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Roger N. Meyer "...of a different mind "
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SOCIAL SECURITY DOCUMENTATION

Strategy and Tactics for Adult Claimants

by Roger N. Meyer

Copyright 2003

All Rights Reserved

 

 

     Applications for Social Security Administration (SSA) benefits often fail because of incomplete or poor documentation.  SSA makes it possible for persons to apply for SSI/SSDI benefits by phone.  For persons I work with -- individuals with complex cognitive impairments and multiple physical health issues -- I do not recommend this approach.  Phone intakes can result in mistakes much harder to correct as your claim makes its way through the system.  I recommend submitting your Social Security application form in person.  [The date you submit your application is the date when the clock starts to run.  If you have applied for Social Security benefits in the past, and if you are found eligible as a result of your current claim, your date of eligibility may extend back to the date on which your previous application was finally denied.]  Although Social Security workers are required to develop cases completely, the system is overworked to the point that decisions are often driven by expectations that cases should take only a certain amount of time for resolution at each stage.  For this reason, I encourage you to line up as much documentation as you can before you submit your application.

 

     Once you submit your application provide additional documents as early as you can.  You are "building the record".  Even if your case is initially decided against you, good documentation increases your chance of having that decision reversed at the next level.  If your case is decided adversely at the second level, appeal that decision.  You will be able to add new documents to your record as late as the date of your hearing or even later if the administrative law judge agrees to accept your materials.  At a certain point in your case you won't be able to add anything more.  That is the time where you must engage an attorney to handle your appeal through the court system.  Decision-makers rely on the record.  Their decisions are based on how the complete record of your case fits with requirements of the law, interpretations, regulations and directives issued by the Commissioner, and federal court orders applicable to cases within your US District Court and/or US Circuit Court of Appeals jurisdiction.

 

     Many documentation sources charge duplicating fees.  Most states have laws allowing indigent persons access to copies of their medical records at no charge.  Agencies and providers may have exceptions to their duplicating fee policies providing you inform them how your records will be used.

 

     Social Security Disability Determination Services is obligated to request records from all sources that you identify.  SSA must secure current -- within the past year -- medical and/or psychological evaluations for all conditions reasonably related to the disabling condition(s) you claim.  The adjudicator (decision-maker) will decide who will do your evaluation.  You do not have to pay for these examinations and evaluations.  However, it is important for you to know that some evaluators on lists maintained by Social Security may not be competent or familiar with your disability.  You have a right to request that a medical or mental health professional currently treating you and familiar with your claimed disability be considered as your evaluator.  However, SSA requires that such professionals be either MD's and/or persons with Ph.D.'s.  It will accept information from persons with lesser degrees, but the value of those materials is not considered as authoritative

 

     There is some indication that Social Security's current regulations covering this requirement may be successfully challenged, especially on appeal, by an experienced attorney.  As of this writing (Summer, 2003) the Social Security Administration has solicited comments from mental health providers and consumers in anticipation of updating its regulations covering claims of mental impairment.  Although it may be some time before the Notice of Public Rulemaking (NPRM) is announced in the Federal Register, the rule writers at SSA are now at work modernizing these rules.  The federal judiciary has begun to take judicial notice of the current state of mental health care in the US.  Professionals delivering mental health services have reason to expect that any new regulations issued by SSA will reflect the current state of mental health care practice.  HMO's and other agencies, including public mental health services and the Veterans Administration routinely rely upon therapists and counselors with master's degrees to conduct most out-patient and some in-patient mental health interventions.  As long as your mental health treatment plan has received the approval of a Ph.D. or an M.D., regardless of whether that professional sees you regularly, adjudicators and the courts may eventually accord higher credibility and weight to validity of observations and evaluations of mental health professionals under proper doctoral-level supervision.

 

     More information about the politics of evaluators and evaluations is found in the closing paragraphs of this article.

 

     Keep copies of all forms, releases, correspondence and documents you complete or submit to SSA or any other person or agency connected with your claim.  File your copies in a single location in one place along with any correspondence you receive from SSA.  If you don't keep copies you will not be able to easily track the progress of your case.  If you have trouble keeping organized records, have someone help you, or turn record-keeping responsibility over to a  Social Security claimant representative.

