De Minimis Guideline for Disability and Eligibility:
The first step in the process of staying profitable as a Social Security disability (SSD) representative is choosing a client that meets at least the minimum guidelines for disability and eligibility. A minimal guideline for accepting a client is that he/she is not working, or at least at the substantial gainful activity level, and has a severe impairment that has or will last for at least 12 months. This criterion is necessary for Steps 1 and 2 of the 5-Step sequential evaluation. Moreover, the client needs to be eligible for Title II disability insurance benefits (DIB) and/or Title XVI supplemental security income (SSI). Unless the client is 30 years of age or younger, eligibility for Title II benefits includes having 20 quarters of earnings out of 40 at the substantial gainful activity level. Unless the client is legally blind, eligibility for Title XVI includes having less than $3000.00 in assets for a whole family. Once a client has met the de minimis guideline for SSD and eligibility, agreeing to represent the right client is essential to your success.
Winning Client Profile:
At intake, you will assess if an individual is the right fit for you and has a profitable SSD claim. Important questions include your client’s work history, education, age, activities of daily living, and medical care to get the client’s profile and a better understanding of the case. Many experienced SSD representatives have a client profile they find successful. Some characteristics of a successful client include an individual who is age 50 or older, has a solid work history, consistent medical care, and past relevant work that requires extensive lifting, standing, and walking. Other helpful characteristics include individuals who are prescribed a cane or walker, back injury with more than one surgery, schizoaffective disorders, and/or 60 percent or more Veterans Administration service-connected disability for musculoskeletal, respiratory, or mental impairments. Success is more likely with listing-level impairments, which include individuals with a back impairment and several positive straight-leg raise tests, heart conditions with an ejection fraction of 30 percent or less, and mental impairments with psychiatric hospitalizations of at least seven days. Clients with a listing-level impairment can be found disabled at Step 3. Of course, these listing-level indicators need to be supported by medical evidence. Once you have your winning profile, file the claim and start the process.
Onset Date Considerations
If your potential new client has just recently stopped working, you will need to explore and assess when they became disabled or their “onset date”. There are many factors that can affect what onset you may propose for a client.
Relevant factors may include:
When did they stop working?
Are they working now?
Any substantial breaks in employment during the last 24 months?
Unsuccessful work attempts?
Client’s age classification
Susbtantial medical evidence, and more.
In cases where your potential client needs an in-depth onset date workup, you may be better off doing the claim yourself and not sending the client to SSA where “they” may determine an onset date that may be disadvantageous to your client. If you are unfamiliar with some of the concepts listed above, you should study carefully and learn them if you want to provide sound advice for your clients and run a profitable business.
Success at Reconsideration, Hearing, and Appeals Council Levels:
You have an eligible client who appears to have a winning profile; however, the claim is denied at the initial level. No fear, this is usual and happens most of the time. File the appeal within 60 days between initial, reconsideration, and Administrative Law Judge hearing denials. Create a system or pay for services that ensure you are managing your caseload and working within deadlines. At the reconsideration level, order a CD from the field office so you can see what is in the file. Request and submit missing medical evidence that is targeted towards a listing-level impairment and worsening medical conditions. You have a chance of winning early in the process at the reconsideration level. If you do not win at the reconsideration level, appeal for an Administrative Law Judge hearing. Keep updating the file until the Administrative Law Judge hearing; remember to submit all evidence no later than five days prior to the scheduled hearing. At the hearing level, focus on listing-level impairments and objective evidence that shows your client is restricted in performing work-related activities such as lifting, standing, walking, interacting with others, and concentrating. At the Appeals Council level, you have a better chance of getting a case remanded back to the hearing level or paid at the Appeals Council if you can show a technical error, incorrect residual functional capacity, and/or blatant disregard of medical evidence supporting a disabling condition. At each level of the appeals process, it is important to be aware of deadlines, efficiently develop your case, and submit evidence.
Submitting Important Forms and Medical Evidence:
During the adjudicative process, you need to submit evidence that will help you win your case. Not all evidence is helpful or necessary. Important evidence includes the Social Security Administration’s forms, non-medical evidence, and medical evidence. You can submit this evidence by faxing the information with the bar code SSA provides; if you fax the evidence with the bar code, it goes directly into the file. You may also outsource this to SSD service providers. Important forms include a Work Background so that past relevant work is correctly assessed. This is particularly important if the client’s past relevant work must be assessed as ‘actually’ performed such as in compositive jobs. If there has been any work activity after the alleged onset date, include a Work Activity form to clarify earnings and activity. Pain Questionnaire and Activities of Daily Living forms can show your client’s pain level and functional limitations. If an employer accommodated Claimant’s work activity, get a letter from the employer describing the accommodations. Educational records can show a longitudinal history of intellectual disability or cognitive decline. Obtain a medical source statement from a treating physician and submit with supporting evidence. Submit objective evidence such as MRIs and laboratory work confirming a severe impairment. If there is a history of medicinal side effects that reduce your client’s ability to work, submit that evidence too. This evidence will help support severe impairments and subsequently the residual functional capacity.
