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Using SOAR in the
Appeals Process, Part II
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Using SOAR in the
Appeals Process, Part II
Presented by:
SAMHSA SOAR Technical Assistance Center
Policy Research Associates, Inc.
Under contract to:
Substance Abuse and Mental Health Services Administration
U.S. Department of Health and Human Services
Welcome!
Dr. Pamela J. Fischer, Ph.D.
Social Science Analyst
Homeless Programs Branch
Center for Mental Health Services
Substance Abuse and Mental Health Services
Administration
Webinar Instructions
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Muting
Recording availability
Downloading documents
Evaluation
Question instructions
Agenda
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Overview of SSA’s Disability Appeals Process and How to Request and
Write Winning “On the Record (OTR)” Decisions- Walt Davis, Benefits
Specialist, Volunteers of America, Northern Louisiana Inc., Shreveport, LA
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The Hearing Stage: Pre-Hearing Preparations and Basic Courtroom
Procedures- Ilana Avital, Staff Attorney, LAW (Legal Action of Wisconsin),
Racine, WI
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SOAR and Legal Aid Partnerships: Mentorship For Effective Representation
at the Hearing Level - Lourdes Flores, Paralegal, Texas RioGrande Legal Aid
Association (TRLA), Austin, TX
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Useful Case Law, Rules, Regulations, POMS and HALLEX: What every SOAR
Practitioner Should Know to Best Represent Applicants at the Hearing
Level- Gai Lorenzen, Managing Attorney, LAW, Racine, WI
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Questions and Answers- SOAR Technical Assistance Center
Purpose
 SOAR was originally developed for adults experiencing or atrisk of homelessness with serious mental illness, cooccurring substance use disorders, or other physical
disabilities
 SOAR critical components have been applied to successfully
represent adults at all stages of the appeals process
– 2,000 appeals decisions
– 66 percent of all reconsiderations or ALJ hearings
resulting in an allowance
 SOAR focuses on “getting it right the first time! But, we
know that is not always possible
MYTH
Only lawyers can represent applicants
at the hearing and appeals council
levels.
FALSE!
MYTH
If an applicant is denied at the initial
level, then DDS won’t reverse itself, so
the applicant is denied at
reconsideration.
FALSE!
Overview of the SSA
Disability Appeals Process
and
How to Request and Write Winning
“On the Record” Decisions!
Walt Davis
Benefits Specialist
Volunteers of America, Northern Louisiana Inc.
Shreveport, LA
SSA Appeals Process
1)
2)
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5)
Initial determination
Reconsideration
Administrative Hearing
Appeals Council Review
Federal Court Review
Federal Court Review
Appeals Council Review
Administrative Hearing
Reconsideration
Initial Determination
Reconsideration (Recon)
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First level of appeal in most states, except for these areas:
– Alabama, Alaska, California (Los Angeles North and Los Angeles WB ),
Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York,
and Pennsylvania
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Request for Recon needed to initiate the appeals process
Must be filed within 60 days of the date of the denial notice
+ 5 extra days for mailing
Three forms to file:
– Request for Reconsideration
– Disability Appeal Report
– Medical Release Authorizations
All may be obtained and filed online at www.ssa.gov
Reconsideration
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DDS takes an entirely new look at the case and makes
a new determination on a person’s disability
– New disability examiner/analyst and new reviewing
physician
SOAR advocate should encourage the applicant to
appeal an initial denial
Many ways to bolster claim:
– Opportunity to complete more detailed Disability
Appeal Report
– SOAR advocate can take many of the steps to
develop the claim at Recon that are described in
the SOAR model
Appeal Deadlines
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What if the deadline to appeal has passed?
The applicant can appeal if he/she has “Good Cause”
for missing the deadline
– The Federal SSA Regulations provides for this:
• 20 CFR 404.911, 416.1411
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Ask SSA to accept late filing by giving “good cause” or
reason for the delay, which prevented the applicant
from a timely filing, e.g.)
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Related to applicant’s disability,
Limited English proficiency and/or education,
Failure to understand the requirements,
Failure to received denial notice within 5 days of the date on the notice,
Unusual of unavoidable circumstances, e.g.) hospitalization, etc…
Appeal vs. New Application
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SOAR Advocates should explain the
difference between:
Reapplying
– Starting a new application
– Losing their earlier protective filing date and
potential eligibility for months of back benefits
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Requesting reconsideration
– Further appealing their case
On the Record (OTR)…What Is It?
