The post How to Get a Faster Social Security Disability Hearing appeared first on Law Office of Geri N. Kahn.
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At the Law Office of Geri N. Kahn we have been helping clients get faster social security disability hearings for more than 30 years. Today we are going to share some tips with you that may help you expedite your case.
It is a long wait to apply and receive disability. Generally, people who apply for SSI (Supplemental Security Income) or SSDI (Social Security Disability Insurance) are denied twice, first at the initial level and then again at the reconsideration stage. By then a year has passed. The next step to appeal is to request a hearing in front of an administrative law judge. The waiting times become even longer at this level.
In a recent report, the Government Accountability Office analyzed Social Security data and reported that claimants whose cases were decided in fiscal year 2021 waited an average of 326 days for their hearing decision. While we are now seeing reduced waiting times, the average wait time for a hearing was 595 days in fiscal year 2018, 506 days in fiscal year 2019, and 386 days in fiscal year 2020. As the GAO noted, claimants waiting for a decision may experience a deterioration in their medical or financial situation. Some people die during this time. So, how can you get your hearing scheduled faster? I have a few suggestions.
5 Ways to Get a Faster Social Security Disability Hearing
1. Get Your Social Security Disability Case Flagged as a “Critical Case”
At any time in the appeal process you may get your case flagged as a critical case. The Social Security Administration recognizes the following types of cases as cases which they should expedite:
- Dire Need
- Suicide Threat
- Military casualty/wounded warrior
- Permanently and totally disabled veterans
- Terminal illness
- Compassionate allowances
- Potentially violent
In the same report mentioned above, the GAO reported that after examining the data over the 11-year period they reviewed, hearing offices processed critical cases in a median of 266 days—over 6 months faster than the 469 days for non-critical cases.
In order to get your case flagged, you must notify OHO staff that you meet the criteria. Although not required, you should submit documentation if you have it. Some staff at hearing offices are skeptical that you may meet the critical need requirements unless you have some documentation that can back it up.
2. Hire a Social Security Disability Lawyer
It is not going to be enough to submit a critical need request and then expect that OHO will automatically expedite the scheduling of your hearing. You will need to follow up. You will need someone to advocate for you that you meet the criteria for critical need.
Moreover, it is of no use to get a hearing expedited when your case is not ready for a hearing. A lawyer will help you to formulate a strategy, gather the evidence, obtain letters from your doctors, prepare you for a hearing and represent you at the hearing. You need to win your case and you will have a better chance at success with a lawyer’s representation.
3. File an “On the Record” (“OTR”) Request
Your case may be sufficient as it is (or with a lawyer’s assistance), be well documented such that you may request a decision “on the record” based on the evidence that exists in the file. An attorney can help you prepare and file such a request. According to the report mentioned above (p. 10), SSA decided about 40,000 critical cases via the OTR process between fiscal years 2010 and 2020.
4. Waive the 75-day Notice
The judge is required to give you 75 days’ notice of an upcoming hearing. You can file a waiver at OHO indicating that you do not need that much advance notice.
5. Request a Phone Appointment for Your Hearing
While OHO is scheduling “in-person” hearings, you will have a better chance at being scheduled sooner if you request a telephonic hearing. OHO will send you a form and you may indicate your preference on it and send it back.
Now It’s Time to Take Action – Get Your Social Security Disability Case Moved Up Today
You will have a better chance of having your case heard sooner if you hire a lawyer and either get your case flagged as a critical need case or file for an OTR. If these ideas do not work, you can follow the other suggestions of requesting a phone appointment and waiving the 75-day notice. Something will work and you will get your case heard, sooner rather than later!
Call the Law Office of Geri N. Kahn today at (415) 397-5446 or request an appointment online.
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]]>1. Use the best phone that you have
There will be at least three people on the phone with you at your hearing: (1) the judge; (2) the judge’s hearing assistant; (3) a vocational expert and/or a medical expert. While you will not be talking at the same time, the Social Security Administration’s phone system is bad. (See my blog post last week: Why doesn’t Social Security answer the phone?) Use the best phone that you have so that you can hear and your voice can be heard.
2. Don’t worry if they do not call you exactly on time
If you have a hearing scheduled for 10:00 a.m., do not expect that they will call you at 10:00. It may be that the judge is running late. Normally if you were at the hearing office, you could see what is happening but at home, you do not know what is going on. Try to be patient. If, however, it is 10:30 and they still have not called you, call the hearing office. The phone number is on the first page of the hearing notice. If you cannot find the notice, you can look up the office using the Social Security Administration’s Hearing Office Locator. Use a different phone to call hearing office in case they try to call you exactly at the same time you are calling them.
