The initial medical determinations in Social Security Disability (“SSD”) applications in the New York region are usually made by Disability Analysts, not doctors. If an SSD application is denied, both the Social Security Administration (“SSA”) and case law have stated that a Disability Analyst’s assessment of a claimant’s work ability’s is entitled to no weight.
I represent a 43 year old woman with back injuries who had worked with the learning disabled. The claimant had a hearing before Administrative Law Judge (“ALJ”) David Nisnewitz, during which the Medical Expert (“ME”) said the claimant’s back condition was severe enough to meet or equal Listing 1.04A. The claimant’s treating neurologist provided extensive records and opinions that the claimant could not work, but ALJ Nisnewitz disregarded that opinion. Instead, he approved the claimant’s case because the ME’s opinion was more consistent with the record than the “State agency medical consultant.”
Before the hearing started, I advised ALJ Nisnewitz that the State agency’s opinion was from a Disability Analyst, not a physician, and as such could not be considered at all. Despite agreeing on the record not to give any consideration to the Disability Analyst’s opinion, the ALJ did consider it, and he gave it some weight. Moreover, a ME’s opinion is entitled to little if any weight since he never examines the claimant.
The outcome was fortunate for the claimant as the ME testified favorably; however, the ALJ’s decision failed to follow the law regarding the treating physician rule. If the treating physician rule had been followed, then the decision should have concluded that the claimant was disabled based on the findings and conclusions of the treating neurologist.