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Social Security Disability Hearing Guide This 122-page chapter from Tom Bush’s Social Security Disability Practice provides proven strategies, arguments, and questions for essential aspects of the hearing.
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To view the first 10 pages, read below:
Social Security Disability
Hearing Guide The ALJ, Claimant’s Testimony, Lay
Witnesses, the Government’s Medical Expert, the Government’s Vocational
Expert, Closing Argument, Post-Hearing Development, Res Judicata,
Administrative Finality and Reopening, Deceased Claimants, Hearing Checklist by Tom Bush
Excerpted from
Social Security Disability Practice
§300 The ALJ
Hearing §310 Claimant’s
Testimony §320 Lay Witnesses §330 The
Government’s Medical Expert §340 The
Government’s Vocational Expert §350 Closing
Argument §360 Post-Hearing
Development §370 Res
Judicata, Administrative Finality and Reopening §380 Deceased
Claimants §390 Hearing
Checklist §300 The ALJ Hearing §300.1 Disability
Service Improvement (DSI) §301 Prehearing Orders §302 Issues §302.1 Unsigned
“Reports of Contact” With Physicians §302.2 State
Agency Physician RFC Evaluations §302.3 Denial of
Right to Cross-Examine Authors of Adverse Medical Reports §302.4
Consultative Physician Reports §303 Just Before the Hearing §304 Hearing Procedure §304.1 ALJ’s
Opening Statement §304.2 Video
Hearings §304.3 Persons
Present in the Hearing Room §304.4 Making Your
Own Recording of the Hearing §304.5 Objections
to ALJ’s Questions §305 Objections to Exhibits §305.1 Unsigned
“Reports of Contact” With Physicians §305.2 Denial of
Right to Cross-Examine Authors of Adverse Medical Reports §305.3
Consultative Physician Reports §306 Claimant Representative’s
Opening Statement §307 Order of Testimony §308 Claimant’s Experts §309 Closing Argument §310 Claimant’s Testimony §311 Background, Age, Education and
Vocational Training §312 Work Experience §313 Medical History §314 Current Treatment §315 Physical Symptoms §315.1 Pain §315.2 Shortness
of Breath §315.3 Fatigue §316 Mental Symptoms §316.1 Use DSM-IV
as an Outline for Questioning §316.2 Stress §317 Mental Residual Functional
Capacity §318 Physical Residual Functional
Capacity §318.1 Sitting §318.2 Alternate
Sitting, Standing and Walking §318.3 Standing §318.4 Walking §318.5 Lifting and
Carrying §318.6 Postural
Limitations §318.7
Manipulative Limitations §318.8 Traveling §318.9 Good
Days/Bad Days §319 Daily Activities §319.1 Background
and General Description §319.2 Activities
of Daily Living §319.3 Social
Functioning and Leisure Activities §319.4 Personal
Care §319.5 Examples of
Limited Activities §320 Lay Witnesses §321 Limit the Number of Witnesses §322 Screen Witnesses and Pick the
Best §323 Prepare Witnesses but Do Not
Rehearse Testimony §324 Seek Testimony From
Observation; Avoid Conclusory Testimony §325 Corroborative Testimony §326 Before and After Testimony §327 Anecdotal Testimony §327.1 Seizures §327.2 Breathing Impairment §327.3 Pain §328 Interference with Work §328.1 Coworker
Testimony §328.2 Company
Disability §330 The Government’s Medical
Expert §331 Purpose of Medical Expert
Testimony §332 Procedure §333 ALJ’s Direct Examination of a
Medical Expert in a Mental Impairment Case §334 Critique and Objections to
ALJ’s Direct Examination §335 Meeting the Listings §336 Equaling the Listings §337 Residual Functional Capacity
Testimony §340 The Government’s
Vocational Expert §341 Vocational Issues §342 Proper ALJ Questions to VE §343 Improper ALJ Questions to VE §343.1 Failure to
Use Hypothetical Questions §343.2 Qualifying
a VE to Interpret Medical Records §344 Improper VE Testimony §344.1 Americans
With Disabilities Act — Associate Commissioner’s Memorandum §345 Prepare Your Own Hypothetical
Questions for the VE §346 Use of Dictionary of
Occupational Titles (DOT) §346.1 Physical
Exertion Levels §346.2 DOT
Specific Vocational Preparation and Skill Level §346.3 Example of
the Use of the DOT: Nurse Assistant §346.4 Pages From
DOT and Selected Characteristics §346.5 Example of
the Use of Materials that Supplement the DOT: Surveillance System Monitor §346.6 The DOT and
Sedentary Work §346.7 Some
Popular Jobs Which Are Not Sedentary Unskilled Jobs in the DOT §346.8 Use of the
DOT in Cross-Examining a Vocational Expert §346.9 Submit a
Rebuttal Opinion §347 Past Relevant Work §347.1 Make Sure
the Prior Job Really Was Relevant Work §347.2 The
Functional Demands and Job Duties of the Occupation as Generally Required by
Employers Throughout the National Economy §347.3 When a VE
