In Lesson Four we addressed Initial and Reconsideration Appeals.  In this lessen, we’ll take you through the Administrative Law Judge Appeal process in detail. SSA Hearings & Appeals

A few months after you apply for a Reconsideration Appeal, SSA will notify you by mail of their decision.  Hopefully it is an allowance or reversal of the previous denial and you can submit your fee petition attachment to SSA and bill the client for services rendered.  If the Reconsideration Appeal is denied, you can go to the next level, the Administrative Law Judge (ALJ) Appeal.  Above this is the Appeal Counsel.  Disability Associates does not provide training for the Appeal Counsel level; in our opinion it is best left to an attorney.

If you are new to the case at the ALJ Level, you may be tempted to go back to Square One (the Initial Level) and start again.  You do have this option.  However, we find it is usually best to let the appeal to proceed.  The ALJ Appeal Level has some inherent advantages, and returning to the Initial Level significantly delays the process.  Since SSA has already developed and adjudicated the case at least once, you might as well save time and pursue a decision from where things stand.  

Requesting an ALJ Appeal

When you receive a denial notice, know your client will have gotten one too and will be wondering what happens now.  Call him/her immediately to reassure that all is not lost and that you recommend applying for an ALJ Appeal (if you do). 

If the client wants to continue with you have him/her sign and date another Form 1696.  Explain your basic plan of action for the next appeal both verbally and in writing - a task made much easier with our Olivia© system!  Establishing good communication with the client keeps him/her comfortable with your service.

Requesting an ALJ Appeal is easy.  Prepare an Appeal Request Letter or a Form 501:  ALJ Appeal Request for submission to the SSA Office of Hearings & Appeals, which is usually in your local DO or regional office, depending on state size and number of satellite offices.   At the same time, begin collecting any new evidence and updating your Formal Argument.  Then send:

1.    A signed Appeal Request Letter or Appeal Request Form 501 to SSA

2.    Copies of all new evidence pertinent to the appeal to SSA

3.     A signed copy of your Formal Argument to SSA 

4.    An Advocate action update letter to your client

It's best to send all this correspondence at roughly the same time, because once SSA has the Appeal Request you have ten days to submit your new Formal Argument.  Remember, you have sixty days from the date of the previous decision to submit your Appeal Request.   Use this time to collect and prepare your case.  Then when you submit your request you will also be ready to send your Formal Argument and evidence copies.

If you cannot put an effective application together in time, submit your Appeal Request and ask for an extension.  As with the Reconsideration Appeal, you must have good cause to extend the ALJ Appeal Request deadline.
 

Extending the Deadline

If you are new to the case at the ALJ Level, you may find the claimant has run out of time to file the appeal request, or you may need more time to create a winning Formal Argument.  In this situation, request a good cause extension.  SSA accepts the following as cause for an Appeal Request extension:

1.      Claimant did not receive prior decision notice

2.      Claimant is incompetent and unable to understand decision notice

3.      Claimant is medically unable to respond to the notice

4.      SSA’s actions confused the claimant regarding the right to appeal

5.      Claimant is hospitalized and unable to respond to notice

6.      Representative never responded to decision notice

7.      Claimant is out of state and unable to apply

8.      There was a death in the family of the claimant or representative

9.      Important records were damaged or destroyed and have to be replaced

In reality, SSA accepts almost anything reasonable as good cause. 

The Face-to-Face Hearing Option 

You can request a face-to-face hearing at the ALJ Level, but it may take some time to happen.  Weigh the advantages and disadvantages on a case-by-case basis and decide if the benefits are worth the delay.

Advantages of a face-to-face hearing: 

1.      The ALJ sees your client’s physical limitations, which can have an emotional impact

2.      You can immediately clarify any questions of evidence

3.      Your client has the opportunity to speak on his/her own behalf (sometimes a good thing, sometimes not)

4.      If the case is allowed, there’ll probably be a larger Representative fee because more time has elapsed since the onset of impairment

Disadvantages of the face-to-face hearing:

1.      It can take forever to get a hearing scheduled because of the tremendous case backlog in many states

2.      If the Judge dislikes you or your client, it may prejudice the decision

3.      You may be shy!  Of course this isn’t a good reason to avoid a hearing!

4.      You or your client may not want to travel to the hearing office

Waiving the Hearing:  If you choose to opt out of the hearing, you must request a waiver.  You can either use Form 4608 or submit your own written request.  State specifically that you desire the ALJ to make the case decision "on-the-record", which in SSA lingo means that your client wishes to waive the right to a face-to-face hearing.  This usually means a faster decision. The face-to-face meeting can add months to an ALJ Level case, while in an on-the-record review the file goes directly to the ALJ to for evaluation and a decision. 

