For over six years I worked as an attorney in the Boston office of the Social Security Administration's Office of Hearings and Appeals, now known as the Office of Disability Adjudication and Review (ODAR).

I tired to understand why some cases were allowed and others denied. Many, but not all, of the cases that were allowed, demonstrated severe medical problems and fit the criteria of the Social Security Act and regulations. In some cases I had to assume that the outcome was influenced by the hearing (at which I was not present). Some cases that were denied lacked sufficient evidence of severe medical problems or despite severe medical problems were not allowed on "vocational" grounds.

Sadly, others that were not allowed showed that they also involved severe medical problems and were within the criteria of the Social Security Act and regulations. Most people involved with disability would agree that the claimants, who have a responsibility to provide medical records, have difficulty assembling a good medical file. Consistent with that reality, the regulations also require that the state disability determination agency and Social Security "develop" the medical evidence. Some of the denied cases should have had their medical evidence "developed" by the state disability determination agency or by Social Security or by private attorneys or non-attorney representatives. To use the trite expression, in a perfect world, the medical evidence would have been fully developed, but this is not a perfect world. 20 CFR 404.1512(d), 1614, 1740; 416.912(d), 1014, 1540.

An application for Social Security Disability or Supplemental Security Income Disability is, officially, a non-adversarial process. 20 CFR 404.900.

A claimant is not required to have an attorney or a non-attorney representative, but is allowed to be represented. 20 CFR 404.1700; 416.1500.

My advice (self-serving as it may seem) is that a claimant should have a representative unless he or she meets a listing (see 20 CFR 404, subpart P, Appendix 1) and has unquestionable medical evidence. For those few claimants who might have the medical evidence to clearly satisfy a listing, I would suggest that they also need to be able to read the code of federal regulations (CFR) and the Social Security Rulings.

My "secrets" for how to win a Social Security Disability case or a Supplemental Security Income disability case at the hearing level are:

(1) You have to have the medical evidence,

(2) You have to make a good presentation at the hearing (if there is a hearing) and

(3) You have to submit a memorandum that covers all the steps of the sequential evaluation process (five for adults; three for children) (20 CFR 404.1520;416.920).

This is a prescription not a guarantee. Once the medical evidence has been gathered and the memorandum written, a request for an immediate favorable decision, "on the record," should be made. However, in the event that you are not granted a favorable decision on the record, and after a hearing, still have an unfavorable result, you will have with the medical evidence and the memorandum, the basis for a potentially successful appeal to the Appeals Council or Review Board or United States District Court. (Memorandums are not presently required by ODAR.)

At the hearing level, because of the immense backlog of Social Security disability and Supplemental Security Income disability cases, the reduction in staff and budget and the Social Security agency's obsession with numbers, preparing a case as suggested above would provide the likelihood of a successful outcome. In many cases that I worked on as an attorney in ODAR, the claimant was represented but no memorandums were submitted. The Social Security agency is eager to show increased numbers of dispositions, and with proper preparation, that disposition can be a favorable decision.

Copyright © Patricia A. Petow, 2008.

Patricia A. Petow, Esq. concentrates her practice in Waltham, Massachusetts, in Social Security and Supplemental Security Income (SSI) Disability.

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