Thursday, March 27, 2014

SSA Staff Attorneys

Just as Administrative Law Judges are now required to have more evidence supporting their decisions when approving Social Security Disability (“SSD”) benefits, so too do the staff attorneys.

I represent a claimant with severe back problems. The medical evidence included a report from the treating neurologist, who explained that the claimant’s lumbar neuropathy resulted in restrictions and limitations that precluded full time work. The neurologist had been treating the claimant well before the claimant said he became disabled. Diagnostic testing confirmed compression of both the L4 and L5 nerve roots. Up until recently, the aforementioned reports would have been sufficient to receive an approval. 

Prior to a hearing, I was advised by a staff attorney that additional evidence would be needed to more clearly establish the onset of the claimant’s disability. The neurologist had no problem providing a relatively short narrative report explaining the onset of the claimant’s disability. After the narrative was submitted, the claimant did in fact receive a fully favorable decision. 

It is unclear if the elevated burden of proof for SSD applications, which according to SSA employees has been in place for about two years, is intended to be permanent. If it is, a study should be done to determine if the extra work resources used to evaluate applications now is costing more than the money saved on denied applications that would have been approved. Perhaps more importantly, what are the demographics of those additional applicants who are now being denied? For example, are those new denials mostly comprised of unrepresented claimants, or claimants who cannot afford treatment?

Patchogue Problems Persist

Social Security’s Patchogue District Office has a history of failing to provide the same level of service compared to other offices. Although their mistakes are eventually corrected at the hearing level, the delay imposes hardship on claimants in the interim. 

 On October 4, 2012, I filed an application seeking Social Security Disability (“SSD”) benefits for a 56 year old landscaper, who suffers from diabetes and arthritis. The claimant’s SSA-16 form stated that the claimant stopped working for FedEx on July 7, 2012, which specified that the FedEx employment should be considered an unsuccessful work attempt (“UWA”) because it lasted less than three months. Since FedEx was irrelevant because it was an UWA, the claimant’s SSA-3368 form stated that the claimant stopped working, as a landscaper, in 2007. 

In June 2012, the State agency found the claimant became disabled from his heavy work as a landscaper on July 7, 2012, by giving controlling weight to the opinion of the treating physician. The obvious question was why was the claimant found disabled as of July 7, 2012 instead of 2007. To learn the answer we tried to call Patchogue. 

Despite repeated messages, nobody from the Patchogue District Office would return our calls after we learned that the State agency applied a July 7, 2012 onset date. We had to call another local office to try get information. Ms. Henpfling from the Riverhead District Office told us that Patchogue failed to follow protocol when a claimant’s application contains discrepant onset dates in the SSA 16 and SSA 3368. Without making any attempt to contact our office, and without the permission or authority of the claimant or us, Patchogue took it upon themselves to cross out the year 2007 on the claimant’s SSA 3368, and handwrote in July 7, 2012 for the onset date. 

Patchogue’s error was corrected by the Jericho hearing office today, as the claimant received a fully favorable decision with the correct onset date. The end result is that the claimant will be awarded more than a year of additional benefits, but it took nearly two years to get the error corrected. Not only did the delay make it difficult for the claimant to pay his bills, but it also wasted the time of the hearing office, all of which could have been avoided if Patchogue would answer a phone.

Benefits Turned On Vocational Error

I represent a machinist whose application for Social Security Disability (“SSD”) benefits was approved today after the administrative law judge (“ALJ”) corrected a vocational error made by a State agency examiner named J. Nimrod. The state agency makes the initial decision whether to approve SSD benefits. 

Nimrod stated that the claimant’s past relevant work included a position as a “clerical/secretarial worker,” which would be a sedentary job. The problem is that Nimrod’s statement was untrue. As made explicitly clear in the claimant’s application, the only job she had was as a machinist. 

Even though the claimant stated that she only had one job during the last 20 years, Nimrod made her complete Form 3369, which is only to be completed if a claimant had more than one job during the last 15 years. The claimant completed the form, and confirmed that her occupation was not sedentary or light, but was medium, because she was on her feet up to 8 hours a day, sat only 1-2 hours a day, and lifted up to 50 lbs, including 25 lbs frequently. 

Under the medical-vocational rule that applied to the claimant’s situation, if her past work was as a machinist, and she were limited to sedentary work, then she would be entitled to SSD benefits. The ALJ agreed that the claimant’s sole past relevant work was as a machinist. Because the ALJ also agreed that the claimant only had a sedentary work capacity, and was therefore unable to do her past medium work as a machinist, her benefits were approved.

