Yesterday I wrote about a fundamental fairness issue that currently exists at Social Security disability hearing offices. Publically available statistics document that the approval rates by judges within any given hearing office vary wildly.
If you happen to draw Judge A, for example, you have a 70% chance of winning, whereas if you are unlucky enough to draw Judge B, your odds may be 30%.
Imagine that this variance existed at international skating or gymnastics competition. One judge might score a participant at 9.85 out of 10.00, whereas another judge might score that same participant at 6.5. National athletic committees would not stand for such absurd results but no one says a word when Social Security recipients are basically asked to play the lottery with their futures.
I don’t blame the judges, by the way. The judges before whom I appear work very hard – it just seems that SSA does not give them clear standards for how they are to do their work.
Unless and until Social Security chooses to address this problem – and in my view, the problem has to do with training and evaluation of the judges – we as claimants and claimant’s lawyers are stuck with this system.
Over the past few years, I have spent a good deal of time reading carefully the favorable and unfavorable decisions in an effort to quantify why a judge might deny a case that another judge would likely approve. In other words there are clients I have represented who, after spending time with, would clearly not be able to sustain on-going employment but their cases are nevertheless denied.
There are three main factors in these denied cases that jump out at me:
First, high denial judges tend to disapprove cases where there are not on-going treatment records. These judges will not accept the explanation that you have not gone to the doctor because you are not getting any benefit out of the treatment and you can’t afford to keep going. From the judge’s perspective, if you have a significant medical problem, you need to be going to the doctor, even if that means going to the emergency room.
Not having the money to go does not seem to qualify as a good excuse – if you do not have any money, go to the ER, or run a tab with your doctor until the doctor refuses to treat you.
And expect that a “no treatment” judge will ask you if you smoke, drink alcohol or use street drugs. They will take the position that if you can find money for cigarettes, drugs or alcohol, you could have been using that money for medical treatment.
Secondly, high denial judges expect to see evidence from a treating doctor about your capacity to perform various work like activities. I have written previously about the importance of a functional capacity form and this is why one of these forms is becoming a necessity.
The State Agency – the folks who have denied you at initial and reconsideration – ask their non-examining physicians to complete a functional capacity form. Obviously that form does not identify disabling levels of impairment because you were denied.
In the absence of a form from your doctor, the “no evidence” judge will adopt the State Agency functional capacity form and deny on that basis.
Finally, another common thread in the decisions by high denial judges is almost complete reliance on the medical record and little or no consideration of your testimony. If the problem you describe is not set out clearly in the record, nothing you say is going to convince a “record only” judge otherwise.
I know that the Appeals Council and judicial review personnel from SSA do review approvals and there is increasing pressure on judges to justify their decisions by focusing on evidence rather than on unsupported testimony.
So, as I move forward in preparing my cases for hearing, I simply assume that the judge assigned to my case will expect extensive and on-going treatment records, and a functional capacity evaluation.
My goal with testimony is to demonstrate that my client does not have an attitude of entitlement and that he has not become invested in being disabled. Beyond that I do not assume that testimony will help me.
Like it or not, these are the rules that currently govern hearing adjudication in the world of Social Security disability. The more you can play by these rules the better your odds will be to win a favorable decision.