Articles Posted in The Administrative Procedure

We are many times called by individuals who have been denied their Social Security disability claim (whether it be on their initial claim, reconsideration or at hearing) despite what they inform us is their doctor’s supportive letter.   It is not uncommon to see a disability claimant simply asking their doctor for a letter describing their disability, or a note that says they remain unable to work, and then they are surprised to find that they have been denied nonetheless.

The Social Security Regulations spell out a 5 step evaluation process that is rather complex, and in order to obtain useful information from a medical provider, it’s important to know what needs to be proven in order to qualify for benefits.  First and foremost, one needs to prove that they are suffering from a medically determinable severe impairment in accordance with Step 2 of the sequential evaluation process.  If one has not established through objective medical examination and/or testing that a medically diagnosed condition exists, any opinions from one’s treating doctors that one may be somehow limited in their ability to work cannot even be considered.

Once a medically determinable impairment has been established, it’s important to understand that the Social Security Administration (SSA) has a set of regulations that governs what evidence can be considered (and in what way).   For Social Security disability claims that have been filed on or after March 27, 2017, the Social Security rules have been amended so as to make clear the Agency’s position that no source opinion (whether it is from one’s own medical doctor or from a consultative examiner SSA sends one to, is automatically entitled to a greater weight of consideration).  For claims that have been filed prior to March 27, 2017, a treating source’s opinion is entitled to great weight and deference if in fact it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques” and it is not inconsistent with substantial evidence in the record.  Continue reading

And so you find yourself in the position of having pursued your Social Security disability claim for years.  You’ve applied and been denied repeatedly, and finally in front of an Administrative Law Judge (ALJ).   Now you face the prospect of having to start the process all over again.   The question now arises as to whether you will lose your rights to any benefits for the time period leading up to that ALJ denial.  You are now faced with the possibility that even if you were to be successful on a new application, benefits may not be payable the time period that has already been decided by the ALJ.

The Res Judicata doctrine (with the words Res Judicata meaning the thing having been decided) raises its head in any situation where an ALJ has issued an unfavorable decision in your case and where that decision is not facing the possibility of further appeal.  Thus, the issue arises where no further appeal has been taken and is pending before the Appeals Council, or if the decision was upheld at the Appeals Council level and either no further appeal has been undertaken or was denied at the Federal District Court level (and then no further appeal was timely taken at that point)  Failing to pursue the matter further, within the time period prescribed for appeal following a denial, will cause the ALJ unfavorable decision to be come final.  Continue reading

There is nothing more frustrating when representing someone in their Social Security disability claim than hearing that a longstanding medical provider is not willing to address a residual functional capacity questionnaire.  These forms are meant to address in a rather organized fashion: 1) the nature of the contact they have had with the patient, 2) the diagnoses, prognoses, symptomatology and objective signs related to the conditions for which they are treating them and 3) the patient’s residual functional capacity (that is, the extent to which they remain limited in terms of undertaking functions necessary for a potential work environment).

The Social Security disability regulations provide that in order to find one disabled from a medically determinable severe impairment, an acceptable source must establish a diagnosis of that medical condition.   Once that takes place, it is vital that the treating source address the extent to which one remains impacted in terms of their ability to perform such functions as sitting, standing, walking for a length of time, the extent to which they can lift and carry, bend, stoop, etc.

Likewise, in a case involving mental health impairments, it is just as important that the treating physician (preferably, a psychiatrist and/or psychiatrist) has established a diagnosis/diagnoses.  It is then critical that an acceptable medical source (which now can include a physician assistant or a advanced practice registered nurse, who specialize in mental health) set forth the extent to which their patient remains impaired in terms of their ability to undertake such activities as maintaining their attention and concentration, dealing with normal work stress, interacting with the public, coworkers and supervisors, etc. Continue reading

Contrary to the beliefs of many who have been denied their Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) benefits, it is important to understand that the Social Security disability program set up to administer the review of disability claims is a non-adversarial process.   The rules are set up in such a way as to provide a neutral review of one’s disability claim.

