CFS SOCSEC3 ----------- Social Security Administration Procedures by S.R. Bendalin, P.C. The invitation I accepted from the editors of The CFS Forum was to write a comprehensive article on the areas of potential interest to readers of The Forum concerning the benefits and the procedures involving claims for Social Security benefits. This article will concern itself with the procedures involved in obtaining benefits. The substantive areas of the various benefit categories available will follow in subsequent articles. Like most benefit or entitlement programs, no action will be taken by the Social Security Administration (Administration) without an active application. Consequently, if you believe you are entitled to some type of benefit provided by the Social Security Act, as amended, you must first file an application. In many cases that is easier said than done. Up until several years ago, it involved a trip to a local Social Security office, taking a number, and when your number was called, speaking face to face with a claims representative. The application procedure involved surrendering the originals or certified copies of supporting documents, which were eventually returned. Those documents included birth certificates, marriage licences, divorce decrees and medical and treatment records. It was also necessary to provide names, addresses and telephone numbers of medical providers, such as doctors, providers of diagnostic test, and hospitals where either emergency or inpatient care was rendered. A fairly comprehensive vocational history was requested, including dates of hire, dates of termination, a description of job duties, and an analysis of tasks involved including the amount of time standing, walking, sitting, the frequency with which you had to bend, and the average and heaviest weight lifted. The application was not complete until most of this information had been provided. Finally, certain documents finalizing the claim had to be signed by each applicant. This process can now be initiated by a telephone call. The Administration uses a toll free 1-800 number which can be dialed and which will initiate the claim. The number is: 1-800-234-5772. The initial response to the dialing of this number very often is a considerable wait until you are able to speak with someone. When you finally do, you might be speaking with a representative who is in one of several cities across the nation; you will not necessarily be speaking with someone in your home city. Nevertheless, the claim can be initiated by using this telephone process. First, your claim will be assigned a protective filing date. Thereafter, you will be sent the necessary application documents. Written confirmation of a telephonic conference will also be mailed. This conference is an appointment to speak with a representative of the Administration at a time and location of your choosing. During that telephonic appointment, you are given the opportunity to ask any questions which you may have regarding the completion of the application forms. You may have someone help you during the telephone call. After the telephone conference, the application forms must be completed and mailed to the Administration. The forms must be received by the Administration within 60 days from the date you obtained your protective filing date by using the toll-free number or your application will not be perfected. It is therefore important that once you initiate the toll-free call, you diligently gather the information requested, participate in the telephone conference, and thereafter, return the forms. (when you receive the forms after the toll-free call, your forms will contain a date which should correspond with the date you made the toll-free call. that date is your protective filing date.) However you initiate the application, once it is filed the respective component of the Administration will consider your claim. The Administration does not have its own medical staff who evaluate claims and review the medical documentation filed in support of an application. Rather, the federal government contracts with an agency in each state which does those tasks for each respective state. That agency is known as the State Agency. In my state, the agency is the Disability Determination Service of the Arizona Department of Economic Security. Consequently, you may be dealing with a representative of the State Agency who may have questions regarding the application forms. The State Agency may also schedule a consultative examination with one of its doctors. That examination will take place at no cost to you. If travel is involved, you should be paid the prevailing rate for travel. If the appointment is inconvenient, the claimant has the responsibility of contacting the doctor involved and rescheduling. Should you not appear for the examination, your application may be dismissed or, surely, it will be held in abeyance until the necessary medical information is obtained. If you want a copy of the consultative examination, you must contact the State Agency directly. The doctor or technician who carried out the test at the request of the State Agency will not give you a copy of the written report. Once all the information has been gathered by the State Agency, your file is forwarded to the appropriate component of the Administration which will make the decision on whether or not your claim will be accepted. The decision will be communicated to you in writing. If it is accepted, you will receive notice of Award, or an Award Certificate, which will give the details of the benefits to which you are entitled. It is certainly advisable to retain a copy of the Favorable Decision document in your permanent files. That document may be very important regarding the benefits you obtained, a potential cessation of benefits, or the like. On the other hand, if your claim is denied on application, you will be notified in writing with a two page document. The first page is the usual "boilerplate" which, among other information, will indicate to you your appeal rights and what will happen to your claim if you do not appeal the denial. The second page is usually entitled "explanation of benefits". That document will give the rationale behind the decision. In the first paragraph