Study Reveals Positive Effect of Professional Representation at Social Security Hearings

Social Security HearingsA Government Accountability Office (GAO) study of hearings-level award rates for disability claims revealed that “claimants who had representation at their hearings, were allowed benefits at a rate nearly 3 times higher than those without representatives.” The report also quotes SSA officials stating “that a representative can help the claimant by ensuring that the medical evidence and other records are fully developed and help the claimant present their case at a hearing.” At Bailey & Galyen we have always believed in the value of personal quality representation, but it is useful to have validation from an official source. The report, entitled “Additional Measures and Evaluation Needed to Enhance Accuracy and Consistency of Hearings Decisions,” was released in January 2018. It studied Administrative Law Judge (ALJ) decisions made on Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) claims between Fiscal Years 2007 and 2015, a period where requests for hearings increased, peaked, and then declined. During this period, 77% of claimants at ALJ hearings had attorney representatives and 12% had non-attorney representatives.

During the studied period, the variation in award rates between ALJs shrank slightly, but the overall allowance rates decreased significantly. ALJs who joined the Social Security Administration (SSA) between 1995 and 1999, and were still at the agency between 2007 and 2015, had higher award rates than newer ALJs. Several factors correlated with allowance rate: older claimants were more likely to be awarded benefits than younger adults and having a critical case, a college education, and a claim for SSDI rather than SSI also increased the chance of an award. Hearings that included testimony from a medical expert were more likely than the average claim to result in an award of benefits, while vocational expert testimony decreased the chance of an award.

These numbers further prove that a finding of disability is getting harder to obtain. Now more than ever, it is imperative that you have an experienced, qualified, and hardworking representative on your side when applying for disability. If you are hurt, injured, or otherwise impaired, and unable to work please contact us at Bailey and Galyen for a free case evaluation.


It’s getting harder to get Disability.

Changes to How SSA Examines Mental DisabilitiesIn 2016, for the first time in nearly 30 years, the number of Americans receiving Social Security disability payments declined.

The 8.89 million people receiving SSD in January 2016 marked the first time that the number of people receiving disability decreased year over year since at least 1988, the earliest data available. The trend continued in 2017, as the number of payees fell, slowly but steadily, to 8.79 million in January, which is the lowest number in almost five years.

Fewer claimants are being approved for benefits. In 2002, 44.6 percent of applications were approved. Since 2014, the approval rate has been hovering around 32 percent.

And after March 27, 2017, a treating physician’s opinion won’t mean as much to a claimant’s case either. The Social Security Administration has adopted new rules for agency review of disability claims filed after that date. Notably, the new regulations eliminate the “treating-physician rule,” which requires Social Security adjudicators to give significant weight to the evidence of disability presented by a claimant’s medical treating sources. SSA also will no longer give added weight to disability determinations of other government agencies such as the Department of Veterans Affairs.

These changes do contradict prior District Court rulings which require SSA to give greater weight to treating sources and to find VA unemployability to be the same as SSA disability. Time will tell if these new changes will be upheld by reviewing Courts at the District level, but until then, it will mean even more denials and a much longer appeal process.

It currently takes a year or longer to get to an SSA hearing and a few years longer to get up to a District Court for Appeal. An estimated 1.4 million people are currently waiting for a disability hearing, and the delay from initial denial can be devastating to those with no income and who are unable to work.

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2016 SSA Changes:

Right now it takes a year or more to get your hearing before an Administrative Law Judge. (National time is 505 days, Ft. Worth is currently at 411 and Dallas is at 467). SSA is planning on hiring senior attorneys to review the cases that are awaiting a hearing and allow them to do brief, pre-hearing conferences in order to get the more obvious cases awarded quicker. This helps everyone because if there are less cases waiting on Judges to hear them, the wait time will decrease all across the board.

SSA is working on legislation which will limit gun ownership for some SS Disability beneficiaries. The thought being that if someone is not mentally competent of holding a job, then perhaps they should not own a firearm either.

SSA recognizes same sex marriages. If same sex marriage was legal when and where the marriage occurred, then it is a legal marriage for purposes of receiving benefits from your spouse.

Award rates are down:

Award rates have decreased steadily the past few years. At the hearing level, award rates have decreased 18% since 2008 from 63% to 45% currently in 2015. Award rates at the initial level have also decreased 4% over the same time period to 34% and awards at reconsideration are down 2% to 11% currently. Even the AC approval rate is down to 15%. (it was 25% in 2010).


