Reconsideration and Hearing

Most applications are denied regardless of merit. If your claim is denied, you should not take this to mean your claim is weak or unwinnable. Many denied claims are good claims. I am Sara L. Gabin, a Social Security Disability attorney who has been representing residents of Portland and nearby communities over 30 years. If your initial application has been denied, it is always a good idea to get expert legal advice on how to go forward.

Reconsideration is the first appeal after an initial application is denied. This phase takes four to six months. Typically, it results in “rubber-stamped” approval of the initial denial. But it is a mandatory appeal process. I call attention to the reviewers at Disability Determination Services (DDS) to all medical evidence I think they need to consider. I always ask DDS to speed up their decision making. Occasionally a claimant might be referred to an independent medical examination. Infrequently, DDS actually allows a claim, but when this happens, it cuts off arbitrarily substantial past-due benefits.

After reconsideration, the next phase is the hearing, usually a 15 to 22 month wait. The climate in the Social Security Administration has changed from one that had been claimant respectful to one that has become claimant hostile. Until approximately 2012, most claims that were denied on initial application and on reconsideration where approved at the hearing. This is no longer true. Approval rates nationwide and in Oregon have fallen from over 70 percent to around 38 percent.

So, good claims are now often lost at hearing and the strategy now is to build the best record to win at a post-hearing appeal to Federal District Court. The hearing is all about building this record.

When your claim arrives at the hearings office, I review the evidence, and if I think the evidence is strong, I request a decision on the written record, known as an on-the-record (OTR) decision. With the change in climate, OTR requests are now denied. But, I will make the request if it is the right thing to do.

At the hearing, you will have an opportunity to testify in response to questions an Administrative Law Judge (ALJ) asks and that I ask. The ALJ tends to be adversarial and is there to identify evidence both for and against a disability determination.

Most of the work, yours and mine, takes place months before the hearing. Your work is to comply with treatment COMPLETELY. No exceptions. My job is to review the record and close the gaps with outstanding evidence and reports from your doctors.

At the hearing, your job is to answer all questions truthfully. My job is to question you about matters I think the ALJ should have raised, and to cross-examine the vocational and medical experts the ALJ calls as witnesses.

You may bring your own witnesses, but often the hearings are so short, usually no longer than an hour, and so there is no time. Good letters from friends, neighbors and coworkers are always acceptable.

It is very difficult to win your claim without good medical evidence. A good, well explained medical opinion from a doctor who has treated you for at least a year, knows you as a person, and understands your medical condition is the opinion that matters. After I review all treatment notes, I ask the treating doctor to answer a very specific set of questions, to help clear up questions the chart notes raise, and to help prove that you are disabled in the way the Social Security Administration requires. If the judge at your hearing decides to deny your claim, a good medical opinion will often be the evidence that helps you win later in federal court.

If the medical evidence does not show you are disabled, I will encourage you to get vocational retraining or to keep looking for work. Increasingly, claimants have to keep working or retraining for work until a doctor, vocational counselor or an employer tells them they need to be on disability. Your opinion about what you can do is not the opinion that matters. The opinion that matters is your doctor’s opinion. The opinions of former supervisors and co-workers are also opinions that matter. The opinions of neighbors and friends are also helpful. After assessing your situation, I will point out the strategies that make the most sense for your unique case.

Your credibility will also “make or break” your case. In federal court, were so many cases are headed these days, I have found that most federal judges will look at a claimant’s treatment compliance and truthfulness above all else. If the claimant is found non-compliant, the federal judges will tend to view the claimant as not credible and therefore not believable.

Know that strict time limits apply to appealing a denied claim. Good cases have been lost just because a client has missed a time limit. Most notices contain a 60- day time limit from the date you receive the notice. You are presumed to have received the notice within five (5) days from the mailing date.

As a Social Security Disability lawyer with over 30 years of experience, I have represented disabled persons in Portland and elsewhere in Multnomah, Clackamas, Washington and Yamhill Counties at all phases of the appeals process. I am dedicated to helping you win the benefits you deserve. Contact Sara L. Gabin at (503) 620-3171 or online to discuss your case. Free consultation.