Tuesday, August 28, 2012

Carpenter Wins SSD For Wrong Reason

I represent a carpenter with an arthritic neck, back, and shoulder, carpal tunnel syndrome, and sleep apnea, who was awarded Social Security Disability (“SSD”) benefits yesterday. However, the decision approving the SSD benefits did so on grounds that were not entirely correct.

The claimant was 49 years and 10 months old at the time he became disabled. A "borderline" situation exists where the claimant is "within a few days to a few months of reaching an older age category. The claimant would have reached an older age category in two months when he became 50 years old. Under similar “borderline” circumstances, the courts have refused to apply the medical-vocational rules mechanically, and have applied the older age bracket. For example, in Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N.Y. (1995), the Court ruled that the claimant, who was three months shy of his 50 birthday, should have been treated as if he were in the 50 year old category.

If the claimant had been treated as a 50 year old, then even if he had a sedentary work capacity, the medical-vocational rules would have required that he be found disabled. The claimant’s arthritis specialist and his neurologist both said the claimant lacked a full time sedentary work capacity. While the Administrative Law Judge (“ALJ”) determined that the claimant had a full time sedentary work capacity, as noted above, applying the borderline case doctrine, the claimant should have been found disabled under the medical vocational rules.

For some reason, the ALJ did not apply the borderline case doctrine, and therefore, did not find the claimant disabled under the medical vocational rules. Instead, the ALJ required a hearing at which he called a vocational expert (“VE”) to testify. The VE testified that given the claimant’s vocational background and physical limitations, there were no jobs that he could perform, and the ALJ accepted that testimony to award SSD benefits.

Had the ALJ applied the borderline doctrine, which is contained in the hearing rules known as the HALLEX, then there would have been no need for a VE. In fact, there would have been no need for a hearing as the medical vocational rules required that the claimant be found disabled.

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