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What if a client is new to our program, and has already applied for and is in the appeal process for SSI? Can they still be considered for SOAR?
The SOAR process can definitely be used to assist applicants with appeals, as SOAR practitioners are often well positioned to assist given their relationships with applicants and knowledge of their impairments and related functional limitations. SOAR case managers can help by gathering additional medical records, writing a Medical Summary Report, and assisting with SSA forms specific to the appeal process. More information on assisting applicants with appeals, including a full issue brief with tips for practitioners, is available in the SOAR Library.View
Is it true that applicants always get denied initially and then win on appeal?
This is definitely something we hear quite a bit and a very pervasive rumor that an applicant has to be denied X number or times, or can only win on appeal. The truth is that if the evidence is in the initial filing showing that an applicant meets the criteria for SSI or SSDI, he/she will be approved at the initial stage. Using the SOAR model results in higher approval rates (see our national outcomes) because we focus on getting all of the information in the file from the beginning, whereas many people who are eligible for benefits are denied because they don’t have assistance in gathering this documentation.
Some lawyers who take fees for assisting with disability claims specialize in appeals and don’t provide the evidence in the initial stage – they wait for the application to be denied and then work on the appeal. For an application at the appeal stage to be successful, the vast majority of the time it requires new evidence that wasn’t originally presented (there are some cases that are overturned due to oversights at DDS). So, it’s not that DDS wants to deny the case from the beginning, they just didn’t have the right information. It doesn’t save them any money to automatically deny people and then send them to appeal (in fact, it actually costs them more money in adjudicator time, medical records requests, and consultative exams).
All of that said, we understand why people think this is true. The overall national approval rate for SSI/SSDI (without SOAR) is only 29%. So yes, that means 71% of people are denied. It's not possible to know how many applicants needed more evidence and how many just didn't meet the disability criteria, but it certainly leads to many myths about the process.View
What does HALLEX mean?
HALLEX (Hearings, Appeals and Litigation Law Manual) is a publication from the Social Security Administration's Office of Disability Adjudication and Review (ODAR). ODAR administers hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX contains policy statements from the SSA's Appeals Council, as well as procedures directed to lower levels of the SSA for carrying out the SSA's guiding principlesView
While an attorney is recommended is there any benefit to a client representing themselves? If the applicant is represented by an attorney (or other individual), does the applicant have an opportunity to speak for themselves or add to the proceedings?
No, it is our opinion that all applicants should be represented at the hearing by an individual who is knowledgeable about Social Security's decision-making process at the ALJ level, whether it be a lawyer, paralegal, or a SOAR case worker. Administrative Law Judges follow fairly strict rules about how to decide disability cases and what evidence can be considered. Although applicants can represent themselves “pro se” (i.e. “for oneself”), it is in their best interest to secure representation. The applicant may find it difficult to learn enough about Social Security law to advocate for themselves professionally at the hearing.
Yes, the applicant will have a chance to speak for him/herself. The representative will ask the applicant questions which is called “direct examination.” This gives the applicant a chance to tell his or her story. Also, the ALJ will often begin the hearing by asking the applicant questions. Remember, the ALJ level is the first time the applicant is seen face-to-face by SSA. The earlier stages are paper reviews.View
What is the role of the Vocational Expert (VE)? Why do VEs need to show that nationwide there is work a person can do, even if they do not live near the location of the jobs?
In order to address the question of whether an applicant is capable of returning to work performed within the past 15 years, the ALJ will generally call a VE to testify. The VE is usually a licensed professional counselor, a vocational rehabilitation specialist, or another professional whose career has involved job placement, career counseling and working with people with disabilities. Although the VE is called by the ALJ, the VE is neither a government nor an applicant’s witness. The VE’s task is to offer a neutral opinion based on (1) the evidence and (2) the ALJ’s determinations as to the applicant’s functional limitations. The VE reviews the documents in the file which pertain to work, e.g. detailed earnings record, disability report, and work history report. The ALJ will create a hypothetical for the purpose of eliciting the VE’s opinion on the applicant’s capacity to return to past work (Step 4) or perform other work in the national economy (Step 5). For more information on cross examining the VE, please contact Pam Heine at the SOAR TA Center, email@example.com. Read more here: https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-74.html.
