BEST PRACTICES FOR CLAIMANTS REPRESENTATIVES

Transcription

1 BEST PRACTICES FOR CLAIMANTS REPRESENTATIVES Social Security Administration The Office of Disability Adjudication and Review The Office of the Chief Administrative Law Judge Chewning Appendix 1

2 N T R O D U C T I I O N BEST PRACTICES FOR CLAIMANTS REPRESENTATIVES We are pleased to publish the newly reformatted Best Practices Handbook for claimants representatives. It is our hope that all claimants representatives will use this handbook as a practice aid when advocating and appearing before the Office of Disability Adjudication and Review. The Office of Disability Adjudication and Review is one of the largest administrative adjudicatory systems in the world. The claimants who appear before us may feel overwhelmed by the legal and administrative requirements associated with pursuing a Social Security claim. Therefore, it is important for those most closely associated with this effort to work together in a collegial and professional manner to make this process as efficient as possible. It is to this end that we publish this handbook so that we can successfully fulfill our joint mission to provide the best possible service to the public. Frank A. Cristaudo Associate Chief Administrative Law Judge Social Security Administration Office of Disability Adjudication and Review January 2011 Chewning Appendix 2

3 TABLE OF CONTENTS In General 4 Prior to an Administrative Law Judge Hearing 5 At an Administrative Law Judge Hearing 8 After an Administrative Law Judge Hearing 9 Actions Before The Appeals Council 10 T A B L E O F C O N T E N T S Chewning Appendix 3

4 I N G E N E R A L IN GENERAL 1.01 Obtain as much information as possible from our website. This is a general rule for all dealings with SSA. At the hearing level, the majority of claimants are represented, and we encourage our employees to cooperate as much as possible with requests for information or assistance from representatives. However, every personal contact with hearing office personnel precludes the employee from performing other responsibilities relating to other hearing requests. Every five minutes that is saved on individual claims converts to thousands of saved hours that can be devoted to processing other claims Timely submit the form SSA-1696 and fee agreement. If applicable, obtain and submit withdrawals and waivers from prior representatives to avoid possible delay in payment Establish a good working relationship with hearing office staff and management. You should participate in periodic group meetings with the Hearing Office Chief Administrative Law Judge and Hearing Office Director in the offices in which you practice. Open dialogue allows both representatives and hearing offices to exchange suggestions as to how to improve service in the local area Timely alert the hearing office of any change of address or phone number for either yourself or the claimant. This would help reduce duplication of effort by hearing offices when notices are sent to either individual. 4 Chewning Appendix 4

5 1.05 Submit updated form SSA-827 with the request for hearing. If the hearing office needs to request information on short notice for a possible on-the-record (OTR) decision or a dire need review, or for any other reason, it is very helpful to have updated release forms already in the file Even if a case is pending at the hearing level, a form SSA-1695 should be submitted to the SSA field office, not the hearing office. This form deals solely with payment to the representative and contains personal information, including a representative s Social Security number. If a SSA-1695 is received at a hearing office, it is immediately forwarded to the SSA field office for processing. Submitting this form to the SSA field office initially would significantly reduce the time hearing office staff spends forwarding documentation, and reduce the likelihood that the form will either be lost or improperly associated with the claimant s file. PRIOR TO AN ADMINISTRATIVE LAW JUDGE HEARING Under 20 CFR and , claimants have an existing duty to submit additional evidence with a Request for Hearing or within 10 days of submitting the request. Therefore, we encourage all representatives to review the file and submit evidence as early in the hearing process as possible. Do not wait until the case is scheduled to submit evidence. ODAR is aggressively screening cases for potential on the record situations and updated evidence is helpful in identifying cases that may be reversed without the need for a hearing. At the same time, we also encourage representatives to be mindful of hearing office resources required to burn CDs, and ask that representatives not request excess copies of CDs. P R I O R T O A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G SUBMITTING EVIDENCE 2.01 Do not submit duplicative evidence. This is a problematic and time consuming issue dealt with at the hearing level, and significantly delays preparation of cases for hearing. Hearing office staff often spend several hours on any given case sorting out duplicate evidence. The sooner a case is prepared and exhibited, the sooner the case can be scheduled. Chewning Appendix 5 5

