It always shocks me when I hear that Social Security has discouraged someone from filing an appeal. However, several times a year someone tells me something like this:

When I asked for the forms to appeal I was told, ‘if you appeal, you are just going to be denied.’

This is improper for a number of reasons:

1. It is not Social Security’s job to encourage or discourage people from pursuing cases. You have a right to appeal!
2. If you are requesting a hearing, the person telling you not to appeal will not be the person making the decision. So he or she has not idea what the outcome will be.
3. Telling you not to appeal assumes that Social Security knows all there is to know about a case and nothing will change the decision. As a lawyer whose job it is to get Social Security to change its mind, I can tell you I have not seen a single case that Social Security had all of the relevant information.

If someone at Social Security tells you not to bother appealing, get the person’s name and ask to speak to head of that Social Security office. Better still, send a letter both to head of the Social Security office and to your Congressperson complaining that Social Security is bullying you out of pursing your rights.

You may have a good case, you may have a bad case. But it is an abuse of power to try to talk you out of pursuing your rights by telling you that you will be denied again.

To quote an old lottery slogan, “you can’t win, if you don’t play.” It may seem obvious, but you cannot receive Social Security disability benefits if you do not apply.

If fact, many Social Security regulations about Social Security eligibility start with this simple requirement:

Step 1: You apply.

As I have written about before, Social Security uses the protected filing date (PFD) to decide how far back your benefits can go.

From time to time, I receive a phone call like this:

I’ve been disabled since 1994, but Social Security only wants to pay me 12 months of back benefits!

I see. When did you apply for benefits?

Last month…

I then explain how Social Security pays back benefits using the protected filing date as the starting point.

Here is what it comes down to: if you want Social Security benefits, you have to apply!

How do you begin to review your Social Security exhibit file? Here is a quick guide to finding the really important parts.

Start with the “F” section to review the medical records.

If you do not review anything else in the file, you need to know what medical records are there (and what records are missing).

Here is what I look for:

• Are all the doctors and hospitals listed? If the doctor or hospital is not listed, it is a safe bet that those records are not in the file. There are some exceptions to this. Occasionally, records are commingled, with more than one doctor’s records in one exhibit, but that is usually straightened out as the Office of Disability Adjudication and Review (ODAR) gets your exhibit file ready for the hearing.
• Are all all the dates of service complete? In the image above the records cover August 19, 2003 through November 13, 2003. If you know you treated with that doctor in 2004, you know the records are not complete.
• Do the number of pages look right? If you were treating with the same doctor for years and years, but Social Security only shows 12 pages, the records are probably not complete.

Then, start to review the actual records. While a review of the exhibit list can help you quickly spot missing records or other problems, you really have to examine the records to find out what Social Security has (and what might be missing).

The F section of the file also has all the reports from any doctors Social Security sent you to. If you want to see what the consultative examiner had to say, now is your chance to find out!

You will also find the forms from the Social Security technicians describing what limitations they think you have. Social Security often uses this information in deciding your case, so you need to know what they are saying.

Just before your Social Security hearing, you will be given a cd and pointed at a computer. If you ask, someone may help you load up the disk and get you to a screen that looks like this:

Ok, now what?

What is all this stuff and what do I do with it?

Social Security uses electronic case files. The image above is the “Exhibit List Index” which may automatically come up when you insert the disk into the computer (if it does not, you may have to browse to your cd and double click “index.html” If in doubt, just ask your kids.

The Exhibit List Index is a “table of contents” for the documents in the file.

In the above image, you can see there are 4 exhibits in the “B” part of the file.  The first one, 1B is a request for hearing and that document is 5 pages long. By clicking on any link (blue underlined text) you will be taken to that exhibit.

I know how to move around in the exhibit file, but I don’t know what I am looking at!

Ok. The file is divided into different sections, labeled A through F. Here is what you can find inside each section.

