Multiple Sclerosis

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” are met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

Multiple Sclerosis (“MS”) is typically treated by a neurologist. Therefore, when applying for SSD benefits based upon MS, the best type of evidence would be an opinion from a neurologist that the claimant meets the criteria under the 11.09 listing for MS.

I represent a 53 year old former secretary and bookkeeper for her husband’s business whose SSD application was approved yesterday, just one month after I submitted a narrative report from her neurologist explaining why the 11.09 criteria were met. The claimant was not even asked to be examined by a Social Security doctor.

The rapid approval was undoubtedly due to the listing opinion from the neurologist. The first thing I always do when analyzing a claim is to determine whether the claimant’s condition can meet or equal a listing, and then securing the necessary records and reports from the treating doctor. If a hearing has already been scheduled, showing that a claimant meets a listing is important because it makes it significantly more difficult for an Administrative Law Judge to deny the claim, or for the denial to be sustained on appeal.

Protective Filing Dates

When filing a Social Security Disability (“SSD”) application, it is possible to be awarded up to twelve months of retroactive benefits. Since there is a full five month waiting period for SSD benefits, a claimant will not lose potential SSD benefits as long as the application is filed seventeen months after the onset of the disability.

For a variety of reasons many people do not file SSD applications immediately after their disability onset. If there is a possibility of filing an application and the 17 month mark is approaching, the safe thing to do is to seek a protective filing date.

A protective filing date is the date a claimant first contacts the Social Security about filing for SSD benefits. The protective filing date can be used to establish an earlier application date than the date when Social Security actually receives the signed application. A protective filing date can be established by calling the Social Security Administration’s toll free number - 800-772-1213, which eventually leads to a live operator who will take the application. The SSA usually follows up with a letter confirming an appointment. Even if the appointment is cancelled, the letters serves as proof for a protective filing date.

It is important to retain the SSA letter. I received a fully favorable on the record decision today that did not provide the protective filing date. I had reminded the claimant of the importance of the letter, but he misplaced the letter, resulting in a loss of a month’s benefits.

Delays are commonplace when applying for Social Security Disability (“SSD”) benefits. Those delays frequently create “dire need” situations, such as being unable to afford medications, medical treatment, utilities, rent, or mortgage costs. Fortunately, the Social Security Program Operations Manual System permits expediting a claim when dire need circumstances exist.

I advise my clients to write me a letter explaining why their need exceeds that of other claimants, who may be able to pay for their health and housing. I suggest that they provide copies of eviction papers or past dues notices that substantiate their claims. I then provide the letter to the SSA describing how their delays have exacerbated the claimant’s dire need, and cite the relevant rules pertaining to expediting such claims.

I represent a 52 year old teacher who had to apply for food stamps while awaiting a decision on her SSD application. The SSA local office lost the application and demanded a new one. After showing proof that I had submitted the application, I sent a copy of the claimant’s letter stating that she had been approved for food stamps, and asked that the case be expedited as a dire need situation without having to submit a new application. The claimant was approved today for SSD benefits just one month after the dire need letter was submitted.

Reopening Past SSD Denial

It is common for people to apply for Social Security Disability (“SSD”) benefits more than once. Each new application starts a new date when benefits potentially become payable. What many people don’t realize is that it may be possible to “reopen” a prior application, which can result in the payment of additional benefits.

I represented a 44 year old carpenter who had applied three times, and was proceeding with his third application when he retained me. The oldest application was filed in February 2004, and the latest was filed in July 2007. I requested copies of the prior application files.

After reviewing all of the records, I obtained a report from the claimant’s treating physician that showed the claimant had lacked the ability to work since November 2003. I made a motion to reopen the prior application on the grounds that the report constituted new and material evidence. ALJ Brian Crawley agreed, and issued a fully favorable decision that approved SSD benefits based upon the prior application’s filing date.

The result of the reopening was that the claimant received well over three years of additional SSD benefits. When filing a new application always investigate whether there are grounds for reopening the prior one

ALJ Strauss’ Reliance On ME Cohen’s Testimony Proves She Is Biased

ALJ Hazel Strauss just issued a decision that proves she is biased against disability claimants. The Appeals Council had reassigned the case to ALJ Strauss from ALJ Seymour Fier on remand. The claimant is a 62 year old Italian woman with a third grade education who had worked as an unskilled sewing machine operator.

ALJ Strauss relied on the testimony of a medical expert (“ME”) from a prior hearing named Theodore Cohen. ME Cohen’s testimony was shown to be so utterly biased against claimants that ALJ Fier ruled that it had to be struck from the record; and therefore, he did not refer to ME Cohen’s anywhere in his 2008 decision. However, without any authority or explanation for doing so, ALJ Strauss based her October 2, 2009 decision on ME Cohen’s testimony.

Since ALJ Strauss knew that she could not use ME Cohen’s testimony because it had been struck from the record, how is it possible to explain her relying upon it? What possible excuse did ALJ Strauss have for using ME Cohen’s testimony, when it was clear from the record's hearing transcript and ALJ Fier’s 2008 decision that it had been struck?

ALJ Strauss claimed that she reviewed the entire record, which made it abundantly clear that ME Cohen's testimony had been struck. Therefore, ALJ Strauss cannot cannot claim that it was stupidity or negligence that caused her to rely on ME Cohen’s testimony -- ALJ Strauss knew that she was improperly relying on it. ALJ Strauss purposely relied on ME Cohen’s testimony because her preference for denying disability claims inhibited her impartial judgment, which is the American Heritage Dictionary definition for bias.

ALJ Strauss' will be reversed, although that is little solace to the claimant who now has to wait for the lengthy appeal process.

Multiple Medical Sources

Disability cases are usually a battle of the medical experts with your doctor saying you cannot work while their doctor saying you can. One of the best ways to ensure that your doctor’s opinion will be accepted over the non-treating doctor’s opinion is to have other doctors corroborate your doctor’s opinion.

I represent a 62 year old former Administrative Assistant with various back and foot problems. Instead of simply relying on the opinion of the claimant’s primary treating source, her neurologist, I secured opinions from the claimant’s rheumatologist, family doctor, orthopedist and chiropractor that concurred with the neurologist. Additionally, some investigation revealed that the non-treating doctor was not even board certified. Not surprisingly, the claimant’s application for disability benefits was approved.

While it may have been possible that the claimant could have received disability benefits without the concurring medical opinions, I prefer to stack the deck in the claimant’s favor, and minimize the chances of having to file an appeal. Since claimants normally need disability benefits as soon as possible to replace their lost income, the relatively small investment in time and money to secure the additional medical support should be well worth it.

Listed Impairments

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” is met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

I represent a 59 year old, whose past work was primarily in the security field. I sent the claimant for cognitive testing, which revealed a performance IQ between 60 and 70. I obtained a report from an arthritis specialist indicating that the claimant’s low back pain limited his ability to do full time sedentary work. I argued that those medical records showed the claimant met listing 12.05(C).

The SSA apparently agreed that the claimant met the listing because the application was approved in less than four months. Those familiar with the disability process know that approval within a few months is relatively rare. Medical sources should be asked from the outset for evidence to support a claimant’s meeting listing criteria because such claims are frequently screened for quick approval