Testifies That a Claimant Can Do a Former Job as the Claimant Performed It §347.4 A Past Job
Need Not Exist §347.5 Burden of
Proof §348 Using the Grids as a Framework
for Decision Making §348.1 Erosion of
the Occupational Base §348.1.1 Chart: Analysis
of the Light Occupational Base §348.1.2 Chart:
Unskilled Light Occupations — Manipulative Limitations §348.2 Basic Rules
for Using the Medical-Vocational Guidelines as a Framework for Evaluating
Cases Involving Exertional Impairments §348.3 Using the
Medical Vocational Guidelines for Evaluating Impairments of Claimants Under
Age 50 §348.4 The RFC of
Alternate Sitting and Standing §348.5 Using the
Medical-Vocational Guidelines as a Framework for Evaluating Solely
Nonexertional Impairments §348.6 Court
Decisions on Framework Analysis §348.7 Questions
to Vocational Expert Laying a Foundation for Argument Concerning Using the
Grids as a Framework §348.8 Questions
for Vocational Expert About Numbers of Sedentary Unskilled Jobs Within
Claimant’s RFC §348.8.1 Form: Request
for Subpoena Duces Tecum to Vocational Expert With Attachment §348.9 Questions
for the Vocational Expert About the RFC for Alternate Sitting and Standing §349 Transferable Skills §349.1 Definition
of Skill §349.2 No Skills
Develop From Unskilled Work Nor May Skills Be Transferred to Unskilled Work §349.3 Skills vs.
Traits §349.4 Skills
Acquired vs. Skills Transferable §349.5 Determining
Transferability §349.6 Different
Standards of Transferability for Different Ages §349.7 Examples of
Jobs Discussed in SSR 82-41 §349.8 A
Significant §349.9 Questions
for the Vocational Expert About Transferable Skills §350 Concluding the Hearing and
Closing the Record §351 Closing Argument by Claimant’s
Representative §352 ALJ’s Closing Statement §353 Post-Hearing Development §354 Close the Record §355 Consultative Exam Ordered by
ALJ §356 Post-Hearing Interrogatories to
Medical or Vocational Expert §357 Proffer to Attorney §358 Right to Cross-Examine Authors
of Adverse Post-Hearing Reports §359 Inquiries About Status §360 ALJ Decision and After §361 Bench Decision §362 Bench Decision Checksheet
(Form) §363 Submit a Proposed Decision to
the ALJ §364 Writing a Favorable Decision at
the Request of the ALJ §365 Submitting New Evidence to the
ALJ After a Denial Decision §370 Res Judicata,
Administrative Finality and Reopening §370.1 Overview §370.2 Res
Judicata and Administrative Finality Compared §371 Time Limit §372 Reopening for “Any Reason”
Within Twelve Months §373 Reopening for Good Cause §373.1 New and
Material Evidence §373.2 Clerical
Error §373.3 Error on
Face of Evidence §374 Reopening at Any Time §375 Jurisdiction to Reopen §376 Implied Request for Reopening §377 Res Judicata Dismissals §378 Circumstances Where Res
Judicata Does Not Apply §379 Res Judicata or
Administrative Finality Invoked by Claimants §380 Deceased Claimants §381 Social Security Disability
Substitute Parties §382 SSI Substitute Parties §383 Form: Notice Regarding
Substitution of Party Upon Death of Claimant (HA-539) §384 Form: Claim for Amounts Due in
the Case of a Deceased Beneficiary (SSA-1724) §390 Hearing Checklist §391 At the Hearing §392 After the Hearing §300 The ALJ Hearing An administrative law judge (ALJ) hearing, which is much
less formal than a court hearing, is non-adversarial. That is, there is no
lawyer representing the Social Security Administration who appears to
present SSA’s side. Indeed, SSA claims that it doesn’t have a “side.” The
agency views its role as providing benefits to those claimants who are
disabled and denying benefits to those who are not. It is the ALJ’s job, as
a neutral fact-finder working for a neutral agency, to inquire fully into
the issues and find the claimant disabled if the claimant meets the
requirements for disability set forth in the Social Security Act,
regulations and ruling. For the most part, ALJs fulfill the neutral
fact-finder role, finding disabled about 60 percent of all claimants who
appeal to the hearing level. There are, of course, individual differences
among ALJs. While all ALJs view themselves as neutral fact-finders, some are
harder to convince than others. Some have low approval rates, while others
are quite generous. As a lawyer for claimants, you need to pay attention to
these differences and provide more evidence of disability to ALJs who are
harder to convince. When preparing a case for any ALJ, your job as the
claimant’s attorney is to gather and submit medical records, medical
opinions and other documentary evidence before the hearing (and after the
hearing, if necessary), present witnesses’ testimony at the hearing and
examine witnesses called by the ALJ (cross-examining them, if necessary),