Formulating a Successful Residual Functional Capacity:
The residual functional capacity has been mentioned several times and is the foundation of a disability case. It is at Step 3.5 and is the maximum an individual can perform. The residual functional capacity is a function-by-function analysis. Essentially, the residual functional capacity is a mirror image of the severe impairments and subsequent functional limitations. Therefore, if there is a severe physical impairment, there must be a physical limitation reflected in the residual functional capacity. The same thing goes for a mental impairment. For example, if your client has a back impairment, a typical residual functional capacity includes lifting 25 pounds occasionally and 10 pounds frequently, which is considered light exertional level. A residual functional capacity involving depression typically includes limited ability to concentrate on only one-to-two step instructions and repetitive, and routine tasks. Your goal with the residual functional capacity is to reflect severe impairments and functional limitations that preclude past relevant work and any other work in the national economy at Steps 4 and 5. The more objective medical evidence supporting your client’s complaints, the more supportable your claim and subsequent residual functional capacity.
Building the Residual Functional Capacity:
The residual functional capacity changes and is viewed differently at each level of the appeals process. At the reconsideration level, the nonexamining consultant creates a residual functional capacity based on severe impairments; however, the record is often missing a significant amount of evidence at this point. Therefore, the residual functional capacity at the reconsideration level is typically overly optimistic. Submit relevant evidence at the reconsideration level to assist the consultant to get a more accurate view of functional limitations early in the process. At the hearing and Appeals Council level, obtain medical source statements from treating physicians and submit briefs to assist adjudicators to build the residual functional capacity. At the hearing level, an Administrative Law Judge will reassess the residual functional capacity and will observe your client at the hearing in person or video. The Administrative Law Judge will consider briefs, medical evidence, and testimony to build the residual functional capacity. If the claim is denied and the Appeals Council grants a review of the Administrative Law Judge’s decision, it is often reviewed for any technical errors and/or disregard of substantial evidence supporting a disabling condition. Understanding how to build the residual functional capacity at each level of the appeals process will help you develop, create, and implement a strategy to excel and win your disability case.
Drafting Winning Briefs:
Submit briefs at the hearing and Appeals Council levels to guide adjudicators to a finding of disability. Briefs are an effective way of collaborating with adjudicators who manage a large caseload and appreciate the assistance. An effective brief guides the adjudicator to evidence that supports your client’s complaints and functional limitations. You can draft your own brief or outsource to a brief writer. At the hearing level, submit a prehearing brief, On-The-Record (OTR) request, and/or post-hearing briefs. The prehearing brief addresses all issues of the case and guides the Administrative Law Judge to the right decision. The OTR is a succinct brief targeting typically one impairment that meets a listing and requests the Administrative Law Judge to make a decision on-the-record prior to a hearing. An effective OTR saves everyone time and money if a hearing can be avoided. A post-hearing brief is typically used to address evidence that is submitted post-hearing such as a consultative examination. These can be very effective to advocate for your client and assist an Administrative Law Judge in making the right decision. At the Appeals Council level, a brief is essential to showing the adjudicator which technical error was made or evidence that was dismissed or minimized by the Administrative Law Judge. Winning briefs can be very profitable as they assist adjudicators in making the right decision, for the right client, early in the process.
Successfully Cross-Examining the Vocational Expert:
You and your client will most likely interact with a Vocational Expert (VE) at the hearing level. Be prepared to cross-examine the VE at the hearing either in person or via video. It can be intimidating as VEs appear to have a vault of secret information on jobs and can make or break your disability case. However, equipped with the right information, you are ready for success. Know your client’s past relevant work specifically by exertional and skill level by researching the Dictionary of Occupational Titles and Selected Characteristics of Occupations. You can obtain more extensive vocational information through service providers as well. At the hearing, the Administrative Law Judge will pose hypotheticals to the VE regarding your client’s residual functional capacity. The VE will testify whether your client can perform past relevant work at Step 4. The VE may also testify that your client has transferable skills at Step 5. If yes to either past relevant work or transferable skills, question the VE’s assessment of the physical and mental requirements of your client’s past relevant work compared to the residual functional capacity. Remember unskilled past relevant work is not transferable and skilled work is only transferable to semiskilled work. Therefore, focus on questioning semiskilled work as that is where you will find the most transferrable skills. If the VE testifies there are a significant number of jobs your client can perform in the national economy, you can ask for the VE’s sources for that information and question the numbers. Although the VE is testifying, the Administrative Law Judge makes the decision on whether your client can perform past relevant work or can perform other work. If you do not want to appear at the hearing, you can outsource to other representatives to attend the hearing for you. You may also shadow other representatives until you feel more comfortable. Overall, a successful cross-examination can raise questions for the Administrative Law Judge and ultimately decide in your client’s favor and move the case to the last step in the process, which is applying the GRID rules at Step five.
Mastering GRID Rules:
So, you have made it to Step 5, congratulations! It is the last step in the 5-Step sequential evaluation. Here, the Administrative Law Judge will determine if your client has transferable skills and/or apply your client’s vocational profile and residual functional capacity to a set of regulated GRID rules that reflect unskilled jobs at each exertional level (sedentary, light and medium). If your client does not have any transferable skills, the Administrative Law Judge will determine if your client is disabled under the GRID rules. The GRID rules reflect a full range of an exertional level. As most individuals have nonexertional limitations as well, the GRID rules serve as a ‘framework’ for the Administrative Law Judge. This gives Administrative Law Judges flexibility in assessing the impact of nonexertional limitations. In addition, if your client changes age categories during the adjudicative process, the Administrative Law Judge has the flexibility to use two different GRID rules and apply the rule that directs disability. Moreover, if your client will change to a higher age category within six months after the hearing, the Administrative Law Judge can apply the rule that directs a finding of disability. If you have equipped yourself with knowledge of the GRID rules and exceptions, you will have mastered Step 5 and the GRID rules and win more cases.