DisabilityAppeal.com

Oftentimes it is not wise to solely rely upon your regular attending physician (”treating source”), but to also utilize outside experts early on during case development on a disability claim, or when preparing for a Social Security disability appeal. However, since an independent medical examination (”IME”) is usually quite expensive, timing and strategy should be taken into consideration. In terms of the former, it is best to do one prior to the expiration of the date last insured and when a disability hearing is first requested. Also, when an appeal is remanded back from the Appeals Council for another hearing. A good strategy is to use an IME when you have only one treating supportive doctor, or when they are only a general practitioner. Then you want to seek out an IME from a board certified specialist related to your impairment. Second and third opinions, if you can afford them, are also helpful. Make sure you choose the right specialist however, given your physical/mental impairment or combination of the same. An unrelated specialist’s opinion will carry little if any weight during an appeal and won’t help much in winning disability benefits. Remember, you are trying to bolster your treating source’s opinion. If you haven’t seen your regular physician in some time, go back there first before an IME. Longitudinal doctor/patient relationships are afforded much more weight by the Social Security Administration in SSDI and SSI cases than one time examinations. This principal applies equally with independent medical examiners. If you have seen one before and received a favorable report, but a lot of time has past, go back for an update. Finding the right doctor isn’t easy. That’s why a competent disability attorney will already have a list of approved specialists available.          

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After your impairments have been substantiated, age, education,  work experience and residual functional capacity (”RFC”) are the final elements considered by the SSA Administrative Law Judge in determining your eligibility for Social Security Disability Income benefits. You are at this point because you failed to “GRID out” in an earlier assessment as to whether you met the so-called “listings.” Although the process is one of steps, it is important that your disability lawyer understand how these concepts are interrelated to win your case. In  general terms, the older you are, lower your educational level, and less skilled your prior work experience, the higher the maximum RFC (that you are still capable of doing despite your restrictions and limitations) that can be permitted for a disability finding. Sound complicated? It’s actually quite simple to the experienced disability advocate. But that is why it is essential, in the earlier steps, that your restrictions and limitations are established, not only as far as how much you are able to lift, range of motion, etc., but medication side-effects, good and bad days, and the like. Remember, although the disability hearing is supposed to be non-adversarial and the ALJ presiding over it a simple finder of fact, most take on a de facto  prosecutorial role, are often pre-disposed to denials, and will question you in such a way as to try and contradict your restrictions and limitations with your activities of daily living, concluding, after it’s all said and done, that gainful employment exists for you in the national economy.    

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Once scheduled for a hearing before a Social Security Administration Administrative Law Judge, your disability attorney should be double and triple checking all of your medical documentation to ensure that it supports your impairments, accurately reflects the period in question, and in the case of an open claim, is up-to-date. Few things anger an ALJ more than having to grant a continuance and keep the record open because “updated medicals” were never requested by counsel. In addition, your disability lawyer should be reviewing all possible questions with you, as well as the theory of your case, and, what many of them neglect to do, forward a summary letter to the hearing office in advance of your appearance, along with your medical evidence. Here is a sample of what we mean. It is unrelated to an actual case and in no way reflects the personal information of an individual. It is provided as an example only, and like all of our posts, is not intended to constitute legal advice:

Honorable ****** *. *****
Administrative Law Judge
Office of Hearings and Appeals
Social Security Administration
123 Main Street
Any Town, State 12345

Re: John Doe, S.S.# 123-45-6789

Dear Judge *****:

The above-noted individual has a claim pending at the hearing level, and is scheduled to appear before you on March **, ****. The relevant medical evidence in his file suggests a fully favorable decision can be made on the record. To assist you, a brief summary of the same is provided hereinafter.

Mr. Doe is a 37-year-old high school graduate with previous experience as a tavern owner and construction worker. With the exception of a short unsuccessful work attempt period of less than three months, he has been unable to engage in substantial gainful activity since September **, ****, as a result of several debilitating physical and cognitive impairments. These include severe migraine headaches, persistent neck pain, depression, attention deficit disorder (“ADD”), and Tourette’s Syndrome.

