The following series of articles will discuss the administrative process of an application for Social Security Disability benefits. In my previous articles, I explained that there are four administrative steps. The first step follows the initial application. The second is a Request for Reconsideration which must be filed within 60 days of the Notice of Denial of your initial application. The third step is a Request for a Hearing Before an Administrative Law Judge. This must also be filed within 60 days of the Notice of Denial on Reconsideration. The final administrative step is a Request for Review of Hearing Decision Order which is an appeal to the Appeals Council of an Unfavorable Decision by an Administrative Law Judge. Like all other appeals, this appeal must be filed within 60 days of the Unfavorable Decision.
I normally do not recommend retaining an attorney for the initial application. When an initial application is filed, you are provided several forms to complete. You will be asked to list your work history for the past 15 years. This form will ask you to explain how you performed each job so that the Bureau of Disability Determination in Columbus, Ohio can classify the nature of the job or jobs were unskilled, semi skilled or skilled. You will also be asked about the exertional requirement of the job such as how much weight you had to lift and how much sitting, standing and walking was required. This information will be used by the Bureau of Disability Determination to classify your job(s) as either sedentary, light, medium or heavy. These two sections are very important and will be carefully reviewed later in the administrative appeals process by an Administrative Law Judge if your claim goes to a hearing. I recommend that you complete the form without embellishment and in the context of how you actually performed the job(s).
Another form will ask you to list the names and addresses of your treating sources so that the Bureau of Disability Determination can contact your treating physicians and hospitals to obtain your records. This information will be reviewed by physicians and psychologists under contract with the Bureau of Disability Determination. My experience with these reviewing physicians has left me unimpressed with their work.
Finally, another form will ask you to list your symptoms and daily activities. I advise my clients to complete this form in terms of their worst day rather than their best day since most days are bad for the majority of my clients. You will also be asked to provide the name and address of another person who will be asked by the Bureau of Disability Determination to provide the same information. I don't know why they bother to do this since, in my experience, this information is rarely given any weight.
Your application is not evaluated nor is the determination on your claim made by your local Social Security District Office. Rather, all of these forms and the information you have provided them are sent to the Bureau of Disability Determination in Columbus, Ohio for evaluation and determination. If you live in Kentucky or Indiana, your state has a similar disability determination bureau. Kentucky's is located in Frankfort and Indiana's is located in Indianapolis. These services will write to your treating sources to obtain your medical records. They will also likely send you out for a Consultative Examination by a physician or psychologist under contract with the Bureau of Disability Determination. In my opinion, these consultants are merely "report factories".
Unfortunately, most claims are denied on initial application for reasons that are too complicated and numerous to list in this article. In next month's article, I will explain the Request for Reconsideration process.
SOCIAL SECURITY DISABILITY-THE ADMINISTRATIVE PROCESS
"REQUEST FOR RECONSIDERATION"
In last month's article, we discussed the initial application process. This article will discuss the next step in the process after you have been denied upon your initial application.
Following the denial upon initial application, you must file what is called a "Request for Reconsideration". This appeal must be filed within 60 days of the denial upon initial application. Like your initial application, the following forms for filing a Request for Reconsideration can be obtained on line at ssa.gov:
1. Request for Reconsideration (Form No.: SSA-561-U2);
2. Reconsideration Disability Report (Form No.: 3441-BK);
3. Medical Authorizations (Form No.: 827).
You can also request these by telephone (1/800-772-1213) or through your local District Office. Sometimes the SSA will use your initial contact with the 800 number as a protective filing date. To do so, you must state to the operator that you wish to appeal the decision denying your claim, and that you want your request be noted in your record. I would not rely on this. Rather, if your deadline is going to expire in a day or less, go in person to your local District Office.
When the District Office receives all of your Reconsideration forms, your claim file will then be transferred to the Disability Determination Service for your State. In the State of Ohio, it is the Bureau of Disability Determination. In the State of Kentucky, it is the Disability Determination Service. A similar Bureau is located in Indianapolis to serve the State of Indiana.
It is at this step in the process, rather than at the initial application, that I recommend you consider consulting with an attorney specializing in this area of practice. In my experience very few claims are granted at the Reconsideration level. In my experience, the sooner they make their decision, the better. Your best shot at winning the claim is at the next step: The Hearing Before an Administrative Law Judge. Obtaining an attorney to represent you at this step will serve to lay the important groundwork necessary to win at the next level of Administrative Appeals. At the conclusion of this article, the reasons for this will become clear.
