PREPARING FOR A SOCIAL SECURITY DISABILITY HEARING
BY JAMES E. ALLEN
Preparing for your client’s disability hearing doesn’t start when the hearing is scheduled with an Administrative Law Judge. Preparing a case for hearing is a process that requires time and proper preparation of both the file and your client. In this article I will outline the major steps in a chronological format.
Stage 1: Request for Hearing Filed
During this phase of preparation:
Monitor medical compliance…
Is your client getting treatment for his or her conditions?
If not, you should have a list of free or low-cost treatment options for your clients.
Medical treatment will help you prove severity, longevity, and an appropriate onset date. If they are getting treatment, encourage your client to keep scheduled appointments and comply with prescribed treatment.
Is your client able to see specialists for his/her severe conditions?
The opinions of specialists are generally given greater consideration by judges, so if your client has severe pain, for example, they should be seeing a pain management specialist. If they have severe COPD, then they should be seeing a pulmonologist. And lastly, a psychiatrist is essential to proving a MH only case. If your client is not treated by a specialist, is a specialist overseeing the care? Often, a social worker may meet with your client, but a psychiatrist oversees and signs-off on mental health care. Nonetheless, the specialist should also be consulted to complete a medical opinion for your client.
Have client inform you of any work attempts or training.
The disability process takes a long time and some clients may try to work due to financial necessity. Have your client inform you of income and type of work as the Administrative Law Judge will see this in the record and ask for clarification. As long as your client meets the criteria of an unsuccessful work attempt, work will not be counted against them. If your client receives bonuses or payments of any kind from a previous employer, make sure you are informed so you can submit evidence to the record showing these payments were earned prior to the alleged onset date.
If your client decides to participate in training or take college courses, make sure you are informed. Most Administrative Law Judges will want to know your client’s ability to handle training and demands of college courses. For example, did your client attempt to take a college course but was unable to handle the rigors of college-level work? Was your client participating in training; however, he or she was unable to get along with others so they quit. If there is evidence of recent training or education courses, submit evidence that supports your client’s allegations.
Stage 2: Ready to Schedule
Once the case is ready to schedule, all of the existing medical evidence in the electronic file will be “exhibited”. At this point, you should begin assessing the severity of the impairments. You will want to submit evidence showing signs of severe impairments such as reduced motion on physical examination. Is your client prescribed narcotics or non-narcotic pain medication? Is your client prescribed an assistive device such as a cane? Are nebulizer treatments required for respiratory disorders? Make sure the evidence you are submitting indicates more severe conditions. It is important to submit “objective medical evidence” as the Administrative Law Judge will look for evidence that further supports your client’s allegations. Objective medical evidence includes MRIs, CT Scans, Pulmonary Function Tests, laboratory work, intelligence tests, that prove:
1. Your client has the conditions or impairments that they allege
2. The severity and intensity of their conditions
3. Duration of symptoms
Without objective medical evidence that proves that your client has a “medically determinable impairment” that has lasted for 12 months…you don’t have a case. Symptoms and complaints alone do not support a severe impairment.
Every alleged impairment must have objective medical evidence in the file. Just because someone has been “treated for years” for a condition doesn’t mean that you can prove in court that the client actually has the condition.
I’ve had cases where clients have alleged severe gout or arthritis only to find through testing that the blood tests were “within normal limits;” and therefore, we couldn’t actually prove they even had the impairment. Tests are very important in developing a disability case.
Remember, it is not how much you submit, but what you submit that wins your case.
Stage 3: Completing the Record
The next step towards developing your case for hearing is to gather all of the evidence necessary to complete the record. That evidence could include:
1. Education records
2. SSA forms such as Activity of Daily Living, Pain Questionnaire, Work Activity, Third Party Function Reports
3. Treatment Records
4. Test Results
5. ER visit records
6. Records from consultations
Once you have gathered all of the necessary records and evaluated them, you will need to decide which medical opinions you may need to help the Administrative Law Judge formulate an RFC that will be favorable to your client. Request that the medical provider include at least a few pages of supporting evidence with the opinion. An opinion that is not supported by the medical evidence is given little consideration.
