The second category of benefits administered under the Social Security disability benefits program is the Disabled Widow/Widower benefits program. In order to be eligible for these benefits, your client must be a disabled widow or widower age fifty or older and your client’s spouse must have worked long enough to be covered by Social Security. However, if your client was married to your spouse when he or she passed away, generally speaking your client must have been married to him or her for nine months. If your client was divorced from his or her previous spouse when he or she passed away, your client must have been married to him or her for ten years or longer to be eligible.

The third category of benefits administered under the Social Security disability benefits program is the Disabled Adult Child benefits program. In order to be eligible for these benefits your client must have a disability before he or she turned twenty-two years of age and have at least one parent who is already retired or receiving Social Security disability benefits or who has passed away and paid sufficient Social Security taxes.

The second program of benefits administered by the Social Security Administration is the SSI program. The SSI program is designed to help those who are disabled and who have great financial need. The SSI program does not require that your client have worked in order to be eligible to receive benefits from this program. The first category of benefits is SSI for adults aged eighteen years of age or over and who are disabled. The second category of benefits is for someone under eighteen years of age and who is disabled. The standard of disability for someone under eighteen years of age is a significantly different standard than for someone who is eighteen years of age or over.

I caution you that there are many exceptions and limitations that exist under both the Social Security disability benefits program and SSI benefits program. Further, this discussion only focuses on benefits for disabled individuals. There are many benefits administrated by the Social Security Administration that do not require a finding of disability.

Make a Difference: Many people tell you there isn’t much you can do at the initial level to make a difference in the outcome of a Social Security disability or SSI case. Don’t believe it. There is much that you can do. How you begin your client’s case decides in significant part how successful the case will be as it proceeds through the process.

Toll-Free Number: Do not use the toll-free number for advice. The answers you get from the Social Security Administration’s toll-free number can never be trusted. The studies have found that between 10 to 25 percent of the answers callers received were wrong. The study my office conducted a few years ago found the actual number of wrong answers is much higher. If you can get past all of the recorded messages I suggest that you call the toll-free number twice to see if you get the same answer both times. You can usually trust the answers given to you by a claims representative at your local social security office. But, it is still prudent to be skeptical about any Social Security information you are told no matter where the information comes from. I make this suggestion to you because too many times I see people who have relied on wrong information which has resulted in their losing thousands of dollars in income benefits and medical benefits. There is another good reason not to rely on the information given to you from the Social Security Administration’s toll-free number. The people at your local Social Security Administration office do not know what the people at the toll-free number told you.

In spite of the clear failure of the Social Security Administration’s toll-free number Medicare has now established a toll-free number to give out information about the new Medicare Part D Prescription Drug Benefit. Medicare’s toll-free number is just as much a disaster as the Social Security Administration’s toll-free number. In an official study conducted by Congressional investigators the Medicare toll-free number gave out wrong answers over one-third of the time. You are not even getting a personalized answer when you call the Medicare toll-free number. Medicare officials actually have prepared scripts to answer your questions. But, federal investigators found that the telephone operators did not even know enough to choose the right script. In other words, do not trust the Medicare toll-free number to correctly answer your questions about the new Medicare Prescription Drug Benefit.

Clients Should Not Apply at the SSA Office: Do not let your client’s apply for benefits at the local Social Security Administration office. There is a little-known practice that is nothing short of deplorable. The Social Security Administration has a ruling which states the following: “The adjudicator must also consider any observations about the individual recorded by Social Security Administration (SSA) employees during interviews, whether in person or by telephone.” (Emphasis added). The SSA offices have to provide this opinion because this ruling requires their employees, who are not medical professionals, to provide this written opinion. Sadly, it has been my experience that most administrative law judges give great weight to the opinion of the SSA employee. In the meantime, what can you do to avoid the potentially horrific consequences of this little-known ruling? You can have your client apply for his or her Social Security disability or SSI benefits by telephone but even with this the SSA employee must provide a written statement regarding observations he or she has of your client. In theory, you can apply for some types of benefits online. However, even if you do apply online you still must go into the local Social Security Administration office to undergo observations by an SSA employee. Some attorneys are to take the entire application in their office. This avoids your client being exposed to highly subjective observations of a SSA employee. This is a ruling that must be challenged. In short, it is better if you are set up to take your client’s application in your office. However, if you are not, I believe it is better to assist the client with filing his or her claim over the telephone.