 

     You are responsible for keeping appointments you make or appointments made for you by Social Security.  You must inform either Social Security or the evaluator identified in SSA correspondence that you wish to change the appointment date and/or time.  If you miss an appointment without rescheduling it or fail to make other arrangements with your Social Security worker, you raise a presumption in the decision-maker's mind that you are not interested in supporting your own claim.

 

     After you hand in your application, Social Security will send you correspondence and questionnaires to complete and return within a short period of time.  Your worker's name and phone number will be found on correspondence you receive from Social Security.  Keep track of all due dates of any notices or action requests you receive from SSA.  If you have difficulty responding within their time frame, notify your SSA worker.  You can submit some material later than a due date but you must contact your worker and make arrangements to do that.  Keep a memorandum of any calls you make or receive in which a change of due dates or other change-information has been agreed to.  Your memorandum should identify the person by name and include the date and time and what was agreed to in your call.  If a deadline passes and you don't call within a reasonable time of that date or at all, your inaction could result in an adverse decision or closure of your case.

 

     If you miss an appeal date deadline, you may be able to keep your case open by explaining what happened in a written petition, a statement of "good cause".  Carelessness or inattentiveness is not considered "good cause" unless your disability causes you to lose track of due dates.  You might be granted a one-time reprieve.  However, if you know you are forgetful or inattentive about important matters, you should to turn your case management over to a Social Security claimant representative.  The representative will receive duplicate notices of any mailings sent to you by Social Security.  Your representative should remind you about completing documents or responding to inquiries in time to meet deadlines.  Although your representative cannot abandon you, if you are uncooperative with your representative, your representative may request that you find someone else to represent you and/or advise you to drop your claim.

 

     Protect yourself and your case's progress with good written records.  If you keep your records electronically, make sure you regularly back up and save them to a secure storage medium.  Here is a basic rule that applies to all aspects of your case:

 

If it isn't in writing and "in the record," it didn't happen.

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A Checklist of Items and Notes for each Item

 

Found below is a checklist of items and information commonly required for a Social Security claim.

 

___Official copy of birth certificate.

 

___Official copy of naturalization papers, if applicable.

 

___Official government-issued picture identification.

 

___Social Security card

 

___Name, title and/or degree, of all medical providers, specialists, mental health practitioners and hospitals and clinics you have visited starting from the person or persons seen most recently as far back as you can remember, or at least as far back as the claimed onset of your disabling condition.  Try to remember the date(s) of your consultations or visits.  Start with the date you first saw the provider and the date of your last appointment.  Whenever possible, include complete address (including ZIP code), telephone number, Email, and FAX.  If you make a list, do not lose the list.  Do not be selective in identifying your providers or attempt to conceal the names of anyone who has treated you, especially if you didn't like them.

 

___List dates and complete contact information of medical providers or other sources from whom you request documents.  Track the progress of receiving those records you have requested.  If you request complete copies of your records, you are obligated to send SSA what you received.

 

     Caution:  If you manage your own case, it is not wise for you to pick and choose what you send to SSA from one source.  If you are selective, your credibility can be questioned especially if SSA requests and receives complete records from the same source.  To reduce paperwork, Social Security workers may ignore duplicates of records or documents you send them if you have submitted them at an earlier time.

 

___A complete list of all medications you take currently by name, dosage and name and degree or title of the prescriber.  You can make a separate list of prescribed medications for your condition(s) you've taken in the past.

 

___A complete list of procedures, treatment, and/or hospitalizations related to your health as well as the your claimed impairment(s), the identity and location of the clinic, hospital or treatment center, and dates of each treatment, procedure or hospitalization.  Separate mental health information from general health information.

 

___A complete list of all naturopathic or non-traditional medicines or treatments, plus all over-the-counter medications you use to alleviate symptoms of your disabling condition(s).  Indicate date prescribed, dosage, and the name of the provider or clinic.  If you take an unusual number of over-the-counter medications, keep representative receipts as records of your purchase.  You will not be asked to submit the receipts, but you may later be asked to prove that you used the medications.  Receipts are good proof.

