OCT-04-05  10:19AM  FROM-Dennis Mahr

    712-233-1625

    T-524 P 002/004  F-585

**DENNIS J. MAHR**

**LICENSED IN IOWA AND NEBRASKA**

**[law ]{.smallcaps}*[offices ]{.smallcaps}*[of ]{.smallcaps}[dennis
]{.smallcaps}J. [mahr]{.smallcaps}**

334 COMMERCE BUILDING. BOX B-8 520 NEBRASKA STREET

**SIOUX [city, iowa 5]{.smallcaps}11O1-1316**

**TELEPHONE 712-233-1623 mahrlaw@cableone.net**

FAX: 712-233-1625

October 3, 2005 Sent Via Fax: (410) 966-2830

Commissioner of Social Security

P.O. Box 17703

Baltimore, MD 21235-6401

RE: Comments On Proposed Changes To 20 CFR 404-05, 416 And 422 Dear
Commissioner:

I have worked on hundreds of social security disability cases over the
last 20 plus years. One thing that I have seen in those cases is the
failure of DDS/SSA to obtain all medical and vocational records relevant
to most claimants\' restrictions. I have reviewed the proposed changes
in 20 CFR pans 404-405, 416 and 422. One of the greatest problems I see
with these proposals is SSA\'s attempts to even further cut down on when
and how new evidence is submitted.

In my case [of Margaret Frazier v. Barnhart.]{.underline} 2002 WL
1774235 (N.D- Iowa 2002), the primary issues evolved around the failure
of the ALJ to obtain her MRI that she was going to have within a few
days after the hearing. Of course, that subsequent MRI confirmed that
she had a herniated low back disk. 1 was able to obtain that MRI and I
submitted it to the Appeals Council, but 1 was not able to obtain most
of her medical records prior to the Appeals Council\'s Unfavorable
Decision. Fortunately, the case was remanded by the federal judge for a
new trial. At that time I was able to actually get her family doctor to
appear live to emphasize her qualifications for social security
disability benefits. I was also then able to submit all of her prior
medical records.

The Decision Review Board procedure in this proposed rule seems to be a
poor cure for cases such as Margaret\'s. One striking thing about her
case is that her trial took less than 30 minutes, because she was
unrepresented by an attorney and because the ALJ failed to ask key
questions about her prior medical treatment and restrictions. The
proposed rules would seem to eliminate the ability for someone such as
Margaret to hire an attorney after a hearing and for that attorney to
then submit hundreds of pages of records relevant to such a disability
claim. In fact, these rules give full discretion to an ALJ to deny the
request to keep the record open. The new rules, instead, should give the
claimant 60 days 10 appeal from an ALJ unfavorable decision. After the
appeal is submitted, the claimant should be able to obtain an additional
60 to 90 days to submit records that were rot submitted at the time of
the initial hearing, especially if the claimant

OCT-04-05 10:19AM FROM-Dennis Mahr 712-233-1625 T-524 P 003/004 F-585

was not represented at the initial hearing.

The source of many of these sorts of problems arises from a failure of
DDS and SSA to gather all medical and vocational records prior to
hearings. In particular, while I gather an individual\'s vocational
records back to kindergarten in nearly every case, this is rarely done
by DDS/SSA. In adult cases where they are trying to prove a 15 point
drop in I.Q. there sometimes an effort to obtain some school records,
special education records or other prior testings of intelligence that
occurred well before the alleged onset date, otherwise such efforts are
never made. I am sure that a majority of the claimants that I have
represented in my career have Jess than a high school degree.
Furthermore, many of those who do have a high school degree rank in the
bottom of their classes and were pushed through school in the days
before special education became nearly mandatory. Since the SSA system,
especially including the GRIDS, often hinges upon preexisting work
skills, education levels and I.Q.s, I have always found it curious that
absolutely no attempt was made by SSA 10 obtain school records in over
90% of the hundreds of cases I have worked on. I cannot tell you how
many individuals I have had who had graduated from high school, but who,
in actuality, function in one or more academic areas at below the 8th
grade level. Obviously those individuals are hard to train and retrain,
with them commonly learning new positions through on-the-job training,
rather than through any academic settings.

I am also frequently asked to get involved in these cases less than 30
days prior to a scheduled hearing usually when the Notice Of Hearing
goes out. One of the two hospitals here in Sioux City, St. Luke\'s,
routinely takes 60 to 90 days to crank out a single page of medical
records. Mercy Medical Center, a block away from my office, requires
prepayments and then routinely takes 45 to 60 days to crank out records.
I must therefore either request that those hearings be continued or, if
the hearings must go on as scheduled, I must then ask that the judges
give me 60 days thereafter to submit records from all potential medical
sources. The proposed rules indicate that evidence needs to be submitted
20 days before hearings, which would coincide with the Notices Of
Hearing going out. Obviously that is not possible in the frequent cases
where claimants try to hire me at the last minute. Consequently, I do
not believe that the proposed rules are flexible enough to handle the
reality of claimants who get nervous before the hearing and realize that
they need a lawyer. Interestingly, none of them have ever known that
their odds of winning without a lawyer are generally in the 30% range.

Another problem with the information gathering system at DDS/SSA is that
they do not seek records more than 1 to 2 years prior to onset. This can
be particularly important in cases in which individuals have MS,
seizures, mental problems, etc. I, on the other hand, generally go back
and seek everything but birth records or child birth records from our
local hospitals on all claimants. I frequently find that claimants have
lived with condition(s) for decades and that when one or more new
conditions arise, a combination of all of their symptoms becomes
disabling. I have had many judges ask me why I submit old records and I
then explain to them the restrictions and symptoms that the claimants
have lived with for years. While such historical treatment is very
impressive to our local federal judges, I have found many ALJ\'s who do
not want to hear about old medical conditions, no matter how relevant
they are. Again, this means that I am submitted substantial amounts of
material after the denials and SSA made no attempt to gather. For
example, in [Weikamp v. Apfel.]{.underline} 116 F.Supp.2d 1056 (N.D.
Iowa 2000) I obtained

OCT-04-05 1Q:19AM FROM-Dennis Mahr 712-233-1625 T-524 P.004/004 F-585

several sets of records more than 5 years old indicating that my client
had breakdowns every time he was put under substantial pressure in his
life. If you only looked at one breakdown and didn\'t realize that such
a person had a long experience with mental problems, you would naturally
place less than emphasis on such a single mental breakdown.

In summary, I believe the entire system is already set up to ignore the
gathering of all possible relevant evidence. The new rules being
proposed would only compound this philosophy by doing everything to
speed the system along while at the same time placing barriers in the
way of obtaining all of the possible meaningful materials. Under no
circumstances should the RO, ALJ or Decision Review Board be permitted
to exclude evidence that a claimant or claimant\'s representative
believes are relevant to a disability determination. The word
\"discretion\" should not come into play under these circumstances at
any level. It should be up to the claimant or the claimant\'s
representative to determine what evidence is relevant and how fast it
can reasonably be obtained.

Respectfully submitted,

By

*Dennis J. Mahr*

Copies to:

NOSSCR

Senator Tom Harkin

Senator Charles Grassley