Attending the Hearing:   If you opt for a hearing, prepare to present your Formal Argument orally before the ALJ.  Two secrets to a successful hearing are:

1.      Not being intimidated by the process

2.      Keeping the focus on case issues

A face-to-face hearing is an opportunity for you to present facts to a Hearings Officer or ALJ on your client’s behalf.  Your argument will focus on the limiting effects of any new, previously overlooked, under-valued, or misinterpreted impairment.  There’s no written procedure for an ALJ presentation, so each one is totally different.  Usually the ALJ requests your statement and then questions you and your client.  Remember you are not a lawyer, but you are the client’s fully authorized representative under the law.  Do not allow the ALJ or anyone else to disrespect you because you are not an attorney.

Remember, more cases are won at this level than any other.  Why? Because the ALJ’s power to award benefits is not restricted by SSA’s internal policies.

The ALJ Requests Your Presence

It’s possible, although unlikely, that the ALJ will ask you to appear before him/her despite your waiver request.  If this happens, GO!  It's not all that bad!  Before attending, review your case and be prepared to answer any question the Judge may ask.  Your responses should be consistent with your argument and you should always stick by your opinion.

If an ALJ requests your appearance and you cannot attend, inform SSA in writing.  Explain why you can’t attend and ask for an on-the-record review.  Most Judges are understanding and will either make an on-the-record decision or reschedule the hearing.

Be sure to fill out and submit a Request for Reimbursement Form at the Hearing Office.  You are eligible regardless of case outcome - if the ALJ requests or accepts your appearance, you're entitled to travel expenses.  For help with this, visit “Free Travel” in our Program Syllabus.

Preparing for a Hearing

Here are a few suggestions to help you prepare for a hearing:

1.      Don’t be intimidated. You're the claimant's authorized representative and you have the absolute right to be there and to be treated with respect.  If you're not treated with respect, this is grounds to appeal the proceedings and request a change of ALJ.

2.       Read and summarize the case facts carefully.  Outline your argument, listing the facts that best support your client's position, including doctor's statements, hospital admission records, operative notes and written statements from individuals who have witnessed your client’s restrictions.

3.      If a document on file contradicts your position, don't panic.  Your client’s condition may have changed or the statement may simply be incorrect.  If you find contradictions in the evidence, be prepared to explain them.

4.      Consistency is important!  If your client was not treated for a condition on a consistent basis, you’ll need to explain why not. 

Make sure to include the following in your presentation:

·        Point out when your client became totally disabled

·        Starting with the primary diagnosis, list all alleged impairments

·        Point out when your client’s impairments began and how each progressed to the point of preventing work

·        Discuss how impairments interfere with your client’s normal daily activities

·        Explain how impairments affect your client’s ability to do work of any type

·        Present medical evidence that supports each alleged limitation

·        List medical sources in chronological order to make it easier for the ALJ to follow the sequence of events

·        Have a written summation of your argument on hand to present to the ALJ, even if you mailed a copy to him/her previously.  This allows you to present a last-minute addendum, which, if medically supported, may be what wins the case!  The ALJ will read your addendum and use it in his/her decision.  This is one of our most effective techniques for winning ALJ Level cases.  

·        In your summation, list any efforts your client made to return to work.  This shows the Judge that he/she is not a deadbeat.  If the ALJ believes that the claimant would prefer to work, he/she gains credibility.  This is another of our most effective techniques for winning cases.  

·        Start your presentation by rebutting evidence SSA used to support their denial.  Emphasize evidence from that decision that works in your favor.  Then bring in new or overlooked evidence supporting your position. 

·        Let the ALJ direct the hearing.  If he/she asks questions, answer with tersely accurate statements.  Remember - you’re not Perry Mason!  Stick to case elements that are clearly supported by evidence. 

