If you had to pick the top 10 careers I am NOT suited for, “attorney” would be on the list (along with “nightclub bouncer” and “large insect handler”). I am introverted, avoid arguments whenever possible, and have “glibness deficits”. Yet on the day of Nathan’s hearing, my task was to fill the role an attorney would normally take. Why? As described in Part 5, the attorneys I had contacted did not think the case was winnable, and so they had not taken it. But in order to get (a) financial help, and (b) official recognition that Nathan had a disability and should qualify for appropriate assistance programs, I’d go where lawyers, in their well-polished shoes, feared to tread.
We arrived at the Social Security building early, and promptly went in the wrong door. Nathan and I spent a few minutes sitting in the waiting room for people with routine Social Security questions before I figured out there must be another place to go for ODAR. Not to be confused with alien space creatures who might bear the same name, ODAR, you’ll recall from Part 5, is the Office of Disability Adjudication and Review. It functions separately from the regular Social Security offices.
We found the appropriate door and went up the stairs and through security screening (similar to entering a courthouse) to enter the correct waiting room. I checked in with a clerk who gave me a CD with the contents of SSA’s file regarding Nathan’s claim. This is standard procedure. If I’d had a laptop and more time, I could have reviewed their documentation before the hearing.
A little after the appointed time, we were shown into the hearing room. Besides “Judge R”, who wore a robe and sat behind a desk on a platform, there was a medical expert (Dr. M) who sat facing us on our left and a vocational expert (Mr. S) to our right. Seats were assigned so that Nathan sat to the left of me as we faced the judge. We had microphones in front of us, since the proceedings were being recorded.
A court reporter swore us in. Judge R commented on how unusual it was for the claimant’s mother to be serving as the claimant’s representative. He gave a few instructions before the proceedings started. For one thing, I was not to offer testimony from the perspective of being Nathan’s mother, but only could speak in the role as his representative.
Judge R started by asking Nathan a few questions about his philosophy and his goals in life. Nathan was mildly grumpy about having been dragged to this boring thing he didn’t care about. Sometimes when he has that attitude he’ll give short answers, or won’t talk at all. I was glad that on this day, he answered the judge’s questions frankly. Judge R seemed genuinely interested, at one point leaning his chin on his hand and telling Nathan that he should write a book about his world view: “I think a lot of people would want to read what you have to say.”
The judge then let Dr. M ask questions. Because Nathan was seated closer to Dr. M than I was, Nathan couldn’t see my reactions as we looked left toward the medical expert.
Dr. M started off by saying, in a loud voice, something like this: “I would like to know, WHAT kind of a game do you think you’re playing? Do you expect anyone to believe that an intelligent, able-bodied young man like yourself is not capable of holding a JOB?”
My head went back, my mouth opened, my cheeks flushed. It was over. Dr. M was voicing all the skepticism I had feared would be the official position. I thought, this is why the attorneys had stayed away. They’d known.
“I’ll bet you don’t even want to receive benefits,” Dr. M went on.
Startled, Nathan said, “No, not really.”
“Then what’s stopping you, young man, from turning to the judge right now and saying we should end this proceeding – that it’s a waste of everyone’s time?”
“Really? I can do that?” Nathan asked.
Disaster. Mayday, Mayday! At this point I stopped looking at the ceiling and gave Dr. M a look – the one that means “Seriously?!?”
Nathan fidgeted as he decided whether to tell the judge to forget it, knowing I’d be plenty irritated (to put it mildly!) if he did.
Dr. M met my gaze. He raised his eyebrows and lowered his head a little, sending me the message, “Wait, and watch.” I took a deep breath and fiddled with the documents I had thought could prove our case. But if Nathan says he doesn’t want the benefits, what did it matter that he met the criteria for being disabled? The government wouldn’t force him to take the money, right?
Nathan started to speak but Dr. M talked over him, drowning out whatever Nathan might have been trying to say to the judge. Dr. M grilled Nathan a little more on his philosophy, asking if he’d ever heard of Jean-Paul Sartre (Nietzsche is a closer match to Nathan’s views, but whatever). After Dr. M talked a few more minutes, Judge R said something like, “Are you ready to give your findings?”
Dr. M said yes, and then started talking very fast, almost like the disclaimers you hear at the end of car commercials. He rattled on about “under Part A” and “Listing 12-point-[something].” Trying to keep up with what he was saying, I rustled through the pages I’d printed out from the Internet about SSA’s criteria. It wasn’t helping.
At one point Mr. S, who hadn’t spoken the whole time, leaned toward me. He whispered five words: “That means you got it.”
I looked up at Mr. S in disbelief. He smiled kindly. Judge R was smiling a little too. If this had been a movie, that’s when the music would have swelled.
Apparently, somewhere in Dr. M’s onrush of words had been the conclusion that he’d found Nathan to be disabled, and once he’d said it, there was no need for further discussion.
