Social Security Disability Lawyer

Keep your Social Security disability claim moving

2009-11-09T05:00:00-05:00

People waiting for a determination on their disability claim can have a very difficult time. Not only is there concern about health and lessened ability to function, but there is often real anxiety due to financial stress. And it often takes two years or more from the day a claimant initially applies for disability to the day a decision arrives in the mail after a hearing.

I try hasten a decision whenever possible. Here are some tips to keep your claim moving:

Appeal denied claims right away - there is no reason to wait 60 days to appeal.
Provide DDS with any requested information as soon as possible.
Keep in touch with the disability examiner at DDS, so the case doesn't get put on the back burner.
Tell Social Security if the claimant meets the criteria for a critical case or dire need, and provide appropriate documentation.
Make an on the record request (when appropriate).
And lastly, ask the judge for a bench decision in your hearing memorandum for a case that you expect to be granted at hearing.

These actions, alone or in combination, can save months of waiting time for the decision on your claim.

Client thank you

2009-11-08T12:14:23-05:00

I received a wonderful thank you note from a client who recently received a fully favorable decision for her Social Security disability claim. With her permission, I share it with you:

I can't begin to express my thanks for the very professional job you did on my case. Knowing that I was approved gave me the first good nights sleep I have had in over two and a half years. I am so grateful that you asked for the bench decision. Now I don't have to sit around for weeks worrying about that decision.

If you ever need to use me as a reference please feel free. I would be glad to sing your praises. Again, thanks from both my husband and me. You did a wonderful job.

The note was another reminder that claimants experience real hardships while waiting for a determination of their Social Security disability claims. When disability benefits are finally awarded, there is often tremendous relief. And hopefully, a good night's sleep.

Social Security Disability Blog Roundup - 11/6

2009-11-06T05:40:05-05:00

This is a roundup of the notable posts from the disability blogs. I use the word notable rather than the word best, because I do not presume to be the arbiter of what is best.

Each Friday I select a few posts (from a growing number of disability blogs) that I find interesting or helpful. I share them here, with the hope that you will find them interesting or helpful, too.

Tips for Effective Hearing Representation from the Social Security Disability Hacker blog published by Rick Gach
My Social Security Disability/SSI ALJ Hearing Was Scheduled, Now What? from the Delaware Disability Law blog published by Delaware attorney Steven Butler
Salt Lake City Tribune Spotlights Social Security Disability Case from the Raleigh Personal Injury Lawyer Blog published by Hardison & Associates
If Social Security Disability sends you to a Consultative Medical Exam, will it be done by your own doctor? from My Disability Blog published by Tim Moore
Judges say too many claims are denied initially, sometimes for no logical reason from the Social Security Disability Lawyer blog published by Gordon Gates

Reopening a Prior Claim Reminder

2009-11-03T06:00:00-05:00

Reopening a prior claim is one of the neatest things you can do as a Social Security disabiity lawyer. From the "posted one year ago today" file, here is a reminder to check for prior claims. Reopening a prior claim can add substantially to the retroactive benefits payable to the claimant.

Reopening is governed by 20 C.F.R. 404.988 for disability claims and 20 C.F.R. 416.1488 for SSI claims.

A prior claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim to the filing date of the subsequent claim.

A prior Social Security disability claim can be reopened within 4 years if there is good cause. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause. The 2-year and 4-year time periods run from the date of the initial determination of the prior claim.

Social Security disability law is unusual in its ability to reopen claims. Reopening runs contrary to the notions of res judicata and issue preclusion that we all learned in law school. But it makes a great deal of practical sense in the context of Social Security disability, because many deserving claims are not appealed after an initial denial.

Please be sure to always check for prior claims that may be subject to reopening.

Welcome ALJ Griswold

2009-11-02T05:59:47-05:00

Administrative Law Judge Kim Griswold has joined the Portland, Maine hearing office. Prior to becoming an ALJ, Judge Griswold was a senior Attorney Adjudicator at the Springfield, Massachusetts ODAR.

Judge Griswold brings the number of judges at the Portland hearing office back to six.

Judges say too many claims are denied initially, sometimes for no logical reason

2009-11-01T06:30:00-05:00

A recent article in the Buffalo News interviews two Social Security administrative law judges regarding the backlog of disability claims. The article cites several problems contributing to the backlog. For me, the most meaningful problem discussed by the judges is that the DDS agencies are denying most claims, often for no logical reason.

While there has been much discussion of the Social Security hearing offices and the backlog, in my opinion the responsibility for the backlog rests squarely on the shoulders of DDS agencies, which make the initial and reconsideration determinations on disability claims.

DDS created the backlog by denying claims that should have been granted under Social Security's rules.

When the claim gets to the hearing level, an ALJ looks at the entire record and applies Social Security's regulations and rulings. After doing so, ALJs are often concluding, as the Buffalo News article notes, and there was no logical reason to deny the claim at the DDS level.
Tip of the hat to the Hardison & Associates Blog for bringing the Buffalo News story to my attention.

Friday Disability Blog Roundup

2009-10-30T06:28:02-05:00

The new and notable posts from the disability blogs:

Appointed Representative Suite Of Services Rolling Out Tomorrow from Social Security News published by North Carolina attorney Charles Hall
Social Security Quality Review Board from the Social Security Disability Lawyer blog published by Maine attorney Gordon Gates
Updates to Provide Your Attorney While a Social Security Disability Claim is Pending from the Delaware Disability Law blog published by Delaware attorney Steven Butler
Reopening from the Disability Claim Lawyer blog published by Wisconsin attorney Tom Schuessler
Halloween Safety Tips from the Personal Injury Social Security Disability blog published by Texas attorney Bob Kraft

Interstitial Cystitis and Social Security Disability

2009-10-29T04:30:00-05:00

I have a claim coming up for a hearing where one of the claimant's impairments is interstitial cystitis (IC). IC is a chronic bladder disorder characterized by pelvic pain. IC occurs ten times more frequently in women than men, and is often associated with other impairments, such as fibromyalgia.