For the second question, the job must exist in significant numbers in either the national or local economy, where the applicant lives. Read more at https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-508.pdf.View
How significant is an RFC (Residual Functional Capacity) assessment form in regards to appeals? Does one have to develop RFC evidence if the claimant meets a Listing?
RFC forms are very useful and can be a vehicle for the treating source to provide medical opinion evidence, forcing the ALJ to consider it. Sometimes the ALJ will discount the RFC form if he/she feels that it is not supported by the medical records. For instance, sometimes a doctor will give the opinion that the applicant “can sit for 30 minutes” but nowhere in the medical record is there anything about this at patient appointments. So, be aware of that. Also, be sure that the answers on the form are internally consistent.
For the second question, once DDS determines the applicant has met a Listing (at Step 3 of the Sequential Evaluation), DDS stops developing the claim for other impairments. DDS looks at the applicant’s RFC at Step 4 and Step 5. The applicant’s RFC is determined and compared to the physical and mental demands of the past relevant work (Step 4). When it is determined that the applicant cannot perform past relevant work, RFC, age, education and past work experience must be considered to determine if there is other less demanding work the applicant can do.
Finally, RFC forms which are designed with space for the physician to provide their medical opinion, and not merely a form with check off boxes, is most effective.View
What are video teleconferencing (VTC) hearings? Are VTC hearings being heard quicker? Can the client go to the VTC for the ALJ hearing by him/herself?
ALJ hearings may be conducted using video teleconferencing (VTC) equipment, rather than in-person, if there is equipment available to conduct a VTC hearing and if this would be more efficient than conducting an appearance in person. Applicants have a right to object to a VTC hearing if using the VTC model would cause undue hardship or for other reasons specified in HALLEX regulations.
Here is a link to SSA data on length of time it takes to get a hearing, by hearing office: https://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html. You can also see how many video vs. in person hearings a particular office does, though there is much local variation on how cases are assigned to in-person vs. video dockets. While VTC hearings generally come up quicker, this is in the context of long wait times for hearing scheduling generally.
It is our opinion that all applicants at the hearing level should be represented by someone who is knowledgeable about preparing and presenting claims at the ALJ level. ODAR will have a staffer who will assist with the equipment, but not much more than that. An advocate will be able to directly examine the applicant and cross examine any experts that are present, e.g. vocational and/or medical experts.View
During the ALJ hearing, is it okay to have your client physically demonstrate simple movements to show physical limitations that records may not document?
Not really. There are many reasons for this. Firstly, hearings are tape recorded and physical movements won’t show up on audio. As well, any physical limitations that are the basis of a disability claim must have medical records to back it up, not just an ALJ’s observations. Courts have discounted “sit and squirm” opinions from ALJs who “eyeball” the client, and say they have no back problems, for example, because they sit in a hearing for two hours in no obvious discomfort. DDS is supposed to consider the claimant’s capacity to perform work activities on a sustained basis, not just on what they can or cannot do on a one-time basis. (See Social Security Rulings 96-8p and 96-9p) https://www.ssa.gov/OP_Home/rulings/rulfind1.html#YRT1996)View
If an applicant wants to "fire" their attorney, will they have to pay them a fee?
Generally when an attorney is fired after the individual has signed the SSA-1696 (and possibly other binding documents with the attorney), the attorney has to file a fee petition with SSA defending their right to be paid. The attorney/representative must detail what services were performed while assisting the applicant. You can read more about the fee petition on the SSA website and see the form that is filed: http://www.ssa.gov/representation/fee_petitions.htm. SSA will determine whether or not the representative is granted the entire fee or a partial fee.View
How do I become involved in SSI/SSDI cases that are already in process? What about cases that have been going on for a long time, such as those waiting for a hearing or appeal?
If the case is pending at the initial or reconsideration stage, you can become the applicant's representative via submission of the SSA-1696: Appointment of Representative form. You will then be able to communicate with SSA/DDS about the application and request access to the materials that have been submitted. After reviewing the person’s file, you'll know what needs to be addressed, just as when you are starting anew with someone. If the person isn't willing to have you be the representative, ask if they have one - if so, try to assist that person with what needs to be addressed.
If the person is waiting for an appeal hearing, it may be necessary for you to secure legal representation for them through agencies such as the state Protection and Advocacy organization, Legal Services, Legal Aid, or another kind of pro-bono legal service.
Read more at Prior or Pending Applications.View