This hearing will be nothing like TV.  There will not be any flowery speeches made by either you or the ALJ.  Be mindful of the Judge’s time and let the proceedings to move forward even if it appears that things are going badly.  Be polite, professional, and firm in your opinions - even if the Judge disagrees with you.  No matter how much experience you have in this field, you'll still make mistakes.  Learn from your mistakes and use them to make yourself a better Advocate.  Your first few hearings will sharpen your skills and increase your confidence.  The more hearings you do, the better you’ll become!

Handling Vocational Specialists

A Vocational Specialist (VS) may attend the hearing to argue that, despite impairment, your client is capable of performing his/her past work or other less demanding work.   Prior to the hearing, the VS will have done a full Vocational Analysis using the ONET to seek out jobs in the national economy that fit your client’s remaining RFC.  The VS will lay out these findings, usually basing his/her case on the RFC that SSA created.  For example, SSA might feel that the claimant has a remaining RFC for sedentary work, meaning that, given his/her age, education and remaining skills, he/she can perform sedentary work despite impairment.  The VS will then name three jobs in the national economy that are rated “sedentary” and so are within the claimant’s remaining capabilities.  

You counter this argument by disagreeing with SSA’s RFC.  You do this by presenting your evaluation of the case, which includes a revised RFC of less than sedentary.  You must have convincing evidence to support the lower RFC, which must rule out a key requirement of sedentary work.  There are several common-sense key requirements for sedentary work.  One must be able to: 

1.      Sit for over 15 minutes without needing to change posture or position.  If short periods of sitting aggravate the client’s condition, he/she cannot be denied to a job that has this requirement.

2.      Sit for prolonged periods without developing pain.  If the client cannot do this, the pain itself is a reason to lower the RFC.

3.      Be able to concentrate and pay attention.  Pain can significantly reduce concentration and so further reduce ability to perform sedentary work.

4.      Focus on the task at hand.  If there is a mental issue that interferes with the claimant’s ability to perform work it can be used to lower his/her skill level.  SSA cannot deny a person to a less demanding job requiring more skill than he/she has to offer.  This is true even if he/she once had the skill. 

5.      Use one’s hands for fine movement.  Even the least skilled sedentary job requires some fine hand movement.  If your client has lost this capability, he/she may not able to adjust to less demanding work. 

Sight and hearing limitations alone don’t guarantee an allowance.  Most folks who suffer from such sensory disorders are able to work.  If a person is blind or deaf in addition to having another serious impairment, the combination may be too much to overcome sufficiently to perform work.

Example:  SSA has given your client, Lisa, a sedentary work RFC.  However one key requirement of sedentary work is an ability to sit for at least 15 minutes without having to change posture or position, and without developing pain or aggravating an impairing condition.   The VS says Lisa can sit this long.  You focus your counter argument on SSA’s RFC, pointing to evidence that clearly shows that she can’t sit for more than ten minutes without increased pain and a need to change posture or position.  There are no sedentary jobs in the national economy for a person who’s incapable of sitting for longer than ten minutes.  Based on this restriction alone, your argument for a less than sedentary RFC appears valid.  No matter what skill SSA alleges that Lisa has, you have counter evidence.  Lisa is lucky to have such a thorough Advocate! 

There are now two conflicting RFCs.  SSA’s RFC is for sedentary work, which supports a denial.  Your RFC is for less than sedentary work, which supports an allowance.  Looks like the evidence is in your favor, and Lisa is going to win!

Always direct your argument at the SSA’s RFC, and not at the VS.  To avoid personal confrontations, focus on your concern for your client’s well-being, with statements such as:  “In all fairness to Lisa, Your Honor, she cannot be expected to perform or sustain sedentary work as described by the Vocational Specialist, Mr. Smith.”  Never make this personal!

If Your Authority is Challenged

If your qualifications are questioned, point out that SSA’s rules permit non-attorneys to act as authorized representatives regardless of background.  In short, affirm that you have every right to represent!  Do not be shy on this point!  If necessary, cite Code of Federal Regulations (CFR) 410.685, which specifically authorizes anyone who meets SSA’s basic qualifications to act as representative.  Such personal challenges are rare, but it doesn't hurt to be prepared for them.

