“You Don’t Look Disabled” – How Representation Can Help You Navigate Inherent Bias and Other Pitfalls in Social Security Disability Hearings
If you are denied Social Security Disability Insurance or Supplemental Security Income benefits after an initial application and reconsideration, you have a right to request a hearing within 60 days.Your case will be heard by an Administrative Law Judge (ALJ), an independent trier of fact who is not bound by the opinions of the medical evaluators who decide disability claims at the initial levels of review. The Social Security Office of Hearing Operations is one of the largest administrative law systems in the world, employing approximately 1,700 judges throughout the nation and its territories. While an administrative law hearing is much less formal than a superior court hearing, and while the Social Security disability determination process is non-adversarial, it can nevertheless be fraught with pitfalls for some applicants.
Many applicants successfully apply for benefits without the aid of a representative, but a seasoned advocate can help others navigate these challenges and put their best case forward at a disability hearing before an ALJ.
Young applicants have a harder time securing benefits than older applicants.Anyone under the age of 50 is considered a ‘younger person’ in Social Security’s regulatory scheme.There are literally fewer paths to a finding of disability for younger applicants.For example, the agency has promulgated rules in a series of tables known as the Medical-Vocational Guidelines (also referred to as “the grids”).Each rule sets forth specific combinations of vocational factors (your functional capacity, age, education, and work experience) that determine whether the agency will expect you to perform other work if you cannot return to your previous work. Where your factors match the criteria of a rule, the agency grants benefits under a medical-vocational allowance.
However, of the more than eighty grid rules, only one creates a presumption of disability for younger claimants. This disparity suggests that the system is designed primarily with older applicants in mind. Indeed, because young people are generally more vital and resilient, they are typically not disabled by disease or injury at the same rates as older applicants.This fact underlies a predictable bias against younger applicants, that an advocate can address in the presentation of your case.
Another all-too-human bias affects the way claimants without obviously visible impairments are perceived. It is difficult to predict how functional a person is just by looking at their medical records. Conversely, it is just as difficult to tell how limited someone is just by looking at them.Hence, the hearing provides an opportunity for the ALJ to scrutinize claimants for the credibility of their allegations.An obvious difficulty presents when the signs and symptoms of a debilitating impairment are not readily apparent.Someone with debilitating mental impairments, for example, might appear physically hale.A good disability advocate will tailor a hearing presentation to stress the elements of a claim, and address potential biases where the claimant’s limitations aren’t visually obvious.
Drug war era legislation amended the Social Security Act so that disability benefits cannot be awarded where a claimant has a drug or alcohol abuse disorder and would not be found disabled but for that disorder.In a case with active substance abuse, the ALJ must perform a subtler analysis to determine if a claimant would still be disabled if they stopped abusing drugs or alcohol.The analysis is tricky and misapplication of the rule is a significant source of remands. Given the federal government’s zero tolerance policy against drug abuse, it is no surprise that most ALJs are wary of drug using applicants and often misinterpret evidence of drug use as evidence inconsistent with disability, rather than a predictable consequence of mental stressors. Clients with dual diagnoses are especially vulnerable to this kind of bias, and are best served by an advocate that can make a case that their underlying mental disorders would still be disabling in the absence of drug abuse.
What most applicants don’t know is that the hearing itself is intended to allow a claimant to comment on all evidence in their file that is considered ‘inconsistent with disability.’ A well prepared ALJ will question a claimant about such evidence in all hearings. However, the agency is notoriously backlogged and ALJs are not always well prepared. An effective advocate will review the file ahead of a hearing and identify inconsistent evidence, so that a claimant has the opportunity to be heard on issues such as the failure to pursue a recommended treatment or take narcotic pain medication despite significant pain complaints, or reconciliation of alleged hobbies such as sports with a claimant’s actual physical capabilities.It is often helpful for a representative to address inconsistent evidence in their hearing brief as ALJs must consider this evidence when making a credibility determination.
If you are unsure whether representation would benefit your Social Security claim, contact Mastagni Holstedt, APC for a free consultation.Only thirty percent of claims are approved at the initial application stage, and many applicants are discouraged from appealing because of the wording of denial letters. But approval chances improve as a claim progresses through the different levels of appeal, and the biggest opportunity for advocacy comes at the hearing level.Having an advocate at your side when you make your case to an ALJ improves your odds of prevailing because an experienced representative will know how to prepare a case that is specific to your needs and the content of your evidence.