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Using SOAR in the Appeals Process, Part II Presented by: SAMHSA SOAR Technical Assistance Center Policy Research Associates, Inc. Under contract to: Substance Abuse and Mental Health Services Administration U.S. Department of Health and Human Services
Welcome! Dr. Pamela J. Fischer, Ph.D. Social Science Analyst Homeless Programs Branch Center for Mental Health Services Substance Abuse and Mental Health Services Administration
Agenda Overview of SSA’s Disability Appeals Process and How to Request and Write Winning “On the Record (OTR)” Decisions- Walt Davis, Benefits Specialist, Volunteers of America, Northern Louisiana Inc., Shreveport, LA The Hearing Stage: Pre-Hearing Preparations and Basic Courtroom Procedures - Ilana Avital, Staff Attorney, LAW (Legal Action of Wisconsin), Racine, WI SOAR and Legal Aid Partnerships: Mentorship For Effective Representation at the Hearing Level - Lourdes Flores, Paralegal, Texas RioGrande Legal Aid Association (TRLA), Austin, TX Useful Case Law, Rules, Regulations, POMS and HALLEX: What every SOAR Practitioner Should Know to Best Represent Applicants at the Hearing Level- Gai Lorenzen, Managing Attorney, LAW, Racine, WI Questions and Answers- SOAR Technical Assistance Center
Purpose SOAR was originally developed for adults experiencing or at- risk of homelessness with serious mental illness, co- occurring substance use disorders, or other physical disabilities SOAR critical components have been applied to successfully represent adults at all stages of the appeals process –2,000 appeals decisions –66 percent of all reconsiderations or ALJ hearings resulting in an allowance SOAR focuses on “getting it right the first time! But, we know that is not always possible
MYTH Only lawyers can represent applicants at the hearing and appeals council levels. FALSE!
MYTH If an applicant is denied at the initial level, then DDS won’t reverse itself, so the applicant is denied at reconsideration. FALSE!
Overview of the SSA Disability Appeals Process and How to Request and Write Winning “On the Record” Decisions! Walt Davis Benefits Specialist Volunteers of America, Northern Louisiana Inc. Shreveport, LA
SSA Appeals Process 1) Initial determination 2) Reconsideration 3) Administrative Hearing 4) Appeals Council Review 5) Federal Court Review Federal Court ReviewAppeals Council ReviewAdministrative HearingReconsideration Initial Determination
Reconsideration (Recon) First level of appeal in most states, except for these areas: –Alabama, Alaska, California (Los Angeles North and Los Angeles WB ), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania Request for Recon needed to initiate the appeals process Must be filed within 60 days of the date of the denial notice + 5 extra days for mailing Three forms to file: –Request for Reconsideration –Disability Appeal Report –Medical Release Authorizations All may be obtained and filed online at
Reconsideration DDS takes an entirely new look at the case and makes a new determination on a person’s disability –New disability examiner/analyst and new reviewing physician SOAR advocate should encourage the applicant to appeal an initial denial Many ways to bolster claim: –Opportunity to complete more detailed Disability Appeal Report –SOAR advocate can take many of the steps to develop the claim at Recon that are described in the SOAR model
Appeal Deadlines What if the deadline to appeal has passed? The applicant can appeal if he/she has “Good Cause” for missing the deadline –The Federal SSA Regulations provides for this: 20 CFR , Ask SSA to accept late filing by giving “good cause” or reason for the delay, which prevented the applicant from a timely filing, e.g.) –Related to applicant’s disability, –Limited English proficiency and/or education, –Failure to understand the requirements, –Failure to received denial notice within 5 days of the date on the notice, –Unusual of unavoidable circumstances, e.g.) hospitalization, etc… SSA will also consider a late filing was related to the applicant's disability.
