I represent a 56 year old former nurse with scleroderma, whose application for Social Security Disability (“SSD”) benefits was denied by the State agency. A State agency clerk named M. Faughnan determined that the nurse’s condition was not severe enough to prevent her from working, even though her orthopedist concluded the claimant could not work. Faughnan’s decision was particularly opprobrious because it rejected the opinion of the State agency’s consultative examiner, which supported the claimant’s disability.
On appeal, I submitted a report from the treating rheumatologist explaining that the claimant meets listings 14.04 and 14.06, which was simply the icing on the cake. The Administrative Law Judge (the “ALJ”) assigned the case approved SSD benefits without a hearing. The ALJ gave the opinions of the orthopedist, rheumatologist, and CE little to no weight respectively. In other words, there was no excuse for Faughnan to have rejected the opinions of any of those doctors.
Monday, February 27, 2017
Tuesday, February 21, 2017
More SSD Delays
by Susan Golden
Every day, potential and existing clients ask us the same question; how long will it take to get a decision on my Social Security Disability ("SSD") claim? A few years ago, our answer was an average of 6-9 months at the initial application ("IA"), and then another 6 months or so if the IA was denied and the claim had to go to the Office of Disability Adjudication and Review ("ODAR") for a hearing. Today, the answer to that question has changed significantly, and not in a good way.
The Social Security Administration's ("SSA") budget has been cut by 10% over the past several years while the number of beneficiaries it serves has increase by 13% during that time. The number of people waiting for hearings has increased to over 1.14 million people. In addition to that, there are over 3.6 million claimant's approved cases pending at the Payment Centers (where claimants' retro-active benefits are processed) which has increased the amount of time a claimant has to wait to receive their benefits.
In addition to the budget cuts, the current administration issued a government -wide hiring freeze on January 23, 2017. Between the budget cuts and the hiring freeze, the delays the SSA is experiencing will only increase. And due to the budget cuts, the SSA's plan for hiring more judges and support staff to relieve some of these delays will now be impossible. The bottom line is, expect to wait a very, very long time if you plan on applying for SSD benefits.
Every day, potential and existing clients ask us the same question; how long will it take to get a decision on my Social Security Disability ("SSD") claim? A few years ago, our answer was an average of 6-9 months at the initial application ("IA"), and then another 6 months or so if the IA was denied and the claim had to go to the Office of Disability Adjudication and Review ("ODAR") for a hearing. Today, the answer to that question has changed significantly, and not in a good way.
The Social Security Administration's ("SSA") budget has been cut by 10% over the past several years while the number of beneficiaries it serves has increase by 13% during that time. The number of people waiting for hearings has increased to over 1.14 million people. In addition to that, there are over 3.6 million claimant's approved cases pending at the Payment Centers (where claimants' retro-active benefits are processed) which has increased the amount of time a claimant has to wait to receive their benefits.
In addition to the budget cuts, the current administration issued a government -wide hiring freeze on January 23, 2017. Between the budget cuts and the hiring freeze, the delays the SSA is experiencing will only increase. And due to the budget cuts, the SSA's plan for hiring more judges and support staff to relieve some of these delays will now be impossible. The bottom line is, expect to wait a very, very long time if you plan on applying for SSD benefits.
Saturday, February 18, 2017
ODAR Rumor
The Social Security hearing office is called ODAR, which stands for the Office of Disability Adjudication and Review. There is no longer any doubt that ODAR has taken steps that reduce the number of on-the-records that get issued. Just as ODAR’s approval rates have decreased, so too have the number of OTRs ODAR approves.
Informal discussions with senior personnel at a local ODAR indicated that OTRs will no longer be approved unless there are many medical exhibits. I disregarded those assertions because I found it hard to believe that ODAR would elevate form over substance. For example, I could not believe that separating medical tests, and reports from treatment records from one medical source into multiple exhibits could make a difference. I may have been wrong.
I represent a 49 year old former nurse with back problems whose Social Security Disability (“SSD”) claim was just approved. As a nurse, the claimant was very assiduous about providing us with her medical records each time she underwent a procedure or saw a physician. Instead of amassing and submitting all evidence from a particular treating source as one exhibit, each time the claimant provided us with document we submitted it. The result was an abnormally large number of medical exhibits.