Consultative Examinations: Social Security disability medical exams and SSI medical exams are called CE exams. CE stands for consultative examination. Amazingly, in a recent survey of consultative physicians, fifty-eight percent of these consultative physicians agreed that it was “almost impossible” to determine a person’s impairment on the basis of a single office examination. However, in spite of this fact, the Social Security Administration spends $135 million yearly on these nearly worthless examinations.

It seems that the medical professionals who perform consultative examinations do not take pleasure in performing consultative examinations. Unfortunately, many of the medical professionals the Social Security Administration uses for consultative examinations are medical professionals who have struggling practices. They use consultative examinations as a means to make some extra money. These consultative examiners do not get paid by the hour, but by the number of claimants they see. Therefore, the name of the game in making money in performing consultative examinations is to “herd” as many claimants in and “herd” as many claimants out as fast as possible. This shameful practice is a disgrace to a great nation.

You would think that the Social Security Administration knowing that the medical professionals they use for consultative examinations would not pay much attention to their opinions. Also, considering Social Security Administration rules generally state that the opinion of your treating medical professional is suppose to carry more weight than the opinion of a one-time consultative examiner. However, unbelievably, just the opposite is true. The Social Security Administration pays great attention of the opinions of its consultative examiners. It is alarming to me how an incompetent medical professional magically becomes a medical luminary when he or she is hired by the government to perform consultative examinations.

The correspondence you receive from the Social Security Administration state that the medical professional performing your client’s consultative examination is not a Social Security Administration employee. This statement is misleading. Your client is not paying the consultative examiner. Make no mistake consultative examiners work for the Social Security Administration. In short, if the Social Security Administration sends your client for a consultative examination, you should be aware that the medical professionals who perform these examinations are not there to assist or help your client in any way. Many clients seem to think that the consultative examiner is there to help them. This notion needs to corrected without delay.

Applying for Unemployment: Your client can apply for Social Security disability and unemployment benefits at the same time. There is much confusion regarding this very important topic. Simply stated, your client’s receipt of unemployment benefits does not technically keep you client from getting Social Security disability benefits for the same period that you received unemployment benefits. Your client’s statement on his or her unemployment application that you are able to work is one factor

to consider in deciding whether your client should receive Social Security disability benefits. Your client can make his or her application for unemployment benefits and Social Security disability benefits without necessarily making contradictory statements. This is because the legal standards for receiving unemployment benefits and Social Security disability benefits are different. The Social Security Administration is not bound by the findings or decision of another agency. The reality is that when your client applies for unemployment benefits, no one makes a medical determination regarding your client’s eligibility for unemployment benefits. Additionally, a person may say he or she feels that he or she is able to work but the medical evidence may prove otherwise. The legal standards for receiving unemployment benefits and Social Security disability benefits are significantly different. The Listings are federal regulations which are found at 20 C.F.R. Part 404. The Listings contain different physical and mental impairments. If your client has a medical problem that meets or equals the criteria of a listing for his or her problem, then he or she will be found disabled even though he or she could actually be able to work.

The policy of denying or offsetting unemployment insurance benefits to Social Security recipients is not widely understood nor widely known. Less than half of the states take some or all of a jobless individual’s unemployment benefits back when the individual is also receiving Social Security retirement benefits. Social Security laws do not differ based on the state.  However, state unemployment laws differ widely.  You are cautioned do not speculate what the law is.  You do not want any problems from the state unemployment office against your client.