and present the claimant’s case in its best light to show that the claimant
is disabled under the law. It is part of your job to avoid treating the ALJ
as an adversary, even when you are arguing that the ALJ is wrong about the
law or facts. In fact, opportunities to present an argument to an ALJ arise
more often with the very good judges, the ones who will tell you when they
have a problem with a particular aspect of your client’s case. They tell you
this in order to give you the opportunity to argue for your client’s
position. Even with judges who are more difficult to convince, it is
counterproductive to treat a judge as an adversary. The claimant may appear in person before the ALJ or by
video teleconferencing, though a claimant is not required to appear by video
if the claimant does not want to. See §304.2. At a hearing before an
ALJ, evidence may be received even though it would not be admissible in
court under the rules of evidence used by courts. Strict deadlines for
submitting evidence generally do not apply, though more deadlines are coming
to this area of practice. See §300.1. Even so, if you are having
trouble getting particular evidence, you can ask the ALJ to issue a subpoena
for the evidence or you can ask for additional time to obtain it and submit
it after the hearing, if necessary. Vocational experts (VEs) or medical experts (MEs) may
testify, appearing in person, by video teleconferencing, or sometimes by
telephone. VEs testify in nearly 60 percent of all hearings. MEs testify in
somewhat fewer than 20 percent. Such experts are supposed to be neutral,
too, unlike, for example, experts in worker’s compensation or personal
injury cases, where everyone expects the experts to take sides. One might
make a good argument that neutrality by medical experts is achieved within
limits set by their own backgrounds and preconceptions (just like all of us)
and any constraints imposed on medical experts by the ALJs who they appear
before. Of course, when a medical expert appears who is used to testifying
for insurance companies in worker’s compensation cases, your client is not
likely to get much help on the case from the ME. Although an ME’s testimony
alone can win a case for a claimant (by demonstrating that the claimant’s
impairments meet or equal an impairment found in SSA’s Listing of
Impairments), it is less likely that an ME’s testimony will be the sole
reason a claimant loses. On dealing with ME testimony, see §§330 to
337. A vocational expert’s testimony, on the other hand,
can be the sole reason a claimant loses a disability case. Although VEs also
view themselves as neutral, neutrality is not the issue. VEs have been given
a nearly impossible role by SSA, one that is at the very edge of their
expertise. A vocational expert’s real expertise usually involves job
placement for people with physical or mental limitations. VEs’ jobs often
include encouraging employers to accommodate disabilities, which SSA says is
not relevant to the disability determination process because SSA is
concerned with how jobs are ordinarily performed in the economy, not with
whether an employer might be willing to alter job duties to accommodate a
limitation. See §344.1. SSA expects a VE to have expertise with the
Dictionary of Occupational Titles, which most VEs have stopped using in
their regular jobs because it is outdated. And SSA expects a VE to be able
to tell an ALJ how many jobs exist in the economy for people with certain
limitations, which is not something they do much at all in their regular
jobs and requires a lot of guess work. Most VEs view their role as giving the ALJ options —
that is, they provide a basis for a denial decision and a basis for a
favorable decision. VEs say they help ALJs find the line between who is
disabled and who is not. It is a rare VE, however, who will challenge an
ALJ’s preconceived notion about a case. If the VE draws the line correctly between those who
are disabled and those who are not, your job is to make sure your client is
on the disabled side of the line. This is not something done by
cross-examining a VE. This is done by presenting convincing evidence about
your client’s residual functional capacity. If the ALJ does not include
enough limitations in hypothetical questions to the VE, your job is to ask
additional questions that include all your client’s limitations so that the
line can be drawn between the disabled and not disabled. If the VE draws the
line incorrectly, you must deal with that VE testimony (through cross
examination or obtaining a rebuttal VE opinion) in order to redraw the line.