6 P R I O R T O A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 2.02 Submit evidence as far in advance of the hearing as possible, using ELECTRONIC RECORDS EXPRESS. Up to 200 pages at one time can be faxed into the electronic folder using the fax number and bar code supplied with the Acknowledgment of Hearing notice. However, we do recommend smaller submissions when possible (less than 30 pages), as smaller exhibits open more quickly. Early submission (more than 10 working days before hearing) allows hearing office personnel to exhibit the evidence and ensures that the claimant s copy of the file includes a copy of all the evidence that has been received. It also gives the ALJ time to review all the evidence, and helps to ensure that all relevant evidence is timely provided to experts scheduled to appear at hearing Before faxing evidence, check to ensure the evidence you are submitting matches the claimant. This simple precaution would significantly reduce the time hearing offices spend contacting representatives and re-associating evidence with the appropriate file Make sure the barcode is the first item faxed in order to ensure proper identification of all records. If you do not have a barcode for a particular case, please ask the hearing office to provide you with one. Bar codes may be photocopied and used more than once Submit a cover letter with the evidence identifying what is being submitted and the date of the evidence. Submitting evidence with a cover letter and the dates of the evidence will assist hearing office staff in identifying duplicates and in exhibiting the records Avoid submitting voluminous evidence at the last minute. This does not provide sufficient time for hearing office staff to associate the evidence with the file, or provide the ALJ and experts adequate time to review the evidence When faxing evidence from different sources into the electronic folder, separate sources by placing a bar code as the first document for each source and submit in chronological order. This assists hearing office staff in reviewing the evidence for duplicates and in exhibiting the records. 6 Chewning Appendix 6

7 2.08 Do not submit medical evidence with non-medical documents such as appointment of representative forms or fee agreements. Medical and non-medical documents should be submitted separately. Because these documents are included in different sections of the folder, it requires more time to separate documents if they are submitted together. ISSUES TO ADDRESS AND SUPPORTING EVIDENCE 2.09 When possible, obtain a medical source statement from a treating source which identifies the limitations imposed by the claimant s impairments. Submit with supporting evidence or direct attention to supporting evidence already in the file. Treating source statements can greatly assist an ALJ in assessing Step 3 of the sequential evaluation and the claimant s residual functional capacity Deal with employment (substantial gainful activity, unsuccessful work attempts, sheltered work environments, etc.) and earnings issues in a pre-hearing memorandum or at the hearing. Be sure to distinguish long term disability, vacation, or bonus pay which may appear as earnings after alleged onset Deal with worker s compensation issues in a pre-hearing memorandum or at the hearing. If there has been a settlement, provide appropriate proof Submit concise pre-hearing briefs whenever possible. This assists an ALJ in preparing for the hearing. SUBMITTING ON-THE-RECORD (OTR) REqUESTS 2.13 Clearly label an OTR request OTR request, and submit as early as possible (but only when a request is appropriate). OTR requests are not appropriate in every case, and should only be requested when a favorable outcome is supported by the evidence in the record Identify evidence that supports the OTR. OTR requests should include a concise summary at the beginning of the brief outlining the argument, followed by a more detailed explanation specifically directing the reviewer s attention to evidence supporting a favorable decision. P R I O R T O A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 2.15 Make sure evidence supports onset date. Onset issues are the most frequent reason an OTR request cannot be granted. Chewning Appendix 7 7

8 A T A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G 2.16 Use FIT templates to submit OTR requests. A CD of these templates is available from hearing office personnel. WORkING WITH ATTORNEy ADJUDICATORS 2.17 When contacted, work with attorney adjudicators to expedite decisions in appropriate cases. Attorney adjudicators review and screen cases for an OTR. Currently, attorney adjudicators have the authority to issue a fully favorable decision OTR when it is warranted. If you are contacted by a hearing office attorney regarding substantial gainful activity or onset issues in a particular case, discuss the matter with the attorney to see if the issue can be resolved without the need of a hearing. SUBMITTING DIRE NEED, TERMINAL ILLNESS REqUESTS, OR INFORMATION REGARDING INCARCERATED INDIVIDUALS 2.18 Notify the hearing office when the claimant has a terminal condition, is homeless, or is in dire need, and include appropriate documentation supporting these allegations. Notifying a hearing office of these circumstances can significantly expedite the processing of a case, if the allegation is supported. The criteria and reference links for critical case processing can be found in our provisions in HALLEX I (Critical Cases) With the request and documentation supporting the allegation, submit updated evidence supporting the claim for an OTR review. If a dire need case can be awarded without the need of a hearing, this works to the advantage of the claimant and the hearing office If claimant is incarcerated, provide the hearing office with the address of the facility and the release date. There are many difficulties that arise when an individual who has requested a hearing is incarcerated. For example, if an in-person hearing must be conducted, there are varying rules and procedures depending on the facility in which the claimant is incarcerated. Some claimants are transferred after a hearing has been scheduled but before the hearing has been held. For these types of reasons, it is very important that the hearing office is apprised at all times of the status of an incarcerated claimant. SCHEDULING HEARINGS Do not request postponements unless essential. Be flexible with providing dates and times for hearings, and request postponements in writing in a timely fashion wherever possible. When you have already agreed to the time of a scheduled hearing, avoid requesting a postponement. Chewning Appendix 8