Early Retirement: If your client is 62 years of age or older, has not yet reached retirement age and can no longer work, he or she should file for his or her disability and Social Security retirement. If he or she decides to take early retirement benefits, your client will start receiving your money faster than in a Social Security disability claim. However, the reduction of his or her benefits will be applied to all the benefits he or she receives for the rest of his or her life. Additionally, he or she will not receive Medicare coverage until he or she reaches retirement age. However, he or she will start receiving his or her money faster in an early retirement claim than in a disability claim. Your client should apply for both early retirement Social Security and Social Security disability. This will permit  you  to  start  receiving  your  early retirement benefits  while you are waiting to win your disability claim. When you win your disability claim, the Social Security Administration will make up the difference between your early retirement check and your disability check.

Here is a more detailed explanation of how this works: When you elect to receive early retirement benefits, (findings from a recent survey show that most people do not know that the full retirement age is gradually rising from 65 to 67) you will receive only 80% of the money benefits if you waited to retire until full retirement age and you will receive this reduced amount for the rest of your life. This can result in your losing a substantial amount of money. However, when you are approved for disability benefits before your full retirement age, you will receive a disability benefit very close to 100% of your full retirement benefit. Then, when you turn 65, you will be switched over to receive Social Security retirement benefits rather than disability benefits. Also, it is important to remember that Medicare coverage is not available until you reach age 65, unless you have become eligible for Social Security disability in which case you might get your Medicare benefits earlier.

Workers Compensation Exception: If you are receiving workers’ compensation benefits or expecting to receive workers’ compensation benefits, there is a limited exception that may apply in your case. Social Security disability benefits can be reduced by workers’ compensation benefits, but retirement benefits cannot. If you are in this situation, sometimes you should file for both retirement benefits and disability benefits so you will get early Medicare and then waive the disability check and take your retirement benefits instead. This will ensure that your check will not be reduced by any workers’ compensation benefits. However, you should not try this without the assistance of an attorney who is very experienced in Social Security disability law.

Drugs and Alcohol: The current law prohibits alcoholism and drug addiction from being found to constitute disabling conditions. This law was passed in 1996 as part of the Contract with the America Advancement Act. This law has resulted in a great deal of confusion regarding its implementation. Many people believe that this law precludes alcoholics and drug addicts from being awarded benefits. This is simply not correct. Further, many people believe that a person  who  has  medical  conditions  that  were  caused  by their alcohol and drug abuse cannot receive disabled Social Security or SSI benefits for those conditions.

Treating Medical Professional Rule: Social Security rules basically provide that the opinion of your client’s treating medical professional is supposed to carry more weight than the opinion of a medical professional who has only seen your client once or twice or who has only seen your client’s medical records. The idea makes sense because a medical professional who has actually treated your client had an opportunity to see your client over a longitudinal period of time.

Unfortunately, there are many exceptions to this rule. One of the big exceptions is when your treating medical professional writes out some statement such as “my patient is permanently and totally disabled”. This opinion is a conclusory statement. It does not say how long your client can stand or sit or how much your client can lift. The decision of whether your client is disabled is for the ALJ to make. It is not a decision for your client’s treating medical professional to make. In my experience, when a treating medical professional writes out a conclusion that you are disabled, it actually does nothing at all to help your client’s case. It is much better if you ask your client’s treating medical professional to write out a statement or report saying how long your client can stand or walk and how much you client can lift. If your client’s case is based on an emotional problems, it is much better if your client’s treating mental health professional writes out a report or statement rating from good to poor how your client’s ability is to handle stress and ability to concentrate.

The reality is that even if your client’s treating medical professional writes out a statement or a report as I have suggested above, it still may not be enough to prove your client’s case. The federal courts have constantly chastised the Social Security Administration for failing to give the required weight to the opinion of the treating medical professional. There appears to be several reasons why the Social Security Administration fails to give the required weight to the opinion of a treating medical professional. The most common excuse is that the treating medical professional knows your client too well and will not give an unbiased opinion about his or her condition. The Social Security rules do not provide for this excuse.   However,  it   remains  a   widely-held   belief   within    the

Social Security Administration. The other reason that the Social Security Administration commonly rejects the opinion of your client’s treating medical professional is the lack of specialization. The classic example is when the client is attempting to get benefits based on emotional problems and only his or her doctor provides an opinion regarding his or her emotional problems.

