A step-by-step overview of the SSD application and appeal process

It occurred to me this morning that while I know how to run a Social Security case from beginning to end, I don't actually use a comprehensive written step-by-step checklist or task list.  I am working on improving the efficiency and accountability of my practice as well as providing instructional information to other practitioners.  Additionally, clients sometimes ask what is involved in an attorney's representation of a claim.  What follows is a step-by-step listing of the actions that must be taken to prepare a Social Security claim through all levels of administrative appeal, excluding Federal Court appeals which I do not presently represent.  

Note that each step is merely listed.  Some of these steps are straightforward and self-explanatory, while others are fairly involved and require multiple specific expertise and sub-steps to complete.  

Here is the list of steps:

Firm intake/retention (insert before whichever phase the client comes in to the firm and before taking any other official action):

  1. Input client data to case management system. 
  2. Prepare representation forms (SSA-1696 and fee agreement) and medical authorization documents (SSA-827, HIPAA release, source-specific authorization forms)
  3. Have client and attorney sign all forms. 
  4. Submit representation forms. At IA, submit by mail or fax to local office. At hearing, submit by fax, mail, or barcode to hearing office. At AC, submit by mail or fax to AC. 

Phase one: the initial application

  1. Prepare client to have the following information available: contact and identifying information; diagnosis and limitations causing disability; information on every marriage within the last ten years; date disability began and/or work ended; contact information and treatment dates for all medical sources since AOD; list of medications identified by prescribing source and condition treating; recent medical tests by date and body part; wage and hour information for past five jobs; contact information of last five employers
  2. Complete SSD application online at SSA.gov using above information. 
  3. Advise client to complete and return forms sent by DDS. Assist client as necessary. 
  4. Prepare client for consultative examination. 
  5. Reach out to a treating source for a functional capacity opinion. 
  6. Submit representation forms to local office
  7. Receive decision
  8. Advise client of decision. 

 

Phase two: the hearing

  1. File request for hearing. 
  2. Identify known medical sources. 
  3. Submit representation forms if not already done. 
  4. Verify receipt of appeal. 
  5. View and download initial exhibit file. 
  6. Review exhibit file. 
  7. Obtain a relevant treating source opinion. 
  8. Obtain updated records from supportive treating source. 
  9. Prepare and submit OTR if opinion and supporting records are sufficient. 
  10. Advise client to complete and return incidental forms sent by ODAR. 
  11. Wait for scheduling of hearing. 
  12. Communicate with scheduling office to schedule hearing. 
  13. Advise client of scheduled hearing. 
  14. Update treatment information. 
  15. Obtain updated medical records, verifying date range of records already received and submitted to avoid duplication. 
  16. Obtain updated medical opinion. 
  17. Review received medical records. 
  18. Submit received medical records. 
  19. Review opinions for support. If supportive, submit. If unsupportive, evaluate for next steps.
  20. Prepare and submit five-day notice letter as relevant. 
  21. Prepare and submit brief as relevant. 
  22. Contact client to prepare for hearing testimony. 
  23. Attend hearing. 
  24. Debrief client. 
  25. Complete any required post-hearing follow up. 
  26. Await decision. 
  27. Check status report for case status. 
  28. If inordinately delayed, write to ODAR to expedite. 
  29. Download or receive decision. 
  30. Review decision. 
  31. If favorable, advise client and proceed as below. If unfavorable, proceed to next phase. 
  32. Call client and advise of favorable decision. 
  33. Submit SSA-1695 to local office.
  34. Follow up on payment. 
  35. Deposit payment. 
  36. Send client completion of case letter. 
  37. Scan and shred paper file; archive electronic file. 

 

Phase three: Appeals Council appeals

  1. Review unfavorable decision to identify viable issues for appeal. 
  2. Call cl and advise them of unfavorable decision. Present options for appeal, withdraw, or new application with relevant recommendation. 
  3. If appeal is agreed to, prepare appeal letter or HA-501 form and mail to Appeals Council. 
  4. Follow up with AC/status report to confirm receipt of appeal and ERE access. 
  5. Download exhibit file. 
  6. Review exhibit file. 
  7. Obtain updated supportive opinion or medical clarification as relevant. 
  8. Obtain updated medical documentation to the extent provably relevant. 
  9. Submit new material evidence, if any. 
  10. Submit written argument. 
  11. Await decision. 
  12. If remand is granted, return to step 5 of hearing level and proceed. 
  13. If denied, proceed to federal court or new application as appropriate. 

 

Phase four: Federal Court appeals (referred out)

  1. Review AC denial. 
  2. Advise client of appeal rights and option of new application. 
  3. Refer out. 
  4. Simultaneously start new application. 

