clark cnty ssdi and ssi claims 01-09-13

7/30/2019 Clark Cnty SSDI and SSI Claims 01-09-13

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Handling SSDI & SSI Claimsfrom Application through Appeal

The Clark County Bar Association Twenty-Fifth Nuts and Bolts Lecture Series Presents:

Place logoor logotype here,

otherwisedelete this.

I slept and I dreamed that life is all joy. I woke and I saw that life is all service. I served and

I saw that service is joy.

Khalil Gibran (some famous guy)

Practicing social security law is one of the most honorable things you can do as a lawyer.

Alan Stuart Graf, Esq. (disability attorney and mentor to many)

Melissa Kenney, Esq. and Lisa Porter, Esq.


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Place logoor logotype here,otherwisedelete this.

Practical Considerations

You cant help others

if you work like a luftmensch.- paraphrase of a grandmas sage advice

Organization and

Publishing Websites

Social Security Administration:

www.SSA.gov

Really Useful Pages at SSA.gov:

http://www.ssa.gov/appeals/best_practices.html

http://www.ssa.gov/representation/http://www.ssa.gov/representation/fee_agreements.htm

National Organization of Social

Security Claimants Representatives,

www.nosscr.org

James Publishing Pretty much the

go-to source for many

http://www.ssas.com/

WA Organization of Social Security

Claimants Representatives (listserve

currently run by Rosemary

Schurman, Esq. 425-821-8577,www.schurmandisabilitylaw.com


**Luftmensch (Yiddish)(n.):

An impractical dreamer,

with no business sense. Literally, airperson.


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Place logoor logotype here,otherwisedelete this.

Practical Considerations

Contingency-based practice; fees set by SSA. Success up to Appeals Counsel level pay 25% and capped at

$6,000 total.

SSI and SSDI cases take approximately 1 and years frominitial application to hearing determination.

Appeals level decisions may take another 3 to 5 years ormore.

Plan for income stream accordingly.

Websites by

Practitioners

Alan Stuart Graf, Esq.

http://www.hippielawyer.com/

Alan Stuart Graf, PC316 Second Rd.

Summertown, Tn 38483

(931) 964-3123, Fax: ((31) 964-

3127, email: [email protected]

*NOTE: Alan mentioned his

websites page may be a bit

outdated, so contact him if

questions.

Eric Schnaufer (good Federal case

list)

http://schnaufer.com/

Charles Martin, Esq., Martin and

Jones

http://www.theatlantadisabilitylawy

er.com/about-us/

Also see the SSL national listservehe runs:

http://lists.theombudsman.com/listin

fo.cgi/ssl-theombudsman.com



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SSI and SSDI:

Supplemental Security Income (SSI): Also known as Title

XVI, this program provides benefits for aged, blind, and

disabled people without regard to prior workforce

participation. It is administered by the Social Security

Administration, but it is not funded by Social Security taxes.

Social Security Disability Insurance (SSDI): Also known

as Title II, this program provides benefits to disabled/blind

persons who are insured by workers contributions to the

Social Security trust fund. These contributions are based on

work earnings (a client, her or his spouse or parents) as

required by the Federal Insurance Contributions Act

(FICA). Title II of the Social Security Act authorizes SSDI

benefits. Dependents may also be eligible for benefits froma clients earnings record.

Basic Differences between the two.


The Dalles OR SSA office. We liked the pupdog.


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From Application To Hearing


INITIAL

APPLICATION

Done by claimant,not attorney. Takes2 to 6 mos fordecision. Over70% claims

rejected at thislevel. Sixty daysfrom rejection torequestreconsideration ofthe initialdetermination.

RECONSIDERATION

Recommendedclaimants hireattorney at thisstage. Takes another2 to 6 months fordecision. Over 65%claims rejected athis level. Sixty daysfrom rejection torequest hearingreview by ALJ. H

EARING

LEVEL

Up to one year ormore wait forhearing. Informalprocess: Some rulesof evidence arerelaxed, hearsay oruse of leadingquestions arepermitted withinreason. Likelihoodof claim approvalsignificantlyincreases withrepresentativeassistance.


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Initial application Claimants file own disability applications with Social Security. Social Security Administration contracts with state Department of Disability Services to begin

disability determination process. Wait time about 2 to 4 months for decision. Most attorneys do not represent claimants at this stage.

Claimants sometimes hire legal counsel at this stage. When denied at initial stage, appeal of decision must be filed within 60 days of the denial

date.

Clients may be provided a medical, psychological, or vocational consultative examiner to

assess disability. Wait time about 2 to 4 months for decision.

Reconsideration


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Intake InterviewHow to evaluate a clients claim for disability.


Were guessing she might not be too disabled to work.

Phone screening tool Whatprocedures will you use?

Intake evaluation interview formshelp!

