Thursday, January 8, 2009

Initial SSA Decisions

The Social Security Administration delegates the responsibility for making the initial decisions on applications for Social Security Disability (“SSD”) benefits to state agencies. A decision that denies SSD benefits is called a Notice of Disapproved Claim (“Notice”). The Notice normally contains a half page explanation to justify the denial. It is more the rule than the exception that the explanation contains patently false information.

I have learned not to ignore the obvious when submitting an On-The-Record request for a fully favorable decision (“OTR”) that seeks to reverse a Notice. I find that an OTR is more likely to be approved when the defects in a Notice’s explanation are highlighted. A recent OTR approval illustrates this point.

One of my clients is a 41 year old custodian. The Notice’s explanation in his case falsely claimed that the state agency reviewed all the medical evidence submitted. However, the Notice showed that the state agency failed to review the reports and functionality assessments of the claimant’s treating doctors as well as his lumbar MRI. The conspicuous absence of the MRI was striking.

The MRI showed that every single disc is desiccated. Moreover, the MRI revealed a herniated disc at the L4-5 level indenting the L5 nerve root, a bulging disc at the L5-S1 level impinging the L5 nerve root with a superimposed disc herniation impinging the S1 nerve root. I argued that based on the state agency’s failure to consider the MRI the denial of SSD benefits had to be reversed because the MRI obviously supported the treating doctors’ opinion that the claimant could not do sedentary work.

It is impossible to know the exact reason why an OTR is approved. Nonetheless, a greater percentage of my OTRs have been approved since I started to attack the defects in the Notices. It appears that explicitly attacking the Notice’s explanation makes it easier for the hearing offices to justify approving an OTR.

1 comment:

Gordon Gates said...

Thanks for this post. I have also found that the explanation in the notice often contains inaccurate information or makes no reference at all to critical evidence supporting the claim.

I really like your idea to highlight the defects in the state agency decision when making an "on the record" request. I have always treated an OTR as a de novo review of the case. However, your idea is inspired. My next OTR will contain an argument about the defects of the state agency decision. Thanks!