Articles Posted in The Administrative Procedure

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As a practicing Social Security disability lawyer handling claims throughout New England for the last 35 years, I have seen a number of changes to the Social Security disability program. For the majority of that time, from October, 1999 up through 2018, New Hampshire has been anomaly in terms of the appeals process as compared to Maine and Massachusetts, having been designated a prototype state (along with 9 other states) whereby the reconsideration appeal process was eliminated and a denied claimant could proceed straight to hearing.

In evaluating the pros and cons of reinstating the reconsideration process as of January 7, 2019, it certainly is important to take a hard look at the numbers associated with what have been the approval and denial rates at each stage of the process. Likewise, it’s important to understand the practicalities of the review process itself at reconsideration process, and to what extent it may or may not serve a useful purpose.

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The Social Security Administration has promulgated a set of rules of professional conduct that your Social Security representative must follow during the course of their representation.   While one might think these rules are meant simply to protect the public and disability claimants from unscrupulous rules, in fact the rules are meant to protect the integrity of the Social Security disability fact finding process and ultimate administration of disability benefits to those disability claimants truly in need.

The Social Security disability regulatory process used to determine which Social Security disability claimants meet the definition of “disabled” under Social Security’s rules is not what one typically sees in a court room, or for that matter on TV, depicting a court room.  Instead of it being an “adversarial” process where opposing sides argue it out in front of a neutral judge who is meant to be an arbiter of a dispute, the Social Security disability determination process is an administrative one that is a fact finding process where there is only one side arguing their position to a neutral judge who is meant to be a neutral finder of fact.

On April 20, 2015, the Social Security Administration (SSA) put into effect new adverse evidence regulations which laid out both an attorney’s, and a disability claimant’s, obligation to submit evidence.  Prior to those rules going into effect, the professional rules required claimants and their representative to furnish medical and non-medical evidence that is “material” to a determination of disability.   However, given this rule allowed attorneys to make a legal assessment as to what constitutes “material” evidence, the new rule clarified any ambiguity by requiring both lawyers and their disability claimants present any evidence, medical or non-medical, which “relates” to their disability claim.

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The Social Security rules and regulations provide a disability claimant with a number of opportunities to appeal should one be denied.   Following an initial denial, a Maine or Massachusetts Social Security disability claimant would appeal the decision by way of filing a Request for Reconsideration  and then, upon further denial, by way of a Request for Hearing before an Administrative Law Judge (ALJ).  A New Hampshire disability claimant, however, gets to bypass the reconsideration process and proceed straight to an ALJ hearing.

Once denied at hearing, claimants may then bring further administrative appeal before the agency (that is, the Social Security Administration (SSA)) by way of a Request for Review of Hearing Decision/Order before the Appeals Council. A denial by the Appeals Council, however, exhausts one’s administrative options.

At the point in time of an Appeals Council denial, a Social Security disability applicant has exhausted their administrative options.  It is important note that the failure to pursue further appeal of the ALJ denial at hearing will result in that decision becoming final under the doctrine of Res Judicata (which means the “matter having been decided”).  Should this take place, it becomes  very difficult, if not impossible, to bring a new claim that would succeed in providing you with benefits prior to date of the ALJ denial.   There are few exceptions to this rule of finality.

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We frequently represent individuals in Social Security disability claims who are suffering from the effects of Post Traumatic Stress Disorder (PTSD), in circumstances that many times involve military Veterans who have served our country.  This may result from involvement in armed conflict or as a result of military sexual assault.  Just as likely is the circumstance where an individual is suffering from PTSD as a result of trauma that they may have experienced from physical or emotional abuse during childhood, in a domestic violence situation or as a result of a crime of violence.

The effects of PTSD can be significant and crippling in terms of one’s ability to function from day to day at home (nonetheless in a work setting).   And yet, understanding the type of treatment and proof required to satisfy the requirements of the Social Security regulations may not be so obvious.

Just as with every manner of Social Security disability claim, it’s important to show that one is suffering from a severe medically determinable impairment which, despite prescribed treatment, has caused one to remain disabled from any manner of gainful employment for what has been, or will be, a year or longer. Continue Reading ›

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There are a number of important considerations to keep in mind when suffering from a seizure disorder as you consider applying for Social Security disability benefits whether you’re in Maine, Massachusetts or New Hampshire.  Understanding how the Social Security Administration (SSA) analyzes such claims can help avoid unexpected surprises down the road.

As with any disability claim before SSA, it is important to understand that one needs to prove that they are suffering from a medically determinable impairment (MDI) that remains severe and disabling, despite prescribed treatment,  for what will be a year or longer.  There are two different ways to qualify for benefits: one is to prove that you meet one of Social Security’s medical listings of impairments  (at step 3 of the sequential evaluation process).

Social Security listing 11.02 addresses epilepsy (seizures) and requires documentation of what are referred to as dyscognitive seizures or generalized tonic-clonic seizures.  Dyscognitive seizures were formerly referred to as “partial complex seizures” for what are deemed to be focal seizures with altered awareness.   These are seizures that involve altered awareness or responsiveness (such as what is also called a petit mal seizure).  The other type of seizure referenced within the listing, generalized tonic-clonic seizures, refers to the type of seizure that involves loss of consciousness and violent muscle contractions.

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The Social Security process is a complex and cumbersome process to say the least.   Without the guidance of a capable Social Security lawyer, it can become overwhelming trying to understand why things are happening the way they are, especially at your hearing.  Why the Administrative Law Judge (ALJ) is turning to a vocational expert in the first place can be confusing.  Even more upsetting to a claimant can be when you hear that vocational expert testify that you can be returning to a job such as a surveillance system monitor (with most wondering what that job even is).

For the ALJ to call a Vocational Expert (VE) to testify is a quite common practice  These individuals are considered experts in the field of vocational placement of workers, with knowledge of the employment landscape both regionally (where the claimant resides) and in the national economy.

The purpose of having a VE at your hearing is to provide the presiding ALJ with an assessment of the types of past work you have performed (within the 15 year period prior to becoming disabled, called your past relevant work), your educational background and the extent to which you have acquired skills that might transfer to occupations other than what you may have performed in the past.   They are then called to testify as to the availability of jobs either regionally or in the national economy that might be available for someone such as you (that is, based on your particular vocational background). Continue Reading ›

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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 ›

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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 ›

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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 ›

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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 ›

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