I Need to Appeal to a Judge
I Need to Appeal to a Judge
About the Process
Your Initial Application for Social Security Disability (SSD) benefits was denied. You filed your Request for Reconsideration. Suddenly, you receive another decision and the news is once again bad. Don’t fret just yet. The Agency approves only roughly 11% of Reconsiderations that Americans file. Based on our experience, absent some significant piece of medical evidence that they missed in the Initial Application phase, or an appreciable worsening of your condition, the Reconsideration is generally just a rubberstamp of the Initial Claim denial.
Once again, although SSA regulations assume you received the correspondence five days after it was printed, that may not necessarily be the case. If it’s not, you need to act quickly, and call us immediately because you only have 60 days to file a Request for Hearing.
Don’t try to appeal on your own!
Just because the ALJ denied your claim, don’t give up hope. While the SSA regulations authorize the Agency do adopt the prior unfavorable ALJ decision in a subsequent claim, that’s not a hard and fast rule. If your Date Last Insured (DLI) has not expired and you’re still insured for Disability, we should be able to re-file. In addition, if you’ve aged since the last denial and your current age puts you in a different “Grid”, we should file a new claim. Finally, if your medical condition worsened since the ALJ decision, we should definitely re-file.
While searching for a Social Security Lawyer Rob called SSLG just as the US was getting out of the Pandemic. His story was as unfortunate as it was compelling. In 2018, he had filed a previous Social Security Disability claim unrepresented. As expected, the Disability Determination Services (DDS) denied his claim both Initially and on Reconsideration. Regrettably, he attended the ALJ hearing on his own, and the ALJ denied the case.
We’re proud of the success we achieved for our client below. He called us in August 2021 almost a year after the expiration of his Date Last Insured (DLI). Like most American’s he had no idea what Date Last Insured means. When he told us what happened after his ALJ hearing, we were outraged. He wanted to file a new Application, but this time he wanted representation. We immediately filed a new, Initial Application, and specifically included language protecting the record and motioned for a re-opening of the prior claim. As usual, the SSA Field Office (FO), and the Disability Determination Services (DDS) ignored our motion, and denied the claim as the Date Last Insured had expired.
What follows is a prime example of the difference between experienced Attorneys who know what they’re doing, those who dabble in SSDI law, and non-attorney “advocates”.
What Do We Do Now?
From here, we have to formally file a Request for Hearing in front of an Administrative Law Judge. If you’re an existing client of ours, we’ll take care of this task. If you have been updating your medical provider Visit Summaries within our Status Star mobile app, we can quickly assemble the information we will need to appeal using our proprietary Status Star Appeal Wizard. If you’re getting us involved for the first time, we need to update your medical profile in Status Star immediately. Don’t wait, call us today.
Once we receive the necessary forms and we have updated your medical profile, we will file your appeal online through SSA’s website on your behalf. From there, your file must make a safe journey from your local SSA Field Office to your designated SSA Hearing Office. SSA has called it many names and acronyms in the past, like Office of Hearings and Appeals (OHA), and Office of Disability Adjudication & Review (ODAR). Today, in 2020, it’s now called the Office of Hearing Operations (OHO). Our home page will provide a map indicating which OHO will handle your Hearing if your case progresses to that stage.
Once your local SSA Field Office receives the electronic appeal, they will assemble the file and forward it electronically to the appropriate OHO. From there, you’ll receive a receipt in the mail confirming that your appeal has made the journey safely. Inside that receipt, they will give you the option of selecting a Video Telephonic Hearing (VTC). Our recommendation is that you decline a video hearing and opt for an in-person hearing. Now given the current state of affairs with the COVID-19 pandemic, we believe just about all hearings for the remainder of 2020 (and maybe a good portion of 2021) will be telephonic. The good news is that there are shorter wait times for telephonic hearings. The bad news is that we believe you lose quite a bit of the formality and context that comes with an in-person hearing.
Once your case is docketed at the Hearing Office, it will work its way through several stages, including: Unassigned, In Workup, Assigned to a Judge, and then Ready to Schedule. As your attorneys, we have access to your electronic profile under a program the Agency calls Electronic Records Express (ERE). Once we have access to ERE, we can then go into your electronic file, review the medical records, discuss with you some of the entries in the medical records, and then start working-up your file for the hearing.
