APPENDIX H
Here is a comment from an SSA ALJ posted on a public
website in September 2008. This was a comment in response to a news article
concerning the backlog of Social Security disability claims, the ALJ
wrote:
I am a Marine combat veteran of Vietnam and I have
been a lawyer for more than 23 years. I have represented clients ranging from
small corporations to an elected official facing removal for poor decisions, to
indigent parents whose children were removed by state authorities, to families
torn by a divorce, to auto accident victims and injured workers seeking workers
compensation benefits, to criminal defendants. In none of these arenas have I
seen more abuse of the legal process than in my last 4 years as a Social
Security disability judge. It is a rather classical example of a
well-intentioned government program to assist the weakest members of our
society transformed into a cash-cow for the avaricious among us. Occasionally -
but rarely - do I see a claimant with an entirely fraudulent claim. The clear
majority of the claimants who appear before me do have some physical or mental
impairment. The real issue is whether that person can meet the definition of
"disability" which was intentionally set very high by Congress to
provide income to only those whose injuries/illnesses are very debilitating.
Unfortunately, that very high bar is approached with deception and
falsification in many cases. Some doctors go overboard on diagnoses and
treatment because they sense the "pot of gold" in having a fairly
young patient (on Medicare for many years to come) with a reliable source of
payment for constant treatment. Lawyers and other non-attorney representative can
receive fees as a percentage of the back benefits awarded to a claimant. Once a
claimant has a legal representative, one can actually track how the alleged
impairments become much worse, with new impairments and symptoms added as the
case matures. A judge with some experience can almost recite verbatim the same
story we hear from virtually EVERY claimant, suggesting they have received
training from the national organization of the claimant's attorneys. The
government is complicit in this boondoggle, because the Social Security
Administration actually publishes lists of symptoms for various impairments in
the form of rules for judges to follow. Is it any wonder we hear those lists of
symptoms at almost every hearing? For 15 of the past 16 years congress has
funded the Social Security disability program at amounts below the amount
requested by the president. In the past few years, the growing backlog has been
discovered by the mainstream media and suddenly there is a major push to
eliminate the backlog. Not a moment too soon, as we are seeing the advance wave
of the "baby boomer" generation, those who claim early disability to
avoid waiting for their statutory retirement age to come up. Judge Haberman was
correct, and Commissioner Astrue was not completely candid in his statement
that he doesn't tell judges which way to decide a case. SSA places enormous
pressure on the judges to eliminate the backlog by granting benefits to as many
claimants as possible. Certainly not by direct means, but by many, many indirect
means. Because a judge who denies a claim must provide an extensive explanation
for the reasons (and nearly every claimant alleges the symptoms embodied in the
published SSA rules) a denial Decision is much more complicated and
time-consuming to write, taking 2 to 3 times as long as Decison granting
benefits. Yet at one point, Mr. Astrue was threatening job action against any
judge who did not meet an arbitrary number of dispositions per year. Mr. Astrue
has been a lawyer for a long time; he must certainly be aware that the congress
created administrative judges in the Social Security Act and in the
Administrative Procedures Act. In those laws, congress specifically forbid
administrative agencies (such as SSA) from taking any action against
administrative judges on the grounds of their decisons or acts of judicial
discretion in managing cases. Just as the framers of the U.S. Constitution
divided political powers into three branches to prevent the "political
passions of the day" from taking this government down unwise paths, the
congress created a form of "separation of powers" between the
government agencies and their own administrative judges. Mr. Astrue knows that,
but because of the political pressure on him to eliminate the backlog, he is blaming
everything on the administrative judges, and deliberately attempting to
circumvent the controls congress emplaced for exactly such political
circumstances as these at present. Unfortunately, as in most political
controversies, Truth is the first casualty. Mr. Astrue speaks loudly and often
about the judge who "hasn't held a hearing in X years" or about the
"judges who dispose of 40 cases per year." Unfortunately, Mr. Astrue
refuses to identify those persons (purportedly because of "privacy
issues") and there may be valid reasons for such situations. For example,
judges who are appointed to management positons in this agency are stil counted
as "judges" even though they may do few -if any - hearings. Judges
who are union officials may be involved in extensive litigation against the
agency (enforcing the intent of congress against agency behavior) and may spend
relatively time disposing of disability cases. We can only speculate because
Mr. Astrue will not provide the necessary information to back up his accusations.