YouTube Is Helping Attorneys Prove Disability

During a Disability hearing, the burden is on you (and/or your attorney) to prove that you can not perform your past work. Once you have done this, the burden of proof shifts to SSA to show that there are still jobs you can do. Often times, a Judge will request that a Vocational Expert (VE) be present at the hearing to assist them with this step. The VE may use several different sources to testify whether or not there are jobs that you can do with a variety of restrictions given by the Judge, but the primary one that SSA looks to is the Dictionary of Occupational Titles. (DOT) This is outdated and inaccurate, but it is the controlling source.

Some attorney’s have begun using unusual sources in order to discredit the DOT information. One example would be if the VE testified that with being restricted to simple, one or two step instructions, as given by the Judge, you could still perform the work as of a Housekeeper/Cleaner. DOT defines this as
simple work that requires no more than one or two step instructions, so it fits. However, looking on Youtube for Housekeeping – Bed making shows that there are many more than 2 steps just to change the sheets and make up the beds. There are more videos showing that there are no tasks that can be performed while seated, and that there are many more job requirements that require a higher level of
reasoning that the DOT describes.

How the Judges will react to this is still up in the air, but it does offer attorneys a way to challenge VE testimony that, while following the DOT, does not make sense.

Post written by: Jennifer Scherf


SSA Disability for Migraines

In order to be awarded disability benefits, you must show a “medically determinable impairment.” This means medical tests must support your claims.
Occasionally, evidence of migraine headaches can be seen on MRI, but this is the exception rather than the rule. Often times Judges will deny disability claims due to migraines because there is no medical testing supporting your claims. This happens even if you have 3 specialists stating you have severe migraines, and it is within the authority of the Judge, so appeals are often unsuccessful.

A new District Court decision requires Judges to consider migraine headaches under the same criteria as they are required to evaluate non-convulsive epilepsy. (Listing 11.03) This listing requires the ALJ to consider the frequency of migraines, the length of time they last, and any residual effects following migraines.

This is a huge win for individuals suffering from chronic migraines which are preventing them from maintaining employment.


Social Security Facts for Women

If you have worked at least 10 years and/or earned 40 work credits, you are vested in the SS program. That means once you turn 62, you are eligible for your own SS Retirement benefits regardless of your income or marital status.

If you are married and both you and your spouse worked outside the home, you can each draw your own retirement benefits. Your benefit is independent of what your spouse is eligible to receive.

You have an option. You can draw your own retirement benefit, or if ½ of your spouse’s benefit is greater than your own retirement benefit, you can elect to receive that instead. You only get one, but you can select whichever one that is greater.

Divorce doesn’t necessarily mean you lose all rights to your ex-spouse’s retirement benefit. If you were married for at least 10 years and are unmarried when you become eligible, you can still draw off your ex if that amount is greater than your own.

There are widow’s benefits. Widows can receive some or all of the deceased spouse’s benefits if they were entitled to more SS than you are. You can draw a reduced widow’s benefit as early as age 60.

Please visit our website: or contact one of our Bailey & Galyen offices for additional information.


SSI Eligibility and Trusts

SSI is an income based disability program. This is for people who have not worked and/or had reported earnings which would qualify them for SSDI benefits. Because the beneficiaries are drawing out money that they didn’t pay in, SSA has the additional financial need requirement in order to draw this type of disability payment.

What happens is that many people won’t qualify because of their spouse’s income, or because of assets they own. What if you inherit money or property or receive a settlement which would put you over the threshold? You would then lose not only your monthly benefit, but the medicaid that comes with it.

A way to protect your SSI benefits is through the establishment of a trust.  The type and way the trust must be established, as well as who is listed as the trustee is very specifically defined in SSA’s procedural manual.[1] If you find yourself in this position, it is wise to consult with an SS Disability expert before you accept the money in order to protect your benefits.

Please visit our website: or contact one of our Bailey & Galyen offices for additional information.

[1] POMS SI 001120.203


How important is it that I see a doctor while applying for disability?

Extremely important! I often find myself repeating to my clients one of two phrases: “God helps those who help themselves” SSA feels the same way. You cannot refuse to try and get better and expect the government to pay you. The second phrase I catch myself repeating is, “If you could just say it hurts and SSA takes your word for it, everyone would be getting disability. You have to prove yourself through medical evidence.”

  1. SSA does not give PA’s, Chiropractors, or non-specialists as much weight as someone with an MD or DO behind their name. If you have a specific problem, you need to see a doctor who specializes in that area. Seeing your family doctor for depression does not make it appear severe for SSA purposes.
  2. SSA will not require you to have surgery or a dangerous procedure in order to prove you are disabled, but you do need to comply with your doctor’s orders. If your doctor says you need to quit smoking due to your COPD or quit drinking due to your liver failure, you’d better give it your best effort. SSA will pay benefits even if you caused the damage to yourself which now has rendered you disabled, but they will not pay you if you are continuing to engage in the harmful activity.