Mind the gaps using the five stepsequential evaluation process

(following this slide).

Other factors that can affect a case include: (1) Onset Date; (2) Unsuccessful Work Attempts; (3)

Working Claimants; (4) Prior Applications; (5) SSA Misinformation Deters Applying; (6) Receipt

of Unemployment Compensation Benefits; and (7) Americans with Disabilities Act Claims.


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Potential New Client Intake

1. Is claimant working?

2. Does claimant have a severe impairment?

3. Is claimants condition found in SSAs Listing of Impairments (the

Listings)?

4. Can claimant do past relevant work?

5. Can claimant do any other type of work?

Keep in mind the Five Step Sequential Evaluation Process and Required Elements.


We will come back to Five Step Sequential Evaluation Process shortly.


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Imperfect Client Case

Work to encourage client to discuss drug

and/or alcohol abuse honestly, particularly

if in medical record.

If possible, work with client and treating

provider to get into DAA treatment need

approximately 30 days documentedsobriety to see if DAA is MATERIAL to

the case.

If client has physical problems only, DAA

should not be material to client case unless

abuse causes physical problem.

Some issues, like present drug/alcohol abuse, or refusal to seek treatment, can hurt.



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New Client. Now What?

If reconsideration denied, file Request For Hearing within 60days of denial date.

Hearings are held before Administrative Law judges. This is the stage where most attorneys commonly become

involved in a case.

OHA sends letter confirming request for hearing; about 9 to

12 months will pass before a hearing is scheduled.

Procedures and Deadlines to Remember.



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Want To Get Paid?Doin Bidness wit da Govment specific forms and paperwork needed to represent.


1695 and 1696s(make sure your 1699 is correct)

Fee Agreements

827s HIPAAs and otherauthorizations to obtain

records

Possible fee petition (oh no!)

Grumpy Cat

Hates Forms


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About Ten Months Later

Claimants will receive another questionnaire

from the Office of Hearings and Appeals

(OHA) entitled "Claimants Questionnaire."

This questionnaire arrives about 2 to 4months prior to a claimants hearing.

This is the time to schedule a meeting with

the client to update medical records and find

out if any new developments have occurred.

Not a hearing Even better: Its another form!



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Evidence, Evidence, Evidence!

Most recent medical andPsychological records

Residual function capacity

opinions from treating providers Vocational assessments Former Employer statements Witness statements

(Or, What You Need For Your Claimant To Succeed.)



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Medical Evidence NOT Optional

Ask clients to gather their ownmedical records if possible.

Create a template residual

capacity form for doctors andpsychologists to use.

Do NOT have clients ask theirmedical or psychological

providers to write a letter on

their behalf.

While it is possible to win with little medical evidence, evidence makes a clients case.

Here are some key tips in gathering needed evidence from providers.


Contrary to some opinions, medical professionals are human.Some even get irritated by the same things that you might getirritated by. We have even found interesting terms in medicaldictionaries! Nonetheless, when reviewing client medicalevidence, if you find any of interesting terms, such as the onesbelow, you may want to contact the provider to ask for a more,ahem, *appropriate* term:

1. PRATFO2. AMYOYO Syndrome3. Faecal Encephalopathy4. SBI or SWAG5. Polydipose Dysfunction

6. Brothel Sprouts **in the case of this one, you may wantto keep this


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But not just any medical evidence

20 C.F.R. 404.1513(a) and (e), 416.913(a) and

(e).[14] Acceptable medical sources specifically

include licensed physicians and licensed psychologists,

but not nurse practitioners, mental health counselors,

chiropractors or other non-doctor practitioners.

404.1513(a)(1) and (3); 416.913(a)(1) and (3).

However, a nurse practitioner or any other practitioner

working either as part of an interdisciplinary team or in

conjunction with a physician or psychologist

constitutes an acceptable medical source. Gomez v.

Chater, 74 F.3d 967, 971 (9th Cir. 1996).

Long-term Treating Sources Opinion Matters Most.


Unless treating provider is Dr. Riviera


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Hearing scheduled!

Schedule prehearing appointment with clientto update for any changes.

Make sure all medical records, witnessstatements, and other records are submitted.

Contact medical providers willing to give anRFC disabling levels of pain are

particularly difficult to translate into

limitations in hearings.

*Currently, a pain chart is one of a small

number of methods available to determine apersons experience with pain.

Hearings are scheduled about two months in advance. Heres whats next:


(Is there a level called big whiny baby?)


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Hearing Day - Finally.

Weve encountered the full range of ALJ behavior and prejudices.

Very similar cases before two separate judges often have radically

different outcomes. It is a truism that practitioners will often

correctly predict the expected outcome based on the particular ALJ.

That being said, the hearing procedure is fairly predictable.

Hearing lasts about one hour.

Testimony taken under oath.