You are fortunate if the client’s treating medical professional will assist in the claim. Unfortunately, many treating medical professionals refuse to assist their patients who are attempting to obtain Social Security disability or SSI benefits. The fear seems to be that they do not want to get involved in legal matters. It is obviously better if the family doctor or treating psychiatrist will agree to assist your client in his or her claim. However, if he or she will not agree to do so, it certainly does not mean that your client can’t win.

New Medical Records: The Social Security Administration will have its doctors or psychologist look at your client’s medical records and provide an opinion as to what his or her limitations are. The problem with these opinions is that they are rarely helpful to your client’s case. If these opinions are negative to your client’s case, the best way to overcome these opinions is to obtain new medical records or obtain another medical examination after the Social Security Administration has examined your client’s medical records.

Attempt to Get Medical Source Statement Completed: If the treating medical professional will agree to fill out a medical source statement (commonly, but incorrectly referred to as an RFC) for your client you generally will want it. The important question is timing. The best time to have it completed is a debatable issue. Your first thought will be that you want it as soon as your client applies. I used to believe this, but not any longer. I will explain. The state agency has non-examining doctors and psychologists who review your client’s medical records at the initial level and reconsideration levels. You cannot cross examine them or even speak to them. It has been my experience that these non-examiners do not assign much weight to a medical source statement from a treating medical professional. It is my opinion based on reading thousands of opinions from DDS that the state agency non-examiners believe that they can  interpret  the  medical significance of testing or clinical evaluations better than a treating medical professional.

DDS Non-Examiners: The Social Security Administration has pushed in a big way for every decision maker to accept the opinions of these DDS non-examiners. Social Security Ruling 96-p states the following in pertinent part: “Administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they may ignore these opinions and must explain the weight given to these opinions in their decisions.” Id. In other words, the message to decisionmakers is that you betteraccept the non-examiners’ opinions or have a really, really good reason for not doing so. It is your responsibility to obtain/provide the “good reason(s)” or it will be difficult for the ALJ to reject the opinions of the State agency non-examiners. It is my opinion that the best reason is new medical evidence that the State agency non-examiners did not have an opportunity to review. Therefore, I believe that a medical source statement from your client’s treating medical professional is great for this. However, if you have already submitted a medical source statement from the treating medical professional that the State agency non-examiners have already rejected or partially rejected then the ALJ is hard pressed to adopt it as a reason to overcome the opinions of the state agency non-examiners. That’s why I now believe that it is better to submit a medical source opinion from a treating medical professional at the hearing level rather than at the initial level or reconsideration level. This is truly a judgment call. I tell my clients about my opinion regarding this and let them make the call. The vast majority of clients will accept my opinion regarding the matter. I cite to persuasive authority in support of my position as there is no Sixth Circuit case on point. The Second Circuit Court of Appeals held that a non-examining source’s opinion that was based on incomplete medical records did not constitute substantial evidence to uphold the ALJ’s decision. Pratts v. Chater, 94 F.3d 34 (2d Cir. 1986). There is a Sixth Circuit case that holds that the opinion of a non-examining source may be accepted over that of an examiner, but in that case the non-examiner had access to the entire record and explained the reasons for the difference of his opinion. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).

Attorney Referred Evaluations: I generally believe in the use of attorney-referred evaluating physicians or psychologists for development of a case. Yes, I know the generally accepted hierarchy of medical evidence would say otherwise. But, generally speaking, I have found that the client’s treating medical professionals are not experienced with filling out medical source statements or in some cases a client’s treating medical professionals are extremely anti-disability. This is a judgment call you will have to make based on your experience with the treating medical professional and how your ALJ views attorney-referred medical evaluations. I believe that it is always good to get a copy of the consultative examinations performed at the request of DDS and provide that to the medical professional conducting the attorney-referred evaluation. I ask the medical professional to be sure to mention it in his or her report as I believe it adds much more weight to the attorney-referred evaluator’s report.

