Lack of Consistency Among Social Security Judges a Problem

Jonathan
January 9, 2009
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“Do I have a good case?” Inevitably I hear this question from every client I meet. I hear it again during my pre-hearing conference and I hear it again immediately after the hearing.

If you have been waiting for disability benefits for 2+ years, you don’t care about statistics, about Social Security’s re-engineering, new Judges, processes to eliminate backlogs or anything other than whether you won. And I would consider you perfectly reasonable to take this stance.

At the end of the day, however, I am not the one who makes the decision in your hearing. My job is to identify the best argument supporting your claim for disability and to ask you the right questions to present that argument to the judge. Beyond that, you can only hope that your judge is rational, reasonable and that he takes the time to listen to you. Continue reading →

How Gaps in Medical Treatment Can Result in an Unfavorable Decision

Jonathan
September 17, 2008
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Last week, I wrote a post describing a case that will be denied because of my client’s poorly worded testimony. Today, I want to continue this theme and talk about a far more common basis for hearing denials – gaps in medical treatment or absence of medical treatment.

I save hearing decisions in the cases I try. Fortunately I usually choose decent cases and I don’t have too many unfavorables, but not every case turns out to be a winner. Interestingly, when looking at the unfavorables as a group, certain trends emerged. Perhaps the most common thread had to do with gaps and inconsistence in medical treatment.

Here is the actual wording from one such decision in a case involving a woman with depression and anxiety:

Although the claimant’s anxiety is severe, she has had no significant amount of mental health treatment. Even though she has been in the Atlanta area, she has had no psychiatric treatment. Had she obtained treatment, her anxiety would not be severe. Her husband is working, so there is no apparent reason she could not seek mental health treatment if she chooses to do so.

In this particular case, the medical record was not particularly strong and the claimant’s treating doctor was unwilling to provide us with a completed functional capacity form. I find it interesting that the judge would focus on what was not there, rather than what was there. Could there be legitimate reasons why an individual would not seek mental health treatment? Is it fair to assume that the husband’s insurance would cover psychological or psychiatric treatment, or that the deductibles would be affordable?

I think that the lesson to learn from cases like this relates to the need for every claimant to build a “paper trail” of medical treatment records. Judges expect you to see your doctor regularly and to seek specialized help when necessary. If you don’t have a lot of money,you need to explore all options – local emergency rooms, public hospitals, free clinics. I think that the days are over when a claimant can win a hearing with a medical record that is less than an inch thick.

I am certain that there are many deserving claimants out there who truly are disabled, but who will be denied because the medical record is sparse. This may not be fair, but this is how the system works.

How Poorly Presented Testimony Can Result in an Unfavorable Decision

Jonathan
September 10, 2008
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Although I generally write about successful cases, I think that you can also learn from cases that don’t go so well. I tried a case recently that turned out to be snakebit. Just about everything that could have gone wrong did go wrong and this is one of the few cases where a judge announced in open court that he did not find my client believeable or credible at all.

Interestingly, my client does have significant medical problems and a long and solid work history of over 20 years with the same employer. He is also well educated with a college degree and he earned a very good living in the accounting field. After he stopped working, he made at least three attempts to return to work but was unable to do so because of significant pain. He has a clear diagnosis of an orthopedic problem and his treating doctor is recommending multiple joint replacements. All in all, this gentleman meets the profile of what I would consider to be a viable case. What, then, went wrong?

Firstly, my client did not present himself as a person who was searching for relief. He last worked in 2005 and thereafter he had only two visits to an orthopedic surgeon. Although his doctor stated during both of these visits that surgery was needed, my client did not pursue treatment. Instead, he stayed at home and sought to control his pain with over the counter medications.

I think that the judge questioned my client’s allegations of pain – there was no attempt to pursue physical therapy, there was no course of pain management, and my client was very vague about what he did during the many months that he was at home. I believe that the judge saw my client as a man who sat at home watching TV, making no effort to explore options that might improve his condition.

When the question was asked why he had not had his surgery, my client responded that he was “waiting for the result of this hearing” before having surgery. This was clearly not a good answer. The implication of this answer is that my client could have had the surgery and pursued a recovery but instead, he decided to wait at home and collect Social Security. This demonstrates the wrong attitude.