See §§340 through 349.9 Sometimes at the conclusion of a hearing, an ALJ will
issue an oral bench decision setting forth findings of fact and conclusions
of law establishing that your client is disabled. Then, within a few days,
your client will receive a short summary of the decision, which is the
official favorable decision from which benefits are paid. See §361. Otherwise, after the hearing, a full written decision
will be issued by the administrative law judge. Although ALJs have no time
limits for issuing decisions, because of the backlog at hearing offices,
ALJs are under pressure from SSA to issue decisions expeditiously. Most ALJs
do so, though a few do not. When an ALJ does not issue a bench decision at the
hearing, the ALJ usually will not tell you whether your client won or lost.
Sometimes, though, it is obvious — such as when an ALJ stops a hearing
without taking testimony from a vocational expert after a medical expert
testifies that your client’s impairment meets or equals an impairment found
in the Listing of Impairments. §300.1 Disability Service Improvement
(DSI) If you practice in After a claimant receives an initial denial
determination, instead of a reconsideration determination by a state agency,
the next step in the DSI administrative appeal process is a decision by a
federal reviewing official. 20 C.F.R. §§ 405.201 ff. If the federal
reviewing official turns down the claim, the claimant can request an ALJ
hearing. According to SSA, the hearing is de novo, just as it
is under current practice. With a de novo hearing, a claimant does
not have to prove that the earlier decision was wrong. However, under DSI, a
favorable ALJ decision must explain “in detail” why the federal reviewing
official was wrong. 20 C.F.R. § 405.370. In other words, even though there
is no presumption that the federal reviewing official’s decision is correct,
it will be a good idea for you to show that the federal reviewing official
erred. The Appeals Council is replaced by a Decision Review
Board, to which a claimant can appeal only an ALJ dismissal order (after
asking the ALJ to vacate the dismissal). 20 C.F.R. § 405.427. Otherwise, the
Decision Review Board deals solely with own motion review of both denial and
favorable decisions based on a statistical claimant profile. When a claimant
meets the profile, the notice of the ALJ decision will inform the claimant
that the case has been selected for review by the Decision Review Board. 20
C.F.R. § 405.371. If the Decision Review Board does not act within 90 days,
the ALJ decision becomes final and may be appealed to federal court. 20
C.F.R. §§ 405.415 and 405.420. Under DSI, all claimant appeals of ALJ denial
decisions, unless the Decision Review Board takes jurisdiction, go directly
to federal court. 20 C.F.R. § 405.501. Hearing procedures are similar, but there are
differences. Here is a list of significant ones:
§301 Prehearing
Orders For years, some ALJs have wanted SSA to provide the
authority to better control the submission of evidence by allowing them to
impose mandatory time limits for when evidence may be submitted before or
after the hearing. Some ALJs have wanted SSA to require claimant
representatives to certify that all evidence, including adverse evidence,
has been submitted to the ALJ. Some ALJs have gone so far as to issue
prehearing orders that set time limits and require disclosure of adverse
evidence which contain explicit or implicit sanctions. The DSI rules, in effect, incorporate mandatory time
limits for submission of evidence similar to what a few ALJs have tried to
impose with prehearing orders. Thus, when the DSI rules become effective in
your area, it will be essential for you to pay very close attention to time
limits for submitting evidence. See §300.1. The DSI rules, however,
did not impose any additional requirement for submission of adverse
evidence, but they did set a new standard for submitting complete records
from medical care providers that became effective nationwide in all cases on
August 1, 2006. Revised 20 C.F.R. § 404.1512(c) provides that a claimant
“must provide evidence, without redaction, showing how your impairment(s)
affects your functioning during the time you say that you are disabled ....” Current SSA policy is that although ALJs may issue