Dr. M came to the end of his pronouncement. Now it was the judge’s turn to talk quickly. I remember hearing the phrase “up for review in 18 months”, and the recommendation that we pursue “aggressive psychotherapy” for Nathan.
Then the men stood up and wished us well as I thanked them all. Nothing in my life has ever equaled the compassion I felt coming from those three gentlemen as we said good-bye.
Numbly, I exited the room with Nathan. We got it?! What a rollercoaster! And I hadn’t even needed to be lawyer-like after all! We got it…
Had the decision been made before we entered the room? Had Dr. M just been putting on a show, with all of his challenging statements? But why?
Nathan and I went down the stairwell. “So Mom, I guess we didn’t get it, huh?” he said in the tone of, see, I knew this was a dumb idea.
He hadn’t grasped what had happened. As casually as possible for a person ready to crumple with relief and gratitude, I told him, “You know, actually, we did.”
When you get the letter stating that your request for reconsideration was denied, you also get a form to request an appeal before an Administrative Law Judge. The request must be filed within 60 days. I quickly sent the request, and then started looking into attorneys.
There are a number of attorneys who specialize in SSI and SSDI appeals. You may have seen some of their ads on TV, on billboards at bus stops, on the covers of phone books, etc. I picked three in our area, looked at their websites, and contacted their offices by phone.
Here’s the good news/bad news about hiring an attorney. Good news: if they don’t win the case, you don’t have to pay them.
What’s the bad news? It isn’t the fact that you have to pay the attorney if s/he wins; that only seems fair! Here’s how it works: If the attorney wins the appeal, not only will the monthly payments for the claimant start coming, but the SSA will send backpay that covers the amount the claimant should have been receiving, from the date of the initial application onward. This is typically thousands of dollars. The attorney will get 25% of that. Usually the SSA routes the 25% directly to the attorney, and the claimant receives the balance of the backpay.
No, the bad news is that the attorney won’t take the case if s/he doesn’t think it is winnable. And that’s what we ran into.
Of the three attorneys I contacted that spring, I spoke to one directly on the phone. He was very patient in explaining what we would have to prove in order to win the case (which was pretty much the Residual Functional Capacity stuff I wrote about in Part 2). At the time, because Nathan was living independently, had graduated high school, and had never been hospitalized or arrested, it didn’t seem like he met SSA’s criteria for being mentally disabled. The attorney said if anything changed for the worse, I could call him back and he’d look at the case again.
For the second law office, Nathan and I were given a face-to-face appointment with a paralegal. Here, I could show her our best supporting documents. And she said, I’m sorry, but this isn’t strong enough. But if anything changed for the worse, we could give them a call.
For the third law office I called, I was transferred to a paralegal. She also said the case was too weak. A couple of additional things I learned from her: because the system was so backlogged, the hearing wasn’t likely to happen for at least a year. And, any attorney would probably want to start preparing the case about six months before the hearing was likely to occur. Their office would need time to request paperwork from the mental health care providers who hadn’t come through yet (like Nathan’s psychiatrist Dr. W, mentioned in Part 4). This meant, if I were going to hire an attorney, I’d have about another 3 to 4 months to find one.
I found myself wondering if we should be “rooting” for Nathan to have a bad episode in the next four months so that an attorney would take the case! In trying to support him to be as functional as possible, had we positioned him in this neverland between “clearly disabled” and “OK”, where no assistance was available? Should we stop paying for his apartment, to render him homeless?
Then a couple of big distractions came up in my life: for the first time in years I was given a project to manage at work, and my husband and I decided to move (the first time in 20+ years) to the town we work in. The move proceeded very quickly, leaving little time for focusing on anything else.
In early October we had been in our new house for only a couple of weeks when a letter from the SSA Office of Disability Adjudication and Review (ODAR) arrived. Surprise! The hearing was scheduled for the afternoon of November 2. No time to hire an attorney, and I had less than a month to prepare. (The elapsed time between filing the appeal and getting the hearing was 9 months, not “at least a year.” This was one time I was sorry the federal government was more efficient than I had expected!)
The letter stated I could fax or mail additional supporting evidence to ODAR. When I called for clarification, they told me it was best if the judge received the new evidence at least a week in advance of the hearing, but it could be submitted the day before if necessary. I could also request a CD of all the documentation the SSA had collected: what I had supplied, and what they had gotten from (some of) Nathan’s mental health care providers. I requested the CD, and it came pretty quickly.
Was there anything else I could do (besides panic)? I faxed a few extra pieces of documentation to ODAR. And amidst the unpacked boxes at home, I snatched moments here and there to review what I’d learned in the spring and to look at additional websites. That’s when the whole “residual functional capacity” thing popped into better focus for me. I downloaded an RFC form and faxed it to Dr. W on the 19th, pleading for him to complete it within ten days. I also gave the form to our family counselor, who had been seeing Nathan weekly since the beginning of the year. She had told me the judge usually doesn’t put much weight on the opinion of non-psychiatrists or non–psychologists, but I figured there was nothing to lose by getting her input.
