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.

Posted in ALJ hearings, Appeals. Leave a Comment »

New commercial focuses on importance of appealing disability denials

August 15, 2010 — Atty. Donald J. Chewning

As I’ve discussed before many people who contact me about their Social Security disability or SSI claims have not appealed the denial of benefits.  They miss the deadlines to file the appeal and end up applying over and over again.  This is a recipe for failure.  This new commercial is directed at encouraging people to appeal their claims rather than engaging in successive applications:

Posted in Appeals. Leave a Comment »

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.

Posted in ALJ hearings, Appeals, In the news, Reconsiderations. Leave a Comment »

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.

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

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 »

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.

Posted in ALJ hearings, Appeals. Tags: , , , . Leave a Comment »

Why appeals are important

November 20, 2008 — Atty. Donald J. Chewning

Frequently, I have clients who have filed for disability benefits over and over again only to be denied, but have never appealed an initial denial. In order to improve their chances at success, they probably should have appealed the initial denial. Unless the disabling medical condition has worsened between applications, there is little to be gained by successive initial applications. Statistics show that the likelihood of obtaining benefits increases by appealing the initial denial. In Wisconsin in 2007, for instance, the state agency assigned to make disability determinations, the Disability Determination Bureau (DDB), denied 66% of all initial applications. The first stage of appeal is called reconsideration. At this stage, the DDB denied 85.2% request for reconsideration. However, at the second appeals level – a request for a hearing before an administrative law judge (ALJ) – many more claimants are awarded benefits. It is frequently said that 50% of claimants are awarded benefits by an ALJ. Some numbers reflect that ALJ’s approve up to 63% of claims. These numbers suggest that it pays to an appeal the initial denial and appeal if denied again at reconsideration.

This is not to say that simply appealing means a claimant will win his or case. There are good reasons that an ALJ may grant benefits when the DDB did not. For instance, claimants are more likely to have an attorney at the ALJ hearing level than at earlier stages. An attorney can assist them in making an effective argument to the ALJ as to why the claimant is disabled. Also, the long wait for a hearing means that the disabling condition may have worsened over time. There will likely be more medical records and therefore more evidence of disability by the time a hearing is scheduled. Also, the claimant will be older, which may put them in an age category in which it is easier to get benefits. There is also some self-selection occurring as appeals proceed further. That is, people who aren’t truly disabled are probably less likely to keep pursuing appeals.

The bottom line is that if a person truly believes their medical condition prevents them from working and the person has medical evidence to support the claim, the chances of success increase if he or she makes the effort to appeal the denials at the early stages and brings the case before a judge.

Posted in Appeals. Tags: , , , , . 1 Comment »
Follow

Get every new post delivered to your Inbox.