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Hearing Delays Result in Increased Danger to Judges

Recently, I represented a claimant afflicted with cancer who clearly met Social Security’s definition of disability – she had a medically determinable condition that precluded substantial gainful activity and her condition had lasted 12 consecutive months and was longstanding in nature.   The judge assigned to this case is a no-nonsense person who took no more than 5 minutes to conclude the hearing.

Angry claimant threatens Social Security judgeIn the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.”   This time, however, he closed the case without saying anything.   After the recording equipment was turned off, he asked my client to leave the room but asked me to stay.  He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case.  I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”

Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings.  The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch.  As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.

In state and federal courts, you find baliffs and court personnel who provide security to judges.  In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room. Continue reading →

Discover How Disabled Veterans Can Optimize Social Security Disability Benefits

Utah Social Security and Veterans Disability Attorney
Joel Ban

Attorney Joel Ban, a Utah lawyer who handles both Social Security disability and Veterans Disability claims recently posted a concise and informative article on his blog describing the similarities and differences between the two programs.  Joel points out that a VA disability rating of 70% or higher can help your Social Security claim – this confirms my experience that Social Security judges will give weight to VA disability findings.

Joel was kind enough to give me permission to reprint his article in its entirety, which I have done below.

VA Disabiltiy and Social Security DisabilityThis article is an overview of the highlights of the major topics for Veterans who have both Veterans Disability claims as well as Social Security Disability claims. A lot of Veterans may have both Social Security and Veterans Disability Claims going on either at the same time or may have received one benefit before applying for the other. VA compensation, aka service connected disability is not based on income so you can definitely receive VA compensation and Social Security Disability (SSDI) at the same time. There is also VA pension which is a needs based program, very similar to Supplemental Security Income (SSI). VA pension will be paid to Veterans if they have very little or no income and are disabled based on non service disabilities. It is possible to receive SSI and VA pension at the same time. Based on your circumstances its best to qualify for both VA compensation and Social Security Disability since they generally are the more generous benefits, however its important to be aware of these other needs based programs.

Major Differences between the Programs

Major differences between Social Security Disability and Veterans Disability is that you don’t need a total disability in order to be eligible for VA compensation. In fact, most Veterans who receive VA compensation do not receive a total disability rating. Veterans can receive a compensable rating as low as the 10% level and can have a rating as low as 0%. In many cases it makes sense to go for a 0% rating even though its not compensable. The reason for this is that it will mean that the Veteran at least has a service connected disability that will likely deteriorate into a more serious problem and later morph into a compensable disability. Many Veterans have trouble proving service connection but with a 0% rating the Veteran will have already crossed this hurdle. Social Security Disability, conversely does not compensate claimants based on a partial loss of employability. You are either disabled or not disabled under this program. Continue reading →

More on Compassionate Allowances and Quick Determinations

Compassionate allowances and quick disability determinationsOn October 13, 2010, SSA announced new rules effective on November 12, 2010 that will allow SSA personnel to fast track disability claims.   Now there are two programs that will allow SSA personnel to quickly approve cases there the medical evidence for disability is overwhelming.

The first program is called the “compassionate allowance” program, and it identifies specific diseases that produce work activity limitations that meet SSA’s definition of disability – in other words, if someone has one of these medical conditions, they would not be able to engage in substantial gainful activity and the symptoms will last 12 consecutive months or result in death.  I discussed the compassionate allowance program in a previous blog post, and you can review the diagnoses on the list by clicking on the link.

The second and newer program is called the Quick Disability Determination (QDD) program.   This program uses a computer program to analyze the electronic claim files to identify “cases where there is a high likelihood that the claimant is disabled” so that a claims representative within Social Security can approve a case without the need to review the claim with a medical or psychological consultant.  In a regular claim adjudication the claims rep, or “Adjudicator” must get a medical or psychological consultant to sign off on an approval, a process that takes time and can yield inconsistent results. Continue reading →

Can Child Claim Auxiliary Benefits if Disabled Parent Refuses to Apply?

I regularly receive questions about auxiliary Social Security disability benefits.   Often these questions are from divorced persons who are struggling with the cost of raising a child, while the disabled, non-custodial parent has not been cooperative with regard to auxiliary benefits.

