Keys to successful Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) applications

• Michael Gilbert, CEO of Pounce Law, michael@pouncelaw.com
• Was an administrative Law Judge with the Social Security Administration
• Now works representing SSI and SSDI applicants at Pounce Law
• Many of you connect folks to SSI or SSDI, or refer folks to other agencies to apply for benefits.
• There are lots of disconnects between applying for benefits and getting denied.  I would often see clients needing benefits denied at the State level. 
• Over and over again, saw the same problems with the applications occurring. 
• Background Information
  • I’ve helped people for a long time.  In the Navy, worked as a  Helicopter Search and Rescue Swimmer.
  • Spent time in the Marines – helped Afghanistan rebuild its legal system.
  • Like to improve systems – find choke points, and get around them
  • You all want to help folks bet benefits as quick as possible.  Some people need more help than others – you have to triage who to help all the time.
  • After Afghanistan, I got a job as an administrative law judge.  – Not so happy heading into a bureaucratic nightmare (are there bureaucratic utopias, or would that be an oxymoron? –ed)  .  People in bureaucracies are still working hard, but it can be a tough place to be successful.
  • When application reviewers see gaps, they are given a reason to deny a claim.  When reviewing a case, clients are usually denied because of gaps in the application. 
  • I was listening to appeals – both the initial appeal and the reconsideration.  In reviews – individuals are often represented by an attorney.  As a judge, I can see why someone was denied benefits.  That info isn’t given to the applicant. 
  • As a judge, I was a hard ass.  It is hard to see folks who were denied and should have been paid at day one.  Often the evidence of their meeting the eligibility criteria wasn’t in the record – this is a gap that can cause problems. 
• These are personal opinions – not those of the Social Security Administration (I’m pretty sure no one was going to confuse Michael’s opinions with those of the Social Security Administration – for instance, I doubt the Social Security Office refers to their own bureaucratic hell as such.  Good to be clear, though. –ed.)
• Folks at SSA and DES – are all overwhelmed.  Approach them with the mindset that they are overwhelmed with their cases.
• There is mythology that judges just want to deny cases. One often hears that you “need to get denied twice to get your claim approved”.   
• 3 kinds of Gaps cause SSI and SSDI denials.
  • On the subway in England – there is a recording at the stations saying “mind the gap”.  (https://www.youtube.com/watch?v=L0otYijxNbc )
  • Gaps in treatment in the medical record
    • Treatment records.  if there are no medical records, treatment didn’t happen.  Must find the medical records and get them in the application record.  If there is no treatment, there is no disability.
  • Gaps in Communication.  Communication is difficult.  People often disappear.  It is hard to help folks get benefits when you can’t contact them for more information or details or medical records.
  • Gaps in Focus.  These are gaps in the focus of the claim.  If the real problem is mental health, if doesn’t do any good to work on documenting a back problem that isn’t disabling. 
  • Gaps are all related.  If no communication with client – you won’t be able to find the treatment records.
  • 2017 – study by Social Security Office shows 1.1 million folks waiting for a disability hearing.  Asking for a disability hearing means they’ve been denied twice already. 
  • On average, 1 American dies per hour waiting for their hearing. (this statistic kind of bummed me out. –ed.)
  • According to Gerrit’s Statistics, 50% of the homeless population, at any given time, is within 4 months of being homeless.  We should engage early to get resources to these folks.  We need to come up with ways to get folks SSI and SSDI quicker – and we can by minding the gaps.
  • Based on SSA records, average wait in days for a hearing is 528 days from the day they are denied twice.  526 days before a hearing.  And that wait is still going up.  That is the average – some are longer, some are faster.
  • Straight from Social Security Office – the average processing time – start to decision – is 609 days or 20 months.  It is 572  days in Tacoma.  It is 664 days in Eugene. 
  • Looking at the future from current receipts – if you apply for a hearing in October of 2017, you won’t get a decision until 2019.  Apply for a hearing in October of 2018 and you’ll not get it until June 1^st of 2020.
  • This huge wait is a major problem that we need solutions for.  That is the reality of this environment.
  • Workloads – in Tacoma, they are just barely completing more cases than they are getting.  It will take Tacoma 10.5 years to get to a point where they can do a hearing in one year.
  • We need keep people from going into that limbo. 
  • How do we speed up the process, or help the meritorious not get denied?  Follow these steps:
• Understand the process
  1. There is a field office where you can get service.  You can apply for disability at the field office.  The field office sends the application to the state agency for approval.
  2. Disability Determination Service (DDS), a state office, is overwhelmed by huge need.  They have doctors and psychiatrists on staff.  A case worker develops the record.  When there are gaps, they will send a questionnaire to the claimant.  Will indicate that if in 10 days they don’t get records from claimant, they will assume there are no records.  Unfortunately, claimants often avoid government communication.  The DDS is where the state agency determines disability.  If there is inadequate medical documentation, the case worker might ask for an assessment.  When the record is as complete a possible, a decision is issued.  If someone doesn’t like the decision, they can ask for reconsideration.  If the claimant is still denied, they can then appeal to the judge.  If still not approved, it goes to the appeals council.  Finally, they can go to federal court. 
  3. There is a 5 step process to determine if someone qualifies for SSI or SSDI - adjudicator follows this process:
     1. Work earnings – are you working – if you earn too much, you are not eligible.  Must early less than $1,200 from substantial gainful earnings.
     2. Do you have a severe medical impairment .  severe medical impairment must be diagnose by acceptable medical source with objective evidence supporting disability.  Need over 12 months of disability.  With back problems, you need x-ray, not just pain. 
        1. Has to affect 1 or more work activities
        2. Many folks make poor decisions or don’t interact well with supervisors, because of PTSD, pain, etc.  Need to communicate that to the case manager.