 

Upon grant, regardless of level:

  1. Advise and congratulate client. 
  2. File 1695. 
  3. If relevant, prepare and file fee petition. 
  4. Wait for payment. 
  5. If necessary, follow up on fee petition approval and/or payment. 
  6. Deposit check. 
  7. Submit withdrawal as representative to local office. 
  8. Sent client close-out letter
  9. Scan, shred, and archive file, returning to client any papers they desire. 
  10. Present to client a digital copy of the case file.

How to get Social Security Benefits, part 2: The Hearing-level appeal

In my earlier post, I addressed the first half of the process to apply for Social Security benefits: what it means to meet the legal standard for the benefits, and how to file and follow up on the initial application.  If you haven’t read that post, make sure to take a look at it before reading on with this one.  Now we come to the meat of the process: preparing for and going through the hearing. 

The initial decision

After you’ve gone through the initial application process, eventually you’ll get a Decision in the mail.  If it’s a favorable finding, then you’re done!  But most of the time, it isn’t.  More than two thirds of initial applicants are denied, so don’t be surprised by a denial letter.  The letter will have a date on the front and a few pages of boilerplate about the law and your right to appeal.  The last page or two of the letter is a very brief explanation of their reasoning.  It will almost always say something acknowledging that you have severe medical problems but that they believe your condition doesn’t prevent you from being able to work.  

Most people find this letter more than a little frustrating, and I don’t blame you.  You may be outright angry at the person who evaluated your case.  Unfortunately, there’s only one thing to do at this point, and that is to file an appeal.  

The appeal

Fortunately, the next step is actually really easy.  You can file the appeal online right at ssa.gov.  Here’s the link: https://www.ssa.gov/benefits/disability/appeal.html

You have to at least start the appeal within two months of the date on the denial letter.  If you don’t get the appeal in on time, you have to start over, which will most likely mean waiting months longer to get to a hearing.  

The only piece of information you need off the denial letter is the date on the top of it.  This is usually a good time to consider getting a lawyer, but the form is straightforward enough for most people to fill out on their own.  Just click the big blue button that says “Appeal Medical Decision” and then click “Start a New Appeal.”  From there, fill out the information on each page and click the “next” at the bottom.  A few pages in, it will give you a “re-entry number.”  Write this down somewhere, or enter your email address to have the number sent to your email.  You will only need this number if you have to take a break from completing the appeal and come back to it later, but if for some reason you don’t get through the process before the two-month deadline expires, this number is proof that you started on time.  

The appeal process usually takes 15 to 20 minutes to complete.  You may need to enter quite a bit of information on the next few screens.  Mostly, you need to provide updated information about your medical treatment, and you’ll need to type in the names and contact information of any doctors you’ve seen since you last updated the government during the initial application.  Frankly, this information doesn’t matter very much at this stage, but it’s just one of the hoops you have to jump through.  

One page will ask whether you want to appear at a hearing.  Click yes!  Even if you later decide to waive your right to appear (which is usually a bad idea), you don’t want to waive it just yet.  

One part of the form will ask you why you disagree with the lower level decision.  All you have to say is that you believe you can’t work because of your medical condition.   Make sure that you keep clicking “next” until you get to the very last page where it says “submit.”  You can upload any new documents you would like to add at this time, but it’s not necessary.  You will be asked to provide an updated medical release.  If you have a printer and a scanner, you can print it out, sign it, and upload it; you can also sign the form electronically right on your computer if you have software to sign a PDF file.  Once you’ve uploaded the document, print or save a copy of the appeal receipt at the last page.  That’s it.  

Waiting

Now comes the wait.  This is the bad news: you’ll be waiting a while.  At the time I’m writing this, January 2018, the average wait time for a hearing to be scheduled is a bit over 18 months nationwide.  In my home office of Buffalo, NY, the backlog is a full 24 months.  That period is just for a hearing to be scheduled; after waiting through the queue, you’ll still need to wait a few months between the hearing being scheduled and held.  

You’ll get a few notices from the hearing office during this time.  First, you’ll get a notice acknowledging the appeal.  You don’t need to do anything when you get this notice.  A few times along the way, though, you’ll get some questionnaires that you need to fill out and send back to the hearing office.  They’ll ask you for updates about your medical treatment and prescriptions, along with any work activity that you engage in.  You may receive a work history questionnaire.  It’s somewhat important to complete and return all of these forms, mostly to prevent further delays, but some of the information may also be important down the line.  

At one point you’ll get a notice that the file is being assembled.  This notice may be a good time to start gathering your medical evidence.  You’ll get a notice saying that the file is ready to review, and at that point you can request that they send you a copy of your file to review on your computer.  If you have an attorney, your attorney will be able to access your file online through a special government web site.  This will help you or your attorney figure out what records you’ll still need to gather.  

Finally, you’ll get a notice saying that they are “almost ready” to schedule your hearing.  Lately I’ve been seeing notices saying that they expect to schedule the hearing within nine months.  This may be a good time to start gathering evidence, and is a great time to retain an attorney if you haven’t already.  