Finally, some truth may be discovered by congress itself. The General
Accountability Office (an investigative agency of congress) was tasked to look
into the performance of the SS disability program. The conclusion was that
there were some judges who were less productive, but that it is impossible to
tell why, because the cases vary to the extreme in the number of issues which
must be considered and decided by the judge. An extremely difficult case would
naturally take much longer than a relatively routine case. The one GAO finding
Mr. Astrud doesn't want the public to hear about is that the GAO found the
chief reason for the backlog is agency mismanagement "for decades"
and that the SSA is still using business practices which were discredited as
ineffective "years ago." That may be the real reason Mr. Astrue
wishes to place the blame on the administrative judges.
The Social Security Administration is making some progress
in its efforts to cut the backlog of disability cases in Buffalo and other
offices.
But not enough progress, according to Social Security
Administration judges who came to Buffalo for a conference this week.
Many people with serious illnesses or injuries still wait
two years or more to get a hearing, and the judges say that is a source of
frustration.
“People deserve the right to have their cases heard within
a reasonable amount of time. The current waiting time is not acceptable,” said
Marilyn Zahm, an administrative law judge in the Buffalo district.
“I once received a letter from a family member of a man who
waited for a long time for his case to be heard, and before it could be heard,
the man died,” said Randy Frye, an administrative law judge from Charlotte, N.
C. “It made me feel terrible. . . . That just shouldn’t happen.”
Frye is the president and Zahm the vice president of the
Association of Administrative Law Judges (AALJ), a national union of judges
that held an educational conference Tuesday, Wednesday and Thursday. About 130
judges attended the event in the Hyatt Regency Buffalo.
The two officials said the system in which they work is in
a “crisis.” According to the judges, the long wait for hearings is only one of
several serious problems that affect a system on which millions of Americans
depend.
Among the other problems, according to the judges:
• Far too many applicants — about two of every three — are
turned down, sometimes for no logical reason, when they first apply. Later —
only after months of waiting and having to hire attorneys — most of those
people are approved for disability.
• The system has little or no flexibility. The judges are
required to approve disability pay for life to a person who, in their opinion,
should receive it for a year or two.
• They are pressured by Social Security Administration
officials to rush cases through the system, when, in some cases, they would
like to spend more time researching a case in the best interest of taxpayers
and applicants.
“Right now, the only pressure we get from Washington is to
push the cases through the system,” Frye said. “That seems to be the only
priority.”
Mark Hinkle, a national spokesman for the Social Security
Administration, disagreed. He noted that 7.5 million Americans and their
dependents now received $106 billion a year in Social Security disability
benefits.
“There are no pressures, goals or quotas for judges. We’re
just trying to do the best job we can for the American public,” Hinkle said. “I
don’t think you’ll find anyone who feels that the waiting times are
acceptable.”
Long waiting times for disability applicants — some of them
desperately ill — have been the subject of controversy in Western New York for
years.
In May 2007, the Social Security Administration office
based in Buffalo took an average of 688 days — nearly two years — to process a
disability claim. That made the Buffalo office the seventh-worst of the 142
offices nationwide.
Since then, that situation has improved, both nationally
and locally. The government says the Buffalo office now takes an average of 582
days to process a claim. The government has hired more judges and staff
members, and has also made more hearings possible by allowing some to be
conducted by teleconference.
Buffalo cases still take much longer than the national
average, which is 493 days, according to statistics released by the law judges
association.
