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By Matt Greenbaum
Lecture I
AN OVERVIEW OF THE SUBSTANTIVE LAW
I. The Social Security Disability Program
A. SSD Text 20/40 quarters
B. SSI -- Asset and Income tests
C. Financial & medical benefits
II. Disability Requirements
A. The Sequential Evaluation
B. "Gainful Activity"
1. 2004 SGA test amount(Non-blind): $810
2. 2004 SGA test amount (Blind): $1,350
3. Trial work services: $580
C. Severity Test -- significant limitation on one’s ability to work.
D. Listing of Impairments - Appendix I Subpart P of
the Regulations following 20 C.F.R. §404.1598
E. Equivalency
F. Residual Functional Capacity (R.F.C.)
G. The Grids
1. Provide a framework for analyzing the combined
effect of the claimant’s current R.F.C., age, education, and work
history.
2. Transferability of skills
3. Ability to perform full range of sedentary
work.
4. Non-exertional impairments - grids don’t
apply.
5. Procedure where both exertional and non-exertional
impairments exists.
a. First consider limitations
b. How much of the individual’s capability is
further diminished by the non-exertional limitations.
Lecture II
HOW AN APPLICATION PROCEEDS FROM THE INITIAL LEVEL THROUGH THE ADMINISTRATIVE LAW JUDGE LEVEL
III. The Initial Application and Reconsideration Steps
A. Where and how to apply
B. Retroactivity of benefits
1. SSD benefits - one year from date of
application
2. SSI benefits - not retroactive
C. Importance of timely filing of appeal - 60 days
from date of denial.
D. Importance of early involvement in the application
process.
1. Adverse medical consultative exams
2. Representing the illiterate or mentally
impaired claimant
IV. Preparing Your Case
A. Information needed at initial meeting with claimant.
1. A list of all doctors they have seen in a
private office and those doctors’ addresses and phone numbers.
2. A list of all hospitals and clinics that they
have ever been to with the purpose and approximate dates of
treatment.
3. A list of all impairments which make it more
difficult for them to function at work.
4. A list of all of the places that they have
worked in the past 15 years, or, if they have engaged in heavy
physical labor for the past 35 years, the approximate dates of work
and the type of work done there.
5. A list of drugs they are taking including
non-prescription drugs with dosage, frequency, purpose, and any
adverse effects the drugs produce.
6. Everything that has anything to do with the
Social Security process or their medical condition.
7. All medicine bottles and prescriptions
B. Initial Interview Suggestions
1. Claimant’s statement
2. Review all Social Security, Workers’ Comp.,
Long Term Disability and other materials in claimant’s possession
which may be relevant to claim
3. Requirements of in-depth interview
C. Copying Administration’s file (see 20 C.F.R.
§404.400-410).
D. The need for a second meeting with claimant prior
to hearing.
E. Reports of treating doctors
F. Pre-hearing memo to Administrative Law Judge
G. Requirements of timely requests or need to
establish "good cause" for late filing
1. Serious illness preventing the claimant from
contacting SSA;
2. Death or serious illness in the claimant’s
family;
3. Destruction of records by fire or accident;
4. Claimant’s diligent search for favorable
evidence when not concluded when time period expired;
5. Claimant made an oral request within the time
limit concerning the SSA decision and filed a written request within
60 days of this contact;
6. Claimant was furnished incorrect information
by an SSA employee about his/her right to appeal;
7. Claimant never received a notice of denial,
either a reconsideration determination in most cases, or a notice of
cessation of benefits;
8. Claimant made a good faith error in sending
the hearing request to another governmental agency; and
9. "Unusual or unavoidable
circumstances" which mean that the claimant could not have been
expected to be aware of the time limit.
