REPRESENTING INDIVIDUALS SEEKING SSI/SSDI BENEFITS AT

HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES

Training for Pro Bono Advocates

March 23, 2017

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Columbus Keemer

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Paulette Bowman

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Darneller Newkirk

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Thank you APBCo-D.C., Whitman-Walker Health Legal Services Program, Washington Legal Clinic for the Homeless, and Elliott Andalmanfor your insights and for any materials you provided to us that aided in the preparation of (or have been incorporated into) this presentation.

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Client Counseling• Consider your client’s background and daily challenges

– Significant physical and/or mental health conditions or caring for someone with significant physical and/or mental health conditions

– Inability to work– Very little or no income– Little or no experience with lawyers

• Create a plan for staying in contact with your client– Might be difficult for client to keep up phone service– Client might not show up for appointments because he/she forgot about them, lacks money to use public

transportation or was dealing with child health emergency

• Your representation might require difficult conversations with your client– Intimate personal details– Substance abuse– Past traumatic experiences– Unreported income– Wait to build trust before having these sensitive conversations

• Special issues involving clients with mental illness– How will this affect meetings and other interactions?– Does your client have a case worker? Could be a key resource

• Special issues involving child SSI cases– Client is parent on behalf of child – can’t keep secrets from the parent– Might need to help parent work through communication, transportation and other barriers to that they can

assist with child’s case 6

KEY CONCEPTS

• SSI v. SSDI

• Eligibility requirements

• Disability determinations• Adults

• Kids

• Award of benefits

• Application and appeals process

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SSI v. SSDI, generally

• Both programs require claimants to be medically disabled and unable to perform substantial gainful activity (SGA).

• Both programs are administered through the Social Security Administration (SSA).

BUT• Supplemental Security Income (SSI) is a need-based program

designed to assist low-income people, while Social Security Disability Insurance (SSDI) is an insurance-based program.

• SSI has strict income/asset limits, while SSDI requires “insured status” based on work history.

• Low income recipients of SSDI can also receive SSI, up to federal maximum SSI benefit plus $20.

Note: Claimants who apply for SSI are automatically considered for SSDI, as well. The reverse is not true.

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Summary of Eligibility

Supplemental Security Income (SSI)

• Not performing substantial gainful activity (SGA) ($1,170/mo. in 2017)

• Medically disabled

• Meets income test– < $735/mo in 2017 (for an

individual)

• Meets resource test– < $2,000 in assets

• Is a U.S. citizen or “qualified alien”

Social Security Disability Income (SSDI)

• Not performing substantial gainful activity (SGA) ($1,170/mo. in 2017)

• Medically disabled

• Has insured status – Worked at least 5 of prior 10

years before onset of disability

• Is a U.S. citizen or lawfully present

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Governing statutes/regulations: 42 U.S.C. ch. 7; 20 CFR ch. 3.

Disability Determinations

SSA’s definition of disability:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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. . . .

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Disability Determinations:Adults

SIX-STEP SEQUENTIAL EVALUATION PROCESS1) Is the claimant performing “substantial gainful activity” (SGA), i.e., earning gross income

per month of more than $1,170 in 2017?If NO, adjudicator goes to step 2.

2) Does the claimant have a disabling condition that significantly limits her or his ability to work?

If YES, adjudicator goes to step 3.

3) Does the claimant have a condition included in the SSA’s “Listing of Impairments,” a list of medical conditions that the SSA has designated as being so severe as to “prevent a person from doing any gainful employment”?

If YES, claimant is found medically eligible unless there is a current diagnosis of a substance abuse disorder, in which case adjudicator goes to step 6. If NO, adjudicator goes to step 4.

4) Can the claimant perform his or her past relevant work?If YES, claimant is disqualified. If NO, adjudicator goes to step 5.

5) Can the claimant perform any full-time job in the national economy, given the claimant’s education, age, and prior work experience?

If YES, claimant is disqualified. If NO, client is found disabled unless there is a current diagnosis of a substance abuse disorder, in which case adjudicator goes to step 6.

6) Is alcoholism or drug addiction a contributing factor material to the claimant’s disability?If YES, claimant is disqualified. If NO, claimant is found disabled.

