Monday, February 29, 2016

ALJ Quotas

Last year, a federal appellate court rejected a lawsuit by Social Security Administration (“SSA”) Administrative Law Judges (“ALJ’s”) that had challenged the SSA’s requiring ALJs to decide between 500 and 700 cases annually. The court said that while some ALJs might dismiss more cases than they would have preferred to do, the increased caseload did not interfere with decisional independence. 

Last year, ALJ Weiss dismissed an SSD case that did not even address the findings and opinions from the primary treating physician, a psychiatrist. The decision was so contrary to the ALJ’s typically cogent decisions that my appeal comments stated: 

“Presumably, the ALJ had a quota to meet, and had somebody else write the Decision for him, which he never bothered to review.” 

It appears that my supposition was correct. The Appeals Council remanded the claim for reconsideration of the psychiatrist’s opinion. The ALJ approved the claim today without an additional hearing based on the psychiatrist’s findings and conclusions, which shows the ALJ would have approved the claim initially had he been able to spend more time on it.

Wednesday, February 24, 2016

Appealing Partially Favorable SSD Decisions

When you apply for Social Security Disability (“SSD”) benefits, the State agency  can approve your application, but based on a date after you claimed you became disabled. The result of that partially favorable decision (“PFD”) is that you may lose benefits, and it may take longer for you to receive Medicare

To decide whether or not to appeal, you must review the entire file. However, frequently the reason why a particular later date was selected for the disability onset cannot be discerned. Regardless, the issue boils down to what changed between the time you claimed you became disabled, and the date you were found to become disabled. 

I just received two ALJ decisions that rejected the State agency PFDs. One was a 56 year old former bread machine operator with upper left arm impairments, and the other was a 52 year old former stock clerk with progressive orthopedic injuries from car accidents. The State agency claimed there was no contemporary medical records for either. At their hearings, I showed that there were in fact contemporary medical records for the former, and a valid retrospective medical opinion for the latter. 

The ALJ agreed with my arguments, which essentially demonstrated that each claimant’s medical restrictions and limitations had existed since the date that each claimed they had become unable to work. Consequently, the ALJ issued a fully favorable decision for each claimant. The result was that each claimant received in excess of another year of SSD benefits.

Tuesday, February 16, 2016


The Social Security regulations, and HALLEX rules for Administrative Law Judges (“ALJs”), allow claimants to request subpoenas for the appearance of witnesses or documents. New York courts have repeatedly recognized the right of a claimant to subpoena and cross-examine witnesses who submit reports adverse to the disability claim, especially when ALJs substantially rely on the report. 

The courts have held that an ALJ abuses his discretion, and cannot rely upon the opinion of a consultative examiner (“CE”) if it was unclear if a CE reviewed the treating doctor’s reports, or if the reliability of the CE’s report is sufficiently controversial to merit cross-examination. I recently invoked a claimant’s right to subpoena a CE for cross examination because her opinion was contradicted by six other doctors, and the reliability of the CE’s aberrant and vague report was questionable, especially in light of her medical license revocation and incarceration for felonious fraud. The CE needed to be cross examined about her review of the treating doctor reports, and her qualifications for evaluating them. 

The ALJ issued a fully favorable decision today, which failed to address the subpoena. Had the ALJ denied the claimant’s disability application, then the failure to issue the subpoena, let alone address the subpoena request, would have provided automatic grounds for a remand.