New Social Security Ruling Requires Some Claimants to Make a Difficult Decision

July 29, 2011 — Atty. Donald J. Chewning

The Commissioner of Social Security issued a new ruling this week, SSR 11-1p, that went into effect on Thursday, July 29, 2011.  It eliminates subsequent disability applications while a claim is pending before the Appeals Council.  In other words, if your claim was denied by an Administrative Law Judge, you can appeal the decision to the Appeals Council, but you cannot file a new claim until the Appeals Council has issued its decision.  This creates a terrible dilemma for some claimants.  The Appeals Council can take up to two years to decide an appeal.  If you believe the judge’s decision was incorrect and wish to pursue your entire claim for back benefits you can appeal, but in doing so you give up the right to pursue a new claim until that lengthy and uncertain process is over.  Previously, filing a new claim allowed you to preserve the back benefits that accrued while the appeal was pending.  Now you cannot preserve your claim for that period of back benefits while the appeal is pending. If you win your appeal, there is no problem.  However, if you lose your appeal, you’re back at square one.

I’ve simplified things a bit for purposes of this post.  There are some exceptions.  For instance, if the claim on appeal is for Title II benefits (SSDI), you may be able to file a new claim for Title XVI benefits (SSI).  The new rule also does not appear to foreclose a new application for beneftis if your case is in federal court (after the Appeals Council denial).

The ruling is a game-changer for Social Security disability and SSI claimants.  If you receive a denial from an ALJ, you should definitely consult with an attorney about whether to appeal.  There are benefits to appealing, but now there are risks too.

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Significant Improvement in Wisconsin Disability Hearing Processing Times

March 4, 2011 — Atty. Donald J. Chewning

As I’ve noted in prior posts, one of the longstanding problems in the Social Security disability process is the amount of time at which claims linger at hearing offices before the case is decided.   It looks like Wisconsin claimants are now facing much shorter wait times than in recent years.   Data published in the most recent NOSSCR Social Security Forum shows that both hearing offices in Wisconsin have wait times that are currently less than one year.  As of January 2011, the Madison hearing office has an average case processing time of 301 days.  The Milwaukee case processing time is down to 357 days.    This is compared with wait times in excess of 500 days which were common for several years.

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More news coverage of new Madison hearing office

August 1, 2010 — Atty. Donald J. Chewning

Saturday’s Wisconsin State Journal ran this article about the new Madison hearing office.   Last week I discussed a Milwaukee Journal Sentinel article that had additional information.

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Milwaukee Journal Sentinel reports on wait in Wisconsin

July 25, 2010 — Atty. Donald J. Chewning

This morning’s Milwaukee Journal Sentinel contains this article on the wait time for disability determinations in Wisconsin. It notes that the long delay in hearings in Madison has led to the addition of new judges and a new office in Madison:

[Social Security Commissioner Michael] Astrue said that the Social Security office in Madison is being upgraded from a satellite office to a full hearing office, which along with the Milwaukee site gives the state two full offices for hearing appeals. As part of the upgrade, the number of administrative law judges hearing appeals in Madison will triple, going from two to six, he said.

In addition, the Mount Pleasant, Mich., office will also start handling some Wisconsin appeals. By next year, these steps will start to relieve some of the burden on the Milwaukee office and drive down wait times statewide, Astrue said.

The article also discusses the state furlough of employees at the Wisconsin Disability Determination Bureau, which is a source of contention between SSA and the state government:

Disability claims in Wisconsin are first decided by the state Disability Determination Bureau, which also handles initial appeals before sending cases on to federal offices for a second round of appeals. The Determination Bureau is run by the state but paid for with federal money.

Astrue renewed his criticism of a decision by Gov. Jim Doyle’s administration to furlough the bureau’s federally paid workers amid the state budget crisis, even though it doesn’t save the state anything. Astrue said the furloughs increases wait times for disabled applicants for benefits and on Friday he unveiled federal legislation that would ban the practice by states like Wisconsin.

