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SOCIAL SECURITY: FAILLURE FOLLOWED BY SUCCESS

By Charles W. Forsythe, The Forsythe Firm in Huntsville, AL

   

 "It's the law that will determine whether you get a benefit or not."

 Most of the people who come to us for help with disability have already been denied  twice:  once at the application level and again at Reconsideration.

    They are now ready for the most important part of the Social Security disability process--the hearing before an Administrative Law Judge (ALJ). This is a one hour hearing that will usually decide once and for all whether the claimant can get disability benefits.  The hearing process is misunderstood by many claimants, almost guaranteeing that they will not be successful.

    The most understood aspects of a hearing is that it must be:

1.  Based on fact, not allegations or self-described disability.

2.  Supported by hard objective medical records (from doctors).

3.  Supported by the complex system of rules and regulations of the Social Security Administration, such as the 20 Code of Federal Regulations, Part 404.

    Procedural knowledge of the Social Security system is also important.  You have to know how to deal with Social Security.  

    I believe that most hearings are won or lost BEFORE the claimant steps into the room.  It is won or lost on the preparation that has been done weeks or months before the hearing.  Prior to the hearing, a lot has to be decided and done:

  • What is the legal theory of the case?  Can the case be won because the claimant meets or equals a Listing?  Can it be won using the grid rules?  Is there evidence for a Compassionate Allowance?    What is the claimant's Residual Functional Capacity?  
  • How will age, education, past work experience and the claimant's Residual Functional Capacity (RFC) play into the decision?
  • Which age category does the claimant fall into; thus, which rules apply to the case?  What is the claimant's legal "burden of proof"? 
  • Can we prove that there are no jobs in the national economy that the claimant is now able to perform?  Social Security's vocational expert (VE) will probably offer jobs that can still be performed, and this will get the claim denied (again)?
  • How could a form from a doctor help the chance of winning the appeal?  How do we obtain that form?

    I think most claimants believe that telling a good story will be enough.  If they explain to the judge how badly the need benefits, the judge will feel sorry for them and just award benefits based on the claimant's own testimony.  It doesn't work that way.  You'd be shocked to know how little sympathy the judge has and how the system requires him/her to apply the law.  It's the law that will determine whether you get a benefit or not.

    When a new client walks into my office the first thing I do is analyze the burden of proof?  What must we prove to win a benefit at the hearing?  Is there a winning strategy here?  Can we meet a Blue Book Listing or a grid rule?  If not, how's the best way to proceed? 

    There are 2 ways to approach a Social Security disability hearing:  The unrepresented way, which is to stumble along in the dark and hope for good luck without much specific preparation.  And the professional way, which is to understand the legal complexities of the case and prepare to prove eligibility for disability benefits within the confines of Social Security law.

    I might add one more thing.  There are many different definitions for "disability."  Your insurance company may use one definition.  The Veterans Administration (VA) may use another definition.  Your doctor may have still another meaning for the word.  The only thing that matters is how the Social Security Administration defines "disability."  We must meet their particular definition of what it means to be "disabled."

    Are you headed for a hearing?  You may chose the Forsythe Firm to help you prepare and process the hearing.  Or you may hire someone else.  But please don't walk into a hearing without adequate preparation and expect a good outcome.  It's very unlikely to happen. 

 

     

 

 

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