it should also list the source documents available to the Administration upon which the decision was based. It is important for you to review that paragraph if your case has been denied. You will be interested to determine which medical records the Administration obtained. For example, you may have provided the Administration with a medical reference which was not contacted. The time frame involved between the time your application has perfected and the date of your decision is variable. Sometimes claimants hear almost immediately. On the other hand, it is not unusual under certain circumstances for an application to wait approximately six months for a decision. If the Administration through the State Agency has referred you for a medical consultation, you can expect the time frame is going to be longer rather than shorter. If your application has been denied, your reconsideration rights will be explained in the denial notice. Essentially, you must complete a Request for Reconsideration. This is another form. As on application, you can complete the form and file it with the appropriate office or you can initiate the request for reconsideration by using the toll-free number. If you choose the latter, then again, you will receive forms in the mail which must be filed within 60 days of the date you initiated the toll-free call or your Reconsideration will thereafter be considered untimely. The Administration does provide an appeal process if your reconsideration is deemed untimely. The Request for Reconsideration will present you with a choice. You have the right to have your reconsideration based on a case review is just as it sounds; it will be based solely on the records already in your file and any additional documents you choose to file along with the request for Reconsideration. On the other hand, if you want to meet "face to face" with a representative of the Administration, you may choose either the informal conference or the formal conference. Whichever method of reconsideration you choose, you will probably be asked to update your claim in writing. You will be asked to execute current medical authorizations and to complete a form known as a Reconsideration Disability Report. If you are in the possession of additional documents which may help your claim, for example if you have seen your treating doctor or perhaps a specialist, or have been hospitalized either in the emergency room or as an inpatient, copies of those medical records will be very helpful if they are included with your Request for Reconsideration. Do not assume anything. That advice we frequently give both to clients and in answer to inquiries. If you are unsure that a particular medical record has been filed, or that your doctor completed a particular form which you know he or she received, or if certain medical records were actually received by the Administration, you should resubmit them. Incidentally, any contact you have with the Administration in this regard should be made by obtaining a receipt, by certified mail return receipt requested, and by the retention of photo copies for your file. You may also find that at the Reconsideration stage you will be requested to go through a consultative examination. This may occur whether or not you went through a consultative at the application stage. The same process described earlier in this article regarding the State Agency's role in such consultative examination applies to the reconsideration stage. As before, once the State Agency has obtained all the documents necessary to support the decision on reconsideration, your file is forwarded to a component of the Administration for the actual decision on reconsideration. It is my understanding that as actual recommendation from the State Agency accompanies your file when the reconsideration is forwarded to the Administration. It is further my understanding that all reconsiderations are made by the Administration in Baltimore Maryland. Reconsideration also takes time. It is not unusual, therefore, for reconsiderations to take anywhere from three months to six months. Again, you will receive a written decision. The same analysis applies to the decisions on reconsideration as was described on application decision based on your application. If denied, you will be told that you have the right to request a hearing within 60 days or what other rights you have. As before, an explanation of benefits will be attached to your denial. If your claim is accepted on Reconsideration, you will be told that fact and will be provide some of the initial information regarding the benefits it which you are now entitled. If denied, you are now at the third level of the application process, the hearing level. Your hearing in the Social Security application process is essentially a trial. The hearing will be relatively informal, and many of the formalities you may be familiar with in an actual court of law will be relaxed. Hearings are recorded and all testimony is given under oath. The hearing is the opportunity you as the claimant have to support your claim in an orderly fashion by presenting written and oral testimony to a Judge. For many claimants, the hearing itself is the first opportunity to meet with a knowledgeable and impartial representative of the Social Security Administration and where the claimant for the first time has the opportunity to tell his or her story, supported by written and oral evidence, regarding why the disability claim was filed. First, you must actually file the Request for Hearing. The Request for Hearing must be filed within 60 days after you receive the reconsidered denial. It is a form which must be completed. You have the options to choose a personal appearance at a hearing or the waiving of your right to a personal appearance. You also have the opportunity to indicate that you have no additional evidence to submit or that you will be submitting additional evidence. The Request for Hearing must be filed at a local office. You should ensure that you can prove the date your Request for Hearing was filed. You will eventually receive the claimant's copy of the Request for Hearing for your permanent record with the annotation as to when it was filed, and if timely filed. Thereafter, your file is forwarded