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Step 3: Medical Listings• Musculoskeletal System (disorders of the spine, amputation)

• Special Senses and Speech (hearing impairments, loss of speech)

• Respiratory System (chronic pulmonary insufficiency, asthma)

• Cardiovascular System (chronic heart failure, congenital heart disease)

• Digestive System (chronic liver disease, inflammatory bowel disease)

• Genitourinary System (impairment of renal function)

• Hematological Disorders (chronic anemia, sickle cell disease)

• Skin Disorders (dermatitis, burns)

• Endocrine System (thyroid disorders, diabetes mellitus)

• Impairments that affect Multiple Body Symptoms (Down syndrome)

• Neurological (epilepsy, stroke, cerebral palsy, MS, muscular dystrophy)

• Mental Disorders (schizophrenia, mood disorders, mental retardation)

• Malignant Neoplastic Diseases (lymphoma, leukemia, other cancers)

• Immune System Disorders (lupus, HIV, arthritis).

SSA’s Listing of Impairments to meet “medically disabled” standard are at 20 CFR Part 404, Subpt P, Appendix 1. Check regulation for most updated version of listings.

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Example Listing: Lupus14.02 Systemic lupus erythematosus. As described in 14.00D1. With:

A. Involvement of two or more organs/body systems, with:

1. One of the organs/body systems involved to at least a moderate level of severity; and

2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).

OR

B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:

1. Limitation of activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

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New Mental Illness Listings

• Effective January 17, 2017, Social Security has new listings for mental illness (see memo in training binder).

• “Part B” criteria are different, must have one “extreme” or two “marked” limitations in following areas:

– Understand, remember, or apply information;

– Interact with others;

– Concentrate, persist or maintain pace;

– Adapt or manage one’s self.

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Step 4: Past Relevant Work

Can the claimant perform his or her past relevant work (PRW)?

– SSA performs vocational assessment

– Past relevant work is generally work performed at the SGA level in the past 15 years

– SSA compares claimant’s Residual Functional Capacity (RFC) with requirements of past relevant work • RFC = Maximum ability to do sustained work-related physical

and mental activities in a work setting (8 hours/5 days) despite limitations caused by impairments

• Consider total limiting effects of all impairments, even “non-severe” ones, and all relevant evidence in the record

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Step 5: Other Work in Economy

Can the claimant perform any full-time job in the national economy, given the claimant’s education, age, and prior work experience?

• SSA evaluates the transferability of a claimant’s pre-disability skills, taking into account the claimant’s: – Physical and mental RFC, including exertional and non-exertional limitations

– Age, education, and work experience/skill level

• SSA uses the Medical-Vocational Guidelines (“GRIDS”) to make disability determinations when claimant has exertional limitations

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Step 1: Determine claimant’s exertion level using RFC analysisStep 2: Determine claimant’s age, education, and work experience/skill

levelStep 3: Refer to GRIDS tables to determine SSA’s likely position (disabled

or not disabled) with respect to exertional limitationsStep 4: Evaluate effect of any non-exertional limitations

Types of LimitationsExertional

• Sitting

• Standing

• Walking

• Lifting

• Carrying

• Pushing

• Pulling

Non-exertional• Mental (difficulty maintaining

attention or concentration; understanding or remembering instructions; relating with others, etc.)

• Sensory (seeing, hearing, speaking or feeling)

• Environmental (intolerance to dust, fumes etc.)

• Manipulative (reaching or handling)• Postural (stooping, climbing, crawling

or crouching)

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• The GRIDS are not binding when a claimant has either a combination of exertional and non-exertional impairments, or solely non-exertionalimpairments.

• Additional guidance for evaluating impact of non-exertional impairments can be found at SSR 96-9p, SSR 85-15.

Medical-Vocational Guidelines

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Exertion level (20 CFR 416.967)• Sedentary (lifting no more than 10 lbs)• Light (lifting no more than 20 lbs)• Medium (lifting no more than 50 lbs)• Heavy (lifting no more than 100 lbs)

Age category (20 CFR 416.963)• Younger individual (18-49)• Closely approaching advanced age (50-54)• Advanced age (55 and over)

Education (20 CFR 416.964)• Illiterate • Marginal (6th grade or less)• Limited (7th through 11th grade)• High school graduate and above

Skill level (20 CFR 416.968)• Unskilled (learn in under 30 days)• Semi-skilled (some skills but not complex)• Skilled (requires judgment and precision)

See 20 CFR Part 404, Subpt P, Appendix 2; 20 CFR 416.968(d); SSR 82-41.

Step 6: Alcohol/Drug Addiction

Is alcohol or drug addiction a contributing factor material to the claimant’s disability?