During the Reconsideration process, your treating physicians will be contacted again for additional treatment records. The Disability Determination Service may also schedule you for a consultative examination at their expense by a physician, psychologist or psychiatrist on contract with them. As I stated in my last article, the doctors used by the DDS are not impressive. Bring your treating doctor's address to the examination and ask that the consulting examiner send a copy to your doctor. He or she may or may not do this. You will not receive a copy of the report unless you ask the DDS for it in writing. You should do this.
In my 25 years of experience, the reports issued by these consultants are not very thorough, are rarely supportive, and frequently refer to any medical or psychological condition as "mild" or moderate" in severity. I have a hard time recalling a time when a consultative report was used as the basis for granting benefits. Furthermore, they are often cited over your own doctor's records as a basis for denying benefits. This is due, in part, because the treating doctor really doesn't understand or know how to frame his or her opinions about you in a way that is persuasive on the issue of disability. On the other hand, the "consultative report" is usually framed precisely in the way the claims examiners address the issue of disability. For example, even if your treating source were to write a letter to the SSA stating "I swear my patient is permanently disabled and unable to work- and I REALLY MEAN IT!!", it would be meaningless to the disability examiner because such a statement is a conclusion. It does not state why and in detail, the medical conditions and consequent limitations that prevent you from working on a sustained basis.
What is frequently overlooked by claimants, physicians, and even attorneys, is a line at the very bottom of the DDS request to your treating doctor to check off asking if he or she would agree to perform the "consultative examination". However, in my experience, very few treating sources check that box. If you can, you should address that in advance with your treating doctor and the doctor's medical records secretary.
After the DDS collects all the medical records and obtains the consultative examination report, the medical evidence is reviewed by another physician, psychiatrist or psychologist on contract with the DDS. These doctors are often retired practitioners. Some are even asked to review medical conditions that are outside their area of expertise. I imagine they get folks whose own practice simply cannot support them or keep them busy. You can draw your own conclusions about that.
After reviewing the medical evidence and reports, this reviewing consultant will then complete a form called a "Residual Functional Capacity Report" in which he or she will check off a number boxes setting forth their opinion as to what you can still do despite your impairments. For example, how much weight you can lift and carry, how long you can sit or stand, etc. If the review concerns a mental limitation such as depression, a similar form is completed in which the reviewer gives opinions concerning, for example, how long you can maintain your concentration, persistence and pace; can you still perform simple one and two step tasks; etc. None of these reviewers will ever actually see you or examine you. However, the ultimate decision on whether to grant or deny benefits at the Reconsideration level will be made, in large part by the boxes checked off by this reviewer. Again, you will not be able to obtain a copy of this form until after the decision is made on your claim.
The DDS has up to 120 days within which to obtain all the medical evidence necessary to make their Reconsideration determination. Often it can take longer than 120 days. I usually write to the DDS on the 121st day to request that a decision be made immediately on just the evidence they have accumulated. This may cut down the time needed to get to the next level of Administrative Appeals: The Request for Hearing before an Administrative Law Judge. More about that in next month's article.
SOCIAL SECURITY DISABILITY-THE ADMINISTRATIVE PROCESS
"REQUEST FOR A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE"
In last month's article, we discussed the Request for Reconsideration which is the appeal required after a denial upon initial application. In my experience, very few claims are granted at the Reconsideration level. What follows then, is the next step in the appeal process which is filing a "Request for a Hearing Before an Administrative Law Judge". This must be done within 60 days of the denial upon Reconsideration. Like all prior appeals, this appeal can also be done online at www.ssa.gov. The following forms are required and can be obtained online:
1. HA-501: Request for a Hearing Before an Administrative Law Judge;
2. SSA-3441-BK: Disability Appeal Report; and
3. SSA-827: Medical Authorizations.
The Request for Hearing form must be downloaded, signed, and submitted by mail to the local District Office. Likewise, the Medical Authorization form must be downloaded and submitted by mail as well due to laws concerning medical privacy. However, the SSA-3441-BK can be filed online in it's entirety. The date that it is submitted online will be considered a protective filing date if you are doing all of this on the last day of the appeal time.
When the District Office receives all of your appeal forms, your claim file will be transferred to your local Hearing Office. The Hearing Office assigned to your case will depend upon the District Office that serves your ZIP code. There are two in our region. The Cincinnati, Ohio Hearings Office receives claim files from Cincinnati, Batavia, Hamilton and Northern Kentucky. There is also a Hearing Office in Dayton, Ohio that hears cases out of Dayton and Middletown. There is also a Social Security Office in Madison, Indiana that handles those claims. I can tell you from my 25 years of experience that not all Hearing Offices are the same. They differ from region to region. Some deny more claims than others. Some Hearing Offices have a panel of largely "conservative" judges and others have a more "liberal" panel. Some take longer than others to schedule hearings due to a higher volume of cases. Other Hearing Offices take longer to issue their written decisions following the hearing.