The last notice to watch out for is the hearing notice.  The law requires the government to give you at least 75 days of notice before the hearing.  Most hearing offices lately have been scheduling hearings a little over three months in advance, sometimes four or five months out.  If you don’t have an attorney by the time you get the hearing notice, you might be cutting it a bit close.

Preparing the evidence

When you get to the hearing, you are going to want to have all of the evidence ready.  The regulation requires that you submit everything that you want the judge to consider by a week before the hearing.  Technically, the law specifically requires that you either submit all of the evidence, or at least tell the judge what evidence is missing by that time, but you should really strive to actually have everything submitted by then.  

What do you need?  You’ll want to get and submit copies of all of your medical records from every doctor, clinic, and hospital that you’ve been to since the date you are claiming as your disability onset date.  Your file should already have some of this evidence from the initial application, so you don’t need to duplicate these records.  You’ll also want to get a supportive opinion statement from one or more of your treating doctors.  

The records

What are medical records?  A lot of people have a different idea of what “medical records” are from what the government is actually looking for.  The papers that your doctors and hospitals have already given you are probably not the records that you need.  Discharge papers that you receive when you leave the hospital do not contain your actual treatment records, and aren’t going to be of much use to the judge or your attorney.  Instead, you need the complete internal records that the medical source has kept about you over the course of your treatment.  This includes things like the doctor’s notes and findings from each visit, lab results, x-ray and other imaging reports written by radiologists (but not the actual images), nursing notes from hospital stays, surgical reports, and more - basically everything written or typed by a doctor or other medical provider who cared for you.  

Some of the documents that I commonly see which are not considered medical records include hospital discharge instructions, prescription medication package inserts, bills, referral slips, and most insurance forms.  In general, if they gave it to you without a written request, it’s probably not helpful.  

To obtain your records, you’ll need to submit a request in writing along with a valid and signed release form.  Under the medical privacy laws, medical sources can only release your medical records with a valid signed release form, commonly called a “HIPAA release.”  Your doctor’s office can provide you a copy of one of these forms to sign to get your records released to you, and if you hire an attorney this is one of the first forms they’ll have you sign.  Your request for records has to specify what kind of records you’re looking for, your personal identifying information (usually your full name and date of birth), and the range of dates that you need records for.  The release form will need to specify the same things, so sometimes all you need is the release form.  

It’s important to get all of the relevant records.  If you don’t have a lawyer, you’ll want to contact the hearing office early in the process for help getting your records.  

The opinion statements

Besides the records, you’ll also want to get a statement of medical opinion from each of your treating doctors, or at least whichever doctor or doctors support your claim for disability.  Soliciting a medical opinion is one of the major steps where having an attorney makes a big difference.  Your attorney will be able to help determine what information your doctor needs to provide in an opinion statement, and most of us have a library of questionnaires and forms for specific types of conditions.  

Your doctor’s opinion can help the judge come to a favorable conclusion on the most important finding in deciding your case: your “residual functional capacity,” or “RFC.”  The RFC is the judge’s conclusion about what you can and can’t do, in terms of limitations that would affect your ability to perform work in a typical job setting.  The RFC includes what are called “exertional” limitations, things like sitting, standing, walking, and lifting; “postural” limitations, things like bending, crouching, stooping, kneeling, and crawling; and mental limitations, like your ability to work with others, to maintain attention and concentration, and to deal with stress.  

When a treating doctor provides an opinion statement that relates to your RFC, the judge is required to consider that opinion in deciding your case.  Just because the opinion is written in a way that supports your case doesn’t mean that the judge will definitely grant your case, but it’s often the single biggest factor in deciding your case - as long as it’s written correctly and (this is important) as long as the treatment records back it up.  Also, it’s important that the opinion come from the right type of source.  The judges are required to consider opinions only from certain types of sources: medical doctors (MD or DO), psychologists (Ph.D. or Psy.D.), and physician assistants (PA-C or RPA).  They are not required to give much weight to opinions from nurses, nurse practitioners, chiropractors, physical therapists, or social workers, even though these people may in fact know you better than the actual doctor.  If you can't get a doctor or PA to complete an opinion, try to get a doctor the provider works with to co-sign the opinion.  

I could write a whole series of blog posts just on medical opinions, and I will.  For now I’m going to cut it off here.  Medical opinions are very important and are one of the main reasons to get a lawyer.  It’s possible to get supportive opinions without a lawyer, but there’s a lot you need to know.  More on that later.  

Submitting the evidence

Once you’ve gathered your medical records and supportive opinions, you have to submit it to the hearing office.  If you have a lawyer, he or she can easily submit your records online.  If not, you may need to fax or mail copies of the records to the hearing office.  With one of the notices you received earlier, you should have received a sheet of paper with a big bar code on it.  Use this page as a cover sheet when faxing your evidence to the hearing office.  If you have to mail copies of the records to the hearing office, include a copy of this bar code page with the submission.  It’s important to make sure that everything is in by a week before the hearing.  If you can’t get it all ready to submit in time, send the judge a letter detailing exactly what evidence you know exists but can’t submit on time.  