• Must have a diagnosis of a substance abuse disorder – use of drugs or abuse of alcohol without diagnosis is not enough to find materiality under Step 6

• Show that impairments caused by disability are separate from those caused by substance abuse disorder

• Show that disabling symptoms or condition persists even after claimant is substance-free for a significant period

• Social Security Ruling 13-2p offers additional guidance on substance abuse

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Disability Determination: Kids

• Social Security does not expect kids to work full-time, so question is whether child claimant is not meeting developmental milestones due to his or her medical conditions.

• Three step disability analysis for kids:1. Is the child performing Substantial Gainful Activity;

2. Does the child have a medically-determinable impairment that is severe;

3. Does the child’s medically-determinable impairment meet, medically equal or functionally equal a listed impairment?

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Disability Determination: Kids (con’t)

• Functional equivalence means a child’s medically-determinable impairments, taken together, cause marked limitations in two functional domains, or an extreme limitation in one functional domain.

• Social Security assesses children in 6 domains:– Acquiring and Using Information– Attending and Completing Tasks– Interacting and Relating With Others– Moving About and Manipulating Objects– Caring For Yourself; and– Health and Physical Well-Being

• Social Security Ruling 09-1p offers additional guidance.

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Award of Benefits

Supplemental Security Income (SSI)

• $735/mo. (maximum benefit)

• No derivative benefits• Benefits start from date of

application• No waiting period• Medicaid

Social Security Disability Insurance (SSDI)

• $1,171/mo. (average benefit based on 40% of past earnings)

• Derivative benefits for spouses, some former spouses and children

• Benefits start from date of onset of disability (up to 1 year prior to date of application)

• 5-month waiting period• Medicare (after 29 months)

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2016 SUMMARY OF BENEFITS

Appeals Process

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Initial ApplicationSSA considers finances; DDD decides disability

Request for Reconsideration60 days to appeal denial; DDD decides; review is de novo

Hearing Before Administrative Law Judge60 days to appeal denial to Office of Disability Adjudication and Review (ODAR); review is de novo

Social Security Appeals Council60 days to appeal denial to Appeals Council; must beappealable error; review is discretionary

Federal District CourtRules of civil procedure apply

Application Process• Application file transferred from SSA field office to D.C.

Disability Determination Division (DDD)*

• Protected filing date

• TERI procedures

• Presumptive SSI benefits

• Opportunity to submit supplemental information before determination is made

• Decision within 2-6 months, typically

• Temporary Assistance– Interim Disability Assistance (IDA) (for applicants without children)

and Temporary Assistance for Needy Families (TANF) (for applicants with children) available from D.C. government (if meet other eligibility requirements)

24* Often referred to as “DDS,” which is the umbrella agency in DC and the acronym for comparable state agencies in other jurisdictions

Reconsideration Appeals

• Reconsideration Appeals are filed at Field Office, then sent to Disability Determination Division (DDD) for consideration.

• Can reach out to DDD directly to connect with claims examiner who will determine case.

– Call (202) 442-8500 to speak to DDD and ask who is assigned to the case.

– Best to submit 1696 form to Field Office, though sometimes DDD will accept it directly.

• Discuss timeline for getting relevant records and other forms to claims examiner. (Note, claims examiners sometimes make decisions despite having these conversations).

• Can mail or fax documents in, using fax cover sheet bar code.

• Usually write a shorter letter brief, not as long as for ALJ hearings.

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CASE HANDLING TIPS

• Primary tasks

• Building your case – the importance of developing medical evidence

• Writing your brief

• Preparing for your hearing

• Filing procedures

• Resources and support26

Primary Tasks

• Interview and counsel client– At first meeting:

• Explain the process, your role as attorney, and client’s responsibilities

• Have client sign retainer, HIPAA release forms for each provider, and Form 1696 (SSA authorization to release information)

• Copy correspondence with SSA

• Ask about medical information

– Check in with client to make sure that you don’t lose track of him/her and get updates on new diagnoses and treatments

• Submit necessary SSA forms and communicate with appropriate agency offices

• Collect, review, submit and strengthen medical evidence

• Prepare a brief to supplement evidence

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Importance of Medical Records

Generally, medical evidence should establish:

(1) existence and duration of disability;

(2) that disability causes impairments;

(3) that impairments are severe and marked; and

(4) that impairments prevent claimant from engaging in substantial gainful activity.

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Developing Medical Evidence

• Medical records

• Residual Functional Capacity Assessments

• Consultative examinations

• Affidavits from claimant, third parties, medical providers

• Disability Report – for appeals (SSA 3441-BK)

• Treating physicians given more weight than one-time examining sources (20 CFR 404.1527)

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The more detail, the better

Additional Evidence for Kids – School Records

• In children’s cases, in addition to medical records, you should request records from the child’s school.

