Unsuccessful Work Attempts

The Appeals Council remanded another decision of Administrative Law Judge (“ALJ”) Nisenewitz from the Queens Social Security hearing office. Besides the ALJ’s usual refusal to follow the treating physician rule, he also decided to ignore the rules that allow claimants to work in certain situations without forfeiting Social Security Disability (“SSD”) benefits.

An unsuccessful work attempt (“UWA”) occurs when a claimant stops working in less than 6 months because of a medical condition. During that UWA, even though the claimant is working and earning money, the claimant’s SSD benefits remain unaffected. This is a well-known concept, which I pointed out to the ALJ before, during, and after the hearing.

After working for as a dispatcher with the Fire Department for 15 years, the claimant had to stop working July 31, 2004, because of her medical conditions. However, because of her past good work record, she was allowed to return to work with special accommodations after November 6, 2006, in order to avoid losing her home and having to apply for welfare. Even with the accommodations, by April 28, 2007 the claimant was forced to stop working again because her medical condition caused her to make errors that led her supervisor to advise her to resign or face termination. Those facts are the very definition of an UWA, yet the ALJ ignored the facts.

Before making several errors at work, the claimant’s supervisor wrote a letter to the ALJ in support of the claimant’s application for disability benefits. The ALJ kept refusing to admit the evidence because he said it was irrelevant. The purpose of the letter was to show that the claimant could not perform her job in the absence of special accommodations that her supervisor had informally allowed. The claimant testified that she was unable to perform her work as well as she had before her 2004 accident. The supervisor’s letter concluded that, “If not for her excellent prior work performance I would recommend that she be removed from the platform and employment.”

The Appeals Council vacated the ALJ’s decision for failing to apply the treating physician rule. Moreover, the Appeals Council ruled the ALJ failed to determine if the claimant was entitled to an UWA, or at least SSD benefits from July 31, 2004 through November 6, 2006.