Although I tried to rehabilitate my client by getting him to testify about his fear of surgery and possible complications, the judge remained focused on my client’s linkage of his disability hearing to his surgical options. Social Security judges cannot hold it against a claimant for refusing to undergo invasive surgery but a judge can hold it against a claimant whose decision not to pursue surgery was motivated by a desire to collect from SSA.

My client tried to raise the issue of money – that surgery was expensive, but the judge shot that down by pointing out that my client had very good insurance coverage through his wife and that his out of pocket cost for surgery was nominal.

The judge did not even raise an issue that I saw in the record – namely that my client smokes 3 packs of cigarettes a day, which means that (1) he spends money on a harmful habit that could otherwise be applied to his out of pocket medical costs; (2) he lowers his chances at a successful surgical outcome as smokers frequently experience longer recovery times and less favorable results; and (3) there was no suggestion in the record that my client is trying to stop smoking.

The judge’s disgust with my client was very evident, and the judge did not even go through the exercise of asking any questions of the vocational witness. I expect that the decision will be an unfavorable decision based on a finding that my client lacked credibility.

What could my client have done differently?

First and foremost, he should have made some good faith effort to seek relief from his symptoms. If he was not ready for surgery – and most judges understand if you hold off on major surgery that does not guarantee results – he should have sought pain management treatment or physical therapy to strengthen himself.

My client could have used his condition as a diabetic and as a smoker to improve his chances. Diabetics often have trouble recovering from surgery and he could have referenced his diabetes as a reason for not wanting surgery. Had there been evidence that he was trying to stop smoking he could have referenced his difficulty in quitting despite a sincere effort as another reason to delay surgery.

Finally, my client should have presented himself as a person who was applying for disability because he was not able to work despite a true desire to support himself and his family. Workers do not leave high paying jobs with pensions and benefits to sit at home and collect Social Security. He should have made it clear that Social Security was his last resort and that he would return to work immediately if his condition warrented.

Alas, even cases with potential do not go as planned. I think that my client is an example of a person who very well might be unable to work, but he presented himself so unconvincingly that he will not receive benefits.

How do Vocational Witnesses Prepare for Your Hearing?

Jonathan
August 6, 2008
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One of the least intuitive elements of a Social Security hearing is the vocational witness testimony. Social Security judges frequently request the presence of vocational witnesses (also known as “VE’s”), independent experts who appear at your hearing to classify your past work and to answer hypothetical questions from the judge about work you might be able to do, given the limitations set out in the hypothetical question.

Vocational experts serve as the bridge between the medical evidence in your case and the work limitations would allow a judge to conclude that there is no work you can perform.

I have written before that I do not consider vocational witnesses as enemies. They do not make up the hypothetical questions, they just answer them. As such, I disagree with some disability lawyers who aggressively cross examine vocational witnesses to challenge their credentials or the factual basis of their assertions. In most cases, the vocational witnesses that appear are part of a panel of experts, and both the judge and the attorney know how the VE will answer a question. I would resort to an aggressive cross examination if the VE presents testimony that is inconsistent with what I know to be accurate.

One of my readers emailed me a question about VE’s that I have not previously addressed, and I would like to answer it here. Her question:

What constitutes the vocational evidence reviewed by the VE before the hearing?

In fact, vocational witnesses do prepare for hearings – here is what they do:

they familiarize themselves with your work history. Your original application as well as several of the other forms your fill out as part of your application contains a job history. The VE will use this history to identify the types of jobs you have performed during the 15 year period prior to allegedly becoming disabled
they review the Dictionary of Occupational Titles (the “DOT”). Social Security currently relies on a book called the DOT to characterize jobs. The DOT contains thousands of jobs, each classified by exertional level – sedentary, light, medium, heavy or very heavy – and by skill level – unskilled, semi-skilled, or skilled. In preparation for your hearing the VE will classify your past work and identify any transferable skills that arise from any semi-skilled or skilled work you may have done
they anticipate questions from the judge. VE’s are not lawyers and they don’t, or shouldn’t, have any interest in the outcome of your case. However, experienced VE’s have been present for hundreds or even thousands of hearings and they generally have an idea about what questions may arise. In most cases, the bottom line question comes down to whether a claimant can reliably perform a simple, unskilled, sedentary job that is not production based and does not require any significant interaction with co-workers or supervisors. Every VE has his own list of “the easiest jobs that exist” and ones that I hear often are jobs like “surveillance system monitor,” “hand packer,” “foil wrapper,” or “textile inspector.”

