This document provides an orientation to social security disability law. It discusses key terms, the disability appeal process, roles within the social security administration, evaluating disability claims, types of benefits, the sequential evaluation process, listing of impairments, evidence, hearings, representative roles, and resources. The orientation covers the basics of navigating the social security disability system from initial application through the appeals process.

1. SOCIAL SECURITY DISABILITY LAW ORIENTATION Noel S. Anschutz, EDPNA Director of Disability Claims Eligible Direct Pay Non-Attorney

2. Common Terms Claimant Alleged Onset Date (AOD) Date of Last Insured (DOL) Administrative Law Judge (ALJ) Office of Disability Adjudication and Review (ODAR fka OHA – Office of Hearings and Appeals) E-Dib – Electronic Disability System On the Record decision (OTR) Ready to be Scheduled (RTS) Residual Functional Capacity (RFC)

3. SOCIAL SECURITY’S APPEAL PROCESS & ROLES

4. Disability Appeal Process Application / Denial Request for Reconsideration / Denial Request for Hearing / Hearing / Denial Appeals Council: Denial - Lawsuit in Federal Court Remand - Back to the Judge for another Hearing Overturn Decision – Favorable outcome (rare) Detailed Flow Chart of Disability Process www.ssa.gov/disability/disability_process_frameset.html

5. SSA Offices SSA District Offices (DO) – 3 LV offices Disability Determination Services (DDS) Office of Disability Adjudication and Review (ODAR) Chief Judge Michael B. Kennett Judge Daniel F. Loughry Judge Donald R. Colpitts Occasional visiting judges and hearings by video Appeal Council – in Falls Church VA 10 Regional offices which oversee the District Offices. Nevada Regional Office in San Francisco (Dist. 9)

6. Two Types of Benefits Social Security Disability Insurance Supplemental Security Income

7. Based on how long you have worked - at least 20 out of 40 quarters (5/10 yrs) - $970/quarter to qualify http://www.ssa.gov/pubs/10072.pdf Payment depends on contributions through FICA taxes Insurance: Medicare, no rx coverage –effective 29 months from onset date No income of asset limit Dependent’s Benefits – 50% of worker’s ins pmt Must have lawful presence (no illegal citizenship status) Paid from onset date but not more than 12 months prior to application date. Social Security Disability Insurance Benefits (SSDI) aka Title II

8. Welfare Based Must have less than $2000.00 in resources ($3000 for a couple) most common exclusions are a home and car $603.00 / month changes every year in Jan – set by SSA Insurance: Medicaid, covers prescriptions Residence in US for 30 days and citizen and/or alien status requirements Paid month after date of application Supplemental Security Income Benefits (SSI) aka Title XVI

9. STATISTICS

10. www.ssa.gov/disability/disability_process_welcome_2005.htm

11. Total Beneficiaries by County Nye 2028 Elko 977 Lyon 1642 Clark 41221 Eureka 46 Lander 169 Storey 34 Washoe 9708 Douglas 908 Lincoln 151 Mineral 285 Humboldt 438 Pershing 135 Churchill 771 Esmeralda 47 White Pine 304 Carson City 1433 TOTAL: 60,927

12. Clark County Stats Non Mental – 29,797 Mental – 11,424 38% of claimants are receiving benefits for psychiatric disabilities MAXIMUS: Ticket to Work - Beneficiary Distribution http://www.yourtickettowork.com/benedist

13. EVALUATING A CLAIM

14. What Representatives Do Generate all proper paperwork Collect evidence in the form of personal information from clients Collect medical evidence Analyze client’s case Write & submit a summary of findings Advocate at Hearing

15. Hearings Held in Foley Federal Building 300 Las Vegas Boulevard South 4 th floor Las Vegas, NV 89101 Judge, Judge’s clerk, claimant, representative Experts: Medical, Psychiatric, Vocational Hearings are digitally recorded Non Adversarial Closed hearing Las Vegas judges allow witnesses, but only if the claimant is unable to articulate. They will let others in the room for moral support

16. Disability Definition The law defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, or combination of the two which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

17. The Sequential Evaluation Process Is claimant working at SGA level? No, to 2 Are their impairments “severe?” Yes, to 3 Does their impairment meet the Listings? No, to 4 Are they able to return to their prior employment? No, to 5 Can the claimant perform any other work based on their age, education and prior work history? Yes, deny disability

