Episode 6 of Social Security Disability Law Weekly Podcast includes discussion of: importance of local attorneys in Social Security Disability Claims; use of an iPad in Administrative Law Judge Hearings; don’t blame the messenger when unpleasant information is communicated about your disability or SSI claim; Social Security Denials Remain High in Delaware; impact of disability on Social Security Retirement benefits; and concept of medical record lag in Social Security claims. Download Episode 6 or press play below to listen in your browser.

Show Notes: Social Security Disability Law Weekly Podcast Episode 6

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Off Topic
  • Support local attorneys – discussion of advantages of having a local attorney
  • Is my attorney using an iPad?
• Issues during my week in practice
  • Don’t Blame the Messenger!
    • Finding out that you don’t qualify for Social Security disability can be difficult, but it is important to remember that the person communicating the message to you isn’t the one making the rules.
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Social Security Denials Remain High by Mike Chalmers of the Delaware News Journal
    • Further discussion of the relatively high denial rate for Social Security disability claims by Delaware Administrative Law Judges
  • Social Security Disability Benefits at Retirement Age by Scott Lewis of Indiana Social Security Disability Lawyer Blog
    • Description of what happens when you reach retirement age and are on disability
    • Reminder to consider loss of benefit when on Early Retirement instead of disability
  • The Medical Records Time Lag by Gordon Gates of the Social Security Disability Lawyer Blog
    • More complete medical records can help you win your claim

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the sixth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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The Social Security Administration recently released public use files on its website that provide indicators of productivity of Administrative Law Judges. This data is helpful for claimants that are waiting for a hearing to decide their eligibility for Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) benefits. Previously, the majority of this information had to be obtained through Freedom of Information Act (FOIA) requests. Included in the data is approval and denial information for every Administrative Law Judge.

The Social Security Administration currently only has information available for Fiscal Year 2010. (Social Security’s fiscal year runs from October 1, 2009 through September 30, 2010.) The approval rate information is current through December 2009. Therefore this information only provides approval and denial rate information for the 1st quarter of Fiscal Year 2010. (Previously, the Oregonian and the Delaware News Journal had both made approval rate information available through FOIA requests.)

The information reveals valuable data for claimants waiting for an Administrative Law Judge Hearing. I have summarized some of the most important information for the Dover Delaware Office of Disability Adjudication and Review (ODAR).

Dover Delaware ODAR Notable Statistics – 1st Quarter Data for Fiscal Year 2010

• Average time for hearing to be scheduled: 9 Months (after ALJ request is filed)
• Average days for ALJ Decision: 292 days (after ALJ request is filed)
• Claims Decided: 641 (total dispositions)
• Claims Pending: 1572

Dover Delaware ODAR – Comparative Data (Nationally decisions were issued from 147 different ODAR offices during the 1st quarter of 2010)

• The Dover Delaware Hearing Office had the 5th highest denial rate of any hearing office.
• 40.64% of individuals were denied for SSDI and/or SSI by Dover ODAR.
• Only three ODAR offices nationally had a lower approval rate than the Dover ODAR.
• 43.84% of claimants were approved for SSDI and/or SSI by Dover ODAR.

Based on the information made available by SSA, the Dover ALJ’s had the following approval rates in the 1^st quarter of Fiscal Year 2010:

Approval Rates for Dover Delaware Office of Disability Adjudication and Review - 1st Quarter FY 2010

About the Numbers

These numbers tell an interesting story.  In my experience it is generally much harder to be approved for benefits by the Dover Delaware hearing office.  Currently there are 5 ALJs in Dover.  Three of the ALJs approved claims well below the national average.  The other two ALJs approved at rates consistent with the national average.  The Dover ALJ with the lowest approval rate approved approximately 31% less people than the national average.  Overall claims were approved 15% less by Dover ODAR than the national average.

I am very happy that the Social Security Administration has started to publish these numbers.  Hopefully this information continues to be updated in the future.

It is important to remember that the averages do not represent your percentage chance of being approved for benefits.

