Monday, April 26, 2010

Medical Evidence and Functionality

Most people are surprised when their disability applications are denied even though they submitted medical records from their supportive doctors. Claimants should not be surprised. Medical records can readily establish the existence of a medical condition and treatment for it. However, simply having a diagnosed condition, even one that is regularly treated, typically results in a disability denial.

I took over the Social Security Disability (“SSD”) claim of a 56 year old office manager from Binder & Binder that had been denied. The file contained myriad treatment and test records, but nothing that evaluated the claimant’s physical ability to work. Within a month I obtained the treating internist’s assessment of the claimant’s functional capacity, and submitted an on-the-record (“OTR”) request for a fully favorable decision. The Judge agreed to the OTR, determined that no hearing was needed, and concluded that SSD benefits were warranted.

It is not enough simply to collect and submit medical records. The medical records need to be used to show the impact that the medical condition has on the claimant’s ability to work. When there are also adverse vocational factors, the medical evidence can require finding the claimant disabled under the medical-vocational rules.

Wednesday, April 21, 2010

Deceptive SSA Notices

The Office of Temporary & Disability Assistance (the “State agency”) is responsible for making the initial decision on Social Security Disability (“SSD”) claims in New York. The State agency sends letters to SSD applicants stating that he or she “must keep the appointment” to be examined by a “specialist” from IMA Disability Services (“IMA”). The letters are frequently followed by phone calls from IMA threatening that the application will be denied if the claimant fails to appear for the appointment.

As a legal matter, it is untrue that a claimant “must keep the appointment.” The truth is that most claimants do not need to be seen by a doctor from IMA. The rules provide that a claimant cannot be compelled to attend a consultative examination (“CE”), such as the IMA exam, without first seeking the particular information from the treating physicians, or asking them to clarify any alleged inconsistency in the medical evidence. However, the State agency sends the letters for the IMA CE without complying with the rules.

As a factual matter, it is also untrue that a claimant “must” attend the IMA CE. Many times, even after insisting that a claimant must attend an IMA exam, and after threatening to deny a claim if the applicant refuses to attend, SSD benefits are approved anyway. I represent a 59 year old former nurse whose SSD application was approved today six weeks after she was told that she must attend an exam by IMA.

There are countless other reasons why most demands for a claimant to attend a CE violate the rules. Not surprisingly, since IMA makes enormous amounts of money from performing thousands of CEs, they try to make claimants believe that they have no right to refuse to attend a CE. Therefore, letters insisting that a claimant attend a CE should be objected to in writing, preferably citing the regulatory basis for the objections.

Wednesday, April 7, 2010

Onset Date

The last date that a person works is not always the onset date for disability purposes. Understanding the difference can result in additional benefits being paid.

I represent a 53 year old former communications field technician who was injured on December 8, 2008, resulting in leg pain. On March 9, 2009, the claimant started experiencing severe back pain, and he learned that his leg pain was due to a spinal cord injury, for which he had surgery the following day on March 10, 2009.

The employer provides 13 weeks of sick pay, which is reduced to 50% thereafter. Because of his good work record, to enable him to receive an additional 13 weeks of full sick pay, the employer allowed the claimant to return to work the first week of June 2009. From that date until September 28, 2009, the claimant did not work a full day, and was unable able to perform his work duties, which I contended showed that he lacked the ability to work.

I was notified today that March 9, 2009 was accepted as the claimant’s disability date instead of September 28, 2009, which is the last date that he worked. Consequently, the claimant received an additional six months of disability benefits.

Monday, April 5, 2010

Queens ALJs

For years, claimants and their attorneys have complained about the inability to receive an impartial hearing on their Social Security Disability (“SSD”) claims from the Administrative Law Judges (the “ALJs”) at the Jamaica Queens hearing office. In a recent blog, I provided statistics from the Social Security Administration (the “SSA”) that evidenced the bias complaints.

I represent a 31 year old woman with fibromyalgia and lupus who held various jobs during the past 15 years. The claimant’s SSD application and on-the-record (“OTR”) request for a fully favorable decision were denied in Queens. Because of her precarious financial situation, the claimant relocated to Florida. The Orlando Florida hearing office approved her OTR today, just two weeks after the file was transferred. If the claimant was so obviously disabled that Orlando approved the OTR in just two weeks, why wasn't Queens able to recognize that also?

When Can You File For SSD Benefits?

My clients are frequently surprised to learn that they do not need to be out of work for a year before they can file for Social Security Disability (“SSD”) benefits. In fact, you can file for SSD benefits the day after you stop working because SSD benefits can be awarded if your medical condition is found capable of preventing you from working for at least 12 months.

I represent a 44 year old truck driver who had to stop working because of his injuries in September 2009. I filed his application the following month, and while it was initially denied in February, it was approved yesterday week through the on-the-record process. Because the SSA believed that the claimant’s condition would be disabling for at least a year, he was found eligible to receive SSD benefits as of March 2010, which is after the expiration of the full five month waiting requirement.

The claimant should start receiving his monthly SSD benefits shortly, which is well within a year of the date that he stopped working. The result is that the claimant can start to pay for his needs sooner than expected, and it also minimizes his legal fees.

Parkinson’s Disease

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.

Parkinson’s Disease (“PD”) is a neurodegenerative brain disorder that progresses slowly in most people, and is typically treated by a neurologist. Therefore, when applying for SSD benefits based upon PD, the best type of evidence would be an opinion from a neurologist that the claimant meets the criteria under the 11.06 listing for Parkinsonian Syndrome.

I represent a 46 year old former publisher whose SSD application was approved yesterday, just two months after I submitted the application, and two weeks after I submitted a narrative report from his neurologist explaining why the 11.06 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.

Consultative Exam (“CE”) Ruled Improper

The Appeals Council just issued an order ruling that an Administrative Law Judge (“ALJ”) cannot ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, without asking the treating doctor to explain the perceived conflict, gap or inconsistency. The Appeals Council also ruled that an ALJ cannot deny an application solely because a claimant refused to attend a CE, and criticized the ALJ for rejecting the CE by the treating doctor.

The Appeals Council order confirmed that a treating source is the preferred source for performing a CE, and that an ALJ cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. The order shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the Social Security rules and regulations.

Sunday, April 4, 2010


A court may require the Social Security Administration (the “SSA”) to pay legal fees under the Equal Access to Justice Act (“EAJA”) when a claimant pursues an appeal. EAJA fees are usually awarded even if the court remands the case to the SSA for another hearing rather than ordering the SSA to pay disability benefits. In fact, a court can award attorney fees even if the SSA offered to remand the case before the court issued a decision.

U.S. District Judge Denis Hurley ruled that it was reasonable to award attorney fees to me for time I expended after I refused to accept the SSA’s offer to remand a claimant’s case. Previously, Judge Hurley had remanded the case for another hearing before the same SSA Administrative Law Judge (“ALJ”). If the ALJ corrects his decision and awards SSD benefits, the EAJA fees will be applied to reduce the claimant’s legal fees.

From a practitioner’s perspective, Judge Hurley’s decision was also significant for two additional reasons. First, Judge Hurley ruled that Westlaw research costs should be reimbursed. Second, Judge Hurley ruled that the EAJA fees would be paid directly to the attorney because the claimant had executed an assignment.