• Section “A” contains the transmittal sheets, which provide a quick overview of your case. These are pretty cryptic if you are not familiar with them. However, they do provide one critical piece of information: right at the top to the left of your Social Security Number there is a block for your “Filing Date.”  This is your Protected Filing Date.
• Section “B” covers the decisions on the case, or more importantly the denials. If you need to find the official documents in the case (denials, requests for hearing, fee agreements, appointment of representative forms, notice of hearings etc) this is where they are.
• Section “D” covers most of the forms that your filled out for Social Security and the non-medical evidence. This includes all the forms Social Security has you fill out, and your earnings records. This also includes school records such as grades, IEPs, 504 plans, teacher questionnaires, and all other school records.
• Section “F” has all of the medical records in your case. This includes the reports of the doctors Social Security sent you to (you really need to review this) and the reports from any technicians who completed forms describing what you can and cannot do.

What do you do with all of this … stuff? Well, you read it. Personally, I like to do a cover-to-cover review of the file.

However, if you have never read a file before, you may give up before you get to the critical stuff (like the medical records all the way in the back of the file). My next series of articles will deal with how to review a Social Security exhibit file.

Keep in mind that there are some regional differences in how Social Security organizes the files. I have seen files from other states that had records in different places. Some states try to speed up the processing of cases by putting all the medical records into just one “F” exhibit. You end up with just a single description, “1F Medical Records 608 pages.” This is fairly useless and requires going through the exhibit and figuring out exactly what records are there.

In some disability decisions, the judge ask Social Security to review the case, sometimes as short as six months, sometimes the judge asks for a review in a couple of years.

I thought you said that most Social Security disability cases were for “open” disability — where there is no foreseeable end to the disability.

Compared to a “closed period of disability” case, that is true. In a closed period case, either you, or the judge, picks a date when your disability ended, and it is always a date in the past.

Here, the judge expects your condition will improve in the future and you may no longer be disabled.

This does not mean your benefits will automatically end. However, Social Security will review your case to see if your disability continues.

• If your disability continues, your benefits may continue as well (assuming there is no other problem to cause your benefits to stop).
• If your are no longer disabled, your benefits will probably stop.

As in every Social Security disability case, it is vitally important to keep treating even after your have won.

If you do not have a supportive doctor when Social Security reviews your case (and almost all cases are reviewed at some point), a Social Security doctor (who has never seen you) or a Social Security technician may decide based on your limited medical evidence that you are no longer disabled.

Disability cases based on seizure disorders are a very special kind of disability case.

If your case goes in front of an Administrative Law Judge, you can expect to be asked these questions:

• How often do you have seizures?
• What happens during a seizure?
• How do you feel after a seizure?  
• What do you have to do after a seizure (lie down, sleep etc)? And for how long?
• Are you treating with a doctor?
• Are you taking your medications as prescribed? How long have you been taking your medications?

While seizure disorders (epilepsy, partial complex seizures, etc.) are often disabling, simply having a seizure disorder is not enough to be found disabled. In many cases, medications control the frequency or severity of seizures.

Of course, in many cases, they do not. 

But, to improve your chances of winning your case, you have to be ready to talk about your seizures, how often they happen and how they effect you.

San Francisco disability attorney Geri Kahn wrote about her experiences with providing records to Social Security:

Before filing a new initial claim I always order the records and then submit them directly to the Social Security field office immediately after I have filed the claim electronically.  I recently was at an interview in one of the field offices in San Francisco and the claims representative told me that he could not accept the records I was submitting because he was only permitted to fax 15 pages to the state agency disability  examiner.

Since you need to prove that you are unable to work to win a Social Security disability claim, Social Security often uses disability examiners to get a medical opinion of what a person can and cannot do.  Disability examiners use the medical records Social Security provides to make this decision.  

Then, Social Security uses the disability examiner’s opinion to decide if your condition(s) make you disabled.  

Limiting the number of pages sent to a disability examiner, and to 15 pages no less, is ridiculous. 