Recently I received the following question:

i have a 15 yr old son. my ex husband is dying of cancer. he has not applied for ss , so i was told by ss that i cannot apply until my ex does. in the meantime we r struggling. help. -S

Here is my response:  unfortunately, there is nothing that S can do unless and until her ex-husband applies for disability benefits.  Cancer is a listing level impairment and my experience has been that SSA adjudicators and judges are more likely than not willing to grant benefits.   Further, some cancers are included in Social Security’s compassionate allowance program.  Even if the cancer is treatable, the treatment protocol often lasts 12 months or longer, so a cancer claimant can usually get a closed period even if on-going benefits are not awarded. Continue reading →

These Questions Always Get Asked at Hearings

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing.   Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

I want my client to understand the hearing procedure so he can focus on what he needs to say.  The less uncertainty about the process – the better.

In Atlanta, which is my primary area of  practice, we have two live hearing offices and one video hearing location.   Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently.  While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions.   This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing.   I know what I will want to ask, and here are the areas of questioning that I cover.   In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

  • state your full legal name and social security number
  • state your mailing address
  • how tall and you and how much do you weigh?
  • how far did you go in school and have you had any education or vocational training beyond high school?

Work background

  • are you now working?
  • have you tried to work since your onset date?
  • describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job? Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability.  What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →

The importance of doctor support in a disability claim (and why this is the case)

Doctors play a pivotal role in the social security disability process. Their contributions of expertise and documentation provide insight to an applicant’s mental and/or physical condition, and this insight may prove useful when a social security adjudicator is reviewing a claimant’s file. In essence, what a doctor’s contributions to a claimant’s disability file can influence the ultimate decision made by the Social Security Administrative Law Judge. For this reason, it is often said that medical records and documentation are the backbone of a successful disability claim, but in this post we look beyond that to discuss the logic of why a doctor’s opinions are so important.

Imagine you have a condition like migraine headaches, and you are trying to win disability benefits. Well, in this case, it may be difficult to prove something like migraines can prevent you from working. This is where the doctor comes in to save the day. If you are able to see some kind of migraine specialist or neurologist whose office notes from your visits illustrate the severity of your migraines, you are that much closer to winning your disability claim. This is why it is always recommended that you seek the services of a doctor who specializes in your condition, whatever that condition may be. A specialist’s notes may be seen by the SSA as even more credible and as stronger evidence backing up your claim.

Cardiologists, rheumatologists, neurologists and orthopedic surgeons are examples of those physicians who specialize in certain areas of medicine, and such specialty doctors should definitely be consulted with over the course of your claim. They can provide certain testing, are knowledgeable of certain procedures, and have the right skills to render a better diagnosis of your condition and judgment of how it impacts your ability to work. Having that firm diagnosis of a condition and backup from a doctor can prove so valuable in your case.

Another reason doctors play an important role in disability claims is probably because of the strict standards doctors operate under today. I read an interesting article in the Chattanooga Times Free Press, dated April 7, 2010, which is titled Doctors face board specialty ‘expiration dates’ and which discusses just how strict the standards are today for practicing doctors. The article states that prior to the 1990s, doctors who had received specialized training in certain areas were only required to obtain certification ONCE. There were no additional requirements for retesting. In essence, once a doctor was certified, he or she was certified for the duration of his or her practice. Now, however, doctors constantly face the requirement of having to take tests and participate in continuing education to renew their board certification.

This seems like good news for the disability claimant, not just because doctors are held to higher standards, but because the work and opinions of doctors are highly regarded by the SSA. Social Security Judges certainly seem to put a premium on quality medical records. But aside from that, just knowing our doctors’ skills are up to date is a reassuring factor.

To sum up, doctor support is very important in a disability claim, and this is especially the case when it comes to board-certified specialists. Their diagnoses and treatment plans not only can speed up a disability process, but also can assist in winning one as well.

Video Hearings vs. Traditional Disability Hearings: Why Video Hearings Might Be Your Best Bet

In previous posts, I have discussed at length what actually happens at a Social Security Disability hearing. However, I have failed to discuss the topic of video hearings (i.e. teleconference hearings via satellite), which are occurring more and more frequently these days as part of the SSA’s overall plan to reduce the Social Security Disability backlog. While most of you will experience a more traditional hearing in which you are actually in the room with the Judge and/or expert witnesses, some of you will undoubtedly experience the hearing in this alternative video conferencing type format, so it’s a good idea to know what it’s all about.