The hearing

Stay tuned for a separate post covering the hearing itself.  There's a lot left to cover and this post has already gotten pretty long.

Struggling to get by after receiving benefits

There’s a great article today in the Washington Post exploring in detail the stories of some SSI recipients struggling to get by in rural parts of America. This is a sad truth about our disability benefits system and social safety net in this country: very often the benefits just aren’t enough to get by. 

It’s worth a read, check it out. 

http://www.washingtonpost.com/sf/local/2017/10/06/her-disability-check-was-gone-and-now-the-only-option-left-was-also-one-of-the-worst/ 

How to get Social Security benefits - Part 1, the Initial Application.

Potential clients often ask me what it is that I will do for them, and in a lot of ways the main answer is that I know how to win Social Security benefits, and I take them through the process. It's true that, if the steps are followed carefully, you may not need help from a lawyer. If you decide to go it on your own, then maybe this will serve as a helpful guide. If you choose to get the help of a lawyer, I hope to help you understand what your lawyer will do.

So here is how to get Social Security Disability benefits.

 

Step 1: Be disabled.

Believe it or not, this is the step that trips up a lot of would-be applicants. It all stems from the legal definition of the term "disabled."  The term means different things in different contexts, such as the Americans with Disabilities Act or Worker's Compensation, or even an insurance policy. For Social Security, it is a very narrow definition that most Americans will hopefully never meet. You are disabled if (and only if) due to a medical condition or combination of conditions, you have functional limitations which so seriously impair your daily functioning that you cannot sustain unskilled work at any level of exertion. There are actually a few exceptions to this definition, and a lawyer can explain them, but in general, thats the Social Security "standard of disability."

 

Step 2: Stop working.

Now really, I could list this as step 1, as that's where the government puts it in the evaluation process. You can't collect Social Security disability benefits (or SSI) if you are working full-time or earning more than about $1100 monthly. Even part-time work that exceeds that dollar amount can exclude you from getting benefits, as can volunteer work or an internship that isn't paid.

Now if either step 1 or step 2 isn't already the reality of your life, proceed no further down this article. I've had people ask me if they should stop working in order to pursue Social Security benefits, and with few exceptions the answer is usually no. Most people will have less money on Social Security benefits than working, even working part time. So if you're capable of working, you're probably better off in the work force - or even on unemployment benefits which are often higher than Social Security benefits. Nobody applies for Social Security because it's an easy way out. You apply because you're out of options.

 

Step 3: Apply for benefits

There are three ways to apply: by phone with the Social Security Administration, at a local SSA office,or online at SSA.gov. The application requires a lot of information, and it's good to get that information together before you apply. You'll be asked questions about:

  • Your basic demographic information including social security number, date and place of birth, address, and phone number
  • Your work history, including the names and addresses of your last five employers
  • Your recent medical treatment, including the names and contact information of every medical provider you've seen since becoming disabled

Again, it's best to have this information handy when you start your application, but if you don't, it's a good idea to get the application started as soon as you can even with incomplete information. The most important part of the application is identifying your medical sources, so that the government can gather your medical records.

 

Step 4: Follow up on your application.

Once your application is completed, it's the government's responsibility to gather your medical records, and they will also send you and your doctors some questionnaires. It's important that you complete each of the questionnaires they send you, because if you don't, they may deny your claim without even looking at the medical evidence. But it's a good idea to consult an attorney for guidance while completing these questionnaires. Generally, I will help my clients complete the questionnaires so that we know that the answers correctly address your condition and limitations.

The government will usually send you to see their doctor, an appointment called a Consultative Examination. It's important that you attend this appointment and that you provide that doctor with a complete picture of your symptoms. If you have recent objective reports such as an MRI, it's a good idea to bring those with you. I provide my clients with an info sheet to prepare them for the CE appointment.

Once you've completed the questionnaires and gone to the CE appointment, your application is considered complete, and this is where most people stop - and where some initiative might mean the difference between winning now and having to wait for a hearing.

 

Step 5: Get a medical opinion.

The earlier you can do this, the better. While the rules for evaluating a treating physician's opinion have recently changed, one upshot of the change is that nurse practitioners and physician assistants are now considered "acceptable sources" for medical opinions. The government is required to consider the professional opinions of your physicians. Now, it's important to note that an opinion saying "my patient is disabled" isn't worth much at all, because of the rules. But an opinion stating the physical and mental limitations that stem from your condition, especially if the opinion makes specific references to your medical records, is very helpful. Most competent Social Security attorneys have a library of forms to solicit detailed medical opinions, and if you hire an attorney early in the process getting a medical opinion is one of the things we will do for you. If you don't have a lawyer, some internet research may help you find a helpful form to get an opinion from your doctor, but keep in mind that there may be more bad information than good on the web, and it's important to know that you've got the right information.