Why would you be challenged by an ALJ?  Here’s the reality!  By training to be a Disability Advocate, you have stepped into one of the most lucrative representational services in this country.  Recently, lawyers have been jumping on the SSA disability bandwagon like a pack of demented circle monkeys.  With an aging population they smell opportunity and they don’t want anybody encroaching on their territory.  But the truth is, Disability Advocacy was never their territory alone and it never will be.  Some legal professionals even at the ALJ Level resent the growing number of non-attorneys in the field.  Our opinion?   We’ll live with the resentment and collect our well-earned fees.

After the Hearing

After a hearing, the ALJ has ninety days to issue a decision, unless you brought up new allegations that SSA has not medically evaluated.  In this situation, the Judge might also want more medical data before making a decision, and may request an additional examination.  Although new allegations prolong the case, it is your responsibility to look out for your client’s best interests.  Do not hesitate to bring up additional allegations and/or evidence if it strengthens the case.  

If the ALJ wants more Case Development, you'll be notified at the hearing or by mail.  If it is a minor thing like a single report, the ALJ’s staff will probably request it.  If there is significant new evidence or an additional examination, the case may be sent back to the DDS.  If you can get the evidence faster than SSA, volunteer to do so.  Send a copy of any additional evidence directly to the Judge if you get it before he/she does.  If you feel that a request for more exams or testing is unreasonable, let the Judge know in writing.  But be careful! Do not challenge an ALJ’s opinion unless your position is strongly supported. 

Delays aren’t all bad - the longer a case takes to finish, the more likely there’ll be back benefits, and increases in back benefit amount increase your final fee.  In most cases the Judge will rule based on the evidence on file and you and your client will find out within ninety days.   If he/she is going to allow, compassionate Judges will let you know the decision at the end of the hearing.

The ALJ Decision

The letter will explain why the ALJ thinks your client is or is not disabled.  The decision will either be a PDN or a benefit allowance. 

If the decision is an allowance or is partially favorable, submit your Fee Petition Request Form to SSA and bill the client.  A partially favorable decision means that the ALJ agreed that your client is disabled but disagreed with the onset date or some other case issue that affects the benefit amount and/or payment period.  A partially favorable decision is better than nothing and you still get paid!

If the ALJ denies the case, it’s over for you!  You do not submit a Fee Petition and are essentially finished unless you strongly disagree with Judge.   We once had a case where we felt the Judge was extremely unreasonable.  We requested a new hearing with a different Judge and finally won the case, but made an enemy of the first Judge.  This is OK if it’s in your client’s best interest, but don’t make a habit of it.  You may face that same ALJ again in a different case. Don’t burn bridges unless you absolutely have to in order to serve your client.


Appeal Council Review

If you feel that your client was not given a fair evaluation or you strongly disagree with the ALJ's decision, advise him/her to consider taking the case to the Appeal Council Level for review.  In this situation, the claimant has three options:

1.      Give up trying to win disability benefits

2.       Start the application process all over again

3.       Apply for an Appeal Council review of the ALJ decision

Depending on the circumstances, you might want to recommend taking the case back to the beginning.  You could actually win and finally close the case.  In general, though, we believe that if you haven’t won at the ALJ Level, you’ve lost the case.  This training course is not intended to train Advocates to go beyond the ALJ Appeal Level, although it is legal for you to do so.  We recommend that if the claimant chooses to fight the decision at the Appeal Counsel Level, he/she get an attorney.  Provide a referral to an honest, skilled lawyer who is knowledgeable in this field.  Alas, you’ve done all that work for no pay! 

Keep your Client Informed

Keep your client informed throughout the appeal process!  Communicating is often the key to a high perceived quality of service.  Our experience is that the better informed the client the higher our satisfaction rating.  Establishing open communication goes a long way toward helping you to build a lasting and successful Advocacy service.  As previously mentioned, our new Olivia© 2.0 case processing system has several built-in communication features to assist you with this vital function.  One of the most powerful of the Olivia communication features is the ability to assign a customer control panel (CP) to a client.  A control panel enables you to exchange information with clients in the most secure method possible.  To find out more about our exclusive new case processor, visit the Olivia 2.0 © website.

Summary

ALJ Appeals are very important, because it is often at this level that the case is won.  In this lesson, we have taken your through the process, from requesting the appeal to the pros and cons of a face-to-face hearing and how to handle the hearing should you choose to go.  For more information about the SSA hearings and appeals process, click on the “Hearings” link in the Program Syllabus.