Each case is different, and even though the numbers for Dover ODAR suggest that it is harder to obtain benefits in Delaware, the facts of your individual claim are the best indicator of your success.  Even if you are assigned to an ALJ with a higher approval rate, you must still be able to establish that you meet the Social Security Disability requirements to be found disabled.

I use the information that has been made available to help my clients prepare for their hearings.  The average wait times help my clients plan for the future.  Red flags are raised if it is taking longer for a client to have a hearing scheduled.  The approval rates help me determine the type of information that is necessary to document my client’s condition and also to estimate their chance of success.

An experienced attorney will be able to use the new data that has been made available to better assess likelihood of success and to gauge their personal performance.  It an attorney reviews this information and determines that they are less successful than average with the ALJs that they practice before, they can use this information to improve their performance.  I recommend that individuals review and discuss this information with a legal representative prior to proceeding to a hearing.

Links to Social Security Data

• All Social Security Public Use Data
• Average Wait Time for ALJ Hearing (by ODAR Office)
• ODAR Workload (by ODAR Office)
• Approval & Denial Information for Every ALJ (raw numbers)
• Dispositions per day per ALJ (by ODAR Office)
• Average Processing Time before Disposition (by ODAR Office)
• Hearings by Video Conference versus In-person (by ODAR Office)

This article was written by Steven Butler.  Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims.  To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Despite the title of the new article (“Social Security disability denials stir up questions“), there has been no real response from the Social Security Administration or government officials of how this problem will be resolved. The sad fact is that individuals served by the Dover ODAR currently have no choice but to live with the problem until the Administrative Law Judge cited decides to retire, transfer to different hearing office, or pursue different job opportunities.

Unfair Treatment Complaint

Although the Social Security Administration has a process for filing an unfair treatment complaint, there is no proof that the system is effective. The process instructs claimants to provide a written complaint and to send it to the Chief Administrative Law Judge of the Office of Disability Adjudication Review. The Social Security Administration will confirm receipt of the complaint, and is supposed to advise you when the matter is closed. However, the Social Security Administration will not provide you details of any responses taken because of the complaint.

I have filed several unfair treatment complaints on behalf of my clients. The Social Security Administration never advised me of the receipt of the complaints, and no information was provided that the matters were closed. The only evidence I ever saw that a complaint was addressed, was mention of my complaints in a report produced by the Inspector General’s Office and the discovery of a copy of a complaint in my client’s file during a remand hearing. (When I obtained an updated copy of the administrative file, I found a copy of the complaint with all of the unfair treatment allegations highlighted.)

What is troubling is that Administrative Law Judge complaints are handled behind closed doors. There is no openness to the review process, and although it appears that Administrative Law Judges are advised of the complaint, the claimant has no right to know how the matter was handled. There is no official process in place to publicly address offensive Administrative Law Judges. Even when an Administrative Law Judge has their hand slapped by a United States District Court Judge, they often continue the same offensive practices. There is no review process available if it is determined that the Administrative Law Judge’s actions were fair.

Responses to Complaints

Since the Dover ODAR opened in 2004, multiple meetings have taken place to discuss concerns regarding the high denial rates. Chief Administrative Law Judge Frank Cristaudo convened a meeting at the Dover Delaware ODAR while he was still Regional Chief Judge for the Third Circuit. He provided attorneys an opportunity to address their concerns. His successor participated in a similar meeting after United States Representative Wayne Gilchrest lodged complaints on behalf of his constituents. No meaningful response was provided at either of these meetings.

I have personally asked for assistance from the National Organization of Social Security Claimants’ Representatives (“NOSSCR”) on several occasions in dealing with these issues. Although I am a sustaining member of this organization, NOSSCR has also failed to take any action to address the problems. NOSSCR leadership has expressed concern that if the Social Security Administration is provided power to regulate Administrative Law Judges that unfairly denied claims, they would also have the same authority to regulate Administrative Law Judges that approved too many claims. (See, “Paying out billions, one judge attracts criticism“).

Many of my clients have also solicited the help of their local Congressional offices. Although Congress has appropriation oversights, they have no direct means of addressing the reported abuses. I have found that a Congressional inquiry often will speed the process of receiving a decision, but will not result in a better decision being made.