9 2.22 When representing a child, be prepared to have someone available to look after the child, if possible, after he or she testifies or if he or she does not testify. Representatives should avoid keeping the child in the hearing room when it will disrupt the hearing process or is otherwise not appropriate. AFTER AN ADMINISTRATIVE LAW JUDGE HEARING 3.1 Submit post hearing evidence as soon as possible, with a written brief identifying how the evidence supports a favorable decision. This will assist the ALJ in reviewing the records and appropriately focus attention on the information supporting your arguments, resulting in the issuance of a timely decision. 3.2 Whenever possible, submit fee petitions within 60 days of a decision or as soon as possible after services have been terminated or withdrawn. Submitting fee documents within this time frame will have a significant impact on the time a representative waits for payment. This reduces the number of follow ups necessary to determine if a fee petition is going to be submitted, allowing the ALJ to act on the fee authorization at an earlier date. It reduces the likelihood that funds withheld for direct payment will be released to the claimant, and reduces the wait time if administrative review of an authorized fee is requested. A F T E R A N A D M I N I S T R A T I V E L A W J U D G E H E A R I N G Chewning Appendix 9 9

10 A C T I O N S B E F O R E T H E A P P E A L S C O U N C I L ACTIONS BEFORE THE APPEALS COUNCIL 4.1 If requesting a copy of the record, submit a clear request. The request should be clearly stated at the beginning of your correspondence to facilitate support staff screening and action on your request. 4.2 Submit any additional evidence or comments with the request for review. For internal review and association purposes, submitting all evidence at the same time would be very helpful. 4.3 If you have additional evidence, explain how it is material to the period at issue. In regard to new evidence, the Appeals Council applies 20 CFR and Contentions should be specific. It is always a good practice to concisely focus your arguments for a reviewer. We recommend using 2,000 words or less if possible. 4.5 Contentions do not need to include a recitation of the jurisdictional history or evidence generally, unless related to a specific point of contention. The record is already before the Appeals Council. 4.6 Cite to the record. Include page numbers of exhibits. 4.7 Do not make automatic, multiple requests for the status of a request for review. You can verify that the Appeals Council has received the request through your local Social Security office, local hearing office or by calling our Congressional and Public Affairs Branch staff ( ) or our general inquiries staff at our toll-free telephone number ( ). 4.8 Be specific in requesting an extension of time. Requests for extension of time should explain how much additional time is needed and why the request should be granted. 10 Chewning Appendix 10

11 A C T I O N S B E F O R E T H E A P P E A L S C O U N C I L Chewning Appendix 11 11

12 Social Security Administration SSA Publication No Chewning Appendix 12

13 SSR 11-1p Chewning Appendix 13 1 of 3 9/24/2012 3:16 PM POLICY INTERPRETATION RULING Effective Date: July 28, 2011 Publication Date: July 28, 2011 Federal Register Vol. 76, No. 145, page Purpose: To explain our revised procedure under which we will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process. Citations: Sections 202(j), 216(i), 223(a), and 1631(e) of the Social Security Act, as amended; Regulations No. 4, subpart G, sections , ; subpart J, sections (b), (b), (b); and Regulations No. 16, subpart C, section ; subpart N, sections (b), (b), (b). Introduction In 1999, we adopted a procedure that allowed us to process a subsequent disability claim while your prior disability claim was pending at the Appeals Council level of our administrative review process. Under that procedure, if you filed a subsequent application for disability benefits while you had a disability claim pending at the Appeals Council, we sent your subsequent claim to the disability determination services (DDS) or similar case-processing center for development and adjudication. If we denied your subsequent application at the earlier stages, and you requested a hearing before an administrative law judge (ALJ), the hearing office took no action until the Appeals Council completed its action on your prior claim. We have seen an increase in the number of subsequent disability claims in recent years. When two disability claims under the same title and type are pending at the same time, there can be conflicting decisions that we must then reconcile. Subsequent claims may result in improper payments, increased administrative costs, and unnecessary workloads stemming from duplication. Because of these problems and the significant increase in the number of initial disability claims that we have experienced in recent years, we are changing our procedures for handling subsequent applications for disability claims of the same title and type. Policy Interpretation Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application. This Ruling explains our new procedures. If You Choose to Pursue Your Pending Disability Claim Instead of Filing a New Claim Under the Same Title and of the Same Type If you decide to pursue your administrative review rights on the pending disability claim, we

