Business Guide

Lesson Eight
Expediting a Disability Claim

Why Expedite a Disability Case?

Nearly every operational technique offered in my course focuses on techniques designed to move a case forward in the disability process.  My software is also an important part of those operational techniques.  In this lesson, I'm going to show you a few little known secrets to significantly speeding up the Social Security disability process that go beyond our software and standard operational techniques.

Speeding up the disability case processing procedure is important to Social Security, the claimant and the representative.  In the case of the claimant, speeding up the decision will enable him to move more quickly collect his disability benefits.  If the claimant is in need of other avenues of assistance, a rapid decision from Social Security could help to expedite these additional entitlements.  Many state welfare and adult protection agencies will not provide assistance to a claimant until Social Security has made a disability decision.  For a claimant in this situation, expediting the application process would be invaluable. 

For the Social Security employee, expediting a disability claim is equally important. We have already explained how the DDS Examiner must move cases through the system in order to maintain his/her rank and pay.  Anything you can do to assist an Examiner in expediting a case would be invaluable to that examiner.  

As a disability advocate, expediting a case is also important. Expedited cases serve to improve the image of the advocate while also providing quicker access to fees for representation. 

Expediting on First Client Contact

Here are a few tips for expediting a case during the first client contact:

• During the initial interview with the client, take control of the conversation. Guide the conversation by asking questions that help you to determine the potential viability of the claim.
   
• Quickly explain your service and tell the client what you would like to accomplish with the initial contact.
   
• Although you should allow the client to tell his story, do not allow his story to become an epic.  Direct the client to provide you with the information you need to properly judge the case.
   
• Make note of any red flags within your interview or the case assessment.  These red flags will alert you to possible problems with the case.  Examples of red fla issues are:  Very old onset dates, no medical sources, history of incarceration, already has a representative, still working full-time, no mailing address, no personal phone.
   
• Interview the client prior to performing a case assessment.  The assessment may not be necessary if your interview rules out the case.
   
• Prepare to accept case.  That is, have everything you need to accept a case already prepared.  Example:  The Information Packet, Guidance Packet, Brochures, Letters, etc.  By being prepared, signing up a new client is a simple mater of sending out the appropriate materials.
   
• You are the representative and it's up to you to direct the case.  This is best done by getting the client on the same page by providing him with knowledge about the disability process. Getting the client on the same page is best accomplished by communicating with the claimant on a regular basis.

On Initial Level

If you enter a case on the initial application level, the best way to speed up the disability process is to work with the claimant.  That is, use the claimant as the primary source of his own medical and vocational documentation.  You can instruct the claimant to acquire a copy of his records and provide you with a copy.  Or, you can request evidence directly from the claimant's medical sources.  In either case, working with the client to acquire evidence is a good idea. 

Even if you decide to reject the case at the initial level, you should still encourage the claimant to collect a copy of his medical records for possible later use. Remember, it's the case development bottleneck that is responsible for at least half of the time lost during disability case processing.

On Reconsideration:

If you enter a case on the appeal level, there are a few additional ways you can speed up case processing.  The length of time it takes to process a case is primarily due to the slow process (case development) of building the claimant's case folder. That is, acquiring the evidence needed to make a decision in the case. The claimant's folder contains all of the medical and other evidence used by both you and Social Security to make a decision.

1. New or Additional Medical Evidence

As a representative, you have the option of choosing how you will process a case. You can get directly involved in the case and make things happen or you can passively allow the process to move at its own pace.  Many attorneys and those not trained by us use the passive approach to case development which makes the case move through the system like molasses.  The truth is, you can still succeed using the passive approach to case development, but if you do, you may enjoy a lower level of professional satisfaction.

At the beginning of a reconsideration case, find out from the claimant if there have been any additional medical visits, new medical sources or allegations since the last disability decision.  Using medical releases signed by the claimant, request copies of all new or additional evidence yourself and have the claimant make the same request.  If the claimant is scheduled for a medical visit, have the claimant request new evidence at that time.  If the claimant is able to get a copy of his record directly, this will quickly move the case forward.

Social Security will also request any new or additional medical evidence at reconsideration.  However, it will usually take them much longer to get the records.  In fact, eighty percent of the time spent on a disability case by Social Security is spent developing the case. If you or the applicant has copies of the new or additional evidence, you should send a copy directly to Social Security.  In fact, if you really want the case to fly, hand-carry the evidence to Social Security.  Keep in mind that on reconsideration, a different examiner will be assigned the case.

