Friday, August 29, 2008

Second Social Security Disability Appeal

So many disability applicants whose claims for social security disability (SSD) or SSI have been turned down decide to give up, and that is regrettable. Granted, it can take many months to get a decision on a disability claim, and if you are denied for disability on your initial claim, your only real recourse is to file a request for reconsideration appeal with DDS (the state disability determination services agency), which is likely to be denied as well. In fact, nationwide, only about 30% of initial disability claims, and 15% of reconsideration appeals are successful.

However, for those who find the stamina and will to persist, appealing a denied disability claim by filing a second appeal presents a real chance for approval. Why? Because it will get your unsuccessful claim out of the hands of the state DDS examiner, and into the hands of a federal administrative law judge, who is significantly more likely to rule in your favor.

Statistically, ALJs overturn 40 to 60% (the 60% figure applies to those with legal representation at their hearing) of all disability claims that were previously denied by DDS. Why are disability judges more inclined to grant benefits? Well, perhaps the difference in approval ratings is a result variations in the consideration process itself.

When you submit an initial claim to DDS your case is decided by someone who is really just reviewing medical records rather than speaking to you in person. Your ability to convince this person of your impairment, or to explain the severity of your symptoms is severely compromised, if not non-existent. Likewise, when you file a reconsideration appeal, your claim is simply put once again through DDS, the same organization that has already denied your initial claim. Without the addition of any significant, new medical evidence, you are unlikely to get a different result.

However, at the second level of appeal, the hearing before an administrative judge, you get the opportunity to do two things that can make every difference in your case: 1) appear in person before the person deciding your claim so that you can answer questions regarding your physical or mental impairment and resultant physical or mental symptoms, and 2) be represented by a disability attorney or non-attorney representative, who present your medical evidence in the best possible light, and help present a strong argument as to why you should be granted disability benefits.

Also, ALJs tend to give great weight to a physician’s opinion regarding a claimant’s residual functional capacity (RFC).

Since RFCs document the types of activities you are no longer able to engage in as a result of your disability, they can be a very persuasive tool when it comes to convincing a judge that you are no longer able to work. A good RFC can sway a judge away from issuing a disability denial and can win your case at the disability hearing level.

Unfortunately, the RFC gets little if any consideration by state disability determination services examiners, who tend to go with the medical opinion of the doctor assigned to their unit versus that of the claimant’s treating physician. This is really a major flaw within the DDS decision-making process, especially given the fact that the physician assigned to their unit will in all likelihood have never even met the claimant, let alone performed any kind of physical examination.

So if your initial SSD/SSI claim has been turned down by DDS, and a reconsideration appeal has failed as well, do not miss the opportunity to file a second appeal. It is the only point in the entire disability determination process in which you will have the chance to meet the person deciding your case face-to-face as a human being rather than a stack of medical records. It is also your best chance of winning disability benefits.

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