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Social Security Disability On The Record Decision: When Is The Best Time To Request?

Dallas, TX |

App. for SSDI/SSI Dec. 2009 with AOD Sept. 2001 (last day of SGA). The FO incorrectly entered my AOD as Nov. 2009 (protective filing date). This incorrect AOD is still affecting my claim after 4 years. 1st ALJ hearing denied; rep withdrew; I submitted my own appeal; AC remanded with instructions to correct my AOD to Sept. 2001. 2nd ALJ hearing was scheduled; obtained 2nd rep; he ignored my concerns about ongoing AOD causing the ME to only have access to records from Nov. 2009/current (this left out 8 years of relevant records). DLI Dec. 2006. I have 2 RFC's supporting my disability back to 2001; x-rays show spinal fusion/kyphosis; 2 MSS from Rheumatoid doctor plus 6 series of x-rays (2003-current). 2nd ALJ hearing approved SSI but dismissed SSDI because of AOD; I met listing 14.09C1.

ALJ changed my AOD to April 2010, thus approving SSI as of that date. Rep appealed with brief and other evidence. AC did not approve ALJ changing AOD; remanded again with instructions to clarify AOD; agreed to my disability. 3rd ALJ hearing scheduled (by video) with notice of VE to appear. If my claim hinges on AOD clarification, why is there a VE and no ME? Also, the notice states the VE will testify from Nov. 2009/current. This shows my AOD is STILL not correct! I asked my rep to request OTR because medical records clearly show my disability before DLI. Could this screwy process just be an approved SSDI claim in the works but determining how far back payments would begin? Why wouldn't my rep simply request an OTR at this point instead of making me go through a 3rd hearing? With this being ALJ hearing #3, what are the chances the (new) ALJ will just approve my claim? I'm beginning to believe my rep is prolonging my claim so he can ask for more fees.

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Attorney answers 4

Best Answer
Posted

You have very good handle on your claim. You should be asking this question of your current rep - is that person an attorney? Do they specialize in SS claims?

There is much information I think I or any other attorney would want to know before providing legal advice here. For example, what does the objective evidence say your condition was at date last insured - not the RFC forms, but the objective medical evidence (MRI, EMG, CT scans, clinical exam, etc.). In my view, your condition back to 2001 probably is not too significant - You can only get paid 1 year of retroactive benefits on SSDI if you win, so that would be back to December 2008. So, you need to prove disability only as of December DLI to win the SSDI.

Talk to your representative and ask the same question you posted here. If you decide you want a new attorney, there are a number of good attorneys in your area, some of whom you can find here on Avvo. Use the “Attorney Finder” feature of Avvo for help with that.

You can find a Board certified specialist in Social Security by contacting the National Board of Trial Advocacy. They evaluate lawyers (independently) in many types of claims and require extensive experience and testing before a lawyer is certified. They have a section specifically for Social Security: The National Board of Social Security Disability Advocacy, Divisions of the National Board of Legal Specialty Certification.

Their link is: http://www.nblsc.us/

You may also contact your local city, county or state bar association to see if they have a lawyer referral program, or you may contact your local legal aid office if you cannot afford an attorney. If there is a law school in your area, you may contact their legal clinic as well. Or, use the “Attorney Finder” feature of Avvo for help with that.

Finally, you may also contact the National Organization of Social Security Claimants' Representatives (NOSSCR) for the name and email address or telephone number of attorneys in your area. The telephone number for the lawyer referral service of NOSSCR is 1-800-431-2804. NOSSCR's website is www.nosscr.org.

I hope this information helps. Good luck to you!
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Please remember to designate a best answer to your question.

The exact answers to questions like this require more information than presented. The answer(s) provided should be considered general information. The information provided by this is general advice, and is not legal advice. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. It is intended to educate the reader and a more definite answer should be based on a consultation with a lawyer. You should not take any action that might affect your claim without first seeking the professional opinion of an attorney. You should consult an attorney who can can ask all the appropriate questions and give legal advice based on the exact facts of your situation. The general information provided here does not create an attorney-client relationship.

Asker

Posted

Thanks for replying. Some of my details had to be left out because I'm limited on characters. I would (and have) asked my current rep (2nd rep) all these questions, but for whatever reason he continues to either not answer at all, or when he does answer (actually it's his paralegal that answers), it's a one-sentence reply (which still never answers my question). If it wasn't for the fact he's my 2nd rep and that my claim is approaching a 3rd ALJ hearing while passing the 4 year mark, then I would entertain removing my rep and find a more reputable replacement, but I know no lawyer would take over my claim at this point. The 2 reps I've come across apparently are just lawyers who practice in Social Security Disability law; they are certainly not specialists. I've had to do my own extensive research to find relevant things like SSR 83-20 (which speaks of progressive diseases - like mine) and how onset should/could be handled. I even gave my rep case law about my exact issues (http://law.justia.com/cases/federal/district-courts/oregon/ordce/3:2008cv01202/90334/21). My current rep doesn't seem to understand the importance of a correct AOD. Each of my denials up to this point have been either directly or in part because of this incorrect AOD. I realize my back pay would only go back to Dec. 2008, but if my AOD is further in the past, won't that increase my monthly payments (PIA)? Since I stopped working in Sept. 2001 (and according to my annual Social Security statement), each year I have not worked, my "estimated Disability benefits" decrease. The difference between their estimates of 2001 vs. 2006 would add up to several hundred dollars more a year. That's the only reason I mention trying to get my AOD back to 2001 (which is my last day of SGA).. As far as medical records back to 2001: I have progress notes from my PCP all the way back to 1989 showing the decline of my health. About 90% of the time I visited him contained chronic complaints of my back - starting with my Sciatica in 1990, hip pain in 1994, lower back pain in 1998, etc. including many failed rounds of various medications/pain killers. It reads like the blueprint to how Ankylosing Spondylitis is slowly attacking my body. I received a very late diagnosis of AS in 2003 with x-rays showing fused SI joints and lumbar region fused in 2 areas. My Rheumatologist has retrospectively claimed that my inability to work began in 2001 based upon the pathology of the disease compared to my current state of fusion. I even have a radiologist report comparing x-rays from 2003 to 2013 and state my kyphosis is "approximately 42°". I certainly wouldn't be stressing like this if I had a rep who would have actually answered my questions in the beginning, but because of his lack of attention to the things I had to say and his lack of proper representation, I believe my claim would have already been approved. Since he came into my claim so late, I really just feel he's prolonging what he can. I mean, I haven't even talked about the medical evidence I gave him in which he didn't submit before the 2nd hearing (now all of a sudden after the hearing he begins to submit "some" of the evidence I gave him). Maybe he's waiting until the actual hearing to submit the rest. It's maddening how he's treating me.

