Thursday, June 15, 2017

Prehearing Brief

I represent a 54 year old Social Security Disability (“SSD”) claimant with chronic asthma and prostate cancer, who not only worked full time as a detective, but also worked 20 hours a weekend as a bus driver. In a prehearing memorandum, I argued that the claimant’s work history alone should warrant approving the SSD application because the claimant’s work ethic shows that he would have continued working if he were physically able. The claimed earned over $100,000 annually, so he had no incentive to exaggerate his condition in order to receive a third of his salary in SSD benefits. 

The claim file exceeded 1,500 pages of medical records, when I was retained to handle the claimant’s appeal. I provided reports from the two pulmonologists, urologist, and internist that detailed the claimant’s inability to perform even sedentary work. Even though my prehearing brief explained that if the claimant were capable of sedentary work, he would still have to be found disabled in accordance with the medical-vocational rules, and the Police Pension Fund found the claimant disabled from his past work as a detective, I was told that the ALJ still felt a hearing was necessary. 

A month before the hearing, the only evidence adverse to the claimant’s SSD application was the opinion of the State agency doctor who never examined the claimant. I supplied websites in which the State agency doctor identified himself as a nephrologist, and the claimant did not have a kidney problem. I asked the ALJ again to review my prehearing letter. 

I was advised today that a hearing will not be required. I suspect that ALJs will not review prehearing memos until shortly before the hearing. If you believe your case is very strong, then submit a prehearing brief explaining why the vocational and medical evidence precludes the need for a hearing. The ALJ may agree.

Thursday, June 8, 2017

Rule Change

Social Security recently changed its rules and regulations concerning unsuccessful work attempts. (“UWA”)

If you stop working at a job in less than three months due to a medical condition, then it can be considered an UWA, which would not impact the ability to receive Social Security Disability (“SSD”) benefits. Prior to November 16, 2016, there were additional requirements to qualify for an UWA if the work lasted between three and six months. Those additional requirements have now been removed. 

I represent a 43 year old former graphic designer with multiple sclerosis who was able to avoid a hearing because of the new UWA rule. The claimant’s SSD application was approved yesterday, even though he had a five month UWA after he stopped working. Prior to November 16, 2016, the claimant would have needed to attend a hearing because he would have needed to explain why he satisfied the additional requirements to qualify for the UWA.