18. 1. Is claimant working at SGA level? Substantial Gainful Activity is work that results in more than $860.00 gross month earnings Under 3 months of employment automatically considered to be a failed work attempt Under 6 months can be considered a failed work attempt if accommodations were made If SGA performed for an extended period of time will not be eligible for SS benefits

19. 2. Are the impairments “severe?” Not severe - only a slight abnormality that would have no more than a minimal effect on ability to work Must consider combined effect of all impairments, even if not severe when considered separately

20. 3. Does their impairment meet the Listings? “The Listings” are defined medical criteria that presume functional limitations that preclude work Listings for Adults & Listings for Children Cover 14 body systems Social Security uses very high standards and is not bound by any other administrative decisions (WC, VA, etc.) No vocational analysis

21. Examples of Listings 1.03 Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b & return to effective ambulation did not or is not expected to occur, within 12 months of onset. 12.04 Affective Disorders 12.05 Anxiety Related Disorders

22. Examples of Listings 14.08 HIV Pneumocystis Carinii Pneumonia HIV encephalopathy, characterized by cognitive or motor dysfunction that limits function and progresses HIV wasting syndrome, characterized by involuntary weight loss of 10 percent or more of baseline Lymphoma

23. 4. Can claimant return to their prior employment? Past relevant work (PRW) – last 15 yrs RFC - The most work activity you can do on a sustained basis in an 8-hour work day Exertional Limitations sitting, standing, walking, lifting, carrying, push/pull Non-Exertional Limitations Postural : bending, crouching, crawling, kneeling, climbing Manipulative : feeling, handling, fingering, reaching Communicative & /Auditory/Visual : seeing, hearing, speaking Environmental Restrictions : fumes, dust Mental limitations

24. 5. Can the claimant perform any work based on their age, education and prior work history? RFC, Age, Education, Skills Vocational Expert used to evaluate PRW, transferability of skills; and Work that exists in substantial numbers in the national economy (SSA burden)

25. Medical Vocational Grids Without a VE Uniform guidelines are used 20 CFR 404, Subpart P, Appendix 2 Exertional level, age, education, work skill level & transferable skills Grid only used for exertional impairments Non-exertional, grids don’t apply Both – grids are guideline and evaluation of non-exertional eroding occupational base is done

26. Age Categories 18-49: Younger Individual 50-54: Approaching Advanced Age 50-59: Approaching Advanced Age 55-59: Advanced Age 60-64: Approaching Retirement Work Skill Levels: unskilled, semi skilled, skilled

27. Other Common Cases Non-Fee Generating Overpayments Continued Disability Review (CDR) Cessations “ Fugitive Felon” Cessations SSI Disability Children (a whole different set of Listings and Analysis process)

28. EVIDENCE

29. Records Medical records – subjective & objective Third Party records Reports Rules about weight of evidence Consultative examination

30. Consultative Examinations (CE) Done at pre-hearing level, when SSA feels they don’t have enough evidence Not thorough and/or in-depth Only helpful if disability is obvious Can substitute treating physician for SSA CE Treating physician is the primary source of information www.ssa.gov/disability/professionals/greenbook/index.htm

31. MISCELLANEOUS

32. Social Security Goes Electronic Electronic Disability System (E-Dib) Commissioner Barnhart’s Project Online Filings: application, reports Electronic Submission of Evidence: online or via fax Video Hearings Social Security file available on CD-ROM http://www.ssa.gov/disability/electronic_disability.htm

33. Fees http://www.ssa.gov/representation/ Social Security allows collection on both SSI and SSDI claims. 25% of backpay with a maximum of $5300.00 SSDI – 17 months from application w/ 5 month waiting period SSI – date of application Social Security News: SSA To Keep Attorney Fee Database And Issue 1099s http://socsecnews.blogspot.com/2006/07/ssa-to-keep-attorney-fee-database-and.html

34. Nat’l Fee Payments Mo/Yr Volume Amount Jan-06 18,752 $64,848,326.02 Feb-06 20,426 $70,312.586.15 Mar-06 26,227 $91,045,934.83 Apr-06 23,042 $79,714,961.76 May-06 23,581 $82,015,869.29 June-06 27,771 $97,085,724.60 05/2006 - Fee Payment Data Released - socsecnews.blogspot.com