Why the Problem is Worse than it Seems

The result of the high Social Security disability denial rates by the Delaware Administrative Law Judges is that individuals scheduled for hearings with the Dover ODAR office often face a higher standard of proof for disability. What is sufficient to prove your case according to the law, may not be sufficient to prove your case based on the Administrative Law Judge assigned to your claim. The Social Security disability system is a non-adversarial system. The Administrative Law Judge is not a representative of the Social Security Administration during your hearing, and is supposed to be impartial.

When pursuing disability benefits, an individual is required to prove by a “preponderance of evidence” that they are unable to work because of their medical condition. (This officially became the standard of proof by amendment to the Social Security Regulations on January 20, 2009). According to 20 CFR Sec. 405.5, this means that the evidence shows “that the existence of the fact to be proven is more likely than not.” Any benefit of doubt should be resolved in the favor of the claimant, and a special role is reserved for treating physicians (see SSR 96-2p).

In a hearing in front of the Chief ALJ of the Dover ODAR, though, it instead feels that the ALJ is a representative for the government, and that you must be able to prove “beyond a reasonable doubt” that your medical condition will prevent you from working. Although a portion of the public may support claims being resolved in this fashion, the law does not.

The News Journal noted that the Dover ODAR Chief ALJ denies disability claims for 70% of individuals between 18-49. The national average for this same group is 32%. However, as I previously indicated these numbers do not tell the whole story. Of the 30% of 18-49 year old individuals that were approved for benefits, partially-favorable decisions were issued 20% of the time. Only 10% of people 18-49 were actually approved for all benefits requested. (Normally a partially-favorable decision awarded individuals only a brief period of disability benefits, but found that the individual had regained the ability to return to work). Even some of the individuals that were approved with fully-favorable decisions had actually voluntarily requested closed periods of disability in order to increase their chance of obtaining any benefits.

Not only do you face a higher standard of disability if appearing before the Administrative Law Judge discussed, there is a higher probability that if you are approved, you will receive less benefits than you deserve. If you file a complaint about the Administrative Law Judge, you are not permitted to know how the matter is resolved, and if it is determined that another hearing is required, you will most likely be forced to face the same Administrative Law Judge again, and this time the Administrative Law Judge will likely be aware of your complaint.

The Next Step.

If you are scheduled for an Administrative Law Judge hearing at the Dover ODAR, first remember that there are some Judges that will fairly consider your disability, but it is important that you know your rights. You have the right to be represented by an attorney, and in my experience, it is in your best interest to seek legal assistance as soon as possible. I recommend seeking the help of an attorney when you initially file for disability to increase your chance of being approved before you ever need to have an Administrative Law Judge hearing.

I encourage my clients to continue to address their concerns about the denial rates of the Dover Administrative Law Judges. My hope is that public acknowledgment of the problem will result in a more open system to handle complaints. These are Judges that are employed and paid by the public, and there is no reason that discipline should not be a matter of public record. I hope that the Congressional delegation will respond by drafting legislation that allows for a fair complaint system that is open to the public, and punishes Judges that knowingly misapply the law.

Contact your Congressman in Delaware:

• Contact Senator Tom Carper
  
• Contact Senator Edward Kaufman
  
• Contact Representative Michael Castle
  

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The ALJ denial rates have serious implications on individuals that live in Delaware and have physical or mental disabilities. Because of the high denial rate, more Delawareans are approved at the initial application level than any other point in the Social Security Disability Process.

The Importance of Obtaining Legal Assistance Early

Since more Delawareans are approved at the initial application level, it is important to have help with your Social Security Disability claim as early as possible. The most significant change that I made in my practice since the Dover ODAR office opened in 2004, was actively representing more people at the initial application level. I discovered that clients denied by Dover ALJs could have been approved at the initial application level if additional medical evidence had been provided. When I started representing claimants in 2003, less than 10% of my clients were at the initial application level. Now more than a third of my cases are at the initial application level.