The ins and outs of video hearings

In all honesty, there exists only one significant difference between a typical disability hearing and one that is conducted via video, and that is the presence of an actual Administrative Law Judge (or ALJ). Instead of being physically present in the room where the claimant and his/her attorney are, the Judge may be hundreds of miles away. Although separated by miles, however, the ALJ is still able to see, communicate and observe your demeanor in real time. The ALJ is even able to zoom in or out, depending upon his or her preference. This capability allows the ALJ to view the proceedings from a multitude of angles. This is why regardless of the avenue in which a disability hearing is conducted, the guidelines for how you should present yourself remain the same. Here are a few tips on testifying and presenting your case at a video hearing:

  • Tell the truth
  • Do not exaggerate symptoms or pain level
  • Be able to describe a typical day in your life
  • Dress appropriately for your medical condition

The advantages and disadvantages of video hearings

Video hearings provide two major benefits: first, hearing dates are typically set sooner. To the disability applicant who has been waiting over a year for a hearing, the ability to have a hearing date sooner is a welcomed invitation that most applicants eagerly accept. Secondly, the location of the hearing is often closer to the location where the claimant resides. For those individuals whose medical condition prevents them from traveling long distances, video conferences are often a preferred choice if the claimant might otherwise have to travel many miles just to get to the hearing. Bottom line: video hearings provide convenience.

Typically with any advantage there is a likewise disadvantage. But as far as I can tell, the only disadvantage to a video conference stems mainly from personal preference; some claimants might simply prefer good old-fashioned hearings in which they are face to face with and in the actual room with the Judge deciding their case. Ultimately, some claimants may not feel comfortable testifying via video, whether it’s because they are not used to it or are simply principled against it. But having been involved with many video hearings, I can say that it is easy to get used to very fast – even within minutes. So I recommend having an open mind about the video hearing if you come to find out that yours will indeed be taking place via satellite.

A final point that should be made is that the claimant is the final decision maker in whether a hearing is conducted via video hearing or not. It is your choice. While some attorneys and clients welcome the idea of video hearings because it speeds up the disability process, there are those attorneys and/or clients that do not feel comfortable with the ALJ not being physically present in the same room as the claimant. So, if you are opposed to a video conference and prefer a traditional disability hearing, simply voice your objection and a hearing date will be scheduled when available. However, please keep in mind that when a hearing has to be rescheduled, it can take up to several months to reset the hearing date. So if you are already tired of waiting, it is probably a good idea to go to your video hearing and get it over with!

Video Hearings vs. Traditional Disability Hearings: Similarities and Differences

How are video hearings and traditional hearings similar?

  • Both types of hearing are done in real-time.
  • Your representative/attorney is present with you at all times.
  • The rule for cross-examining a witness is the same.

How do video hearings and traditional hearings differ?

  • The Administrative Law Judge is many miles away from the location where the claimant and representative are located.
  • The ALJ assigned to a case may or may not be a Judge common to the area. Administrative Law Judges are typically assigned to certain geographical areas. As a result, experienced representatives typically have prior hearing experience with a select group of judges. In video conferences, the judge assigned to an applicant’s matter is pooled from any number of locations. As a result, a representative’s knowledge of the assigned Judge may be limited. An advantage of being familiar with a judge is that the attorney knows his/her demeanor. They have an idea of what the judge expects and how he or she has a tendency to rule. This can be a major advantage in preparing for and presenting a case.
  • The Vocational Expert and/or Medical Expert may or may not be present at the location where the judge is conducting the hearing.
  • Traditional hearings take longer to schedule, whereas video hearings are scheduled more quickly.

Final assessment on Video Hearings

In closing, if you are given the option of having a video hearing in your matter versus the traditional hearing where all parties are present in one room, consider your options carefully and then discuss your thoughts and concerns with your representative. Most seasoned representatives feel comfortable in either situation. Choosing to have your hearing conducted via video will more than likely result in you receiving a decision more quickly. For most, this is exactly what is needed since it can take so long to get to the hearing level in the first place. My advice: be open-minded; there is really nothing to fear about a video hearing.

Vocational Expert FAQ: Everything you need to know about the VE

You have received notice of your hearing date from the SSA. You are going through all the paperwork when you come across a piece of correspondence indicating that a vocational expert (VE) witness will be present at your hearing.  ‘What is a vocational expert witness?,’ you may wonder. In case you have never heard of the VE, you have come to the right place. Below find everything you need to know about the vocational expert witness.