 

___If you have disabling pain or fatigue you will be sent separate forms asking you to report how you are affected.  In advance of receiving the forms, record how pain or fatigue affects your special and routine daily activities and work, including how many hours a day or the length of time pain and/or fatigue affects you, what makes it better or worse, and when and how often this occurs.  If you have sensory, environmental, or chemical sensitivities, do the same with them.  Since SSA does not have forms for this, be prepared to submit your own report.  If you have not been evaluated by a pain management specialist or clinic or specialist familiar with your sensitivities, be prepared to request such specialized evaluation(s).  Even if your pain, fatigue, or sensitivities do not in themselves constitute a severe impairment, SSA is obligated to consider their effect combined with other impairment(s) that you claim.

 

___Names and complete contact information for all current and/or past employers for the past 15 years.  SSA will receive a complete report of all of your earnings and identities of your employers.  Your application will ask you to list your employers, record what work you did for each employer, as well as each position you occupied for the same employer, your salary or hourly rate, and your hire and termination dates.  It will also ask you questions about the physical (exertional) aspects of your work.  Social Security may mail a questionnaire about your work performance to some of your employers.  Information it requests about your performance at work is protected and confidential.  It may not be re-disclosed to any other person, employer or to you.  If you are personally managing your own appeal of a first-level or second level adverse decision, you have a right to review the complete contents of your SSA file.  If you read something with which you disagree or is plainly in error, you do not have a right to pursue a legal claim against the reporting party.  You may and should submit information that corrects and amends the record for the purpose of your appeal.

 

     Your representative can contact your employers for similar or more detailed information about the effect of your claimed disability upon your work.  That information is considered privileged and cannot be used for any purpose other than your claim.  If you initially seek the same kind of information from employers, they most likely will not provide it out of concern that by responding they open themselves up to an employment law or disability rights lawsuit.

 

___Vocational Rehabilitation information.  Many individuals applying for SSA benefits may be past or present clients of state rehabilitation services.  Even if you were denied eligibility, you are entitled to have all records retained in your case sent to SSA.  Vocational Rehabilitation records may be purged of old information after a certain waiting period, but it is still worthwhile to determine whether any old files in your name have been retained, and what they contain.  Observations and evaluations of vocational rehabilitation counselors, especially if they are CRC, or Certified Rehabilitation Counselors, may be of considerable value in helping you establish your claim, especially if the only other persons evaluating your capability to work are paperwork-shufflers who are perhaps considered experts in the field, but have never met you or worked with you.  Individuals who have undergone private vocational rehabilitation through their own private insurance, workman's compensation insurance or other employer or union contract coverage should also seek their complete records, including the records of any occupational therapists, physical therapists, educational or re-training services, and privately-secured job developers.  If you have a service-connected disability that qualified or qualifies for Veterans Administration vocational rehabilitation services, if any records of that type have been generated, you are entitled to submit them to SSA.

 

___Complete contact information for one other person--not a doctor--who knows about your impairment(s) with whom SSA can discuss your case.  Make sure this person knows you have named them as a contact.

 

___Name of your Social Security claimant representative, and his/her complete contact information.

 

___Name(s) and complete contact information for person(s) who know(s) you well and can report about your daily activities and level of functioning with regard to those activities.  These persons are called "third parties" and should be willing to do more than just a cursory job of reporting about you.  If you manage your own case, you may review what these third parties have written about you.  You have no right to edit their remarks.

 

___Your Activities of Daily Living.  You will be sent a form by Social Security to describe your daily activities.  You will report about your daily schedule.  You will be asked about whether you manage your own finances, whether you drive or take the bus, whether and how often you take walks or exercise, how you spend your leisure and recreation time, your interests and hobbies, whether you shop and prepare your own meals, and whether you do housework or chores such as cleaning your living quarters and doing your laundry.  You will be asked about how well you relate to your family and friends, how much time you spend in contact with them, and what you do with them.  You will be asked about how often you talk with family members and what your conversations are like.  Be truthful in your responses.  If you embellish your answers or if they cannot be verified by other documentation you submit or the evaluations of professionals whose reports you submit, your self-report may not be considered credible.

