first hearing who is not available for the second hearing. Or,
• If you have already appealed a decision from the same judge to the Appeals Council twice and had the same case remanded.

For more information about appealing to a hearing denial to the Social Security Appeals Council, click here.

While many Social Security disability hearings in Colorado have decisions issued in 45 to 90 days, some cases wait for four, five, even six months without a decision.

I was recently asked if a long wait after a hearing is a bad sign?

I previously wrote about my experience with how long it takes to get a decision after a Social Security hearing. Many lawyers who have been doing Social Security cases for a while can’t help but notice that the longer it takes to get a decision, the greater the chances that the case will be denied. However, that is not the whole story. Here is my take on this issue.

Social Security approvals often result in fast decisions

Even if the judge does not rule at the hearing, a decision in an approval is often sent within the normal 45 to 90 day window.

Social Security denials take longer to be processed

In the case of denials, I frequently see cases sent out to a decision writer which adds up to 4 months to the decision process.

Why so long? There is a backlog of cases waiting for a decision writer to become available. This results in a case waiting for months after a hearing just to have a draft decision written. Note: this is before the decision even comes back to the judge for approval and/or editing. Combined with the original 90 day wait, some of these decisions are not issued for up to six or seven months after the date of the hearing.

So, if it takes more than 3 months to get a decision, it’s going to be a denial!?!

Not necessarily. While there is some correlation between lengthy decision times and denials, it is not a clear cut signal. Judges also use decision writers on cases that are going to be approved, which means even approval decisions sometimes four or more months before they are issued.

Don’t try to read the tea leaves

Ultimately, the only thing that counts is whether you are approved. Trying to read meaning into how long the decision takes is just guessing. It does not change the odds of winning or give you any meaningful information. Unfortunately, many people tear themselves up inside wondering what it means if a decision takes months to be issued.

All you can do is take a deep breath, let it out, and try to go on with your life while you wait.

Congratulations! You have won your Social Security disability case and have been approved for SSI! You have read my article about when you should get paid. But, weeks have gone by and you still have not heard anything from your local Social Security office about your benefits.

Is anyone working on my case?

Is there anyone there?

Hello?

While some SSI cases get very fast processing (sometimes an appointment is scheduled at the Social Security office before the hearing decision is even delivered), other cases wait for more than a month with seemingly no activity from Social Security.

Here is a tip: you can actually go in at any time after the favorable decision to get your SSI benefits processed.

Keep in mind this only applies to SSI benefits. If you have been approved to Social Security Disability Insurance (SSDI) benefits, those are processed by a regional payment center. While your local Social Security office can check on the processing status, they cannot process those benefits themselves.

If you do decide to go in to get your benefits processed, get ready to wait when you arrive. Depending on how busy your local Social Security office is, you may be there half a day before you a technician can meet with you. You may also want to review my tips for surviving a trip to the Social Security office.

Do not to abuse this. Social Security is doing the best it can with limited resources. If you can wait a bit longer to get your benefits processed, they will get to you. However, if you have already waited more than a month after getting your SSI approval, with no sign of Social Security getting to your case, this may be an option.

One more thing to remember if you need to speed up your Social Security case: don’t forget to check if your case qualifies for expedited processing as a dire need case.

Check your denial

The best tip I can offer if your case is denied is to check the paperwork. While there are several common deadlines, if you do not definitely know how long Social Security gives you to appeal, you may be using the wrong deadline.

The paperwork you are looking for is typically a denial. However, it may also be called a “decision,” “notice of disapproved claim,” “notice of proposed action,” or something else. The thing to keep in mind is that whenever Social Security decides something on your case, they will also tell you the following:

1. The appeal options. What you can do if you disagree with the action or decision.
2. The appeal process. What forms you need to fill out, where to get them, where to turn them in, or the website to go to appeal.
3. How long you have to file the appeal.

If you have lost your Social Security denial?

If you no longer have your Social Security paperwork, give your local Social Security office a call. You can also call the toll-free Social Security number at 1-800-772-1213.

Social Security should always be able to tell you the most recent decision (or action on your case) and any applicable deadlines.

Lets get down to brass tacks. Here are the most common Social Security deadlines:

65 days to appeal a Social Security denial

In most Social Security cases, you have 65 days to appeal a denial or decision. Again, there is no guarantee of 65 days; this is just the most common time limit.

Hold on, isn’t it 60 days?

Yes and no. Social Security typically gives you 60 days to file an appeal. However the 60 days normally do not start until 5 days after the date on the decision. Those 5 days are the mailing time Social Security assumes it will take to get the denial to you.

So, effectively, you have 65 days from the date on the decision to appeal.

In theory, if it took longer than 5 days to get the decision to you, you might have an extra couple of days beyond that. However, if you file the appeal more than 65 days after the date on the denial, Social Security will assume that it is a late appeal and you will have to explain the late filing. Can you prove it took longer than 5 days to get the denial?

Note: if the denial is sitting for several days in a mailbox or PO Box because you have not picked it up, this will not normally extend the deadline.

Deadline to what?

I mailed the appeal on the 65th day. I even got confirmation from the post office. I’m good, right?

Probably not. Appeals are not taxes. Getting a postmark by the last day does not stop the deadline clock.

You have to get the appeal into Social Security’s hands on or before the deadline. If you are close to the deadline, that may mean overnighting the appeal, or walking it in.

What if the deadline falls on a weekend or holiday?

If the deadline falls on a weekend or national holiday, then the deadline is moved to the next business day.

However, don’t bet your case on it! I have seen too many cases where the appeal was properly filed on the next business day after a weekend deadline and in every single instance, Social Security treated it as a late appeal. This was able to be resolved with a letter explaining the circumstances. However, it put an extra hurdle in the way of proving the disability case.

If at all possible, get the appeal in early!

Wrap-up

I want to remind you again, deadlines can change and the best source for finding the deadline in your case is to check your Social Security paperwork or contact Social Security directly.

Check out this article for more tips on dealing with Social Security deadlines.