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At my client's hearing, the judge said that as the applicant's Appointed Representative, I can't submit the SSA-3380 - Third Party Function Report. Is this correct?
At the hearing level, many Administrative Law Judges (ALJs) will invoke ‘Rule 3.7: Lawyer/Advocate as Witness’. Under the advocate-witness rule, you cannot serve as both advocate (via the SSA-1696) and witness. The ‘witness’ is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. This dual role can give rise to a conflict of interest.
In your case, the ALJ viewed the 3rd Party Function Report you completed as ‘providing witness testimony’ which can prejudice the ALJ’s decision. Often, the ALJ will recognize that the SOAR case worker is not familiar with this rule, and educate them on their options. When there is other evidence in the file and the SOAR case worker does not need to testify themselves, they will remain the official 1696 representative. By doing so, they are able to cross examine expert witnesses and directly examine the applicant (i.e. ask them questions in front of the judge during the hearing).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
How can you expedite an ALJ hearing?
To help expedite a hearing, the applicant or their representative can submit a letter of "dire need" to the Office of Hearing Operations (OHO). The letter should describe the applicant's conditions, how they have worsened since the reconsideration was filed, and why they will worsen still if they are not granted an expedited hearing. You need to explain how the applicant is unable to get shelter, medical care, and/or food. Be as specific as possible and provide examples of the applicant's functional impairment. If you can reference medical records, that is very helpful. There is no guarantee that the administrative law judge will grant an expedited hearing, but it is worth trying.
Occasionally elected officials will send a form letter (a dire need letter of sorts) to OHO to inquire about the claim and to ask for an expedited process.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
How do we find out why a client was previously denied?
You can obtain valuable insight into the reason an applicant was previously denied by reviewing the applicant’s electronic folder, or at minimum, obtaining the “Disability Determination Explanation” or denial notice. Most likely, you will have easy access to the denial notice from the applicant or, if you are the authorized representative, SSA should have mailed a copy to you. You can also request reason for denial by contacting your local SSA office. Learn more at Reviewing Denial Notices.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
I am working with a person who has already applied for SSI and been denied. His request for reconsideration has also been denied. What can I do now to help? Is there anything I can do to speed up the process?
You can help the applicant file for a hearing before an administrative law judge. It is in the applicant's best interest to keep the appeals process going because if they are approved at the hearing level they will be eligible for back payments going back to the protective filing date of the initial application.
See our Appeals resources in the SOAR Library. Here you will find our Prior or Pending Applications document which outlines some of what you need to do at the hearing level. You'll want the applicant to sign the SSA-1696: Appointment of Representative form, if you haven’t already. Then, request their file from Social Security. Together, you'll need to complete the HA-501: Request for a Hearing and the SSA-3441: Disability Report- Appeal (available on SSA’s website). You'll also need to turn in a new SSA-827:Authorization to Release Information. Be sure to submit the Request for a Hearing within 65 days from the date of the denial letter. If you haven't already, request medical records, do the general and functional assessments, and write a Medical Summary Report (MSR) just as you would for an initial SOAR application.
The other thing we would recommend is to file for a review on record. This might help you to avoid a hearing and eliminate a long wait. People who are eligible for a review on record are those individuals who may have additional diagnoses/medical records that were not considered previously. This does not take them out of the line for a hearing. So, if they are denied at review on record, they are still eligible for a hearing.View
I was told there was a list of questions that was good to use during an ALJ appeal hearing.
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
If someone has a pending claim for SSDI under appeal with an attorney involved, should/can a SOAR application be submitted?
SSA does not allow an applicant to have multiple applications pending at the same time. If the applicant chooses to have a new initial SOAR-assisted application for SSDI benefits submitted, then the applicant would need to withdraw their current application. It is important that the applicant understands that the new application would create a new application date which may result in the loss of retroactive 'back' benefits based on withdrawing the current pending application.View