DDS’s Unfair and Unequitable Practices

One of the most frustrating aspects of representing Social Security Disability ("SSD") claimants is when  a decision-maker forms an opinion about a case before fully reviewing the available evidence.

Recently, our office became involved with an SSD claim where the assigned Disability Determination Services ("DDS") analyst scheduled a Consultative Examination ("CE") on the first day the case was assigned to him. The analyst confessed that he always schedules a CE immediately.  The analyst was unable to explain why he did so without waiting for the claimant's medical records or review information from the claimant's treating physicians.  The analyst's actions directly conflict with the obligation of the Social Security Administration ("SSA") to provide the claimant with fair and equitable service, including seeking information from treating sources.

The situation became even more concerning when the analyst advised us that hospital records had been requested but never received. The claimant's file already contained more than 800 pages of hospital records that were readily available for review. When this was pointed out, the analyst shifted his position to asserting the hospital records did not support the claimant's disability claim.  The problem with that statement is obvious: since he never reviewed the records it was impossible for him to conclude they were unsupportive.

Our client has an established treatment history with his own physicians. His treating doctor has provided extensive treatment records as well as a Medical Findings Summary outlining the functional limitations that prevent the claimant from sustaining full-time employment. Those opinions come from medical professionals who have examined and treated the claimant over an extended period of time, and they are in the best position to evaluate the severity of his impairments.

The SSA's own policies recognize the importance of obtaining evidence from a claimant's treating sources whenever possible, as the preferred source for the CE.  Treating physicians have firsthand knowledge of a claimant's symptoms, treatment history, response to care, and functional limitations. While DDS has the authority to order a CE when evidence is unavailable or insufficient to make a determination, a CE is intended to supplement the record with information that could not be obtained from the treating sources--not replace a thorough review of the medical evidence already available.

Despite being reminded about the substantial medical evidence already in the file, and that additional supportive opinions from treating sources would be forthcoming, the analyst continued to insist that, "in my professional opinion, the claimant will still need to attend a CE."  That assertion is disturbing on many levels, but especially since the analyst is not a doctor, and is blatantly ignoring SSA’s regulation to handle this claim and every claim equitability.  Such assertions raise legitimate concerns about whether the disability determination process is being conducted in the manner intended by SSA regulations. A CE is not supposed to be a routine step taken before the available medical evidence has been reviewed. Claimants should not be subjected to CEs simply because that is what a lazy analyst "always does."

Every disability claim deserves an individualized review based upon the evidence, and to be treated fairly and equitably. Decisions should be guided by medical records, treating source opinions, and the facts of the particular case; not by preconceived notions or standardized assumptions. Claimants who have spent years treating with their doctors deserve to have those records carefully considered before CEs are scheduled or conclusions are reached.  It is no wonder that DDS now conceals the analysts’ names. 

Cases like this highlight the importance of experienced representation. Attorneys can help ensure that medical evidence is properly submitted, challenge inaccuracies in the record, and advocate for a fair evaluation of the claim. The disability process works best when decisions are based on a complete and thoughtful review of the evidence—not when conclusions appear to be reached before that review has even begun.

DDS Denials Overturned

A few of our recent blogs have focused on favorable On-the-Record (OTR) decisions, which has become a recurring theme for many of our cases. While we are always pleased when our clients receive the benefits they deserve, the increasing number of OTR approvals raises an important question; why are so many deserving claimants being denied earlier in the process when the evidence supporting disability is already present in the file?

Recently, our office represented a 43-year-old former retail store associate from Brooklyn, NY, who suffers from a combination of significant physical and mental health impairments. Her medical conditions include chronic physical limitations, severe migraines, bipolar disorder, and anxiety. As her conditions progressed, she became increasingly unable to perform even basic daily activities without assistance. She required a home health aide for approximately 35 hours per week to assist with daily routines and personal care. She had been issued a handicap parking permit due to her mobility limitations, and her treating providers consistently documented the impact her conditions had on her ability to function.

Despite the strength of the evidence, her claim was not approved at the initial application or reconsideration levels of the disability process. After the case was appealed to the hearing office, the evidence was reviewed more closely, and an OTR decision was issued, resulting in a fully favorable outcome without the need for a hearing before an Administrative Law Judge.