That is barely a sliver of the amount of information in most cases.  It’s like deciding whether an individual is disabled by seeing if they can walk down a hallway. 

Fortunately, most cases get a much better review with judges at the hearing level. If you are denied on your initial application, do not give up. Appeal!

via California Social Security Lawyer Blog.

It surprises my clients to learn that, most of the time, Social Security does not update medical records after the initial denial.

With wait times of a year or more, this can mean that by the time your case gets in front of a judge, the records in your file may be a year (or more) old, and your recent treatment may not be in the file at all.

This is not the way the system is supposed to work.

When you appeal the initial denial, you provide a list of your current doctors, dates of treatment, tests performed, and medications as part of the appeal.  You also provide an authorization letting Social Security get updated records. Your appeal will be rejected if you do not do this.

There are also regulation instructing Judges to assist un-represented claimants (people applying for Social Security) with obtaining relevant evidence in their case.

BUT, when I get a call from someone whose hearing has just been set, or continued, I often see that NONE of the records have been updated since the denial.

Think about the waiting times in your area.  In Colorado, the typical wait is a bit over a year (although the times in the Pueblo area are sometimes over 2 years). Do you want a Judge deciding your case with out-of-date records?

This is why you need to review your file early to figure out just what records Social Security has, what records are incomplete, and what records are just plain missing. That means you have to know how to review your file.

Personally, I encourage you to work with an attorney to make sure the necessary records are in your file. However, if you decide to brave this process alone, make sure you know what is in your file and keep it up to date!

I previously wrote about how long it takes to receive an initial decision after you apply for Social Security disability benefits and how long it takes to get a Social Security hearing.

Unfortunately, there are no hard and fast rules for how long it will take to get a decision after the consultative examination. But, you can make a pretty good guess. 

I usually see a decision four to six months after an application for either disability insurance (SSDI) or Supplemental Security Income (SSI) benefits.  

So, if Social Security schedules a consultative examination 3 months after the application was filed, as an estimate, you can expect a decision in the next 30 to 90 days.

How long after the consultative examination did you get your decision? Let me know in the comments!

How long after you complete your application for Social Security disability benefits (or Supplemental Security Income – SSI benefits), does it take to get a decision?

In Colorado where I practice, it usually takes between four and six months after you apply to get the initial decision. Sometimes, Social Security will describe this as between 120 and 180 days.

Even though it often takes a year or even two years to get your Social Security hearing, you may find that you are not ready when the big day finally comes.

Is there any way to continue, postpone, or delay my Social Security hearing?

Yes. You can request a continuance to postpone your hearing.

Lets look at how to do this.

Fortunately, there is no formal motion that has to be submitted to request a continuance. In my office, I usually send the judge a letter explaining my reasons for requesting the continuance.  

Then I follow up with the judge’s clerk to see if the motion has been granted or denied, by calling the Office of Disability Adjudication and Review (the Notice of Hearing lists the phone number to use) and asking to speak to the judge’s “pre-hearing” clerk.

Common reasons for a continuance include:

1. You are sick or hospitalized.  This normally means physical illness, but it could include psychological problems such as not being able to interact with anyone that day.  However, it might be best for your case for the judge to see you on a bad day.
2. A close family member is sick, hospitalized, or has recently died.
3. You are looking for a lawyer.
4. You just hired a lawyer and your attorney needs time to review the file.  Note:  if you have a lawyer, the attorney will normally make this request.  
5. You have an upcoming medical test scheduled that is expected to shed light on your disability.  Note: it is best if the test is actually scheduled; not that you merely hope that you might somehow be able to get some kind of test done. 
6. You will be out of town or out of the state on the hearing date.
7. You are in school and the hearing is during or just before finals.
8. You are or will be incarcerated during the hearing.  Note: if you are or will be in prison, Social Security may move your case to a prison docket. Many appeals offices have at least one judge who travels between the prisons to hold hearings there.  As discussed before, you cannot receive Social Security benefits while incarcerated for a felony, BUT Social Security may hold a hearing in prison to address your eligibility for benefits for the time before you were incarcerated or to address eligibility for spouses or children of incarcerated individuals.

