Will I Have to Appear Before a Judge in Every Case?

Is it Possible that I Can Win my Case
Without Appearing at a Hearing Before a  Judge?

  The Social Security decision-making process is unwieldy and time-consuming.  When you first file (your initial application), your case is opened by an office  called the Disability Adjudication Section (the D.A.S.) which is part of the  State, not Federal, government. The D.A.S. adjudicator will interview you and  request medical records from your physicians. After about 3 months, the  adjudicator will issue a decision.

Getting a Decision at the Initial Application Stage

   It has been my experience that D.A.S. adjudicators are often overworked and  unable to spend the time necessary to develop your case file. In addition, by  law, adjudicators have specific guidelines that they must follow when evaluating  your case. For this reason, many deserving cases are denied at the initial stage  because records were simply not returned by doctors or because a medical record  does not contain language discussing work activity limitations. Although Social  Security is working to change the D.A.S. position, most claimants never have the  opportunity to speak with the adjudicator deciding their case, and most  adjudicators are too busy to spend as much time as they might want to analyze  each case.

   The D.A.S. adjudicator's decision denying your case is mailed to you in a  letter that briefly explains why you were denied. This letter also advises you  that you have 60 days to appeal, although the appeal forms are not mailed to  you.

 

   If you follow-up with Social Security, you (usually) will be provided with  an appeal form called a Request for Reconsideration and a 6 page Reconsideration  Disability report. As you might imagine, many claimants fail to appeal, and  those that do often find the lengthy paperwork difficult to complete. For this reason, I find that many of my clients retain me to prepare and submit their reconsideration paperwork and to continue representation thereafter.

   One added bonus - I have found that appeal paperwork filed electronically tends to result in faster decisions and faster processing when the case is moved to the hearing office.  My paralegals - Judy and Cameron - are comfortable and experienced with Social Security’s electronic filing procedures and we file our appeals and evidence updates electronically.

Getting a Decision at Reconsideration

   If you complete your Reconsideration paperwork, it is sent back to the D.A.S.  where another adjudicator reviews your file. It has been my experienced - and  this is backed up by Social Security statistics - that very few cases are  reversed at Reconsideration. Your best chance at winning at recon would be if you see that compelling medical evidence was not received or considered by your adjudicator and you are able to get this evidence to the adjudicator with a cover letter that explains exactly how this evidence shows that your case meets a listing. 

   The Reconsideration process takes about three to four months and usually results in a denial.  Social Security has been looking closely at the value of even having a reconsideration review and it is likely that this stage of the process will be eliminated at some point in the near future.

   If your case is denied at Reconsideration, the Adjudicator's decision denying  your case will be mailed to you with a brief explanation and a notice that you  can appeal by requesting a hearing within 60 days. Again, no hearing request  paperwork is enclosed,  although it will be sent to you if you ask.

Getting a Decision at an Administrative Law Judge Hearing

   If you request a hearing, you will receive an acknowledgment and a letter  advising you that you can expect to wait about a year. During this year, your  file will be transferred from the D.A.S. to the Social Security hearing office  called the Office of Hearings and Appeals (the O.H.A.). After about a year, you  may receive a notice from the Judge to whom your case is assigned advising you  that your file is being worked up. Thereafter, you will receive a hearing notice  setting the time and place for your hearing.

When to Get a Lawyer Involved

   I get involved in cases at all levels of this process, although most of my  clients hire me after receiving their initial denial. Many clients feel more  comfortable having my firm complete and submit the appeal paperwork within the  60 day deadline. In addition, as noted above, I make sure that your medical  record, including recent treatment, is sent to the Adjudicator or the Judge at  the correct address prior to the hearing. Most importantly, I identify a  strategy to win your case and obtain forms, letters or other documents from  physicians and others to prove your case.

   One thing that Social Security will not tell you - once the case leaves the State Agency adjudicator you (the claimant and your lawyer) are responsible for updating the medical record in your file.  In fact, updating exhibit files is a big part of what we do for our disability clients.  If you do not update your exhibit file you risk the very uncomfortable situation of appearing before a judge with a file that was last updated 2 years previously - not a good omen for success in a hearing.

  Obviously, not all cases need to be heard by a Judge. It has been my experience, however, that many seriously ill claimants will not be approved at  the initial or reconsideration adjudication level.  As such, I advise all of my clients to prepare themselves for the likelihood that they will have to appear before a judge at a disability hearing.

 
 
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