Friday, November 25, 2011

Adverse Evidence

When seeking a fully favorable decision on the record (“OTR”) to avoid a hearing on an application for Social Security Disability (“SSD”) benefits, it is important to address the adverse evidence as well as the supporting evidence.

I represent a 42 year old woman who worked in automotive customer service since she graduated from high school in 1988. The treating neurologist said the claimant lacked the ability to perform sedentary work due to cervical radiculopathy and an Arnold Chiari malformation. An Attorney Advisor approved the claimant’s OTR today, accepting the neurologist’s cervical radiculopathy diagnosis, but rejecting the Arnold Chiari malformation diagnosis.

The claimant had a cervical MRI that revealed, among other things, a herniated disc compressing the spinal cord and nerve root. While one head MRI revealed an Arnold Chiari malformation, the other revealed less severe findings that did not meet the diagnostic criteria of an Arnold Chiari malformation. Nonetheless, the Attorney Advisor still gave controlling weight to the treating neurologist’s opinion.

A Social Security doctor rejected the neurologist’s opinion and claimant’s complaints. Investigation disclosed that the Social Security doctor was an endocrinologist, which I argued was unqualified to evaluate the claimant’s neurological condition. That point was proven by the Social Security doctor’s suggestion that the claimant have a psychological exam, which obviously was completely irrelevant to the claimant’s impairments. More importantly, the Social Security doctor said that the treating neurologist’s clinical findings were disproportionate to the claimant’s MRIs, which showed spinal cord and nerve root compression. No neurologist would concur with the Social Security doctor’s absurd conclusion.

The Attorney Advisor may have had concerns about the reliability of the treating neurologist’s opinion since there was equivocal evidence regarding the Arnold Chiari malformation diagnosis. Given that concern, the Attorney Advisor could have rejected the OTR and left it to the Administrative Law Judge to evaluate the treating neurologist’s opinion. If the Attorney Advisor was ambivalent about the OTR, by utterly rebutting the viability of the Social Security doctor’s opinion, which was the only adverse evidence in the file, it should have removed any concerns about approving the OTR.

Multiple Impairments

Can you be found disabled if you have more than one medical condition even if no single impairment is disabling? Under the Social Security regulations, the answer is yes. When evaluating an application for Social Security Disability (“SSD”) benefits, the combined effect of a claimant’s multiple impairments must be considered.

A 41 year old boilermaker from Tennessee retained me to appeal the denial of his SSD application. Six weeks after I received the claimant’s file, I submitted a request for a fully favorable decision on-the-record (“OTR”), which was approved in three weeks. Thus, the claimant was able to avoid the stress of, and wait for, a hearing.

The claimant has a seizure disorder, sleep apnea, headaches, mild memory loss, difficulty concentrating, and arthritis causing joint, neck, and back pain. None of the impairments met a listing, and no single medical condition resulted in an inability to perform simple unskilled work.

The claim file that Social Security compiled had no records from the claimant’s physician, and the prior denials were based solely on the opinion of the Social Security doctors. I not only obtained the treating doctor’s records and functionality assessment, but I detailed the multitude of medical findings that supported the disability opinion. For example, the OTR explained what encephalomalacia and hematoma are, how they were treated, and why they caused the claimant’s mental and physical limitations. I also cited the Tennessee law that justified giving the treating physician’s opinion controlling weight, which language was tracked in the decision approving benefits.

Rheumatoid Arthritis

According to the Arthritis Foundation, Rheumatoid Arthritis or “RA” is an incurable form of inflammatory arthritis and an autoimmune disease. In RA, the immune system attacks the body’s own tissues, specifically the synovium, which is a thin membrane that lines the joints. As a result of the attack, fluid builds up in the joints, causing pain in the joints and inflammation that can occur throughout the body. The pain and stiffness from RA can become disabling.

I represent a 51 year old dental hygienist who was approved yesterday because the Administrative Law Judge (“ALJ”) accepted the opinion of the claimant’s rheumatologist that the claimant’s RA precluded her from performing sedentary work. Blood tests and x-rays objectively established the diagnosis of RA. The ALJ concluded that the clinical findings and symptoms of joint pain, stiffness, weakness, reduced range of motion, decreased grip strength, and tenderness supported the rheumatologist’s functional assessment.

As noted in my September 16, 2011 blog, a claimant can obtain an opinion that the RA is severe enough to meet listing 14.09, which is potent medical evidence. However, as listing explanations come in narrative form, many doctors charge a substantial fee for the opinion.

Monday, November 21, 2011

Cerebrovascular Accident & SSD

According to the Merck Manual, a stroke is called a cerebrovascular disorder because it affects the brain (cerebro-) and the blood vessels (vascular). A stroke or cerebrovascular accident (“CVA”) occurs when blood stops flowing to the brain causing permanent brain damage from cells dying. Stroke symptoms include numbness or weakness to one side of the body, confusion, difficulty speaking, vision loss, imbalance, and headache.