Officials in the Doyle administration have defended their action, saying they are furloughing all state workers because it would be unfair to exempt any group of employees. Stephanie Smiley, a spokeswoman for the state Department of Health Services, said that despite the furloughs, Wisconsin has been bucking the national trend by whittling down its own backlog of people waiting for an initial decision on disability benefits.

State figures show the average wait time for applicants so far this year has decreased to 72 days from 108 days for the same period last year. At the same time, the national average for state offices so far this year rose to 90 days from 80 days last year.

But Astrue said that one reason Wisconsin is making progress is because the federal government has stepped in to help by transferring some cases out of the state.

With regard to cases at the hearing level, I have noticed a significant decrease in the wait times for cases at the Milwaukee hearing office.  Milwaukee ODAR has taken over its Green Bay case load and continues to move the cases along at a good pace.  The cases from the Fox Valley continue to be handled by the hearing office out of Santa Barbara, California.

With respect to cases pending at the DDB, I have seen a large number of my cases sent to SSA’s offices in Baltimore for disability determinations, rather than being assigned to DDB in Madison.

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New ALJ database published by Delaware newspaper

January 7, 2010 — Atty. Donald J. Chewning

I have previously given the link to a database showing the statistics for denials and approvals of claims by Social Security Administrative Law Judges published by the Portland Oregonian.  Recently, The News Journal, a Delaware newspaper, has run a feature on the lack of uniformity in decision making by ALJs. The paper’s website includes another database sortable by state and showing the statistics for the judges from each hearing office.

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The Listings: What are they and why should I care?

May 10, 2009 — Atty. Donald J. Chewning

During an initial meeting with a client, I usually spend a few minutes explaining the five questions that the Social Security Administration (SSA) will ask when evaluating your disability case. First, SSA asks whether you’re engaged in substantial gainful activity – that is, are you working too much to be considered disabled. Second, SSA asks whether you have a severe impairment – that is, do you have a medically documented condition that will affect your ability to work that will last a year or longer.

Third, SSA considers whether you meet or equal a “listing”. The listings are a series of regulations that address specific medical conditions and describe when those conditions are severe enough that your are presumed disabled. There are listings for adults and for children. They are divided into different categories by body system (e.g., cardiac, pulmonary, skin, mental health). The listings are important in all cases, but are more important in certain types of cases. In my experience, if your limitations are based on the pain your condition causes you (e.g., as a result of a back problem or fibromyalgia), it is likely that SSA will not find that you meet or equal a listing, but rather will proceed to decide your case on other considerations. If you have mental health problems, the listings are very important. Many people who are awarded disability benefits for mental health problems are found disabled under the listings. In reading the most recent issue of the NOSSCR Forum, I learned that of those people who are awarded benefits at the initial application or reconsideration levels (that is, when you first apply or after your first appeal), 58% are found disabled under the listings.

If you are a disability claimant who is represented, your representative should be well-versed in these regulations and should be examining your medical records to determine whether an argument can be made that you meet or equal a listing. Your representative should be seeking out additional information from your doctors to determine whether you can win at this stage of SSA’s analysis. If you don’t have a representative, you should consult with an attorney to discuss this aspect of your case. Some of the listings are very complicated.  Also, the listings that are available on the SSA’s website are not updated as frequently as they should be – you’re representative should subscribe to a service that provides the most up-to-date information available.

If you don’t meet or equal a listing, that doesn’t mean you’re not disabled, so you shouldn’t necessarily be worried.  A majority of successful cases that proceed to a hearing before a judge are not decided on the listings.  I have many cases in which I know that my client won’t meet or equal a listing, but fully expect to win the case.  As mentioned, at least 42% of disabled individuals are awarded benefits at the early stages of the disability determination process even though they don’t meet a listing.  These successful claimaints are found disabled based on consideration of the fourth and fifth questions asked by SSA, which I will address in another post.