• Each disability has a set of evidence that is needed.  All needed information is the evidence that must be used to show the disability and its impact on work. Also check for residual functional capacity –

1. Does the person have the ability to do other work they did in the past?  If so, they are not qualified.. 
2. Are there other jobs in the economy that the person can perform -  if so, then they are not qualified.

1. Adjudicator reviews lots of other information
   1. Agency needs information on lots of points. 
   2. Claimants have the burden proof.  This can be a real challenge.  People who are unable to help themselves often have trouble providing the information the adjudicator needs.

• Adjudicator often rejects something with insufficient evidence.  Without enough evidence, they will deny. 

1. Full information is needed to eliminate gaps.
2. How to eliminate gaps.  Keep a log on the questions that crack the dam.  Straightforward questions don’t always work.  Asking leading questions about why someone can’t get to work.  If someone can’t get a ride, that is not disabled.  If someone can’t leave their house, find out why – no transportation, no initiative, or crippling anxiety.  Different reasons have different impacts on eligibility.  Need to cross examine folks. 
3. Need to establish a timeline – find documentation from when they were treated.  Need to find out what doctors have diagnosed.  Find out what someone is getting treated for –
4. Don’t give up because things don’t make sense – follow oddities to see if you can understand what is happening.  There are often lots of good reasons for the gaps.  Find ways to get folks services if they are not able to get treatment. 
5. Don’t worry about prior history.  Only get funding from when they apply – don’t look too far back for an SSI case. 
6. Get the CD copy of all the medical records that state agency has from the field office.  Claimants may have real problem but no documentation.  You need to know what a client has in a record – need to see where the gap in documentation is. 
7. Develop a checklist of the providers in an area – ask if they’ve seen so an so.  Can ask if they are seeing folks – this helps to get records, but  can also help folks get help if they need it. 
8. Negative branding – people can be embarrassed about asking for help – don’t want to be seen as getting resources they don’t deserve.
   1. Look for a spouse or a child who can help get information to and from the claimant, then work to get that information directly from the claimant.
9. Gaps in communication – If claimants won’t call case managers or miss medical appointments it can cause a denial. 
10. Cricket sound - if they aren’t talking to you, they probably aren’t talking to social security.  (is this the right cricket sound Michael? - https://www.youtube.com/watch?v=uUZskFKxLlQ –ed.)
11. Inconsistency in earnings records from IRS are reviewed. -  must communicate to ensure things are understood. 
12. New treatment records must be pushed to the Social Security Office.  They can have a bar code added to medical records and have them faxed in to the field office.  Claimants always need to ask for a copy of the medical records when they visit the doctor. 

• Claimants can be sent to a Consultancy Examination (CE).  If no treatment records show a disability – case manager will get an evaluation.  If you don’t show to the CE, Social Security will set us a second appointment – if no show again, get denied. 
• When the CE exam is missed and there was no response to DDS – difficult to defend.  The credibility piece is a challenge and important for appeals. 
• Create a timeline of the events – also timeline the application process.  Keep in contact with Social Security Office – try to get in the communication channel.  If there is a trusted 3^rd party that is trying to help someone, try to keep them in the loop to assist collecting information.  Procrastination and no response is a problem.  Tell them benefits are being shut off to get folks to show up. 
• Gaps in focus – they think is a back problem, it is uncontrolled diabetes.  Focus on the actual problem.  Need to focus on the right problem – mental health or physical problem. 
• If a physical problem is identified but no findings come back from a CE.  If you say a back problem – but no evidence of a back problem – claim is denied.  No time to figure out the real problem.  SSA won’t look for the root issue, just at the identified issue. 
• Want the treatment needed for the disability that is impacting their ability to work.  Need treatment to fit the evidence.  
• Each case is unique.  We are in an overwhelmed system – anything we can do to assist these individuals to close these gaps will really benefit the claimant.
• Al – Could you make this presentation available to everyone?  Michael – sure. (and he did, and I attached it to this e-mail. –ed.)
• Michael – I also want to put together a little 3 pager on this.
• Al – when should someone seek the assistance of an attorney.  Michael - In the first step, you don’t need an attorney.  In step 1, when there are lots of symptoms and lots of different ailments – cases with nuance may need an attorney earlier.  Attorneys are paid based on the size of the back award – 25% of award up to $6,000.  Early in the process, the attorney can’t get much pay because this is so little back pay – so there is a bad incentive for attorneys to help.  Decisions happen hopefully in 90 days, but just to get a 2^nd determination can take up to a year.  Bring an attorney in if there is nuance – not if they have terminal cancer – but something more complex.  Get an attorney at the hearing level, as well.  In litigation, skills matter – so attorneys are useful there.  Get an attorney after a denial. 
• Judges do 500 -700 cases a year.  Each case is about 1,000 pages.  That is like reading war and peace 40 times a month (and Helene still cheat on Pierre every single time you read it, but he still ends up with Natasha in the end, so it is OK –ed).  Judges just aren’t able to read every case. 
• Effran - Is there a check sheet with check points – often lots of folks work with a client, and we could use some tools to help them navigate the process.  Michael – the key is getting the CD with the evidence – so you can see where the gaps are.    
• Question – We need cultural competency – I worry that folks who are African American don’t trust the system.  The system doesn’t work the same for everyone.  Michael – there are groups that are discriminated against in the system so you need to be careful.  Folks coming out of prison – DDS often denies the case.  There is no identification of race in the records – but names are often identifying.  Social Security will pay interpreters.  Limited proficiency in English can get folks quicker access to resources.  Everybody is different.  Question: you understand these racial differences are real.  Michael – yes, I do understand.  As a judge I kept track of my decisions based on race – so I see how I’ve treated people over time to ensure by biases weren’t in play.