• Relevant records include:– Report cards; Individualized Education Program (IEP);

504 plan; special education; disciplinary reports; any activities that document child’s performance and/or behavior

• Consider asking teacher to complete “Teacher Questionnaire”

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Medical Treatment and Documentation

• Encourage clients to play an active role– Taking notes on their condition– Discussing all symptoms with doctor– Discussing functional impairments with doctor– Ensuring symptoms are in medical records– Asking social workers to communicate with doctor about disability

standards and the need for medical evidence– Following up on treatment– Keeping appointments

• Help when necessary– Completing medical forms– Documenting functional limitations– Preparing for consultative examinations– Connecting clients with medical providers

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Supporting a Claim with Medical Records

STEP ONE:

• Collect medical records after HIPAA release forms are signed

• Create cover sheet for each set of medical records with claimant’s name, SSN, name of provider, and treatment dates

• Disclose all treatment sources to SSA

• Submit all medical records you receive to ODAR through ERE fax or ERE

• Don’t wait to finish brief before you submit records32

Supporting a Claim with Medical Records

STEP TWO:• Review the medical records, focusing on discharge

statements, doctor’s notes, etc.– Use http://www.medilexicon.com/ for help with medical

abbreviations and terminology.

• Create a chart with all symptoms and medical conditions to aid with your analysis

• Any symptoms or diagnoses missing from medical records?

• If yes, discuss with claimant and encourage conversation with doctor, or help facilitate referral if necessary (i.e.,needs a specialist?)

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Supporting a Claim with Medical Records

STEP THREE:• Cite to helpful medical evidence in your brief

– Recommended Cite Form: Exhibit Number (or Treatment Source and Date if No Exhibit Number Yet),[Page Number of PDF]/[Total Number of Pages of PDF]

• Claimants and their representatives must:– Inform SSA about all evidence that relates to the disability claim,

including both favorable and unfavorable evidence. – Submit all evidence requested and received to SSA in its entirety. – Limited exceptions: work product, attorney-client privileged

information, instances where ALJ tells you not to submit (ie, duplicative records)

– 80 Fed. Reg. 14828 (Mar. 20, 2015); 20 C.F.R. §§ 404.1512, 416.912

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Importance of Brief

• Provides a vivid picture of the individual for the Administrative Law Judge (ALJ)

• Provides a clear link to the functional impairments

• Directs ALJ to important (and helpful) medical evidence

• Should be short but compelling – Don’t need to restate the statute, regulations and rulings within

sequential evaluation.– You can cite to cases, statute, regulations and ruling to expand

on analysis or for legal argument. – Just focus on facts within six-step analysis framework.

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Components of a Brief

• Introduction–What benefit (SSI, SSDI, both)–Onset date–Basis (disabilities, rationale (listings, RFC, etc))

• Factual Background – Personal history (childhood, family, education, employment)– Conditions/diagnoses (use specific illustrative quotes)– Treatment– Impairments (use specific illustrative quotes)

• Short Procedural Background• Argument

– Use six-step analysis as a framework– Show link between conditions and functional impairments– Demonstrate impact of conditions and impairments on ability to work

• Conclusion 36

What to Expect At Your Hearing

• Hearings at Office of Disability Adjudication and Review (ODAR) are informal. No opposing counsel.

• Generally happen in two parts:– Claimant and witness testimony

• Judge may ask claimant questions first, or may allow counsel to ask questions first. Judge may interrupt for more information or to clarify.

– Vocational Expert testimony• Judge asks series of hypothetical questions describing claimant’s

limitations to vocational expert, who testifies whether such a person can work. Counsel can cross-examine vocational expert.

• Note – effective May 1, 2017, must submit evidence or notify SSA about evidence 5 business days before hearing.

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Filing Procedures

Consider signing up for Electronic Records Express (ERE)

Fax SSA-1696 to ODAR (202-254-0634)

Submit records and brief to ODAR

• ERE – can file electronically

• If you do not have ERE,

– Request Bar Code from ODAR

– Fax records and brief with no more than 50 pages per fax to electronic fax number (877-548-8583)

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Resources & Support

• Training materials available: – www.probono.net/dc (Public Benefits section library)

• Mentorship and development of subject matter expertise within your firm:– Identify colleagues who have represented SSI/SSDI claimants at the

hearing stage

• Assigned Legal Aid mentor

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