Most people know what strokes are, and how devastating the symptoms can be. Due to the severe consequences from a stroke, claimants frequently get approved for Social Security Disability (“SSD”) benefits faster compared to other impairments. What do you think would happen to you if you had seven strokes?
A truck driver from Howard Beach retained me when he was denied SSD benefits after his sixth stroke. Both the claimant’s neurologist and his stroke specialist provided reports detailing how the claimant was incapable of any type of full time work. While waiting for his hearing, the claimant suffered a seventh stroke last December, which left him institutionalized without any ability to care for himself.
Last December, Gloria Pellegrino, the administrative law judge (“ALJ”) that was assigned to the case refused to approve an OTR. Because the claimant lost the ability to speak, or use his arms or legs, the claimant’s partner had to testify at a hearing in April, and she described in horrifying detail the extraordinarily limited mental and physical abilities the claimant had even after his sixth stroke.
The ALJ terminated the hearing when the vocational expert (“VE”) started providing testimony that supported the claimant’s position regarding how certain occupations from the Department of Labor (“DOL”) Dictionary of Occupational Titles (“DOT”) were currently performed according to the latest DOL information from O*Net.
Despite the overwhelmingly supportive objective medical evidence and opinions from the claimant’s specialists, the ALJ refused to approve the claimant’s SSD benefits, and scheduled a second hearing.
The second hearing took place July 13th, and this time a different VE testified. The VE also identified certain occupations from the DOT in response to a hypothetical question from the ALJ. When I insisted that the VE describe how he calculated the number of jobs he said existed for those occupations, he said they were from Job Browser. When I said that told me the source of his numbers, but not how that magic box derived those numbers, the VE could not answer.
Next, I had the VE testify that the occupational descriptions from the DOT that he identified were 40 years old. After I started questioning the new VE about how those occupations were currently performed according to the latest DOL information from O*Net, the ALJ once again suddenly terminated the hearing. The VE testified that the O*Net was reliable and current. The ALJ still refused to approve the claimant’s SSD benefits, and directed me to submit a brief regarding my vocational contentions.
On July 16th, I submitted a nine page brief that detailed the legal and vocational reasons why the ALJ’s reliance on the VE’s testimony was unreliable. The two primary reasons were the current DOL information showed the occupations the VE identified were no longer performed as unskilled work, and that the VE failed to explain how he calculated his job numbers. The ALJ still refused to approve the claimant’s SSD benefits.
A month ago, I submitted another brief based on Brace v. Saul, 2020 WL 4727345 (7th Cir. 08/14/2020), which held that an ALJ could not accept VE testimony that failed to explain the methodology for job numbers.
Today, ALJ Pellegrino approved the claimant’s SSD benefits, and claimed that she rejected all of the arguments in my briefs because the treating specialist stated that the claimant would be off task more than 10% of the time. If that were true, then the ALJ would have, and should have, approved the OTR last December.
Having an experienced, Social Security Disability attorney is vital when applying for SSD benefits. Please feel free to call my office for a free phone consultation. My offices are conveniently located in both Nassau and Suffolk counties on Long Island.
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