Saturday, October 29, 2011
I immediately reviewed the SSA’s electronic file, and obtained reports from the claimant’s endocrinologist and internist to provide the medical findings, conclusions, and functional evaluations that I believed were needed to strengthen the case. Rather than waiting for a hearing, I filed a request for a fully favorable decision on the record (“OTR”). I pointed out that the application had been denied based upon the opinion of a non-examining orthopedist, who was unqualified to evaluate diabetic or cardiovascular problems. The OTR was approved two weeks later, as controlling weight was given to the opinions of the claimant’s endocrinologist and internist.
The claimant’s case was at the White Plains, NY hearing office. According to the Social Security Administration, the average wait time for a hearing at that office is a year, but local practitioners believe the typical waiting time is actually longer. In any case, an OTR should always be made whenever there is objective medical evidence to support an SSD claim.
Monday, October 24, 2011
The 52 year old claimant had worked for over 20 years as a truck driver. His diabetes not only resulted in neuropathy, but also prevented a broken ankle from healing properly. Neuropathy and difficulty healing are both symptoms of diabetes.
It must have been readily obvious that a person who has those conditions is incapable of working as a truck driver, which not only requires heavy lifting, but also using foot controls. Because of the special medical – vocational rules that applied in the claimant’s case, even if he had been capable of performing sedentary desk work, he would have been entitled to SSD benefits.
Friday, October 21, 2011
Millions of people in the United States have diabetes. A person can readily establish a diagnosis of diabetes through routine laboratory blood tests. The question for disability adjudicators is when is diabetes severe enough to warrant being found disabled. Stated from the claimant’s perspective, how does one show that his or her diabetes precludes working on a sustained basis?
As noted above, diabetes can cause many different types of symptoms of varying intensity. While all symptoms should be pointed out, I find that tying the most serious ones to a specific work function is the best approach. I represent a former electrician whose disability application was approved today because of the effect that diabetes had on his ability to work.
I secured reports from the claimant’s endocrinologist. He confirmed that the claimant had many of the typical diabetes symptoms: lower extremity pain and weakness, hand weakness, vascular disease, loss of manual dexterity, rapid heartbeat, dizziness, difficulty walking, nausea, kidney problems and frequent urination, excessive thirst, depression, and fatigue. The most problematical symptoms were the pain, numbness, and tingling in the feet, which made walking and standing very difficult.
The endocrinologist concluded that the claimant was unable to stand or walk for even one hour a day because of the diabetes. To support his conclusion, the doctor cited Nerve Conduction Studies that revealed sensorimotor polyneuropathy in the lower extremities. The diabetic peripheral neuropathy objectively established the nerve damage that credibly explained the claimant’s inability to be on his feet, which is required for any full time occupation.
Wednesday, October 19, 2011
Starting next year, people who are receiving Social Security Disability benefits will get a 3.5% increase in their benefits. This will be the first such raise in three years. However, Medicare premiums will also rise next year, which will reduce the anticipated 3.5 increase somewhat.
Friday, October 14, 2011
The role of a VE is somewhat different at a Social Security Disability (“SSD”) hearing. In theory, a VE is supposed to testify about the number of jobs in the national economy that are available for an individual with a specific set of functional limitations. However, in practice, role of the VE at a SSD hearing is usually to create evidence for the Administrative Law Judge (“ALJ”) who has already determined that the claimant is not disabled, and uses the VE to present testimony to substantiate that the claimant can work.
A claimant with spina bifida asked me to represent him after his initial hearing with an 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.
Prior to the hearing, I provided the ALJ with a report from a VE that explained in detail why the claimant’s need for bathroom breaks and access rendered the claimant incapable of working. The ALJ agreed, and approved his SSD application.
The VE report was expensive, but I convinced the claimant that the cost was worth it, especially since it would amount to less than one month’s benefits. I received the claimant’s notice of award today, which specified that his past-due benefits are over $190,000.
Wednesday, October 5, 2011
The CE notices are misleading because they state, “It will be necessary for you to be examined by the Specialist named below.” The so-called specialist is “IMA Disability Services.” The CE notices also state that, “You must keep this appointment at the time and date indicated below.” The use of the words “necessary” and “must” are untrue because most claimants do not need to be seen by a doctor from IMA.
