I have never been a Donald Rumsfeld fan, but his odd yet compelling-decision making ideas about “known unknowns” and “unknown unknowns” has always intrigued me. And I believe they are applicable to the unpleasant task of finding a good Texas social security disability attorney.
The hearing before an Administrative Law Judge (“ALJ”) in a Texas social security disability case is usually the most important event in the course of seeking social security disability benefits. Unlike the prior rejections at the initial and reconsideration stages by the Disability Determinations Services for the state of Texas, the Department of Assistive and Rehabilitative Services (“DARS”), the administrative hearing before an ALJ is the first opportunity for a Texas disability claimant to meet face-to-face with the disability decision maker. Statistically the ALJ hearing represents the best chances for a disability claim approval.
Most administrative law judges do not announce their decision at the hearing, so opening that ALJ decision in the mail weeks later is indeed an important “moment of truth”. ALJ decisions come in three “flavors” based upon the language in bold at the top center of the first page of the decision:
- Notice of Decision-Fully Favorable
- Notice of Decision-Unfavorable
- Notice of Decision-Partially Favorable
A partially favorable decision simply means the judge has not found you disabled for all of the period of time you alleged. Number #2, of course, is the heart-breaker. So what do you do if that decision says “Unfavorable”?
As the ALJ decision will set out on the first page, you have the right to appeal the denial and ask the “Appeals Council” to review the decision. There are several very important facts you need to know about requesting Appeals Council review of an unfavorable ALJ decision.
The Appeals Council will not hold another hearing; rather, it will limit the inquiry to whether the ALJ made legal errors in how she analyzed the facts and medical evidence and provided clear support for the denial. Claimants need to understand this is different than the issue of whether they are in fact disabled. In other words, the Appeals Council will not determine whether the ALJ was right or wrong, but consider only whether the ALJ followed the rules and regulations in coming to the disability determination.
In considering whether to seek Appeals Council review, a claimant must weigh the inordinate delays at the Appeals Council: it generally takes 8 to 10 months for the Appeals Council to make a decision. There are only 3 possible decisions to be expected from the Appeals Council on an initial request for review of an ALJ decision:
- Decline Review. This is simply a decision by the Appeals Council that the ALJ committed no legal error, and the decision of the judge stands. Statistically, this is the decision by the Appeals Council in the majority of cases.
- Reverse the ALJ decision and rule in favor of the Claimant. This is unfortunately quite rare. This is complete victory: the social security administration rules in your favor. In handling only social security disability cases in North Texas for the last 23 years, I have only seen only two or three reversals and award decisions from the Appeals Council.
- Reverse and Remand the case to the ALJ for another hearing. Since an Appeals Council issuance of a fully favorable decision is rare, this is usually what an experienced social security disability attorney considers a victory. The case is being sent back to the ALJ for a new hearing. But claimants are often troubled to know that the case will be sent back to the very same ALJ.
Remand to the same judge does not, however, guarantee the same unfavorable result. Most ALJs are motivated by a strong sense of fairness, and will not be angered by their decision being reversed or seek to “get even” with the claimant and her lawyer. In my experience, a winning strategy on remand is to seek and secure new evidence. This allows the ALJ a kind of “face saving” path to approval, in essence allowing the ALJ to reverse a denial, rationalizing that had that evidence been present the first go around the judge would have paid the claim.
There are, however, a very small minority of ALJs who seem committed to denying claims. An experienced local Texas social security disability attorney can greatly help the claimant in determining whether a trip back to the same judge will be an exercise in futility.
So if you receive an unfavorable ALJ decision, what are your options and what factors should I consider? You have three options:
- File a request for Appeals Council review;
- File a new claim for social security disability;
- Give up.
You need the advice of an experienced Texas social security disability attorney to protect your rights and to help you understand the consequences of your choose when confronted with an unfavorable ALJ decision.
Claimants need to understand that once a claim is abandoned, the right to receive some of the retroactive benefits sought is forever lost. Once an ALJ decision is not appealed, social security rules provide that you cannot be found disabled prior to the date of the ALJ decision. The unappealed ALJ decision, in essence, “seals off” the period of time considered by the ALJ, which is assumed to be through the date of the decision.
This fact can also foreclose the right to receive any social security disability insurance benefits if the claimant’s date last insured is prior to the date of the decision. For example, let’s assume that a claimant has a date last insured of 12/31/13, and the ALJ’s denial is dated 1/1/14. If the denial is not appealed, then social security regulations provide the ALJ’s decision that the claimant was not disabled through 1/1/14 is “chiseled in stone”. Since social security disability insurance requires a finding of disability prior to 12/31/13, the claimant has forever lost her right to social security disability insurance benefits.
I encourage all social security disability applicants who have received an unfavorable ALJ decision in Texas to seek legal counsel immediately. I consult with claimant’s who are not represented by an attorney and who have received a recent unfavorable social security disability insurance decision to contact me for a free consultation.
We are all familiar with actor Sylvester Stallone’s series of action movies featuring John Rambo, the angry soldier who slaughtered his enemies with abandon. Wikipedia states it well: “The term “Rambo” is used commonly to describe a person who is reckless, disregards orders, uses violence to solve problems, and is exceptionally tough and aggressive”.