prehearing orders, they cannot provide mandatory deadlines or sanctions, and
prehearing orders cannot shift to the claimant the ALJ’s duty to develop the
record. The following description of current SSA policy appears in a
reminder from the Chief Administrative Law Judge dated November 30, 2005: This topic has been a recurring topic of earlier
reminders; however, we still occasionally receive inquiries regarding the
lawfulness of such orders. I would like to take this opportunity to, once
again, remind ALJs that prehearing orders and instructions, while not per se
inappropriate, should NEVER contain mandatory requirements or sanctions. Prehearing orders or instructions should never contain
the following: 1. Mandatory time frames for—
Remember that HALLEX provides that the claimant or
representative may submit evidence at or after the hearing. See
HALLEX I-2-6-30 and I-2-7-20. 2. Sanctions for failure to comply with the terms of a
prehearing order include:
—the State Agency; —district office.
In lieu of postponing or continuing a hearing, ALJs
should set deadlines for the submission of post-hearing evidence consistent
with HALLEX I-2-7-20. 3. Shifting of the duty to develop the record by
requiring the representative to submit all medical evidence
prior to or at the hearing. An ALJ’s independent duty to develop the record is
inconsistent with mandatory requirements and threatens sanctions in
prehearing orders or instructions. All ALJs who issue improper hearing
orders or instructions must refrain from doing so. Although the Chief ALJ’s memorandum does not mention
it, the HALLEX specifically approves of sending prehearing questionnaires to
the claimant’s representative. HALLEX I-2-5-85 provides: The ALJ, in addition to conducting a prehearing
conference (see 20 CFR §§404.961, 416.1461; I-2-1-75), may use a Prehearing
Questionnaire to:
Besides obtaining evidence from the claimant or
representative, a Prehearing Questionnaire can be helpful in narrowing the
issues that need to be decided at the hearing and in managing the
scheduling, and conducting of, the hearing by the ALJ. The ALJ must not impose penalties, threaten sanctions
or otherwise state that a representatives fee may be reduced by the ALJ for
failure of the claimant or representative to complete and submit responses
to the Prehearing Questionnaire. HALLEX I-2-5-89 provides the following sample
“permissible” questionnaire: SOCIAL SECURITY ADMINISTRATION In the Case Of:
Claim For: (Claimant)
Disability Insurance Benefits
Supplemental Security Income Benefits (Wage-Earner)
(Social Security Number) PREHEARING QUESTIONNAIRE This Prehearing Questionnaire has the following stated goals
and objectives: i. With timely and complete filings being submitted
before a hearing, “post-hearing” development (which delays a decision on the
merits) is reduced. ii. Compliance with this Questionnaire will also
permit the undersigned to schedule the proper time for presentation of the
evidence and permit the proper scheduling of medical and vocational experts
to avoid having the case placed in post-hearing status or the need for a
supplemental hearing.
1. Please submit all evidence to be considered at the
hearing at least 10 days before the scheduled hearing. This includes, but is
not limited to, claimant’s current medications; claimant’s work history;
reports, records, or office notes from any treating or examining medical
source, functional capacity evaluations or independent medical examinations,
medical source statements and other documentary evidence relevant to the
claim. 2. Please respond to the following regarding your
client’s application: a. What medically determinable
impairment(s) do(es) your client have and what Exhibits in the
Administrative Record do you rely on to establish the existence of these
impairment(s)? b. Does your client claim to have an
impairment that meets or medically equals the criteria of any listed
impairment(s) at 20 C.F.R. 404, Subpart P, Appendix 1? If so, what treating
source evidence do you rely on and on what date do you propose the medical
Listing was met or medically equaled? (Identify by date and source and
Exhibit Number.) c. Does your client claim to be
disabled under the Medical-Vocational Guidelines (“Grid Rules”) at 20 C.F.R.