35. Non-Attorney Demonstration Project Social Security pays attorneys and non-attorney project participating representatives directly and fee is taken from the back pay Application Fee: $1000 non refundable Examination in June of every year (closest site: Sacramento) – application period opens in Feb 2007 See http:// www.cps.ca.gov/tlc/ssa/about.asp (CPS administers non attorney payment project )

36. A non-attorney representative must fulfill the following statutory requirements: (1) Possess a bachelors degree or have equivalent qualifications derived from training and work experience; (2) pass an examination that tests knowledge of the relevant provisions of the Social Security Act; (3) secure professional liability insurance or equivalent insurance; (4) pass a background check ; (5) demonstrate completion of relevant continuing education courses ; and (6) have represented 5 clients w/i a 2 yr period with an adjudication at any level. Non-Attorney Demonstration Project

37. Resource Material Social Security Act 42 USC § 1381 & 42 USC § 402 20 CFR, Chapter III (Parts 400-499) 20 CFR § 416 (SSI) & 20 CFR 404 (SSD) Case Law Social Security Rulings (explanatory law) Acquiescence Rulings (case law) Programs Operation Manual System “POMS” Hearings, Appeals and Litigation Law (LEX) manual “HALLEX” (SS employee procedural manual) Social Security Handbook PIA Calculator - Benefit Estimation Software - 2004 Version nosscr.org/ssas/anypia.htm Software SS uses to digitally record hearings www.fortherecord.com/intro.asp?FL =Y

38. Helpful Websites www.ssa.gov www.ssa.gov/oha/index.html (hearing process) www.ssa.gov/regulations/index.htm nosscr.org (National Organization of Social Security Representatives – next conference in Scottsdale 10/11 – 10/14 ) www.ssaprepvideo.com (video of hearing) www.ssaconnect.com (David Traver’s forum) socsecnews.blogspot.com (Charles Hall’s blawg) www.disabilitysecrets.com

39. In-House Policies/Procedure Model

40. In-House Procedure Client screened over phone Initial appointment conducted & forms executed Analysis of case based on appt “ Open for Investigation”/Accept/Reject Case Request & Evaluate medical records Obtain copy of SSA file (rep’s office has to go copy the file (Privacy Act, 5 U.S.C. § 552a ) – hopefully they will come in electronically as paper is phased out) Obtain medical reports and any other third party evidence Author and submit brief with medical records to SSA Wait for decision

41. Below Hearing Stage SSA collects medical records Representative can: 1) obtain opinions from treating doctors 2) obtain medical and other records that the state agency rarely gets & make sure SS gets all the records 3) monitor the state agency’s use of consultative examinations 4) Review standard information/forms SS asks for before client submits it 5) talk with the disability examiner at the state agency or submit brief

42. Not Working a Case Submit Appointment of Rep form and wait Inaction can adversely affect outcome of hearing Fees can be protested by client and excessive fees unethical ALJ might challenge fees because if file had been worked, hearing might not have been necessary

43. Advantages/Concerns of Below Hearing Stage Cases Influence choice of consultative examiner treating doctor, if that doctor is “qualified, equipped and willing” to accept the fee paid for such exams - 20 C.F.R. § 404.1519h Treating MD not available – monitor CE process SSA does not copy rep on denials Regular contact with client necessary in order to avoid missing appeal deadlines

44. CONCLUSION

45. Ways to Win Case Before ALJ (not!) Argue that an Agency expert is biased or not impartial because the Agency pays the expert's fee. Prepare the claimant for the hearing by meeting with the claimant for the first time 45 minutes before the hearing. Wait until the claimant is finished testifying before developing a theory of disability.

46. Clues your Client is Not Disabled (really) Her pain management doctor has lost his license for dealing prescription drugs. His treating physician says that he is a malingerer. He alleged that he lies down all day in bed, but has an impressive tan and even more impressive musculature. The judge asks how he supported his acknowledged $100/day crack habit, he says his friends gave it to him.

47. SOCIAL SECURITY DISABILITY LAW ORIENTATION