This is by no means a complete list.  Any good reason why the hearing should be continued will be considered by Social Security.  

However, keep in mind, requesting a continuance does not mean you will be granted a continuance. 

Are there bad reasons to request a continuance?

Sure.  While I won’t say that Social Security will never approve one of these reasons, I think the chances of success are pretty low:

1. You don’t want to go.  You can request that Social Security simply make a decision on the evidence in your file.  However, this usually does not produce the best results. 
2. You have already had 2 or more continuances.  If a Judge has already postponed your case even one time before, the judge may be unwilling to grant you another continuance without a darn good explanation of why you need another one. 

What were your experiences requesting a continuance? Tell me in the comments!

If you are keeping in touch with the Office of Disability Adjudication and Review (ODAR) which is preparing your case for hearing, you may be told that your case has finally been assigned to an Administrative Law Judge (ALJ).  

However, ODAR may not tell you is how much longer it will take to get a hearing date, now that your case has been assigned to a Judge.  So, how long after your case is assigned to a judge will it take to get a hearing?

I normally estimate that a hearing will be scheduled between 60 to 90 days after a Judge has been assigned to a case.

By the time a case has been assigned to a Judge, the case file, which includes all the records and other evidence Social Security will use in deciding your case, has been “worked up” by ODAR staff.  The file has been organized, duplicate records removed, and things have generally been cleaned up for the Judge’s review. 

Keep in mind that finding time on the docket for your hearing may increase or decrease your wait time.

• If the Judge has an opening due to a cancellation, your case might be put into that spot, resulting in a quicker hearing.
• If the Judge’s docket is full, your hearing may be pushed back until the next set of open hearing times.  This may be several months away. 

What was your experience with getting a hearing after your case was assigned to a judge? Tell me in the comments!

Before you put yourself through the drudgery of going down to your local Social Security office, check the Social Security website to see if you can take care of your problem without going in.  

There are a lot of things you can take care of online.

Did you know you can do all of the following at the Social Security website?

• Apply for retirement benefits.
• Apply for disability benefits.
• Check your application status.
• Appeal a recent decision / denial.
• Find out what benefits you can apply for.
• Find out if you can get extra help with your Medicare prescription drug costs.
• Estimate your future retirement benefits.
• Find your full retirement age.
• Estimate your disability and survivors benefits.
• Request a Social Security Statement.
• Change your address or telephone number.
• Get a replacement Medicare card.
• Request a Proof of Income letter to verify Social Security benefit information.

Click for more information about what you can do online at Social Security.

I hear a lot of horror stories about going to the Social Security office.

If you need to go to the Social Security office to get a replacement card, change your name, or try to straighten something out with SSA, here are a few tips:

• Don’t go!  Before you put yourself through the misery, check the Social Security website to see if you can take care of the problem without going in.  Here is a list of things you can do online without going to a Social Security office!
• Call first! You may be able to resolve the problem with a phone call.  
  • Call the national toll free number at 1-800-772-1213.
  • If you are deaf or hard of hearing, call the toll-free TTY number, 1-800-325-0778, between 7 a.m. and 7 p.m. Monday through Friday. 
  • Click here for the phone number for your local office.