While every case is unique, we continue to see a pattern in many of these OTR approvals. In case after case, substantial medical evidence supporting disability is already contained in the file, yet the claim is denied at the Disability Determination Services level. By the time the case reaches the hearing office, the same evidence often leads to a favorable decision without any testimony being required.

This trend suggests that strong medical evidence is too often being overlooked or improperly evaluated during the initial stages of the disability process. For claimants, these unnecessary denials can mean months or even years of additional waiting, financial hardship, and stress before receiving benefits.

Cases like this serve as an important reminder that a denial is not always the end of the road. When the medical evidence supports disability, pursuing the appeals process can make all the difference.

If you are considering filing for SSD, call our office (888) 572-0861 for a free consultation.

 

 

Rare OTR

We recently helped a 31-year-old office assistant from East Meadow obtain Social Security Disability benefits after a serious motor vehicle accident left her unable to work. She sustained injuries to her wrist and hips, along with significant nerve damage, resulting in ongoing pain and functional limitations that prevented her from returning to full-time employment.

Despite extensive treatment, including multiple surgical procedures, her symptoms persisted. Her medical records documented ongoing pain, reduced mobility, difficulty using her hands, and limitations with standing, walking, and sitting for prolonged periods.

One factor that strengthened this case was the quality and consistency of the medical evidence. The claimant's treating physicians maintained detailed treatment records, and the operative reports from her surgeries provided objective evidence of the severity of her condition. The medical documentation clearly demonstrated that her impairments prevented her from sustaining full-time competitive employment.

Equally important was the claimant's diligence throughout the disability process. She consistently kept our office informed of every medical appointment, treatment update, and procedure. By promptly providing records and visit information, we were able to ensure that the Social Security Disability analyst had the most current evidence available throughout the evaluation of her claim.

Although a hearing had already been scheduled before an Administrative Law Judge ("ALJ") we continued to submit updated medical evidence as it became available. After reviewing the extensive record, the judge determined that the evidence overwhelmingly supported a finding of disability. Approximately two months before the scheduled hearing date, the judge issued a fully favorable On-The-Record ("OTR") decision, eliminating the need for the claimant to appear at a hearing.

An OTR decision is relatively uncommon and generally occurs when the medical and vocational evidence leaves little doubt that a claimant meets Social Security's definition of disability. Additionally, it is very rare for an ALJ to issue an OTR for a claimant that is under 50.  In this case, the combination of serious injuries, multiple surgeries, objective medical findings, and consistent treatment created a compelling record that supported approval without the need for testimony.

This case serves as a reminder that strong medical evidence and active participation in the disability process can make a significant difference. By keeping her treatment current and ensuring that all relevant records were submitted, this claimant helped build the type of record that allowed the judge to issue a favorable decision before the hearing even took place. 

Compassionate Allowance

A former client referred her husband to us to file a Social Security Disability claim after he was diagnosed with Stage 4 pancreatic cancer, a condition that qualifies for a Compassionate Allowance claim under Social Security guidelines. We were glad to assist with filing his claim on his behalf, even though we knew there would be no attorney fees.

Her husband, a 61-year-old mail handler from Laurinburg, North Carolina, was approved in less than two weeks. When we submitted the claim, we notified Social Security that it qualified for Compassionate Allowance treatment. Once the case reached the state agency for review, we promptly provided his pathology report, and the claim was approved

Hearing Loss Approval

Many people assume that hearing loss alone is not enough to qualify for Social Security Disability benefits. However, when hearing impairments are severe and accompanied by significant balance problems, they can have a profound impact on a person's ability to perform competitive work. Recently, our office successfully obtained disability benefits for a 56-year-old former union field representative from Deer Park, NY, whose long career was cut short by progressive hearing and balance disorders.

Our client developed profound bilateral otosclerosis, resulting in significant hearing loss in both ears. In addition to his hearing impairment, he experienced ongoing balance issues that affected his ability to safely navigate work environments and travel for his job duties. These symptoms made it increasingly difficult for him to perform the tasks that had been routine throughout his career.

The key to this case was strong medical evidence. His treatment records thoroughly documented the severity of his hearing loss, the progression of his condition, and the impact it was having on his daily functioning. Just as importantly, we worked with his treating physician to obtain a detailed Medical Findings Summary. The physician clearly explained how our client's hearing and balance limitations would interfere with his ability to sustain full-time employment on a regular and continuing basis and Social Security approved his claim for disability benefits.