Posted in ALJ hearings, Hiring a disability lawyer, Initial applications, Listings, Reconsiderations. Tags: . 1 Comment »

AARP article on backlog

January 22, 2009 — Atty. Donald J. Chewning

AARP’s website today posted an article entitled Working Longer – Not an Always an Option about the long wait involved in applying for Social Security disability benefits.  It may be of  interest to those waiting for a hearing themselves.   Although it tells of some horror stories of people waiting for benefits, it also indicates that the average waiting time is decreased to 480 days.    As I’ve posted recently, the average processing time in Wisconsin is far in excess of 480 days.

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Database of Administrative Law Judge statistics

January 7, 2009 — Atty. Donald J. Chewning

Recently the Portland Oregonian used a Freedom of Information Act request to get access to statistics on the productivity, approval and denial rates of the ALJs who hear Social Security disability cases nationwide.  It has published a searchable database online at its website.  This has caused quite a buzz among the Social Security disability bar.  

I caution claimants not to read too much into the statistics without consulting an attorney.  A particular judge’s tendencies as reflected by the statistics is not a reliable gauge of how he or she will rule in a particular case.  Each disability case rises and falls on its own merit.  In my opinion, the quality of the medical evidence and the preparedness of the claimant and counsel can be more important than the judge assigned to the case.  Just because a case has been assigned to a judge with a high denial rate does not mean a claim is doomed.  Nor should a claimant whose case is assigned to a judge with a high percentage of favorable decisions be overly optimistic.

Posted in ALJ hearings, Appeals, In the news. 1 Comment »

New stats on Wisconsin hearing offices

January 4, 2009 — Atty. Donald J. Chewning

According to the most recent NOSSCR newsletter, the Milwaukee Office of Disability Adjudication and Review fell from 114th in the nation in November (see my prior post here) in processing times to 127th, with the average processing time jumping from 575 days to 616.

Meanwhile, the Madison office’s average processing time remained at 712 days, but the office moved up to 143rd (from 148th) in the nation.

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Your Right to a Hearing Before an Administrative Law Judge

November 28, 2008 — Atty. Donald J. Chewning

After the denial of a request for reconsideration, a Social Security disability claimant has the right to a hearing before an administrative law judge. It is at this stage in the appeals process that many claimants are ultimately awarded benefits. The right to an appeal is preserved if a request for a hearing is made in writing within 60 days of the date of the reconsideration denial notice. There is an additional 5-day grace period given to account for the fact that the decisions are mailed and may not be received immediately on the date of the decision notice. It is my practice to file my client’s appeal requests as soon as practicable. There is simply no reason to wait until the last minute to file a request for a hearing. The official SSA form used to request a hearing is Form HA-501. The claimant must also then complete a Disability Report-Appeal, Form HA-3441-BK. The request for a hearing can now also be filed online through the SSA website. If the deadline for filing an appeal is missed, an ALJ may make a finding of good cause to accept the late filing. However, it is best not put in the position of having to justify a late filing.  A claimant who intends to appeal should do so right after they receive the reconsideration denial.

After a claimant requests a hearing, one will be scheduled at the nearest hearing office to the claimant’s home.  There are only limited circumstances in which a hearing will not be held. First, if the request for a hearing is dismissed (for instance, at the claimant’s request), the hearing will not be held. Second, an ALJ may issue a fully-favorable on the record decision without a hearing. Maine attorney Gordon Gates describes the on-the-record decision process at his blog here.

Third, no hearing will be held if the claimant waives a right to hearing. If the hearing is waived, the ALJ will make a decision on the evidence alone. I cannot imagine a situation in which a hearing should be waived. A hearing before an ALJ is not a mere formality, but is a very important stage of the proceedings. It is the claimant’s one chance to present his or her story in person. This testimony can be crucial to corroborate the description of the disabling condition that may be found in the medical records. Usually, doctors do not describe functional limitations in medical records. The claimant’s testimony about how the condition limits his or functioning is necessary for a judge to issue a favorable decision. Often, the credibility of the claimant is critical to a judge’s decision to grant benefits. If the claimant waives a hearing, the ALJ has no opportunity to evaluate the claimant’s credibility.  The bottom line is that a claimant should simply not waive the right to a hearing — certainly not without first consulting an attorney.

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