New Social Security Ruling Eliminates "Credibility" Findings - SSR 16-3p

On March 16, 2016, the SSA issued a new ruling that significantly changes the way that the agency makes disability determinations.  Social Security disability lawyers and their clients should take notice of this considerable change. SSR-16-3p, Evaluation of Symptoms in Disability Claims, supersedes SSR- 96-7p.  For a copy of  SSR 16-3p click here.  This ruling is effective immediately.

SSR 16-3p completely eliminates credibility findings from the adjudication process. Determining whether a claimant was credible or not used to be a central part of the decision process followed by administrative law judges (ALJ's).  Now, credibility cannot be a factor used by the ALJ to decide a case.  At this point, it is too early to tell exactly what effect this ruling will have.  One positive aspect of  SSR 16-3p is that, from now on, ALJ's can no longer put the claimant's character on trial.  Up until this ruling was issued, "character assassination" was frequently used to justify a denial of benefits.  For example, supposed prior bad acts by a claimant, such as a period of incarceration or getting fired from a job, was frequently cited as a reason for denying benefits.

Instead of making a credibility determination, the new ruling requires the ALJ to find out whether the claimant's allegations are "consistent" with the medical evidence and with the statements contained on the record.  If the ALJ finds that the claimant's allegations are not consistent, then the ALJ must explain the specific reasons why the allegations are not consistent.  General statements regarding the consistency of the allegations are not enough.  

One negative aspect of SSR 16-3p is that, from now on, ALJ's cannot make credibility findings based on a claimant's good work record.  On many occasions, I have successfully argued that the allegations of a claimant who has been a good worker, should be given full credibility.  Due to this new ruling, it is uncertain what, if any, importance will a claimant's work record have in the disability determination process.  

Updating Your Social Security Disability Case

As we all know, the Social Security Disability claims process is very slow.  While you wait for your case to be decided, it is extremely important to continue receiving intensive medical care for your conditions.  Moreover, you must keep your lawyer updated on certain specific developments in your case.  Here is a list of certain things that you must keep your lawyer updated while your case is pending:

• Any attempts to go back to work:  If you decide to work or to make an attempt to work while your case is pending, you must immediately notify your lawyer.  Be prepared to provide your lawyer with paystubs of all the payments that you have received.  Moreover,  you should provide your attorney with a list of the duties that you perform on your job.  Consult with your attorney to make sure your attempt to work is not inconsistent with your allegations of disability.  
• Changes in address and other contact information:  This one is common sense.  Unfortunately, many clients forget to let their lawyers know about changes in address, email or telephone. Always provide your lawyer with alternative contact information from relatives or close friends in case that your are too sick to be able to respond to your lawyer when he or she is looking for you.
• For SSI cases, any changes in income:  If you have an SSI case, you must notify your lawyer of any new sources of income received by you.  For example, if your former spouse begins paying alimony after the filing of your disability claim, you must tell your lawyer.  Changes in income can affect your eligibility for SSI.
• Any offers to settle your worker's comp case:   If your SSDI case is pending, you should not sign a settlement agreement in a worker's compensation case without first running it by your Social Security Disability Lawyer.  Once you sign an agreement in a worker's comp. case, you might be stuck with a fairly high reduction in your Social Security Disability Benefits.  It might be possible for your Social Security lawyer to include language in the settlement agreement that prevents a high reduction (offset) in benefits.
• New medical treatment and new doctors:  If you are receiving a new type of medical treatment or have a new doctor, you must let your lawyer know.  Be prepared to send the law firm an email, if possible, with the name of the doctor(s) or treatment sources, dates of treatment and the doctors addresses.

Deciding Whether to Appeal a Judge's Decision or File a New Claim?

Unfavorable decisions by Administrative Law Judges (ALJ's) are  on the rise.  As I have indicated in previews posts, last year, SSDI denials went up 15% at the National level.  I suspect that this percentage has continued to increase throughout the first half of 2015.  For this reason, a question that many claimants are currently facing is whether to appeal an unfavorable decision by an ALJ or instead, file a new application at the initial level.  Here are some of the issues that claimants must consider in making this difficult decision.