The initial application is important because you have a clean slate. No medical opinions have been provided that indicate that you can work, and you still have an opportunity to submit evidence that can be considered by the Disability Determination Service. If the State Agency Physician is able to review your treating physician’s medical opinion before providing his or her own opinion, it is more likely that your doctor’s opinion will be incorporated into the decision. Because of the importance of being approved early, I focus on building the strongest claim possible before my clients even apply for benefits. If you are approved benefits on your initial application, you never have to worry about the high denial rates of the Dover ALJs.

More Treatment is Necessary to Establish Disability with Dover ALJs

It is extremely difficult to be approved for benefits at an ALJ hearing in Delaware if you do not have specialist care. Even the Dover ALJs that have higher approval rates are unlikely to approve you for disability if you are only receiving treatment from a family physician. Although your family physician may be willing to treat you for every medical condition, it is important that you receive treatment that will improve your chance of being approved.

If you are suffering from a major disability, the Dover ALJs expect you to see a specialist for your condition. Family physicians are less likely to document symptoms to the same extent as a specialist. Since specialist limit their practice, it is also more likely that they will be aware of recent developments in your condition, and be able to offer treatment alternatives that may help. Having specialist care will make it more likely that you are one of the few that are approved if you eventually have to have a hearing in front of a Dover ALJ.

Your Treating Physicians must be Supportive

If your treating physician believes that you can work, it is unlikely you will be approved for Social Security disability benefits. I normally only accept new clients if a treating physician first documents limitations and explains how the limitations would interfere with your ability to work. If your treating physician is not supportive of your disability, the ALJ will only have the State Agency medical opinions to consider when deciding your claim. Since the State Agency medical opinions were likely the basis of your original denial, the Dover ALJs will cite the same opinions to deny you again.

Even when your treating physicians are helpful, it is still possible to be denied benefits. Several of the individuals featured in the New Journal had opinions from multiple doctors supporting their disability. I even routinely have had clients denied benefits when the opinions of Social Security Consultative Examinations supported their disability.

More Documentation is Necessary

Obtaining supportive medical opinions from your treating physicians is only the starting point in proving disability in Delaware. You must also be able to support your symptoms with objective medical evidence. If you have pain, you must have test results that establish the source of your pain. This is normal throughout the United States, the difference in Delaware is that the ALJs are often looking for you to have the tests repeated throughout the time that you are receiving treatment. It is not enough to have a test performed when you initially became disabled; the ALJs also want to see updated tests that are performed shortly prior to the ALJ hearing.

If you are experiencing pain, but have not had surgery performed, it is rare to be approved benefits by many of the Dover ALJs. Even if you had surgery, the ALJs will look at how invasive the surgery is when making a determination on whether you are disabled. Injections are not significant to most of the ALJs in Delaware, and if you are only taking medication for your condition and have not required more invasive care, it is unusual to be approved.

If you are suffering with a mental based disability, you must have treatment with a psychiatrist and a therapist/psychologist. If you fail to take medication, or abuse illegal drugs or alcohol, you have very little chance of approval (even if your doctor indicates that this is caused by your condition). If you are claiming memory or cognitive impairments, it is also important to have psychological and memory testing to document the severity of your symptoms. In my experience, individuals with purely mental based disabilities are rarely approved in Delaware unless they also have required hospitalizations for their condition.

Higher Costs to Pursue Claims in Delaware

Because of the higher standard of disability that we face in Delaware, I have noticed that the cost of pursuing disability benefits has skyrocketed between 2003 and 2009. The average cost in 2003 was below $150 at the ALJ level; today it is not abnormal to have costs of $400-$600. The reason for the increase is the additional evidence the ALJs are requiring. The ALJs want records from every doctor you have seen since your disability began (even if it is not relevant to your disability), and I often must request opinions from each doctor actively treating you. Since the ALJs do not like fill-in-the-blank forms, narrative opinions (that have cost as much as $1,000) are sometimes needed.

Additional costs are incurred for the additional treatment needed. If you have copays for every visit to your doctor, the additional care will result in more out-of-pocket costs. If you see additional doctors, it is also likely that additional tests and treatment will be suggested.