3. Find a quite place where you can be alone for an hour
Most hearings take between 30 -45 minutes. You need to hear the judge and answer the questions that the judge is asking. It is important to focus and be in a place where there is no distraction. It may be difficult to find a quiet place but try to find some place ahead of time where you can be for alone for an hour. It will make the hearing go more smoothly.
4. Ask for clarification if you do not understand a question
At times it may be difficult to hear the judge on the phone. The judge may ask you a question and you simply did not hear it or the judge asks it in a confusing manner. Don’t answer a question if you are not sure of what is being asked. It is perfectly reasonable to ask the judge to rephrase or repeat the question. I would give the same advice for an “in person” hearing. Know what is being asked before answering. The judge cannot see you; you are the only one who knows if you do not understand or do not hear. You must therefore speak up and say something.
5. Use specific terms when describing where you experience pain
The judge cannot see you when you are on the phone. You cannot say, “I have pain here,” and expect the judge to understand you. Describe exactly where you experience the pain. For example, “I have pain in my right elbow that runs from my elbow to my fingertips.” A more detailed explanation helps the judge.
I hope these tips help you and I wish you much success at your hearing. If you have other tips to share, please feel free to write a comment.
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I drove by the Vallejo field office the other day and saw this sign that the field office is closed. It is closed just like all of the field offices across the United States. Nevertheless, you may still apply for disability online. While applications may not be processed as quickly as we would like, they are only going to get slower if the pandemic becomes worse and/or the economy collapses. I urge you to apply now if your are disabled. If you would like assistance, please feel free to call my office.
The hearing offices are also closed to the public, but nevertheless, they are proceeding with hearings. Hearings are now telephonic. It is likely to be this way for some time. While it is still possible to object to a telephonic hearing, you are unlikely to have an “in-person” hearing for a long time. I have long objected to video hearings or telephonic hearings but now it is matter of having the case heard . We all have to accept this reality, for now.
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]]>In Kennedy v. Colvin, 738 F.3d 1172 (9th Cir. 2013), the claimant had sickle cell anemia and borderline mental retardation as well as other impairments. A psychologist who examined the claimant found that the claimant had a verbal score IQ score of 71, a performance IQ score of 78 and a full-scale of 72.
One may be found disabled if he or she meets or equals any one of “The Listings.” The listings are impairments which Social Security has already determined to be disabling. If one can show that he or she meets or equals a listed impairment, he or she may be considered disabled. There is a listing for “intellectual disability,” known as listing 12.05. One can meet this listing with a valid verbal, performance or full IQ of 60 through 70 and meet other requirements. The claimant in Colvin argued on appeal that although his IQ score was one point above the level required in Listing 12.05, he equaled the listing because his physical impairments were so severe that they compensated for the one point difference between his IQ score and the score required under the listing.
The Court did not find in Kennedy’s favor but this is not the part that interested me in this case. What interested me is that the Court penalized him for not arguing that he equaled the listing when he was at his hearing in front of the ALJ, although he argued it on appeal. Citing to another case, Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005), the Court found that the an ALJ is “not required to discuss the combined effects of a claimant’s impairments or compare them to any listing in an equivalence determination, unless the claimant presents evidence in an effort to establish equivalence.” Here the claimant “never presented evidence or advanced an argument for equivalency.” (Kennedy at 1178.) The 9th Circuit never indicated whether or not Mr. Kennedy was represented at his hearing. I find it somewhat shocking and possibly a due process violation if a claimant is unrepresented. I cannot believe a court would find that a claimant is required to know what the listings are and then present and argue that he or she equals a listing at the hearing if unrepresented.
To be fair, the Court’s decision on this point is limited to cases in which a claimant is trying to show that he or she “equals a listing.” Presumably if a claimant meets the listing, the ALJ is required to discuss the reasons in the decision why he or she does or does not.
What I take away from this case is that it is important in every case to always present evidence and argue that you either meet or equal a listing. Otherwise if you fail to do so, you may be precluded from establishing an equivalency argument on appeal.
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]]>The post Quoted today in an article in the Wall Street Journal about disability judges facing more scrutiny appeared first on Law Office of Geri N. Kahn.
]]>The article notes that the judges were already facing tightening scrutiny due to prior articles in the Wall Street Journal critical of the disability program. In response to the scrutiny, they had already been changing their behavior.
In 2010, for example, judges awarded benefits in 67% of their 585,855 decisions, according to federal data. By 2013, the award rate fell to 56%. The allowance rate right now is probably at a 40-year historic low, Social Security Administration Deputy Commissioner Glenn Sklar said at a congressional hearing in November.
Thus, the judges somehow felt that in response to scrutiny they had to become tougher. All attorneys have felt these changes. I am quoted in the last paragraph of the article. I mention that I now scrutinize the cases I take more carefully. If I do not feel I can win it, I will not take it.
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