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A written request asking that the ALJ make a favorable decision based on the
evidence in the case record
– A fully favorable decision is the only decision possible through an OTR. Otherwise
there is no decision and the hearing process goes forward as though the OTR
never happened
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You are requesting a decision based on new evidence that has become
available since the DDS denial
– Can be as big as a catastrophic worsening of your client’s condition, or as small as
an onset date that was entered wrong. But it has to be evidence that supports a
favorable outcome.
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It can be requested by the client or their representative but is often done
through a screening process by the ODAR Attorney Adjudicators in an effort
to clear hearing backlogs
– So if you get a phone call from ODAR seeking additional information, that is why
When to Request a
Decision “On the Record”
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ALJ may issue fully favorable decision without
holding a hearing
– 20 C.F.R. 404.948(a)
If the OTR is denied, you may proceed with
hearing
Sometimes an ALJ will tell you why it was denied
so you will know what she is looking for
Avoid waiving hearings
Help to reassure the applicant
Making the Decision
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Not all cases are good candidates for
the OTR process
IF you feel yours is, do your
homework first
Boil down the denial to the issues
that prevented DDS from awarding
the case
What to Review Before Requesting an OTR
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Denial letter
– What medical records were not received?
– Were any pertinent records not even
ordered?
What to Review Before Requesting an OTR
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Examine the Disability Determination
Explanation (DDE) for the reasoning
behind the denial
It is included in ODAR exhibits BUT you
can get a copy from SSA prior to that
What to Review Before Requesting an OTR
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The DDS denial warrants another in depth
interview with the client
This time you can narrow in on the issues
that caused the denial
Uncle Bob may have been mentioned by the
client the first time around, but now the role
as the client’s supervisor may take on new
significance
“You mentioned you worked for your uncle
at the factory in 2005. Did he see how you
struggled? Did he help you?”
What to Review Before Requesting an OTR
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While you are talking to the client, be on
the lookout for any information he or she
may have
Some examples:
– “My doctor still insists he never got a request
for medical records from Social Security.”
– “The SSA doctor kept calling me by someone
else’s name.”
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Reconcile inconsistencies with the DDE
What to Review Before Requesting an OTR
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You’ve done your homework. Now it
is time to see what you have
Work forward and backward through
the Sequential Evaluation
Example
 DDS feels the client has Past
Relevant Work(PRW) (Step 4)
they can perform
 You have evidence that
disputes this
 Treating physician letters,
medical records that were not
ordered, etc.
 Don’t forget to also look back at
step 3
 Have you uncovered any
evidence that will show your
client meets or equals the
listing?
 If so, then you likely just won a
favorable decision!
Example: An OTR Request
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Client applied with help from his sister
Alleged numerous physical impairments and
depression and was denied
During my interview he added, “Oh yeah, I think I
am slow too.”
Turns out there was a Psych exam from last year in
his mental health records that showed he had a full
scale IQ of 58 with extremely low adaptive IQ
I requested an OTR based on the fact that this
medical evidence was not considered by DDS
The Rest of the Story
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The OTR was and WASN’T successful
I presented ODAR with medical evidence
that showed my client likely met or equaled
a listing
However, the ALJ is not a doctor
Rather than make a decision he allowed the
hearing to go forward as a formality so the
medical expert could, under oath, opine that
my client met the listing
The OTR was a “heads up” to the ALJ and
ultimately served its purpose!
How Do You Write It?
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Clearly label an OTR request "OTR Request," and submit as early
as possible (but only when a request is appropriate)
OTR requests are not appropriate in every case, and should be
requested only when a favorable outcome is supported by the
evidence in the record
Identify evidence that supports the OTR
OTR requests should include a concise summary at the beginning
of the brief outlining the argument, followed by a more detailed
explanation specifically directing the reviewer's attention to
evidence supporting a favorable decision
Make sure evidence supports onset date
Onset issues are the most frequent reason an OTR request cannot
be granted
From Best Practices for Claimants' Representatives, SSA Publication No. 70-061, January 2011,
http://www.ssa.gov/appeals/best_practices.html#a0=1
Last But Not Least
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Know your limitations
If you are not a lawyer, don’t try and act like one
An OTR does not need to sound like a legal
document. Just be to the point, state your
request in plain language, and always be
respectful of the ALJ’s time as well as the time of
their staff.
A concise, well written, well punctuated, and
grammatically correct request will go a long way
in helping your client. Edit, edit, edit!
The Hearing Stage: Pre-Hearing
Preparations and Basic Courtroom
Procedures
Ilana S. Avital
LAW (Legal Action of Wisconsin)
Racine, WI
Topics
Pre-Hearing Preparation
 Courtroom Procedures
 Medical Vocational Guidelines
 Approaching Vocational Expert
(VE) Testimony
 Electronic Filing (ERE)
 SSDI, Title XVI Insured Status
 Amending Disability Onset Date
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Pre-Hearing Preparation
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Review CD from ODAR: What is missing?