to the appropriate Office of Hearing and Appeals. Each office serves a specific geographical area, and the office to which you will be assigned will be decided by the area in which you live. Presiding at your hearing will be an Administration Law Judge. The Judges are part of a separate and distinct component of the Administration. The Judge will not have had any contact with your file until it is assigned to him or her for hearing. The Judge's Staff will review the file, create an exhibit file from the various documents forwarded to the Office of Hearings and Appeals, contact you when the hearing is to be set, and as allowed by law, answer any questions you may have. Should you be represented at this time, all contact will be with your representative. You may choose to have the hearing close to you, or you may yourself travel to the city where the Office of Hearings and Appeals is located. You may certainly want to consider travelling yourself to the hearing if that will make it easier for your witnesses to appear and testify. (At the present time, subject to certain restrictions, claimants and their representatives are paid for travelling to the hearing if they travel more than 75 miles.). You can expect your hearing to be scheduled approximately 90-120 days after the Request for Hearing is filed, and it will be set anywhere between 10 and approximately 30 days from the date you receive your Notice of Hearing. Hearings can be continued from the date first set, but good cause is required and should be done prior the hearing in writing or by making an appearance at the hearing. The Administrative Law Judge will generally not continue your hearing if the only reason you seek a continuance is that you have not made arrangements to be represented at the hearing. It is a good idea to carefully review the Notice of Hearing when it is received. Therein you will find the name of the Judge, his or her office address, telephone number, and the name of the Hearing Assistant. You should also note the issues to be decided at the hearing and the date on or before which you must prove disability if your claim is for disability insurance benefits. When you receive your Notice of Hearing from the Office of Hearings and Appeals, that generally means that your exhibit file is available for review. If possible, and as far in advance of the hearing as practicable. This will allow you to obtain and file any additional exhibits or documents you wish the Judge to consider at the time he or she holds your hearing and makes a decision. At the time your file is at an Office of Hearings and Appeals, the Administrative Law Judge and his or her staff may decide that additional information is required. To that end, working through the State Agency, the Judge may request that you go through a consultative examination with a medical doctor or with a psychiatrist. The Judge may also require that you be evaluated by a psychologist. If any of those decisions are made, you will be notified by the State Agency as to the date, time, and location of the examination. You may also find that the Judge and his or her staff will propound Interrogatories to an expert which answers will aid the Judge in making his or her decision. You or your representative also have the opportunity, with the Regulations of the Administration, to propound Interrogatories through the office of the Administrative Law Judge; for example, you may wish to propound Interrogatories to a doctor who has previously conducted a consultative examination. The consideration of propounding Interrogatories is a serious one. Under most circumstances, you will not have the right to subpoena a doctor, either a treating doctor or a consultative doctor, to appear and testify at the hearing. If you want such evidence in support of your claim, it will generally be up to you to ensure that the expert witness is notified of the date, time and place of the hearing and, if appropriate, is paid an appearance fee. The Notice of Hearing may also indicate that the Judge has subpoenaed a Medical Advisor or a Vocational Expert to appear and testify at the hearing. The Medical Advisor will be a doctor or a psychiatrist, who can be expected to answer any medical questions the Judge may decide to ask during the hearing based on the Judge's initial review of the exhibit file. The Vocational Expert serves the same role. A few points about the hearing itself. If you are not represented, you should be prepared to testify in your own behalf in narrative form. You should be prepared to questions of any witnesses you have decided to call. You should be prepared to cross examine the Medical Adviser or the Vocational Expert if the Judge has indicated either or both will appear and testify at your hearing. It is a good idea to have reviewed the exhibit file and be conversant with the exhibits which are in that file. You will be asked whether or not you have any objection to any of the exhibits before they are admitted into the record; if you do have any, you should be prepared to cogently inform the Judge why it is you believe a particular exhibit is objectionable. You may wish to consider preparing either an opening statement or a closing statement or both, and ask permission of the Judge to give it at the appropriate time. It might also prove helpful to have your statement reduced to writing, so as well as reading it into the record, the copy of the statement can be admitted as a hearing exhibit. A few personal suggestions are in order. You should dress appropriately. The Judge will certainly be in a suit if not in a robe. If you have to wear a brace or use any other type of appliance, you might want to consider bringing it to the hearing and demonstrate how it is worn. If you are taking prescribed medications, you should at least have a list of the medications, their dosages, and who prescribed them; you might also consider bringing your medications with you and testifying about their dosages from the actual labels on the bottles. You can move around the room if sitting is uncomfortable. A pitcher of water will be available. A word about representation. Statistics I have seen through the years, even those compiled by the Administration itself, dramatically show that claimants who