That's pretty much it for the initial application process. Oh, I forgot the most frustrating part.

 

Step 6: Wait.

Once all the information is in, including the CE report and hopefully your own doctor's opinion statement, the evaluators at your local Disability Determination Service (DDS) will evaluate your case and make a decision. If they like what they see, they'll grant your case and you'll start receiving your benefits soon. Bear in mind, though, that fewer than 30% of initial claims are approved, and you are likely to need to proceed further through this process.

Tune in for my next post for information on the process of getting and winning a hearing with an administrative law judge.

Commentary on the newly proposed revisions to the Social Security regulations

The government has proposed drastic changes to the Social Security law which would have a devastating effect on Social Security claimants.  The proposed regulations and explanatory documents can be found here: http://www.regulations.gov/docket?D=SSA-2012-0035

The rule is presented to look benign enough and even beneficial.  The rule is proposed as elevating non-doctor medical sources, such as social workers, nurse practitioners, and physician assistants, to the same stature in the regulations that is afforded to physicians.  But this is subterfuge.  The wording of the proposed regulation does not elevate anyone, but instead simply drags the opinions of all medical sources, doctor and non-doctor alike, down to the level of worthlessness.  

The key change proposed is to eliminate what the rule drafters refer to as the "controlling weight rule."  Attorneys and other claimant's representatives commonly refer to this as the "Treating Physician Rule."  Codified at 20 CFR § 404.1527 and 416.927, the rule essentially directs that the opinion of a treating physician, if well-supported by objective medical evidence and not contradicted by another treating source, is entitled to "controlling weight" and can essentially dictate the Decision in the claim.  In short, if a treating physician says that your condition imposes limitations which satisfy the criteria of disability, then the government has to adopt those findings and will find you disabled.  This proposed rule change will take away that power from not only doctors but also from all other medical care providers.

The proposed rule eliminates the phrase "controlling weight" altogether.  The revised proposed statute is produced at pages 115 through 119 of the document.  It seems a little sneaky, to me, that they would bury the substance of the change so deep into the document.  But there it is.  I've reproduced it in full here:

§ 404 Evaluating opinion evidence.  

This section applies to claims filed (see §404.614) before [EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE DATE OF FINAL RULE], the rules in §404.1520c apply.

(a) Definitions(1) Medical opinions. Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.

(2) Treating source. Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.

(b) How we consider medical opinions. In determining whether you are disabled, we will always consider the medical opinions in your case record together with the rest of the relevant evidence we receive. See §404.1520b.

(c) How we weigh medical opinions. Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (ii) of this section, as well as the factors in paragraphs (c)(3) through (6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.

(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.

(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources.

(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.

(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable medical source is familiar with the other information in your case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.

(d) Medical source opinions on issues reserved to the Commissioner. Opinions on some issues, such as the examples that follow, are not medical opinions, as described in paragraph (a)(2) of this section, but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.

(1) Opinions that you are disabled. We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled.

(2) Other opinions on issues reserved to the Commissioner. We use medical sources, including your treating source, to provide evidence, including opinions, on the nature and severity of your impairment(s). Although we consider opinions from medical sources on issues such as whether your impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1 to this subpart, your residual functional capacity (see §§404.1545 and 404.1546), or the application of vocational factors, the final responsibility for deciding these issues is reserved to the Commissioner.

(3) We will not give any special significance to the source of an opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this section.

(e) Evidence from our Federal or State agency medical or psychological consultants. The rules in §404.1513a apply except that when an administrative law judge gives controlling weight to a treating source’s medical opinion, the administrative law judge is not required to explain in the decision the weight he or she gave to the prior administrative medical findings in the claim. 

 

Indeed that may look a little confusing and contains a lot of what seems like legalese.  The important part is the complete deletion of the phrase "controlling weight."  The effect that this will have is to give Administrative Law Judges (ALJs) greater discretion in how to assess and flat out disregard the opinions of your treating providers - whether they be MDs, PhDs, DOs, LCSWs, APRNs, DCs, DPTs, or any other acronym.  All, alike, are disposable under the proposed rule.  

Let's step beyond the plain-text for a moment to its surroundings.  As supporting documents, the government has posted two reports which both exhibit bias in a specifically anti-claimant direction: a report entitled "Assessing the Efficacy of the Treating Physician Rule," which focuses on the thesis that the Rule makes it too easy for ALJs to grant benefits and too hard for them to deny them, and a "Petition for Rulemaking" by a law professor who argues, at length, that the program should be revised so as to deny more claimants.  

So it's crystal clear that the animus here is to deny more claimants, not to allow anyone's relevant opinion to be heard.  This won't make it easier for social workers to get their clients the help they need.  All it will do is make it easier for judges to deny claims, no matter how unanimously they are supported by treating care providers.

