December 6, 2019

Has Social Security Instructed its Judges to Deny More Claims?

secret memo to social security judgesOver the past few months, lawyers in the Social Security disability legal community have been talking about a rumor that Social Security administrators in Washington have sent out a memo to judges working in hearing offices throughout the country instructing them to cut back on the number of approvals being issued in disability cases.   Historically, about 60% of cases taken to hearing have been approved – but according to this rumor, Social Security wants the approval rate to be around 30%.

There is no question that the Social Security disability trust fund is running out of money and judges in the local hearing offices are aware of this issue.

I have found no evidence that a memo has been sent, but I do note that all of the judges before whom I appear are requiring more and better evidence.  Specifically, I am looking for the following when I accept a case and from my discussions with colleagues throughout the country, they are doing likewise:

  • on-going treatment records – ideally records documenting several years’ worth of treatment
  • a definitive diagnosis – your doctor needs to be able to identify specifically the medical condition or conditions that impact your work capacity
  • support from your treating doctor in the form of a functional capacity form or narrative report – if your doctor does not want to get involved, or otherwise won’t cooperate, your case will be more difficult to win
  • efforts by my client to try to work – under Social Security’s definitions, an unsuccessful work attempt is one that lasts less than 3 months.  If you try to work but cannot, I think you enhance your credibility by showing that you are fighting against the idea of being disabled, not embracing it
  • older claimants – 45 or older

Should I Be Concerned About the Judge’s Delay in Issuing my Hearing Decision

I frequently get emails from blog readers all over the country who appeared at a disability hearing several weeks or months previously and they are concerned that they are hearing nothing from the judge.  Sometimes these folks will call the hearing office and the receptionist will tell them that their decision is “in writing.”

Obviously, if you have been waiting 12, 18 or more months, it can be very frustrating to finally get your hearing, then find yourself waiting weeks or months for a decision with no way to get a status update.

Unfortunately, there is no much you can do about this state of affairs.  Social Security personnel – and especially the judges – are overworked and their offices are understaffed.  In most cases the judges rely on “writers” to actually produce the written decisions and if the writers are backlogged, the decisions will be backlogged as well.

Even your attorney probably won’t be able to do much.  When we call the ODAR offices, the front desk receptionist tells us the same thing he tells you – “the decision is in writing – we don’t know when it will be issued.”

In my office I will email the judge if the decision is not released after five months or so.  Sometimes that gets results and sometimes it does not.

A Disturbing Trend in Social Security Disability Hearings

Over the past few months, I have noticed a disturbing trend in many of the Social Security hearing offices where I appear.   Many of the case files do not contain comprehensive medical records or forms that translate medical problems into specific work limitations.  Why?  Many of the free and low cost medical and mental health clinics that used to service disability claimants have closed up shop.  It seems to me that some of the judges that hear disability cases are turning down deserving cases on the basis of a thin medical file when the reason for lack of treatment is financial, not a function of the claimant’s motivation.