The initial application process requires that an individual claimant first submit information to the Social Security Administration (SSA) which will allow the agency to not only obtain all of the necessary medical documentation from one’s treatment providers but also review information as to how the claimant’s daily activities and ability to work is hindered.  The application forms likewise allows the Agency to determine one’s educational and work background as these areas of information are critical to the ultimate determination as to whether one may meet a medical listing of impairment and two, if not, if the individual remains incapable of returning to any of one’s past relevant work (work performed during the 15 year period prior to becoming disabled) or any other work that exists in significant numbers in the national economy.

The initial material that is gathered on the application form, along with a signed medical authorization from the claimant, is then transferred to the state agency responsible for making the actual disability determination for the Federal Government in each state.  In Maine, Massachusetts and New Hampshire, this is referred to as the Disability Determination Services (DDS).  In Maine, the office is located in the capital of Augusta, in New Hampshire, the office is located in Concord and in Massachusetts, there are offices in Boston and Worcester.    Once the case is transferred from one’s local Social Security Administration office (referred to as the District Office) to DDS, a disability claims examiner (or adjudicator) is then assigned to work on the case.  They are given the task of  ensuring that all of the relevant treatment records are obtained that are both listed in your application or that are subsequently pointed out to DDS by the claimant or their representative.   The DDS adjudicator is not, however, provided with the responsibility of obtaining helpful documentation from one’s treatment providers that might support a finding that one either meets a medical listing of impairment or remains disabled from performing one’s past relevant work or other work. Continue reading

In our prior blog post we discussed how important it is to obtain supportive residual functional capacity questionnaires from one’s treating physicians.  In this follow-up blog, we’ll advice you as to the best way to go about requesting these forms from your doctors.

First, and of primary importance, it’s important to understand that an ongoing, consistent and lengthy relationship with your provider should be established prior to requesting they provide you with a questionnaire.   Your doctor is more interested in attempting to treat your condition and they want to see that this remains your priority as well.

In order to establish a claim for Social Security disability, one needs to show that they remain totally disabled from all forms of gainful employment, despite prescribed treatment, for what will be a year or longer.   With this in mind, exhausting medical treatment avenues prior to seeking opinions from your physicians needs to remain one’s first priority.   Continue reading

The issue of substance abuse can come up in a variety of ways as part of a Social Security disability claim.  It might be a circumstance, very routine in this day and age, where somebody is taking too much of their narcotic medication.  Or, one might be taking medications that their friend or relative has suggested they try.  And then, there’s the very common scenario seen by our office where an individual is smoking marijuana or drinking alcohol in order to help them sleep at night.

Each of above scenarios can serve to derail a Social Security disability claim.  Understanding Social Security’s rules can help avoid the pitfalls we many times see individuals face as a result of the use of substances either not prescribed or in a manner that was not provided for by their physician(s).

There are two (2) provisions to keep in mind when considering an application for Social Security disability benefits.  20. C.F.R. §404.1530 provides that the Social Security Administration (SSA) will not find a claimant disabled if they, without good reason, fail to follow prescribed treatment.  Likewise, the Social Security Act additionally provides that one cannot be found entitled to benefits if in fact drug addiction or alcoholism is found to be a “contributing factor material to the determination of disability.”  

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To those who do not practice Social Security disability law, the acronym DLI (which stands for “Date Last Insured”) does not mean much. However, if you are looking into applying for Social Security disability insurance (SSDI) benefits, understanding this term and knowing its importance can prove critical.

The Social Security regulations require, in order for one to collect a Social Security disability check that you be “insured” for benefits. Much like one needs to pay a premium for car or health insurance in order to be insured, in the event you are in an accident or incur a medical bill, one needs to be insured at the point in time one becomes disabled from working.   One’s DLI is the last day a disability claimant (who is claiming a disability other than blindness) meets the “insured” requirement for the disability program.

The Social Security Administration (SSA) will look to see if you have earned sufficient “quarters of coverage” (QOC) much in the way an insurance carrier would look to see if you’ve paid a premium in order to have coverage.   One earns a “quarter of coverage” or a “credit” based on ones Social Security taxed earnings in a particular year.  In 2017, a quarter of coverage or a credit is earned for each $1300.00  in Social Security taxed earnings you have posted to your Social Security record.  Thus, by working for an employer who has paid you $5200.00  (or by claiming a net profit of $5200.00 as a self-employed individual) during the course of 2017, you will accrue 4 quarters of coverage.   Continue reading

And so now you’ve been provided with your upcoming hearing date and time and you have no idea what to expect.  In part II, we’ll attempt to make you feel comfortable about the hearing process itself and what you should expect on the day of your hearing.