What is a vocational expert?

In September 1962, the vocational expert program was established. Since then, vocational experts have testified in approximately 25,000 disability cases at the appellate level. In a disability hearing, the expertise of a vocational expert is customarily used and is the result of an Administrative Law Judge’s request. In fact, vocational experts (VEs) appear more in disability hearings than medical experts (MEs). Vocational experts are professionals with vocational expertise who evaluate residual functional capacity ratings to ascertain if there are jobs in the national economy that a disability applicant can do. In essence, vocational experts testify about work abilities. A vocational expert is not an agent of the Social Security Administration. As an independent party, vocational experts are to remain completely objective and impartial in expressing their opinions.

What is the role of the vocational expert?

Incorporating their knowledge and experience, vocational experts are able to provide an overview of the types of work a claimant has performed over time. In most cases, vocational experts review fifteen years of an individual’s work history.

Why is a vocational expert needed to testify?

Most often, the Administrative Law Judge solicits the testimony of a vocational expert because he/she has questions that need to be answered and feels that the claimant’s testimony alone will not be sufficient to provide the answers needed. Having a vocational expert testify should not be inferred as being good or bad. Again, a vocational expert’s presence and testimony often indicates the personal preference of the ALJ. While some judges rarely request the appearance of a vocational expert, some do regardless of how clear-cut and simple a case may be.

How is ‘work’ defined? Are there different levels of ‘work’?

Yes, the types of work are broken down into four categories. They are as follows:

Heavy work – having the ability to lift or carry one hundred pounds occasionally and fifty pounds frequently, and to stand and walk six to eight hours per day.

Medium work – having the ability to lift or carry fifty pounds occasionally and twenty-five pounds frequently, and to stand or walk six to eight hours per day.

Light work – having the ability to lift or carry twenty pounds occasionally and ten pounds frequently and to stand or walk six to eight hours per day; or,

Sedentary work – having the ability to lift no more than ten pounds at a time and occasionally lift or carry small articles. Sedentary work usually refers to work that is done while sitting. The claimant must also have the ability to sit up to two hours out of an eight-hour day to be able to perform sedentary work.

In considering the above descriptions, it is important for the disability applicant to understand the meanings and usage of the words ‘occasionally’ and ‘frequently.’ Occasionally is the ability to lift or carry less than one-third of the time in an eight-hour period. Frequently is an individual’s ability to perform at the same level at least one-third of the time in an eight-hour day.

What types of training and qualifications are required of a Vocational Expert?

Different from medical experts, which are an additional source of experts available to aid Administrative Law Judges in rendering decisions, the training and qualifications of a vocational expert are varied. While some vocational experts may have a background in psychology, others may have experience in vocational education, counseling or rehabilitation.

Is the disability claimant privileged to communications between the Administrative Law Judge and Vocational Expert?

Yes, claimants and their attorney are both able and should receive a copy of any written correspondence between the vocational expert and the Administrative Law Judge assigned to the applicant’s case.

Are vocational experts subject to cross-examination?

Any witness who is called by an opposing side and presents testimony is subject to cross-examination. This process affords the disability attorney to ask new questions or to seek clarification on answers already interjected. Vocational experts are no exception to the cross-examination rule. Since a vocational expert has proffered an opinion as to an applicant’s job capabilities, he/she is subject to cross-examination.

Is there any way to know whether a Vocational Expert will be present at my hearing?

A couple of weeks prior to a hearing, your attorney and/or representative should receive a witness notice. The witness notice will list all individuals the Administrative Law Judge has requested testify in your matter. If your attorney has not received a witness list, your attorney should call the ALJ’s office and ask about experts. A word of caution, claimants should never personally contact any expert witness.

When do vocational experts normally testify during the hearing?

The vocational expert can obtain information primarily in three different ways. First, information is gathered when reviewing the claimant’s file prior to hearing. Second, the vocational expert obtains additional information through the oral testimony of the claimant as well as other individuals who testify during the proceedings. The third avenue and probably one of the most important means in which a vocational expert accumulates information is through observing the disability applicant during the hearing. Observation may yield clues regarding appearance, responsiveness, general intelligence, communication skills, and other claimant characteristics. It is during this time that vocational experts will note any physical capacities, such as the use of limbs or prostheses, or physical endurance. As a result, the vocational expert is usually the last to testify.

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