Lessons learned in 2012 – Always appeal a denial if you think you have a deserving case

For the remainder of 2012 I am going to post on what I have seen in the area of Social Security Disability law this past year both good and bad.  One of the most interesting observations I have made in both cases from San Francisco and Vallejo is that there were quite a few that should have been granted at the initial stage of application but were not.  Had my clients not appealed, they would not be receiving Social Security Disability today.

In all of the cases, the Social Security Administration sent my clients to a consultative exam performed by one of their physicians.  The Social Security Administration sends applicants to consultative exams when they feel they do not have sufficient information from the applicant’s own doctors to make a decision.  (See the regulations at 20 C.F.R. Section 404.1519a, “When we purchase a consultative examination and how we will use it.”)   In each of my cases, the physician indicated that my clients would have restrictions physically or mentally  due to their impairments.  The restrictions that they found, in these particular cases, were so restrictive that they precluded my clients from their past work or other work.  Yet, in each case, the Social Security Administration found a way to disregard their own doctor’s opinion.  This is surprising because usually Social security’s doctors find that if a person is breathing, he or she can work.  So, when a Social Security doctor finds the opposite, that a person has a lot of restrictions, you would think that Social Security would give it some more thought before denying the application.

Here is an example from a recent case.  My client is under 50, has a 10th grade education, suffers from schizophrenia, paranoid.  He also suffers from a shoulder injury which the Social Security consultative medical examiner determined would only allow him to do occasional reaching with the affected arm.  Social Security’s consultative psychologist wrote an eight page evaluation.  The length of this report is very rare coming from a doctor hired by Social Security.  The consultative psychologist found that my client would have limitations in almost everything.  For instance he indicated that my client could not perform detailed or complex work,  would have difficulties performing simple repetitive tasks, would have difficulties completing a normal work day or work week, needed help with reading, writing, and arithmetic.  The list went on.  In my client’s case, the consultative examinations helped him to document his limitations.  In fact he will win based on the findings from these examinations.  If he had not appealed, we would have not known that the consultative examinations were helpful to him in establishing his claim for disability.

The lesson I learned from this case and the lesson that I wish to pass on is always appeal if you think you have a good case, even if a lawyer does not wish to take the case.  You never know the reason why the Social Security Administration denies a case.  (The reasons listed in decision notices are not the real reasons why a case is denied.)  It is best to appeal and pursue your rights.

The top four reasons why Social Security Disability cases are denied at the initial and reconsideration stages of review

In thinking about my cases over the past year, I realize I can see patterns in why Social Security Disability cases are denied.  I am going to summarize them here.  Before I do, however, a few points are worth mentioning.  First, I only see the denied cases.  I see people who have been denied Social Security at the initial and reconsideration stages.  People who win their cases do not seek out my help.  Thus, it seems to me that Social Security is always denying cases because that is what I see.  Second, my comments are only based on my own cases.  Other attorneys may have different experiences.  With that in mind, here are the top four reasons Social Security Disability cases are denied.

1.  The claimant has had little or no medical or mental health treatment.

A claimant has to prove he or she is disabled.  If there are no medical records because the person has not sought out treatment, the Social Security Administration (“SSA”)  is likely to deny it.  If a claimant does not hurt badly enough to see a doctor, the SSA feels the claimant must not be disabled.

Now, I often hear my clients say that they have no medical insurance and they cannot obtain treatment.  This may be true for some folks, but if you live in Solano County or San Francisco County, indigent claimants may obtain medical help.  In Solano County, folks may apply for County Medical Services Program, “CMSP.”  In San Francisco, the program is called “Healthy San Francisco.”  There is no excuse for not obtaining medical care if you live in one of these two counties.  Many other counties also have similar programs.

2.  Social Security did not obtain the records prior to making a decision

At least 95% of the time in the cases that I see, the SSA makes a decision based on an incomplete record.  Although Social Security may request the records, they do not always receive them.   In my own practice it often takes multiple attempts to obtain medical records.  My assistant and I spend a lot of time following up on records’ requests.  Just because a claimant tells Social Security about a medical doctor who has provided treatment  does not mean that Social Security orders records from that source.  If a claimant wants to make sure that every record is considered, he or she needs to obtain the records and bring or mail them in to the Social Security district office.

It is often appalling what I see when I receive a copy of the file after my client has requested a hearing in front of an administrative law judge.  (Soon after the request is filed, the hearing office mails the attorney a CD and/or a link to obtain the file online.)  Sometimes I see that the SSA made only one attempt to obtain records and did not follow up.

Other times I see that the medical source sent Social Security a bill requesting SSA to pay for the copies before they would send the records.  More often than not, SSA did not pay the bill and thus the medical source did not send the records.

