Question: Should I actually include information from the Listings and Grids in the MSR, or should I wait until the applicant is denied?
The SAMHSA SOAR TA Center recommends that you don’t cite the Listing and Grid numbers, e.g.) Ms. Jones meets Listing 12.04, and the alternative Grid rule 203.03. Rather, at the DDS level (initial and reconsideration) we suggest providing a description of how the applicant meets a particular Listing(s) or Grid rule through specific examples from the medical records, applicant quotes, and other collateral sources.
Question: 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.
Question: Is there any guidance or training on assisting with the appeal process?
Yes, we have a number of resources on the SOAR website to help provide information and guidance through the appeals process. They can all be found in the SOAR Library. I recommend starting with the article About Appeals and then checking out the Appeals Toolkit.
Question: 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.
Question: 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).
Question: 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)
Question: 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.
Question: 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.