It is critical that advocates for the disabled comment on the proposed rule and make our voices heard.  But that is not enough.  Comments can, as is proposed for medical opinions, be completely ignored.  So instead, we must reach above the heads of the proponents of this harmful change.  Contact your Congressperson, regardless of their party, and tell them that you don't want access to Social Security benefits to be chipped away.  Please share a comment on the proposed rule directly as well, but I fear that our voices simply won't be heeded or even heard - and well-meaning treatment providers, such as the social workers who so far constitute the majority of the commenters, will drown us out without understanding the harm the new rule will do to their patients.  

Some thoughts on the trend in grant rates

It’s become a harsh fact of life for experienced Social Security advocates: the government simply isn’t granting cases like they used to.  The grant rate at the hearing level is down below 50% nationwide according to disabilityjudges.com, which notes that the nationwide average grant rate is down to 44%.  

Most advocates have seen our numbers go down.  When I first started, I took great pride in winning over 90% of my cases in the first year.  That was back in 2009.  Recently, I’ve been doing much better than most advocates at around 70%.  In that statistic, though, I should disclaim that a majority of my recent claims have been insurance referrals, which are “pre screened” by private carriers with criteria similar to the Administration’s.  Most of us are teetering around 50%, a dismal drop from our heyday of nearly perfect records.  

So what do we do now?  

First, we need to do our best for our clients.  It’s no longer acceptable to just gather the medical records and let the judge evaluate the claim on its merits, no matter how strong the claim may seem.  So we need to seek treating medical opinions for each and every case.  We need to write briefs and OTRs when we have a chance to avoid a hearing, or when we need the judge to understand a nuanced argument, or when we need to preserve the record for appeal.  We need to vehemently cross-examine government expert witnesses, and bring our own when we have the opportunity to do so.  

Second, we need to be honest with our clients.  This may mean uncomfortable conversations in cases where we know a claim is not likely to prevail, but if we are serious about our ethical duties, we need to put the client and their best interests first, even ahead of the case.  So it’s important to set a realistic expectation from the start: how likely or unlikely it is for a claim to be granted on the initial application, how long the wait for the hearing will be, and how likely we are to prevail at that hearing. 

I always ask my clients a series of qualifying questions when determining whether to retain a case.  I ask the questions that need to be answered in a hearing, and especially what would keep them from doing sedentary unskilled work.  Sometimes the answer to that question leads to a conclusion that the individual isn’t really a good fit for Social Security benefits, and when that is the case I want my client to have the information to make a prudent decision about their case and their life.  If they aren’t going to qualify, I help them look into vocational rehabilitation services instead.  The last thing that I want to do is encourage someone to abstain from trying to work in favor of a claim that they won’t likely win.  

With denial rates as they are, it’s inevitable that many good cases will be denied at hearings, and many of those will be denied by the Appeals Council and even Federal District Court despite our best efforts.  By setting realistic expectations, we can be better prepared to deal with these losses. 

Musing on purpose

I've been a bit down about work lately and I don't fully feel like I'm making the difference in the world that I want to make.  

I'm in Social Security.  I advocate for people seeking benefits from the government.  The work is depressing because the situation is depressing.  Most of my clients wait at least two years for a hearing.  A lot of them look "lazy" and/or "just looking for a handout" from someone else's perspective.  Some of them really are scammers, trying to pull one over on the government, sometimes trying to pull one over on me; I do my best not to represent those people, but sometimes I'm deceived myself.  Anyway, most of my clients are people with some physical or mental health condition that simply gets in the way of them being able to hold down a full-time job, and in a society without enough jobs to go around anyway, the roll of the disabled is growing larger.  

I get pretty down about our society and my role in it.  We as a society (America) have been doing a pretty bad job of taking care of those in need; really, the chronically poor, whether they're disabled or just uneducated and under/unemployed.  We make people jump through all sorts of hoops, and we don't offer the help until you're really desperate for it.  But if we (as attorneys and activists) are honest with ourselves, the people themselves aren't always all that inspiring either.  

The reality is that I'm working to fight poverty one person at a time, and I'm only focused on a very narrow slice of the poor population; and the difference that I make to each of them is still fairly small because these benefits aren't so substantial.  I even sort of feel bad about making a living at this because my pay comes out of the checks of the poor people I'm trying to help, as though they'd be slightly better off if I didn't have to charge them for my services.  (Of course there's the back and forth on that issue, if I didn't get paid I couldn't do the work and then they'd be much worse off.)

But mostly I'm frustrated because it feels like bailing water out of the Titanic with a bucket.  

