Thursday, October 30, 2008

Applicaiton Filing Date

There are many reasons why a person may submit more than one application for disability benefits from the Social Security Administration (the “SSA”). If the reason was misinformation from the SSA, then you need to make sure that a subsequent application is deemed filed as of the date of the prior application to ensure that retroactive benefits are not lost.

I represent a 29 year old who injured his back and left upper extremity in a forklift accident. He applied for Social Security Disability (“SSD”) benefits because his annual earnings statement from the SSA stated that he had enough work credits to receive them. However, the claimant’s SSD application was then denied on the grounds that he lacked sufficient work credits.

The claimant subsequently filed an application for Supplemental Security Income (“SSI”) benefits, which was approved. I successfully argued that the SSI application had to be back dated because the SSA’s earnings statement misled the claimant into filing an application for SSD benefits. I successfully argued that the date of the claimant’s SSD application be used as a protective filing date for his SSI application by citing the SSI regulations, 20 C.F.R. §§416.350, 416.351, and POMS SI 00601.027.

Social Security Files

A person seeking Social Security Disability (“SSD”) benefits has a right to see his or her entire file, and that right should always be exercised before a hearing. Normally, the reason for reviewing the file is to see what harmful records are in it in order to prepare a rebuttal. However, every once in a while there is a positive surprise.

I represent 50 year old woman who stopped working as an accounting payroll clerk because of lumbar disc herniations and shoulder impairments. Her claim had been denied initially because the opinions of her arthritis specialist and physiatrist were rejected. Upon reviewing the file, I learned that each doctor had been asked to complete a form DDD-3883, which is given to treating doctors. A treating doctor’s opinion is supposed to be given controlling weight if it is well supported by clinical and diagnostic evidence.

The DDD-3883 requires, among other things, that the doctor identify the clinical findings and diagnostic tests that support his or her conclusions, which the arthritis specialist and physiatrist did. Moreover, both the arthritis specialist and physiatrist concluded that the claimant lacked the ability to perform the demands of sedentary work.

At the hearing, I argued that if the claim were denied, then it would require a determination that the form DDD-3883 was inadequate despite the fact that it provided the requisite evidence for according the opinions controlling weight. Although not mentioned in the written decision, the ALJ mentioned that it was a good point.

Friday, October 24, 2008

Representing Yourself

When applying for disability benefits, a claimant is not required to be represented by an attorney. Statistics show that claimants who are represented by attorneys have their applications approved more often, and usually sooner, than claimants who represent themselves. Therefore, a claimant has to decide whether the cost of an attorney outweighs the increased chance of being denied without one.

I represent a 55 year old woman who spent the last twenty years working as a customer service representative with a utility, where she earned a substantial salary. She retained me after her Social Security Disability (“SSD”) application was denied. Her benefits were approved yesterday. There were several things that I did to improve her claim on appeal.

I obtained records and functional assessments from the claimant’s family doctor and chiropractor. The SSA had ignored the family doctor and chiropractor because they were not a specialist and medical doctor respectively. However, under the regulations their opinions had to be given weight, and their opinions corroborated the findings and conclusions of the treating doctors. I advised the claimant to see an arthritis specialist, and it turned out that his opinion also corroborated the findings and conclusions of the treating doctors. Thus, there were now six medical opinions that supported the claimant’s inability to perform sedentary work. I also cited the case law and regulations that required special treatment for the claimant in light of her age. During the application process, the claimant turned 55, which placed her in another category from a vocational perspective that made it easier for a finding of disability.

It is highly unlikely that the claimant’s medical and vocational history would have been fully developed if she had represented herself, which would have increased the chances of her application being denied again. It is possible that the claimant’s application may eventually have been remanded and reversed, but that process could have taken years.

Saturday, October 18, 2008

Disabled Voters

Now that the Help America Vote Act of 2002 is being enforced in New York, there is voting technology at every polling site that enables people with disabilities to vote privately and independently so they are no longer required to use absentee ballots or special polling sites for the disabled. According to government statistics, one out of every 5 people has a disability, and a 20 year old has nearly a one out of three chance of becoming disabled before reaching retirement age.

There are many critical issues facing the disabled. The insurance companies have been preventing the New York State Insurance Department from implementing rules that would prevent insurers from issuing policies that provide them with discretionary authority, which authority they have been abusing routinely. The wait for a hearing for a claimant seeking Social Security Disability or Supplemental Security Income benefits is typically one to two years. These and many other
issues concerning the disabled are not being discussed even though they cut across party lines. As more disabled people vote, hopefully the candidates will begin to recognize that the interests of the disabled are just as significant as any other bloc of voters.

Friday, October 17, 2008


Yesterday, Janet Jackson resumed her concert tour after canceling two weeks of shows due to vertigo. Besides being the name of a famous Alfred Hitchcock movie, vertigo is the sensation that you are dizzily turning around or things are dizzily turning about you. Vertigo is usually associated with an inner ear or vestibular disorder. When severe, vertigo can be disabling.
I represent a former psychiatric nurse with vertigo whose Social Security Disability ("SSD") benefits were approved in less than five months. The key was showing that the claimant met the criteria of what is referred to as a "listed impairment". A listed impairment is a medical condition that is so serious that a person is deemed disabled if the criteria are met. Vertigo can fall under listing 2.07, entitled Disturbance of labyrinthine-vestibular function.

I was able to demonstrate that the claimant's vertigo satisfied the criteria of listing 2.07. I supplied clinical records reflecting a history of balance disturbance, lightheadedness, hearing loss, nausea and tinnitis. I also submitted rotational chair balance and platform posturography reports, which are test diagnostic teststhat confirm the vestibular labyrinth dysfunction, together with audiometric evaluation reports that established the degree of hearing loss.

Because the claimant had both clinical and diagnostic evidence to support her condition, she was able to show that she met the listing, which enabled her to receive her SSD benefits relatively quickly. Otherwise, she probably would have needed to wait until a hearing, and that would have delayed her receipt of benefits for over a year at a minimum.

Sunday, October 12, 2008

Multiple Impairments

A person may be entitled to receive Social Security Disability (“SSD”) benefits even if no one impairment is disabling. I represent a 28 year old drug store manager woman whose SSD benefits were approved today even though she had no single medical condition that prevented her from being able to work.

The claimant, who was referred by a traumatic brain injury (“TBI”) support group, came to me seeking SSD benefits because her TBI caused vertigo. The claimant’s family doctor performed diagnostic tests that confirmed the vertigo. After interviewing the claimant, I learned that she had other problems, including headaches, back problems and depression. I convinced the claimant to secure medical reports from her pain management specialist, neurologist and psychiatrist regarding her other impairments.

One of the records that I submitted was a report from a psychiatrist hired by the claimant’s employer to perform an independent medical examination (“IME”). I argued that the psychiatrist performed the exam at the request of a party with a vested interest in minimizing plaintiff's impairments – the claimant’s former employer's workers' compensation carrier, and therefore, his conclusion that the claimant could not work was highly probative as an admission against interest. Most ALJ’s do not pay much attention to a workers compensation IME conclusion because they say it is based upon a different standard. However, this ALJ had been a workers compensation ALJ, and recognized that IME conclusion do not normally support a claimant’s position.

The ALJ did not find the claimant’s vertigo, headaches, back pain, or depression disabling. However, the ALJ did find that the combined effect of the claimant’s vertigo, headaches, back pain, and so narrowed the range of work available to her that a finding of disabled was appropriate.