Sunday, February 03, 2008

Second Disability Appeal - What makes it different from the First?

Applicants for social security disability and SSI who get denied on a request for reconsideration (the first appeal in the disability process) sometimes shrug and wonder "why should I bother filing another appeal?"

Of course, the question that they're really asking may be rephrased as such: What makes the second disability appeal different from the first appeal?

The second disability appeal is the request for hearing before an administrative law judge. And it is very different in a number of ways from the request for reconsideration, both in nature and in terms of statistical outcome. Here's a short list of the various differences between the two types of appeals.

1. Reconsiderations are adjudicated (decided) by the same state agency that renders determinations on applications for disability. In most states, this agency is referred to as DDS, or disability determination services. In fact, the only real difference between the handling of the reconsideration appeal and the application that precedes it is the fact that each stage is decided by a different disability examiner. Aside from that, the process does not change at the reconsideration level. And it certainly does not favor claimants. Nationwide, on average, about 85 percent of all reconsiderations are denied. The only bright spot to this is that they tend to be denied faster than initial claims, thus allowing claimants to move on to the next step, the hearing.

2. Reconsiderations, as with initial claims (applications), do not involve face-to-face contact between the decision maker and the claimant. By contrast, at the disability hearing level, the process changes entirely as typically the administrative law judge (the adjudicator at this level), the claimant's representative (a disability attorney or a non-attorney representative), and the claimant all meet together at a federal hearing office.

3. At the reconsideration level, the opinion of a claimant's treating physician may not carry as much weight as it does at the disability hearing level. This may sound strange, considering the fact that the social security disability and SSI system is purported to be a uniform and standardized system. But individuals who represent claimants are well aware of the fact that a statement provided by a treating physician may effectively win a claimant's case at the hearing level. Yet that same statement presented to a reconsideration level examiner may hardly find acknowledgement.

What makes the second disability appeal different from the first appeal? Primarily, the differences can be boiled down to these two factors.

1. The claimant gets to meet the judge at his or her hearing, while during the course of a reconsideration the opportunity to meet the adjudicator will not be made available.

2. The claimant may, along with his chosen representative, play an interactive role in the disability decision process. This will typically involve responding to questions posed by both the disability judge and the disability lawyer, but may also include being an active participant in the preparation of a case prior to a hearing. Examples of this include rendering assistance to one's attorney with regard to the gathering of medical evidence and successfully obtaining a statement of support from one's treating physician (generally, this support is referred to as a medical source statement or an RFC a.k.a. a residual functional capacity statement).

However, these two factors coalesce into one very important factor. At a social security disability hearing, the claimant becomes an individual who can be seen and heard, whereas on a reconsideration, the claimant (who never meets the disability examiner) is generally relegated to simply being a file on a state employee's desk.

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