• The Date of Last Insured Matters:  In deciding whether you want to appeal or file a new application, you must first find out your "date of last insured".  If your date of last insured is in the past, it will be very hard for you to file a successful new application.  In order to succeed, you must show that your disability began before your date of last insured.  On the other hand, if your DLI is in the future, you still have a chance to submit new information with proof of your ongoing disability,  For these reasons, I usually disfavor filing a new application in cases in which the DLI is in the past.
• Do you Want to go Before the Same Judge, Again?:  One of the main problems of appealing a judges decision, is that if your appeal is successful it is very likely that your case will be remanded back for a new hearing with the the same judge who denied you.  Only in very rare occasions, will the Appeals Council take the case away from the judge who denied you or issue a favorable decision without the need of a new hearing.  This is one of the biggest drawbacks of appealing your case.
• Are you Willing to Compromise Some of Your Past Due Benefits?:  One of the drawbacks of filing a new application is that you are potentially giving up your claim for past due benefits from your prior application,  Under some circumstances, giving up past due benefits might be a good trade off.  If time is of the essence and you think that your new application has a good chance of being granted early in the process, you might want to consider giving up your past due benefits.
• Time Considerations: Almost everyone that I talk to is concerned about the length of time of that an appeal will take versus an initial application.  Both processes can be extremely lengthy. In most cases, it takes the Appeals Council more than one year to decide a case.  Assuming that the Appeals Council issues a remand, it takes the ALJ about another 6 months to schedule a hearing and issue a decision.  In terms of time, there really isn't a big difference between an appeal vs, and new application, unless your medical condition her worsened dramatically since the date of your hearing,  If your condition has worsened dramatically, then you might have a good chance of having your initial application granted relatively early.   

Determining whether to file an initial application or appeal is something that must be decided on a case by case basis.  I hope that this brief summary of the issues to be considered are of help in making your individual decision.

The Work Activity Report (Form SSA-821)

Once in a while, one of my clients receives a letter from Social Security asking them to complete a form known as the Work Activity Report or the SSA-821 Form.  This form is only requested in certain circumstances when the claimant has received income or, it appears that he or she has worked after the date of filing for disability benefits.  If you have received this form, it is important that you understand the purpose that it serves in the disability claims process.

You should also be aware that the SSA knows a lot more about you than you think.  If Social Security is requesting that you complete SSA-821, it is probably because they have found out that you have had earnings after the date of your alleged onset date.  Simply stated, you get this form because it is very difficult to hide earnings from the Government.  Remember, Uncle Sam is watching you at all times!  For example, if you sold an expensive item after filing for disability, --such as a work or art--, it is possible that this transaction will appear in the government's computer.  Moreover, if you have done some minor work for someone, it is likely that that person has issued a 1099 and that your income has been reported.

If you have received this form, be honest and complete it as soon as possible.  In all likelihood, a properly completed 821 is going to help your case.  Don't panic.  Be aware that selling assets such as stocks or works of art does not affect your eligibility for SSDI.  If you have sold an expensive asset, you should state it somewhere in your Work Activity Report.  This way you might expedite your claim and avoid confusing the SSA staff.  (If you are not open about your earnings, they might become suspicious and delay your claim.)  Keep in mind that the only income that affects your eligibility for SSDI, is income generated from wages, not income from other sources.  

Moreover, you should also clarify any earnings received from pensions,unused sick time and vacation pay or, from severance packages.  This income is often confused as wages because it comes from your former employer.  However, if you explain it properly to the the SSA, you will avoid complicating your claim.  

Finally, you should clearly document any work performed after the date of the commencement of your disability.  Get copies of all your paystubs and explain the type of work that you did.  If you made more than $1070 a month in wages in 2014, you are in obvious trouble.  However, if you made less, you should explain exactly what you were doing in your job.  It is important to explain any work accommodations given to you during this work period and the difficulties that you had in being able to fully function at the job.  Questions 5 and 6A in the form ask you about any special accommodations that you received at your job.  These two questions are perhaps the two most important questions in the form.  Unfortunately, many claimants leave it blank.  Understand that if you were working without any king of accommodation during the period of disability, it is going to be harder for your to prove that you can't work.  Be a wise and, if possible, use these sections to emphasize how the work that you performed during the disability period was just a small occupation that you held to be able to get by while your application was pending.   

What is "Residual Functional Capacity" or RFC?