If you still need to go to your local office, here are some tips to help you survive:

• Get ready to wait. Depending on how busy it, you may be there a while. Seriously. You may be there the entire morning or afternoon. 
• Consider bringing the following:
  • Bring a book, newspaper or magazine.
  • Bring water (note some offices may not allow this).
  • Bring a snack.  Even if you are not allowed to eat at the office, you usually can eat just outside the office. This is especially important if you have diabetes or have problems with low blood sugar.  However, everyone should consider this as you may be there for more than 3 or 4 hours. 
  • Bring a cushion if you have trouble sitting for extended periods.
  • Bring a friend. It will help pass the time and you have someone to make sure you are not skipped while in the bathroom or on a cigarette break.
  • Bring a walkman, or mp3 player.
  • It can get noisy, so consider bringing earplugs.  BUT, don’t miss your name or number being called!!!
• Show up early.  Many offices open at 8:30 but some do not open until 9:00 AM.  Use the office locator to find out the opening and closing times for your office.
• Show up late. Many offices have a policy that if you are in the door before closing, you have to be seen. The flip-side of this is that if you have a difficult problem or you need someone at Social Security to be in a good mood and want to help you, showing up late may not help. 
• Ask the security officer for the best days or times to come back. If you cannot get your problem resolved, the security officer often knows the best times to return to minimize your wait.
• Do not bring a weapon (even if it is otherwise legal). This includes the pocket knife you bring everywhere or pepper spray. Going to the Social Security office is enough of a chore without getting arrested too.

Do you have any tips for surviving a trip to Social Security?  Tell us in the comments!

Part of what any good attorney does is listen carefully.

I am always on the look out for inconsistencies. Some problems are obvious, others may seem minor. But, they always run the risk of derailing a case.

• The individual with epilepsy, or other seizure disorder, who still has a drivers’ license and regularly drives. 
• The PTSD or social anxiety disorder sufferer who still goes to their children’s school events, supermarkets or church service. 

Social Security hearings are largely credibility assessments: can the judge believe what you say about your disabilities. If your testimony at hearing is inconsistent, why should the judge believe you are disabled?

I listen for these potential problem areas, because if I can spot a potential pitfall, we may be able to avoid it.

• The individual with a seizure disorder may have begged their doctor to let them keep their license.  They may have very clear symptoms before a seizure, so they know when not to drive.
• I have worked with a number of people with PTSD, depression, bipolar disorder and social anxiety disorder who still go to supermarkets — but only at night (when there are no crowds), who go to church or their kids events — but sit in the back near an exit, or leave in the middle, or just wait in the car. 

Many times, there are explanations for the apparent inconsistencies in a case. But, you have to be aware of them, and you have to explore them. 

Good attorneys help people identify and resolve these problems. This is another area where if you have an attorney, but meet with the assistant instead, these subtle parts of your case may be missed.

Gordon Gates writes about how he tries to make each case different and memorable when preparing to go to hearing.

I am always concerned that a particular claim will not get the attention it deserves at the hearing level, due to the tremendous workload at the Social Security hearing offices. Each administrative law judge decides several hundred claims every year.

…

I have an upcoming hearing with a client who has an unusual story. The medical evidence is very good, and the claim should be granted at hearing. Nevertheless, I am spending a great deal of time on the claimant’s story…, because it is so unusual. That story will be the hook that draws the judge into the case.

I agree completely!

In my office, I regularly meet with my clients and listen to their stories.  Every once in a while I hear something that rings a bell.  My eyebrows jump, and I make sure to write down that story in my notes.

Every individual applying for Social Security has had unique experiences related to their disability. It does not have to be anything big.  I am not talking about a trip to the ICU.

I am talking about uniquely personal experiences that highlight an individual’s disability.  

As I have written before, Social Security hearings are mostly credibility assessments.  Can the Administrative Law Judge (ALJ) believe what you tell him/her about how much your condition affects you. These unique stories can make your case memorable to the ALJ, and can make a big difference in the outcome of your case. 

This is another reason why it is important to work directly with a skilled attorney.  A good lawyer can help you identify the stories that can make a difference in your case.  

It also means if you have a lawyer, but you are just meeting with the legal assistant; the lawyer, the one person you are counting on to convey your case effectively at your hearing, may not know the story that could win your case. 

Click here to read Gordon’s article: Differentiate your Social Security claim.