Appeal vs. New Application SOAR Advocates should explain the difference between: Reapplying –Starting a new application –Losing their earlier protective filing date and potential eligibility for months of back benefits Requesting reconsideration –Further appealing their case
On the Record (OTR)…What Is It? A written request asking that the ALJ make a favorable decision based on the evidence in the case record –A fully favorable decision is the only decision possible through an OTR. Otherwise there is no decision and the hearing process goes forward as though the OTR never happened You are requesting a decision based on new evidence that has become available since the DDS denial –Can be as big as a catastrophic worsening of your client’s condition, or as small as an onset date that was entered wrong. But it has to be evidence that supports a favorable outcome. It can be requested by the client or their representative but is often done through a screening process by the ODAR Attorney Adjudicators in an effort to clear hearing backlogs –So if you get a phone call from ODAR seeking additional information, that is why
When to Request a Decision “On the Record” ALJ may issue fully favorable decision without holding a hearing –20 C.F.R (a) If the OTR is denied, you may proceed with hearing Sometimes an ALJ will tell you why it was denied so you will know what she is looking for Avoid waiving hearings Help to reassure the applicant
Making the Decision Not all cases are good candidates for the OTR process IF you feel yours is, do your homework first Boil down the denial to the issues that prevented DDS from awarding the case
What to Review Before Requesting an OTR Denial letter –What medical records were not received? –Were any pertinent records not even ordered?
Examine the Disability Determination Explanation (DDE) for the reasoning behind the denial It is included in ODAR exhibits BUT you can get a copy from SSA prior to that What to Review Before Requesting an OTR
The DDS denial warrants another in depth interview with the client This time you can narrow in on the issues that caused the denial Uncle Bob may have been mentioned by the client the first time around, but now the role as the client’s supervisor may take on new significance “You mentioned you worked for your uncle at the factory in Did he see how you struggled? Did he help you?”
What to Review Before Requesting an OTR While you are talking to the client, be on the lookout for any information he or she may have Some examples: –“My doctor still insists he never got a request for medical records from Social Security.” –“The SSA doctor kept calling me by someone else’s name.” Reconcile inconsistencies with the DDE
What to Review Before Requesting an OTR You’ve done your homework. Now it is time to see what you have Work forward and backward through the Sequential Evaluation
DDS feels the client has Past Relevant Work(PRW) (Step 4) they can perform You have evidence that disputes this Treating physician letters, medical records that were not ordered, etc. Don’t forget to also look back at step 3 Have you uncovered any evidence that will show your client meets or equals the listing? If so, then you likely just won a favorable decision! Example
Example: An OTR Request Client applied with help from his sister Alleged numerous physical impairments and depression and was denied During my interview he added, “Oh yeah, I think I am slow too.” Turns out there was a Psych exam from last year in his mental health records that showed he had a full scale IQ of 58 with extremely low adaptive IQ I requested an OTR based on the fact that this medical evidence was not considered by DDS
The Rest of the Story The OTR was and WASN’T successful I presented ODAR with medical evidence that showed my client likely met or equaled a listing However, the ALJ is not a doctor Rather than make a decision he allowed the hearing to go forward as a formality so the medical expert could, under oath, opine that my client met the listing The OTR was a “heads up” to the ALJ and ultimately served its purpose!
How Do You Write It? Clearly label an OTR request "OTR Request," and submit as early as possible (but only when a request is appropriate) OTR requests are not appropriate in every case, and should be requested only when a favorable outcome is supported by the evidence in the record Identify evidence that supports the OTR OTR requests should include a concise summary at the beginning of the brief outlining the argument, followed by a more detailed explanation specifically directing the reviewer's attention to evidence supporting a favorable decision Make sure evidence supports onset date Onset issues are the most frequent reason an OTR request cannot be granted From Best Practices for Claimants' Representatives, SSA Publication No , January 2011,
Last But Not Least Know your limitations If you are not a lawyer, don’t try and act like one An OTR does not need to sound like a legal document. Just be to the point, state your request in plain language, and always be respectful of the ALJ’s time as well as the time of their staff. A concise, well written, well punctuated, and grammatically correct request will go a long way in helping your client. Edit, edit, edit!
