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The Winning Edge: Providing Effective Representation in Social Security Disability Cases
11/5/1999

By Matt Greenbaum

Hardly a day goes by that I am not at OHA. Sometimes I don’t believe what I am seeing. The conservative Social Security Administration has undertaken a brainwashing program called Process Unification Training, in a successful effort to drive down the rate at which Administrative Law Judges are granting benefits. The important Senior Attorney program, which grants favorable decisions on an expedited basis to extremely needy clients has received the death sentence from the Administration, and is set to expire.

Unfortunately, the time it takes to finally get to a hearing is going to increase. Indeed, we may look back in a year or two and be amazed that once it took less than a year from the filing of the Request for Hearing to get a hearing date. Why do I say that? Because, finally, the Continuing Disability Review process appears to be cranking up. This will flood the system with new cases, and almost all will wind up at OHA.

Because the system is moving so slowly, I believe it is crucial to maximize our chances to win each and every case. I have outlined ten areas where I feel advanced practitioners can gain a competitive edge over their less-experienced brethren.

DRUMMING UP BUSINESS

Anyone who isn’t advertising should be. To make a living doing Social Security disability law, one has to have a volume practice. How else can you pay your new & improved 1999 income tax on an average fee of $1,500.00 per case if you don’t have a large pool of clients? For every dollar I have spent in advertising, the direct financial return has been at least five and sometimes ten-fold what I have put out. The indirect return, namely referrals from other attorneys, old clients seeing my name and referring new clients, and general recognition in the community is overwhelming. The more cases that are made available to you -- the more good cases you can accept. Just think -- start advertising, and you can be standing up here on the stage at the next CLE conference, making a fool out of yourself.

SEPARATING THE WHEAT FROM THE CHAFF

Let me go on record as disagreeing with some very experienced practitioners who have lectured at conferences and who have advocated accepting virtually every case that walked in the door. While all of us would have much larger practices if we did this, not everyone who calls me is disabled! I refuse to take the vast number of Zebley cases involving "asthma" or "learning disabilities" because most of these cases are pitifully weak. Moreover, while people with one arm or one eye deserve my sympathy, they usually don’t merit my time -- unless there is some accompanying impairment. I firmly believe that to build a reputation among the ALJ’s they must realize that every case I bring before them is a colorable claim. If the most liberal ALJ in the building won’t grant the case, why accept that person as a client?

INTERVIEWING NEW CLIENTS

Many large firms let paralegals conduct the initial interview. I don’t care how experienced your clerical or paralegal staff is, having a lawyer spend a few minutes with each new client is instrumental in building a solid practice. Much of the fundamental questioning about treating sources and prior relevant work can be done by staff, but the client is hiring you to take the case.Moreover, in a few minutes of sitting with the client, you can rapidly size up what the case needs in terms of medical development to make it a winner. The lawyer can also make a few observations in each interview that can help the case at the hearing level as -- "make sure the ALJ sees client walk". "Show ALJ client’s left leg."

Not only is the client happier about seeing a lawyer, but the attorney can gain some insight into the client’s demeanor and medical situation with a brief visit. When you get sick don’t you want to be seen by the doctor?

DEVELOPING MEDICAL EVIDENCE

When a client has a treating physician, we try to get the doctor to tell us whether his patient meets a listing, or if not, whether the client has an RFC which would lead to a favorable decision. If the doctor won’t write a report or fill out the RFC forms, only then will he accept medical records. If the hearing is two weeks or so-away, and the doctor has been too lazy to do any of the above, one of my staff will begin to pester the physician’s office. I also sic the client on the doctor, and I tell the client that the doctor has refused to cooperate, so far. You would be surprised how quickly your fax machine starts ringing when a recalcitrant doctor is confronted by an angry patient!

When a client does not have a treating physician, or goes to a hospital clinic which does not have a doctor willing to write a report, the lawyer mst decide how best to develop medical evidence. If the case appears strong, (Client is over 50, or client appears to have low IQ) I will send the client to a physician of my choosing, and I will advance the costs. ( I do not try to recover these costs if we lose the case). However, if the case does not appear to be very strong, I will merely recommend that the client raise the money for an evaluation and report from a doctor of my choosing. Over the years many, many clients have raised the requisite funds, and have benefitted from the doctor’s report.