You can expect you’ll be provided advanced notice of your hearing before an administrative law judge (ALJ) at least 75 days in advance. Ordinarily, 3-4 days prior to the hearing you’ll receive a recorded message explaining that you should show up to the hearing an hour in advance.  It will be important to read carefully the notice of hearing you’ve been provided in the mail months in advance as it will contain important information such as where and when the hearing will be held, the items you should bring (such as a picture ID)  and what issues will be addressed at hearing.

Upon arrival at the hearing office, you can expect to be met by a security guard who will check you in and will scan you for weapons.  With this in mind, be sure not to bring with you anything that can be construed as a weapon: whether it be mace, a pocket knife or even needles you might require for your diabetes condition (leave this in your car, and should you need to test your sugars, plan on doing this outside of the hearing office location).

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You’ve filed your Request for Hearing and now you’re playing the waiting game, wondering what to expect next in your Social Security disability claim.   Whether you’re in Maine, Massachusetts or New Hampshire, the wait can be a long one.  In part 1 of this blog entry we’ll fill you in as to what you can expect.  In part 2, we’ll make sure you understand soup to nuts what to expect on the day of your hearing.

First and foremost, it’s important to understand that whether you request a hearing following an initial denial letter out of New Hampshire, or a reconsideration denial out of Maine or Massachusetts, the hearing itself will not take place soon.  The likely wait for a hearing is in the neighborhood of what can be anywhere from 8 to 12 months with the Massachusetts and New Hampshire hearing offices (although some hearings out of the Portland, Maine hearing office are still taking up to 14 months).    Soon after you file your request for hearing (within ordinarily 2-4 weeks of filing your request for hearing) , you will receive a letter from Office of Disability Adjudication and Review (ODAR) acknowledging the hearing office’s receipt of your file.

The initial letter from the hearing office will inform you that you will be notified as to the time and place of your hearing at least 75 days in advance of the hearing. Likewise, the letter will explain to you that in some circumstances your case can be heard more quickly and efficiently by way of  videoteleconference or what is termed a VTC hearing.   Should you agree to proceed by way of VTC, this  will mean that your case will not be heard in person before an Administrative Law Judge (ALJ).  Instead, you will appear in front of a judge by way of a video camera, much in the same way that those charged with a crime and held in jail, might make a preliminary appearance before a judge for purposes of bail.     While this process may be an expeditious one for the Social Security Administration’s  (SSA’s) purpose, as they can assign and schedule cases before judges that are in other parts of the country that might not be as busy and can hear the case more quickly, this process is quite impersonal as you can well imagine.  This is not to mention the fact that if your attorney is being asked to prepare before a judge with whom he has no familiarity, this may put your attorney and you at a disadvantage.   You will be provided with only twenty (20) days to Object to Proceeding by way of VTC and so you do not want to miss this deadline.  Our office always objects.  Continue reading

One of the most typical misunderstood requirements for purposes of establishing a Social Security Disability claim is the duration requirement.  The Social Security Act and its corresponding regulations require that one prove they are suffering from a severe medical impairment that has lasted or or expected to last 12 months or longer, or result in death.   This provision has been interpreted quite strictly, and for anybody who is considering an application for Social Security disability benefits, it’s important to pay heed to this rule or a denial is very likely to follow.

The Social Security Act defines a “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”   42 U.S.C. §(d)(1)(A).    It is important to recognize that the language of the statute is meant to exclude from entitlement conditions those conditions which are of shorter term duration, and which will allow one to return to work within a matter of months.  For example, while having back surgery (even a multilevel fusion) may constitute a severe impairment which will cause one to be out of work for a stretch of time, most such surgeries would not anticipate a recovery time of a year or longer.

The more difficult type of situation comes about with conditions that may have periods of remission (with, for example, periods of exacerbation) which require you to remain out of work for stretches of time but might allow for returns to work for stretches of time.   In such a circumstance, one may still be able to reach the duration requirement of a year or longer by establishing that the attempts to return to work are what are deemed to be unsuccessful work attempts: this is something an experienced Social Security disability lawyer will be able to evaluate for you. Continue reading