Social Security Lawyers are complaining about how conservative the judges have become. Yes, it’s true the reversal rates have gone down, the judges are paying fewer cases and the fees have gotten smaller.
Times have changed. Instead of just handling every case the way you used to do it, lawyers need to figure out ways to keep up with the times. Your clients deserve your creativity. Figuring out how to win cases is an ongoing adjustment process. Most judges will pay the claims if you push the right button. It is up to you to figure out where that button is and how to push it.
As a lawyer, it’s easy to tell a potential client their case can’t be won. If you want to beat the statistics, you need to become a great lawyer. That means figuring out how to win more cases. Here’s how:
What Wins a Case?: A Judge by Judge Analysis
The first thing to do is take all of the claims you have won with a conservative judge and put them together. Conduct a serious analysis of those cases. What is the common thread in those claims that runs through each case?
For example, one of my clients found that with one particularly conservative judge, the credibility of the client made all the difference. In each case, when the physician of record specifically stated that the patient was credible, the judge paid the claim. That made it easy. From then on, the attorney asked each physician for a comment on the patient’s credibility. My client’s win rate with that judge, who was paying about 20%, skyrocketted to almost 80%.
In another recent situation, the attorney found that the conservative judge ruled in favor of the claimant only when ALL lab work was included. In fact, when all lab work was included, the judge paid EVERY case. If labs were missing, however, the judge assumed that the lawyer was hiding evidence and denied the claim regardless of the other evidence.
Don’t try to make sense of this reasoning. Rather, look for patterns that emerge for each judge that your firm is having trouble with and simply give them what they need to rule in favor of your clients. It is just figuring out what it takes to get a judge to pay the claim.
Sometimes, it’s not so cut and dry. Often mere persistence is the best option. Let the judge know you mean business. You might just have to wear the bad judge down. Go into the hearing room and make up your mind that you will not leave until the judge pays the case. If it is a video hearing ask for three hours. If pain is involved, ask the client about the end joint of their little finger, then the middle joint, then the proximal joint, then move to the ring finger. Tears help as you are working through the pain. Bring in the neighbors to explain how the claimant used to cut her lawn. Now when she tries she ends up in bed for three days and the witness has to cook her meals. Punish the bad judge with lay testimony until you obtain a judicial surrender.
One of my favorite things to do with the bad judge is to tell the claimant in the waiting room that the judge will be offended if they don’t shake hands when they are introduced. Then, when you walk into the hearing room say to your client, “Mr. Smith, this is Judge Jones, Judge Jones this is my client, Mr. Smith” and hold in your smile as the client walks up with their arm out to shake hands. If your client did heavy work and now has soft hands comment on it during the hearing and make sure you say, “Your honor, you probably noticed when you shook hands with the claimant how soft his hands have become.”
Writing a Winning Brief in the Era of the Conservative Judge
Most claims are turned down for the identical reasons they were denied previously. Make it harder on the judge to deny a case on the same grounds by specifically addressing that faulty reasoning. Give them a short (two page maximum) memo on your case. List every diagnosis, past relevant work with DOT codes, all restrictions (not just from RFC but also from office records), non exertional restrictions and a heading that says “Problems with the Case”.
Use bullets to list the problems with the previous decision. This should include the reasons the case was denied and any other problems (i.e. Younger individual, no severe impairment, etc.). After each bulleted “problem,” list the evidence in the file to rebut that problem. You have now made it difficult for the judge to deny for the same reasons the case was previously denied.
Next give one paragraph explaining why the case should be paid. Make your brief be brief. Use bullets. Judges won’t read long paragraphs. They do not need the medical re-written for them. Bullets work.
Real World Praise for this Strategy:
“I just wanted to thank you for sending us your brief/OTR template. We have been using your format along with a bullet point summary of selected medical records, instead of the long paragraph format that my father was using before. We are averaging 12 hearings per month cancelled and paid since we implemented your system. A chief judge called and told me this is the easiest memo he has ever read. He appreciates a nice concise simple way to tell him why the cases should be paid. The judges in his office are all talking about our new format. We used to get maybe one case every four months paid without a hearing. This is great. Our hearing rate has gotten back to where it used to be. We are about to begin using your other memo for initial apps and recons.”
“Your OTR format is incredible. I didn’t believe you but my staff is able to write them and cases are actually being paid without hearings being held. Some of our hearings since we started using it are taking 5 minutes and the judges have said they didn’t read my memo until right before the hearing. Some are getting cancelled. The judges have complimented me on the new format. I didn’t believe it could be done but we are almost at our old win rate.”
For questions about this method or for a sample template:
Jim Brown can be reached at Jim@AttorneyConsultant.com.