A word about the doctors we use. I never send a client to a "plaintiff’s doctor". We use only doctors who have a reputation as conservative or who are employed at local university medical schools. While this means that not every client is found "disabled" by the doctors, the ALJ’s have been uniformly impressed with the reports that do find the clients to have a severe or disabling impairment. You are in this for the long run. Enhance your reputation. Don’t use professional whores.

CAN ANYTHING BE DONE AT THE INITIAL OR RECONSIDERATION LEVELS?

I doubt it. Louisiana has a dismal 93% rejection rate at the recon. level, and also the highest initial level denial rate. The only success I have had is in pointing out to the district office or DDS that a treating physician has concluded that a listing is met. Not much else has helped. The adjudication officer procedure yielded only one out of six cases being granted. Thankfully, it has gone out of existence.

I would welcome a discussion of what more we can do at these levels. Are we not being aggressive enough early on, or would any extra effort merely be a waste of our time?

GETTING READY FOR THE HEARING

As soon as we know when the hearing date will be, we make a systematic effort to get all medicals into the ALJ well before the hearing. Of course, some doctors wait until the last minute. When medicals arrive a day or two before the hearing, we make a special effort to bring the material directly to the hearing assistant who assembles the file. Mailing medicals in a few days before the hearing runs the risk that the mail will not be associated with the file in time for the hearing. This is a particular problem at our OHA. One ALJ has "seceded" from the central mail system and has ordered all attorneys to place his mail directly in his mail box. Naturally, he grants a lot.

Prepping the client the day before the hearing has proven a great boon to our success. In 20-30 minutes you can familiarize yourself and the client with the key issues and key questions that the ALJ will want to answered. Yes it is time consuming. But I cringe when I sit in an OHA waiting room and a lawyer walks in shouting his client’s name in an effort to identify the client. If you haven’t seen the client until 5 minutes before the hearing, you may know the medical evidence, but you won’t know enough about the client (pain, inability to function around the house, why they don’t do PRW) to win the close cases. If you don’t want to spend the time with the client, you shouldn’t be doing this!! We find that prepping the day before the hearing relaxes the client and helps them maximize their testimony the next day. It also allows the lawyer to let things marinate over-night and sometimes an alternative winning theory emerges at breakfast.

A FEW THOUGHTS ABOUT THE HEARING

Since you have been practicing law, you have heard about having a "theory of the case". But putting across that theory may be a bit more difficult. I am ready to give a closing argument when I walk in the door of the hearing office. Judges can be swayed, but they need something to work with. A persuasive closing can make the difference in a borderline case.

When the ALJ holds the record open after the hearing, I always write a post-hearing analysis of the case upon the receipt of the new material. A good written summary can also tilt the ALJ in your client’s favor. If it doesn’t, at least you have a leg-up on your Appeals Council brief.

Prior to the hearing, you should also make an assessment as to how much rein you need over your client. As you know, some clients speak just enough when prodded, some go off on lengthy tangents which are apt to irritate a judge, and others need to be virtually led. Only in rare cases, where I have very articulate clients, do I ever let the client speak without guidance. ("Do you have anything else you’d like to tell ALJ?") In those instances, some clients have given emotional closing remarks which clinched the case. On other occasions, ALJ’s apt to deny a claim have used the claimant’s remarks to hang them. Know your client (and your ALJ).

HEARINGS WITH EXPERTS -- CROSS-EXAMINATION

Other courses today will deal admirably with the need to confront VE’s & ME’s who think it is their God given duty to conclude that your hobbled client is capable of working. The problem we face every day is a complete overuse and misuse of these "experts". Nobody can teach you how to cross-examine. I can only suggest my general theory.

I have said above that you must know your client and your ALJ. This does not hold true for VE’s in my locale, because almost each and every one is an insurance - company oriented finder of jobs. Why, even a man with a 6th grade education with two back surgeries can be a cashier -- or so, they say. It has been my experience that VE’s don’t know the D.O.T. as well as they say they do. My philosophy is to get them to admit it’s the Bible, and then lock them into erroneous testimony. I do not try to destroy them at the hearing; I do not bring a portable computer to the hearing -- I simply don’t think I am fast enough on my feet to crush a VE successfully at the hearing. Moreover, why educate them on their mistakes? I find it far more effective to go back to the office in a bad mood, look at the D.O.T., and write the ALJ a scathing letter showing how the VE is a nincompoop. If the ALJ won’t go along with a good argument on defective VE testimony, Appeals Council often will. As discussed below, they appear sensitive to VE testimony that is given too much weight.