From June **, **** until the spring of ****, Mr. Doe was under the care of Dr. **** *****, a specialist in neurology and psychiatry in *****, PA. A review of this treating source’s office notes provide valuable insight into the history of Mr. Doe’s conditions and symptoms, as well as his compliance with all regimens prescribed.

Mr. Doe’s original intake with said treating source, dated July **, ****, reveals he suffered from daily throbbing headaches in both temples, constant pain at the back of his neck, and Tourette’s Syndrome. Dr. ***** tried various medications, to no avail. On April **, ****, he was also diagnosed as suffering from ADD. Moreover, he was treated for depression. Mr. Doe’s headaches continued throughout ****, as documented in the office notes. His medications included Haldol, Anapril, Librium, and Prozac. Office notes dated May **, **** reveal “compulsive checking rituals.”

In ****, Dr. ***** tried other medications including Chlordiazepoxide, Benadryl, Cardene, and Inderol, with little success. Mr. Doe’s symptoms continued. Said physician’s office notes, dated January **, ****, reveal headaches, as well as other medication attempts, including Depakote. Buspar and Zoloft were tried in the spring and summer of ****.

In early ****, Dexedrine was also prescribed. Later in the year, Ritalin and Adderall were added. Despite the same, Mr. Doe’s headaches continued to affect him. “Pounding headaches” were documented on May **, ****. On November **, ****, Dr. ***** noted Mr. Doe experienced deterioration in his condition. On January **, ****, said physician noted Mr. Doe was “doing poorly.” Luvox and Remiron were tried. Throughout ****, ****, and ****, Mr. Doe felt almost no relief.

On October **, ****, a rheumatologist, Dr. **** *******, of ******, PA, evaluated Mr. Doe. Said physician found he suffered from chronic pain syndrome in his head and neck, Tourette’s Syndrome, lower back pain with limited range of motion in his cervical and lumbar spine, and a positive rheumatoid factor of 51.

A Customer History Report from ********* Pharmacy, for the period January **, **** through December **, **** provides valuable insight into Mr. Doe’s care and treatment. Throughout the entire period, Mr. Doe complied with taking the medications prescribed to him. These included Haloperidol, Neurontin, Dexedrine, Prozac, Lorazepam, Ultram, Paxil, Propranolol, Midrin, Vioxx, and others.

Given the combination of Mr. Doe’s impairments, as substantiated by his treating physicians’ reports, it is clear his functional abilities have eroded to less than sedentary capacity. As a result, a finding of disability is warranted.

Respectfully submitted,

Your Attorney, Esq.

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Whether applying for Social Security disability benefits initially or appealing a case at the hearing level, your greatest chances at successfully being granted SSDI or SSI benefits relies heavily upon proper medical documentation. To that end, that means you need your treating sources (disability doctors) to complete medical narratives and impairment questionnaires that support your disability claim. A narrative report should include, at a bare minimum, the patient’s relevant medical history, the diagnosis of the patient’s medical condition, the medical basis for this diagnosis, treatment prescribed, frequency of visits, medication prescribed and the effects of the same, limitations on the patient’s activities, and the prognosis for recovery (if any), and whether the condition will exceed 12 months in duration. Impairment questionnaires are a bit trickier and should be specific to the physical or mental impairment in question. For example, a typical psychiatric/psychological impairment questionnaire will include the date of first treatment, frequency of treatment, date of most recent exam, diagnosis, DSM-IV multiaxial evaluation, prognosis, specific clinical findings broken down by symptoms, laboratory and diagnostic test results, frequency and severity of clinical findings and symptoms, functional limitations consistent with the impairments described, a rating scale of the ability to sustain activity over a normal workday and workweek, understanding and memory, concentration and persistence, social interactions, adaptation, awareness, medications prescribed including dosages, whether the patient can tolerate work stress, and comments regarding good and bad days. Your disability lawyer should have these documents at their disposal and carefully screen the same once completed before submission with your original application for disability benefits or to an ALJ at a hearing to overturn a denial of benefits. These principles are equally important for those applying for long-term disability insurance benefits. 

