When a fellow Social Security Disability representative asked me to draft a prehearing brief for a new client, they told me the client had been denied disability by two ALJs, as well as denied review twice by the Appeals Council. Despite the denials, the SSD representative knew something was certainly wrong based on their client’s ill appearance.
Upon review of the file, I recognized the claimant had a physical listing-level impairment. Unfortunately, two prior ALJs only focused on the mental impairments while ignoring or missing the physical listing-level impairment. Nonetheless, I drafted the brief. When the hearing was held, the claim was denied a third time by another ALJ.
My client, however, was determined and persistent with this case because she knew the claimant should have been found disabled, so she asked me to draft the Appeals Council brief. I knew the odds were against us—three different ALJs already denied the claim and the Appeals Council had denied the review twice, with the remand rate at only 14.56%. I was cautiously hopeful as I made the argument that the claimant met the listing, even if three ALJs dismissed or minimized the listing-level impairment in error.
We waited for a decision from the Appeals Council. The claimant had been fighting for benefits for over five years; this decision was either going to be the final blow or a major success. Finally, the Appeals Council agreed and issued a fully favorable decision just a few months after the Request for Remand. What a relief, and what a success!
Primary Problems
This case posed three primary problems that led to the initial denials for the claimant. Let’s look at them in detail:
The most recent ALJ intentionally failed to do her job by dismissing our physical listing-level argument.
During the hearing, the ALJ stated she would not consider the physical listing-level argument because the claimant didn’t allege it when initially filing for disability. However, the claimant had alleged the impairment throughout the adjudicative period of time; they also alleged the impairment in the prior claim as well. Despite listing-level evidence, the latest ALJ found the impairment non-severe at Step 2. It is quite suspect to find a listing-level impairment non-severe after stating it would be dismissed at the hearing.
Prior SSD professionals in and out of SSA missed the listing-level impairment
We work in a production-paced environment, so it can be difficult to stay up to date on the law and participate in continuing education. When my client, the current SSD representative, got involved and worked with me, we recognized the listing-level impairment. This made all the difference in the final ruling.
ALJs are hesitant to find prior ALJs were incorrect
By the time I worked on the case, I had to convince the most recent ALJ that the previous ALJs’ decisions were wrong. When that didn’t work, I had to convince the Appeals Council all three ALJs had missed a key factor in the case. This is a challenge due to systemic norms. At the hearing level, most ALJs are hesitant to find prior ALJs were incorrect; here, there were two prior ALJ denials we needed to argue against.
Resulting Harm
Because of the way this case was handled, some harm was done. Let’s break it down:
Inefficient use of SSA’s resources
The SSA’s resources were used inefficiently by not identifying other severe, disabling impairments during the adjudicative period of time. The claimant was denied on CDR seven years prior to the Appeals Council’s fully favorable decision. Now the SSA’s expenses included:
Misapplying the 8-step CDR analysis and missing the new listing-level impairment
Adjudicating the first claim from SSA, then DDS, then OHO, then the Appeals Council
Adjudicating the second claim from SSA, then DDS, then OHO, then the Appeals Council
Adjudicating the third claim from SSA, then DDS, then OHO, then the Appeals Council
Claimant was without benefits for five years
The claimant was wrongly denied Supplemental Security Income and Medicaid for more than five years, from the date of the CDR to the filing date of the final SSI application. The Appeals Council did not reopen prior applications.
A Successful Strategy
The SSD representative and I worked together to find the right evidence that would deliver a fully favorable decision. She persisted in using the claimant’s appeal rights. I researched the impairments and know the listing-level criteria, which allowed me to guide the Appeals Council through the criteria clearly and succinctly. This successfully directed the Appeals Council to not only acknowledge the listing-level impairment but also issue a fully favorable decision for the egregious nature of the ALJ’s errors.
Conclusion
Overall, working on a case like this involves team effort; no one works alone. SSD representatives continue to advocate for vulnerable individuals through a long and tiring process. I strive to help SSD representatives win more cases by staying knowledgeable about the 5-step adjudication process and hone my skills for persuasively arguing cases in briefs at the hearing, appeals council, and federal courts level.
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