Third Party Activities of Daily Living Forms: Third party activities of daily living forms are generated by the Social Security Administration. These forms have someone who knows your client to provide answers about what he or she can or can’t do based on your client’s medical problems. The people that your client lists on his or her application will be the ones who are sent these forms. Be afraid, be very afraid. These forms have hurt more clients than they have helped. It seems that some people who complete these forms have no idea at all what type of things the Social Security Administration is interested in knowing. I have seen many of these forms in which the person completing the form talks more about his or her problems more than your client’s problems. I have seen countless times when the person completing the form talks more about financial problems than disability-related matters. Financial problem do not prove disability. I always tell my clients, the Social Security Administration generally doesn’t care about financial problems because getting a job would help with those. The core question is whether you can work.

Motion to Dismiss Request for Hearing: Let’s talk hard-core strategy. If your ALJ will agree to a pre-hearing conference in your client’s case, your client is fortunate. I have found these  invaluable in deciding how to proceed in a case. Pre-hearing conferences are not too common in Social Security cases, but are certainly not improper. A pre-hearing conference can be requested by counsel or it can be requested by the ALJ. There are numerous reasons for a pre-hearing conference. These reasons range from a case that looks like a possible an on-the-record decision with a possible needed amended onset date to an absolute lack of medical support for the case.

In the hearing stage, I review the client’s file at the following time periods: When my client requests a hearing; after the client has been assigned to a certain judge; at 2-6 months after the client has requested a hearing, depending on how long the assigned ALJ normally takes to schedule a hearing; and 20 days from the date of the scheduled hearing. I make notes on the file each time I review the file regarding how strong the client’s case appears.

Different DDS offices do things a little differently. However, in some states the DDS has special language in the initial determination and reconsideration determination that is a big, big red flag about the strength of your client’s case: “Based on the evidence, none of your impairments either singularly or in combination would significantly affect your ability to perform basic work related activities….” To translate: “You do not have a severe impairment.” This means your client’s case has big problems. The definition of severe impairment in the Social Security world does not have the same definition as the lay definition of severe.

The step-two burden of establishing a “severe” impairment has been characterized in the Sixth Circuit as “de minimis.” See Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). Farris v. Secretary of Health and Human Services, 773 F.2d 85, (6th Cir. 1985) stands forthe proposition that an impairment can be considered non-severe only if it could constitute a “slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with an individual’s ability to work, irrespective of age, education and past work experience.” Id. at 89-90. Social Security Administration regulations define a severe impairment in the negative: a “nonsevere impairment” is one which does not significantly  limit  an  individual’s  capacity  to  perform  basic  work activities. 20 CFR Section 404.1521(a) (OASDI), 20 CFR Section 416.921(a) (SSI).

It has been my experience that it is difficult to overcome a determination by DDS that a client does not have a severe impairment. Generally, you will need something dramatic such as a new MRI with significant findings or a long history of mental treatment in which none of the records made it into the government’s file. When I review a file at the request for hearing stage, I tag the cases in which the client does not have a severe impairment. I call the client to discuss with him or with her the problem we face. In a few of these cases, it turns out that there is a new MRI or other strong medical evidence which has not yet been seen. Unfortunately, in the majority of these cases it turns out that there are no persuasive medical records that exist. I speak to the client and tell him or her that unless new persuasive testing or additional treatment occurs that I believe that he or she is going to lose. Now, somewhere between 2-6 months after the client has requested a hearing, depending on how long the assigned judge normally takes to schedule a hearing, I review the client’s file again. If no new persuasive medical records exist I call the client again. If the client advises me that there are no medical records that exist that I have not seen, then I tell the client again that it is my opinion unless new persuasive testing or additional treatment occurs that I believe he or she is going to lose. Now, 20 days out from the hearing, I review the file again. If it turns out that no new persuasive medical records exist I call the client again, but this time I ask the client to come into my office to discuss his or her case. I respectfully tell the client that I have advised him or her since he or she requested a hearing that it was my opinion that he or she was going to lose. The client will almost always say, yes you did.

