Friday, June 23, 2017

Work History

Earlier this year, Ingrassia v. Colvin, 2017 WL 908195 (E.D.N.Y. Mar. 6, 2017), held that an ALJ erred by failing to evaluate the Social Security Disability (“SSD”) plaintiff's long work history of approximately 25 years when making a credibility assessment. 

I represent a former carpenter with back problems who has a 40 year work history. When the ALJ asked if I had any opening remarks, I focused on the claimant’s 40 year work history. The hearing was brief, and the claimant’s SSD application was approved today. The ALJ’s decision stated that the claimant could do light work, even though the doctors said that sedentary work was not possible. However, the ALJ still concluded that the claimant could not work. 

A claimant should always discuss their work history even though an ALJ will limit questions to the last 15 years. A claimant with a good work history is entitled to substantial credibility when claiming inability to work. Common sense dictates that a person with a long work history would continue working because of their strong work ethic if physically and mentally able. Most ALJ’s accept that premise.

Auxiliary Benefits

There are various types of additional, or auxiliary benefits that might be available when you become entitled to receive Social Security Disability (“SSD”) benefits. For example, if you are entitled to SSD benefits, then you are also entitled to receive benefits for your minor children, which is typically about half your SSD benefit. 

Frequently, the Social Security office will not always contact a claimant about children’s benefits after learning that a claimant will be receiving SSD benefits. Children’s benefits are not provided automatically; the claimant must file an application for them. If filed timely, the children’s benefits will start when the SSD benefits start. If an application for children’s benefits is not filed promptly, they may have a later start date than the SSD benefits. 

I represent a claimant who received SSD benefits starting in March 2008, but whose children’s benefits did not start until 2013. I was retained to see if it were possible to obtain additional children’s benefits. 

The claimant never received a letter from Social Security advising him to file an application for children’s benefits when he was approved for SSD benefits, and he had proof that he had problems receiving mail at that time. Moreover, the claimant testified that he went to the local Social Security office shortly after securing SSD benefits, he was specifically told that there were no other benefits available. 

In 2014, the claimant learned that he should have been receiving children’s benefits, and he filed an application for them. The application was approved. However, the general rule is that children’s benefits, like SSD benefits, can only be paid 12 months prior to the application’s filing. Therefore, the claimant only received children’s benefits as of 2013. The claimant appealed, but an ALJ denied the request for an earlier onset. 

I filed an appeal that argued because the claimant had been misinformed about his entitlement to children’s benefits, he was entitled to a March 2008 onset. The Appeals Council reversed the ALJ’s decision, and ordered a new hearing, to address the claimant’s misinformation argument. Unfortunately, this is a situation that could have been avoided if the claimant had retained an attorney experienced in Social Security. While an attorney is never required, one is usually advisable.

Thursday, June 15, 2017

Prehearing Brief

I represent a 54 year old Social Security Disability (“SSD”) claimant with chronic asthma and prostate cancer, who not only worked full time as a detective, but also worked 20 hours a weekend as a bus driver. In a prehearing memorandum, I argued that the claimant’s work history alone should warrant approving the SSD application because the claimant’s work ethic shows that he would have continued working if he were physically able. The claimed earned over $100,000 annually, so he had no incentive to exaggerate his condition in order to receive a third of his salary in SSD benefits. 

The claim file exceeded 1,500 pages of medical records, when I was retained to handle the claimant’s appeal. I provided reports from the two pulmonologists, urologist, and internist that detailed the claimant’s inability to perform even sedentary work. Even though my prehearing brief explained that if the claimant were capable of sedentary work, he would still have to be found disabled in accordance with the medical-vocational rules, and the Police Pension Fund found the claimant disabled from his past work as a detective, I was told that the ALJ still felt a hearing was necessary. 

A month before the hearing, the only evidence adverse to the claimant’s SSD application was the opinion of the State agency doctor who never examined the claimant. I supplied websites in which the State agency doctor identified himself as a nephrologist, and the claimant did not have a kidney problem. I asked the ALJ again to review my prehearing letter. 

I was advised today that a hearing will not be required. I suspect that ALJs will not review prehearing memos until shortly before the hearing. If you believe your case is very strong, then submit a prehearing brief explaining why the vocational and medical evidence precludes the need for a hearing. The ALJ may agree.