I represent a 52 year old postmaster who had to stop working because of a CVA. The claimant’s application for Social Security Disability (“SSD”) benefits was approved without a hearing. An Attorney Advisor approved my request today for a fully favorable decision on-the-record (“OTR”) based on meeting listing 12.02.

Hospital records and diagnostic testing established that the claimant had suffered a stroke. Clinical records revealed the claimant lost cognitive ability, memory, and impulse control, while experiencing mood disturbance, left sided weakness, slurred speech, and personality change. I was able to obtain reports from the claimant’s neuropsychologist that explained why the claimant’s symptoms resulted in marked functional mental limitations.

Despite the medical records supporting the claimant’s entitlement to SSD benefits, the State agency had originally denied the application based upon the opinion of a State agency doctor, who never examined the claimant. My OTR cited the case law holding that where psychological impairments are involved, the opinion of a medical professional who has examined the claimant face-to-face is more reliable than that of a nonexamining physician. The rationale is that a treating psychiatrist's opinion, based on medical evidence derived from face to face visits, is “inherently more reliable than an opinion based on a cold record because observation of the patient is critical to understanding the subjective nature of the patient's disease and in making a reasoned diagnosis.”

The Attorney Advisor agreed with my criticism of the of State agency doctor’s opinion, and gave it little weight. Being able to quote case law directly on point regarding the reliability of the State agency doctor’s opinion certainly elevated the weight of the treating doctor’s opinion, and perhaps was the reason why the claimant was able to avoid the protracted wait for a hearing.

Friday, November 11, 2011

Was A Video Hearing Needed?

Can Medical Records Be Too Good? I represent a 60 year old guidance counselor with cervical and lumbar radiculopathies, which were supported with very severe EMG and MRI testing. The claimant, who had a 40 year work history with a high salary, also had marked depression according to the treating psychiatrist. The medical evidence was so strong that I was surprised when the Administrative Law Judge (“ALJ”) rejected the claimant’s request for a favorable on-the-record (“OTR”) decision.

Because the OTR was rejected, a hearing was required. The claimant permanently relocated from Long Island to Florida during the application process because the warm weather was better for his health. The ALJ held the hearing in Orlando with the claimant and the vocational expert (“VE”), while I appeared via videoconference at the Jericho hearing office.

The hearing started with my questioning the claimant. About 20-30 minutes into my direct examination of the claimant, the ALJ politely interrupted me to say that he was paying the claim. The VE never even testified. The ALJ explained that the treating doctors’ mental and physical functional capacities were so limited that he felt he needed to see and hear the claimant for himself. The ALJ said that he was concerned that the doctors were focused on trying to help the claimant get benefits, rather than accurately assessing the claimant’s functionality.

The claimant worked for 40 years and earned a good salary, and returned to work after very severe motor vehicle accidents. Of course he only stopped working when he was no longer able to do so. In fact, he worked longer than he should have, and his severely limited ability to work was reflected in his doctors’ limited functional assessments.

It was improper to insist that the claimant appear for a hearing because the ALJ questioned the accuracy of the treating doctors’ functionality reports. The rules make clear that an ALJ is not supposed to make his decision based on a “sit and squirm” test. Rather, as the rules and regulations provide, if the ALJ has concerns about the accuracy or consistency of medical records, then the ALJ has a duty to recontact the treating sources about the records.

Thursday, November 10, 2011

NOSSCR Conference

Every time I go to a NOSSCR conference, I hope to take back a couple of things that I can use on a regular basis. Last week at San Antonio was no exception. The one thing that stands out was a case I heard about during the Second Circuit meeting.

The case is called Edwards v. Astrue, and was issued by Judge Mark Kravitz in Connecticut last August. According to the attorney who represented the Social Security claimant, Judge Kravitz ruled that an ALJ cannot allow a hearing expert to testify by telephone over the objection of a claimant. I googled the facts on my iphone as he described the case, and found it on Justia. Much to my surprise, Judge Kravitz did reject the ALJ's decision denying the claimant disability benefits because the medical expert was allowed to testify telephonically.

When I returned from the NOSSCR conference, I had Edwards published on Westlaw. Its cite is Edwards v. Astrue, 2011 WL 3490024 (D.Ct. Aug. 10, 2011). Why is Edwards important?

Some ALJs, like the five ALJs accused of anti-claimant bias in the Queens Class Action, have hearing experts from outside the area testify by telephone. The ALJs eschew the rules that require them to select experts in rotation, and hand pick those experts who they know from experience will testify adversely to claimants. Edwards reduces the ability of ALJs to cherry pick bad experts.

If you believe that an ALJ is improperly relying on a hearing expert who testifies telephonically, then object. You have the right to confront a witness, especially an adverse one. I would also suggest making FOIA requests to see how often ALJs use experts. I think NOSCCR should pressure the SSA to publish that information annually, or make annual FOIA requests for that information on behalf of its membership.