 

___School Records.  If you were a special education student or requested accommodations as a disabled student in college, university or a training center, identify these sources and provide complete contact information for their records custodian.  If it has been some time since you were in enrolled, some records may have been destroyed.  If you or your family kept copies of any of those records, copy and submit all of them.

 

___Accommodations for your disabling condition(s).  If you need accommodations for any disabling condition(s) that you claim--no matter where, including your living quarters--describe special equipment, any modified hours, tasks or working conditions, specialized or customized transportation arrangements, and personal care provided by others.  If you have a hidden disability, it is especially important that you describe what you do, and how much effort you expend just to "get along".  Other persons should be able to verify your information.

 

___Disciplinary or law enforcement records.  If you were or are on a disciplinary track at school or at work, or have been or may be evicted because of behavior related to your disability, recall as accurately as you can when and where this happened as well as what, exactly, was or is being done in your case.  Be objective and use fact words.  Court and justice system official records can strengthen your disability claim.  If you were arrested or incarcerated for an offense or behavior caused by your claimed disability, you may not be able to request some of these records.  A social security claimant representative, especially an attorney, may be able to access them.  However, once you appoint a representative who can see these records--someone who has special privileges under the law not available to you--you cannot "take your case back" in order to see them.  If you were in an infirmary or hospital while being confined, medical records and psychological records are treated differently than court or other confidential justice-system records.  They may be available to you.  (See below for limits on mental health records.)

 

___Military service records.  Military records may reflect information relating to your disabling condition(s).  If you were subject to discipline or discharged for medical reasons or for the good of the service, those records may be available to a Social Security claimant representative but not to you.  Any medical and psychological records and adverse officer or enlisted efficiency or performance reports in your personnel file could support your claim.  Veterans' Administration records documenting a service-connected disability can also support your case (see above under Vocational Rehabilitation).

 

___How your condition(s) affect you.  It is important that you describe "before and after" if your condition(s) occurred after a certain date.  Although the application form provides little room for a complete story, it is important that you think about this ahead of time and edit your answer down to about forty or fifty words.  Write in any way comfortable for you, but let your writing "cool down" for at least a week before you return to it.  You can submit separate extended remarks with your application.   It may be helpful for you to ask others you trust to review what you write and help you edit your extended remarks in order for your words to have maximum impact.  If you have difficulty writing or expressing yourself even with the help of another person as your scribe, someone who knows you very well may write a response for you, but they must say that they are writing about you in their words and that that with your signature and date written below theirs you are in agreement with what they have written.  They must sign and date their writing.  You must sign and date your signature on their statement.  What they write must be truthful and believable.  If it is not, their remarks will affect the credibility of your other statements.

 

A note about mental health records

 

     Mental health providers may determine that, for reasons of your safety well-being--or theirs, they will not release your mental health records directly to you.  Psychological treatment records are subject to special disclosure and privacy protections under federal and state law.  However, if you have signed a release for your Social Security claimant representative to receive those records, they must be provided to your representative in complete, unedited form.  This does not entitle you to have your representative reveal those records to you.  Representatives are under the same restrictions regarding providing these records directly to you as are mental health professionals.

 

     Your representative may need those records in order to write a brief or a memorandum on your behalf for the adjudicator(s) and/or an administrative law judge.  While you are free at any time to discharge your Social Security claimant representative, you are not entitled to copies of what the legal profession calls "work product" if it is otherwise protected information.  If you later choose a different representative, that succeeding representative is not authorized to reveal that same sensitive information to you.  Your new representative will ask you to sign a release in order for your records to be transferred to him/her.

 

Handling your own Case?

