Wednesday, December 28, 2011

Appeals Council Doltishness

When an obviously wrong decision by a Social Security Administrative Law Judge (“ALJ”) is appealed to the Appeals Council you would expect its Administrative Appeals Judges (“AAJs”) to correct it. Unfortunately, the AAJs too frequently fail to rectify the ALJ’s errors.

I received a decision by AAJs Barbara Johnson and Louann Igasaki that, rather than rectifying the error by ALJ Seymour Fier, who is one of the ALJ’s being sued in a class action for anti-claimant bias, actually compounds the ALJ’s error. Even though all three physicians stated that the claimant lacked a sedentary work capacity, Fier stated the claimant had a sedentary work capacity until March 2008 because the claimant was “working” until that date. Fier omitted from his decision that the claimant’s “working” in 2007 and 2008 only amounted to $1,725.28 and $4,233.00 respectively, which does not come close to approaching substantial gainful activity (“SGA”), and certainly fails to demonstrate the claimant had anything close to the ability to work on a sustained full time basis.

The case law and regulations are absolutely clear that a person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA. To make matters even worse, even if the work had been SGA, Fier failed to consider whether the work constituted an unsuccessful work attempt or trial work period. The Appeals Council disregarded the case law and regulations, and affirmed the ALJ’s decision that the claimant had a sedentary work capacity. But that was not even their real error.

The claimant was over 55 years old at the time he became disabled. I advised the Appeals Council that ALJ Fier ruled that the claimant had no transferable skills, which was based on the testimony of the Vocational Expert (“VE”). Absolute proof that ALJ Fier concluded the claimant had no transferable skills was his applying Medical Vocational Rule 201.28, which is used when a claimant has no transferable skills. ALJ Fier mistakenly thought the claimant was under 50 years of age, and by applying Rule 201.28 would be able to deny benefits.

Because the claimant was over 55 years of age, ALJ Fier should have applied Rule 201.06. However, it makes no difference whether ALJ Fier’s applying Rule 201.28 was an attempt to deny SSD benefits consistent with his anti-claimant bias, or was a “clerical error” as AAJs Johnson and Igasaki claimed.

The claimant was over 55 years of age and had no transferable skills, and therefore, the medical vocational rules required that he be found disabled. Johnson and Igasaki claimed that a clerical error regarding the claimant’s age caused ALJ Fier to apply Rule 201.28. However, Fier’s clerical error regarding the claimant’s age had nothing to do with Fier’s conclusion that the claimant lacked transferable skills. Not surprisingly, Johnson and Igasaki failed to mention that there was any clerical error regarding the finding that the claimant lacked transferable skills.

Instead of correcting ALJ Fier’s obvious error, Johnson and Igasaki compounded it by issuing an order remanding the case for a VE to determine if the claimant had transferable skills – even though that was already done at the previous hearing, and even though Fier had already determined that the claimant lacked transferable skills. AAJs Johnson and Igasaki inexplicably ordered that another ALJ be assigned to the case.

1 comment:

APC said...

I am an attorney who suffered a permanent disability. Once disabled I had to decide whether to represent myself in a petition against the Social Security Administration or to retain another attorney to pursue the claim on my behalf.

As an attorney I had access to the court system. As a result I was familiar with administrative judges, court clerks, attorneys and other persons employed in the field of disability law. If you want to know who are the best and brightest attorneys in any field of the law just ask those who work closely with them day in and day out at the courthouse.

Web sites have their place, and are no doubt quite helpful when choosing qualified and reputable attorneys, but if you are fortunate enough to be an "insider" like me you are able to quickly ascertain who the most qualified and respected attorneys in any area of the law are.

I took advantage of my access and spoke with as many other "insiders" as I could. I wanted the best disability attorney available, and wouldn't settle for anyone less.

One of the names which came up time after time was Jeffrey Delott. At the time I didn't know Jeffrey or any member of his firm. Because I practiced in a different area of the law we never crossed paths.

I spoke with Jeffrey Delott and and several of the attorneys who were also at the top of the list.

After much thought and deliberation I finally decided to retain Jeffrey and his firm.

I never looked back. Jeffrey immediately impressed me as an articulate and thoroughly capable attorney. He reviewed my case with me and answered every question I had. During our first telephone conversation he introduced me to his Paralegal Susan and let me know she would be available to assist me during the case. I found Susan to be a consummate and knowledgeable professional.

Once I retained Jeffrey I did what more clients should do. I got out of his way and let he and his top-rated staff get to work on my claim. They did so and worked tirelessly on my behalf.

I can tell anyone who is considering retaining a Social Security Disability law firm to represent them to give very serious consideration to Jeffrey and his firm. They are very good at what they do!............

...And I almost forgot to add......They won my case. I was approved.