Thursday, June 8, 2017

Rule Change

Social Security recently changed its rules and regulations concerning unsuccessful work attempts. (“UWA”)

If you stop working at a job in less than three months due to a medical condition, then it can be considered an UWA, which would not impact the ability to receive Social Security Disability (“SSD”) benefits. Prior to November 16, 2016, there were additional requirements to qualify for an UWA if the work lasted between three and six months. Those additional requirements have now been removed. 

I represent a 43 year old former graphic designer with multiple sclerosis who was able to avoid a hearing because of the new UWA rule. The claimant’s SSD application was approved yesterday, even though he had a five month UWA after he stopped working. Prior to November 16, 2016, the claimant would have needed to attend a hearing because he would have needed to explain why he satisfied the additional requirements to qualify for the UWA.

Wednesday, May 31, 2017

ALJ Kilgannon Reversed

You know that the decision of an administrative law judge (“ALJ”) is poor when the Social Security Administration (“SSA”) refuses to defend it. I represent a claimant whose social security disability (“SSD”) application was denied by ALJ Patrick Kilgannon. I appealed the denial to federal court, and today, U.S. District Court Judge Arthur Spatt reversed ALJ Kilgannon’s decision. (see Staib v. Colvin)

Judge Spatt stated that this was “a unique case” because even the SSA argued that the ALJ’s decision could not be defended. ALJ Kilgannon stated he would admit evidence the claimant submitted, but failed to review and admit them. ALJ Kilgannon failed to develop the record by rejecting the claimant’s onset date for lack of treatment records while never seeking to obtain them or indicating they were relevant. The Appeals Council also failed to consider evidence the claimant submitted after the hearing. 

Discussing ALJ Kilgannon’s decision, Judge Spatt explained that, “the Court cannot engage in any meaningful analysis of whether he correctly applied the treating physician rule, whether his decision is supported by substantial evidence, or whether he properly weighed the Plaintiff’s credibility." ALJ Kilgannon’s decision “was so deficient and flawed” that Judge Spatt ruled it denied the claimant a full and fair hearing. Therefore, Judge Spatt did not even feel the need to address the claimant’s substantive arguments.

Sunday, May 28, 2017

Hereditary Angioedema

Hereditary Angioedema ("HAE") is a rare and potentially life threatening medical condition, which causes swelling in almost any body part, external or internal. The swelling occurs unpredictably, but can be triggered by repetitive motion, or even just being bumped. The swelling and pain can completely preclude use of the affected body part, e.g., hands, feet, or can result in death if the airways or digestive system swell. 

From a claimant's persepective, the problem is explaining why HAE renders them disabled from working. A Social Security medical expert testified that my 43 year old client was disabled, but could stand/walk 6 hours out of 8, and could lift 10 lbs. The administrative law judge (“ALJ”) wanted a supplemental hearing, presumably for a vocational expert, until I cross examined the medical expert ("ME"). 

I was able to get the ME to agree that the claimant would miss at least 3-4 days a month because of the HAE. The ME also agreed that while the claimant might be able to lift 10 lbs and stand for 6 hours, it was not advisable for him to do so given his HAE. Following the ME's conclusions, the ALJ stated that a supplemental hearing would not be necessary, and she would issue a decision shortly. Given the ME's testimony, I anticipate a fully favorable decision. 

The ALJ also wanted a supplemental hearing so the ME could consider adversarial evidence. Because of my client's HAE, he is homeless, which is why I vehemently opposed a supplemental hearing. Besides needing SSD to live, the client should also be entitled to receive Medicare, which is critical to his receiving proper treatment.

Friday, May 19, 2017


The State agency continues to send letters insisting that Social security Disability (“SSD”) claimants go to consultative examinations (“CEs”) by Industrial Medicine Associates (“IMA”). I represent a 59 year old former security guard with breast cancer and orthopedic problems whose SSD application was approved today, even though she did not go to the IMA CE. 

The State agency was unconcerned about the cancer because it was Stage I. Nonetheless, the claimant had three separate orthopedic specialists who treated her bilateral hand, lumbar spine, and knee problems. Their treatment records and supporting summary reports with functional assessment were obtained quickly. The same State agency that said it was necessary for the claimant to attend a CE, determined that the claimant was disabled from work, despite the fact that she did not attend the IMA CE. 

Ongoing communications with the State agency representative assigned to the claim helped expedite the case. We were able to pin down exactly what the State agency claimed would be needed from the CE, and had the claimant’s doctors’ provide it. Getting the information made the representative’s job easier as we did the job for her. Avoiding the IMA CE with its inevitable conclusion that the claimant could work made the extra effort worth it.