Lecture III
THE ADMINISTRATIVE LAW JUDGE HEARING
A. Keeping your client focused on the issues
B. Bringing effective witnesses to the hearing
1. Supervisor at time of disability
2. Neighbors having opportunity to observe
3. Former co-workers
4. Rehabilitation workers
5. Health Care providers
C. Preparing for cross-examination of vocational expert
1. Decision of whether you should cross-examine
2. Effective cross-examination technique
D. Determining issues at the hearing
1. Onset date
2. Date late insured problems
3. Unsuccessful work attempts
4. Amending alleged onset date from application
5. Re-opening of prior applications
6. Whether past work was SGA
7. Skills of prior work
8. Exertional/non-exertional limitations of client
9. Does client meet a listing?
E. New procedures for easing the back-log
1. Attorney/advisor decisions
2. "Re-reconsideration" decisions
3. Adjudication Officer proceedings
Lecture IV
POST-HEARING PRACTICE AND SOCIAL SECURITY DISABILITY LAW RESOURCES
V. The Appeals Council Stage
A. Filing within the required 65 days
B. Only most egregious ALJ errors usually corrected
at this level but exhaustion of this last administrative step is
required before filing of Federal Court Complaint.
C. Methods of Appeal
1. Procedure for requesting copy of hearing tape
and exhibits as well as additional time period to review materials
and prepare a formal response.
2. Form #HA-520-U5 - Request for Review
3. Helpful to send by certified mail, return
receipt requested.
4. Short letter focused on the strongest issues,
reference to Social Security Act regulations and rulings. Abundance
of case cites not particularly helpful.
5. Own motion review
a. 20 C.F.R. §404.969 and §416.1469 permit
the Appeals Council to initiate a review of the ALJ’s decision.
b. Claimant must be notified by the Appeals
Council within 60 days of the ALJ’s decision.
c. Claimant must be paid interim benefits if
the Appeals Council does not issue a final decision within 110
days after the ALJ decision. 42 U.S.C.A. 423(h) and 1383(a)(8)
VI. Appeals to District and Circuit Courts
A. The Current System
1. Scope of District Court Review
2. Procedure: Filing a Complaint and Motion for
Summary Judgment
3. District Court Decision
B. Re-engineering proposal -- Post ALJ decision
1. Create Reviewing Official (RO) position
a. Separate appeal to the ALJ level not required
b. Decision called "Pre-Hearing Report"
c. RO Decision not accorded a presumption of correctness
2. Eliminate Appeals Council
3. Eliminate U.S. District Court Review
VII. Process of Obtaining Fee Authorization
A. Award Certificate
1. Review amounts and dates of entitlement for
all persons in family entitled to benefits.
2. Calculate back-due benefits.
3. Withholding of back-due benefits for possible
attorney’s fee.
a. SSD cases - 25% of back due benefits
withheld
b. SSI cases - no withholding of back due
benefits for attorney’s fees.
B. Fee Approval System
C. Filing of Fee Petition
1. Itemization of hours
2. Completion of form #1560-U4 - Petition to
Obtain Approval of Fee
3. Authorization to Charge and Receive a Fee
a. Direct payment from SSA
b. Payment to be received from claimant
D. Appeal of Fee Approval when Attorney is awarded
less than requested.
E. Legislation in Congress
VIII. Social Security Disability Law Resources
A. West’s Federal Social Security Laws
B. West’s Social Security Reporting System-containing
most of the relevant case law and rulings in this area.
C. The Department of Health and Human Services
handbook Rules for Determining Disability and Blindness.
D. A recent guidebook by Charles Hall - a past
president of NOSSCR called the Disability Practice Guide.
E. A four volume loose leaf series the Social
Security Practice Guide published by Matthew Bender.
F. A good medical dictionary, such as Stedman’s
G. Either a Physician’s Desk Reference or "Drug
Facts and Comparisons" manual by Lippincott.
H. Dictionary of Occupational Titles
I. Employment Statistics Quarterly and related
publications.
J. CD-ROM Technology
K. Proposed E-Dib folders
Board.
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