Monday, August 29, 2011

When To Amend The Disability Onset Date

Telling the Social Security Administration (“SSA”) that you want to change an application for Social Security Disability (“SSD”) benefits to reflect a later disability onset date can result in a faster approval, possibly without losing any benefts.

I represent a former plastics salesperson whose May 26, 2011 SSD application said she became disabled in August 2005, at which time she was 48 years old. The SSA denied the claimant’s application on August 4, 2011, and I received the claim file a week later. I then filed an on-the-record (“OTR”) appeal on August 14, 2011, which amended the claimant’s onset date from August 2005 to her 50th birthday in July 2007. The five month waiting period would be satisfied as of January 2008.

The SSA can pay SSD benefits up to 12 months before the month in which an application is filed. Thus, the earliest date when the claimant could potentially receive benefits was May 2010.

In order to qualify for SSD benefits, an applicant must establish disability before the “date last insured (DLI).” The claimant’s DLI was March 31, 2008, which was after her 50th birthday.

I filed the claimant’s OTR on August 14, 2011. The SSA approved and paid the SSD benefits within two weeks after the OTR was filed.

Under the circumstances applicable to the claimant’s case, the Medical – Vocational Rules made it easier for her to establish disability as of her 50th birthday. Without the amendment, it is likely that the OTR would not have been approved. Since the claimant’s SSD benefits could not be paid prior to May 2010, establishing disability as of July 2007 instead of August 2005 did not result in a decrease of benefits.

Tuesday, August 23, 2011

Right To Cross Examine Post Hearing Experts

I represent a 49 year old former pastry chef who had a hearing for Social Security Disability (“SSD”) benefits before Administrative Law Judge (“ALJ”) Ronald Waldman. The claimant’s treating orthopedist provided diagnostic tests and treatment records that supported his opinion that the claimant could not do any type of work. Moreover, under the Medical – Vocational rules, the claimant would have to be found disabled even if she could do sedentary work.

After the hearing, the ALJ sent interrogatories to a general surgeon named Dr. Thomas H. Weiss who has not practiced medicine for nearly twenty years. It was unclear why the ALJ did not pose the interrogatories to the treating orthopedist, especially since his opinion was well supported. Dr. Weiss made medical findings without ever examining the claimant, which were equivocal.

New York law holds that a claimant has a due process right to cross-examine an expert who issues a post-hearing report. Consequently, I advised the ALJ that if he intended to rely on Weiss’ report to deny SSD benefits, then the claimant would invoke her right to cross-examine the expert.

The ALJ issued a fully favorable decision today, which obviated the need to cross examine the expert. The ALJ gave the treating physician’s opinion more weight than the expert’s opinion on the grounds that it was more consistent with the record as a whole, which raises the question why the interrogatories were needed.

Although an ALJ may not ultimately rely on a post hearing expert’s opinion to deny SSD benefits, it is important to preserve the right to cross examine the expert in case the report is adverse or equivocal. Appeals Council reviews are not always thorough, and a supplemental hearing to cross examine the expert is needed in order to present a complete record for judicial review.

Monday, August 22, 2011

Commissioner’s Statement Is Offensive

Stephen Ohlemacher's article in today’s Newsday entitled “Soc. Sec. Disability In Peril” includes a quote from Social Security Commissioner Michael Astrue that is offensive to disability applicants. The article discusses how the Social Security Disability program is in financial trouble as aging baby boomers and laid off workers are filing large numbers of claims.

One would expect disability claims to increase as the large number of baby boomers approach retirement age since older workers are more likely to become unable to work compared to younger workers. Disability claims should also be anticipated from workers who have been laid off because many were allowed to work with special accommodations, especially older workers who had developed good will with their employers.

Instead of recognizing the legitimate reasons why more people need to apply for disability benefits under the present circumstances described above, Commissioner Astrue attributes the increase to “economic desperation” as laid off claimants “take a shot at disability.” Many baby boomers are applying because age has taken its toll on their ability to work, not because they are economically desperate. The greater number of older people, the greater number of expected disability claims. Moreover, assuming that a laid off worker “takes a shot at disability” out of economic desperation demonstrates a preconceived notion that the claimant is not applying due to inability to work, which violates the supposed non-adversarial process for evaluating disability claims.

Saturday, August 20, 2011

Gilding the Lily

The Shakespearean derived phrase “gilding the lily“ means to make superfluous additions to what is already complete. I’ve been accused of gilding the lily by submitting evidence from multiple supporting treating sources when applying for disability benefits. Although it may be true that benefits might be approved based on support from a single physician, I’ve found that providing reports from additional medical sources expedites favorable decisions.

