If you are denied Social Security
Disability Insurance or Supplemental Security Income benefits after an initial
application and reconsideration, you have a right to request a hearing within
60 days. Your case will be heard by an
Administrative Law Judge (ALJ), an independent trier of fact who is not bound
by the opinions of the medical evaluators who decide disability claims at the
initial levels of review. The Social Security Office of Hearing Operations is
one of the largest administrative law systems in the world, employing approximately
1,700 judges throughout the nation and its territories. While an administrative
law hearing is much less formal than a superior court hearing, and while the
Social Security disability determination process is non-adversarial, it can
nevertheless be fraught with pitfalls for some applicants.
Many applicants successfully
apply for benefits without the aid of a representative, but a seasoned advocate
can help others navigate these challenges and put their best case forward at a
disability hearing before an ALJ.
Young applicants have a harder
time securing benefits than older applicants.
Anyone under the age of 50 is considered a ‘younger person’ in Social
Security’s regulatory scheme. There are
literally fewer paths to a finding of disability for younger applicants. For example, the agency has promulgated rules
in a series of tables known as the Medical-Vocational Guidelines (also referred
to as “the grids”). Each rule sets forth
specific combinations of vocational factors (your functional capacity, age,
education, and work experience) that determine whether the agency will expect
you to perform other work if you cannot return to your previous work. Where
your factors match the criteria of a rule, the agency grants benefits under a
medical-vocational allowance.
However, of the more than eighty
grid rules, only one creates a presumption of disability for younger claimants.
This disparity suggests that the system is designed primarily with older
applicants in mind. Indeed, because young people are generally more vital and
resilient, they are typically not disabled by disease or injury at the same
rates as older applicants. This fact
underlies a predictable bias against younger applicants, that an advocate can
address in the presentation of your case.
Another all-too-human bias
affects the way claimants without obviously visible impairments are perceived. It
is difficult to predict how functional a person is just by looking at their
medical records. Conversely, it is just as difficult to tell how limited
someone is just by looking at them. Hence,
the hearing provides an opportunity for the ALJ to scrutinize claimants for the
credibility of their allegations. An
obvious difficulty presents when the signs and symptoms of a debilitating
impairment are not readily apparent. Someone with debilitating mental impairments, for example, might appear
physically hale. A good disability
advocate will tailor a hearing presentation to stress the elements of a claim,
and address potential biases where the claimant’s limitations aren’t visually
obvious.
Drug war era legislation amended
the Social Security Act so that disability benefits cannot be awarded where a
claimant has a drug or alcohol abuse disorder and would not be found disabled
but for that disorder. In a case with
active substance abuse, the ALJ must perform a subtler analysis to determine if
a claimant would still be disabled if they stopped abusing drugs or
alcohol. The analysis is tricky and
misapplication of the rule is a significant source of remands. Given the
federal government’s zero tolerance policy against drug abuse, it is no
surprise that most ALJs are wary of drug using applicants and often
misinterpret evidence of drug use as evidence inconsistent with disability,
rather than a predictable consequence of mental stressors. Clients with dual
diagnoses are especially vulnerable to this kind of bias, and are best served
by an advocate that can make a case that their underlying mental disorders
would still be disabling in the absence of drug abuse.
What most applicants don’t know is
that the hearing itself is intended to allow a claimant to comment on all
evidence in their file that is considered ‘inconsistent with disability.’ A
well prepared ALJ will question a claimant about such evidence in all
hearings. However, the agency is
notoriously backlogged and ALJs are not always well prepared. An effective
advocate will review the file ahead of a hearing and identify inconsistent
evidence, so that a claimant has the opportunity to be heard on issues such as the
failure to pursue a recommended treatment or take narcotic pain medication
despite significant pain complaints, or reconciliation of alleged hobbies such
as sports with a claimant’s actual physical capabilities. It is often helpful for a representative to
address inconsistent evidence in their hearing brief as ALJs must consider this
evidence when making a credibility determination.
If you are unsure whether
representation would benefit your Social Security claim, contact Mastagni
Holstedt, APC for a free consultation. Only thirty percent of claims are approved at the initial application
stage, and many applicants are discouraged from appealing because of the
wording of denial letters. But approval chances improve as a claim progresses
through the different levels of appeal, and the biggest opportunity for
advocacy comes at the hearing level.
Having an advocate at your side when you make your case to an ALJ
improves your odds of prevailing because an experienced representative will know
how to prepare a case that is specific to your needs and the content of your
evidence.
