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New Tool for Representatives: Circuit Reporter

Karl Osterhout knows how important it is for representatives to stay on top of recent developments and social security court cases and that is why he has added the Circuit Reporter to our website. “Just as a natural course of doing business in district courts all across the country, we need to keep track of case law developments throughout all the federal circuits. It dawned on me one day that since we have all this information that we have to accumulate anyway, it might be worthwhile to folks if we published it. For someone, for instance, practicing in the Second Circuit, it could be very helpful to read through the reported and unreported cases of that court in no more than an hour or so, which might guide a representative out there in developing their case on their client’s behalf,” adds Osterhout.

Example from Fifth Circuit:

Garcia v. Berryhill, 880 F.3d 700 (5th Cir. 2018).

Plaintiff, a Vietnam veteran, applied for social security disability benefits based on hearing loss and PTSD. The ALJ denied Plaintiff’s application, concluding that plaintiff was not disabled and capable of performing his past relevant work. The Appeals Council declined review. Plaintiff appealed under 42 U.S.C. § 405(g), arguing (1) the ALJ impermissibly relied on the VA’s summary of his treating expert’s evaluation, rather than obtaining directly reviewing a copy of the evaluation itself; (2) the ALJ improperly determined that plaintiff’s PTSD was non-severe; and (3) the ALJ was required to and failed to properly consider the VA’s “100% disability rating.”

The court disagreed. The court found that any failure to obtain the actual report was at most harmless and an ALJ’s failure to include certain documentation in the record is ground for reversal only if the applicant can show prejudice. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (requiring applicant to show that omitted material “might have altered the result”). Plaintiff presented “no reason to believe the original report would somehow swing the evidentiary pendulum in his favor.” Second, the court found the ALJ “rigorously considered the four broad functional areas set out in the disability regulation for evaluating the severity of mental disorders.” Finally, the court found “the VA’s determination does not bind the Commissioner; it is merely “evidence . . . that must be considered” and that the ALJ did just that. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). The court affirmed the district court’s judgment.

Click HERE to access the Circuit Reporter. We’ll continue to update this section with relevant decisions that can help you WIN!

OBL on FIRE: OBL Win Results in Over $300,000 to Claimant

This case falls into the “it never hurts to ask” category. But, before you can ask, you really need to dig into a case, and Lindsay was very persistent with SSA about producing files related to applications for benefits the claimant told her he had filed in the distant past. Because she was so persistent and focused in her strategy for the case, she obtained evidence that SSA had actually found our client disabled in the late 90s (he never actually received any benefits because of excess resources). However, the finding of disability was made by SSA prior to our client’s 22nd birthday, a key date to establish that he was entitled to disability benefits based on his parent’s earnings record. Moreover, it had overlooked this fact when it had previously considered our client’s claim for these benefits in an application he filed many years ago.

Thus, Lindsay was able to convince the ALJ not only that our client was disabled on or before his 22nd birthday, but also that the previous application for benefits should be reopened because of the mistake made by SSA in failing to acknowledge and rely upon its own previous finding that he was disabled. As a result, he was awarded benefits based upon the much earlier application date and his past-due benefits are the largest amount OBL has ever obtained (or even heard of). Best wishes to our client, and big-time congratulations to Lindsay!

OBL On Fire: A Month FULL of Wins!

OBL has a strong track record of monthly favorable decisions outnumbering unfavorable decisions.  For 2019 we have been successful at an average rate of over 66%.  June was an especially amazing month of wins with almost 30 decisions being received and over 70% of those decisions being favorable for our clients. As many who are familiar with the Social Security Disability process know, it’s becoming more difficult to be successful in a disability claim over the last several years.  In response, OBL has worked hard to meet those challenges by developing the argument of your case earlier in the process and proactively gathering evidence before a hearing is scheduled.  We additionally obtain and submit necessary post-hearing vocational reports.  Our comprehensive approach of developing cases results in successfully winning your life back.

We Love These Thank You Notes!

We are always happy to receive cards and notes from grateful clients, but last week, we received thank you notes from some very important people! Take a look at some of the lovely handwritten notes participants in the Girls on the Run – Magee Womens Hospital UPMC sent to us to thank us for sponsoring the program.


GOTR empowers young girls in our community and we are happy to support the organization and our future leaders.

This past spring, GOTR-Magee Womens Hospital UPMC was about to host 68 sites in their 8 country region with 12 of them being new! This served a total of 1375 girls. $84,694 was provided in scholarship support to 42% of the participants and athletic apparel were provided to some teams as well. 311 dedicated coaches (including our very own Lindsay Osterhout) led the GOTR teams. We think these achievements are remarkable and we look forward to the fall programming!

To learn about how you can help, click HERE.

Congratulations to the New Class of EDPNAs!

