Monday, January 30, 2012
Because the SSA usually does not request functional assessments from claimants’ doctors, the claimant must do so. Historically, it was very difficult to obtain functional assessments for claimants who were treated through the Veterans Health Administration (“VHA”). However, that changed when the VHA issued a directive on October 29, 2008, 2008-071, which requires it to assist veterans with completing forms for various benefits, specifically including Social Security Disability (“SSD”) benefits.
A veteran retained me after his application for SSD benefits was denied. Citing the VHA directive, I was able to secure a functional assessment from the claimant’s treating physician at the VHA. With the addition of the VHA Medical Source Statement containing the claimant’s functional assessment, the SSA approved the claimant’s SSD benefits.
Wednesday, January 25, 2012
When applying for disability benefits, the question is has the schizophrenia deteriorated the claimant’s ability to function in a work setting. A 41 year old college graduate, who had been a shoe salesman for nearly a quarter century, retained me after his application for Social Security Disability (“SSD”) benefits had been denied on the ground that he could “perform simple low level jobs.” Social Security agreed that the claimant could no longer work as a shoe salesman, but identified three other jobs from the Dictionary of Occupational Titles that he purportedly could perform.
Before preparing to attack Social Security’s conclusion that the claimant could perform the three identified occupations, I decided to investigate if the evidence would demonstrate that the claimant met the “listing” for schizophrenia. If a claimant meets a listing, then Social Security must find that the claimant is disabled without needing to determine if the claimant has the functional ability to work.
The records in the claimant’s Social Security file appeared to show the claimant met the criteria of the listing for schizophrenia. Rather than making a legal argument explaining why the claimant met the listing, I provided the listing criteria to the treating psychiatrist, and asked for his medical opinion as to whether or not the claimant met the listing. Since the psychiatrist did opine that the claimant met the listing, I requested a fully favorable decision on the record (“OTR”), which was approved.
The OTR was particularly advantageous to the claimant. Besides reducing his attorney fee, the OTR also enabled the claimant to avoid the stress of a hearing. Moreover, knowing that he would be approved for SSD benefits mitigated the likelihood of the claimant’s condition deteriorating even further.
Wednesday, January 18, 2012
I represent a 40 year old machinist with orthopedic impairments, diabetes, and sleep apnea who was just approved for Social Security Disability (“SSD”) benefits without a hearing even though he is receiving an income.
The first question to be determined when reviewing an SSD application is whether the claimant is working. If the answer is yes, and the amount earned from working is substantial, then the application will be denied. Social Security normally investigates evidence of work activity after a claimant’s disability onset date by reviewing earnings information from the IRS. However, not all income is treated the same.
To be eligible for disability benefits, a person must be unable to engage in substantial gainful activity (“SGA”). The income must be derived from work activity. Income that is not related to work does not constitute SGA. Examples would include passive investment income, return of loan payments, gifts, and other types of disability benefits.
The claimant’s application was held up because Social Security said they had evidence of work activity after the onset date. The evidence was simply learning that the claimant had income, as opposed to any evidence of actual work activity. Once I established that the source of the income were long term disability benefits, SSD benefits were approved.
Tuesday, January 17, 2012
The ostensible purpose of a hearing is to assess the credibility of the claimant’s testimony if the medical records are deemed equivocal. Why was the psychologist’s report accepted as a reliable measure of the claimant’s symptomatology on this occasion? I believe the answer is the claimant’s work history.
The claimant worked for over 30 years. I cited the case law holding that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability, and that such a record justifies the inference that a claimant stopped working upon becoming disabled. In other words, the vocational evidence buttressed the medical evidence.
Even more important than the longevity of the claimant’s work history was his earnings history. I emphasized that the claimant was earning $250,000 a year. I posed that if the psychologist’s opinion that the claimant met a listing were rejected, then the only issue was whether the claimant, who was earning $250,000 a year was exaggerating his claim that he lacks the ability to perform simple, unskilled work in order to receive SSD benefits equal to less than 10% of his predisability income.
