For Claimants seeking Social Security Disability Benefits for seizures, both epileptic and non-epileptic and for chronic migraine headaches, it is vital that a complete and accurate record be made of the number, date, time and severity of seizures.  The treating medical provider can reflect the history provided by the Claimant, but of course, is not present to witness the seizures as they manifest.  Both the Social Security Administration and particularly Administrative Law Judges, seek evidence that seizures which are debilitating enough in frequency and severity, to preclude employment.

What is the best evidence of seizures?  It is a record made directly by the Claimant in “real time” or as close as possible to “real time,” as the seizures are occurring.  A manual, paper diary of such events is the method utilized by most Claimants to keep an ongoing record of seizures.  However, the Epilepsy Foundation now has a free electronic tool called “My Seizure Diary” that may be useful for Social Security Claimants who experience seizures.  Recording the frequency, severity and triggers of seizures could assist claimants in their conversations with medical providers, their testimony before Administrative Law Judges and in completion of a myriad of Social Security forms.  The diary, which can be used on computers or via iPhone and Android app versions, is available at  Social Security Disability Attorney Randy Zeldin, Esq., recommends and supports the use of the “My Seizure Diary” as an excellent and handy tool for Social Security Claimants to accurately and complete document seizure activity, for purposes of creating admissible evidence before a Social Security Judge.

With a backlog of nearly 1.1 million claimants awaiting hearings before a Social Security Judge, by the end of 2015, and an average wait time to get a hearing of 512 days nationwide, the pressure is on to create new ways to expedite the process.  Recently, the Office of Disability Adjudication and Review has announced such a plan.  It has been named as Compassionate and Responsive Services, which has the goal of reducing processing time to 270 days.  There are many caveat to the plan.  Firstly, the goal is not intended to be met for another four years, until 2020.  Secondly, the plan requires the U.S. Congress to allocate significantly more money to the overall administrative system.  Following are some more detailed aspects of the proposals to speed up processing:

  • Use of data analytics and profiles which would send cases back to the initial State agencies, if there is a high probability of a favorable ruling.
  • Increase use of video hearings and expanded physical locations to hold live hearings.

As of July 2015, the average national waiting time to obtain a hearing before a Social Security Judge (a/k/a Administrative Law Judge) had increased to 511 days.  Unfortunately, the Ft. Lauderdale District, which includes Broward and Palm Beach Counties, has a current waiting time of 19 months, (or 589 days), almost the worst waiting time in the U.S..

The number of pending claims waiting for hearing before a Social Security Judge has also skyrocketed.  As of July 2015, there were 1,056,071 pending cases and the number continues to increase.  Social Security Judges have also disposed of fewer claims per day, now less than two (2).

There is no single reason for the long delays and many factors have contributed to this problem.  These are the major reasons that need to be addressed:

These days, many applicants for Social Security Disability are examined by an appointed Medical Examiner.  Sometimes the opinions rendered are quite helpful in supporting the position of the Claimant.  Other times, the exam conducted by the Medical Examiner is brief and superficial and can entirely miss the core issues.

In addition to Medical Examiners, a Social Security Judge commonly appoints a Consultative Examiner.  This is a physician or psychologist who has never examined the Claimant.  Instead, the Consultative Examiner will review the medical records and will offer an opinion for the Social Security Judge, as to whether the records themselves, support the claim.  At hearing, before a Medical Expert or Consultative Examiner testifies, the Judge must:

  • Ensure that the Medical Expert has examined the entire medical file and other evidence of record

Recent reports by the Social Security Administration Officer of Inspector General, examined decisions issued by Social Security Judges with high dispositions and high allowance rates and also those with low allowance rates. These reports have provided the media and Congress with fuel to distort the numbers into arguments that the Social Security disability programs are out of control.

Typically, the public, media and Congress focus exclusively on the high paying Social Security Judges, which has led to allegations that unwarranted cases are being paid. However, contrary to some assertions, approval rates for disability applications have fallen significantly at every administrative level in recent years.
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A new study by the National Academy of Social Insurance, finds that a majority of Americans polled, favor paying more for Social Security, in order to insure the solvency of the program. The opinions expressed in the survey were equally true of both Democratic and Republican participants. Majorities of those polled, oppose reduction of benefits, as a mechanism of balancing future finances.
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In an effort to streamline and expedite the wait for Social Security Disability hearings, the Social Security Administration has expanded use of remote video hearings before Administrative Law Judges. The result is that a Social Security Disability claimant living in Ft. Lauderdale, may have his or her case heard by an Administrative Law Judge in St. Louis, Missouri or elsewhere. This physical distance from the Administrative Law Judge, could have a profound impact on the outcome of the claimant’s case. Many argue, that without the ability of the Judge to physically observe and asses the claimant, the probability increases that the decision will be unfavorable.

On June 25, 2014, SSA published final rules explaining how a claimant may object to appearing at a hearing via teleconferencing, or to the time and place of a hearing. These rules provide that prior to scheduling a hearing, SSA will notify the claimant that it may schedule the appearance by video teleconferencing. These rules went into effect on September 6, 2014. The claimant will have 30 days after receiving notice of the teleconferencing, to object and request an in-person hearing with a Judge. In the event that the claimant relocates to another State or jurisdiction, prior to the hearing, the Judge will decide how the claimant will appear, including via video conferencing. The Social Security Administration is clearly concerned that claimants report a change in residence, so that the case is assigned to a hearing office with a higher allowance rate. This is often called “venue shopping,” which SSA is trying to quash.
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The 2014 Board of Trustees report for the Social Security and Medicare Trust Funds was released on July 28, 2014. The report concludes that even if no further Congressional action is taken, the combined Social Security Trust Funds will be able to pay 100% of scheduled benefits until 2033! After the year 2033, even without further funding changes, benefits would still be payable at the rate of 77% using incoming payroll tax revenue. However, the Report concluded that the need to remedy the Disability Insurance Trust Fund is more immediate, with depletion of the reserves projected to occur in 2016, the same year as found in the 2013 report.
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After serving as Acting Commissioner since February 2013, Carolyn Colvin was nominated by President Barack Obama to the the Commissioner of Social Security, for a term that ends in early 2019. Ms. Colvin has been the Acting Commissioner since the term of the prior Commissioner, Michael J. Astrue, ended in early 2013. Prior to that, she was the Principal Deputy Commissioner of SSA for two years, having been confirmed by a unanimous vote of the Senate Finance Committee.

Ms. Colvin was hired in 1963 at SSA as a clerk stenographer and has spent her entire career in public service at the local, state and federal government levels. At hearing, Ms. Colvin discussed current anti-fraud efforts underway at SSA, including use of “data analytics” to root out potential fraud.

Randy Zeldin, Esq., is a Social Security Attorney and Lawyer with offices in Ft. Lauderdale, Boca Raton, Boynton Beach and West Palm Beach.

The Social Security Administration Office of Inspector General recently found that the Disability Determination Services did not always develop all available medical evidence before making a disability determination. The report found that although DDS generally followed policy, sometimes evidence at the initial and reconsideration levels was absent either because the Claimant did not provide the information or the medical source did not respond to requests for the medical data. It was found that DDS staff did not always follow the regulations and policies to make every reasonable effort to obtain evidence and document the attempts in the disability folder.

The Inspector General estimated that about 214,500 cases contained medical evidence at the hearing level that DDS staff could have obtained at the initial decision level but did not. Additionally, the Inspector General estimated that about 235,000 claimants reported medical sources when requesting a hearing, but that SSA staff did not obtain the medical evidence for them.
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