attend hearings represented by knowledgeable council stand a better chance of winning at the hearing level. If you are unsure about how to find a lawyer, certainly the Office of Hearing and Appeals will be able to give you some guidance as to how to find a lawyer in your community. You should also consider consulting your telephone directory. Your local legal aid society or community legal services may be helpful. Your state bar may have a lawyer referral which will help you find a lawyer. Most lawyers work on contingent fees. As the hearing closes, do not be surprised if the Judge indicates that he or she would like you to undergo a medical evaluation. That is not uncommon when, as a result of the hearing, a particular claimant has not had medical care in several months. It may also become obvious during the hearing that a claimant has a potential disabling impairment which has not been fully developed by the Administration or by the claimant's own treating physicians. If that is the case, then again the State Agency will play a role. The Judge will keep the record open until receipt of the consultative examination. If you are represented, your representative should be given an opportunity to comment on the proposed post-hearing medical report prior to the time it is included into the record. So also, if you decide during the hearing that you would like to file additional medical records which you were not able to obtain or did not think about prior to the hearing, the Judge will very often allow you some time to obtain and file the additional medical records as long as they are material and relevant. Once the file is closed at the Office of Hearings and Appeals, the Judge will issue a written decision. You as the claimant will receive the original of written decision. If you have a representative, your representative will receive a copy of the decision. The written decision is the final decision of the Secretary through the hearing stage. However, you have the right to appeal the decisions of the Secretary are incorrect. You do this by filing another form. You have 60 days from receipt of the adverse decision of the Administrative Law Judge to appeal. The process is to file a written Request for Review with the Appeals Council. You have the right to attach to that Request for Review any additional medical documentation that is relevant and material, and which concerns itself with the time period before the Administrative Law Judge. You also have the right to file a Memorandum supporting your appeal. The Council has the right to affirm, reverse or remand the decision of the Administrative Law Judge back to the Office of Hearings and Appeals for a supplemental hearing. If you make the request, the cassette will be communicated to you in writing. Of course, if the Judge finds in your favor at the hearing level, then you probably have won your case. However, the cover sheet on all Favorable Decisions indicates that the Appeals Council itself has 60 days to appeal the decision of the Administrative Law Judge if the Appeals Council is of the opinion that the Judge is incorrect. In my experience that does not happen very often, however, you should be aware that even the decision of the Judge is not final until the Appeals Council has had the opportunity to review the decision. If your claims continues to be denied, you have finally exhausted your administrative remedies. If you wish to appeal to the next step, you must now file a lawsuit in the United States District Court which has jurisdiction over your case. The decision of the Appeals Council will explain some of the requirements in filing your District Court lawsuit. This is the first time that you will have to pay a fee to continue to pursue any claim for Social Security benefits. You must pay a filing fee to file a case in the District Court. The Complaint must be served on the appropriate person by legal process, and there will be other miscellaneous charges. If you decide to file in District Court, you can expect to spend upwards of $200.00 in costs. If you file, a United States Attorney will answer your complaint on behalf of the Administration. You will soon be provided a complete copy of the transcript of you hearing, along with all of the exhibits from the Administrative Law Judge file for your use. There is no charge for the transcript or for the complete record. Your advocacy at the District Court level is by motion practice. Cross motions for summary judgement should be filed, supported by a statement of facts. Your local federal rules should dictate how you should go about doing this. Likewise, you will receive a written decision from the District Court Judge. The Judge has the authority to affirm the decision, reverse the decision, or remand the case to the Department of Health and Human Service. Finally, should you lose at District Court, you still have the right to file an appeal at the appropriate appellate court in the federal system and, if warranted, you can go to the United Supreme Court with your case. Later articles will discuss some of the substantive issues with regard to the Social Security Application process. I hope that this overview of the procedures involved in a typical Social Security case will be helpful to readers of the CFS Forum. Sherman R. Bendalin, P.C. -Editor's note: It is the general opinion of most CFS advocates that Social Security benefits are best obtained by preparing extensive, complete information from every source one has consulted, be it physician, psychiatrist or social worker. By including as much information early in the process as possible, the speed and ease of the entire process can be improved. After the second denial, obtaining council is of utmost importance...not only does it statistically improve the chances of winning benefits, as described in the above article, but also provides the disabled individual with needed assistance in dealing with the compilation of data necessary. There are agencies across the country that can refer an individual to proper council, and most lawyers receive payment only after a case has been won. Local Chronic Fatigue Syndrome support groups should have a list of agencies and lawyers who work with the CFS patient in order to obtain benefits.