From time to time, we find ourselves involved in a divorce case with an off-shooting issue in an area in which we don’t regularly practice, but where the client asks us to handle the additional matter and, usually because we like the client, we have trouble saying no. This can be anything from preparing a new estate plan, to helping them sell a home, to getting them guardianship over a handicapped child or even helping them to obtain SSI or SSDI. Accordingly, we thought it might be helpful to provide some articles from experts in these areas of practice to give some basic guidance to members of this section on how to assist your client through some of these additional matters.
By: Bruce L. Lipsey & Beth Levenson
I. SUCCEED AT THE ADMINISTRATIVE LAW JUDGE HEARING
A. WORKING WITH THE LOCAL HEARING OFFICE
Once the hearing request is made, the case is in queue with hundreds of other cases all waiting for a spot before the judge. The Office of Hearings and Appeals takes over jurisdiction. Generally speaking, the dates will come automatically by mail. Although the new rules put into place indicated that the claimant will have a 75 day advance notice, usually notice will be given short of that time period and the practitioner is asked to “waive the 75 day notice.” What I tend to do when I receive the waiver request is in turn ask SSA in exchange to waive its “5 day rule” requirement which insists that all evidence be supplied to the Court within 5 days of the Hearing or it is discretionary as to whether it will be allowed in.
On some occasions, the local hearing office representatives will contact the attorney’s office and coordinate a date which will work for everyone so that the case won’t have to be moved at a later date. Judges generally will allow for the case to be continued on one occasion for nearly any excuse. Moving the case a second time will be much more of a challenge. That’s why getting that date established at the start with the local office at a convenient time will be in everyone’s interest.
The local hearing office will also coordinate the practitioner’s access to the file. As part of the old practice of the hearing administration process, files were physical and accessible at all times at the office. One needed to go to the hearing office and spend lots of time taking apart the physical file, copying the relevant parts, and travelling back to the office. This was a major burden, especially for practitioners whose practices were located outside the Boston area.
Now, with the advent of new technology, all “paper” files have been converted to electronic disc files. The hearing office will forward the disc with a letter indicating that at some point in the future a hearing will take place.
This disc will contain everything that was contained in the paper file. The application, the earnings history, the last date of insured status, and the SSA consultive examiner reports are available on the disc. All documents that the attorney wants to forward to SSA will be delivered by fax with a cover sheet, displaying a bar code, which will allow for it to be scanned by SSA and entered onto the disc.
B. A PRACTICAL HEARING CHECKLIST
In order to succeed at the hearing level, preparation has to begin well before you receiving the hearing notice. A few things to consider are the following:
- Is this an SSI or SSDI case? What are the practical differences?
- How will the claimant’s age factor in?
- Are the Grids applicable?
- What is the last date of insured status and why is that important?
- Who is the judge and how does that judge run his/her hearing?
- Is this a remand case from federal court and, if it is, what did the federal court want addressed at this hearing?
- Is a medical consultant going to be testifying at the hearing and how does that affect the game plan?
- Are witnesses needed to establish particulars of the case?
- Is there an investigation undertaken by the SSA which needs to be reviewed and addressed by the claimant?
- Has there been substantial gainful activity undertaken by the claimant that needs to be addressed?
Now, I said previously that the case needs to be prepared effectively before the notice is received. This is true for a few reasons. First, one does not know when the case could be red-flagged for review by attorneys working for the Administration who might be looking to make a favorable decision “on the record” without the necessity of a formal hearing. If the case is not developed properly, you missed this window. A practitioner has to be very careful in not missing these windows. It is certainly true that delays are inevitable in dealing with doctors’ offices or other agencies in building the record. So, there are things beyond one’s control. Nevertheless, a whole host of factors enter into the picture when delay occurs. First and most obviously, the claimant may be entitled to benefits sooner and the financial and emotional bleeding will be stanched sooner. But there also is a perception issue involving the lawyer. The lawyer is paid on the basis of the retroactive amount due to the claimant. If there is any sense that the claimant’s benefits are in any way delayed by the actions or inactions of the attorney, the concern will be that the delay has occurred for the benefit of the attorney.
So, the way around this potential problem is an organized practice which encourages the flow of information sooner than later. In most cases, I attack the claim as follows: I get a complete list of doctors and facilities in which the claimant has treated. From that list, I glean who is most important in “making the case” either the primary care physician, psychiatrist or surgeon. Because the “treating physician rule” applies, if the claimant’s doctor has established a long enough treatment course with him and there is a credible foundation to his opinion, getting that doctor to comment about the claimant’s physical or psychological condition is key. SSA has generated certain functional capacity forms for both mental and physical activity. Those forms should be provided to the treating physicians and the claimant should be encouraged to meet with those providers to go over the forms.