Tuesday, March 18, 2014

Disability Benefits While Working

The first question that the Social Security Administration (the “SSA”) asks when evaluating an application for Social Security Disability (“SSD”) benefits is whether the claimant is working.  The SSA typically relies on information obtained from the IRS.  If you are working, and the amount you earned is substantial, then your SSD application will be denied.

Under certain circumstances, you can work or receive money, yet still have the right to collect SSD benefits.  One way that you can work without it affecting your right to SSD benefits is if the work does not constitute “substantial gainful activity” (“SGA").  Similarly, if your income is not derived from work, then it does not affect your eligibility for SSD benefits either.

I received a fully favorable decision on-the-record today after providing the SSA with information about earnings that my client received after she stopped working.  First, the SSA agreed that a portion of the earnings, which came from a part time job, was too low by itself to constitute SGA.  Second, the remaining portion of the earnings, which amount was large enough that it could have qualified as SGA, was not deemed SGA since it did not come from work, but rather, reflected money that the claimant received as a member of a class action lawsuit. 

There are other situations where you can receive an income, yet still receive SSD benefits. Do not assume that you cannot collect SSD benefits simply because you worked or received money after the date that you claim you became disabled.

Monday, March 17, 2014


According to the American College of Rheumatology, Scleroderma (also known as systemic sclerosis) is a chronic disease that causes the skin to become thick and hard; a buildup of scar tissue; and damage to internal organs such as the heart and blood vessels, lungs, stomach and kidneys.  The effects of scleroderma vary widely and range from minor to life-threatening, depending on how widespread the disease is and which parts of the body are affected.  The Scleroderma Foundation estimates that 300,000 people in the United States suffer from scleroderma, which is incurable, disabling and, often, fatal.

I represent a banking executive whose application for Social Security Disability (“SSD”) benefits was denied by the State agency on the grounds that the claimant’s condition should not stop her from being able to work.  Social Security agreed that the claimant had scleroderma, it just did not want to accept that the condition was severe enough to render the claimant, who was under 50 years of age, incapable of any type of full time work.

The most concrete way to establish the severity of scleroderma is by showing that it meets the criteria of a “listing” (see 5/3/12 blog) specifically, 14.04.  If the scleroderma meets the listing 14.04, then the claimant is presumptively deemed disabled.  The best way to show that a claimant meets a listing is by getting the treating specialist to provide a medical opinion explaining why the claimant meets each of the listing’s criteria.  Sure enough, today, the ALJ approved the claimant’s SSD application based on her rheumatologist’s opinion that claimant’s scleroderma met listing 4.04. 

Wednesday, March 12, 2014


Agoraphobia is an irrational and often disabling fear of being out in public. According to the Anxiety and Depression Association of America, people with agoraphobia stop going into situations or places in which they've previously had a panic attack in anticipation of it happening again, and avoid places where they feel immediate escape might be difficult. Some agoraphobes cannot travel beyond their safety zones without suffering severe anxiety. 

The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration's Office of Disability Adjudication and Review. The HALLEX is used by administrative law judges (“ALJs”) when administering hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX procedures and policy statements govern hearings. 

HALLEX I-2-3-10 concerns scheduling hearings. Among other things, HALLEX I-2-3-10 provides that an ALJ will consider conducting the hearing at the claimant's request by telephone. Specifically, HALLEX I-2-3-10 notes that, “the regulations permit the claimant or any party to the hearing to request to appear at the hearing by telephone. The ALJ will grant the request to appear by telephone if the ALJ determines that extraordinary circumstances prevent the claimant or other party from appearing in person.” 

The ALJ granted my request to have the claimant appear by telephone due to her agoraphobia. I had the claimant’s husband appear in person to testify, and he explained that that his wife did not sound terribly anxious precisely because she was at home, but that her condition would significantly deteriorate if she were outside that safe zone. The ALJ understood, and issued a fully favorable decision today approving her for disability benefits.

Tuesday, March 11, 2014

Padro Deadline

While the Padro class action was settled last year, notices about the settlement were just sent last month to class members whose applications were denied by the Queens Five. In order to take advantage of the settlement, class members must affirmatively request a new hearing before a non-Queens Five Administrative Law Judge (“ALJ”). 

The requirement to affirmatively request a hearing was an obvious mistake because why would a claimant chose to let a biased denial stand? The settlement requires class members to request a hearing in 60 days. Failure to do so will likely result in being denied the right to a hearing before a new ALJ. The deadline mandates that a hearing be requested in 60 days, which means that about half the time to request a new hearing has expired.