Friday, March 21, 2008

Objective Evidence

While a Social Security Disability (“SSD”) application can be approved based subjective evidence, it is more likely to be approved if based upon objective evidence. Additionally, the stronger the objective evidence, the sooner the SSD application is likely to be approved.

I represent a 49 year old building superintendent whose SSD application was approved today based on my request for a fully favorable decision on the record (“OTR”). This avoided the claimant’s having to appear, and more importantly wait, for a hearing. The OTR highlighted the objective medical evidence supporting the treating physician’s opinions regarding the claimant’s functionality.

Objective medical evidence can be broken down into two types: diagnostic and clinical. In support of the OTR, I submitted four diagnostic reports: a lumbar spine MRI, lumbar spine fluoroscopic discography, CT discogram, and cervical spine MRI, each with positive findings. I also submitted reports from the claimant’s treating orthopedist, pain management specialist, and two spine specialists that summarized their physical examination findings. Thus, the disability opinions of the claimant’s four treating physicians were supported by objective, and their opinions were given controlling weight.

It is possible that the claimant’s application may have been approved without all the objective diagnostic tests and clinical reports that were submitted on the OTR. However, without all of the evidence submitted on the OTR, the claimant probably would have needed to wait for a hearing before his application was approved. While there was some additional expense and effort required on the claimant’s part to obtain all of the evidence for the OTR, it probably enabled him to receive benefits close to two years sooner.

Saturday, March 15, 2008

Disability Appeals

Many disability attorneys are of the firm belief that the default position of disability insurers is to deny a benefit claim regardless of the evidence submitted. That belief is supported by the inherent conflict of interest faced by insurers. If they approve a claim, then they have to pay it, which hurts their profitability. The fact that the claims people can receive additional compensation for denying or terminating claims further substantiates this conflict.

In order for a disability appeal to an insurance company to be successful you obviously have to rebutting every single adverse medical finding made in the prior denial, which I suggest doing with multiple treating and consulting medical sources. What is less obvious is that you also need to do the same thing with respect to the vocational evidence. I took over a case involving a claimant with HIV from another law firm after Prudential twice denied the claim by doing these two things.

I received medical reports and test data from four treating doctors that affirmatively rebutted every medical basis that had been previously asserted as a basis for terminating the claim. Perhaps more importantly, I secured a vocational assessment that helped why the claimant remained incapable of working. The report addressed issues such as how thrice weekly fever would cause unacceptable absenteeism, and chronic daily diarrhea would require extra work breaks, as well as the discomfort of co-workers when faced with the claimant’s constant skin infections and so on.

The vocational report also helped establish the claimant’s credibility. The report confirmed that the claimant enjoyed his job, working 60 to 70 hours a week, and earned over $100,000, plus a bonus in the range of $10,000 to $50,000. Logic dictated that the claimant would want to continue working, which was established by the fact that he did for nearly a decade after being diagnosed with HIV.

Strong medical evidence had been submitted in connection with the claimant’s first two appeals. This indicates that the additional vocational evidence probably led Prudential to reverse its prior decision to terminate the claimant’s long term disability benefits.

Wednesday, March 5, 2008

Police Officer

I represent a 55 year old police officer in connection with his Social Security Disability (“SSD”) application. The officer was already found incapable of working as a police officer by the Police Pension Medical Board. He had been reluctant to provide me with a copy of the Medical Board’s decision. After finally reviewing a copy, I learned that his reluctance was because the Medical Board had indicated that while he could no longer work a police officer, he did have a sedentary work capacity.

I submitted the Medical Board’s decision to the Social Security Administration (“SSA”). I explained to the officer that vocational experts from the SSA have testified that police officers do not have skills that are transferable to sedentary work. If a person is over 50 years of age, has only done non-sedentary work for the past 15 years, then that person is entitled to receive SSD benefits under the SSA’s medical-vocational rules even if he has a sedentary work capacity.

Because the Medical Board’s decision showed that the police officer could not perform his past work, he was entitled to receive SSD benefits. After making perfectly clear and highlighting the applicable medical and vocational rules for the State agency, the police officer’s SSD application was approved.