The OTR was issued by an Administrative Law Judge (“ALJ”) who historically has not done so. There have been numerous claims pending from claimants with similar or less favorable vocational factors and medical conditions that were not granted an OTR. It would appear that the ALJ approved the OTR because of the large number of medical exhibits. Maybe the ODAR rumor is true.
Informal discussions with senior personnel at a local ODAR indicated that OTRs will no longer be approved unless there are many medical exhibits. I disregarded those assertions because I found it hard to believe that ODAR would elevate form over substance. For example, I could not believe that separating medical tests, and reports from treatment records from one medical source into multiple exhibits could make a difference. I may have been wrong.
I represent a 49 year old former nurse with back problems whose Social Security Disability (“SSD”) claim was just approved. As a nurse, the claimant was very assiduous about providing us with her medical records each time she underwent a procedure or saw a physician. Instead of amassing and submitting all evidence from a particular treating source as one exhibit, each time the claimant provided us with document we submitted it. The result was an abnormally large number of medical exhibits.
The OTR was issued by an Administrative Law Judge (“ALJ”) who historically has not done so. There have been numerous claims pending from claimants with similar or less favorable vocational factors and medical conditions that were not granted an OTR. It would appear that the ALJ approved the OTR because of the large number of medical exhibits. Maybe the ODAR rumor is true.
Friday, February 10, 2017
SSD Approval Rates
In 2010, 62% of Social Security Disability claims at hearing offices were approved. That number is now about 36%. Simultaneously, Administrative Law Judges (“ALJ”s) are requesting excessive support before approving SSD claims. In short, the SSA decided or it was directed to reduce the number of claims being approved, and to justify their approvals, ALJs are required to insist of receiving superfluous medical evidence.
I represent a client who stopped working after 35 years as an accounts payable clerk when she was 60 years old due to physical and mental impairments. It should be obvious that anyone with that type of work history would continue working if able to do so. Surgical reports, EMG and MRI testing, treatment records, and opinions from the claimant’s internist, both treating and IME physical medicine and rehabilitation specialists, and psychiatrist, were all submitted to support the SSD application. Nonetheless, the ALJ insisted that the claimant provide additional treatment records before approving the SSD application.
It is unclear why cumulative medical evidence is required. It could be that the ALJ was hoping to find something in the records that could be singled out to deny the claim. It is possible that the ALJ feels pressured to provide overwhelming evidence to justify an approval to avoid her decisions from being reviewed by quality control. Regardless of the reason, what is clear is that the old status quo is gone.
I represent a client who stopped working after 35 years as an accounts payable clerk when she was 60 years old due to physical and mental impairments. It should be obvious that anyone with that type of work history would continue working if able to do so. Surgical reports, EMG and MRI testing, treatment records, and opinions from the claimant’s internist, both treating and IME physical medicine and rehabilitation specialists, and psychiatrist, were all submitted to support the SSD application. Nonetheless, the ALJ insisted that the claimant provide additional treatment records before approving the SSD application.
It is unclear why cumulative medical evidence is required. It could be that the ALJ was hoping to find something in the records that could be singled out to deny the claim. It is possible that the ALJ feels pressured to provide overwhelming evidence to justify an approval to avoid her decisions from being reviewed by quality control. Regardless of the reason, what is clear is that the old status quo is gone.
Wednesday, February 1, 2017
National Adjudication Team
Among other things, HALLEX I-5-3-21 describes the purpose of, and procedures for, attorney advisors in the National Adjudication Team (“NAT”). These attorneys select cases for review to see if they can be decided favorably on-the-record without the need for a hearing. The goal was to reduce the backlog of cases the Social Security Administration is experiencing at the hearing level.
There is no downside to your disability claim being transferred to the NAT. Either a fully favorable decision will be issued, or the case will be sent back to your local hearing office. I received such an approval today for a former teacher’s assistant.
The real question is what is the advantage of the NAT over hiring other attorney advisors or administrative law judges (“ALJs”) for the local hearing offices. It would seem more efficient for a local office that is already somewhat familiar with the case to screen out cases for OTRs. Thus, it would seem to make more sense to hire more attorney advisors and ALJs for local hearing offices, unless the number of claims meeting NAT criteria are too small at most hearing offices.
