Thursday, July 12, 2012

When Objective Evidence Isn't Enough

When applying for Social Security Disability (“SSD”) benefits, a request for a fully favorable decision on the record (“OTR”) will be granted if the claim is sufficiently supported by objective evidence. If not, then a hearing is needed so the Administrative Law Judge (“ALJ”) can assess the testimonial and non-medical evidence, and the emphasis at the hearing should be on that evidence.

I represented a 49 year old sanitation worker at a hearing after his OTR was denied. There were three points that I emphasized at the hearing; none of which concerned the medical evidence.

First, that the claimant performed unskilled work because that is all he is capable of, having attended special education from kindergarten through high school due to reading and comprehension problems that the school system considered “severe disabilities.” Second, the claimant, who worked for a New York State municipality, was found disabled under the New York State Retirement and Workers Compensation Systems. While those disability determinations were not binding on the ALJ, they certainly were in a better position to determine if the claimant could do his past work than the ALJ. Third, the claimant had been earning $70,000 annually. Therefore, I argued that it made no sense to contend that the claimant stopped working and was faking his disability so he could get about $1,887 a month in SSD benefits, which was less than a third of what he earned.

While the claimant’s OTR was denied, his SSD benefits were approved after the hearing. The only difference was the delving into the non-medical evidence. The only time it makes sense to focus on the objective evidence is when you are dealing with an ALJ who is known to deny well supported claims. In those instances, clearly describing the supporting objective on the record should improve the chances of a remand, since the Appeals Council seems to review hearing testimony closer than the documentary evidence.

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