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Ok, let’s say the all too common scenario happens - you submit sufficient medical documentation to support your disability claim (including impairment questionnaires and narratives from treating physicians), testify credibly at the Social Security disability hearing, and are entitled to prevail  under the law. But the ALJ, for whatever reason (having a bad day, thinking the money is coming out of his pocket, etc.) denies you SSDI or SSI benefits. What is the next step your disability lawyer should take aside from explaining the denial to you and the appeals process? Request the hearing tapes. You see with the huge volume of disability hearings conducted by the Social Security Administration, having a court stenographer at each proceeding would be fiscally impossible. So they rely on tape recordings to preserve the record of what happens for possible appellate review. In many instances, once the tapes are obtained and listened to, parts of the record will be inaudible. And in a lot of cases they can’t produce the tapes at all because they have been purportedly lost (usually when an ALJ said something during the disability benefits hearing that may reflect poorly upon him). An incomplete or missing record, when noted in a legal brief sent to the Appeals Council (that should be only one of many points touched upon) results in an almost automatic sending of the case back for a new hearing. After all, how can the Appeals Council objectively review your disability appeal when part of the record is unclear or missing? This should be pretty basic stuff for any seasoned disability attorney, but you’d be surprised at how many of them overlook it.          

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While there are many different aspects involved in investigating a long-term disability claimant or individual disability insured, including IME’s, surveillances, database searches, etc., one of the most valuable tools at our disposal while working for a disability insurance company was the personal contact interview. Conducting a disability interview is both art and science, and takes a lot of training and experience to perfect. In the end it can make the difference between a claim for disability benefits being approved or denied. To our surprise, after jumping ship to the other side and representing SSDI applicants at Social Security disability hearings, we learned that the exact same questions asked during our previous disability interviews were, and continue to be, used by Administrative Law Judges. Thus, winning at the disability hearing level requires more than simply submitting medical documentation and arguing the law, but also in-depth knowledge of the correlation between activities of daily living and stated restrictions and limitations (residual functional capacity). If your disability attorney is not fully prepping you for a hearing by questioning you in great detail (for hours) about the same, taking into consideration your physical and mental impairments, you need to find a competent disability advocate fast. There are plenty of general practitioners out there who believe, as lawyers, they can take on virtually any case, but that is not reality. Think about it. If you have a sinus problem you go to an ENT, not a podiatrist who treats feet. The legal profession is no different folks. Find a disability specialist.

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Truth be told, through experience in representing clients before the Social Security Administration in disability appeals, we have learned how to successfully leverage certain aspects of the disability benefits hearing to a client’s advantage. However, that being said, prior preparation is paramount to winning Social Security disability benefits by way of an Administrative Law Judge (ALJ) decision. A few vital things to consider are noted hereinafter. Request to attend the hearing. Don’t go overboard though and consider this an acting job. Exaggerating your stated restrictions and limitations is fatal to a disability claim. Your testimony must be credible and reliable. However, consistently conveying relevant information alone is not enough. Your appearance also must serve to humanize your case and have the ALJ associate an actual face with your file, preferably a sympathetic one. Thus, it is imperative that you retain a disability lawyer well in advance of the hearing who knows how to prep a witness properly. And not just any disability attorney, but one who handles the majority of his or her cases in this area of specialization, and regularly appears before Social Security judges in your jurisdiction. Remember, a good attorney knows the law, but an excellent one knows the judge, meaning he or she understands the type of proof expected to win before the ALJ assigned to your case. Updated medicals from supporting physicians, to include questionnaires tailored for specific impairments and narratives are a must. Although a treating physician who has a longitudinal relationship with a patient carries the most evidentiary weight, if necessary, seek out a physician for an independent medical examination (IME) as well. When a claim is borderline a solid IME may help win you Social Security disability benefits. Favorable medical proof should be forwarded to the assigned ALJ and/or hearing office in advance of your disability hearing date, with a well-written summary by your disability advocate. Waiting until the date of your hearing and attempting to submit updated medicals to an already stressed out ALJ is not best practice.