In my research for this case, I was a little surprised to find Social Security Ruling 02-02p, which addresses interstitial cystitis in the context of a Social Security disability claim.

The Ruling states in part:

many people with IC have chronic pelvic pain, which can affect the ability to focus and sustain attention on the task at hand. ... In assessing RFC, we must consider all of the individual's symptoms in deciding how such symptoms may affect functional capacities.

An assessment also should be made of the effect IC has upon the individual's ability to perform routine movement and necessary physical activity within the work environment. Individuals with IC may have problems with the ability to sustain a function over time.

As explained in SSR 96-8p ("Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims"), our RFC assessments must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. In cases involving IC, fatigue may affect the individual's physical and mental ability to sustain work activity.

Read the entire Ruling if you have a claim involving interstitial cystitis. And remember, Social Security must consider your combination of impairments when deciding your claim.

The Social Security Quality Review Board

2009-10-26T05:30:00-05:00

There is an organization within Social Security called the Quality Review Board, also known internally as the Disability Quality Branch (DQB). In theory, the DQB just randomly samples determinations from DDS decisions to ensure that Social Security's disability rules and regulations are being implemented and interpreted properly by the various state DDS agencies - a quality control function.

Recently Tim Moore wrote an excellent post in My Disability Blog regarding the Social Security Disability Quality Review Board. As a former disability examiner, Mr. Moore has extensive experience with the Quality Review Board. Based upon his observations, he concludes that the actions of the Quality Review Board may be more nefarious than its quality control function implies. He states:

there seemed to be a clear pattern that indicated that the social security administration was looking far more closely at cases that examiners had determined should be approved, and not as closely at cases that disability examiners had determined should be denied.

I have been meaning to write about the Quality Review Board for a while, but there is only anecdotal information available. This is because the SSA doesn't tell anyone when a case goes to quality review, and when a decision is made, it is issued through the regular channels, so you can't tell from the written decision that the DQB was involved. A DQB review is only shown by a close examination of the electronic claim file.

I have noticed the fingerprints of the DQB on my clients' claims just 6 or 7 times. Overwhelmingly, as Tim Moore states, it has reviewed claims where benefits were granted. Some claims granted by DDS were then denied by the DQB; with other claims the DQB affirmed the grant of disability benefits. However, when it affirmed the grant of benefits, it often changed the alleged onset date for the claim.

The propensity of the DQB to mess around with onset dates is very troubling. It will affirm the granting of the application by DDS, but select a much more recent onset date than alleged by the claimant and accepted by DDS. So you are left with a partially favorable decision that is awkward to appeal, because you jeopardize ongoing benefits by appealing the onset date.

Messing around with onset dates is not quality control. It is just a different point of view on the medical evidence. In my view, it is just a way to chisel claimants (and, by extension, their attorneys). And because it is done completely behind the scenes, I find it troubling.

If you are a disability lawyer or claimant's representative, I am curious about your experience with the Quality Review Board. Similiar to mine? Different? Please feel free to leave a comment.

Social Security Disability Blog Roundup - 10/23

2009-10-23T04:30:00-05:00

The response to the first month of the Blog Roundup has been terrific, and many have been able to discover a disability blog not previously seen. This week's roundup is the most varied one yet in terms of format, with traditional blog posts, a video blog post and a podcast.

Here are the most notable posts this week:

Social Security Disability Quality Review Board from My Disability Blog published by Tim Moore
SSA to soon grant attorneys access to claimants’ electronic hearing folders from the California Social Security Lawyer blog published by Geri Kahn
Social Security Disability Hearings & The Quality of Your Testimony from the Indiana Social Security Disability Lawyer Blog published by Scott Lewis
Getting your prior Social Security files from the Colorado Social Security Law blog published by Tomasz Stasiuk
Three Critical Mistakes Social Security Disability Applicants Make from the Social Security Disability Attorney Cincinnati blog published by Anthony Castelli
Attitude is Everything – Are You a "Reluctant Claimant?" from Jonathan's Ginsberg's Social Security Disability Podcast published by Jonathan Ginsberg

Combination of Impairments Revisited

2009-10-22T03:00:00-05:00

One year ago, I posted a short article regarding combination of impairments. It is worth revisiting, as a reminder that Social Security must consider all your impairments when deciding whether or not you are disabled. Here is an excerpt:

Social Security must consider the combination of your impairments when considering your eligibility for benefits. Even non-severe impairments must be considered in combination with your severe impairments. See 20 C.F.R. 404.1523.

This can be very important. Sometimes a seemingly minor impairment can rule out your past relevant work, and move your claim past step 4 of the sequential evaluation process. ...

Remember, your RFC must include all your impairments, even non-severe ones.

SGA Amount for 2010 will be $1,000

2009-10-20T05:53:06-05:00

The SSA published its annual fact sheet last week. The SSA's official acknowledgement that there would be no COLA next year got most of the attention. However, there will be a new SGA amount for 2010. The new SGA amount will be $1,000 per month.

Finally, a number that is easy to divide!

Substantial Gainful Activity (SGA) is considered at step 1 of Social Security's sequential evaluation.