As a client of ours, the workup will be much easier if you have been diligently updating your medical provider visit summaries within Status Star. We will then contact you and establish the medical sources and treatment that you received since you filed the Request for Reconsideration. We will also reach out to those medical sources to get updated medical records. In many cases, we will tailor medical questionnaires that apply to your specific diagnosis. For example, if you have a condition known as Myasthenia Gravis, we will send your treating neurologist a questionnaire which addresses that specific diagnosis and the unique limitations that such a diagnosis typically produces. These become very helpful in proving your disability.
In the past, hearings would be assigned to an Attorney Advisor at the OHO who could approve the case on-the-record (OTR) without the need for a hearing. While on-the-record decisions have sharply decreased over the years, they are making a uptick/comeback with operational changes brought on by the COVID-19 pandemic.
Once your case is scheduled, the SSLG Attorney assigned to handle your hearing will contact you to introduce himself or herself and discuss a hearing overview. This call is the first of many steps of adequate preparation that are critical and necessary for a successful outcome. As we stated earlier, we will not “farm-out” your hearing to a local Attorney or non-attorney “advocate” as a cost-saving measure, which we see occurring all the time. Our Attorneys are seasoned employees with an average of 10-years’ experience. We don’t use independent contractors or per-diem lawyers to guide you through one the most important days of your life.
In addition to prepping you over the phone and meeting in-person the day before the hearing, we use multimedia tools to educate and inform you about how the hearing will work, the important aspects of your testimony, and the exchange between the SSA experts.
At the hearing, the Judge will ask you questions about your work history, your medical history, and what you do on a typical day. Statements that you made to your treating sources way back when will be critical in this analysis. Entries that you made in your Function Reports about what you do on a typical day will also be critical in this analysis. All of these will be covered with you in detail as we prepare for the hearing. In fact, if you’ve been a client of ours from the start, all of this content will be shared with you at the earliest stages in the process.
After you’re done testifying, the Judge will turn to the Medical Expert (ME) if he or she has called one to testify. The Medical Expert is generally semi-retired, and if you’re lucky, he or she will have relevant and extensive experience treating your particular ailment. Depending on your disability and the uniqueness of your condition as it relates to other diagnoses, we too may make a Motion to have a Medical Expert testify at your hearing.
We have made many Motions for particular Medical Experts to appear and testify at ALJ hearings because we believe their medical specialty and unique experience is particularly relevant to a claimant’s complicated medical history. If our Motion is denied or ignored, which generally is the case, that raises another issue for appeal. Increasingly, Judges are using less and less Medical Expert testimony. When they do testify, it’s usually by telephone. The Medical Expert will be asked if your medical condition Meets one of the Social Security listed impairments (“Meets a Listing”). This means that in the Medical Expert’s opinion, your specific diagnosis is severe enough to meet all of the published criteria of a specific and particular Social Security Listing.
The Judge will also ask the Medical Expert if the combination of one or more specific diagnoses will Equal a Listing. This is a different finding than Meets the Listing. An Equals finding means that no particular diagnosis is severe enough, or has satisfied all the criteria for meeting a particular Listing, but the combination of the different diagnoses and their resultant symptoms and activity restrictions are functionally equal to one of the listed impairments. The Medical Expert will have to specifically denote which particular Social Security Listing he or she believes your medical conditions equal.
If the Medical Expert testifies that your condition neither meets nor equals the Listing, the Judge will then ask the Medical Expert to provide what the expert believes is your residual functional capacity. The Medical Expert tends to be eager to comply with such a request. On-demand, without having ever examined you – much less having actually treated you, he or she will determine that you have the capacity to physically endure Sedentary work (a sit-down job) – whether your treating doctor agrees or not. He or she may then testify as to whether in his or her opinion you can endure Light work (light exertional capacity such as required of a fast food chain cashier/attendant). The Judge will then turn over questioning in cross examination to your Attorney.
