My colleague and fellow Tulane Law School alumni Gordon Gates recently published a timely article on his blog discussing the disturbing trend that allowance rates by Social Security judges are down sharply.
Rumors have been floating around the Social Security representative community that Social Security has issued a directive to judges encouraging them to approve fewer cases. SSA officials have denied this, although I hear that Freedom of Information requests have been filed to investigate further.
Gordon notes that in his jurisdiction – Maine and New Hampshire – SSA’s own statistics show that allowance rates are down across the board – sometimes by as much as 20%. The same case that would have been approved last year may be denied this year – perhaps for no other reason than SSA’s need to save money.
The trend that Gordon writes about seems reflective of a culture of secrecy that permeates Social Security.
- They apparently have new standards for approving cases, but they will not tell us what has changed.
- Approval rates by judges in the same hearing office may vary by 50% or more but SSA has done nothing to address the arbitrary nature of claim adjudication.
- Judges are asking claimants if they have filed for unemployment benefits and are using that fact as evidence that a claimant has the capacity to work (I question the logic of a correlation)
- As of January, 2012, SSA will no longer reveal to representatives or claimants which judge will be assigned to a particular case – thus making it more difficult to prepare for hearings
It is not too difficult to see a trend here – Social Security’s disability program is running out of money and SSA will henceforth make it more difficult to recover disability benefits.
From my perspective as a claimant’s lawyer, I can adjust to tighter standards but my plea to Social Security – reveal the new standards so I can properly advise my clients.
What Can a Claimant Do to Improve his Chances in this more Hostile Environment?
Gordon raises the very salient point that you, as the claimant, can greatly improve your chances at a favorable decision by visiting your doctor regularly. Yes, doctor visits are expensive but the days when a judge would accept your pain testimony without a supporting medical record are over.
Every week I have to turn away clients who most likely are disabled but I can’t see a way to win their case because there are no supporting medical records.
In additional to visiting your doctor to build a medical record, you can greatly improve your chances at winning by asking your doctor to fill out a functional capacity evaluation form.
A functional capacity argument is the most common theory of disability that judges use to decide cases. When I make this argument on behalf of a client I am saying to the judge that my client’s capacity to perform even a simple, entry-level, sit-down, “warm body” job would be so impacted by:
- inability to concentrate
- inability to get through a day without lying down
- need to take excessive unscheduled breaks
- need to miss excessive days from work
that my client would not be reliable enough to sustain competitive employment
Independent vocational specialists, who appear as expert witnesses at most hearings, will testify that an employee with too many of these reliability problems could not sustain competitive work and would this not be employable.
If your doctor will identify several of these functional capacity limitations on a functional capacity form, you greatly improve your chances at winning because most judges will incorporate a treating doctor’s functional capacity conclusions in his questions to the vocational witness.
I therefore advise my clients to ask their treating doctor if the doctor will agree to complete a functional capacity form. If the doctor says “no” or wants too much money to fill out the form, my client may want to get another doctor.
So, in addition to treating with a doctor ongoing, I think it is equally important to find a doctor who will support your disability claim by filling out a functional capacity form.