Now, the client is close to having a hearing and does not have a severe impairment. I believe in this situation that you should consider pursuant to 20 CFR Section 404.957(a) (OASDI), 20 CFR Section 416.1457(a) (SSI) a dismissal of the request for hearing:

“At any time before notice of the hearing decision is mailed, you or the party or parties that requested the hearing ask to withdraw the request. This request may be submitted in writing to the administrative law judge or made orally at the hearing.”  Id.

However, before you decide to recommend this to your client there are several considerations you need to make. If your client’s claim is only for SSI then you need to consider if the client’s income and/or assets while the client’s claim was pending increased to the point that he or she became ineligible but the client still had a possible closed period of benefits before he or she became ineligible. If your client’s claim is for Social Security disability, then you need to check what the date last insured and whether it has already expired of if your client still has unadjudicated time. If your client’s claim is as a widow or widower you need to check to see if your client’s case is within the prescribed period. To get widow’s or widower’s benefits the widow or widower must be at least 50 years old and must have become disabled no later than seven years after one of the following: The death of the wage earner; the last payment of mother’s or father’s benefits to the widow or widower; or the last prior payment of disabled widow or widower benefits to your client on the wage earner’s account. If you client’s claim is one for Disabled Adult Child’s benefits, you need to make sure that there is unadjudicated time as the child must have become disabled before age 22.

Once you have analyzed the considerations, you need to analyze the benefits to your client of moving to dismiss his or her claim. The biggest benefit is that your client avoids having a denial by the ALJ. I believe this greatly increases the chance that your client’s claim may be reopened entitling him or her to all of the potential backpay from that case. A claim for Social Security disability benefits can be reopened up to four years from the date of the initial determination on the original claim. A claim for SSI benefits can be reopened up to two years from the date of the initial determination or the original claim. A common mistake is that a few people within the Social Security Administration make is they think the two/four year reopening period begins when the last decision for Social Security disability or SSI benefits is made. In order to reopen a previous claim, there is a requirement that you submit new and material evidence. It is important that you request reopening of the original claim. The easiest and most common way to request reopening on an earlier claim is by filing a later claim which alleges an onset date within the earlier period.  This is called an implied request for reopening. The original claim does not have to be reopened within the two/four year period, but you must request either explicitly or implicitly reopening within the two/four year period. The rules on when a claim can be reopened are fairly easy to meet. However, the problem is that the decision whether to reopen a previous claim is almost always within the discretion of the Social Security Administrative Law Judge who has been assigned to hear the case. In other words, for all practical purposes, if a Social Security Administrative Law Judge decides not to reopen an earlier claim, there is nothing you can do about it. But, I repeat it is my opinion that the chances of an ALJ reopening your client’s case is much, much greater when there is not a previous ALJ unfavorable decision that covers the period for which you are seeking reopening.

Also, an order of dismissal is issued much, much faster than a decision especially an unfavorable decision. I believe that it is cruel to let a client wait for months for a decision hoping that he or she has won when you as counsel know that is not going to happen. This asking for a dismissal technique can allow your client to be months into a new claim by the time some ALJ’s render issue their decisions. Do not let your client waste time as the process is too slow anyway. ALJ’s will rarely ever deny your motion to dismiss although they have the legal authority to do so.

Dismissal is not a technique that I have ever seen in any book on how to successfully pursue Social Security disability or SSI benefits. However, I ask you to give the dismissal technique some thought. I have great success with dismissal technique. I win a lot of these cases at the initial level and I am successful in having a significant number of these cases reopened. I have a standard motion to dismiss the request for hearing that I have the client sign. The two most important aspects of the motion are to make it clear that the client understands that he or she will have to reapply for benefits and may lose any past-due benefits to which he or she might be entitled to up to this point. The DDS reconsideration determination becomes the final action of the Commissioner for res judicate purposes should the ALJ grant your motion. Although, the DDS seems to have a policy of the date of the ALJ’s dismissal order as being the date for res judicata purposes. This is a wrong interpretation. I have asked DDS for their authority for this position, but they have said they have none as it just their policy. I find the idea  of  unwritten  policy incomprehensible. Fortunately, every ALJ with whom I have faced this issue has correctly interpreted the reconsideration determination date as the final decision of the Commissioner for res judicata purposes.