I occasionally remind myself of the parable of the starfish.  It's a simple story.  Sometimes a wave can deposit starfish (and other sea creatures) on the sand, and if they dry out before the tide comes in over them, they die.  So a little boy is walking along the beach full of starfish, millions of them, picking them up one at a time and throwing them into the ocean.  He sees an old man, who questions what he's doing.  "You'll never make a difference - there are too many for you to ever get through."  The boy picks up another starfish and tosses it into the ocean.  "I made a difference to that one."  

Sometimes I would rather be a politician or run a massive nonprofit agency making structural changes to fight institutional poverty in this country.  In the starfish metaphor, I wish I could be a wave on the ocean... or at least have a bulldozer.  Instead, I'm a small time attorney helping one person at a time get benefits.  It's slow, agonizing, heartbreaking work.  I lose a lot and I watch my clients suffer, and a lot of them aren't very pleasant to be around.  But I periodically look over the list of cases I've handled.  I'm fortunate to have lost count, somewhere in the hundreds.  I know there are plenty of much more experienced attorneys whose lists are in the thousands, but I've helped hundreds of people attain a marginally better existence.  

I'm tempted to go back through the list and pull out a phone number or two, check up on people to maybe feel some hope.  But I'm also worried what will happen if I check up on someone and find out that life isn't going well- I probably wouldn’t have anything more to offer them.  

So I have to plod on.  One hour at a time, one case at a time, one life at a time.

Exciting news

I'm very excited to announce that I'll be transitioning to an of-counsel role at Ramos & Ramos, and ramping up my roles at Pasternack Tilker, Allsup, and now primarily the office of Lewis Schwartz.  

Lewis is quite possibly the foremost solo practitioner in Social Security in Western New York, an absolute pillar of the Social Security bar.  His practice focuses primarily on appeals to Federal Court, where he is one of the most prolific and successful advocates in the Western District.  

I'm also back in the business of directly offering per diem hearing and writing services to firms across the country who need coverage for Social Security hearings and appeals.  

Ramos & Ramos

I'm excited to announce that I have officially joined the practice of Ramos & Ramos, a thriving multi-practice firm, as their Social Security specialist.  

Ramos & Ramos is "right sized" with four attorneys and a small but growing paralegal staff, and we operate in a shared space alongside solo attorneys Josh Dubs, Nicholas Hicks, and Philip Dabney.  This unique arrangement enables us to collectively cover just about every area of law that a private person may need: Ramos & Ramos has specialists in personal injury, family law, real estate, and now Social Security; and our co-located colleagues together add wills trusts and estates, bankruptcy, criminal defense, and administrative law.  

Why me?

Why go with James for your SSI claim? 

There are more lawyers and more law firms than ever before. 

You are constantly bombarded with ads on TV, radio, and billboards. So by now you know pretty well what they all say. What aren't they saying?

At many large firms, your case may not be much more than a number or a statistic in a computer. You might not even get to speak to an actual attorney before your day in court, and he may or may not have seen your file before then. It's very easy to make a claim in an ad, and it's just as easy to hire a squadron of attorneys and paralegals to treat each case like a disposable product in a factory. 

Many large firms can claim a lot about their numbers. Many of those numbers are true. Maybe they really have represented more claimants than anyone else. Maybe they are the biggest, with the most lawyers and the most efficient process. But is that the approach that is right for your case?

One thing that I'll admit right up front: I haven't handled as many cases as any firm with a one-digit phone number or a national ad campaign. Instead, I remember the faces and stories of each of the hundreds of clients that I've helped resolve their legal needs. 

I don't have a close working relationship with the internal lawyers at the big insurance companies. What I have is the time and dedication to form meaningful connections with my clients, and the skill and finesse to defuse tough negotiations and advocate on your behalf no matter who we must face. 

I don't have a six or seven figure advertising budget. What I do have is a personal stake in making sure that each and every client leaves happy enough to enthusiastically recommend my services to their friends and relatives. 

I don't have thousands of clients fighting for my time or hundreds of customer service workers to read you my computer system. What I have is a personal relationship with each client, and what you have is direct access to your attorney. 

I know that each case is different in subtle ways. You aren't just a number or a pattern. Your case and your life matter to me. 

My promise to you:

I will treat you with respect and dignity throughout the process. 

I will keep you informed about what's going on with your case. 

I will do my best to expedite your claim. 

I will be up front and honest with you about your claim, setting clear and realistic expectations. 

I will work on your case personally. 

If you have questions about whether a solo practitioner is the right representative for your case, feel free to ask and I promise that I will give you the straight answer that you deserve. 

Flat rate legal services

Paying for legal services is scary.

Lawyers can be expensive.  Legal fees can be unpredictable.  Expenses can quickly mount.  Up-front retainers can be hard to gather.  

Flat rate services are a new and rapidly trending option in paying for legal services, that can control the magnitude and predictability of costs.  

The way it works is simple.  The lawyer and client discuss the scope of the legal services that are needed.  The lawyer presents a price, typically from a prearranged "menu" of services, and the client pays the fixed price up front.  The lawyer remains on the case until the task is done, and if other tasks are required, the process can start over.  