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If you have filed an initial application for disability benefits with the Social Security Administration along with medical records and other supporting documentation, and received an unfavorable written decision, the next step is the reconsideration level. Keep in mind the Social Security Administration will deem you to have received the notice denying you disability benefits, within five days after the date on it, unless you can prove that you didn’t receive it within that period. There are similar time constraints during every step of a disability appeal, so it is important that you are aware of them and act accordingly. Don’t take chances. Check out SSA.gov, visit your local Social Security office, or contact a disability lawyer. For reconsideration you must complete a Appeal Disability Report and Request for Reconsideration and send them in to your local Social Security office. They will then forward them to the State Disability Determination Services office that originally reviewed your disability benefits case. Although it won’t be the same team that reviews your records the second time around, be realistic folks, because they usually just back up the original disability examiners’ decision. If you receive an unfavorable decision at the reconsideration level, the next step is to go to a hearing. Complete the Appeal Disability Report and Request for Hearing by Administrative Law Judge (ALJ) and send them into your local office. Meeting face-to-face with a judge takes a long time - in many cases years, before you actually appear at a hearing with your disability attorney. Although the ALJ is required to be neutral and detached, fair and impartial, and the hearing is supposed to be non-adversarial, many of these judges fathom themselves advocates for their agency rather than finders of fact, and are predisposed to denying you benefits (more on this in future posts). If you lose at the hearing level, the next step is the Appeals Council Review. Complete the Request for Review of Decision/Order of Administrative Law Judge and send it in to your local office. It will be forwarded to the Office Of Hearings and Appeals in Falls Church, VA. This review is on the papers. A well-reasoned brief citing statutory and case authority is essential (more later). The Appeals Council rarely grants disability benefits on it’s own. However, they will determine whether your hearing was fair, and if not, send your case back for a second hearing. Once again, this can take years, but at the very least, gives you another bite at the apple. If the Appeals Council either refuses to review your case or denies your disability appeal, the next and last step is to take your case to federal district court. There, a federal judge has the power to award you disability benefits, deny you benefits, or send the case back for another hearing.

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The Social Security Disability Income (SSDI) program is the largest involuntary insurance policy in the world. As soon as you are old enough to start working, FICA taxes are taken out of your paycheck, to provide benefits to you upon reaching retirement age, or if you become disabled. That’s in theory anyway. The truth of the matter is, if you become disabled and are unable to keep working, the very program you had no choice but to pay into for all those years will do just about everything in their power to deny you benefits. Had you been given the option of investing those FICA taxes yourself in an individual disability policy you might have been better off. That’s not to say that insurance companies issuing individual and group long-term disability benefit plans won’t give you a run for your money either. However, the big difference is, that with private disability insurance, depending on the policy, you may very well be covered for benefits if you are unable to work and perform your own occupation at the time you became disabled. With SSDI, in many instances, after considering your age, education, experience, residual functional capacity, and other factors, you can’t collect Social Security disability benefits if you could move across the country and work as a surveillance system monitor (a favorite of Social Security Administrative Law Judges and the medical and vocational “experts” that they consult), looking at a security screen all day. It really doesn’t matter that you used to be a mid-level manager in a Fortune 500 company either. The end result is, like most applicants, you will likely be denied disability benefits and have to fight for what your deserve every step of the way. That means understanding, navigating, and winning the Social Security Administration Disability Appeal Process. Here at DisabilityAppeal.com we think the way the system operates is despicable. So we are going to share a few things with you that we have learned over the years. It won’t be legal advice, but should give you a better understanding of how the disability appeals process works and help you win Social Security disability benefits.

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A new site dedicated to helping you understand the Social Security Administration Disability Appeal Process.

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