What was your experience with a lawyer at your Social Security hearing?  Tell me in the comments!

I previously wrote about how Social Security may move a case from one hearing office (Office of Disability Adjudication and Review – ODAR) to another to try to ease case congestion and speed up processing.

Usually, there is nothing to worry about when this happens. However, there is something you do need to watch out for. If you are not careful, you could delay the decision in your case, or even reduce your chances of winning.

If your case is transferred to a different hearing office, be sure that you are submitting evidence to the right ODAR office. If you send records to the wrong office, your evidence may not get into the file. This means the judge may miss critical evidence that could make all the difference in your case.  

How to make sure the evidence gets into your file

Social Security is moving to completely digital files. The days of simply mailing records to the right ODAR office are nearly over. In most cases, Social Security requires electronic submission of records.

If you are working with an attorney, he or she can submit records using Social Security’s Electronic Records Express (ERE) service.

If you do not have a lawyer, you can either fax in your records and other evidence, or send your records to a Social Security scanning center to be processed and entered into your file. Either way, you need to add a cover sheet with a Social Security bar code with each submission of evidence. 

Social Security uses the bar code not only to identify your case, but also identify your file so the evidence goes to the right place.

If your case is transferred, you may need to obtain a new bar code to make sure your evidence gets into your file at the new ODAR office. 

How do you get an updated bar code?

Just ask.

If your file is transferred to a different ODAR office, you will receive a notice letting you know this has happened with the new office’s address and phone number. You should also get a new bar code automatically from that hearing office as well.  If you do not get a new bar code, or if you lose it, you can call the new ODAR office and request a replacement.

What if I lost the notice.  How do I find out which office has my file?

If you don’t know which office has your file, just call your local Social Security office or the Social Security 800 number (1-800-772-1213).  

TIP: You may get more up to date information from your local Social Security office.  Several of my clients have gotten quite a scare when they called the 800 number to check the status of their case, only to be told (mistakenly) that there was no appeal on their case. Fortunately, a call to the local office helped clear up the confusion.

Did you represent yourself at your Social Security disability hearing?

If you were denied, you may find it is difficult to find a lawyer to represent you if you 

Sadly, this is a common problem.  It is much harder to hire an attorney after you been denied.

Why?

It all comes down to TIME!  

You only have 65 day to appeal a hearing denial (5 days to receive the notice, and 60 days to get the appeal to Social Security).  Note:  the appeal must be received by the deadline. Postmarked by the deadline is not enough.

65 days is not a lot of time for a lawyer to do the following:

• Review the hearing decision
• Review the exhibit file
• Review your treating providers (doctors)
• Check for missing evidence
• Obtain missing evidence
• Review the medical evidence
• Prepare the legal argument for the appeal

Keep in mind that lawyers often work with a client for more than a year to get their case ready for hearing. To take on a post hearing case requires compressing all that work into a month or less. 

This is another reason to hire an attorney early on your Social Security disability benefits case.  If you are working with an attorney before the hearing, they will probably help you if you need to appeal if you are denied at hearing.

Social Security attorney Gordon Gates wrote about a Social Security Administrative Law Judge (ALJ) who only approves 11 percent of cases.

In trying to find some insight in to how this ALJ could only approve 11% of cases when most other ALJs approve somewhere between 45-60% of cases, Gordon found the following post from the ALJ on a high profile public website:

Some doctors go overboard on diagnoses and treatment because they sense the “pot of gold” in having a fairly young patient on Medicare for many years to come with a reliable source of payment for constant treatment.

Lawyers and other non-attorney representative can receive fees as a percentage of the back benefits awarded to a claimant. Once a claimant has a legal representative, one can actually track how the alleged impairments become much worse, with new impairments and symptoms added as the case matures.