I am going to be appearing with a VE from the Atlanta area panel and I’ll ask him to elaborate on this answer and I’ll update as appropriate.

Atlanta North Judge Gets Raw Deal from Social Security Administration

Today’s Atlanta Journal-Constitution printed a front page article entitled Ruling: Judge Slighted Duties. The article reports the finding of an administrative law judge that Atlanta North ALJ Kelly Jennings can be removed from his position as an ALJ because he simultaneously served as an active duty lawyer for the Army.

In addition to firing Judge Jennings, Social Security is also going to attempt to collect over $300,000 in back pay. The ALJ considering this case concluded that because he was working for the army, Judge Jennings was not able to give his Social Security cases his full attention, thus contributing to the backlog in the Atlanta North office.

Excuse my use of the vernacular here, but this ruling against Judge Jennings is a load of crap. First and foremost, I find it incredible that any trier of fact would attempt to blame the Atlanta North backlog on one judge. The problem in Atlanta North does not lie at the feet of the judges; instead, the problem has to do with the lack of staff and Social Security’s slow embrace of technology. Judges are part of the puzzle, to be sure, but if the case files are not put together, if the hearings are not scheduled, if there are not enough writers to prepare draft decisions, and if thousands upon thousands of claims are being filed, there are going to be delays.

I try cases in the downtown Atlanta hearing office, as well as in Rome, Columbus, Macon and Savannah. The Atlanta North office has been the slowest in adopting the paperless exhibit files (exhibits are on CD) the paper files that we do use are usually not numbered or properly prepared for hearings. If Judge Jennings was able to process 10x as many cases as he did, none of this would change. Nothing in the AJC article suggested that Judge Jennings rate of productivity was any less than any of his colleagues.

I also wonder if the ALJ considering this issue took the time to speak to any of the lawyers that appeared before Judge Jennings. In my experience, Judge Jennings was always prepared for hearings and his processing time for issuing decisions was no different than any of the other Atlanta North judges. As an aside, Judge Jennings was considered to be more on the conservative side when it came to approving cases, so I am not writing this out of self interest. However, he was never arbitrary and his approach was always consistent, meaning that going in to a case I pretty much knew what I needed to present my case. In cases that he granted, Judge Jennings would frequently include specific direction to Social Security to review a claim in two or three years. I think he felt a responsibility to the taxpayers to insure that anyone who would be collecting benefits truly deserved them.

Finally, as noted above, Judge Jennings “other” job was as a lawyer for the Army. This was known to everyone at Atlanta North – I remember one occasion in particular, when Judge Jennings had to postpone hearings because he had an active duty deployment. Here, then, we have an individual serving his country in a time of war who is being unfairly singed out as the reason for a backlog problem that is, in truth, the result of widespread and systematic inefficiency.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing? Is that good news or bad news? A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled? my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing. Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation. Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office. The judge, who may be located hundreds or thousands of miles away, appears by video camera. The hearing reporter and expert witnesses may be local or they may be with the judge. You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia. I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices. For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried. At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person. However, that has not been a problem. I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.

How I Prepare Clients to Testify at a Social Security Disability Hearing

In my law practice, I generally schedule a pre-hearing meeting with my clients prior to any hearing before a Social Security Administrative Law Judge. The purpose of this pre-hearing meeting is for me to spell out the issues that will be addressed at the hearing, to the question and answer process with my client and to answer any questions that my client may have about the hearing process. The pre-hearing meeting also gives me a sense of how my client might testify so that I can adjust my questions accordingly.

I thought it would be helpful to readers of this blog for me to set out briefly what I discuss with my clients in the pre-hearing conference because this discussion really goes to the heart of how to win a case.

1. Main issue – the main issue in your case is going to focus on your capacity for working. Although there are several arguments we can make to win your case, most hearing level cases are won by arguing that your capacity for work has been so reduced by your medical conditions that you would not be a reliable worker in even a simple, non-production oriented, sit-down job.

2. During the hearing, we will identify the specific work type of activities that you cannot perform. For example, if you have a knee problem that prevents you from walking more than 30 minutes in any 3 hour period, this walking limitation would impact categories of jobs that require frequent walking or standing.