How do you find out what examiner is handling the case during the reconsideration?  You call and ask!  You may not be given information over the phone unless you have a signed 1696 in the claimant's Social Security folder.  You address this issue by sending the 1696 upon accepting the case.  The examiner may want to review the signed 1696 before responding to any request.

2. Additional Evidence is Irrelevant

Social Security uses form 3441 to list additional medical sources at reconsideration.  On this form the claimant is asked if he has seen any additional medical sources since receiving his last decision. If the claimant has been seen by a medical source, the DDS examiner will attempt to recover this information before rendering a reconsideration decision.

Having Social Security seek out useless additional evidence does nothing more than slow down the reconsideration process without adding anything of substance to the case. If a claimant has been seen by a medical source since his last denial decision, decide if this evidence is worth adding to the case.  If the claimant was seen for a quick checkup or a medication renewal, you might consider ignoring this evidence.  Additional evidence at reconsideration is only useful if it helps the claimant appear more disabled.  If it adds nothing to the case, why waste your time.   

A Reconsideration case without additional evidence usually takes only six to ten weeks to process. The exception comes when the system is overloaded.  Generally, during any given year, at least five to ten States are in case overload.  There are simply too many cases for the system to handle.  When this occurs, it’s not unusual for reconsideration cases to take three or four months to process.  However, the quicker Social Security receives all evidence at reconsideration, the faster the case decision will be.

3. Additional Evidence is Relevant

Do not, in the name of fast case processing, get careless and overlook additional evidence that might reverse the previous denial decision.  If the claimant has been hospitalized or seen by a doctor after a disability decision has been rendered, you should get this information if it is relevant to the case. If you're not sure, go ahead and request the evidence. Encourage the claimant to get copies of these reports himself if possible.  Experience has shown that the claimant or representative can get information to Social Security or the DDS much faster than Social Security or the DDS can get the information for themselves.

One of the most important skills to learn in this business is how to get stuff from the Social Security Administration when you need it.  Here is a few simple suggestions: 

Limit your request for evidence to that which cannot be acquired faster from some other source.  Go to the Social Security office and physically make copies of everything you need if possible. When visiting a Social Security office, be sure to bring proof of identity and a signed copy of the1696. 

4. Medical Examinations

On the Initial, Reconsideration or Administrative Law Judge levels, Social Security has the option of requesting that the claimant attend a consultative medical examination. You can speed up this examination process in three ways:

a. Find out what issue Social Security is concerned about and see if the question can be resolved with existing medical evidence of records. 

Example: The claimant has asthma and Social Security is requesting a pulmonary function test because they have been unable to get a copy of this test from claimant's attending physician. To avoid this delay, you or the claimant can personally go and collect a copy of this test from the claimant’s physician and send it directly to Social Security. 

If an examination is still needed despite the above effort:

b. Try to get the examination or lab testing scheduled with the claimant's attending physician or a specialist who is independent of Social Security.  Private physicians and specialist can usually schedule these examinations sooner, saving you valuable case processing time. In most cases, Social Security may still pay for the examination.  Keep in mind that an examination ordered and paid for by Social Security may not be completely impartial.  After all, Social Security is picking the examining doctor and paying the bill.  For this reason, it's always to the claimant's advantage to have a consultative examination performed by the claimant's attending physician or treating specialist. 

If Social Security orders a consultative examination, try to get it rescheduled with a physician who agrees with your perspective of the claimant's condition. If this is not possible, then:

c. Make sure the claimant attends the examination as scheduled, even if you have to make arrangements to get him there yourself.  Have a family member or third party assist the claimant if possible. The sooner the consultative examination is received by Social Security, the sooner the case will be adjudicated.  Incidentally, a missed examination without justification is grounds for a denial of the case based on “failure to attend or failure to cooperate.”  

5.  Deputing Results of a Consultative Examination:

As the claimant's representative, you can and should dispute the findings of a consultative examination if:

• The examination was poorly performed.
• The report is incomplete or ignores relevant issues.
• The examination was performed by the wrong kind of doctor.
• The claimant complains about the examination's quality.
• The report is grossly inconsistent with favorable findings in the case.

Even if the report was performed brilliantly, that doesn't mean that you have to accept the findings. You may argue against any finding in an examination that contradicts your position on that issue. You can challenge a consultative examination by using strategies that attack the doctor, the findings or the quality of examination. 