A judge with some experience can almost recite verbatim the same story we hear from virtually EVERY claimant, suggesting they have received training from the national organization of the claimants attorneys. The government is complicit in this boondoggle, because the Social Security Administration actually publishes lists of symptoms for various impairments in the form of rules for judges to follow. Is it any wonder we hear those lists of symptoms at almost every hearing?

The Judge’s quote is quite lengthy and covers a number of topics.  I encourage you to read it in Gordon’s article:  The 11 Percent ALJ.

While I can agree with the Judge on several points in the longer quote, I strongly disagree with what the Judge says above.

Let’s set ‘em up and knock ‘em down!

Medicare as a “Pot of Gold”

The ALJ states that doctors are likely to “go overboard” with medical opinions to get patients approved for Social Security so the doctor has a “reliable stream of income” for years to come. 

In my experience, doctors generally do not want to provide any medical opinions and the hardest part of being an advocate for the disabled is trying to get doctors to make opinions in Social Security disability cases. 

Of course, the attorney’s and client’s attempts to get these medical opinions happens before the hearing and is typically invisible to the ALJ.

Additionally, there are two kinds of health insurance which come with Social Security:

1. Medicare – if you are approved for disability insurance (Title 2 – SSDI).
2. Medicaid – if you are approved for Supplemental Security Income (Title 16 – SSI).

Many clients tell me that they cannot find a doctor to take them on if they are on Medicaid. The doctor’s office is either no longer taking Medicaid patients or they have taken all the Medicaid patients they can for the year.

Doctors often do not want to take Medicaid patients because they make less money on those patients.  Medicaid is not any kind of “windfall” for doctors.

So, I wonder if the ALJ also believes that doctors are also likely to exaggerate opinions in SSI cases where the person will only get Medicaid?

Attorneys receive a percentage of the claimant’s back benefits.

Yes, attorneys do not work for free.  Neither does the Judge, the Judge’s clerk, or his staff.  We all have to pay rent, buy groceries, and pay our utilities. 

But, don’t disability attorneys have a vested interest in finding everyone disabled.

Do firefighters have a vested interest in burning buildings?

Do cops have a vested interest in crime?

Disability attorney have a vested interest to the extent that we only get paid if our client wins. But, you could also say attorneys who take Social Security disability cases feel strongly enough about the disabled that we risk not getting paid for our work if we don’t win.

But, how do you know if you have an attorney who just wants to be paid versus one who genuinely cares about helping the disabled. That’s pretty simple.

Attorneys “train” their clients.

No.  We prepare our clients for the day that may change their lives forever.  

That’s just semantics!

I don’t think so. I do not tell my clients what to say. But, I go over common hearing questions and their answers. Why?

• Time is short. Judges often schedule 30-45 minutes for each hearing. That the Judge’s comments, swearing in, Medical Expert testimony (in some cases), and Vocational Expert testimony.  
• You need to focus on what’s important. People have a natural tendency to drift off into other topics. With the limited time, I want to make sure my client does not miss a critical part of the case because we ran out of time.
• You need to address inconsistencies ahead of the hearing. A client may say something which appears to be inconsistent with their disability. Often there is an explanation. But, unless you work through the inconsistency before the hearing, the client may be too nervous at the hearing to provide an adequate explanation. 

Actually, it is pretty easy to tell when someone is just repeating something they were told to say. Most people are terrible liars, especially when faced with the stress of their Social Security hearing.

Ultimately, the coaching question comes down to this: good lawyers do not hide the problems in a case, they overcome them.  

Impairments and symptoms become worse as the case matures.

Well, of course they do!

When you work with a good attorney, he or she helps you obtain evidence that Social Security was not able to get or was unaware of. 

• I have seen bi-polar cases where none of the psychiatric records were obtained until the lawyer got involved.
• I have seen back injury cases where the spinal specialist’s injection records were not obtained until the lawyer got involved.

As more evidence is obtained, cases become better developed which means there is more relevant documentation of the impairments and symptoms. So, of course, impairments and symptoms “get worse.”

