Using SOAR in the Appeals Process, Part II

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Using SOAR in the Appeals Process, Part II

Presented by:

SAMHSA SOAR Technical Assistance CenterPolicy Research Associates, Inc.

Under contract to:

Substance Abuse and Mental Health Services AdministrationU.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

Webinar Instructions Muting Recording availability Downloading documents Evaluation Question instructions

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

andHow to Request and Write Winning

“On the Record” Decisions!Walt Davis

Benefits SpecialistVolunteers of America, Northern Louisiana Inc.

Shreveport, LA

SSA Appeals Process1) Initial determination2) Reconsideration3) Administrative Hearing4) Appeals Council Review5) Federal Court Review

Federal Court Review

Appeals Council Review

Administrative Hearing

Reconsideration

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 www.ssa.gov

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 404.911, 416.1411 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. 404.948(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

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 2005. 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. 70-061, January 2011, http://www.ssa.gov/appeals/best_practices.html#a0=1

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. AvitalLAW (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 30-40 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: www.ssa.gov/OP_Home/cfr20/404/404-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: 1-866-691-3091 electronic-records-express@ssa.gov

ERE instructions: www.ssa.gov/ere/

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 FloresParalegal

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 LorenzenManaging 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 404.957(c)(1) and 416.1457(c)(1) Ruling: 91-5p POMS: GN03101.160 HALLEX: I-2-4-40

Res Judicata 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, 4th circuit rule

Resources

United States Code-USC Code of Federal Regulations-CFR POMS-Program Operations Manual Systemhttps://secure.ssa.gov/poms.nsf/home!readform HALLEX-Hearing, Appeals and Litigation Law Manualhttp://www.ssa.gov/OP_Home/hallex/hallex.html SSR-Social Security Ruling AR-Acquiescence Rulinghttp://www.ssa.gov/OP_Home/rulings/rulings-idx.html (through 2007)http://www.socialsecurity.gov/OP_Home/rulings/rulfind1.html (SSR 1960-2013, AR 1986-2012) 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: www.prainc.com/soar

SAMHSA SOAR TA Center

Policy Research Associates, Inc.518-439-7415

soar@prainc.com

www.facebook.com/soarworks

Twitter: @soarworks

Questions and Answers

Facilitated By:SAMHSA SOAR Technical Assistance Center

Policy Research Associates, Inc.