Wednesday, June 24, 2015

Undisclosed ALJ Rule

For many years, I have contended that a person who had a high income when working deserved to be believed when they said they could not work, especially when working at the same job or for the same employer. After all, the higher one’s income, the greater the discrepancy between pre-disability income and the amount provided by disability benefits. Moreover, logic dictates that such a person has a strong work ethic. I regularly advise my clients that regardless of what an administrative law judge (“ALJ”) says in their decision about a claimant’s credibility, they mostly base the credibility determination upon the claimant’s work history. 

Recently, a federal district court judge finally stated in explicit terms that the aforementioned assumptions are valid. In a decision that reversed an administrative law judge’s (“ALJ”) denial of social security disability (“SSD”) benefits, the federal district court judge specified that if a claimant worked for the same employer over a period of many years, or consistently had high earnings, then those factors would be particularly relevant to the credibility assessment. 

I represent a 57 year old claimant, whose application was approved today by an ALJ without a hearing. Like many other claimants whose cases proceed to a hearing, he had an assortment of musculoskeletal problems. Like many other claimants whose cases proceed to a hearing, this client had reports from his doctors showing that he lacked the ability to perform even full time sedentary work, which were supported by diagnostic testing. Unlike most other claimants with musculoskeletal problems and supporting medical evidence whose cases proceed to a hearing, this client worked for the same employer for 34 years, and was earning close to a $100,000. 

I have no doubt that the reason why the ALJ approved the SSD application without a hearing is because it was obvious that the claimant would have continued to work had he been able to do so. This undisclosed rule should be kept in mind when developing the record, and should be emphasized when submitting an OTR. Similarly, if a hearing ensues, ensure that the record reflects the claimant’s work history beyond the last 15 years.

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