No Exaggerating: Clearly, your client’s exaggerating is unacceptable and damaging to his or her case. The books on how to pursue Social Security disability or SSI benefits are replete with sections on how to question your client at the hearing. Therefore, I do not believe that I can offer a different perspective regarding this aspect of the process.

Vocational Expert Cross Examination: Annoyingly, all of the books that I have read on how to successfully pursue Social Security disability or SSI benefits seem to indicate that you should take a hammer and tongs approach as to your cross examination of the vocational expert. I disagree. Yes, there are times when you should cross examine the vocational expert. But, do not forget this is administrative law and you should cross examine the vocational expert in a deliberate albeit polite manner. Certainly, vocational experts differ in their opinions. However, generally speaking the answers given by the vocational expert are largely dictated by the questions posed to the vocational expert by the ALJ. Here in the Sixth Circuit the ALJ can properly rely on a vocational expert’s testimony even though the vocational expert’s testimony conflicted with the information in the DOT. Conn v. Secretary of HHS,  51 F.3d  607, 610 (6th Cir. 1995). It has been my experience that this makes it generally difficult to get a case reversed on appeal because of faulty vocational expert testimony.

Appeals Council Level: If your client gets turned down by the ALJ the obvious next level is to appeal his or her claim to the Appeals Council. However, unless your client has some problem with his or her date last insured there is rarely a reason not to appeal to his or her claim to the Appeals Council and have your client file a new claim. This gives your client some free bites at the apple that he or she would not otherwise have had.

Filing New Claim and Appeal Simultaneously: If your client does appeal to the Appeals Council and simultaneously files a new claim, your client’s new claim will proceed normally at the initial level and reconsideration level. However, if your client does not win at the initial level or reconsideration level and you have to request a hearing before an ALJ, your client’s claim will be frozen at the hearing level until the Appeals Council makes a decision on the claim pending before it. Unfortunately, the Appeals Council, in some cases, takes well over a year to make a decision. There is a possible negative to your client appealing to the Appeals Council and filing a new claim. Specifically, should your client’s case be granted at the initial or reconsideration level then the grant on the new claim is supposed to be sent to the Appeals Council to consolidate with the claim on appeal. Sometimes this can mean that the Appeals Council will set aside the grant at the initial or reconsideration level and remand the entire case back to the ALJ to reconsider the entire period. The ALJ at this point can apparently deny the entire period including the period for which your client was earlier granted on the new claim. I say apparently because I have argued and continue to argue against this act of “Social [In]security”.

I have clients who have had their new claim denied at the initial and reconsideration levels, but the claim is frozen because the Appeals Council has still not made a decision. The clients need help now. I discuss with them their options. One of the options I discuss with them is their right to ask the Appeals Council to dismiss their claim pending at the Appeals Council so that they can get their new claim heard by an ALJ. Fortunately, the Appeals Council is not taking as long as it used to take to make a decision. Perhaps this could be because the continued existence of the Appeals Council is in jeopardy.

Best Way to Get Remand from Appeals Council: I believe that the best way to get a remand from the Appeals Council is by the submission of new evidence. Further, I believe that psychological evidence is more successful than physical evidence at convincing the Appeals Council to remand a case. I believe that arguing Social Security Rulings and Social Security Administration Hearings, Appeals and Litigation Law Manual (HALLEX) to the Appeals Council is better than arguing court cases.

District Court Level: Apparently, many lawyers do not want to appeal their client’s case to the district court. I receive a lot of cases that the previous lawyer did not want to appeal the case to the district court.