I am a member of a group of Claimant’s attorneys that represent Social Security Disability Applicants before the Social Security Administration in Oregon. It is a generous group. We share ideas and information and check in with each other occasionally.
There is Often More Than One Hearing
One trend we have all observed is a tightening of the rate of cases approved. The Administrative Law Judges are scrutinizing these cases more than before. It is common for a Judge to conduct a hearing, and after hearing the Claimant testifies, “continue” the hearing so that a medical expert can either examine our client, or review records and testify at a supplemental hearing. For my Oregon Coast clients, that's another four hours of driving.
Supplemental hearings delay a process that already takes almost two years from the application date, and many, but not all, of the medical experts that testify look at our client with a tough eye. Often, these experts do not review client questionnaires that detail the real-life impact of a disability, nor do they listen to our client’s testimony. So, the opinion provided is based on incomplete information. But that is not what this blog is about.
This is about the way some Judges craft their Decisions. I do not know exactly how Decisions come to be, but there are Decision writers that help the Judge, and there is a standard Decision format provided to the Judges. This all makes sense given the Judge’s case load, and the fact that these cases ask the same questions. Where some Decisions come up short, however, is how a Judge justifies a claim denial.
Our Client Had a Strong Case
In a recent case, I represented a client with a severe lower back problem, and some significant mental health issues. Often, chronic pain, disability, and mental health issues come as a package deal. My client was working through some significant problems before the disability began but could no longer show up to work after a serious injury.
When a Judge decides a Social Security Disability claim, the first issues are whether the Claimant has worked steady since the disability began, and then whether the medical conditions are “serious.” A condition is serious if it causes more than a minimal interference to do any work activity. It is often agreed upon before hearing that at least one condition our client is dealing with is serious.
The Judge next must decide whether our client meets an impairment listing. Sometimes our client will “meet a listing,” but often not. These listings are a screening tool. If your medical records show certain findings, depending on your condition, you may meet a listing. If you do, it all stops there. You are approved.
Residual Functional Capacity: The Key
But if not, the Judge must determine your “residual functional capacity.” This is what you can physically and mentally do at work over the long haul. The Judge will look at all the evidence in your file.
This is a two-step process. First, the Judge determines if what you are saying about your limitations makes sense when looking at the medical records. Could these conditions cause the symptoms you are testifying about? Typically, the answer is “yes.”
It’s that second question where claims get denied. That Judge must look at the “intensity, persistence, and limiting effects” of our client’s symptoms to determine our client’s actual work limitations. The first place a Judge goes to wrestle with this is “objective findings” in the medical records. These are findings in the medical record that can be observed without talking to a patient, like an x ray, MRI, or a clinical test result in a doctor’s office. If the record does not include objective findings, the Judge looks at the other evidence in the claims file to determine how much symptoms limit work ability. This is where some Judge’s will go fishing for inconsistencies to justify a claim denial.
Making the Decision, Then Reviewing Evidence
In this case, our client had a lot of objective evidence of physical and mental impairment. There were medical opinions from a physical capacity evaluator and the treating doctor supporting disability. But the Judge rejected these opinions, and cherry picked normal findings from other doctor’s visits to justify the claim’s denial.
For example, our client would go in to an urgent care for a sore throat. That medical record contained a single line stating that our client was “polite and cooperative.” That was all it took for the Judge to ignore pages upon pages of mental health treatment records documenting significant impairment to find our client’s reports contradicted the medical record.
The Judge would find a passing reference to a normal physical test finding while ignoring other more serious test results from the doctor that was actually treating the low back problem to find our client able bodied.
The Judge also found medical opinions made by doctors who never saw our client and did not have all the relevant medical records more persuasive than the opinion of the treating doctor, who had treated our client for years. The Judge also rejected medical opinions because the physician only saw our client one time, while in the next sentence adopting medical opinions from physicians who never saw our client at all!
The Appeals Council
You may think that the Judge first decided the case, and then went looking for evidence to support it, no matter how weak. It should be the other way around. Hopefully, our Appeals Council brief will shed some light on the truth.
Not all Judges employ these tactics. And unfortunately, with hundreds of regulations, case decisions, and Social Security Rulings that aim for consistency in how these cases are decided, much of your chances at hearing depend on who you are, and which Judge hears your case.
Questions? We Have Probably Seen It!
So, if you are looking at a claim denial, and have questions, contact us. We can give you the real story behind proving Social Security Disability.