The Hearing Stage: Pre-Hearing Preparations and Basic Courtroom Procedures Ilana S. Avital LAW (Legal Action of Wisconsin) Racine, WI
Topics Pre-Hearing Preparation Courtroom Procedures Medical Vocational Guidelines Approaching Vocational Expert (VE) Testimony Electronic Filing (ERE) SSDI, Title XVI Insured Status Amending Disability Onset Date
Pre-Hearing Preparation Review CD from ODAR: What is missing? Consistently communicate with client regarding updated treatment sources, collateral sources, functioning and limitations Request updated medical records, medical assessment forms from treating sources, Third Party Function Reports from collateral sources Submit medical and other evidence as received
Pre-hearing Preparation, cont’d Familiarize yourself with ALJ hearing practices Consult Adult Function Reports Prepare pre-hearing memorandum Prepare hearing questions Meet with client and discuss hearing strategy, orient client to ALJ, role of VE, etc. Know key exhibits, exhibit page numbers as shown on CD
Courtroom Procedures Arrive minutes prior to hearing ensure CD contains all evidence, memorandum Consult CD during hearing Swearing in claimant Representative opening statement ALJ questions
Courtroom Procedures, cont’d Representative questions Witnesses Vocational Expert testimony ALJ and Representative questioning of VE Closing statement Holding the record open
Medical Vocational Guidelines: Appendix 2 to Subpart P of Part 404 Purpose: to determine whether individual with severe impairments can adjust to any other work in the national economy Factors to evaluate: residual functional capacity, age, education, work experience See Medical Vocational Guidelines here: app-p02.htm
Approaching Vocational Expert (VE) Testimony Present hypothetical situations containing each additional limitation, supported by the record. For example: –“If the worker requires four unscheduled ten minute breaks, would the jobs cited still be available to the person?” –“Would the individual be precluded from performing the jobs you just mentioned if he is absent at least four or more days per month due to the symptoms of his impairments? “ –If the worker experiences unpredictable angry outbursts more than once per week, would the jobs you listed still be available to her?
Approaching Vocational Expert (VE) Testimony VE says claimant is capable of performing certain work, but there are no further limitations to present: –“What is that opinion based on?” –“Which specific employer would allow this?” –“What kind of experience do you (VE) have in verifying that this specific employer would tolerate this limitation?” Hold the record open. Investigate VE statement. If statement inaccurate, submit letter explaining why.
Electronic Filing (ERE) Submit evidence through SSA website electronically prior to Administrative Law Judge hearing as received Use barcode, 200 pages maximum Social Security Electronic Records Express Help Desk: ERE instructions:
SSDI, Title XVI Insured Status Eligible for SSDI if sufficient work quarters, claimant paid into Social Security system Determine date last insured (see notice of denial at reconsideration) At ALJ hearing, establish disability prior to expiration of insured status
Amending the Disability Onset Date When proposed by ALJ Pros and cons Explaining to claimant Claimant’s decision
SOAR and Legal Aid Partnerships: Determining Case Acceptance and Preparing SOAR Advocates Effective Testimony at the Hearing Level Lourdes Flores Paralegal Texas RioGrande Legal Aid Association (TRLA) Austin, TX
Case Acceptance Questions What I need to know to determine whether to represent an applicant at an ALJ Hearing
Case Acceptance Questions Is the client currently working? –This includes illegal activity –SSR 94-1c Illegal activity as substantial gainful activity
Case Acceptance Questions Are there medical records that would substantiate a medical impairment? Is the applicant currently receiving medical care and from whom?
Case Acceptance Questions Is this a physical or mental impairment or a combination of both? Is substance abuse going to be an issue such as possible DAA (Drug Addiction and Alcoholism)?
Case Acceptance Questions What is claimant’s past relevant work, looking at the past 15 years? This includes unsuccessful work attempts
Case Acceptance Questions Have they ever been incarcerated for more than 6 to 8 months? What for and did they receive medical treatment while in prison/jail? Did they work while in prison/jail? Were there any restrictions?
