Appealing Hearing Denials

If a claimant for Social Security Disability benefits is denied by an administrative law judge after hearing it is possible to continue the disability claim, the next step in the process would be to file an appeal with the Social Security Appeals Council. The Appeals Council reviews whether the judge followed proper procedure and whether the decision was reasonable based on the evidence submitted. If an error was made, the Appeals Council can overturn the decision and approve the claim or remand the case back to the judge for additional proceedings.

If the Appeals Council does not overturn or remand the decision, they will deny the claim. To continue the case, Claimant and counsel will need to file for a hearing in federal district court. At this stage, the judge assigned to rule on the case has a limited scope of review. The judge may only determine if the Social Security Administration’s decision was supported by “substantial evidence” and if proper legal standards were applied in evaluating the case. This is a very limited scope of review. So long as the decision by the judge was not unreasonable, the claim will be denied on those grounds. Federal judges do not wish to second-guess the decisions of the Social Security Administration when it comes to these matters, and will only intervene if the decision is so bizarre that no reasonable adjudicator could reach that conclusion based on the evidence.

Federal judges are more likely to approve cases on “legal standard” grounds, as a major part of their job is to interpret and apply the law. If the Social Security Administration did not follow its own regulations in such a way that prejudices the claimant, a remand at the very least is necessary to rectify this error. If a claimant wins in federal court, the claim will likely be returned to the Social Security Administration for additional proceedings

If you have additional questions about the appeal process, consult with a Social Security Disability attorney for guidance.

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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The Recency Element of Past Relevant Work

The Recency Element of Past Relevant Work

Social Security will deny a disability claim if they find the claimant can do “Past Relevant Work” (PRW), either as it was actually performed or as that type of work is generally performed based on the appropriate Dictionary of Occupational Titles code.[1] In order for a prior job to be PRW it must meet three elements: Substantial Gainful Activity (SGA), Duration and Recency.[2]

  1. SGA

This element is satisfied if the work met the definition of SGA under 20 CFR Sections 404.1571-404.1575 and 416.971-416.975.

  1. Duration

This element is satisfied if the job lasted long enough for the claimant to have learned the skills necessary to resume that type of work and achieve average performance without significant re-training.

  1. Recency

This element is met if the job was performed within the 15 years prior to the date of adjudication or the Date Last Insured, whichever comes first. The scope of this period may be extended if there is a continuity of skills, knowledge and processes that can be established between such work and the claimant’s more recent work. However, the scope of this period may not be shortened.

In the interest of certainty, Social Security has formulated rules for decision-makers to follow. Some rules seem “black and white” and I often tell my clients “Social Security has to draw the line somewhere.” However, in certain cases, these rules would produce an unfair result when the exact language of the rule is not matched but the underlying rational behind the rule is present. For most of these rules Social Security has created exceptions that prevent unfair results. For example, there are several exceptions to the SGA guidelines, including the subsidized work environment[3] and the unsuccessful work attempt.[4] In the context of the Grid rules, Social Security acknowledges that in some cases it would be unfair for the rules to change overnight when the claimant reaches a certain age, so the borderline age situation was developed.[5] In the context of transferrable skills, Social Security recognizes that as a claimant gets older, obtaining employment would be increasingly more difficult unless only a minimal amount of adjustment is required, such that the claimant could be expected to perform “at a high degree of proficiency with a minimal amount of job orientation.”[6]

These concepts should be applied to the PRW 15 year rule. For example, take an individual of advanced age (55-60), who worked in manual labor for the last 14 years but is now reduced to the sedentary exertional level. The Grid rules would ordinarily direct a finding of disability.[7] However, if this individual worked as a telemarketer for three months 14.5 years ago, the Grid rules would direct a denial (unless other limitations prevent the claimant from doing that work). In this case, using the rational above, vocational analysis of PRW should address whether any significant changes have occurred in telemarketing work since the claimant last performed it. This might reveal two things: First, that there are currently comparable jobs available but in fewer numbers. Second, that despite the claimant’s prior work experience, telemarketing is so different now that the knowledge from this experience is obsolete and the claimant would need to be completely retrained. In this case, the rational behind the recency element is not met, and telemarketing should not be found to be PRW.

This could be a critical issue in your Disability case. Consider a free consultation with a disability attorney who is familiar with these rules and regulations.

 

By Charles Sagert

[1] 20 CFR § 404.1560; SSR 82-62.

[2] SSR 82-62.

[3] SSR 83-33.

[4] SSR 05-02.

[5] 20 CFR § 404.1563(b); HALLEX II-5-3-2.

[6] SSR 82-41.

[7] 20 CFR Part 404, Subpart P, Appendix 2.

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Social Security approved me for disability benefits, now what?

Social Security Disability Insurance and Social Security Insurance are the two benefit programs that a disabled person can submit a claim for. While both benefit programs are for disabled individuals, they slightly differ in the requirements. Social Security Insurance(SSI) are for individuals who have not worked but are disabled and have little to no income or resources. Social Security Disability Insurance(SSDI) are for individuals that paid FICA taxes over many years. So for this program, you do not need to meet income limits in order to qualify. A finding of disability and the required work earnings are sufficient.

It may have been a long and frustrating road to get to this point but you are finally here. Your decision, may it be fully or partially favorable is now a reality. You are given back your independence and now know that you will have the ability to pay bills and buy the things that you need. Now, you’re wondering how long will it take to get your money. Unfortunately, you may have to wait another 1-3 months before you receive your first payment.

Social Security Supplemental Income(SSSI) will consider your resources such as spousal income, cash, bank accounts, stocks personal property, vehicles, life insurance, and anything that can be exchanged for cash. Social Security Disability Insurance(SSDI) will consider other employment or disability money received during the time your claim was pending such as, unemployment benefits, workers’ compensation, or long term or short term disability payments. Social Security will have to verify all sources of income before sending you your first check. However, being upfront and having these documents readily available could be of benefit in terms of speeding up this process.

 

For more information, please contact the attorneys at Hoglund, Chwialkowski, & Mrozik PLLC.

By Shana Knotts

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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The Importance of Choosing the Correct Onset Date

When applying for Social Security Benefits, you will need to fill out the initial application to get your claim started. On this initial application, you will put in the start date of your disability. This date is known as your Alleged Onset Date. It is a date that Social Security will use to build your case.  Sometimes it may not be as easy to pinpoint this date. However, it is strongly recommended that you try and choose as close of a date to when your condition(s) begin to worsen. There are many signs that lead up to figuring this date. One example would be a decrease in your work hours or having to end your employment. It is good to keep a journal of any major medical events that have affected your daily routine. Also, it is important that you speak to your doctor about any disruptions that you are experiencing in you daily routines due to ongoing symptoms. The more information you have in your medical records, the more of a benefit it will be to you when choosing you Alleged Onset Date.

Social Security does not always agree with the date that you have chosen. If Social Security chooses a different date, it will be a later date. Your medical records may support a different date of disability. The change in the Alleged Onset Date(AOD) by Social Security is known as the Established Onset Date(EOD). The newly Established Onset Date(EOD) chosen by Social Security may affect the amount of backpay that you receive. You can Appeal this decision if you do not agree with the date that Social Security has chosen. Having an expert to assist you through the process would help you avoid mistakes.

Please contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. today for more information.

 

By Shana Knotts

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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