SSA divides doctors into three categories when considering how much weight to give their opinions.

  • reviewing doctors – these are doctors who work for social security and their sole purpose is to read medical records and make opinions as to whether or not you are disabled under their rules. These doctors never examine you and are supposed to be given the least amount of weight. The problem arises when you don’t have treating doctors of your own and these are the only medically trained eyes looking at your case, then you are at their mercy.
  • Consulting doctors – SSA often sends people applying for disability to an “independent” doctor at their expense. The purpose of these is to get information where there is none, or to get a second opinion. The quality of these doctors varies greatly, as does their actual objectivity. Some are going to be fair and thorough, and others barely look you over and just collect the referral fee from SSA.
  • Most disability attorneys will not refer clients out to a consulting doctor because they are not given as much weight as treating doctors are. However, this has recently been looked at by District Courts, who stated that a consulting doctor paid for by someone other than SSA is entitled to as much weight as the SSA doctors are.
  • Treating doctors – these are the people you see routinely and hopefully, over a long period of time. Their opinions are supposed to be given the most weight because they are (hopefully) experts in their field and are more familiar with your conditions than either of the other two categories of medical experts.

So you can change doctors if you are not happy with yours, but once you find one you like, stick with them. Visit them as often as you can. Make sure they note everything you say and perform as many tests to prove what you are claiming as you can afford. A good treating doctor who gives an opinion about his/her patient’s conditions is often the most helpful piece of evidence you can provide in establishing your disability claim.

Please visit our website: or contact one of our Bailey & Galyen offices for additional information.


When will my benefits begin once I establish that I am disabled?

Just like most areas of law, the answer is that it depends….

Working Women and SSA RetirementFor SSI benefits, (need based) you are eligible to receive payments the first full month following the month you applied.* That means if you apply in January 2015, it does not matter if you prove you became disabled in October 2014 or October 1998, your benefits cannot begin prior to February 2015, the first full month after you filed your application.

SSI comes with Medicaid for free and you are eligible for this from the very moment you qualify for payments.

How much you receive depends upon you and your resources. Because SSI is need based, any income, assets, or financial assistance you receive will decrease your SSI benefit amount. In 2015, the maximum amount of SSI benefits is $733 per month.

For SSDI benefits, the answer is more complex. Your back pay can begin either, (1) 5 months after you stopped working if you file for benefits within a year from when you quit working, or; (2) if you stopped working over a year prior to filing, your SSDI benefits can only go back a year prior to your filing date. So if you file for benefits January 10, 2015 and you last worked August 10, 2014, (less than a year before you file) your benefits would begin February 1, 2015. That is 5 FULL months after you filed. If you file for SSDI benefits on January 10, 2015 and you last worked in 2013, (more than a year before you file), your benefits can go back to February 2014, 12 full months prior to your filing date.*

SSDI comes with Medicare benefits, but eligibility doesn’t begin until 24 months after you became entitled to SSDI payments & it is not free once you become eligible. Using the above scenarios, if you are eligible to receive benefits in August 2014, you become Medicare eligible in August 2016. If you are eligible for benefits in February 2014, you become Medicare eligible in February 2016.

How much you receive depends entirely on your work history. SSDI is, in essence, your full retirement benefit, just paid to you earlier. So they look at your earnings history to determine how much you will receive.

  • There are instances where SSA can re-open prior applications to give you more back benefits, please call our office for additional information about this.

Please visit our website: or contact one of our Bailey & Galyen offices for additional information.


SSDI/SSI Payment Amounts

The amount of your monthly benefit for SSDI is calculated just as your full retirement is. SSA takes 31 years of your highest earnings reported, averages them, and then gives you a percentage of that amount. The percentage changes based on your income level and the year you were born.

The average SSDI payment in 2014 was $1,148. The maximum disability benefit in 2014 was $2,642.

To see your entire covered earnings history, you can check your annual Social Security Statement. Social Security sends out printed statements every five years to those not receiving benefits, and every year to those over 60. You can also check your statement online at

The amount of monthly benefits you receive for SSI is calculated differently. In 2015, SSA is giving a 1.7% cost of living increase, which makes the maximum SSI benefit for an individual $733 per month and $1,100 for a couple. Because SSI is a need based disability program, any benefits you get for free, like rent, will be deducted from your monthly check. So if SSA values the value of the room and board you get for free living with family at $200 per month, they will reduce your payments by $200.

