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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. TIP: 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. Conclusion: 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.
The Disability Client Screening Process – An Eye For Success De Minimis Guideline for Disability and Eligibility: The first step in the process of staying profitable as a Social Security disability (SSD) representative is choosing a client that meets at least the minimum guidelines for disability and eligibility. A minimal guideline for accepting a client is that he/she is not working, or at least at the substantial gainful activity level, and has a severe impairment that has or will last for at least 12 months. This criterion is necessary for Steps 1 and 2 of the 5-Step sequential evaluation. Moreover, the client needs to be eligible for Title II disability insurance benefits (DIB) and/or Title XVI supplemental security income (SSI). Unless the client is 30 years of age or younger, eligibility for Title II benefits includes having 20 quarters of earnings out of 40 at the substantial gainful activity level. Unless the client is legally blind, eligibility for Title XVI includes having less than $3000.00 in assets for a whole family. Once a client has met the de minimis guideline for SSD and eligibility, agreeing to represent the right client is essential to your success. Winning Client Profile: At intake, you will assess if an individual is the right fit for you and has a profitable SSD claim. Important questions include your client’s work history, education, age, activities of daily living, and medical care to get the client’s profile and a better understanding of the case. Many experienced SSD representatives have a client profile they find successful. Some characteristics of a successful client include an individual who is age 50 or older, has a solid work history, consistent medical care, and past relevant work that requires extensive lifting, standing, and walking. Other helpful characteristics include individuals who are prescribed a cane or walker, back injury with more than one surgery, schizoaffective disorders, and/or 60 percent or more Veterans Administration service-connected disability for musculoskeletal, respiratory, or mental impairments. Success is more likely with listing-level impairments, which include individuals with a back impairment and several positive straight-leg raise tests, heart conditions with an ejection fraction of 30 percent or less, and mental impairments with psychiatric hospitalizations of at least seven days. Clients with a listing-level impairment can be found disabled at Step 3. Of course, these listing-level indicators need to be supported by medical evidence. Once you have your winning profile, file the claim and start the process. Onset Date Considerations If your potential new client has just recently stopped working, you will need to explore and assess when they became disabled or their “onset date”. There are many factors that can affect what onset you may propose for a client. Relevant factors may include: When did they stop working? Are they working now? Any substantial breaks in employment during the last 24 months? Unsuccessful work attempts? Client’s age classification, Susbtantial medical evidence, and more. In cases where your potential client needs an in-depth onset date workup, you may be better off doing the claim yourself and not sending the client to SSA where “they” may determine an onset date that may be disadvantageous to your client. If you are unfamiliar with some of the concepts listed above, you should study carefully and learn them if you want to provide sound advice for your clients and run a profitable business. Success at Reconsideration, Hearing, and Appeals Council Levels: You have an eligible client who appears to have a winning profile; however, the claim is denied at the initial level. No fear, this is usual and happens most of the time. File the appeal within 60 days between initial, reconsideration, and Administrative Law Judge hearing denials. Create a system or pay for services that ensure you are managing your caseload and working within deadlines. At the reconsideration level, order a CD from the field office so you can see what is in the file. Request and submit missing medical evidence that is targeted towards a listing-level impairment and worsening medical conditions. You have a chance of winning early in the process at the reconsideration level. If you do not win at the reconsideration level, appeal for an Administrative Law Judge hearing. Keep updating the file until the Administrative Law Judge hearing; remember to submit all evidence no later than five days prior to the scheduled hearing. At the hearing level, focus on listing-level impairments and objective evidence that shows your client is restricted in performing work-related activities such as lifting, standing, walking, interacting with others, and concentrating. At the Appeals Council level, you have a better chance of getting a case remanded back to the hearing level or paid at the Appeals Council if you can show a technical error, incorrect residual functional capacity, and/or blatant disregard of medical evidence supporting a disabling condition. At each level of the appeals process, it is important to be aware of deadlines, efficiently develop your case, and submit evidence. Submitting Important Forms and Medical Evidence: During the adjudicative process, you need to submit evidence that will help you win your case. Not all evidence is helpful or necessary. Important evidence includes the Social Security Administration’s forms, non-medical evidence, and medical evidence. You can submit this evidence by faxing the information with the bar code SSA provides; if you fax the evidence with the bar code, it goes directly into the file. You may also outsource this to SSD service providers. Important forms include a Work Background so that past relevant work is correctly assessed. This is particularly important if the client’s past relevant work must be assessed as ‘actually’ performed such as in compositive jobs. If there has been any work activity after the alleged onset date, include a Work Activity form to clarify earnings and activity. Pain Questionnaire and Activities of Daily Living forms can show your client’s pain level and functional limitations. If an employer accommodated Claimant’s work activity, get a letter from the employer describing the accommodations. Educational records can show a longitudinal history of intellectual disability or cognitive decline. Obtain a medical source statement from a treating physician and submit with supporting evidence. Submit objective evidence such as MRIs and laboratory work confirming a severe impairment. If there is a history of medicinal side effects that reduce your client’s ability to work, submit that evidence too. This evidence will help support severe impairments and subsequently the residual functional capacity. Formulating a Successful Residual Functional Capacity: The residual functional capacity has been mentioned several times and is the foundation of a disability case. It is at Step 3.5 and is the maximum an individual can perform. The residual functional capacity is a function-by-function analysis. Essentially, the residual functional capacity is a mirror image of the severe impairments and subsequent functional limitations. Therefore, if