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