Sometimes commonsense is more important than medical evidence.
Thursday, January 12, 2012
The claimant’s physiatrist and arthritis specialist provided supporting records and reports. However, that alone is not usually sufficient to avoid being directed to attend a CE. I ascribe the anomaly to the fact that in the recent past the claimant had been receiving pain management from a physician who has performed CEs for Social Security in connection with SSD applications. If I’m right, this raises two implications.
The first implication is that Social Security presumes that treating doctors lack credibility. Despite my submitting supporting medical records and reports when applying for SSD benefits, Social Security virtually always asks that my clients attend a CE to be performed by one of their doctors. In other words, it is presumed that a treating source’s opinion cannot be relied upon. That implicit assumption runs counter to the Social Security rules and regulations that require greater weight to be given to treating sources, because their opinions are supposed to be considered more reliable.
The second implication that is raised is whether one should consider seeking treatment from a doctor who also works for the CE provider, which in New York is usually Industrial Medicine Associates (“IMA”). While experience indicates that the doctors who work for IMA may lack the qualifications of a claimant’s other treating doctors, it appears that Social Security will give undue weight to the doctor who also works for IMA. While the IMA doctor probably will not improve a claimant’s treatment, it apparently could expedite the receipt of SSD benefits.
Thursday, January 5, 2012
I represent a 50 year old carpenter whose application for Social Security Disability benefits was approved today because his Kienbock's disease had become disabling. As usual, the claimant was ordered to go to “IMA Disability Services”, which I explained was unnecessary. The case law makes clear that a carpenter has no transferable skills. Without being about to use his dominant hand due to Kienbock's disease, the claimant obviously could no longer perform has past relevant manual labor. Under the medical-vocational rules, the claimant had to be found disabled even if he were physically capable of sedentary work.
Wednesday, January 4, 2012
Over the years, my office has consistently experienced more problems with the Patchogue field office than any other local field office. It defies credibility that Patchogue regularly claims it cannot find documents that I have submitted by certified mail and fax with a confirmation of receipt. The two most recent examples of Patchogue’s ineptitude came to light yesterday.
The first case concerns an application that I filed on May 5, 2011. When I did not receive a decision, I faxed a letter to Patchogue on November 14, 2011, advising that it had been over six months since I filed the claimant’s application, and asked when I could expect to receive a decision. Because Patchogue failed to respond, my office called yesterday, and was told by a Ms. Peterson that the claimant’s application had been denied in October, but that I wasn’t told because they did not have written notice that the claimant had appointed me as his representative. However, even if that were true, which it is not, Ms. Peterson failed to explain why she failed to send a copy of the denial notice to the claimant.
The claimant’s application package was sent by certified mail, and included form SSA-1696, which is written notice that I was the claimant’s representative. Additionally, we provided Patchogue with a copy of a letter dated May 17, 2011 that Mr. Grabiner, the District Manager of the Patchogue office, sent to me confirming that Patchogue had “received written notice that [the claimant] has appointed you to act as the representative in connection with this claim.”
Not surprisingly, neither Ms. Peterson, Mr. Grabiner, nor anyone else at Patchogue, was able to explain the error. Nor was anyone at Patchogue able to explain why they failed to respond to my November 14, 2011 letter, or phone calls regarding the same. Needless to say, due to Patchogue’s blunder the processing of the claimant’s application will be much delayed.
The second case involves an application that I had filed with Patchogue by mail and fax on October 27, 2011. Because I had not heard anything from Patchogue in response to the application, I had my assistant call them on December 15, 2011. Patchogue told my assistant that they were still “loading” applications from September, and to give them some time.
After discovering Patchogue’s incompetence with the first case discussed above yesterday, I directed my office to follow up on this other case immediately. Not surprisingly, Patchogue said that they did not have the application, and the representative transferred the call to the supervisor. My office left several messages and sent faxes, but the supervisor has failed to call back. Thus, another claimant will have to endure delays on their application due to Patchogue's failure to process an application properly or expeditiously.