The News Journal in Delaware published a new database of ALJ denial rates around the country, as part its recent online Special Report. What is remarkable about this database is that is is easily searchable by state or by hearing office. So you can see how your state and hearing office compare to the rest of the country.

When looking at the database, you should focus on the 2008 statistics, which are the most relevant for those with pending claims.

I represent claimants in Maine and New Hampshire, and those two states compare favorably to the rest of the country. That is not surprising to me.

The overarching question raised by the database is the fairness of a system that delivers such uneven results across the country. Just asking the question gives you the answer.

 
There is a truly excellent online Special Report published today by The News Journal in Delaware, entitled Shut Out of Social Security. The special report tells the story of five disability claimants, and takes the Dover, Delaware Hearing Office to task for having one of the lowest claim approval rates in the country.

A main feature of the special report is five audio slideshows telling the story of each of the five claimants, like Joe Jones, pictured above. Each audio slideshow is under two minutes in length. They are compelling, and I urge you to watch each of them. These are the universal stories of Social Security disability claimants.

Thanks to Delaware disability attorney Steven Butler, who was the first to write about the special report.

The limitations on your ADLs are an important part of your hearing testimony, and sometimes the details of your ADLs can help to establish your disability claim.

Sometimes those details ring so true, that you just know the person is telling the truth. There is no direct correlation between these details and a person's ability to work full-time. They just strongly reinforce the claimant's credibility.

I spend a lot of time looking for those details.

For example, I had a recent hearing with a claimant with fibromyalgia. Due to her pain, she was unable to do her hair. So her husband, every morning, would help her with her hair and put it in a pony tail. It is a touching story, and implicit in its telling is that no one would give up that aspect of her life if there were a choice.

At another hearing, a 56 year old woman told the judge about how her illness had impacted her relationship with her young granchildren, because she was unable to participate in most of their activities due to her chronic pain and fatigue. No grandmother would give up this special time with grandchildren if there were any choice. 

Stories like these humanize the claimant, and drive home the point that work is not possible. My hearing preparation is not complete until I have these details.

One of the topics that is almost always covered in a Social Security disability hearing is the claimant's activities of daily living, or ADLs. Typically, you will describe what you do from morning until night on an average day. ALJs listen to this testimony with an ear for inconsistencies. So for example if you are reading novels at home, then you can't really say that you are unable to concentrate at work.

I have never really understood this fascination with ADLs. The theory is that the ALJ can discern from the ADLs whether or not the claimant can work. But to me, there is often very little connection between the two. Just because you can walk the dog and do household chores at your own pace doesn't mean that you can work full time. Remember, Social Security Ruling 96-8p requires the SSA to consider the claimant's ability to work on a regular and continuing basis, which means 8 hours a day, for 5 days a week, or an equivalent work schedule.

But many judges love to hear about ADLs (in fact, check out this blog post by an ALJ discussing ADLs). And if you get an unfavorable decision, I guarantee that there will be a paragraph in the decision describing all the things you do during the day, and concluding that those activities tend to demonstrate that you retain the capacity for work.

To avoid unfavorable inferences from the judge, it is very important to establish the limits of ADLs at the hearing. If you are cooking meals, doing dishes and cleaning the house, be sure to explain the limits on these activities. Often my clients can only do these things for a few minutes at a time, followed by rest. Or if they do too much one day, they are in pain for the next two days. You must clearly state the limits of these activities, or the judge may get the idea that you are more functional than you are.

A disability lawyer should explore the limits of the client's ADLs thoroughly in advance of the hearing, and make sure to convey those limits to the judge at the hearing.

By establishing the limits of your ADLs, you can short circuit the inference that, because you do ABC at home, you can do XYZ on a full-time basis at work.

There is an excellent post over at the Social Security Disability Hacker blog, entitled Tips for Effective Hearing Representation. I mentioned it in last week's roundup, but the article deserves more attention, because it has so much good information.

The post is a summary of the NOSSCR conference presentation by Charles Martin and Sarah Bohr. Both these attorneys focus their practice on appellate work. So in the course of their appeals and reading all those transcripts of disability hearings, they see where the claims went wrong at hearing.

I have attended similar presentations by Mr. Martin and Ms. Bohr at previous NOSSCR conferences. Their presentation always offers real action items for your next hearing. Their tips are captured well in the post, which was contributed by James W. Keeter, Esq. You should read the post before preparing for your next hearing.

I think that these tips are required for effective hearing representation. If you are not doing these things, you are not going to be as effective as you should be.

People waiting for a determination on their disability claim can have a very difficult time. Not only is there concern about health and lessened ability to function, but there is often real anxiety due to financial stress. And it often takes two years or more from the day a claimant initially applies for disability to the day a decision arrives in the mail after a hearing.

I try hasten a decision whenever possible. Here are six tips to keep your claim moving:

• Appeal denied claims right away - there is no reason to wait 60 days to appeal.
• Provide DDS with any requested information as soon as possible.
• Keep in touch with the disability examiner at DDS, so the case doesn't get put on the back burner. 
• Tell Social Security if the claimant meets the criteria for a critical case or dire need, and provide appropriate documentation.
• Make an on the record request (when appropriate).
• And lastly, ask the judge for a bench decision in your hearing memorandum for a case that you expect to be granted at hearing.

These actions, alone or in combination, can save months of waiting time for the decision on your claim.