If you experience a unique condition that has flare-ups, it is important to notify your physician of every flare-up. Even when you have learned to manage your condition during flare-ups, it is important that the flare-ups be documented by your doctor. If your flare-ups are not mentioned in your treatment records, many of the Dover ALJs frequently find that the flare-ups did not occur at the frequency that you identified.

Dover ALJs do not Independently Review Your Disability

ALJs are supposed to independently consider all the medical evidence that is in your file and all testimony that is provided prior to issuing a decision. Before a hearing, it is not abnormal to submit over 100 pages of new medical records, and to provide medical opinions from treating physicians for the first time. Due to the length of time it takes for a hearing to be scheduled, normally the Social Security medical opinions in your file are at least one year old when the hearing is held.

The Chief ALJ of the Social Security Administration, Frank Cristaudo, stressed in the News Journal the importance of ALJs independence. He indicated, We allow the judges to make the decisions they think are appropriate. This stance is commendable, but many of the Dover ALJs fail to exercise their independence.

Although there is so much new information available for the first time at the ALJ hearing, it is common for Dover ALJs to ask, “Why was the Disability Determination Service (DDS) wrong in denying the claim?”. I must be prepared to explain why the State Agency Physician’s medical opinion does not adequately address your limitations (although it is obvious that these doctors never had the opportunity to review your new medical documentation), and I have been reminded by one ALJ that the State Agency Physicians are not biased like treating physicians.

This is a concern because the ALJs are not independently considering your disability. When the majority of Dover ALJs ask for Vocational Expert testimony, they ask the Vocational Experts to only consider limitations that were identified by the State Agency Physician, and when they issue a decision, the State Agency Physician (that never examined you) is normally awarded the most weight. It is rare for the ALJs identified by the News Journal to believe you or your treating physician. Even when they approve benefits, it is usually based on information that was previously provided by the State Agency Physician or a Consultative Examination Physician.

Approved for Less Benefits

The News Journal article briefly provided an example of one individual that was ultimately found disabled, but it was determined that his disability did not begin until 2 years after his employment ended. It is common for decisions from the Dover ALJs to be partially favorable. This means that although you are approved for benefits, the ALJ will find that your disability was not “severe enough” to cause you to become disabled until sometime after you originally stopped working.

ALJs in other areas commonly find that a claimant was disabled when their job ended, even if additional care was not received until a later date. For example, if you are suffering from depression and lose your job because of the condition, but did not start seeing a psychiatrist until after you had to be hospitalized 6 months later, other ALJs will find that your condition was severe enough for you to qualify since your job ended. With many Dover ALJs, you would not be approved until the date that you had to be hospitalized.

If you have a spine impairment, and went through therapy and injections before it was determined that you needed surgery, most ALJs would realize that your doctors wanted to try less invasive treatment before considering surgery. However, with the Dover ALJs discussed in the News Journal, I have had several clients that have not been approved until the date of their surgery. Although these individuals had experienced pain severe enough to prevent them from working for several months (to several years), the ALJs determined that they were not actually disabled until surgery was necessary.

One Dover ALJ is also routinely finding that individuals are only disabled for a brief period. An ALJ normally only awards a closed period of disability if an individual’s condition has actually improved enough to allow them to return to work (or the individual admits that they have the ability to return to work). This specific Dover ALJ routinely issues partially favorable decisions finding that a person was only disabled for a period of 12-18 months. The ALJ will indicate that an individual has improved even if the treating physician does not believe the symptoms resolved.

The News Journal did not provide specific details on the number of fully-favorable versus partially favorable decisions in the article, but I have information for each of the ALJs for fiscal year 2008. The ALJ that was discussed the most by the News Journal had an overall denial rate of 59.2% in 2008, but only issued fully-favorable decisions 22.3% of the time. The remaining 18.5% were partially-favorable decisions. For individuals age 18-49, this same ALJ issued fully-favorable decisions 10.3% of the time, and issued partially favorable decisions 19.9% of the time.

This is alarming because when an onset date is voluntarily amended, or an individual agrees to a closed period of disability, this counts as a fully-favorable decision. This suggests that if individuals did not voluntarily make these changes, the ALJ would have a much higher partially favorable rate (or possibly even deny more claims). Therefore, even some of the people that are approved by the ALJ with the highest denial rate are not actually receiving all the benefits they deserve.