In a previous article I gave some pointers on how to select an attorney to represent you. Statistics show that having an attorney represent you at a hearing significantly increases your chances of receiving a Favorable Decision on your claim. Note that Hearing Offices and Administrative Law Judges differ from region to region. It is for this reason, I recommend hiring an attorney whose office is within 100 miles of where you live. I always recommend retaining an attorney in your geographic region to represent you. There may be attorneys based in other geographic areas, for example New York or California, who advertise for clients in Ohio and who conduct their interviews by telephone. They may, in fact, be very competent. However, I think it is important for you, as the client, to have the opportunity to travel to the attorney's office to meet the attorney in person during the initial meeting and at any other time. This is especially true in the weeks leading up to that all important hearing. Choose an attorney who is familiar with the local Hearing Office and the Administrative Law Judge assigned to hear the claim. Hire someone with whom you can look in the eye and shake hands. After all, the stakes are very high.
In my next article, I will explain what to expect when you appear before an Administrative Law Judge at your hearing.
SOCIAL SECURITY DISABILITY-THE ADMINISTRATIVE PROCESS
"REQUEST FOR A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE"
In this month's article, I will explain what to expect at your Hearing Before the Administrative Law Judge. By now you would have appealed the initial denial and the Request for Reconsideration. At last, after waiting perhaps as long as 18 months to two years, you are now ready to proceed with your hearing. Statistics show that reversal rates (Favorable Decisions) vary between different Hearing Offices and between different Administrative Law Judges.
Approximately two to four months prior to your hearing, the Office of Hearings and Appeals will send you a List of the Exhibits contained in your claim file. This will set forth in detail the medical records in your claim file. Now is the time to be sure that the treatment records in your claim file are all up to date. It is also the time to obtain specific opinions about your "residual functional capacity" from your treating doctors. In my experience, once your claim has been denied upon Reconsideration, the Social Security Administration will not do any more "development" of your claim. This means that the Hearing Office will not likely order any more medical records or obtain any more opinions from your treating sources. Remember, the last time the SSA ordered any records was during the Reconsideration process. Thus, any medical information in your claim file may be over a year old. Furthermore, the Administrative Law Judge assigned to your claim is not likely to change the prior determination on Reconsideration with additional medical records and additional opinions from your treating sources. That is why, as I stated in my previous article, you should seriously consider retaining an attorney at this stage of the process. Statistically, having an attorney represent you at the hearing level significantly improves your chances of a successful outcome.
The hearing rooms do not look like court rooms. Rather, they are about the size of a large office with several tables and recording devices. Some Administrative Law Judges wear robes and others do not. A hearing assistant will be in the room to monitor the recording of testimony which is all taken under oath. The Administrative Law Judge will begin by explaining the issues to be decided and swear everyone in including any witnesses you choose to bring on your behalf. Some Judges will allow your witness to remain with you in the room the entire time, others will excuse your witness from the room until it is time for the witness to testify. The Administrative Law Judge will start the hearing by asking you a number of questions beginning with your employment history and ask you to describe in detail the kind of work you performed for the past 15 years. Any work performed more than 15 years prior to the hearing is not relevant. The questions will be directed to determining the skill and exertion associated with your prior relevant work.
The Judge will then turn his or her attention to your medical/psychological impairments that provide the basis for your application. This will include asking you about any surgeries, tests, treatment sources, affects of your medication, and how these medical and psychological impairments limit you. The Judge will also inquire about your activities of daily living, hobbies and how you spend your time. During this interrogation, the Judge will be making up his or her mind about your credibility - in other words, your believability. To do this, in addition to observing you, the Judge will compare what you are saying to what was recorded in your medical records to see if there are any inconsistencies. The problem with this approach is that treating doctors rarely record everything in your medical chart. Also, I have never met a patient whose doctor allowed them to review their chart to ensure it was accurate. Unfortunately, many Judges will seize upon any contradictions between your testimony about your limitations and the absence of any such notation in the doctor's chart as a basis for deciding that your testimony is not credible and therefore you are not disabled. In my previous articles, I explained how to address and prevent that problem.
The Administrative Law Judge will likely have one, perhaps two "expert witnesses" attending your hearing. At least one will be a vocational expert. The second "expert witness" may be a Medical Advisor. Who are these people and what are their roles will be the subject of my article next month.