Recent Developments

Read here the latest news in the disability field.

BREAKING NEWS:

A recent proposal has been put forward by the current Secretary of DHHS, which governs the Social Security Administration. She has already appeared in front of a Congressional Committee with these ideas, although no Congressional approval would be required as these proposals can be done totally within the rule making power of the agency. We are therefore assuming that rules reflecting these changes will be forthcoming in the near future, which would have a profound impact on Claimants in all cases before the Administration. They are as follows:

(1) Eliminate Reconsideration

The first proposal would be to eliminate the Reconsideration appeal level. As it now stands, Claimants apply to a local District Office of the SSA. If they are denied, they can then ask for a Reconsideration within 60 days. The file then goes to a state agency which has a contract with the SSA to perform the additional review.

At present, about two-thirds of the applications for disability benefits are denied at the District Office ("Initial Determination"). About half of those denied request a Reconsideration. Approximately 85% of the Reconsiderations, however, are also denied. Therefore, eliminating this largely useless and time consuming level would appear to be a good idea from everyone's vantage point.

The present procedure is that, after the Reconsideration, a further appeal may be taken to the Office of Hearings and Appeals (OHA) where a hearing can be held before a Administrative Law Judge (ALJ) who is independent of the SSA. The majority of the hearings result in awards of benefits.

This has long been a thorn in the side of the SSA. As many as 75% of their decisions are reversed by some OHA's and the ALJ's and they have long been looking for a way to hem in the authority of the ALJ corps.

(2) Attorney Advisors

This brings us to the second part of the new proposal, which would involve the creation of a group of "Attorney Advisors" at the OHA level. These advisors would have the authority to review all of the cases and recommend either a denial or award of benefits. They could also request further medical or vocational development of the file. They could also contact the Claimant or the Representative for a telephone conference to discuss the case.

If the Attorney Advisor recommends a denial of the claim, the ALJ would then have to provide specific justification for any reversal of that decision. This is obviously designed to restrict the latitude of the ALJ's and lower the rate of reversals of the SSA decisions.

It should be emphasized here that the Attorney Advisors are not going to be there to help the Claimants, but are more like attorneys for the SSA.

(3) Eliminate the Appeals Council

Thirdly, the Appeals Council would be eliminated for appeals of ALJ denials but would continue to operate to review awards by ALJ's. The SSA would therefore continue the current practice of allowing "spot" reviews of Favorable ALJ decisions where benefits already awarded by an ALJ could be taken away again. Currently only about 5 % of the ALJ awards are reviewed but, once the need to review Unfavorable ALJ decisions is eliminated, it is conceivable that more of the Favorable decisions could be subject to review by the Appeals Council.

Elimination of the Appeals Council will also mean that all Unfavorable ALJ decisions would have to be appealed directly to the Federal District Courts.

(4) Closure of the Record at Hearing

At present, many Claimants do not contact an attorney or other representative until shortly before the hearing. Upon meeting with the client and reviewing the file, the attorney usually finds that additional evidence is needed. Often all impairments may not even have been claimed by the client, especially mental impairments, and these must be developed. Treating doctors have usually not submitted reports, or their reports are inadequate, and their office records are almost never in the SSA file. Ongoing medical treatment has usually not been updated for many months.

Therefore, it is the rule, rather than the exception, that additional evidence is submitted at or just prior to the hearing, and often an extension is sought to submit further evidence after the hearing but before the ALJ makes a decision. After the decision, if it is Unfavorable, further evidence may be submitted to the Appeals Council.

The new proposal would eliminate the ability to supplement the file after a certain point. It is not clear at this time whether that will be at the time of the Attorney Advisor decision or at the ALJ hearing but it is clear that the Record will be closed while the case is still at the OHA. Therefore, all potential evidence must be obtained and submitted at the earliest opportunity or the ability to have it considered may be lost.

I should emphasize here that, in my experience, the vast majority of the successful claims are won because of evidence that was obtained by the representative after the claimant first retained the representative.

As mentioned above, unlike previous proposals by SSA over the past 20 years, the current changes can be effectuated without any Congressional approval simply through the rule making powers of the Administration. In the past, lobbying by Claimants' representatives have prevented similar types of changes from being approved by Congress. We should therefore assume that these changes, or something similar, will come to pass before the next Presidential election in 2004.

All of this makes it even more crucial that Claimants contact attorneys as soon as possible in the claims process. I don't think you want to be talking to an Attorney Advisor on your own and possibly having the Record closed to new evidence after your conversation. Also bear in mind that it often takes weeks or months to get more favorable or complete information from your medical sources. There is only so long that they will delay the process once it reaches the OHA level and you may run out of time to get your evidence together.

The best time to consult with an attorney is BEFORE you make your claim!