“Even in the face of . . . the worst recession since the
Great Depression, we have reduced the hearings backlog for nine consecutive
months,” said Michael
J. Astrue, commissioner of Social Security, who announced
progress in the government effort last week.
“They have knocked down the waiting time considerably in
Buffalo. There’s still a long delay, but the situation is improving,” said
Richard G. Abbott, a Kenmore attorney who handles many disability claims.
Similar comments came from Jeffrey Freedman, another
disability claims lawyer, who operates 13 busy law offices in the region.
“It still takes a lot longer than it should take for many
people to get an answer from the government,” Freedman said.
He, Abbott and the two judges all said they believe that a
major problem exists with the way disability claims are handled when they are
first filed.
Disability claims in New York State are initially reviewed
by the state Office of Disability Determinations(DDS), which is contracted to
conduct the reviews for the federal government.
Statewide and nationwide, about 64 percent of applicants
are turned down in the initial review, according to government statistics.
According to Zahm, Frye and the two attorneys, a
substantial number of those cases should clearly have been approved at the
first level of application.
“I wouldn’t say it’s frequent, but it is routine,” Frye
said. “Every month, most judges see a case that should have been paid at the
first level. There are cases where it’s obvious.”
“If you approve the meritorious applications when they are
first filed, you cut into the backlog for hearings,” Frye said.
Zahm concurred, as did the two claims attorneys.
Abbott recalled a client whose feet were amputated after a
workplace accident in a factory. He applied for Social Security disability, and
his initial application was turned down.
Months later, after the man hired an attorney and filed an
appeal, his application was approved by a judge, Abbott said.
“There was absolutely no doubt that he was eligible for
benefits. . . . To me, it’s almost criminal to make a person wait for a hearing
in a situation like that,” Abbott said. “I’m a firm believer that applicants do
not get a fair shake on their first application, but they do get a fair shake
when they go before a judge.”
“When people get turned down on their first application and
they come to us, 85 percent or more are successful on appeal,” Freedman said.
“It’s not because I’m a genius. It’s because they have legitimate claims that
should be approved after their initial application.”
Anthony Farmer, a spokesman for the state office, referred
a reporter to the Social Security Administration. Hinkle said he disagrees with
the contention that cases are improperly turned turned down at the first level.
“Overall, we’d say that cases are being legitimately denied
at the first level, or the applicants’ situations have changed by the time the
case gets to a judge,” Hinkle said.
“The judges see a case months or a year after it is
initially filed, and sometimes you have new medical information or new records
to consider.”
Last week, the Social Security Administration said 722,822
people were waiting for disability hearings nationwide, which was a decrease of
more than 37,000 from a year earlier.
In a news release, Astrue said that this was the first time
in a decade that the agency had completed its fiscal year with fewer disability
hearings pending than in the previous year. He said the situation is improving
because of the hard work of Social Security employees and additional federal
funding.
Social Security judges rarely have the opportunity to speak
publicly about their concerns, but Zahm and Frye said they are allowed to do so
because they are union officials.
There are about 1,350 judges who hear Social Security
disability cases throughout the country. Each judge hears about 500 cases a
year, Frye said, and the judges make salaries ranging from $120,000 to
$165,000.
Frye said he expects the number of people filing disability
claims to skyrocket within the next year, in part because of the recession.
“We do care about the people who make these claims,” Zahm
said. “We’re seeing more and more cases of the working poor — people who make
too much money to get welfare or Medicaid, but not enough to pay for quality
health care.
“A lot of them are nursing home aides who hurt themselves
trying to lift elderly people who fall down. We see some very sad cases.”
Written on November 25, 2009 by StevenButler in ALJ
Hearing, Representation, Social Security, Steve Blog Comments - Leave a
comment!
The Delaware News Journal published several articles this
week discussing the denial rates of Administrative Law Judges (ALJ) that work
for the Social Security Administration. The focus of the series was on
the Dover Delaware Office of Disability Adjudication and Review (ODAR).
