Skip to main content

WHEN YOU HAVE A TOUGH ADMINISTRATIVE LAW JUDGE (ALJ)

 

 

When you have a "tough" judge

Let's face it.  Administrative Law Judges are not created equal.  Or if they are, they don't stay that way.

At the same hearing office, you may step into Courtroom 1 and have a hearing presided over by a judge who pays 70 percent of cases. (My dream)!

Step into Courtroom 2 and get a judge who pays 16 percent of cases (Your worst nightmare)!

A recent OIG report states that in a Dallas area hearing office, one of the judges grants 95% of claims, and another of the judges grants just 9% of claims. That's an 86-point spread. Social Security disability has well defined requirements and it should not be a lotto.

The award rate for the typical Administrative Law Judge, however, is in the neighborhood of 50 percent nationwide.

But if you are unfortunate enough to draw a judge who consistently pays very few claims--based on God-knows-what-- what can you do?

 The first thing I suggest is:  Be sure you go to trial with a professional medical opinion!  Get the claimant's doctor to provide a detailed and acceptable medical opinion about what the claimant can and cannot do in  terms of work-related activity.  These statements are called "Medical Source Statements" or "Residual Functional Capacity opinions."  Don't let the doctor wander around in the wilderness when providing an opinion, or more correctly--a series of opinions.  Use a tried and true form that covers all the bases in a format that is admissible and acceptable to Social Security.  Admissible and Acceptable!  This still may not get you approved but it gives you good ammunition for your next appeal.

 Second, try to customize the doctor's form to fit your case as much as possible.  A Medical Source Statement for a patient with heart failure shouldn't look just like the one for  rheumatoid arthritis or degenerative disc disease.  Your attorney/representative should have, or be able to devise, a form that suits the claimant's medical or psychological profile.

Third, be sure the RFC or Medical Source Statement is signed by what Social Security calls an "acceptable medical source."  Doctors of Medicine (MDs) are always acceptable sources.  But Social Security has a "pecking order" for doctors.  A board certified specialist carries more credibility than a family practice physician, especially when opining about "specialty diseases."  A cardiologist carries more weight when opining about heart disease.  But an orthopedic surgeon is better for bone and joint disease.  And for heaven's sake, try to get a psychiatrist or licensed psychologist (Psy.D or Ph.D) for depression or mental illness.  A diagnosis from a counselor, chiropractor or nurse practitioner may not carry the weight you need.  Try for a heavy hitter!

Fourth, consider using collaborating testimony outside the medical field, if available and compelling.  A former supervisor or perhaps a family member who can provide convincing testimony about the claimant's struggles and problems with past work or current activities of daily living.  An objective witness with no "skin in the game" is always better.  But be careful!  A lay person must not give a medical opinion.  And this witness must testify only about what he/she has seen or experienced first hand.  This is not "expert testimony," this is subjective testimony and it can backfire like a Russian-made motorcycle.  So take it for a spin before putting it on the witness stand. "Does this witness really strengthen my case?" 

Lastly, keep your appeals pencil sharpened.  In their effort to deny as many claims as possible, some of the "outlier" judges make serious mistakes in their decisions.  If appealable errors were possibly made, fire off an appeal.  The Social Security system is build on checks and balances:  judges rule and other judges overrule.

"Judges rule and other judges overrule.  Social Security is built on a checks and balances system."

_____________________

Charles W. Forsythe is managing partner at The Forsythe Firm in Huntsville, AL - a firm specializing in Social Security justice.  

 

Comments

Post a Comment

Popular posts from this blog

MEETING SOCIAL SECURITY'S DURATION REQUIREMENT FOR DISABILITY

SSDI, or Social Security Disability Insurance, requires a severe impairment which has lasted for at least 12 straight months, is expected to last at least 12 straight months OR is expected to end in death. This 12 consecutive months requirement is called the "Duration Requirement."  Disabilities with a duration of less than 1 year are not covered under the Social Security Act. You do not have to wait 12 months to file a claim. There is no requirement to wait 12 months to file.  But if your disability has not already last for at least 12 months, the nature of the impairment must be such that is can reasonably be expected to last 12 months or longer OR to end in death.  Short term impairments are not covered. What you will need to document for your medical and/or mental impairment(s):   A claimant will require objective medical proof.  This comes in the form of official medical records from doctors, clinics, hospitals, counselors, therapists and other professiona...
Post a Comment
Read more

SOCIAL SECURITY BENEFITS FOR DOWNS SYNDROME

Downs Syndrome may qualify for automatic SSI disability in children. A child with Translocation Syndrome or Trisomy 21 will usually be classified as disabled from birth. This type of syndrome affects about 98 percent of the Downs Syndrome population. Social Security will want a diagnosis from a medically acceptable source and they will want certain tests.Once the documentation is presented, an SSI award may be automatic.  Those with Mosaic Down syndrome may qualify, but your child would need more than a diagnosis to be approved. Because [according to SSA] people with Mosaic Down syndrome may not have as many intellectual or physical disabilities as those with other forms of Down syndrome, you’ll need to meet another listing in the Blue Book to qualify. Social Security will consider the complications or manifestations of Downs Syndrome in making a decision. If the claimant is a child (under 18), k eep in mind that SSI is a needs-based program for families with limited resources...
Post a Comment
Read more

MUST YOU MEET A LISTING FOR SOCIAL SECURITY DISABILITY?

You hear talk of getting SSDI benefits by "meeting a Listing."  What are the Listings? The Blue Book listings are found in the regulations at 20 CFR 404, Subpart P, Appendix I. The Listings are divided into 12 body systems.  Each severe impairment is listed under its respective body system.  For example, Congestive Heart Failure is listed under Section 4.00 - Cardiovascular System. When you go there, there is a list of severe symptoms, and they are severe.   If you exactly meet or equal the list of very extreme symptoms you will be automatically approved for disability. Here's the problem:  Meeting one of the listings is about as likely as winning the Super Lotto.  It is very, very unlikely that you will do so. Thus, 99 percent of claimants do not and cannot get approved by meeting a listing.  The listings are only for catastrophic, extreme impairments that most claimants simply do not have--or do not have at the severity level demanded by the listings...
Post a Comment
Read more