I represent a 50 year old construction worker whose Social Security Disability (“SSD”) benefits were approved in less than five months after he retained me. When the claimant came to me, he explained that he could not work because he had knee problems. However, after interviewing the claimant, I learned that he also had wrist and shoulder problems. I wound up filing records and reports for all three of the claimant's problems.

It is possible that the claimant’s SSD application may have been approved if he had relied solely on his knee problems as a basis for his disability. Nonetheless, experience has demonstrated that the chances of obtaining an approval increase substantially when presenting evidence of all impairments, even if only of secondary import in the mind of the claimant. In fact, the regulations specifically require that the combined effect of all of the claimant’s impairments be considered when evaluating the ability to work.

Tuesday, August 16, 2011

SSD Approved in 2.5 Months

Social Security is well known for taking a long time to decide if it should approve an application for Social Security Disability (“SSD”) benefits. Therefore, when it makes a rare decision quickly, the question is why?

I represent a former car salesman whose SSD application was approved in 2.5 months, which is significantly faster than normal. A car salesman is considered light work because it requires the individual to be on his feet most of the work day. There is no reported case where a court found a car salesman to have skills that would transfer to sedentary work.

Given the claimant’s age, he would have to be found disabled even if capable of sedentary work. This “Grid” situation is not unusual, and by itself does not explain why SSD benefits were approved in a little over two months. Two other factors may explain the rapid decision.

I submitted reports from the claimant’s internist regarding back problems, and pulmonologist regarding breathing problems, that showed the claimant lacked the ability to do even sedentary work. Establishing comorbid conditions that independently warrant a finding of disabled obviously presents a stronger case. I also explained the significance of the claimant’s 38 year work history as a car salesman, which is objective evidence of a good work ethic and credibility. The synergistic effect of the comorbid evidence and work history simply made it too difficult for the State agency to contest the application.

Saturday, August 6, 2011

When to File for SSD

I am constantly being contacted by people who were led to believe that they needed to be disabled and out of work for a year before applying for Social Security Disability (“SSD”) benefits. The regulations actually state that you must have a condition that has lasted or can be expected to last for at least 12 months in a row.

I always advise potential claimants to file as soon as possible. The initial decision in the local offices usually takes about a half year. The worst thing that can happen is that the application could be denied for failing to meet the 12 month duration requirement, but that rationale would eventually disappear on appeal at the 12 month mark. Another possibility is a suspension.

I represent a 53 year old custodian whose application was approved today. I filed his SSD application in March, stating that he became disabled in January. In April, the disability determination services notified me that they were postponing reviewing the claimant’s SSD application on the grounds that more time had to pass to evaluate whether he met the 12 month duration requirement.

The end result is that the claimant’s application was approved 5 months after it was filed, and 8 months after he stopped working. Cash flow was particularly troublesome for the claimant so the relatively quick approval was important.

It is also possible that the 12 month duration requirement will not present a problem. I represent a carpenter whose SSD application was also approved today. He stopped working January 31, 2011, and I filed his application on February 3, 2011. His application was initially denied for his refusal to attend a consultative examination, not for failing to meet the duration requirement. I promptly filed an on-the-record request for a fully favorable decision, which was approved today. The end result here being that the claimant's application was approved about 7 months after it was filed.

Friday, August 5, 2011

Disability & Incontinence

A Social Security Disability (“SSD”) claimant with spina bifida asked me to represent him after his initial hearing with an Administrative Law Judge (“ALJ”). The claimant had received SSD in the past, but asked that it be stopped because he wanted to try working out of his house. A couple of years later, after surgery related to his spina bifida rendered him incontinent, the claimant stopped working and reapplied for SSD.

The ALJ had sent interrogatories to a medical expert, who stated the claimant could do sedentary work, even though the spina bifida and related surgery had left him incontinent. At the hearing I was able to show that the claimant’s condition was worse when he reapplied compared to when he had originally been approved for SSD. On cross exam, the medical expert testified that he did not review any evidence from the time of the claimant’s original application, and was unable to explain why he believed the claimant could work now, even though his condition was worse than when he had been approved for SSD previously.

Prior to the hearing, I provided the ALJ with a report from a vocational expert. Her report explained in detail why the claimant’s need for bathroom breaks and access rendered the claimant incapable of working. The ALJ agreed that the claimant’s incontinence significantly compromised his ability to work, and approved his SSD application.

Just as certain medical conditions require supporting reports from treating doctors, some diseases or injuries require supporting reports from vocational experts. The ALJ had asked a medical expert, but not a vocational expert, to testify at the claimant’s hearing. Even if the ALJ had rejected the vocational expert’s report, it would have provided very strong grounds for a reversal or remand on appeal.