The articles noted that Delaware residents have faced a higher standard to
prove eligibility for disability between 2005 and 2008.
The ALJ denial rates have serious implications on
individuals that live in Delaware and have physical or mental
disabilities. Because of the high denial rate, more Delawareans are
approved at the initial application level than any other point in the Social
Security Disability Process.
The Importance of Obtaining Legal Assistance Early
Since more Delawareans are approved at the initial
application level, it is important to have help with your Social Security
Disability claim as early as possible. The most significant change that I
made in my practice since the Dover ODAR office opened in 2004, was actively
representing more people at the initial application level. I discovered
that clients denied by Dover ALJs could have been approved at the initial
application level if additional medical evidence had been provided. When
I started representing claimants in 2003, less than 10% of my clients were at
the initial application level. Now more than a third of my cases are at
the initial application level.
The initial application is important because you have
a clean slate. No medical opinions have been provided that indicate that
you can work, and you still have an opportunity to submit evidence that can be
considered by the Disability Determination Service. If the State Agency
Physician is able to review your treating physician’s medical opinion before
providing his or her own opinion, it is more likely that your doctor’s opinion
will be incorporated into the decision. Because of the importance of being
approved early, I focus on building the strongest claim possible before my
clients even apply for benefits. If you are approved benefits on your
initial application, you never have to worry about the high denial rates of the
Dover ALJs.
More Treatment is Necessary to Establish
Disability with Dover ALJs
It is extremely difficult to be approved for benefits at an
ALJ hearing in Delaware if you do not have specialist care. Even the
Dover ALJs that have higher approval rates are unlikely to approve you for
disability if you are only receiving treatment from a family physician.
Although your family physician may be willing to treat you for every medical
condition, it is important that you receive treatment that will improve your
chance of being approved.
If you are suffering from a major disability, the Dover
ALJs expect you to see a specialist for your condition. Family physicians
are less likely to document symptoms to the same extent as a specialist.
Since specialist limit their practice, it is also more likely that they will be
aware of recent developments in your condition, and be able to offer treatment
alternatives that may help. Having specialist care will make it more
likely that you are one of the few that are approved if you eventually have to
have a hearing in front of a Dover ALJ.
Your Treating Physicians must be Supportive
If your treating physician believes that you can work, it
is unlikely you will be approved for Social Security disability benefits.
I normally only accept new clients if a treating physician first documents
limitations and explains how the limitations would interfere with your ability
to work. If your treating physician is not supportive of your disability,
the ALJ will only have the State Agency medical opinions to consider when
deciding your claim. Since the State Agency medical opinions were likely
the basis of your original denial, the Dover ALJs will cite the same opinions
to deny you again.
Even when your treating physicians are helpful, it is
still possible to be denied benefits. Several of the individuals featured
in the New Journal had opinions from multiple doctors supporting their
disability. I even routinely have had clients denied benefits when the
opinions of Social Security Consultative Examinations supported their
disability.
More Documentation is Necessary
Obtaining supportive medical opinions from your
treating physicians is only the starting point in proving disability in
Delaware. You must also be able to support your symptoms with objective
medical evidence. If you have pain, you must have test results that
establish the source of your pain. This is normal throughout the United
States, the difference in Delaware is that the ALJs are often looking for you
to have the tests repeated throughout the time that you are receiving
treatment. It is not enough to have a test performed when you initially
became disabled; the ALJs also want to see updated tests that are performed
shortly prior to the ALJ hearing.
If you are experiencing pain, but have not had surgery
performed, it is rare to be approved benefits by many of the Dover ALJs.
Even if you had surgery, the ALJs will look at how invasive the surgery is when
making a determination on whether you are disabled. Injections are not
significant to most of the ALJs in Delaware, and if you are only taking
medication for your condition and have not required more invasive care, it is
unusual to be approved.