3. When I ask you about your ability to perform various tasks – sitting, standing, walking, lifting, carrying, stooping, climbing, etc., don’t answer with generalities. Saying “I can’t walk very far” or “I can’t lift very much” doesn’t tell the judge anything. Saying “I can only walk50 yards before I have to stop and rest,” or “it takes all my strength to carry a gallon of milk from the refrigerator to the table” does convey specific information that can be translated into a job requirement.

4. In almost every disability hearing, the judge will have a vocational expert there to testify. The vocational witness is there to identify the skill level and exertional level of your past work, and to answer hypothetical questions from the judge about other jobs. The more specific limitations we can persuade the judge to include in that hypothetical, the better your chances.

5. Your credibility is one of the main things that the judge will be deciding. Factors that enhance your credibility are a long work history, (unsuccessful) work attempts, and a sense that you would much rather be working than waiting for disability.

6. The medical record in your case will ultimately be the most important factor in determining whether you have a good case. If your record contains reference to drug seeking behavior or malingering, you will most likely not win.

7. Recognize that I cannot lead you when I ask questions. Give detailed and specific answers to my questions.

8. If I ask you about pain, you can use a 1 to 10 scale, with 1 being a mild headache and 10 being a kidney stone. Don’t say that your pain is always at a 10. A better answer – “my pain is always at a 5, but three or four times a week it spikes up to an 8 or a 9 – if I over do it physically or if I am under a lot of stress.”

9. If you are going to testify that you can’t sit for more than 15 minutes because of back pain, don’t come to the hearing and sit quietly for 45 minutes. It is ok to stand up and move around during the hearing if you are uncomfortable.

Why Do Physicians Charge to Write Medical Narrative Reports?

Why is it a doctor will say they will help you to get disability because they believe you are disabled but then require extra money just to write an attorney a letter?
–Shannon

Jonathan Ginsberg responds: Shannon, there is nothing inconsistent in a doctor’s desire to help you and that doctor’s need to earn a living and to provide for his family. Like lawyers and other service professionals, doctors earn their livings by selling their expertise and time. Writing letters uses up time and I, personally, have no issue with a physician asking for a reasonable fee when he performs a service for you – especially a service that you and your lawyer will use in a court proceeding.

Last Minute Lawyer Substitution – Is This a Problem?

Jonathan
March 4, 2008

This is completly frustrating! I wrote a dire need letter to my congressman and got an expidited hearing scheduled for March 5, 2008. I am homeless, without a job for 3 years, and have a bipolar diagnoses along with other serious physical problems. I called my lawyer the day before the actual hearing, and was informed he retired. Someone whom I’ve never met is representing me. I don’t even know what he looks like. Isn’t this a fine how-do-ya do! I was not notified and had I not called his office, I would have been completely uninformed. How can I expect this replacement lawyer to represent me when we have never met? What is your suggestion?
–Steve

Jonathan Ginsberg responds: Steve, it sounds like you have a difficult choice to make. I would certainly not be happy to learn that my lawyer had retired and transferred my file to someone else without any notice to me. Most lawyers I know would at least make an effort to contact their clients if closing their practice. You do say that you are homeless – is it possible that your lawyer was not able to get in touch with you?

With regard to the new lawyer, he may very well be very capable. On the other hand I would be concerned that he never made any effort to contact you. From my perspective the fact that the new lawyer has never met you is less important than knowing whether he has thoroughly reviewed your file. What you don’t want to happen is ending up at a hearing where the medical records are not updated and the lawyer does not have a clear theory of your case. Periodically lawyers from other States will hire me to represent a client in a Georgia hearing. As long as I am familiar with the file and know what I want to prove, I can spend an hour with the client prior to the hearing and be sufficiently prepared.

I would suggest that you contact the new lawyer and try to meet with him today or a minimum of an hour before the hearing. Ask him if the file is updated and if he has a working theory of your case. I would also ask him to level with you – if the case is not ready to try or if he is not ready, I’d rather ask for a continuance and wait a couple more months than to lose a winnable case because the file wasn’t updated or the lawyer wasn’t ready.

At the end of the day, you want to win – it doesn’t matter who the lawyer is. The records in your file and the opinion of your doctors is far more important. These factors are where I would put my focus. Good luck and let me know how it turns out.