FAQ

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 principles

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.

We recommend against using the SSA-8001 form for a SOAR application because it contains less comprehensive information about an applicant’s income and resources. As such, the applicant would still need to complete an in-person or phone interview with SSA in order to complete the SSA-8000. By completing the SSA-8000 and turning it in to SSA, you can often avoid the need for this interview.

If you find that your local SSA office is not accepting the SSA-8000 from in lieu of an interview, I encourage you to reach out to your SOAR TA Center Liaison and SOAR State Lead so that they can provide local assistance.

This is a great question! While DDS does not have a way to process records received via disk, this sounds like a good opportunity to speak with them about signing up for Electronic Records Express, which allows you to upload medical records directly into an applicant’s file from your computer without having to print them. I recommend reaching out to your DDS Professional Relations Officer, or your local SOAR contact, for details on how to register.  This should be a quick process, allowing you to upload these records without delaying your current case.

All of our resources are open-access and free to use when helping applicants. However, we request that you only use the “SOAR” label at Social Security when you are working with individuals who are experiencing or at-risk for homelessness. Read more about how we define homelessness and at-risk. If the applicants you assist do not fit this criteria, you are still welcome to use any of our materials that you find helpful, without marking the application as “SOAR” at Social Security.

We recommend using the applicant’s last day of work as their date of onset when helping someone apply for SSI/SSDI. The Social Security Administration (SSA) will examine the applicant’s medical records and prior work history to determine if any of the previous work attempts were unsuccessful (i.e.: the applicant was unable to sustain work for more than a few weeks or months due to disabling mental or physical health conditions).

If the applicant is currently working, enter the date that he or she believes the condition(s) became severe enough to prevent him or her from performing substantial gainful activity.

For individuals who have never worked, such as youth exiting foster care, SSA’s guidance is to “enter the date when he or she believes the condition(s) became severe enough to keep him or her from working.” Since youth can work before age 18, you can enter dates prior to their 18th birthday if that is relevant.

As the claimant’s representative (using the SSA-1696 Appointment of Representative Form), you can request a copy of the claimant’s previous and current files, which include the medical records SSA and DDS received with the application. These documents are generally provided on a CD. This is allowed under the Privacy Act (5 USC § 552a (b)) “An individual may give SSA written consent to disclose his/her personal information to a third party of his/her choosing.”

Note: When using the SOAR process, staff will want to collect the medical records and submit them to DDS rather than the other way around. The reason for this is to ensure that the DDS receives all pertinent information. However, obtaining a CD from DDS can be useful when you assist an individual who has already applied and been denied.
Source: https://secure.ssa.gov/poms.NSF/lnx/0203305001

Mental health treatment records are a necessary and integral part of the evidence needed for DDS to make a disability determination for someone alleging mental illness as an impairment. You are permitted and encouraged to support a claimant’s application with the disclosure of your records (with proper authorization). The records that are excluded from this authorization are “psychotherapy notes,” which are a specific type of note not typically a part of most medical records, especially in publicly funded settings.

As HIPAA defines the term, “psychotherapy notes means notes recorded in any medium by a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record. Excluded from “psychotherapy notes” are medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

If you keep psychotherapy notes separate from your other medical records, you can send the set of records without the psychotherapy notes. If you do not keep psychotherapy notes separate from other parts of the medical records, you can legally disclose all of the records. However, you can choose to black out or remove the parts of the records that would be considered psychotherapy notes. Another option is to prepare a report that details the critical current and historical aspects of the applicant’s treatment and functional information, such as a SOAR Medical Summary Report.

For more information, see SSA’s Fact Sheet for Mental Health Care Professionals.

You should be able to use the copy of the authorization that you have to request the records. According to a clarification letter drafted by the Director of the Office of Civil Rights on April 25, 2003, “A copy, facsimile, or electronically transmitted version of a signed authorization is also a valid authorization under the Privacy Rule.”
Source: https://www.socialsecurity.gov/disability/professionals/documents/HHS-OCRfeedback.pdf

When providers of substance use services (drug and alcohol) release records, they are required to include the following notice from the CFR Title 42:2.32:

“This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.” Source: http://edocket.access.gpo.gov/cfr_2002/octqtr/42cfr2.32.htm

However, the law allows the records to be disclosed to any entity the person names in the consent. When you complete the SSA-827: Authorization to Disclose Information to SSA be sure that it specifically mentions the release of drug and alcohol treatment records.