there is a severe physical impairment, there must be a physical limitation reflected in the residual functional capacity. The same thing goes for a mental impairment. For example, if your client has a back impairment, a typical residual functional capacity includes lifting 25 pounds occasionally and 10 pounds frequently, which is considered light exertional level. A residual functional capacity involving depression typically includes limited ability to concentrate on only one-to-two step instructions and repetitive, and routine tasks. Your goal with the residual functional capacity is to reflect severe impairments and functional limitations that preclude past relevant work and any other work in the national economy at Steps 4 and 5. The more objective medical evidence supporting your client’s complaints, the more supportable your claim and subsequent residual functional capacity. Building the Residual Functional Capacity: The residual functional capacity changes and is viewed differently at each level of the appeals process. At the reconsideration level, the nonexamining consultant creates a residual functional capacity based on severe impairments; however, the record is often missing a significant amount of evidence at this point. Therefore, the residual functional capacity at the reconsideration level is typically overly optimistic. Submit relevant evidence at the reconsideration level to assist the consultant to get a more accurate view of functional limitations early in the process. At the hearing and Appeals Council level, obtain medical source statements from treating physicians and submit briefs to assist adjudicators to build the residual functional capacity. At the hearing level, an Administrative Law Judge will reassess the residual functional capacity and will observe your client at the hearing in person or video. The Administrative Law Judge will consider briefs, medical evidence, and testimony to build the residual functional capacity. If the claim is denied and the Appeals Council grants a review of the Administrative Law Judge’s decision, it is often reviewed for any technical errors and/or disregard of substantial evidence supporting a disabling condition. Understanding how to build the residual functional capacity at each level of the appeals process will help you develop, create, and implement a strategy to excel and win your disability case. Drafting Winning Briefs: Submit briefs at the hearing and Appeals Council levels to guide adjudicators to a finding of disability. Briefs are an effective way of collaborating with adjudicators who manage a large caseload and appreciate the assistance. An effective brief guides the adjudicator to evidence that supports your client’s complaints and functional limitations. You can draft your own brief or outsource to a brief writer. At the hearing level, submit a prehearing brief, On-The-Record (OTR) request, and/or post-hearing briefs. The prehearing brief addresses all issues of the case and guides the Administrative Law Judge to the right decision. The OTR is a succinct brief targeting typically one impairment that meets a listing and requests the Administrative Law Judge to make a decision on-the-record prior to a hearing. An effective OTR saves everyone time and money if a hearing can be avoided. A post-hearing brief is typically used to address evidence that is submitted post-hearing such as a consultative examination. These can be very effective to advocate for your client and assist an Administrative Law Judge in making the right decision. At the Appeals Council level, a brief is essential to showing the adjudicator which technical error was made or evidence that was dismissed or minimized by the Administrative Law Judge. Winning briefs can be very profitable as they assist adjudicators in making the right decision, for the right client, early in the process. Successfully Cross-Examining the Vocational Expert: You and your client will most likely interact with a Vocational Expert (VE) at the hearing level. Be prepared to cross-examine the VE at the hearing either in person or via video. It can be intimidating as VEs appear to have a vault of secret information on jobs and can make or break your disability case. However, equipped with the right information, you are ready for success. Know your client’s past relevant work specifically by exertional and skill level by researching the Dictionary of Occupational Titles and Selected Characteristics of Occupations. You can obtain more extensive vocational information through service providers as well. At the hearing, the Administrative Law Judge will pose hypotheticals to the VE regarding your client’s residual functional capacity. The VE will testify whether your client can perform past relevant work at Step 4. The VE may also testify that your client has transferable skills at Step 5. If yes to either past relevant work or transferable skills, question the VE’s assessment of the physical and mental requirements of your client’s past relevant work compared to the residual functional capacity. Remember unskilled past relevant work is not transferable and skilled work is only transferable to semiskilled work. Therefore, focus on questioning semiskilled work as that is where you will find the most transferrable skills. If the VE testifies there are a significant number of jobs your client can perform in the national economy, you can ask for the VE’s sources for that information and question the numbers. Although the VE is testifying, the Administrative Law Judge makes the decision on whether your client can perform past relevant work or can perform other work. If you do not want to appear at the hearing, you can outsource to other representatives to attend the hearing for you. You may also shadow other representatives until you feel more comfortable. Overall, a successful cross-examination can raise questions for the Administrative Law Judge and ultimately decide in your client’s favor and move the case to the last step in the process, which is applying the GRID rules at Step five. Mastering GRID Rules: So, you have made it to Step 5, congratulations! It is the last step in the 5-Step sequential evaluation. Here, the Administrative Law Judge will determine if your client has transferable skills and/or apply your client’s vocational profile and residual functional capacity to a set of regulated GRID rules that reflect unskilled jobs at each exertional level (sedentary, light and medium). If your client does not have any transferable skills, the Administrative Law Judge will determine if your client is disabled under the GRID rules. The GRID rules reflect a full range of an exertional level. As most individuals have nonexertional limitations as well, the GRID rules serve as a ‘framework’ for the Administrative Law Judge. This gives Administrative Law Judges flexibility in assessing the impact of nonexertional limitations. In addition, if your client changes age categories during the adjudicative process, the Administrative Law Judge has the flexibility to use two different GRID rules and apply the rule that directs disability. Moreover, if your client will change to a higher age category within six months after the hearing, the Administrative Law Judge can apply the rule that directs a finding of disability. If you have equipped yourself with knowledge of the GRID rules and exceptions, you will have mastered Step 5 and the GRID rules and win more cases.