Clifford Michael Farrell

Clifford Michael Farrell

Posted

Sorry to hear about your experience. Most unfortunate. You only have this case and it is everything for you. I'd suggest requesting a face to face meeting with the lawyer - not the legal assistant. if the lawyer cannot or will not agree to meet, then even if it is a hassle, I'd consider finding someone who will talk to you and advocate for you.

Posted

More info is needed to properly evaluate. Avvo has a terrific "find a lawyer" tool to locate a top-rated Avvo attorney with a low contingency fee.

Asker

Posted

I can appreciate you taking the time to help people online, but I don't understand why you answer my questions the way you do. You previously answered one of my questions simply by stating you don't practice in disability law, and that you didn't have an answer. What I don't understand is why did you even bother to reply? Just like in your reply above (and others) I DON'T need to find a lawyer on Avvo, so stop advertising that as your only response. It's really unnecessary. If you don't even practice disability law, then why do you bother to make the comments you make? It's annoying.

Posted

It can be quite difficult and frustrating to get errors corrected. This is one of the reasons to have a lawyer. If you don't have one, get one. If you do have one, let him fix this for you.

Asker

Posted

I do have a representative (at least on paper). He's my second rep. He apparently doesn't know how to hit the "reply" button on emails. My claim is a little over 4 years old now, and I'm heading to my 3rd ALJ hearing. I don't believe any lawyer would take over my claim right now, so I'm literally stuck with who I have now. I'm trying to do what I can for myself because I seem to get more accomplished when I don't wait for someone who doesn't reply to my emails.

Posted

I seriously doubt your representative is delaying for more fees. The frustrating part of your saga appears to be that you have a very clear understanding of what you need but are having difficulty communicating your desire to your representative. I would doubt that an request for on the record decision will do you any good. You will more likely than not need an additional hearing as the prior history of your claim does not lead itself to an on the record decision regardless of the medical information. I would really push your representative to amend your AOD in writing prior to the hearing with request for the VE to have all necessary medicals.

Asker

Posted

Thanks for replying. I would like to think the best in my representative (as I am trying to give him every benefit of the doubt for what decisions he has and has not made), but for the 4 years of research I've conducted (while my claim takes more and more time), I keep coming across articles, stories, and SSA regulations that suggest what he's doing to me is borderline malpractice. When he took over for my first representative, he made it clear to me that my claim is very winnable simply because of the fact the ALJ disregarded this and that (not to mention I clearly met listing 14.09C1), but when the 2nd ALJ hearing began, one would think this was the lawyer's first ever hearing in that he mentally dumped on me. After the mental screwage I received from my first representative, I've been overly proactive with my claim by learning the pertinent disability laws, rules/regulations, SSR's, POMS, Hallex, etc. that directly pertained to my disease and disability law. I was able to submit my own AC Request for Review without even knowing "how" to, and I still received a remand with instructions to correct my AOD to what I originally submitted. I approached my 2nd representative with all the background foolishness with countless references to what "needs" to be done, yet my representative couldn't even take a 99% completed claim and argue his 1% the rest of the way. I wish I could sit down with a new reputable representative and just lay it all out on the table; I can almost guarantee they will be baffled as to the complete mess my claim has become by everyone involved. This may be a case of an egotistic representative who doesn't understand that just because one has disabling conditions doesn't mean they don't know what's going on or they can't assist in their own claim. It seems as if neither of my representatives have listened to me and yet the AC (now on BOTH remand occasions) have sent my claim back to the ALJ for the same reasons I have been barking about trying to get corrected for 4 years now. If/when I finally win this claim, it certainly won't be from the efforts of my representative. Once I received my notice of hearing for this latest (3rd round) ALJ hearing, I notified my representative of this (still) ongoing AOD issue. Like other emails to him, I believe he's lost his "reply" button because it seems if (IF) he replies to my emails, it's 3+ weeks later or ultimately too late to make any changes. I do, however, have a written complaint (from me) about my ongoing AOD issue that's been turned into an exhibit, but even then, my representative (and the ALJ) had absolutely nothing to say about that exhibit. Two things are happening with my claim: 1.) both the ALJ and my 2 representatives were/are completely inadequate, or 2.) everyone involved with my claim makes these kinds of mistakes all the time. Thanks again.