I have developed a subspecialty within Social Security disability law for people age of 55 and older. This area of Social Security disability law is notable because the principal issue for many disability claims involving physical impairments is whether or not the claimant can perform his or her past relevant work.

Those applying for Social Security disability benefits who are age 55 and over often benefit the most from lawyer's help at the beginning of the claim process. Professional assistance can lead to a favorable decision without the waiting time and risk involved in a Social Security disability hearing with an administrative law judge.

I recently received fully favorable decisions for two clients over age 55 that illustrate this point. 

1. Claimant #1 had the initial disability application approved, and did not have to wait for a hearing, or risk being assigned to the wrong judge to decide the claim.
2. Claimant #2 had the initial claim denied, and had to appeal and wait over a year for a hearing by an administrative law judge. 

The difference between the two claimants was that the first consulted me to assist with the initial application for disability benefits, and the second claimant did not consult an attorney until after receiving an initial denial. Both disability claims were approved, but one claimant had to wait over a year for a hearing. That wait could have been avoided. A year is a long time when you cannot work, and have no income coming in. 

In this particular case, claimant #2 did not fully describe her past work during the initial application process. She was understandably unaware of the importance of vocational information to the determination of a Social Security claim. I see that mistake over and over again in my practice. It takes experience with disability law to recognize what is important to your claim at the very beginning of the claim process. 

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Get help from a lawyer with your disability claim 

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

I wrote recently about statements in support of a disability claim. Statements from those who are familiar with your situation (and particularly with your functional limitations) can be helpful evidence in support of your claim for Social Security disability benefits. Typically, these written statements are from a spouse, a relative, or a close friend.

At the NOSSCR conference in Philadelphia last week, attorney Daniel Emery spoke on the issue of the claimant's credibility, and its central role in ALJ decisionmaking.

Judges often focus on a claimant's credibility when evaluating a Social Security disability claim. Many people who are disabled have subjective symptoms, such as pain or fatigue. The judge must determine if the pain or fatigue is as bad as you say it is, and if it limits your ability to work as severely as you say it does. This necessarily requires a credibility determination.

One aspect of Mr. Emery's excellent presentation was to highlight the effectiveness of a statement from a previous employer on the issue of credibility. An employer's statement is an often-overlooked opportunity for favorable evidence. If your former employer says you were a hard worker, but became unable to do the job, that statement is highly supportive of your disability claim.

A disability applicant's desire to work is central to the credibility assessment for many ALJs. A statement from a previous employer can be persuasive evidence of your work ethic.

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Ten steps to prepare for your Social Security disability hearing

 

The latest statistics for processing times for disability claims at the Social Security hearing offices around the country have been released by the SSA, and reprinted in the April 2012 NOSSCR Social Security Forum newsletter.

Waiting times continue to shorten in Portland, Maine. The average wait for a hearing decision is now 377 days - just about 12 months. This is an improvement over the waiting time of 392 days that I reported three months ago.  I have definitely noticed an uptick in the pace at the Portland ODAR, and recently claims have been set for hearing at a furious rate.

The improvement in Portland is partly due to the help of nearby hearing offices. To help manage its backlog and reduce the wait time, the Portland, Maine hearing office transfers some of its work to nearby hearing offices. Such transfers are a simple matter now that the disability claim files are all electronic.  

Some of the "folder assembly" work is being done elsewhere. Also, claims that will be scheduled for video hearings in Bangor or Augusta are being transferred to nearby hearing offices. The Augusta claims are going to the Manchester, New Hampshire hearing office, and the Bangor area claims are being transferred to the new ODAR in Lawrence, Massachusetts. If you live nearer to Bangor or Augusta than Portland, there is a distinct possibility that your video hearing will be with a judge outside of Maine. 

Processing time runs from the date of the hearing request (which is the appeal of a Reconsideration denial) to the day a decision is issued. The 377 days is an average. Some disability claims are resolved more quickly, but a Social Security disability claim that requires a hearing and a lengthy written decision may take longer.

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

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

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

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

Two thoughts on presentation of the statements:

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

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

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

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Download our free ebook:

Ten steps to prepare for your Social Security disability hearing