14 SSR 11-1p Chewning Appendix 14 2 of 3 9/24/2012 3:16 PM will not accept your subsequent application for benefits under the same title and for the same type of benefit as the pending claim. Although we will not accept your subsequent application while your prior disability claim is pending administrative review, you can still provide us with evidence that is relevant to your pending claim, in accordance with our existing regulations and procedures. Our technological improvements, such as Electronic Records Express and electronic alerts and messages, enable our offices to communicate with one another faster and more efficiently and act on additional evidence promptly. If the additional evidence indicates a critical or dire need situation, we will act expeditiously. Claim Pending at Initial, Reconsideration, or Hearing Level The procedures in this Ruling do not preclude you from reporting new medical conditions or a worsening in your existing medical conditions, and you can submit additional evidence on these matters. We will forward any additional evidence you submit to the office that is handling the pending claim so that it can be associated with that claim. You can submit any information or evidence that you feel is helpful to your pending disability claim. See 20 CFR (b) and (b). In adjudicating the pending disability claim, we will consider the information and evidence you submit, together with all the other information in the claim folder. Id. Claim Pending with the Appeals Council If you choose to pursue your disability claim that is pending at the Appeals Council, and you submit additional evidence, the Appeals Council will first determine whether the additional evidence relates to the period on or before the date of the hearing decision. When the additional evidence is new and material and relates to the period on or before the date of the hearing decision, the Appeals Council will consider it, together with the entire record. 20 CFR (b), (b), and [1] The Appeals Council will review your case if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record. Id. If the new and material evidence that relates to the period on or before the date of the hearing decision shows a critical or disabling condition, the Appeals Council will expedite its review of your pending claim. When the additional evidence does not relate to the period on or before the date of your hearing decision, the Appeals Council will return the additional evidence to you. 20 CFR (b), (b). The notice returning the additional evidence will explain why the Appeals Council did not accept the evidence and inform you that, under certain circumstances, we will consider the date you filed the request for Appeals Council review as the filing date for your new claim. If you originally filed for disability benefits under title II, and you file a new application for title II disability benefits within six months of the date of this notice, we will use the date of your request for Appeals Council review as the filing date. If both applications are for Supplemental Security Income payments based on disability under title XVI, and you file the new application within 60 days from the date of the notice, we will use the date you requested Appeals Council review as the filing date for the new claim. We will permit the filing of a new disability claim after the Appeals Council completes its action on the request for review of the pending claim. If the additional evidence that does not relate to the period on or before your hearing decision shows a new critical or disabling condition, and you tell us that you want to file a new claim based on this evidence, the Appeals Council may permit you to file a new disability claim before it completes its action on your request for review of the pending claim. If You Choose to Decline Further Review of Your Pending Disability Claim and Instead File a New Claim Under the Same Title and of the Same Type

15 SSR 11-1p Chewning Appendix 15 3 of 3 9/24/2012 3:16 PM If, on the other hand, you decide to decline to pursue further administrative review on the pending disability claim and file a new application, we will assess your eligibility for any other benefits and take applications for these benefits. When you received an unfavorable or partially favorable decision from us on your pending claim, we explained the effect that not pursuing an appeal might have on your possible entitlement to benefits. If Your Subsequent Claim Does Not Involve the Same Title or Type of Benefit This Ruling does not change the procedure we currently follow when you file a subsequent claim under a different title or for a different benefit type than a pending claim. When a subsequent claim under a different title or for a different benefit type shares a common issue with the pending claim, we will usually consolidate it with the pending claim through the hearing level. When you file a subsequent claim that is under a different title or is for a different benefit type and your prior claim is pending review at the Appeals Council, we will process the subsequent claim in accordance with our current procedures. Cross-References: Program Operations Manual System, DI and DI , DI , DI , DI , GN , GN , GN , GN , GN , GN GN , GN , GN , GN , GN , SI , SI , SI , SI , SI , Hearings, Appeals and Litigation Law Manual, I-3-1-7, I , I , I , I-4-2-1, I , and I [1] In the six states that comprise our Boston Region (Maine, New Hampshire, Vermont, Rhode Island, Massachusetts, and Connecticut), the Appeals Council must consider whether the evidence relates to the period on or before the hearing decision, whether there is a reasonable probability that the evidence would change the outcome of the decision, and one of the following: 1) our action misled you; 2) you had a physical, mental, educational, or linguistic limitation(s) preventing you from submitting the evidence earlier; or 3) some other unusual, unexpected, or unavoidable circumstance beyond the your control that prevented you from submitting the evidence earlier. 20 CFR Back to Table of Contents