Ten days passed, and I hadn’t received the form back from Dr. W. His office staff had no record of it. I faxed it again with another pleading note. Meanwhile, our family counselor had started on her form, and promised to complete it in time.
On Halloween weekend, Dr. W finally faxed me the completed form. He even faxed me corrected pages after I’d found some blanks and some contradictory answers. Better late than never…. I studied his answers against SSA’s criteria (Parts A, B, and C) for psychiatric disability.
It looked to me like Nathan would qualify! On a piece of paper to take to the hearing I outlined my understanding of how Nathan met the criteria.
A night or two before the hearing I looked online one more time, and something else that I’d seen before popped out at me: Global Assessment of Functioning. (We will now pause while everyone reading this comes up with scores for themselves, relatives, and acquaintances. I’ve wondered if some mental health care providers go around thinking about GAF scores for random people they meet: “Whoa! She’s definitely in the 60s!” Dr. W once told me that no one gets 100, except maybe people like Mother Teresa.)
Ready to keep reading? OK, so GAF scores had appeared in five evaluations done on Nathan over the years. As you’ll notice in the “criteria” hyperlink above (to the Serrano Lawyers website), to qualify, a claimant’s GAF scores “usually have to remain in the range of 50 or below despite treatment.” A claimant with GAF scores in the 50s may qualify if certain other conditions occur.
Nathan’s five GAF scores had ranged from 30 to 58, with 58 being the only one over 50. Another piece of evidence in our favor! I added it to the piece of paper to take to the hearing. (Why hadn’t the attorneys asked me about this?)
Finally, our family counselor handed me her RFC form the evening before the hearing. It supported what Dr. W had said, and then some. She also had prepared a two-page letter about Nathan’s frame of mind. It was (and is) depressing to read, but I was glad to receive another compelling piece of evidence. I faxed this paperwork to ODAR the morning of the hearing, calling first to make sure the judge’s office knew it was coming.
Needless to say, my GAF score that morning was probably in the neighborhood of 75 – 85. Difficulty concentrating? Check. Mild anxiety? Check.
Then at last, it was time for the hearing.
It’s been months since I last blogged about applying for SSI. Not the most gripping subject matter, but if the young person is unlikely to be able to support himself or herself due to mental health challenges, it is really, really important subject matter. So from here on I’ll try not to drag this topic out quite so much, especially because there are other financial topics to address once we’ve gotten through this.
Request for reconsideration is what you do if your initial SSI application is denied. You may recall from previous posts that people who are young are more likely to be denied benefits, as are people with mental (as opposed to physical) challenges. Since we are talking about young people with mental health challenges, being denied is a very good possibility.
You have 60 days after receiving word of the application’s denial to file for reconsideration. During reconsideration, a different claims examiner reviews your initial application, plus any new supporting evidence you or other people can provide.
I like how the following link explains the realities of this phase of the application process: appealing an SSI benefits denial.
You’ll need to know what the Social Security Administration wants you to do to request reconsideration, so here’s the link for that: http://www.ssa.gov/online/ssa-561.html. This information will also be in the letter you receive from SSA.
As you can see, there are a few more lovely forms to fill out. Mainly, the forms ask you to state why you disagree with the decision, and they want updates to the claimant’s condition since the initial application: doctor’s visits, hospitalizations, new medications, etc. You of course would want to document things that indicate the claimant has gotten worse or at least has not improved.
In Nathan’s case, I was tweaked because the initial application was denied before SSA had heard from his current psychiatrist (whom we’ll call “Dr. W”). Before submitting the request for reconsideration forms, I called SSA and pointed this out. The person I spoke to said I could state on the reconsideration forms that I didn’t want a decision to be made without the input of Dr. W. All right, so this time we’d have a better shot at being approved, right?
I’ll bet you saw this coming: a little over two months after filing the reconsideration paperwork, we received a letter from SSA saying that the first decision was correct, and Nathan still was not eligible for SSI. The letter listed supporting evidence they had received in the interim. Was Dr. W on that list? No he was not. My statement about needing Dr. W’s input had been ignored, or it was trumped by SSA’s determination to move things along. I hadn’t been informed of the timeline for making the reconsideration decision, nor was I informed that Dr. W still hadn’t supplied any input. I probably should have called SSA to find out after about a month had passed.
But it didn’t really matter too much, since very few requests for reconsideration end up with a reversal of the initial decision. It was time to advance to the next step: I had 60 days to request a hearing before an Administrative Law Judge. What happened with that hearing will be the subject for one or more future blog posts.