This is where the rubber meets the road. Your attorney had better know the record and be able to point out by Exhibit and page number all of your subjective complaints, and how they are consistent with your diagnoses. Historically, this is not something a per diem lawyer or non-attorney “advocate” takes the time to familiarize him or herself with. A good Attorney representative absolutely will take the time to really get to know the record and be prepared for this. Unfortunately, per diem attorneys (independent contractors) can’t afford to do this adequately because they’re often being paid a smaller appearance fee just for showing up. Proper hearing preparation can require hours and is much harder than it appears.
By the way, if your case is pending before the OHO, and you’re not sure what the arrangement is with you and your current Representative, we recommend you search for any initial documentation that you were asked to sign at the start of the representation process. You would have been asked to sign a Form SSA-1696, and a Fee Agreement. The SSA form 1696 contains a box in Part 2 that reads: Check one. The 3 choices are:
- I am an Attorney
- I am a Non-Attorney eligible for direct payment under SSA law
- I am a Non-Attorney NOT eligible for direct payment
If either of the bottom two are checked, you have officially hired an advocate, not an Attorney to represent you. In addition to those two forms, there should be some document such as a formal disclosure outlining the scope of work, who will do what, etc. We call it our Attorney/Client Memorandum of Understanding. Others call it an “engagement letter”. If this letter doesn’t fully, clearly, and accurately explain what the relationship looks like between you and your representative, and whether he/she is a lawyer or not, give us a call. You may have been bamboozled. It should also explain to you what will happen if your case progresses to the SSA hearing. If it doesn’t, give us a call. We can help you decipher it.
Let us return to the analysis. One expert who is just about always at your hearing will be a Vocational Expert (VE). This Vocational Expert will be asked questions about your past work and the Judge will ask he or she to clarify and classify your past work under the Directory of Occupational Titles (DOT). He or she will then testify as to whether your job duties and functions are consistent with the DOT or if they vary from the DOT. This is called a “conflict,” and it’s very critical if this is raised. Because if the conflict is raised, it must be resolved. And believe us, the Judges are getting good at this, as are the Vocational Experts.
From there, the Judge will ask the Vocational Expert a series of hypothetical questions. These hypothetical questions will provide limitations, and work restrictions, that the Judge believes are reasonably accurate based on your testimony and medical evidence. Or, he or she will provide the work restrictions that the Medical Expert noted. Next, the Vocational Expert will reply based on those hypothetical questions and restrictions whether you can return to your past work. If the answer is: “No” by no means are you home free or guaranteed to be awarded benefits. The Judge will then ask if there are other jobs that exist in significant numbers in the national economy that such a hypothetical person could perform and endure given those limitations and restrictions.
If the answer to that second question is: “No” again, you’re almost home free. The Judge may then modify the hypothetical, and remove restrictions, or clarify others. From here, the Vocational Expert will list jobs which exist in significant numbers in the national economy which he or she believes the hypothetical person is capable of performing given those limitations. Quite often, those jobs listed will be in conflict with the Directory of Occupational Titles for that particular job.
Once again, it’s here where the rubber meets the road. It is the ALJ’s duty to resolve that conflict. The Vocational Expert is itching to testify that the conflict is resolved:…… ”based on my experience placing people in different jobs…” Not so fast! On-demand, upon questioning from the Attorney, he or she is required to specifically answer the question as to where such a person was placed whose job requirements were in conflict with the DOT description. The answer is almost always the same: “…at Goodwill”. Yes, that Goodwill. The place where you bring things you don’t want anymore and you wish to donate. This is not nearly sufficient enough. The attorney must continue. A perfect example of this analysis can be found in an 11th Circuit case called: Lindell Washington v. Commissioner Social Security Case 17-13649 (Oct. 29, 2018). We like this opinion because it gives the reader an example of the intricacies involved in the interplay between the Attorney and the Vocational Expert trying to resolve any conflict that exists between your past relevant work and the requirements of jobs as listed in the DOT that exist in the national economy. Once again, this cross examination is much harder than it looks.
In short, the Judge can pose the hypothetical in any manner he or she wishes, and that hypothetical question, will provide the basis of the Vocational Expert’s answer, and of course the ultimate question of your disability. Still think you can do this on your own? Be sure you’re coming to the hearing with the right team.
Don’t try to appeal on your own!
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