In preparing your Social Security Disability case you probably have come across the technical term "Residual Functional Capacity" or RFC, and are probably wondering what it means.  The federal regulations define this term as follows:

"Your residual functional capacity is the most you can still do despite your limitations."   20 CFR 404.1545; 20 CFR 416.945

Residual functional capacity is the level of functioning that your are still capable of after taking into account all of the physical and mental problems that your condition(s) causes you.

Social Security considers two different types of RFC: physical and mental.   Social Security will look at your physical RFC in terms of sedentary, light medium, heavy or very heavy.  On the other hand, your mental RFC is summarized as less than unskilled, unskilled, semiskilled, or skilled.

Determining your RFC is key in your disability case.  Social Security reviews your medical records and other evidence to determine your RFC.  In many cases, the RFC determination is made using an opinion submitted by one of your doctors that explains your ability to engage in specific activities such as your ability to sit, stand, walk or lift.

Can the Appeals Council Review a Case on its Own?

Over the past few weeks, I have discussed how an unsuccessful claimant can appeal an unfavorable decision by an administrative law judge (ALJ) to the appeals council and, later on, to federal court.  This week, I will write about a little known fact about social security disability law: the Appeals Council can review a fully favorable decision by an ALJ on its own, even when no one has appealed it.
Receipt of a notification that the Appeals Council is reviewing a fully favorable ALJ decision can be very disheartening, since claimants often wait over 2 years to finally have their cases decided by a judge.  The Appeals Council reviews favorable ALJ decisions on its own motion in very few cases.  Moreover, the decision to review a case on its own is usually determined by a random process.  This process is more specifically described in 20 CFR 404.969.
If you are one of the few unfortunate claimants whose fully favorable decision is being reviewed by the appeals council, here is quick guide of what to expect in this process:

• The Appeal Council has 110 days to make a decision on your case.  During this period of time the claimant will not be paid benefits.
• If the Appeals Council does not make a decision within 110 days, the claimant is allowed to receive "interim benefits".  The claimant will not have to pay back these interim benefits in the event that the case is eventually lost.
•  In the Appeals Council reviews the case, it can make one of three determinations: 1.  determine that the ALJ was right in grating you benefits  2.  Send the decision back to the judge to be corrected  or, 3.  the Appeals Council can decide on its own that the ALJ made the wrong decision and deny you benefits without a new face to face hearing with an ALJ.  

Appealing a Social Security Disability Case to Federal Court

Two weeks ago, I wrote about the process of appealing a case that had been denied by an administrative law judge to the Appeals Council.  This week I will describe the process of appealing the case, one step further, to Federal District Court.  

If a case is denied by the Appeals Council, you have the right to ask that the Federal Court review your case.  You have 60 days from the date of the Appeals Council decision to file your complaint in Federal Court.  Following Court rules can be quite complicated and, for this reason, it is advisable that you  hire a competent Social Security Disability Lawyer to represent you.  A disability lawyer will not charge you any up front legal fees and will only get paid only if he or she is able to win benefits for you.  A Social Security Lawyer will get paid out of your past due benefits and/or through fees awarded under the Equal Access to Justice Act (EAJA).  EAJA is a Federal Law that allows lawyers to petition the Court to order the Federal Government to pay attorney's fees.

An action in Federal Court is commenced by the filing of a complaint.  A complaint is a brief statement of the case that sets forth the basis for your case.  If you do not have enough funds to pay court fees, you or your lawyer can ask the judge to waive these costs in your case by filing a "Motion to Proceed in Forma Pauperis", which is a Latin legal term that literally means "in the form of a pauper", referring to poor plaintiff who is allowed to file a case for free.

Under Federal Law the case must be filed against the person who happens to be the Commissioner of Social Security.  You cannot sue the Social Security Administration or the U.S. Government.  You must also serve the Commissioner at the designated Office of the Regional Counsel for the state where you live.  In Connecticut and Massachusetts this office is the Region I office in Boston. 

Once your case is submitted before the Federal Court, your lawyer will file a brief explaining your position to the Court.  No new evidence may me added to your case beyond the evidence presented before the Administrative law Judge.  When the judge decides your case he or she may do any of the following: affirm the ALJ's decision, remand the case back to the ALJ for further proceedings or reverse the ALJ's decision and award your benefits.