Another common scenario is that a claimant alleges a condition which occurred two years ago but the SSA only requests one year of medical records.  SSA then denies the claim because the claimant did not prove he or she was disabled on or before a certain date.  The claimant was denied because Social Security did not request those older records!

3.  The claimant is under the age of 50

Sad, but true.  If a claimant is under the age of 50 and even with convincing medical and/or mental health evidence, the claim is likely to be denied.  The SSA believes folks under the age of 50 can work either at their past job or some other job.  The SSA’s attitude is if folks under 50 are not working, it is because they choose not to do.  This is not to say that folks under 50 cannot win.  They can win, but they win at the hearing stage – the third level of review.  It is rarely granted before then.

4.  The Social Security Administration works in a culture of “no”

In my opinion, the SSA’s attitude at the first two levels of review is, “How can we deny this claim?”  The review of a claim is not an objective look at the evidence at the first two levels.  They are looking for ways to deny.  When reviewing a file, I look at the internal notes of Social Security personnel.  The disability examiner’s language to the reviewing doctor is something like, “Can we affirm the prior denial?”  It is not written from a perspective of balance and fairness.

I see many files where people gave up after the initial or reconsideration stage.  They did not want to go forward with a hearing in front of an administrative law judge.  They then filed again.  They wasted time and they lost money in starting over again.  I think the SSA wants people to give up.  Do not be freaked out by the hearing stage of the process. This is actually the best level because you  finally will see the person making the decision.  You have the opportunity to tell the decision maker why it is that you cannot work.  If we could skip the first two steps of review and go immediately to the judge, I think the system would work faster and better.

What can be learned from these patterns of denials?   The most important concept to take away is that if you are a claimant, you will need to seek medical treatment.  In my review of cases, no treatment equals no benefits.  Another important lesson is that you have to collect the evidence if you want it considered.  You cannot depend on Social Security to do it.  Finally, you have to hang in there and expect to appeal.   The system is not set up to look at your case objectively from the start.   Chances are good that your claim will be denied at the initial and reconsideration stages through no fault of your own.  If you do not appeal, you cannot collect benefits.

I would be interested in hearing about  your experiences with denials and what patterns you all see.  Feel free to comment.

Report on California Disability Determination Services shows failure to properly adjudicate

On May 25, 2011, the Social Security Office of Inspector General published a report entitled., “Failure to Cooperate Denials and Initial claims Backlog at the California Disability Determination Services.”

As background, the Disability Determination Services (DDS) in each state performs the disability determinations under the Social Security Administration’s (SSA) Disability Insurance and Supplemental Security Income Programs.  The determinations are required to be performed in accordance with federal law and regulations.

The Commissioner of Social Security requested that OIG investigate the California DDS based on testimony presented to a Congressional committee that the CA DDS may have been improperly denying the claims of disability applicants who failed to return a 25-page form within 20 days.  (A claimant is required to cooperate with DDS in obtaining evidence about impairments from medical and non medical sources.)  When an individual fails to cooperate (“FTC”), the DDS will make a decision based on available information.  The testimony also questioned whether the CA DDS might have been concealing its backlog of initial claims by assigning them to fictitious employees.

The OIG reviewed 165,000 CA DDS claims for the period of July 1 through December 11, 2009.  Of these decisions, approximately 6,600 (4 percent) were FTC denials.  The Stockton and Sacramento branch offices had the highest FTC denial rates – 11 and 6 percent, respectively.  For their audit, the OIG randomly selected 150 FTC denials for review:  50 each from the Sacramento and Stockton branch offices and 50 from the remaining 9 branch offices.

Based on their review of 150 FTC denials, the OIG found 37 (24.7) percent did not comply with SSA’s policies and procedures.  Specifically, CA DDS did not:

  • evaluate and follow up on medical evidence submitted for 18 claimants;
  • request evidence, when required, for 7 claimants; and
  • contact third parties for 12 claimants who required special assistance because of mental impairments.

OIG also found that “CA-DDS branch offices’ interpretations of the FTC polices resulted in an inconsistent level of service for disability applicants.”  They “found no evidence that CA-DDS understated the size and age of its initial claims backlog.”

“The inappropriate FTC denials generally occurred because CA-DDS did not have adequate controls to ensure its employees complied with SSA’s policies and procedures.”

The OIG made specific recommendations on how to improve DDS’ adjudications and the Social Security Administration agreed to the recommendations.

You may read the entire report and find out what happened to the claims wrongly decided by clicking on this link: Failure to Cooperate Denials and Initial Claims Backlog at the California Disability Determination Services.

I think what we can learn from this type of report is that it is always worthwhile to appeal an adverse decision.  The OIG was only looking at a very narrow selection of cases.  We all know initial and reconsideration denial rates are high.  Chances are, some of them are incorrectly decided.