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

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

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.

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.

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.

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!

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!

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.