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.