There is no downside to your disability claim being transferred to the NAT. Either a fully favorable decision will be issued, or the case will be sent back to your local hearing office. I received such an approval today for a former teacher’s assistant.
The real question is what is the advantage of the NAT over hiring other attorney advisors or administrative law judges (“ALJs”) for the local hearing offices. It would seem more efficient for a local office that is already somewhat familiar with the case to screen out cases for OTRs. Thus, it would seem to make more sense to hire more attorney advisors and ALJs for local hearing offices, unless the number of claims meeting NAT criteria are too small at most hearing offices.
Wednesday, January 25, 2017
Treating Testimony
I have always believed that the best evidence that a claimant can present to an administrative law judge (“ALJ”) at a Social Security Disability (“SSD”) hearing is live testimony from a treating physician. An ALJ typically rejects a supportive opinion from a treating physician by claiming it is inconsistent with other evidence or lacks support. An ALJ is duty bound to develop the record. Therefore, at a hearing, the ALJ would have to ask a testifying treating physician to explain the basis for his or her opinion before the ALJ could reject it for lacking consistency or support.
ALJ’s frequently ask a Social Security medical expert (“ME”) to testify in order to create evidence to contradict the supporting opinions of treating physicians. It becomes extremely difficult for an ME to do that when the treating physician is present to rebut the ME.
I represent a former cable installer whose SSD benefits were approved today. The ALJ gave equal weight to the opinions of the ME and the treating physicians, which he rarely, if ever does. I had advised the ALJ that the claimant’s treating physician would be waiting by the telephone to testify at the hearing, but it was unnecessary because the ME testified favorably to the claimant. I doubt that the ME would have testified favorably, or that the ALJ would have provided the opinions of the ME and treating physician equal weight, had the latter not been standing by to testify.
ALJ’s frequently ask a Social Security medical expert (“ME”) to testify in order to create evidence to contradict the supporting opinions of treating physicians. It becomes extremely difficult for an ME to do that when the treating physician is present to rebut the ME.
I represent a former cable installer whose SSD benefits were approved today. The ALJ gave equal weight to the opinions of the ME and the treating physicians, which he rarely, if ever does. I had advised the ALJ that the claimant’s treating physician would be waiting by the telephone to testify at the hearing, but it was unnecessary because the ME testified favorably to the claimant. I doubt that the ME would have testified favorably, or that the ALJ would have provided the opinions of the ME and treating physician equal weight, had the latter not been standing by to testify.
Tuesday, January 17, 2017
SSD Bench Decisions
Virtually every client appearing for a hearing on a Social Security Disability (“SSD”) claim asks when they can expect to receive a decision, or will the administrative law judge (“ALJ”) say what the decision is at the hearing.
It is a rare case when an ALJ tells a claimant at a hearing, that is, from the “bench,” that SSD benefits are being approved. When that happens, the ALJ frequently issues a bench decision for the fully favorable decision. The written decision that follows in a few days is shorter than a typical fully favorable written decision.
I find it surprising that more bench decisions are not issued. ALJs consistently state that they are under significant pressure to issue more decisions. Producing a bench decision takes less time and effort than a traditional written decision. I represent a former automotive repairer with a bad back and knees who received a bench decision today. I suspect that ALJs usually do not issue bench decisions because they may want to avoid having to explain at a hearing why they are unwilling to issue a bench decision to other claimants.
It is a rare case when an ALJ tells a claimant at a hearing, that is, from the “bench,” that SSD benefits are being approved. When that happens, the ALJ frequently issues a bench decision for the fully favorable decision. The written decision that follows in a few days is shorter than a typical fully favorable written decision.
I find it surprising that more bench decisions are not issued. ALJs consistently state that they are under significant pressure to issue more decisions. Producing a bench decision takes less time and effort than a traditional written decision. I represent a former automotive repairer with a bad back and knees who received a bench decision today. I suspect that ALJs usually do not issue bench decisions because they may want to avoid having to explain at a hearing why they are unwilling to issue a bench decision to other claimants.
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