For many types of matters, this will save clients money, but more importantly, it removes the uncertainty and confusion of the process.  With a flat rate service, you know what you're spending before you commit to a certain practice, and before you part with a dime.  No large retainers.  No waiting for a bill.  Just a lawyer who works for you to do what you have paid him or her to do.  

There are some potential downsides to flat-fee billing, of course.  Everything has a downside.  Sometimes a flat fee can have a higher cost than the billable hours method.  Sometimes a flat fee may not cover everything that a client ultimately decides that they want.  And there are sometimes matters that are too inherently complicated for a flat fee to make sense.  Flat fees also require that fees be paid up front, which may not be feasible for some clients and some types of matters.  But for those cases, many flat-fee firms still offer contingency fees when they are needed.  For most clients, flat fees will simplify the process and take away the stress and worry of not knowing what the bill will say.  

I've decided to start offering a menu of flat-rate legal services for all of the types of matter in which I engage.  Social Security and Worker's Compensation will remain on contingency fee only, as the fee structures for those types of cases are prescribed by law, which doesn't allow lawyers to engage in alternative fee structures.  But for business contracts, letters, research tasks, traffic and misdemeanor defense, and administrative filings, flat rates will be available immediately.  

 

Systematic File review: an approach for efficiently managing a Social Security practice

To manage a Social Security practice effectively, it is essential to have a system in place for routinely reviewing cases in order to make important case decisions.  In order to win cases, you need to know what you have, what you need, and how you will get it.  To concentrate your efforts where they will be most fruitful, you should first have a system in place to identify and "sort" your cases. 

In a "volume business", cases will broadly fall into three categories.

Category 1 is the "Good" cases. In triage, these cases are not only meritorious on the asserted facts, but the evidence is well-developed. These cases need minimal attention. Proper diligence on a case like this is to quickly settle it. Get the client their money, get the firm their fee, and take it off the docket.

Category 3 is the "junk" cases. These are cases that either lack merit even on the alleged facts, have such significant evidentiary issues that the case is likely futile, or have client problems that merit cutting losses. All of these cases should be identified as soon as possible and jettisoned, generally by withdrawing the representation. Exit and don't look back.

That leaves category 2: the "work" cases. These should be the bulk of clients in the first place: claims which would be meritorious on the alleged facts, but which need work to complete the evidence. This is where an advocate gets to be really effective. In a "work" case, the advocate review identifies the strategy of the case, identifies the likely sources of evidence, and plans the timeline of the case.

Identifying the category of case is essentially step 0 to managing an effective volume practice. Knowing what you are working with will allow you to efficiently utilize your resources and effectively advocate for your clients.

So how do you identify the cases?  

It’s important to remember that these categories are somewhat fluid, except category 3.  2s become 3s if development reveals that the allegations will not be supported.  2s become 1s when development is completed and the facts and argument are supported. 1s become 2s if an unexpected problem develops, or if the firm fails to act before evidence gets stale.  

If a case is properly identified as a 3, then it should not be revisited.  The purpose of a “jettison” category is twofold.  First, it helps the client to guide their personal decision making.  When a client has a category 3 case, a good attorney enters the "counselor at law” role to advise the client that they do not have a viable claim, and should direct them to the appropriate alternative resource, whether that is a rehabilitation resource, an appropriate medical source, or a different type of claim.  Second, the jettison helps the firm to efficiently target resources where they are likely to be fruitful.  Attorney and paralegal time, as well as expense expenditures, are nominally scarce resources, and shouldn’t be squandered.  Every resource that is spent on a 3 raises the cost of the 2 and 1 cases, because those cases are now sharing resources with wasted efforts.  So keeping bad cases going is bad for the client and it’s bad for the firm.  It’s also a failure of several ethical duties.  

A case that is a 1 should be expedited.  The same reasoning applies here as in 3: it is good for the client, and good for the firm.  There can be no doubt that a client with a meritorious claim is better off the sooner they get paid.  Some firm managers may question whether it is good for the firm, though.  In contingency fee matters, resolving a matter quickly may actually result in a lower fee payment, and sometimes that fee reduction is disproportionate to the amount of effort saved.  But if they are not expedited, evidence goes stale, the client gets more frustrated, and the case is moved back to category 2.  

Arguably, expediting 1 cases might cost more resources, as the firm would need to invest a burst of attorney time on the motion for summary judgment; in social security hearings, this might actually take more attorney time than simply going to the hearing.  This is an area where a firm needs to consider other aspects of their practice model.  Does reputation matter?  Is there a possibility of client referrals coming from expedited cases?  Is ethical duty a priority over fee considerations?  If the answer to any of these is “yes”, then there’s not really a choice here.  Category 1 cases must be expedited.  It’s not optional.  

So that brings us to category two, which is worthy of its own articles.