404, Subpart P, Appendix 2? If so, identify the Grid Rules you will be
relying on. d. What exertional limitations
(sitting, standing, walking, lifting, carrying, pushing, and pulling) do you
allege that your client has as of the result of the impairment(s)? (Support
such allegations by reference to date, source and Exhibit Number.) e. What non-exertional limitations
does your client allege as a result of the impairment(s)? Remember that pain
is not a limitation, but a symptom. Specify the limitations attributed to
any alleged pain. Examples of non-exertional limitations would include
limitations in vision, hearing, speaking, understanding, carrying out and
remembering simple instructions, use of judgment, responding appropriately
to supervision, co-workers and usual work situations, environmental
limitations, manipulative or postural functions such as reaching, handling,
stooping, climbing, crawling, or crouching. Support such allegations by
reference to date, source and Exhibit Number. f. Please list the names of
all witnesses you will present at the hearing, other than your client, and
specify what relationship, if any, to the claimant, and whether any of these
individuals will testify as a medical or vocational expert. (If the
individual(s) will testify as medical or vocational expert, provide a
resume). g. Identify any proposed
stipulations for consideration. Date:__________________
______________________________
Attorney/Representative for Claimant
Your job as the claimant’s attorney is to comply, to
the degree possible, with any prehearing order issued by the ALJ—following
the basic rule of this informal administrative area of practice: It is best
to get along with the ALJ. Do the best you can to follow a prehearing order
while, at the same time, protecting your client’s rights. §302 Issues When the DSI rules become effective in your area, issues
include all issues raised by the claimant’s case regardless of whether the
issue has already been decided in the claimant’s favor; however, the ALJ
must give the claimant the opportunity to address a new issue. 20 C.F.R. §
405.325. Once DSI is effective, objections to issues must be submitted not
later than five business days before the hearing. 20 C.F.R. § 405.317(b). Under non-DSI rules, if you object to the issues to be
addressed at your client’s hearing, you are supposed to submit your
objection “in writing at the earliest possible opportunity before the time
set for the hearing.” 20 C.F.R. § 404.939. See §289. The issue in most disability claims is whether your client
is disabled. When there is a date last insured that runs before the date of
the hearing, the issue becomes: Was your client disabled on or before the
date last insured? Under current non-DSI rules, the issues for a hearing
include all issues that were not decided in the claimant’s favor in the
initial or reconsideration determinations. Thus, when the claimant appeals a
partially favorable reconsideration determination seeking an earlier onset
date, the ALJ is not supposed to consider whether the claimant might not be
disabled at all unless evidence causes the ALJ to question the matter. If
so, the ALJ must provide notice of a new issue. 20 C.F.R. § 404.946
provides: (a) General. The issues before the administrative law
judge include all the issues brought out in the initial, reconsidered or
revised determination that were not decided entirely in your favor. However,
if evidence presented before or during the hearing causes the administrative
law judge to question a fully favorable determination, he or she will notify
you and will consider it an issue at the hearing. (b) New issues— (1) General. The administrative law judge may
consider a new issue at the hearing if he or she notifies you and all the
parties about the new issue any time after receiving the hearing request and
before mailing notice of the hearing decision. The administrative law judge
or any party may raise a new issue; an issue may be raised even though it
arose after the request for a hearing and even though it has not been
considered in an initial or reconsidered determination. However, it may not
be raised if it involves a claim that is within the jurisdiction of a State
agency under a Federal-State agreement concerning the determination of
disability. (2) Notice of a new issue. The administrative law
judge shall notify you and any other party if he or she will consider any
new issue. Notice of the time and place of the hearing on any new issues
will be given in the manner described in §404.938, unless you have indicated
in writing that you do not wish to receive the notice. The HALLEX states that in addition to where new
evidence raises a question about an issue decided favorably to the claimant,
if the favorable determination from which the claimant appealed is based on
an error of law, the ALJ will consider it even where there is no new
evidence. HALLEX I-2-2-1 B. In both circumstances, the HALLEX requires that
advance notice be given to inform the claimant that a new issue will be
considered at the hearing. In practice, if a new issue comes up during a
hearing, the ALJ will offer you the option of waiving advance notice or the
ALJ will reschedule the hearing for a future date so that proper notice can
be issued before the hearing. On rare occasions, you may get involved in a
disability claim in which the state agency did not develop the medical
evidence or consider whether or not the claimant was disabled. Instead, a
denial was issued that had nothing to do with whether or not the claimant
was disabled — for example, a step-one denial was issued because a claimant
was working or an SSI claimant’s assets or income exceeded the limits for
the SSI program, etc. The issue in such a case involves the matter
that formed the basis for the denial decision. The question such a case raises about the issues is
the following: Once the ALJ resolves the immediate issue in the claimant’s
favor, can the ALJ then address whether or not the claimant is disabled?