Consistently communicate with client
regarding updated treatment sources,
collateral sources, functioning and
limitations
Request updated medical records,
medical assessment forms from treating
sources, Third Party Function Reports
from collateral sources
Submit medical and other evidence as
received
Pre-hearing Preparation, cont’d
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Familiarize yourself with ALJ hearing
practices
Consult Adult Function Reports
Prepare pre-hearing memorandum
Prepare hearing questions
Meet with client and discuss hearing
strategy, orient client to ALJ, role of VE,
etc.
Know key exhibits, exhibit page numbers
as shown on CD
Courtroom Procedures
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Arrive 30-40 minutes prior to hearing
ensure CD contains all evidence,
memorandum
Consult CD during hearing
Swearing in claimant
Representative opening statement
ALJ questions
Courtroom Procedures, cont’d
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Representative questions
Witnesses
Vocational Expert testimony
ALJ and Representative questioning
of VE
Closing statement
Holding the record open
Medical Vocational Guidelines:
Appendix 2 to Subpart P of Part 404
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Purpose: to determine whether individual
with severe impairments can adjust to any
other work in the national economy
Factors to evaluate: residual functional
capacity, age, education, work experience
See Medical Vocational Guidelines here:
www.ssa.gov/OP_Home/cfr20/404/404app-p02.htm
Approaching Vocational Expert (VE) Testimony
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Present hypothetical situations containing each
additional limitation, supported by the record. For
example:
– “If the worker requires four unscheduled ten minute
breaks, would the jobs cited still be available to the
person?”
– “Would the individual be precluded from performing
the jobs you just mentioned if he is absent at least four
or more days per month due to the symptoms of his
impairments? “
– If the worker experiences unpredictable angry outbursts
more than once per week, would the jobs you listed still
be available to her?
Approaching Vocational Expert (VE) Testimony
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VE says claimant is capable of performing
certain work, but there are no further
limitations to present:
– “What is that opinion based on?”
– “Which specific employer would allow
this?”
– “What kind of experience do you (VE) have
in verifying that this specific employer
would tolerate this limitation?”
Hold the record open. Investigate VE
statement. If statement inaccurate, submit
letter explaining why.
Electronic Filing (ERE)
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Submit evidence through SSA
website electronically prior to
Administrative Law Judge hearing as
received
Use barcode, 200 pages maximum
Social Security Electronic Records
Express Help Desk: 1-866-691-3091
[email protected]
ERE instructions: www.ssa.gov/ere/
SSDI, Title XVI Insured Status
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Eligible for SSDI if sufficient work
quarters, claimant paid into Social
Security system
Determine date last insured (see
notice of denial at reconsideration)
At ALJ hearing, establish disability
prior to expiration of insured status
Amending the Disability Onset Date
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When proposed by ALJ
Pros and cons
Explaining to claimant
Claimant’s decision
SOAR and Legal Aid Partnerships:
Determining Case Acceptance and Preparing
SOAR Advocates Effective Testimony at the
Hearing Level
Lourdes Flores
Paralegal
Texas RioGrande Legal Aid Association (TRLA)
Austin, TX
Case Acceptance Questions
What I need to know to determine
whether to represent an applicant at an
ALJ Hearing
Case Acceptance Questions
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Is the client currently working?
– This includes illegal activity
– SSR 94-1c Illegal activity as
substantial gainful activity
Case Acceptance Questions
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Are there medical records that would
substantiate a medical impairment?
Is the applicant currently receiving
medical care and from whom?
Case Acceptance Questions
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Is this a physical or mental
impairment or a combination of
both?
Is substance abuse going to be an
issue such as possible DAA (Drug
Addiction and Alcoholism)?
Case Acceptance Questions
What is claimant’s past relevant
work, looking at the past 15 years?
 This includes unsuccessful work
attempts
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Case Acceptance Questions
Have they ever been incarcerated
for more than 6 to 8 months?
 What for and did they receive
medical treatment while in
prison/jail?
 Did they work while in prison/jail?
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Were there any restrictions?
Case Acceptance Questions
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What is the client doing to help
bolster their claim?
– Following prescribed treatment
– Communicating with representative
about any changes in their medical
conditions or treatment
Case Acceptance
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I recommend you meet with your
local Legal Aid Office and see
whether they will represent client at
an ALJ hearing and you can agree to
testify
I am more likely to accept a case if I
have a knowledgeable caseworker
willing to testify at the hearing
Preparing SOAR provider to Testify at
Hearing
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Qualifications
– Education and experience
Where do you work and in what capacity?