However, the ALJ seems to suggest that the actual condition(s) worsen AFTER the attorney is hired. That lawyers somehow add-on symptoms and impairments that do not exist to make their clients look worse than they actually are in order to improve the chances of winning the case. 

Allow me to present an alternative explanation: a benefit of regularly meeting with my clients is that they tell me how they are feeling.  Often the conversations go like this:

You just told be about your migraines. Have you talked to your doctor? Why not bring it up at the next visit.

-or- 

I am sorry to hear the physical therapy isn’t helping. Maybe your doctor can send you to a specialist for a consultation?

Good Social Security disability attorneys help their clients get their conditions evaluated and documented.

Also, doctors are very good at telling when someone is exagerating symptoms, let alone, faking symptoms outright.

One of the purposes of getting medical records is to see if the symptoms reported at the hearing have been previously reported to the doctor AND whether the doctor found any exaggeration, malingering, “drug seeking behavior,” or “secondary gains issues.”

If a patient is exaggerating, it will show up in the medical records. 

Symptoms described at hearing parallel those in the government published “list of symptoms.”

The Judge is referring to the Social Security Listing of Impairments (aka The Blue Book).  The Listings describe conditions which Social Security views as “disabling” and the medical findings necessary to find a person disabled for those conditions. 

The Listings are literally a short-cut in the disability evaluation process.  If you have a condition described in the Listings and the medical evidence supports the severity required to be approved, you can be found disabled for “meeting a listing.”

The judge asks, “Is it any wonder we hear those lists of symptoms at almost every hearing?”

Let’s remember that the Listings are Social Security’s own attempt to create uniformity in how its technicians and Judges evaluate medical conditions.  The idea is that different people within Social Security should not have different standards on whether a condition, for example whether diabetes is disabling or not. 

Is it fair to complain that people actually use the regulations Social Security has put in place for the evaluation of claims?

The Listings are not a free pass to disability.  It is not enough to have a condition described in the listing, you also have to have medical documentation (not just your say-so) that the condition meets certain medical requirements.  For example, here is the listing for chronic pulmonary insufficiency which may be used for COPD. Not only do you need to have a breathing test performed but your results must be within a particular range based on your height. 

I have had numerous clients with COPD and other respiratory conditions.  Very few have met the Listing.

However, when I have a case that does meet a Listing, of course I will structure the presentation of the case around it: Social Security own guidelines says that the condition is disabling.

Are we all liars?

The sum of the Judge’s quote suggests that doctors lie, lawyers lie and claimants are trained to lie.

So, who is left? Ah, yes, the Social Security technicians and Social Security doctors who denied the case in the first place. 

Should anyone be surprised that this judge only approves 11% of cases?

I have no problem that Judges should approach disability cases with skepticism since they are the holders of the public purse strings. But, this goes beyond healthy skepticism and into cynicism.

Is this the right approach for reviewing Social Security disability claims at hearing? What is your opinion? Add a comment to let us know.

If you have been denied at your Social Security hearing in front of an Administrative Law Judge (ALJ), you may end up having to file an appeal to the Social Security Appeals Council.  

In my experience handling Social Security disability cases in Colorado, it can take between 6 – 18 months to get a decision back from the Appeals Council.  

However, even if you “win” the appeal, that is not the end of your case. In the vast majority of cases, the Appeals Council does not approve benefits outright.  Normally, they simply send the case back for another hearing with instructions to the ALJ on what should be done next time.  

When your case gets sent back to the Office of Disability Adjudication and Review (ODAR), it may take another 6-18 months for the second hearing to be scheduled.  

Altogether, you may be looking at 12 to 36 months before you get another chance to present your case even if you “win” your case at the Appeals Council!

Note:  wait times at the Appeals Council, and particularly at the various ODAR offices around the country, vary quite a bit, so take this estimate with a grain of salt and get up to date information from a lawyer in your area.