The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. Three of my SSD clients were approved for benefits today. The SSA had sent CE notices to all three of the claimants, but none of them went for the CE.
In all three cases, I filed written objections to the CE, specifying the factual and legal reasons why the CE would violate the SSA rules and regulations. In the limited circumstances where a CE is actually needed, it is supposed to be performed by a treating doctor. As discussed in my September 28, 2011 blog entry, the SSA cannot ask a claimant to go for a CE simply because it wants an “independent’ opinion. Before asking a claimant to go for a CE on the grounds that a treating doctor’s report supposedly contains a conflict or ambiguity that must be resolved, the SSA is obligated to ask the treating doctor to explain the alleged conflict or inconsistency.
Saturday, October 1, 2011
The SSA’s rotation policy is found in the HALLEX, which is the Hearings, Appeals and Litigation Law manual. The HALLEX defines the procedures for executing the Appeals Council policy in adjudicating disability claims. The rotation policy is found at HALLEX I-2-5-36(D):
Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See I-2-5-31, Blanket Purchase Agreements.) An ALJ must select an ME who is maintained on any RO's roster to the extent possible. The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called. If an ME in the specialty needed by the ALJ is not available on the RO roster of the HO's region, then the ALJ should look to other RO rosters to obtain the services of an ME.
My September 23, 2011 blog entry explained why it looked like ALJ Hoppenfeld violated the rotation policy by using ME Jonas for my last two clients’ hearings. Merely an odd coincidence? Notably, when my last client was proceeding pro se, ALJ Hoppenfeld did not find any reason to call experts. However, after Hoppenfeld learned that I was representing the claimant, she suddenly saw the need for THREE experts, including ME Jonas, even though not a single document had been added to the file. It would seem incumbent upon the SSA to investigate whether ALJ Hoppenfeld ever orders MEs when claimants appear pro se, and whether she orders MEs after pro se claimants retain attorneys.
The other ME at my client’s hearing was Dr. John Axline. Judge Coogan just issued a new decision Knight v. Astrue, 2011 WL 4073603 (E.D.N.Y. Sept. 13, 2011). Consistent with Hoppenfeld’s conduct in cases where I represent claimants, as well as the class action allegations that Hoppenfeld is biased against claimants, in Knight, Hoppenfeld refused to comply with the treating physician rule by elevating the ME's opinion over the treating physician’s opinion. In the latest decision, the ME just happened to be John W. Axline, the same ME who Hoppenfeld selected to testify at my client’s hearing. Judge Coogan found that Hoppenfeld gave “conclusory reasons for her decision to credit the opinion of the independent medical expert, Dr. Axline, over that of” the treating doctor. Judge Coogan ruled that the medical evidence “clearly” failed to “substantiate Dr. Axline's RFC determination or discredit that of” the treating doctor.
Judge Coogan has become the latest in the long line of federal district court judge’s who have rejected ALJ Hoppenfeld’s decisions for the very reasons alleged in the class action, which are the same reasons that apply in the cases where I have represented claimants before Hoppenfeld.
Hoppenfeld’s misuse of experts must be investigated. As noted above, the SSA should investigate whether ALJ Hoppenfeld ever orders MEs when claimants appear pro se, and whether she orders MEs after pro se claimants retain attorneys. Additionally, each regional hearing office maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a Blanket Purchase Agreement. As ODAR now encourages MEs to appear by telephone, ALJs like Hoppenfeld now can pick MEs who are located anywhere in the country. Therefore, the chances of an ALJ using the same ME should be far smaller now than in the past, yet Hoppenfeld is using the same MEs. ME Axline certainly does not live close to the Queens ODAR, which is why he testifies by telephone. The SSA should verify if Hoppenfeld is complying with the rotation policy. The SSA can do that by reviewing the expert invoices prepared for use at Hoppenfeld’s hearings. Any vouchers and other documentation that are used in the selection and payment of MEs should also be reviewed for hearings that ALJ Hoppenfeld has held.