Case Acceptance Questions What is the client doing to help bolster their claim? –Following prescribed treatment –Communicating with representative about any changes in their medical conditions or treatment
Case Acceptance I recommend you meet with your local Legal Aid Office and see whether they will represent client at an ALJ hearing and you can agree to testify I am more likely to accept a case if I have a knowledgeable caseworker willing to testify at the hearing
Preparing SOAR provider to Testify at Hearing Qualifications –Education and experience Where do you work and in what capacity? Are you a caseworker with a medical provider or possibly a shelter employee? What is it you actually do for the client? –Provide transportation, therapy, living skills, medication compliance
Possible Witness Pitfalls Do not use acronyms that only your organization uses The ALJ will not know what they are If acronyms are in file, explain at hearing
Witness Preparation If you actually write notes, review before the hearing and look at any comments you have written which might undercut client’s applications –Comments such as “he appears stable”, “doing well” and “showing improvement” Elaborate on what you meant and in what context they were written – Is he doing well because he has someone monitoring his medication pillbox?
Witness Preparation Avoid using phrases such as I help client “link” or “provide resources” without actually describing what you do in detail –You can say “I help client identify unmet needs such as food stamps and have taken him to the Texas Health and Human Resources Office and helped him complete the forms because he could not understand them –This is especially critical for individuals with cognitive impairments
Witness Testimony Provide examples of any limitations you have observed, for example: –He becomes aggressive around others which can be a group of 3 people –He has had several verbal altercations with other clients –I schedule appointments with him in the late afternoons –We agree that once he checks in he can go outside and pace and/or smoke if he needs to –We schedule appointments at certain times due to the side effects of his medications
Witness Testimony If you work as a “treatment team” describe the organization and the composition of the treatment team –e.g. psychiatrist, nurse, caseworker, housing support worker, probation and parole.
Witness Testimony If client is homeless provide a description of their surroundings Does the client stay with different family members? Does the client live in the woods or in shelters? What personal observations about their living conditions have you seen?
Witness Testimony Provide details on possible referrals to other agencies and why referrals were made –May be that client was referred to you because he/she required more intensive services –May be client has Hepatitis C and due to his depression, client was referred to your agency to monitor his mental health to determine whether Hepatitis C treatment can be provided Is client having to see psychiatrist or caseworker more often due to mental illness and severity? Maybe client’s needs exceed what your agency can offer so he was referred to another agency for higher intensity services
Important SSA Rulings, Regulations, POMS, HALLEX and Case Law Gai Lorenzen Managing Attorney LAW (Legal Action of Wisconsin) Racine, WI
Administrative Law Judge (ALJ) Why didn’t your client get approved? Examine the denial explanation Issue spot Issues that result in ALJ Hearing Work or vocational related Alcohol or drug related Evidentiary Lack of evidence Evidence but can’t quite connect the dots Misc.
Res Judicata Administrative Res Judicata-Rule that prevents the same issue from being raised over and over and over –There is a need for finality –Applies to all stages of process, not just ALJ 20 CFR (c)(1) and (c)(1) Ruling: 91-5p POMS: GN HALLEX: I
Res Judicata –Same material facts-no new or material evidence –Dismiss claim or deny request to re-open Not Res Judicata –Change in issues –Prior decision was not final Change in law or policy Hearing to determine, 4 th circuit rule
Resources United States Code-USC Code of Federal Regulations-CFR POMS-Program Operations Manual System https://secure.ssa.gov/poms.nsf/home!readform HALLEX-Hearing, Appeals and Litigation Law Manual SSR-Social Security Ruling AR-Acquiescence Ruling (through 2007) mlhttp://www.socialsecurity.gov/OP_Home/rulings/rulfind1.ht ml (SSR , AR ) Case Law
Work and Vocational Issues Vocational Expert Dictionary of Occupational Titles (DOT) Work History National Economy Residual Functional Capacity (RFC) Subjective Symptoms Onset Date Mental Abilities Grids
Alcohol and Drug Use Alcohol, drugs and physical impairment Alcohol, drugs and mental illness History of usage Treatment Credibility
Miscellaneous Evidentiary Issues Appeals Council ???
For More Information on SOAR Visit the SOAR website: SAMHSA SOAR TA Center Policy Research Associates, Inc
Questions and Answers Facilitated By: SAMHSA SOAR Technical Assistance Center Policy Research Associates, Inc.