If you are suffering with a mental based disability, you
must have treatment with a psychiatrist and a therapist/psychologist. If
you fail to take medication, or abuse illegal drugs or alcohol, you have very
little chance of approval (even if your doctor indicates that this is caused by
your condition). If you are claiming memory or cognitive impairments, it
is also important to have psychological and memory testing to document the
severity of your symptoms. In my experience, individuals with purely
mental based disabilities are rarely approved in Delaware unless they also have
required hospitalizations for their condition.
Higher Costs to Pursue Claims in Delaware
Because of the higher standard of disability that we
face in Delaware, I have noticed that the cost of pursuing disability benefits
has skyrocketed between 2003 and 2009. The average cost in 2003 was below
$150 at the ALJ level; today it is not abnormal to have costs of
$400-$600. The reason for the increase is the additional evidence the
ALJs are requiring. The ALJs want records from every doctor you have seen
since your disability began (even if it is not relevant to your disability),
and I often must request opinions from each doctor actively treating you.
Since the ALJs do not like fill-in-the-blank forms, narrative opinions (that
have cost as much as $1,000) are sometimes needed.
Additional costs are incurred for the additional
treatment needed. If you have copays for every visit to your doctor, the
additional care will result in more out-of-pocket costs. If you see
additional doctors, it is also likely that additional tests and treatment will
be suggested.
If you experience a unique condition that has flare-ups, it
is important to notify your physician of every flare-up. Even when you
have learned to manage your condition during flare-ups, it is important that
the flare-ups be documented by your doctor. If your flare-ups are not
mentioned in your treatment records, many of the Dover ALJs frequently find
that the flare-ups did not occur at the frequency that you identified.
Dover ALJs do not Independently Review Your
Disability
ALJs are supposed to independently consider all the
medical evidence that is in your file and all testimony that is provided prior
to issuing a decision. Before a hearing, it is not abnormal to submit
over 100 pages of new medical records, and to provide medical opinions from
treating physicians for the first time. Due to the length of time it
takes for a hearing to be scheduled, normally the Social Security medical
opinions in your file are at least one year old when the hearing is held.
The Chief ALJ of the Social Security Administration,
Frank Cristaudo, stressed in the News Journal the importance of ALJs’
independence. He indicated, “We allow the judges to make the decisions
they think are appropriate”. This stance is commendable, but many of the
Dover ALJs fail to exercise their independence.
Although there is so much new information available
for the first time at the ALJ hearing, it is common for Dover ALJs to ask, “Why
was the Disability Determination Service (DDS) wrong in denying the
claim?”. I must be prepared to explain why the State Agency Physician’s
medical opinion does not adequately address your limitations (although it is obvious
that these doctors never had the opportunity to review your new medical
documentation), and I have been reminded by one ALJ that the State Agency
Physicians are not biased like treating physicians.
This is a concern because the ALJs are not independently considering
your disability. When the majority of Dover ALJs ask for Vocational
Expert testimony, they ask the Vocational Experts to only consider limitations
that were identified by the State Agency Physician, and when they issue a
decision, the State Agency Physician (that never examined you) is normally
awarded the most weight. It is rare for the ALJs identified by the News
Journal to believe you or your treating physician. Even when they approve
benefits, it is usually based on information that was previously provided by
the State Agency Physician or a Consultative Examination Physician.
Approved for Less Benefits
The News Journal article briefly provided an
example of one individual that was ultimately found disabled, but it was
determined that his disability did not begin until 2 years after his employment
ended. It is common for decisions from the Dover ALJs to be partially
favorable. This means that although you are approved for benefits, the
ALJ will find that your disability was not “severe enough” to cause you to
become disabled until sometime after you originally stopped working.