These forms are controversial. There is not one doctor that I have encountered that hasn’t said “how can I fill out this physical functional capacity form when I haven’t done a functional test on him?” The form is to be filled out based on the subjective impressions of the doctor with the input of the claimant’s own history and any corroborative tests that have been undertaken. That is, if a claimant had an MRI which confirmed a disc problem in the lower back, and the claimant indicates that he can’t sit for long due to pain in the lower back, the doctor can easily utilize that information to underpin his report.
With psychological forms, the same can be true. Generally, a treating therapist will fill out the forms based on their experience with the claimant and the MD/PHD will co-sign. Although there are rules that allow the representative to offer into evidence a form signed by only the therapist based on the length and breadth of their professional relationship, judges will inevitably ask the representative for an MD co-sign. This can be frustrating because sometimes the MD has nothing to do with the claimant other than prescribing medication and they may show reluctance in getting involved.
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Bruce Lipsey is a Social Security Disability Attorney at Epstein, Lipsey & Clifford, P.C. A native of Providence, Rhode Island, Mr. Lipsey graduated with Honors from Brown University with a concentration in Ethics and Political Philosophy. Subsequently, he received his law degree from Suffolk Law School, with honors in oral advocacy and brief writing. While at Suffolk, Mr. Lipsey was named a contributing editor to the widely used lawyer's resource, Proof of Cases in Massachusetts. Further, Mr. Lipsey clerked for the Honorable Judge James Sweeney.
Bruce limits his practice to disability law only. Representing injured and disabled individuals before the Social Security Administration and the Department of Industrial Accidents is his entire focus. He is one of the few attorneys statewide whose practice is limited to these areas. Bruce is a frequent guest instructor at MCLE (Massachusetts Continuing Legal Education) on workers’ compensation issues and was the recent keynote speaker for the National Business Institute regarding social security disability advocacy.
Mr. Lipsey is a member of the Plymouth and Norfolk County Bar Associations and the workers' compensation sub-committee of the Mass Bar Association. Mr. Lipsey formerly served as the Chairman of the Massachusetts Bar Association Sub-Committee on Workers' Compensation. He is a frequent lecturer on workers' compensation issues and has appeared on WNTN as a commentator on workers' compensation. Mr. Lipsey is also a standing member of the Bench/ Bar committee where judges and lawyers meet to discuss policy issues relating to injured workers. He is also a member of the Federal bar.
Beth Levenson grew up in Randolph, Massachusetts. She is a graduate of Brandeis University where she majored in Philosophy. She earned her law degree from the Washington College of Law of The American University in Washington, D.C.
Attorney Levenson is a member of the bar of the Commonwealth of Massachusetts and of the District of Columbia. She is also admitted to practice in the United States District Court for the District of Massachusetts and the First Circuit Court of Appeals. She has been an Assistant District Attorney in Bristol County, Massachusetts, concentrating in appellate prosecutions. She has also served as a Special Assistant District Attorney in Essex and Worcester Counties, working in the appellate divisions of those offices. Attorney Levenson has over twenty years of experience researching and writing appellate briefs on various workers’ compensation, criminal law, and civil law topics, and has argued many cases before the Reviewing Board of the Department of Industrial Accidents, the Appeals Court, and the Supreme Judicial Court of the Commonwealth of Massachusetts.
Attorney Levenson has gained much experience in the areas of personal injury and property damage as a counselor for both Aetna Casualty & Surety Company and Travelers Insurance Company, and she has also represented clients who have suffered personal injuries or property damage as the result of accidents. In addition, she has represented many clients with issues relating to insurance coverage, and has lectured extensively to insurance company representatives and Massachusetts attorneys in the areas of personal injury litigation, insurance coverage, automobile insurance policies, and uninsured/underinsured motorist coverage.
Attorney Levenson has taught various courts in the paralegal training programs of both Fisher College and Newbury College. She is an active member of the Massachusetts Bar Association, and currently serves as a member of the board of the Lawyers’ Referral Service and on the Mock Trial Committee and the Appellate Bench/Bar Committee. She volunteers her time to serve as a “judge” in the annual high school Massachusetts Bar Association Mock Trial Competition. She is a former member of the MBA Criminal Law Section Counsel and a former chair of the MBA Law Practice Management Section Counsel. She participates as a panelist on several MBA seminars on the topic of automobile accident cases. Attorney Levenson is also a member of the Massachusetts Academy of Trial Attorneys.