Every year, the Social Security Administration administers a rigorous exam to non-attorney disability representatives who wish to have direct fee withholding like attorneys do. The exam is not for the faint of heart and usually requires months of study. The National Association of Disability Representatives provides a comprehensive exam prep course, but even with that, most of the test questions are designed for individuals that have years of experience in working with disability claims. The exam is only offered once a year, in one location, and is fairly expensive. If the test taker passes, they become an “EDPNA” or Eligible for Direct Pay Non-Attorney.

Scores are currently being released for this year’s exam and Osterhout Berger Disability Law would like to congratulate everyone who passed!  Your competency has been validated and you are ready to represent claimants who need knowledgeable representation.

Unfortunately, sometimes that just isn’t enough. You will have cases that get denied by an Administrative Law Judge when they should have been approved. When that happens, do not hesitate to contact us. We can provide a quick review and let you know whether we feel the case should be appealed. If we do, we can even write the Appeals Council brief for you. Some representatives may feel embarrassed about losing at hearing. Don’t let that be a reason not to consult with us. Representation is a learning process and Karl Osterhout is passionate about helping administrative representatives learn how to continue to improve, without shame or condemnation.

If you recently passed this exam, Karl wants to know! Email him at Karl@MyDisabilityAttorney.com. Use OBL as a resource so that you can continue to sharpen your skills as a representative, which ultimately is better for your clients. We hope to see you around!

Appealing a Disability Claim in Pennsylvania Recently Became More Complicated. What You Need to Know About Reconsideration.

There are four stages in the administrative disability review process: initial application, reconsideration, ALJ (administrative law judge) hearing, Appeals Council review. Until recently, Pennsylvania was a part of a ten-state program initiated in 1997 that allowed claimants to bypass the second stage, reconsideration. Last summer, SSA announced plans to reinstate the reconsideration process in these ten prototype states citing a 2001 detailed study of the prototype program as well as a need for uniformity amongst all states. The announcement to end the prototype program drew sharp criticism from legislators and advocacy groups. Our own Senator Bob Casey called the reversal an “attack on individuals with disabilities” saying the extra step will make “obtaining disability benefits more complicated and more frustrating for Pennsylvanians.”  Despite the public outcry, reconsideration has now been reinstated in Pennsylvania as of April 20th. Before this reinstatement, if a claimant filed a disability application and was denied by the state agency, the next step was to appeal the determination and wait for a hearing before an administrative law judge (ALJ). But now, if an application is denied an appeal will send it right back to the state agency to be reviewed a second time by a different specialist. Unfortunately, national studies show that only 13% of the cases are approved at this level. If it is denied again, then an appeal will be a request for hearing before the ALJ.

This FY 2018 SSA “waterfall chart” shows how many claims are allowed and denied at each of the four administrative stages.

Despite our dissatisfaction with the decision to end the prototype program, OBL is committed to giving our clients the best chance of success at the initial and reconsideration stages. If your initial application is denied, we will take quick action to review the determination and appeal the decision. Before we appeal at the reconsideration level, we will ask the following questions:

  • Are there any new treatment dates or new providers?
  • Have there been any changes in your condition(s)?
  • Have you attempted to work?

We understand what evidence the decision makers need in order to approve the case, and we assist our claimants in providing the information necessary to make the claim as complete as possible. By working with our team and responding with the updated information quickly, we are able to submit a strategic appeal at this stage.

If you have been denied disability benefits, we would like to speak with you about your claim. Your appeal deadline may be approaching, so please call immediately! 1-866-438-8773

Beware: SSA Phone Scam

There is a phone scam that has been going around for a few years but seems to be happening more and more. In fact, it just happened to OBL Partner Lindsay Osterhout the other day! Lindsay said the call says it’s from “United States” and tells you to “press one” and then has an automated message that says “This call is from the Department of Social Security Administration.  The reason you have received this phone call from our department is to inform you that we just suspended your SSN because we found some suspicious activity.  If you want to know about this case, press one”. Once you press one, they will likely ask for your social security number. Other calls may say they are calling from the “Inspector General” or they are calling from the Social Security Office and may threaten to suspend benefits if payment is not received. Most, if not all, of the scam calls are automated.

The Social Security Administration has released several warnings to the public about these calls and instructs citizens to stay vigilant. How do you know whether the call is really from SSA or not? SSA will never do any of the following:

  • Call you to demand an immediate payment;
  • Demand that you pay a debt without the ability to appeal the amount you owe;
  • Require a specific means of payment, such as requiring you to pay with a prepaid debit card;
  • Ask you for your personal information or credit or debit card numbers over the phone; or
  • Threaten you with arrest or deportation.

SSA instructs citizens who receive a suspicious call to hang up immediately and to report Social Security impersonations to the Office of Inspector General at https://oig.ssa.gov/report.