ALJs in other areas commonly find that a claimant was
disabled when their job ended, even if additional care was not received until a
later date. For example, if you are suffering from depression and lose your job
because of the condition, but did not start seeing a psychiatrist until after
you had to be hospitalized 6 months later, other ALJs will find that your
condition was severe enough for you to qualify since your job ended. With
many Dover ALJs, you would not be approved until the date that you had to be
hospitalized.
If you have a spine impairment, and went through
therapy and injections before it was determined that you needed surgery, most
ALJs would realize that your doctors wanted to try less invasive treatment
before considering surgery. However, with the Dover ALJs discussed in the
News Journal, I have had several clients that have not been approved until the
date of their surgery. Although these individuals had experienced pain
severe enough to prevent them from working for several months (to several
years), the ALJs determined that they were not actually disabled until surgery
was necessary.
One Dover ALJ is also routinely finding that
individuals are only disabled for a brief period. An ALJ normally only
awards a closed period of disability if an individual’s condition has actually
improved enough to allow them to return to work (or the individual admits that
they have the ability to return to work). This specific Dover ALJ
routinely issues partially favorable decisions finding that a person was only
disabled for a period of 12-18 months. The ALJ will indicate that an
individual has improved even if the treating physician does not believe the symptoms
resolved.
The News Journal did not provide specific details on
the number of fully-favorable versus partially favorable decisions in the
article, but I have information for each of the ALJs for fiscal year
2008. The ALJ that was discussed the most by the News Journal had an
overall denial rate of 59.2% in 2008, but only issued fully-favorable decisions
22.3% of the time. The remaining 18.5% were partially-favorable
decisions. For individuals age 18-49, this same ALJ issued fully-favorable
decisions 10.3% of the time, and issued partially favorable decisions 19.9% of
the time.
This is alarming because when an onset date is
voluntarily amended, or an individual agrees to a closed period of disability,
this counts as a fully-favorable decision. This suggests that if
individuals did not voluntarily make these changes, the ALJ would have a much
higher partially favorable rate (or possibly even deny more claims).
Therefore, even some of the people that are approved by the ALJ with the
highest denial rate are not actually receiving all the benefits they deserve.
Fewer People Offered Representation
Because the practice of law is a business, it is important
that attorneys are able to make a profit when representing individuals.
Although I would like to help everyone that contacts me, I must focus my
limited resources on helping those people that have the most realistic chance
of being approved for benefits. When fewer people are approved for
benefits, it becomes harder to offer representation to all the people that need
it.
The higher denial rates make it less likely that I can
offer representation if your condition is not well documented. When I
started practicing in 2003, I would routinely take cases where my client did
not have adequate documentation of their disability. I would work with my
client to help them establish the necessary medical care, and I would file
appeals while they strengthened their case. I realized that the
individual may be denied one or more times, but I knew that I could help them
improve their future chance of approval.
Now when I meet with a potential client, I am unable to
devote my resources to claims that are poorly documented. I have had
multiple clients denied benefits that have had 4 or more supportive medical
opinions from treating physicians. If it is difficult for someone with
the support of all of their doctors to be approved for disability benefits, it
is nearly impossible for an individual with little or no medical support to be
approved.
The result of this change is that Delawareans that would
have been offered representation in the past must now pursue benefits without
legal assistance. All of the Delaware attorneys that I speak with that
handle Social Security Disability cases are also being more selective in
accepting clients. I currently only begin to represent 20% of individuals
that request my help. If all of the Delaware attorneys are being more
selective in offering representation, the net effect is that fewer claimants
are represented.
Claims with Supportive Evidence are Not Being
Appealed
If you are denied by an ALJ, you have a right to appeal
your decision to the Appeals Council. The Appeals Council typically takes
anywhere from 6 months to 2 ½ years to issue a decision. In 2008, Appeals
Council denied 73% of claims filed, and only approved 2%. Although
Appeals Council remanded 22% of cases, this simply means that your claim will
be sent back to the same ALJ that denied you previously. In my
experience, the Dover ALJs are no more likely to approve you after your case
has been remanded by the Appeals Council.