Fewer People Offered Representation

Because the practice of law is a business, it is important that attorneys are able to make a profit when representing individuals. Although I would like to help everyone that contacts me, I must focus my limited resources on helping those people that have the most realistic chance of being approved for benefits. When fewer people are approved for benefits, it becomes harder to offer representation to all the people that need it.

The higher denial rates make it less likely that I can offer representation if your condition is not well documented. When I started practicing in 2003, I would routinely take cases where my client did not have adequate documentation of their disability. I would work with my client to help them establish the necessary medical care, and I would file appeals while they strengthened their case. I realized that the individual may be denied one or more times, but I knew that I could help them improve their future chance of approval.

Now when I meet with a potential client, I am unable to devote my resources to claims that are poorly documented. I have had multiple clients denied benefits that have had 4 or more supportive medical opinions from treating physicians. If it is difficult for someone with the support of all of their doctors to be approved for disability benefits, it is nearly impossible for an individual with little or no medical support to be approved.

The result of this change is that Delawareans that would have been offered representation in the past must now pursue benefits without legal assistance. All of the Delaware attorneys that I speak with that handle Social Security Disability cases are also being more selective in accepting clients. I currently only begin to represent 20% of individuals that request my help. If all of the Delaware attorneys are being more selective in offering representation, the net effect is that fewer claimants are represented.

Claims with Supportive Evidence are Not Being Appealed

If you are denied by an ALJ, you have a right to appeal your decision to the Appeals Council. The Appeals Council typically takes anywhere from 6 months to 2 years to issue a decision. In 2008, Appeals Council denied 73% of claims filed, and only approved 2%. Although Appeals Council remanded 22% of cases, this simply means that your claim will be sent back to the same ALJ that denied you previously. In my experience, the Dover ALJs are no more likely to approve you after your case has been remanded by the Appeals Council.

After being denied by the Appeals Council, you can file an appeal in United States District Court. Unless you can prove that you have very little resources and/or income, it cost $350 to file an appeal to United States District Court. The United State District Court for Delaware issued 30 Social Security Disability decisions in 2008, and remanded 43% for a second hearing (no outright reversals were issued). It took the District Court an average of 527 days to issue a decision in 2008. Between 2004 and 2008, an average of 27 Delaware District Court appeals were filed each year. During the same time, Dover ODAR denied an average of 642 people per year for disability benefits.

The only way that you are assigned a new ALJ for a second hearing is if you can prove bias or your original ALJ is no longer available. I have never had a case assigned to a new ALJ for a second hearing in Dover. If you are successful at getting a second hearing based on an Appeals Council appeal, it is likely that it will take a minimum of 18 months after the ALJ’s original decision before you get a new decision. For cases that are remanded from District Court, it is likely that you will have waited for 3 or more years before you receive another decision.

During the time that you are waiting for the appeals process, you are not receiving benefits. I spend approximately 20 hours preparing a file for the first ALJ hearing. If I have to file an Appeals Council appeal, I spend an average of 10 additional hours working on your claim. District Court appeals take me between 20-25 hours. When a case is remanded for a second hearing, I usually spend at least 10 more hours preparing the case for a second hearing. This does not include the time that my staff spends preparing your file and giving you updates.

When I decide to appeal claims to Appeals Council and United States District Court, I am making a significant investment in my time. If it is not likely that I can obtain a better decision by filing an appeal, I am unable to continue to pursue the claim even if the ALJ technically made errors in your decision. During the entire time that you are waiting for your claim to be decided, I am also not receiving payment for my services. If I spend 40 hours working on an appeal that is not going to be successful, I have spent an entire week of my time that I cannot devote to obtaining additional clients.

Because I am running a business, I have to make a cost-benefit analysis before I agree to take action on your behalf. Since there is only a small chance of receiving benefits after being denied by an ALJ, I appeal only a small number of claims past the ALJ level. I look for ALJ mistakes that are so obvious that I believe that 100% of claims that I appeal to Appeals Council or District Court should be approved.