 

     Social Security procedures are among the most complex administrative procedures for child and adult entitlement assistance.  If you claim impairment of mental functioning or cognitive capacity, you must recognize that by reason of your claimed impairment you may not be the best person to manage your own case.  This is especially true if your case is decided adversely at the first round, or initial determination, and you wish to appeal the decision to the second level, reconsideration.  Many disability determination services workers work on both kinds of cases.  This means that on their desks, they have initial applications as well as second-round cases.  There is a natural, bureaucratic tendency for co-workers to support one another's work.  Factors weighing against truly independent reconsideration are as follows:

 

 

 

When you appeal an adverse initial decision, unless you submit substantially new evidence or undergo a major change of circumstances, it is likely that your documentation will receive a hurried once-over treatment by the same internal document-review professionals who considered it in the first place.  Even if the medical or psychological records examiner is a different person, that reviewing professional may defer to the judgment of his/her colleagues in the same office in the interest of maintaining a non-adversarial workplace environment.  With this kind of behavior, there can be unprofessional conduct, lack of integrity, and failure to exercise independence of judgment.  Unless you have hard proof that this has happened, don't consider raising the issue at all.  It is almost impossible to prove this, even though you know it has occurred.

 

 

 

Claims of mental impairment require more specialized handling than claims of physical impairment.  Your representative should know if your claim is not receiving proper case development.  You should not argue the merits of your case with the adjudicator.  What you "argue" is procedure.  Quality assurance supervisors within Disability Determination Services should inform you that procedures governing your type of case are being followed.  It is very difficult to get a review of administrative irregularities within the same office once an adjudicator has made a decision affected by flawed procedure.  This is because the system has enormous juggernaut-like pressures built into it to keep cases moving along to the next level.  At the next level an administrative law judge can dismiss and remand your case for further development.  Some judges will not do that.  They are just as pressured to move cases along as administrators "below".  Even though they have the means to order additional evaluations or records, many judges fail to do that.  They may make their decisions based upon a poor record.  You might get lucky and finally be found eligible.  After waiting all this time, you stand just as much a chance of having bad decisions below affirmed.  The next level of appeal demands the use of an appeals attorney who specializes in these cases.

 

 

 

An experienced claimant representative may be familiar with your condition and know of experts knowledgeable about it.  It is possible for you or your representative to argue for the selection of a professional evaluator not on SSA's panel of evaluators.  If the professional you choose meets Social Security's qualifications and accepts its fee, Social Security must justify its choice of an evaluator over yours.  Ordinarily, an adjudicator will not challenge your qualified choice.  An ideal situation, if you can afford it, would be to find a professional who is "best in the field" and also experienced in forensic presentations (expert testimony) and pay for the evaluation yourself.

 

 

Personality and Politics of the System

 

     Although  Social Security appears to be a vast bureaucracy, until you are found eligible, your case will actually pass through the hands of a small number of people.  If you know that you are a difficult person to deal with, working your difficulties out on a small number of persons--no matter what their limitations are--is not a good idea. 

 

     Attitude counts.  Skilled representatives are familiar with the ways of the system.  They get their jobs done for clients without making permanent enemies of persons whose knowledge and information they rely on day after day.  If you have "attitude", your first responsibility to yourself is to recognize this fact and place your trust and your Social Security case into the hands of someone who understands your disability, can operate well under pressure and stress, can multi-task, can avoid irrelevancies and distractions, can help make a coherent story out of a jumble of documents, reports and forms, and has patience in abundance.  With a system so unwieldy and arcane, those who know how to outlast the worst effects of it may be the best friends you can find.  They get their pay only when they win your case.

 

 

Copyright Issues

 

This article is copyright, all rights reserved by the author, Roger N. Meyer.  It may be reproduced in single copy once for personal use, and in no more than ten copies total for educational purposes.  Fair Use is authorized for all purposes and under conditions established by US Statute and the International Copyright Convention, to which the United States is a signatory nation.  No person shall publish, distribute, copy, or by other means make this material available to others for purposes of personal gain or professional self-aggrandizement.  Individuals wishing permission to exercise other than fair use or limited distribution as outlined above must contact the author, in writing, and receive explicit written permission from the author prior to engaging in further use of this material.

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