After being denied by the Appeals Council, you can
file an appeal in United States District Court. Unless you can prove that
you have very little resources and/or income, it cost $350 to file an appeal to
United States District Court. The United State District Court for
Delaware issued 30 Social Security Disability decisions in 2008, and remanded
43% for a second hearing (no outright reversals were issued). It took the
District Court an average of 527 days to issue a decision in 2008.
Between 2004 and 2008, an average of 27 Delaware District Court appeals were
filed each year. During the same time, Dover ODAR denied an average of
642 people per year for disability benefits.
The only way that you are assigned a new ALJ for a second
hearing is if you can prove bias or your original ALJ is no longer
available. I have never had a case assigned to a new ALJ for a second
hearing in Dover. If you are successful at getting a second hearing based
on an Appeals Council appeal, it is likely that it will take a minimum of 18
months after the ALJ’s original decision before you get a new decision.
For cases that are remanded from District Court, it is likely that you will
have waited for 3 or more years before you receive another decision.
During the time that you are waiting for the appeals
process, you are not receiving benefits. I spend approximately 20 hours
preparing a file for the first ALJ hearing. If I have to file an Appeals
Council appeal, I spend an average of 10 additional hours working on your
claim. District Court appeals take me between 20-25 hours. When a
case is remanded for a second hearing, I usually spend at least 10 more hours
preparing the case for a second hearing. This does not include the time
that my staff spends preparing your file and giving you updates.
When I decide to appeal claims to Appeals Council and
United States District Court, I am making a significant investment in my
time. If it is not likely that I can obtain a better decision by filing
an appeal, I am unable to continue to pursue the claim even if the ALJ
technically made errors in your decision. During the entire time that you
are waiting for your claim to be decided, I am also not receiving payment for my
services. If I spend 40 hours working on an appeal that is not going to
be successful, I have spent an entire week of my time that I cannot devote to
obtaining additional clients.
Because I am running a business, I have to make a
cost-benefit analysis before I agree to take action on your behalf. Since
there is only a small chance of receiving benefits after being denied by an
ALJ, I appeal only a small number of claims past the ALJ level. I look
for ALJ mistakes that are so obvious that I believe that 100% of claims that I
appeal to Appeals Council or District Court should be approved.
My main consideration when I decide to appeal is not
whether I believe that you are disabled (I believe that 100% of people I
represent at hearings are disabled), but whether I believe that you could be
approved if you have a second hearing. Based on the small percentage of
cases that are filed in Delaware District Court (only about 4% of ALJ denials
are appealed to District Court), it appears that other attorneys also take a
similar approach. This means that even individuals that have supportive
medical evidence and should have been approved benefits are not always
appealing their decisions after an ALJ denial.
Conclusion
I am disturbed by what has happened at the Dover ODAR
office because it overall is limiting your access to the legal system.
Attorneys that were handling large numbers of Social Security Disability Claims
in the past are reducing their caseload. Individuals that are unable to
work and should be found disabled are being denied benefits. I am
reluctant to appeal adverse decisions from the ALJs because it is unlikely that
you will be approved for benefits even if your case is remanded. Instead
of taking all clients that should be found disabled according to the law, I
instead have to focus my attention on taking clients that can be approved based
on how the Dover ALJs are applying the law.
I realize that there will always be variances in
decision-making, the problem that I had hoped that the News Journal would
highlight, is that the variance in Dover is not caused by ALJs exercising their
independence, but by some ALJs misapplying the law. I personally have had
at least 25 decisions where the ALJ found that my client was not credible
because they attended their hearing and responded to questions. (If my
client had not attended their hearing, the case would have been
dismissed.) I am hoping that the attention that the Dover ODAR office
receives from the News Journal articles will at least result in a consistent
application of the law so that I can tell my clients that they will receive a
fair hearing regardless of the ALJ assigned to their case.
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