Are you a caseworker with a medical
provider or possibly a shelter employee?
What is it you actually do for the client?
– Provide transportation, therapy, living
skills, medication compliance
Possible Witness Pitfalls
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Do not use acronyms that only your
organization uses
The ALJ will not know what they are
If acronyms are in file, explain at
hearing
Witness Preparation
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If you actually write notes, review before the
hearing and look at any comments you have
written which might undercut client’s applications
– Comments such as “he appears stable”, “doing
well” and “showing improvement”
Elaborate on what you meant and in what context
they were written
– Is he doing well because he has someone
monitoring his medication pillbox?
Witness Preparation
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Avoid using phrases such as I help client “link” or
“provide resources” without actually describing
what you do in detail
– You can say “I help client identify unmet needs
such as food stamps and have taken him to the
Texas Health and Human Resources Office and
helped him complete the forms because he
could not understand them
– This is especially critical for individuals with
cognitive impairments
Witness Testimony
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Provide examples of any limitations you have
observed, for example:
– He becomes aggressive around others which can be a
group of 3 people
– He has had several verbal altercations with other clients
– I schedule appointments with him in the late
afternoons
– We agree that once he checks in he can go outside and
pace and/or smoke if he needs to
– We schedule appointments at certain times due to the
side effects of his medications
Witness Testimony
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If you work as a “treatment team”
describe the organization and the
composition of the treatment team
– e.g. psychiatrist, nurse,
caseworker, housing support worker,
probation and parole
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Witness Testimony
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If client is homeless provide a
description of their surroundings
Does the client stay with different
family members?
Does the client live in the woods or in
shelters?
What personal observations about
their living conditions have you seen?
Witness Testimony
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Provide details on possible referrals to other agencies
and why referrals were made
– May be that client was referred to you because he/she required
more intensive services
– May be client has Hepatitis C and due to his depression, client
was referred to your agency to monitor his mental health to
determine whether Hepatitis C treatment can be provided
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Is client having to see psychiatrist or caseworker more
often due to mental illness and severity?
Maybe client’s needs exceed what your agency can
offer so he was referred to another agency for higher
intensity services
Important SSA Rulings, Regulations,
POMS, HALLEX and Case Law
Gai Lorenzen
Managing Attorney
LAW (Legal Action of Wisconsin)
Racine, WI
Administrative Law Judge (ALJ)
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Why didn’t your client get approved?
 Examine the denial explanation
 Issue spot
 Issues that result in ALJ Hearing
 Work or vocational related
 Alcohol or drug related
 Evidentiary
 Lack of evidence
 Evidence but can’t quite connect the dots
 Misc.
Res Judicata
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Administrative Res Judicata-Rule that
prevents the same issue from being raised
over and over and over
– There is a need for finality
– Applies to all stages of process, not just ALJ
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20 CFR 404.957(c)(1) and 416.1457(c)(1)
Ruling: 91-5p
POMS: GN03101.160
HALLEX: I-2-4-40
Res Judicata
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Res Judicata
– Same material facts-no new or material
evidence
– Dismiss claim or deny request to re-open
Not Res Judicata
– Change in issues
– Prior decision was not final
Change in law or policy
Hearing to determine, 4th circuit rule
Resources
United States Code-USC
 Code of Federal Regulations-CFR
 POMS-Program Operations Manual System
https://secure.ssa.gov/poms.nsf/home!readform
 HALLEX-Hearing, Appeals and Litigation Law Manual
http://www.ssa.gov/OP_Home/hallex/hallex.html
 SSR-Social Security Ruling
 AR-Acquiescence Ruling
http://www.ssa.gov/OP_Home/rulings/rulings-idx.html
(through 2007)
http://www.socialsecurity.gov/OP_Home/rulings/rulfind1.ht
ml (SSR 1960-2013, AR 1986-2012)
 Case Law
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Work and Vocational Issues
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Vocational Expert
Dictionary of Occupational Titles (DOT)
Work History
National Economy
Residual Functional Capacity (RFC)
Subjective Symptoms
Onset Date
Mental Abilities
Grids
Alcohol and Drug Use
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Alcohol, drugs and physical
impairment
Alcohol, drugs and mental illness
History of usage
Treatment
Credibility
Miscellaneous
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Evidentiary Issues
Appeals Council
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For More Information on SOAR
Visit the SOAR website: www.prainc.com/soar
SAMHSA SOAR TA Center
Policy Research Associates, Inc.
518-439-7415
[email protected]
www.facebook.com/soarworks
Twitter: @soarworks
Questions and Answers
Facilitated By:
SAMHSA SOAR Technical Assistance Center
Policy Research Associates, Inc.