Guerrilla Advocacy '" Using the Tools SSA Provides to Obtain Disability Benefits

The importance of eligibility for Social Security disability benefits for each claimant is paramount. It means the difference between living with a roof over the claimant's head or homelessness in many cases. It is this critical situation that requires an aggressive approach to advocacy in order to assure that the claimant receives a favorable decision.

There are certain provisions of the Social Security rules and regulations that are useful in assuring a fair decision. The following will describe some of the best approaches to advocating eligibility for benefits whether by the claimant or authorized representative.

Making sure the medical documentation accurately reflects the disabling limitations is of the utmost importance. The most accurate information should come from the treating physician. Unfortunately, in many cases delays or inaction by the treating physician results in the scheduling of an examination by a doctor arranged by the disability adjudicator assigned to the claim. These one-time examinations are often brief and unrevealing of the extent of disability because of the nature of many disabilities.

The inclusion of a report that fails to provide an accurate assessment of the claimant's disability can spell disaster for the case. The short duration of the examination and the examining doctors' lack of the historical perspective of the treating physician, can lead to limited findings in the report. This situation should be avoided at all costs.

The disability adjudicator assigned to the claim is not supposed to schedule consultative examinations unless the treating physician fails to provide the required documentation. If the adjudicator is unsuccessful in obtaining records from the treating source, an examination may be scheduled. Refusing to attend a scheduled examination can result in a denial of benefits. The best way to avoid this situation is to make sure that the treating physician provides complete and accurate records.

If a consultative examination is scheduled there are ways to avoid the pitfalls mentioned above. The adjudicator can be contacted in order to ascertain exactly what information is lacking from the treating doctor. Once that is determined, the information can be obtained from the treating source. The adjudicator can then cancel the examination.

The basis of a disability determination is referred to as a "residual functional capacity assessment" (RFC). Although SSA reserves these assessments to the doctor assigned to review the medical evidence at the Disability Determination Service (or the judge at the hearing level), obtaining this information from the treating physician is extremely important. Every effort should be made to have the treating physician complete an RFC form that indicates the inability to perform full-time work.

In a worst case scenario, the claimant has attended a consultative exam and it results in a negative report. At the hearing level, the claimant is entitled to request subpoena of the doctor who provided the negative report. This provides an opportunity for the claimant or advocate to cross-examine that doctor. If the doctor fails to appear, the judge is required to exclude that report from the record.

The best way to assure a fair decision is to arrange for the treating physician to attend the hearing. This can be accomplished by providing the hearing time and date to the doctor. The hearings are relatively informal. The doctor will be accommodated by most judges to make sure the testimony is taken on time. The doctor can be assured that it may only take an hour or less. As long as the doctor brings the progress notes and is willing to testify that the claimant cannot perform full-time work, a favorable decision is likely.

Establishing eligibility for benefits is crucial to most claimants. The claimant and the claimant's advocate must be willing to be proactive in the approach to the case.