Thursday, November 20, 2008

How do I win my Social Security Disability Hearing? Is it Easier than the first steps?

In a recent post, I mentioned several ways in which the disability hearing is different from the steps in the disability process that come before it (those two steps are the application for disability and the request for reconsideration).

I thought I'd expound on that a bit in this post. Is a disability hearing very different from the earlier stages and is it easier to win at that level of the system?

The answer to the second part of the question is, Yes, it can be potentially be easier to win at a hearing. That doesn't mean, of course, that a case that has little merit is likely to be approved at a hearing. It just means that hearings are more A) objective and B) more fair.

Why do I say "objective" and "fair"? Isn't the entire disability system objective and fair? Sorry. Just in the same way that there is no Easter Bunny, the system that governs social security disability and SSI allowances is neither fair nor objective. That's because disability applications and first appeals (the request for reconsideration) are handled by DDS, a state-level agency that renders decisions on claims for the social security administration. DDS disability examiners (I used to be one) routinely have their decisions questions, and reversed, by unit supervisors who are concerned that an approved case could be sent back from a quality control unit as a "return".

Returns are viewed by unit supervisors as "black marks" on their records. And cases that have been returned from quality control (known as DQB, or disability quality branch) tend to be cases that were approved. You don't have to be Sherlock Holmes to figure out the rest. This being the case, DDS unit supervisors tend to discourage a fair number of approvals (and almost never discourage denials, go figure).

So, the disability system at the first two levels of the system, because it is handled by an agency whose front line supervisors have a vested interest in denying cases, is inherently unfair and less than objective.

Judges at hearings, by contrast, are autonomous. They make their own decisions. Yes, their decisions are also subject to review. one can actually tell a judge to change his or her opinion. For example, if a case denied by a judge is appealed to the appeals councial and it is returned for a second hearing (this is known as a remand, and it usually occurs because of a failure to address or consider an aspect of the case or the regulations governing cases), the judge is A) obligated to schedule and hold a second disability hearing and B) address the deficiencies of his prior decision as indicated by the appeals council. However, he is not obligated to arrive at a decision that results in a different case outcome. In other words, you really can't tell a disability judge what to do.

The fact that a disability judge is more likely to be objective and more likely to give consideration to a statement from a claimant's treating physician (which can be done via an RFC form) makes the hearing a fairer thing. And if a case has merit---the medical records indicate the claimant is disabled---this makes it more likely that a claimant can win their case.

However, it is also easier to win at a disability hearing simply because at a hearing, a claimant can appear and advocate for themselves, or appear with a disability representative and have that individual advocate for them, i.e. present an argument as to why their case should be approved. Contrast this to the first two steps in the system where a claimant is simply a file and a collection of paperwork that a state employee is simply trying to get off his or her desk.

What are the odds of winning at a disability hearing? About fifty percent. According to one set of federal statistics, this rises to 62 percent for those who have an attorney. That's significantly better than the 30 percent chance of winning at the application level and the 15 Percent chance of winning at the reconsideration appeal level.

Return to the Social Security Disability SSI Benefits Blog

Other Posts

Do they investigate you when you apply for disability ?
Apply for social security - applications for SSD and SSI
Denied for SSI
Why are Living Arrangements Addressed During an SSI Application?
Question about SSI Back Pay after being Approved
Should You Appeal Your Social Security Disability Denial?
The social security disability process for disability claims

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