Please visit our website: or contact one of our Bailey & Galyen offices for additional information.


Disability and Student Loans

What happens to your student loan debt if you become unable to work? It depends on both the type of loan you have and what kind of disability benefit you receive.

SSI benefits, which are paid as part of a need based disability program, cannot be garnished to repay student loan debt.

But SSDI benefits can be. In 2013, the number of people under the age of 65, who were having their SSDI Benefits garnished to repay student loans, grew to an all time high of 119,000 individuals.

If you are found, “Totally and Permanently Disabled” certain types of federal student loans can be forgiven. This is not the same as SSA’s definition of disability, but the Department of Education will accept the notice of SSA award as proof if the notice of award indicates that the claim will be reviewed every 5-7 years. The 5-7 year review is what SSA assigns to claims that they deem to be permanent or where no medical improvement is expected to occur.

If your notice of award doesn’t have the review schedule, you can contact SSA and request a printout verifying the continuing disability review schedule.

Please visit our website: or contact one of our Bailey & Galyen offices for additional information.


Who decides what is Disabling?

By Jennifer Scherf-Cook

All the time I hear, “but my doctor says I’m disabled, isn’t that enough?”

The answer is No. SSA is self-governing. This means they get to define what disability means, what the requirements for disability in your case are, and they get to decide if you meet their requirements. Your doctor’sstatement that you are disabled is merely his or her opinion, but there is a very good chance that they didn’t follow SSA’s guidelines when reaching this conclusion, so SSA treats this opinion as one factor when deciding your case and nothing more.

This also means that they get to decide if they followed their own rules when applying the facts of your specific case to their standards. For the most part, this system works, but it means that you have to play by their rules and that you and your representative have to layout the facts in the way that SSA is looking for.

Age, education, work background and other factors all come into play when SSA is deciding whether or not you are, “disabled” as they define that term. The definition is not static, it changes based on the above factors, and no two cases are going to be identical.

When proving disability due to physical limitations, statements regarding your limitations are much more helpful. Having your doctor say you cannot lift more than 10 pounds, or that you have to elevate your legs at least half of the day catty much more weight than a statement that you are, “disabled”. More often than not, you must show you are unable to do any kind of work that exists in the National economy. Not that you could get the job, that it pays what you are used to, that you are interested in that area, or that you have the skills to do it, but that you cannot physically do it on a full-time basis.

When trying to prove disability due to a mental impairment, you must show you have a marked (i.e. severe) impainnent in at least two of the three following areas:

  • concentration / persistence and pace;
  • social functioning;
  • and activities of daily living.

Worker’s compensation impairment ratings are treated the same, they are merely opinions. The one agency that SSA does give a lot of weight to is the VA. If the VA determines that you are disabled under their guidelines, SSA will give this opinion more weight because similar factors are used by the VA.

Knowing this and having a knowledgeable representati ve assisting you can make the difference between receiving disability benefits and wondering why you did not.

Additional information can be found online here


Does your diagnosis have a big impact on whether or not you will be awarded Disability?

By Texas Social Security Disability Attorney, Jennifer Scherf-Cook

Nearly 56% of all cases awarded disability by SSA involve claims of disability as a result of spinal issues. An almost identical number are awarded for claims based on affective or mood disorders.*

68% of awarded cases involve Chronic Pulmonary Insufficiency. 85% of claims related to renal failure are awarded and 57% of chronic liver disease and cirrhosis claims get paid.

On the other side of the range; Cancer claims collectively comprise a much smaller percentage of cases awarded: @ 15%. This is mostly due to the high treatability and remission rate today for most kinds of cancers.

But claims that involve pain or emotional disorders are also much more likely to take longer to award. This is because the complaints are subjective in nature and are harder to evaluate, especially at the lower levels at SSA.

Currently, about 46% of all claims get awarded at the lower levels (i.e. more quickly), but the number of overall awards above is very different that the claims that are getting paid fast. 80% of cases awarded quickly involve cancer or kidney/liver claims. So while these claims aren’t making up the majority of awards, they are the ones that are getting decided and paid most quickly.

Why is that? Because these conditions can be shown through subjective evidence. Labs and biopsies clearly showing the severity of the conditions.

This can help you if you know how to file your claim. If you have several issues that are keeping you from working, focusing on the conditions with subjective data you can get into SSA quickly will help you get a quick award.

* Most disability claims involve disability due to more than one condition which explains the overlap in numbers.

Give us a call at (800) 208-3104 or contact one of our Texas Bailey & Galyen offices for additional information or for a Free Cae Evaluation. There are no fees unless we collect an award on your behalf.

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