Because the state agency has not addressed the issue of disability, based on
20 C.F.R. §404.946(b), many ALJs and attorneys might say, “No, this is
within the jurisdiction of the state agency.” But this is not what the
HALLEX says. HALLEX I-2-2-10 says that under these circumstances if the ALJ
is prepared to issue a wholly favorable decision, the ALJ can do so, raising
disability as a new issue in the case. HALLEX I-2-2-10 provides: An ALJ may not raise as a new issue any issue which is
within the jurisdiction of a State agency under a Federal-State agreement
concerning the determination of disability unless the ALJ is prepared
to issue a decision which is wholly favorable on the issue of
disability. If the decision is not wholly favorable, the ALJ must rule on
the issues within his or her jurisdiction, and dismiss the request for
hearing with respect to the issues within the State agency’s jurisdiction.
The ALJ must return the claim file to the State agency for action on the
issues within their jurisdiction.
Example 1 An ALJ has a claim for supplemental security income
based on disability. The claim was previously denied because of the
claimant’s excess income. There is no medical evidence in the file. The ALJ
is prepared to rule favorably on the excess income issue, but is not
prepared to issue a wholly favorable decision on the issue of disability
because the medical record has not been developed. The ALJ cannot raise the
new disability issue. The ALJ must rule only on the excess income issue, and
return the claim file to the State agency for action on the disability
issue.
Example 2 An ALJ has a claim for supplemental security income
based on disability. The claim was previously denied because of the
claimant’s excess income. There is medical evidence in the file. The ALJ is
prepared to rule favorably on the excess income issue and find the claimant
disabled, but as of a date later than the claimant alleges. The ALJ cannot
raise the new disability issue, because the decision about disability would
not be wholly favorable. The ALJ must rule only on the excess income issue,
and return the claim file to the State agency for action on the disability
issue. If, however, the ALJ is prepared to issue a wholly favorable decision
on the issue of disability, the ALJ can raise it as a new issue and provide
notice of the new issue to the claimant or seek a waiver of the 20-day
notice requirement. If you have a case like this, you need to gather all the
medical evidence and ask the ALJ to address the new issue of whether your
client is disabled. This is a situation in which the claimant cannot lose.
The ALJ will either issue a fully favorable decision or send the case back
to the state agency. The ALJ cannot issue a decision finding your client not
disabled. §303 Just Before the
Hearing Be sure to arrive at the hearing office on the day of the
hearing early enough to accomplish the following: When you arrive for a hearing where the claimant
appears in person before the ALJ (rather than a video hearing), unless your
client’s case is using the electronic disability folder, you will be allowed
to review the original paper hearing exhibit file. You will have obtained a
copy of this file at some point before the hearing and reviewed it long
before the day of the hearing. On the day of the hearing, your job is to
check the file to make sure everything you submitted has been entered as
exhibits and write down the exhibit numbers (for ease of referring to
particular exhibits at or after the hearing). Look to see if there are any surprise exhibits —
exhibits you have never seen before. Although it is rare that a medical
exhibit will be obtained by the hearing office and entered as an exhibit
after you obtained a copy of the file, it does happen occasionally. More
often, you will find that there is a new exhibit in the D section that shows
your client’s income after the alleged onset date, or maybe it will show
that your client received unemployment compensation benefits, or maybe a new
exhibit will show your client’s criminal record. You need to go over such
things with your client before the hearing. If you see any post-it notes or flags sticking out from the file, pay special attention because they may have been... (continued in pamphlet)
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To immediately
obtain the Social Security Disability Hearing Guide |
|
