Monday, July 17, 2017

Video Representation

I represent a former nurse whose claim for Social Security Disability (“SSD”) benefits was approved today by an Administrative Law Judge (“ALJ”) from Albany. I had requested to appear via video at the Long Island hearing office with the ALJ and the claimant appearing in Albany. 

When the Albany hearing office scheduled this matter for a hearing, it insisted that I appear in person at the Albany hearing office. The Albany hearing office claimed that I had asked for a hearing at the Long Island hearing office, which was false. To compound matters further, the Albany hearing office stated that the claimant signed a Video-opt-out, and failed to mention that Form HA-55 specified that I wanted to appear by video teleconference at the hearing, which was also untrue, and could be confirmed by reading the document. 

Considering that experts frequently appear via telephone, I requested that I appear at the claimant’s hearing, via Long Island ODAR's videoconferencing. I explained that the claimant’s right to the counsel of her choice should not be denied because she had to leave Long Island because she could no longer afford to live there after becoming disabled. After contacting the ALJ directly, he agreed to allow me to appear from the Long Island hearing office via videoconference. 

When I was retained, the claimant resided on Long Island. However, because her disability prevented her from earning a living, she was forced to relocate to the Albany area where the cost of living was more affordable. Having to relocate is not uncommon, and a claimant should not have to discharge their attorney of choice because of financial reasons. Kudos to ALJ Arthur Patane for recognizing that plight.

Wednesday, July 5, 2017

Treating Doctor CE

The Social Security Administration (“SSA”) invariably sends notices to applicants seeking Social Security Disability (“SSD”) benefits stating that they to attend a consultative examination ("CE”). In New York, claimants are told they have to be examined by a doctor from Industrial Medical Associates (“IMA”). However, the SSA’s program operations manual system (“POMS”) states that a claimant’s own medical sources should be asked to perform the CE for the back problem. 

When my clients get notices for an IMA CE, I advise the State agency about the relevant POMS, and offer to have the claimant’s doctor perform the CE and provide a detailed written report. To ensure there is no issue regarding the quality of the report, I tell the State agency to specify exactly what they would like the report to include, and to provide me with the same information they send to IMA when asking it to conduct a CE. 

Several disability analysts have recently agreed to allow claimants’ doctors to perform CE in lieu of IMA. In each instance the claim has been approved. One of those cases involved a 49 year old former Director of a State agency whose primary impairments are Lyme disease and fibromyalgia. Both conditions are frowned upon by the State agency, which invariably denies SSD applications based on those conditions. Nonetheless, shortly after the claimant submitted the CE report from her doctor, the SSD application was approved.

Monday, July 3, 2017

Investigating DDS Doctors

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 still 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. It apppears that ALJs do not review prehearing briefs 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.