One other note in this field. From time to time I have hired a VE from the OHA list to write a report prior to a hearing. I have had far less success with this than with paying a physician to fill out an RFC form. An ALJ can deflate your VE’s report far easier than he can refute a treating source RFC.

That brings us to cross-examination of an ME. ME’s are like ALJ’s. Some are claimant-oriented, some are neutral, and some are downright nasty. Knowing who you are dealing with is crucial. ME’s are highly vulnerable because they have neither treated nor examined the claimant. While it is generally hard for me to change a doctor’s mind in the hearing, a doctor can be effectively neutralized by showing that he did no testing, that he never laid eyes (or hands) on the claimant, and the treating doctor obviously knows his patient far better. Almost every ME will concede that his "diagnosis" or his view of a claimant’s RFC must take a back seat to the conclusions of the treating doctor. The importance of confronting an ME with the treating physician’s RFC cannot be overly stressed. Either the ME must agree with the RFC, or his disagreement must be given little weight.

A final comment. We had trouble in years past with ALJ’s hand-picking VE’s and ME’s. Make sure that this is not happening in your jurisdiction. ALJ’s must rotate ME’s and VE’s in a random fashion, and if the HOCALJ won’t enforce this regulation then a letter to the RALJIC should do the trick.

APPEALS COUNCIL

This has got to be one of the most unpredictable and fickle of all legal tribunals! I have been practicing law for twenty-five years and I cannot predict an Appeals Council outcome. There is no consistency here.

I take only selected denials to Appeals Council. I want them to see only the most ridiculous decisions, and I do not want to dissipate my credibility on a 30 year old with a gunshot wound where the medicals did not develop as I hoped they would. That said, I must admit that I do appeal sometimes for emotional reasons as well as legal ones. If the ALJ was rude, or twisted facts, or painted my client as a conspirator of some sort, I am more apt to appeal than if the ALJ simply weighed the evidence and felt that the client could work. ALJ’s with reputations for denying should be appealed often, and new ALJ’s are good sources of remands also.

Our most effective manner of appealing is to show that the treating medical source was not given sufficient weight or that an ALJ relied upon VE testimony which is refuted by the D.O.T. Arguments about meeting a listing meet with only variable success.

Our approach is to write a three or four page "letter memorandum." We cite the D.O.T. and Social Security Rulings far more often than case law. Make sure your clients know that it maybe 12-18 months before they will hear a peep.

Don’t you just love those outright reversals?

FEDERAL COURT

Contrary to the experience of other practitioners, we have not been very successful in Federal Court. Our Magistrates and judges are largely Reagan holdovers who have no compassion for the disabled. All too often they find "sufficient evidence."

As a result of this stacked deck, (and an even worse Fifth Circuit) we are extremely selective about filing suit. Nowadays, there is virtually no oral argument, so I feel like I never really get a chance to convince the judge. This must be the way the claimant feels at the initial and reconsideration level --no opportunity to be seen or heard -- just a paper review!!

My only advice is to pick the most outrageous denials and try to hammer home the unfairness. Please don’t make bad law for the rest of us by appealing all your cases into Federal Court.

SOME CLOSING THOUGHTS

I enjoy what I’m doing because it’s a good, clean practice, and we are helping people. I urge you to take a long-term view of your practice by using conservative or unbiased physicians to examine your clients. Using a "plaintiff’s doctor" may help you in the short-term, but your credibility will ultimately suffer.

We must recognize that not every claimant is disabled, and I call upon you to reject spurious claimants.

In the future, we will be called upon to decide whether to re-represent hundreds of claimants for whom we got benefits and who are about to be reviewed. Each of us must determine whether the system, and our law practices, will survive if we argue that every claimant that we ever won a case for is perpetually disabled.

I invite your comments.

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