Wednesday, January 25, 2017

Treating Testimony

I have always believed that the best evidence that a claimant can present to an administrative law judge (“ALJ”) at a Social Security Disability (“SSD”) hearing is live testimony from a treating physician. An ALJ typically rejects a supportive opinion from a treating physician by claiming it is inconsistent with other evidence or lacks support. An ALJ is duty bound to develop the record. Therefore, at a hearing, the ALJ would have to ask a testifying treating physician to explain the basis for his or her opinion before the ALJ could reject it for lacking consistency or support. 

ALJ’s frequently ask a Social Security medical expert (“ME”) to testify in order to create evidence to contradict the supporting opinions of treating physicians. It becomes extremely difficult for an ME to do that when the treating physician is present to rebut the ME. 

I represent a former cable installer whose SSD benefits were approved today. The ALJ gave equal weight to the opinions of the ME and the treating physicians, which he rarely, if ever does. I had advised the ALJ that the claimant’s treating physician would be waiting by the telephone to testify at the hearing, but it was unnecessary because the ME testified favorably to the claimant. I doubt that the ME would have testified favorably, or that the ALJ would have provided the opinions of the ME and treating physician equal weight, had the latter not been standing by to testify.

Tuesday, January 17, 2017

SSD Bench Decisions

Virtually every client appearing for a hearing on a Social Security Disability (“SSD”) claim asks when they can expect to receive a decision, or will the administrative law judge (“ALJ”) say what the decision is at the hearing. 

It is a rare case when an ALJ tells a claimant at a hearing, that is, from the “bench,” that SSD benefits are being approved. When that happens, the ALJ frequently issues a bench decision for the fully favorable decision. The written decision that follows in a few days is shorter than a typical fully favorable written decision. 

I find it surprising that more bench decisions are not issued. ALJs consistently state that they are under significant pressure to issue more decisions. Producing a bench decision takes less time and effort than a traditional written decision. I represent a former automotive repairer with a bad back and knees who received a bench decision today. I suspect that ALJs usually do not issue bench decisions because they may want to avoid having to explain at a hearing why they are unwilling to issue a bench decision to other claimants.

Pontine Stroke

According to, a pontine stroke is one that occurs in the pons, which is a portion of the brain stem. The pons, which is located between the midbrain and medulla, relays messages between the cerebral hemispheres and cerebellum. Common symptoms include double vision, dizziness, vertigo, slurred speech and imbalance. 

Being disabled from a condition that is somewhat atypical may have helped one of my client’s get approved for Social Security Disability (“SSD”) benefits. The State agency usually requires claimants to attend a consultative examination (“CE”) that its contracted doctor performs. CE opinions are almost always less supportive than treating doctor opinions. 

I represent a claimant who suffered from a pontine stroke. The State agency wanted to send the claimant for a CE to Industrial Medicine Associates (“IMA”), which I objected to for several reasons. On this occasion, the State agency agreed with my request that the claimant’s treating doctor perform the CE. 

The treating doctor’s CE report stated that the claimant suffered from slurred speech, imbalance, spasticity and right sided weakness, including abnormal gross and fine manipulation. The CE report also provided a less than sedentary work ability. The State agency approved SSD benefits after receiving the report. 

Treating doctors frequently supply opinions that claimants possess less than sedentary work abilities to the State agency, but those opinions are usually rejected in favor of the IMA opinion, or are simply rejected on the grounds that determination of disability is for the State agency to make. It may be possible that because the claimant’s problem was somewhat unusual, IMA lacked a proper doctor to do the CE, and therefore, the State agency agreed to allow the treating doctor to do the CE.