ALJ follows 5 Step Sequential Process.

ME testimony for steps 2 & 3; VE testimony for steps 4 & 5

Average 1 & Year Wait. What to expect at a hearing

and what often ACTUALLY happens.


Mirac le in t he A lcoho l A is le .

The ALJ shops here too


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Hearing Process: First 20 mins

Swearing in client and expert witnesses (medical, psychological, and vocationalexperts present).

Opening statement, if preferred.

ALJ or you only start with questions to client. Step 1: Current or recent orSGA work?

ALJ or you follow up initial questions with clarifying questions.

Hearsay is permitted, questions can be leading, but to preserve client testimony

as truthful, the fewer leading questions, the better.

Witnesses are often brought in after.

Who goes first? Do I have an opening statement? What if the ALJ takes over?



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Hearing Process: Next 20 mins.

Step 2: Does Client have a severe impairment?

Step 3: Is Clients condition found in SSAs listing of

impairments (and what evidence in record supports this?)?

The ME then testifies if the Client meets or equals the

listings, and provides testimony as to if symptoms from the

impairments cause mild, moderate or marked

impairments.

They also testify to whether drugs and/or alcohol abusecontribute to the disabling conditions.

Expert Witness testimony How to cross-examine MEs.


Hopefully MEs will never testify

about the disabling effects of darkchocolate abuse.

Medical and psychological experts provide testimony about steps 2 and 3 in the 5 stepsequential evaluation process.


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Hearing Process, Final 20 mins

Vocational experts provide testimony about steps 4 and 5 of the sequential evaluation

process.

Client has the burden of proof from steps 1 to 4 to show disabling condition exists.

Claimants only need show a preponderance of the evidence to prove a disabling condition

exists.Client has to prove she does not have the RFC to return to any past jobs. SSR 82-62. This

burden is met by establishing at least one requirement of each of past relevant jobs can no

longer be done. The VE testifies as to the requirement levels needed at your clients past

jobs. If the ALJ doesnt ask, you should.

SSA has the burden of proof at step 5 at a substantial evidence level - to show there arestill jobs available for a person with limitations such as your Clients.

Expert Witness testimony How to cross-examine VEs.



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Hearing is done. What next?

If no bench decision, or ALJ informing you and

your client that a favorable determination will be

issued, your client will wait about 30-60 days for

the determination letter.

If favorable, hooray!

If unfavorable, next avenue is to determine

whether your client should undergo the appeals

route or start a new claim.

If lucky, a bench decision that day. Otherwise, determination issued 30-60 days later.


What? Its only $687 a month???


22/24


Appeals Counsel, USDC and beyond

Appea

ls

Counse

l(AC)

Last level ofappeal at theAgency level.Need to file within60 days. Takes upto a year or morefor decision.

Success ratesrange from 12% to20% at this level.

Medical evidencemay continue to besubmitted.

Fe

dera

lD

C(

USDC) File for appeal.New medical

evidence may notbe submitted unless a case issueis that the ACLevel refused to

evaluatenew/materialevidence and thatsuch evidencecontinues to beignored. Takes up

to a year or morefor decision.

Federal

Circuit

Both USDC and9th Circuitfrequently remand

for repeat hearingat Agency level toanswer a questionimproperlyignored.


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Typically Appealed Issues

One good source has a basic outline of procedural issues that can happen at federal court:http://www.theatlantadisabilitylawyer.com/procedural-hurdles-in-district-court/

Some representative appealable issues:

Impairment not correctly evaluated as severe, incorrect weight given to treating providers,

mental limitations provided by a non-examining doctor given more weight than by the treatingprovider; does not evaluate the effects of obesity on claimant; in error gave little/no weight to

witnesses; the evidence does not establish DAA is material, ALJ made an incorrect RFC which

rendered the vocational experts testimony flawed.

If you feel your clients case should not go on to USDC, but your client objects, here is a link

on how to self-represent at USDC: http://ord.uscourts.gov/en/pro-se-resources/representing-yourself-in-court (from Tim Wilborn,http://www.wilbornlaw.com/)

What a surprise! ALJs make usual mistakes in the sequential evaluation procedure..



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credits

Picture of car-lifting partier:

http://www.cracked.com/article/114_5-superpowers-

you-didnt-know-your-body-was-hiding-from-you/

Memes from www.quickmeme.com, www.xkcd.com,

Know why theres so many meme-worthy comics onthis presentation? The answer is right here

Stay healthy during the flu season, and contact us if

you have any questions about SSA practice.

KP Law, LLC.

www.kpdisabilitylaw.com, Like us on Facebook:

www.facebook.com/kplaw.disability.Presentation found on Scribd.com.

Thank you to OWLs , and to our wonderful mentors and friends who inspire us.


clark cnty ssdi and ssi claims 01-09-13

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