TIP: Never force a medical provider or your client to pressure a provider to fill out a medical opinion form. If a medical provider is unable or unwilling to complete a medical opinion for your client, it may be because they:
1. Don’t complete them for anyone
2. Don’t complete them without compensation
3. Your client has unpaid treatment bills
4. Don’t actually believe your client is disabled
If your client pressures a provider into completing a form the provider will often
1. Fill it out in such a way that demonstrates your client is NOT DISABLED
2. Fill it out and omit information or say “Not Observed” or “Don’t Know”
No matter the state of a completed and signed medical opinion form, we are ethically bound to submit the form to SSA.
Stage 4: Identifying Weaknesses and Contradictions in Your Case
Once you have all of the records and medical opinion(s) you can then determine if there are any errors, omissions, and inconsistencies in the record. At this point, you can prepare interrogatories to send to treating sources to clarify those inconsistencies. One common example is medical providers using treatment software that lists “reviews of symptoms” or other basic observations that the provider does not actually perform.
For example, a doctor may be treating your client for severe lumbar back problems and your client uses a cane. However, the software may insert into the record “Gait and station normal, no assistive device observed”. Those kind of inconsistencies in the record can damage your client’s case. Therefore, use your judgement and make sure that the records are as accurate as possible and consistent.
If you have a medical provider that has poor record keeping skills, do not give them a medical opinion form, if at all possible. Often, you’ll see disabling medical opinions from doctors who can’t back that opinion up with consistent treatment notes and observations. These doctors often do not order the appropriate tests at the appropriate intervals to document severity and longevity. Also, if you cannot read the medical provider’s notes, request that the provider type the opinion. If the Administrative Law Judge cannot read the opinion and supporting evidence, it is given little consideration.
Stage 5: Submission of Your Pre-Hearing Brief
Once you’ve completed the record, resolved any inconsistencies, and have a good handle on your client’s conditions, you’re ready to develop your brief. In your brief you should:
1. Summarize the relevant legal issues
2. Clarify work attempts or SGA
3. State your client’s impairments and why they are disabling
4. Determine if your client meets a listing
5. Summarize the client’s work history
6. Apply the appropriate GRIDs
7. Formulate a theory that finds your client is disabled
8. Address inconsistencies with persuasive language using ‘although’ and ‘however’
Stage 6: Prepare Your Client for the Hearing
Preparing your client for the hearing is paramount to winning the case. Here are some tips to help focus your efforts:
1. Cover any incarcerations, arrests, confinements, DUIs, hospitalization, surgeries, and all relevant dates. If the client is on probation or parole find out why and for how long. Use this information to support your client’s allegations.
2. Cover all sources of income such as unemployment and work after onset. Although SSA policy is to consider unemployment benefits with all the medical evidence of record, some Administrative Law Judges will hold receiving unemployment benefits against your client. Be ready for that. Many will ask that your client to amend the onset date after receiving unemployment benefits.
3. Find out the household composition and who is doing the household chores such as cooking, cleaning, sweeping, and mopping. Does your client take breaks to complete household chores?
4. Ask how they spend the day and address any concerns. Don’t find out at the hearing that your client alleges hand pain, but plays video games and on the computer most of the day.
5. Go over the client’s work history and make sure you know if they had to “lift and carry on each job”. Were they ever fired or written up for failing to perform work-related tasks? Did the employer provide accommodations? If yes, get that evidence in the record. Consult the DEQY and make sure all jobs are fully developed and the client knows how to characterize the job.
6. Go over the SSA-3373 and make sure to clarify any issues that may be damaging to your client’s credibility.
7. Failed drug tests and substance abuse is an issue you cannot ignore. Make sure the client is truthful and honest. If your client is ‘sober,’ make sure they know the date they stopped using alcohol and drugs. The Administrative Law Judge may ask and seriously consider your client’s ability to answer that question. Lying to the judge will not help their case. Emphasize periods of abstinence from substances if DAA is an issue.
8. The client must be prepared to fully describe symptoms and limitations associated with each condition. It is your job to make sure they can describe their limitations in terms that Social Security can use. For example, how far can you walk at one time, would be an appropriate way to describe ambulatory limitations for a back case.
Winning a disability case is difficult at any level of the process. However, with proper planning and preparation, you can help your clients maximize their chances of a successful outcome.