In the legal world, the phrase “Rambo litigator” has come to refer to a hyper-aggressive lawyer who observes no ethical boundaries in his question to win. There are many legal settings in which a combative and disagreeable lawyer may serve a client’s needs well, and the public often seeks out “the toughest lawyer around” in personal injury and family law litigation matters. But is this the kind of lawyer that will serve the social security disability claimant well in the administrative hearing before an Administrative Law Judge? My 23 years of handling only social security disability cases tell me no.
The administrative hearing is not an adversarial proceeding. There is no attorney for social security to spar with, and the hearing is intended to be a fact finding inquiry. While judges in civil trial settings may depend upon the vigorous combat of both side’s lawyers, in a social security disability hearing there is only one person to argue with: the administrative law judge. And as the now retired attorney I started social security disability with 23 years ago in Dallas Texas used to say: “I have never won an argument with a judge”. Effective representation in a social security disability administrative hearing is all about persuasion. Any behavior that suggests to the judge that he or she must be bludgeoned into doing what is right will only alienate the very person most able to help the social security disability applicant.
Administrative Law Judges often secure the expert testimony in the hearing of either/or a medical doctor or vocational expert. The effective social security disability attorney has more latitude in vigorously questioning these experts but it is still true that seeking to embarrass and humiliate these experts will offend all, including most importantly, the admnistrative law judge.
In recent months I have become aware of a trend with some social security disability attorneys who maintain that vocational expert testimony is based upon faulty numbers and that vocational experts do not in fact have the expertise to testify about job availability for given limitations. These arguments have some merit, but in my opinion, do not serve social security disability claimant’s well. A broad challenge to the basic fairness of the administrative hearing will only alienate the judge. In my thorough review of case law I find no federal courts that have found the use of vocational experts in hearings to be improper.
The sad fact is the Rambo lawyer in a social security disability hearing puts on a great show that may impress claimants who simply do not understand the process. They leave the hearing proud that their attorney stood up for them and roughed up the vocational expert, only to receive an unfavorable decision in the mail months later that might have been favorable had their attorney used a carrot and not a stick.
Common & Dangerous Myths (5th of 5 Parts): “I will Get Disability if I Just Convince the Judge I am an Honest & Good Person Who Really Needs Help”
This is a subtle point that I have come to over the past 20 years of representing social security disability applicants. Of course no one specifically tells me that they believe that they will get disability if they just show the Administrative Law Judge what a good, honest, hard-working, and needy person they are, but it comes through loud and clear in other ways. Some of the statements I hear often include:
- “I have worked since I was 14 years old”
- “I have never asked for any help from the government”
- “Don’t they really I would rather be working?”
- “Don’t they realize I would be making a lot more from working than from disability?”
I would suggest that such statements in part reflect a belief that securing disability benefits is primarily about a social security disability claimant’s credibility, honesty and need. Claimants often offer the Administrative Law Judge unsolicited statements about how bad their financial situation is, thinking that their dire need will be persuasive.
Its is true that a claimant’s credibility is important. The fact that a claimant has a good work record is positive, but is it only a very minor part of the picture. A person’s dire financial situation is of very limited use in a social security disability case, although it can tip the balance in your favor.
What is critical to winning a social security disability case is medical proof, medical support for your impairments, and a wise and experienced social security disability attorney who knows how to present these medical facts along with your testimony to provide a legal basis for the Administrative Law Judge to say “Yes” to the disability claim.
A recent article in the Wall Street Journal profiled Social Security Administrative Law Judge David B. Daugherty of Huntington West Virginia and the fact that he approves nearly all disability claims that come before him. Here is a link to the article: http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html.
The article seems to suggest that Judge Daugherty and other similar ALJs are a big part of the reason the social security disability rolls have ballooned over the last few years, and the fact that government estimates predict that the social security disability insurance program will run out of money by 2018. The article also highlights the high number of cases Judge Daughetry handles, suggesting that the intense pressure within the Office of Disability Adjudication & Review (ODARS) to deal with the widely critisized case backlog encourages such high approval rates. The Wall Street Journal article notes that a high number of Judge Daugherty’s cases are with one particular lawyer, and suggests that Judge Daugherty seeks out cases with that particular lawyer.
Interestingly, I have had several attorney friends in other areas of law forward this Wall Street Journal article to me, one labeling it as “SSI Judge Corruption”. I think the article does make that suggestion, but I would note that the article has little to suggest Judge Daugherty is in fact corrupt. There is no suggestion Judge Daugherty is in cahoots with the lawyer in question, or that the lawyer has provided the Judge with any “kick-back” or anything of benefit. Nor does the article suggest that Judge Daugherty pays only that particular lawyer’s cases, and not those claimants represented by other lawyers.
At worst, I suspect Judge Daugherty indeed does approve too many cases in an economically depressed area of the country. And, yes putting too many claimants on the disability rolls will in the end hurt those who are truely disabled, because the integrity of the program is put in question. But if the Wall Street Journal is truly interested in uncovering corruption, and millions of government money being wasted, they should look to the “Street” their newspaper is named after – namely, Wall Street.