My main consideration when I decide to appeal is not whether I believe that you are disabled (I believe that 100% of people I represent at hearings are disabled), but whether I believe that you could be approved if you have a second hearing. Based on the small percentage of cases that are filed in Delaware District Court (only about 4% of ALJ denials are appealed to District Court), it appears that other attorneys also take a similar approach. This means that even individuals that have supportive medical evidence and should have been approved benefits are not always appealing their decisions after an ALJ denial.

Conclusion

I am disturbed by what has happened at the Dover ODAR office because it overall is limiting your access to the legal system. Attorneys that were handling large numbers of Social Security Disability Claims in the past are reducing their caseload. Individuals that are unable to work and should be found disabled are being denied benefits. I am reluctant to appeal adverse decisions from the ALJs because it is unlikely that you will be approved for benefits even if your case is remanded. Instead of taking all clients that should be found disabled according to the law, I instead have to focus my attention on taking clients that can be approved based on how the Dover ALJs are applying the law.

I realize that there will always be variances in decision-making, the problem that I had hoped that the News Journal would highlight, is that the variance in Dover is not caused by ALJs exercising their independence, but by some ALJs misapplying the law. I personally have had at least 25 decisions where the ALJ found that my client was not credible because they attended their hearing and responded to questions. (If my client had not attended their hearing, the case would have been dismissed.) I am hoping that the attention that the Dover ODAR office receives from the News Journal articles will at least result in a consistent application of the law so that I can tell my clients that they will receive a fair hearing regardless of the ALJ assigned to their case.

News Journal Articles:

• Disability claims denied more often in Delaware
• After a lifetime of hard labor, body and mind are beaten up
• Woman felt like a ‘beggar trying to get something’
• With a family full of suffering, benefits don’t go a long way
• Hopeless situation sends mom to depths of despair
• Agency refuses to release information about complaints
• Dual roles of judges a source of tension
• Claim denials haunt some to death’s door”
• She fears judge is ‘just waiting for me to die’
• Disability denials troubling to leaders
• Routinely rejecting disability claims deplorable

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The article comes as no surprise to me or the Social Security Administration. The News Journal has been working on this expose for over 2 years now, and the Inspector General’s office also has conducted an investigation of this office based on complaints addressed by a local Congressman. Various issues regarding Administrative Law Judges in Dover have also been addressed with the National Chief Administrative Law Judge of the Office Disability Adjudication and Review and the Regional Chief Administrative Law Judge for the Third Circuit.

The disturbing statistics that have already been made available on the News Journal’s website reveal that 3 out of 4 of the Administrative Law Judges at the Dover Delaware Office of Disability Adjudication and Review deny at least 56% of the claims that they decide. Between 2005 and 2008, the Dover Delaware Hearing Office had the 8th worst approval rate in the United States, and in 2008 Dover had the 4th worst approval rate. (Which suggest that the complaints may actually be making the problems worse.)

The scary part is that the statistics that have been published on the News Journal website do not fully explain the severity of the problem. I obtained additional statistics from the Social Security Administration that broke down the decisions for fiscal year 2008 by the age of the claimants. One of the Judges in the Dover hearing office actually denied 68.9% of individuals age 18-49 in 2008. The national denial rate for the same age group was 32.5% and the regional denial rate was 32.7%.

Luckily my office has had a much better experience with the Dover Delaware Office of Disability Adjudication and Review in terms of approval rates for our clients. Personally during the same period (2005 to 2008), I had an approval rate of 71% overall with the Dover Hearing Office. Even with the Administrative Law Judge that denies the highest percentage of disability claims, I still had an approval rate of 54.1% during the entire period referenced in the article. I have achieved these rates based on gaining valuable experience of what it takes to prove disability even with Judges that have a higher standard of disability.

The question that is raised by the initial teaser of the News Journal article is one that many individuals that have been denied disability benefits in Delaware have been asking since the Dover Delaware Office of Disability Adjudication and Review initially opened in 2004, Can I get a fair Social Security Disability hearing in Delaware? Although the answer is unclear, it remains to be seen whether the attention given to these issues by the News Journal article will help resolve the inequities faced by Delaware Residents.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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