The most affective of these examination challenges is a direct attack on the examination itself. It is not uncommon for a doctor performing a consultative examination to rush through the process.  The doctor then provides Social Security with a report that makes the claimant appear less limited than alleged. You attack this common situation by pointing out that the examination was nothing more that a snap-shot of the claimant’s condition.  Perhaps the claimant was having a “good day.”   You further point out that the preponderance of evidence supports limitations as alleged.

Expediting an Adjudicative Law Judge Case

Speeding up case process on the Adjudicative Law Judge (ALJ) appeal level is very similar to the methods used at the reconsideration levels.  When you receive a negative reconsideration decision, immediately request an Adjudicative Law Judge appeal.

In previous lessons, we pointed out the importance of asking the Adjudicative Law Judge to review the case on-the-record.  We suggested the use of the on-the-record approach because of the long waits in some states for an ALJ hearing.  However, there are a number of effective ways to use a face-to-face hearing at the Adjudicative Law Judge level that can bring favorable results.  Here are just a few:

• If your client has a strong case and is also willing to attend the hearing with you, then you should both attend. 
   
• If the claimant appears disabled at the hearing, this is a strong incentive for an allowance which goes beyond the evidence. 
   
• Make the case materials easy for the judge to review by listing all sources and events in chronological order.  Be sure to use an argument summery as instructed in your Study Guide.
   
• Place your formal argument at the top of all other records for review by the ALJ.

Keep in mind that an Adjudicative Law Judge can make a favorable decision in a disability case based on factors beyond Social security policy. This ability of the ALJ to make gut-level decisions is what makes the ALJ a good possibility for winning borderline cases.  It's only at the ALJ level that you as a representative are able to inject subjective factors that are outside of those described by Social Security policy.  These subjective factors include the claimant physical appearance, presentation of witnesses, emotional or financial pleas, etc.

Expedite Using your Formal Argument

The presentation of the formal argument at the Administrative Law Judge (ALJ) level is also important.  Social Security (SSA) requires that your formal argument be submitted within ten-days of the request for an ALJ appeal.  This is Social Security's way of expediting an ALJ appeal. The primary affect of this ten-day limit is that it gives the advocate little or no time to prepare the formal argument.

The trick here is to catch the claimant before he makes the appeal request. This gives you time to prepare the case before making a request for appeal.  Remember, the time limit for requesting an appeal is sixty-days. You must make sure that you formally request an appeal before the sixty-day limit expires.  Social Security does not consider case development alone to be good-cause for extending the sixty-day appeal deadline.

If you have represented the case on the reconsideration level, you may already have most of the materials you need to create an argument.  Simply add or adjust the argument used at the previous adjudicative level for the ALJ appeal.  Be sure to directly address and argue against the reasons given by SSA in the previous denial.  

All other methods of speeding up the Administrative Law Judge appeal have to do with the internal characteristics of a given case. Cases with only one fully documented allegation for example, will no doubt take less time than a case with multiple or undocumented medical allegations.  Be patient on this level and follow whatever course is advantageous for the claimant you’re representing.

The Imminent Death or Teri Case

Some time ago, the Social Security disability program was having an enormous problem with high case processing time.  Case processing time is a measurement of the amount of time it takes Social Security to make a case decision.  Cases were moving through the system so slowly that people were dying before receiving benefits.  To address this problem, Social Security came up with what was then called the "Teri" case category. 

A Teri case is defined as a case where the claimant’s impairment is so severe that it is expected to result in imminent death.  Any case designated by Social Security as an imminent death or Teri case is given priority and immediate attention by Social Security.  During my days with Social Security, we were completing imminent death cases within weeks of the date of application.

For a case to qualify as an imminent death or Teri case, the client's condition must be so severe that death is imminent!  Imminent is usually defined as death within one year or less.  If a claimant has a condition that fits this definition, then the representative should request that the case be designated as an imminent death case.  This action can be accomplished by sending a single page letter to the appropriate DO or DDS office requesting this designation.  Your request should also briefly describe why you feel the imminent death designation is warranted in the case. 

Social Security may or may not reply to your imminent death request letter.  Therefore, it’s a good idea to do a follow-up call to the DO or DDS in a few days after sending the letter.  Once connected, ask for the status of the case.  If it appears that nothing is being done with the request, ask to speak to the person handling the case. This action will expedite the case by bringing the imminent death issue to the attention of Social Security staff person handling the case. This action will also help to reinforce your serious involvement in the case and allow you to determine if anything else is required for a decision.

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