When hearing impairments are severe, well-documented, and accompanied by symptoms such as balance disturbances, they can significantly limit a person's ability to work. Obtaining comprehensive medical records and detailed opinions from treating providers can make a substantial difference in the outcome of a disability claim.

If you are unable to work due to hearing loss, balance disorders, or another serious medical condition, please call our office at (888) 572-0861to schedule a complimentary call.

 

 

 

 

OTRs

One of the most frustrating aspects of representing Social Security Disability claimants is seeing strong cases denied despite substantial medical evidence supporting their claims. While the disability determination process is designed to identify individuals who qualify for benefits, there are too many times when critical facts and medical records are overlooked during the initial review stages.

Recently, our office represented two younger claimants whose cases were ultimately approved with On-the-Record (“OTR”) decisions by Administrative Law Judges (“ALJs”).  In both cases, the ALJs found the evidence compelling enough to issue favorable decisions without requiring a hearing. Unfortunately, both claimants endured lengthy delays and multiple denials before receiving the benefits they deserved.

The first claimant was a former draftsman from Syosset, NY, who suffered from significant mental health impairments that affected nearly every aspect of his daily functioning. His medical records documented ongoing treatment, consistent symptoms, and substantial limitations in his ability to work. Yet despite this evidence, the claim was denied at the Disability Determination Services (“DDS”) level.

As the appeals process continued, the claimant's circumstances became increasingly dire. He was evicted from his apartment, and he was living in his car.  We alerted Social Security to this and asked for his case to be expedited, but he still had to wait almost seven months for a decision on his disability claim. Even this level of instability and hardship failed to move the needle during the earlier stages of review.

When the case reached the hearing level, the ALJ reviewed the complete record and issued a favorable OTR decision. The ALJ recognized what had been evident in the medical documentation for quite some time: the claimant's mental health conditions were limiting and that prevented him from sustaining full-time employment.

The second claimant from East Meadow, NY has been disabled since childhood and applied for benefits under a parent's Social Security retirement record. Disabled Adult Child (“DAC”) claims require proving that the disabling condition began before age 22 and continued thereafter. In this case, the evidence supporting that standard was substantial.

The claimant's records documented longstanding impairments dating back to childhood. Medical providers supplied supportive documentation outlining the severity of his condition and its impact on functioning over time. Educational and treatment records further reinforced the continuity of his disability. Nevertheless, the claim encountered resistance during the DDS review process.

After a lengthy wait and additional appeals, the case reached an ALJ. Following a review of the evidence, the ALJ issued a favorable OTR decision, finding that the claimant met the requirements for benefits based on disability that began in childhood.

No disability claim is guaranteed approval, and every case is unique. However, these two cases serve as important reminders that an initial denial does not necessarily mean a claim lacks merit. When strong evidence exists, continuing the appeal process may make all the difference. 

If you or someone you know is considering filing for SSD or DAC benefits, please reach out to our office at (888) 572-0861 for a free consultation.

 

PSA: Overpayments

We have recently experienced a significant increase in phone inquiries from individuals receiving Social Security Disability ("SSD") benefits who have received an “overpayment” notice from Social Security. In essence, Social Security is indicating that they have paid more money than the claimants were entitled to receive.

Many SSD recipients find it challenging to subsist on the limited monthly benefit provided. If one’s health permits, it is possible to engage in limited part-time employment while receiving SSD benefits; however, it is essential to understand the earning limits stipulated by Social Security to avoid an overpayment.

Any form of compensated work constitutes employment, regardless of the nature or perceived difficulty of the job. The critical factor is the gross monthly income earned, not the type of work performed.

Recently, we consulted with a former client who is unable to meet her financial needs solely through SSD benefits. She supplements her income by babysitting, which involves collecting children from school and supervising them until their parents return home. Although she believed this activity would not impact her SSD benefits due to its simplicity, we advised her that Social Security considers only the total monthly earnings, irrespective of job complexity.

Social Security regulations are unequivocal. If your gross income exceeds the Substantial Gainful Activity ("SGA") threshold for more than a nine months trial work period within a 60-month period (regardless of whether these months are consecutive), you must notify Social Security to suspend your benefits temporarily. Should you become unable to continue working within five years, you may file for "expedited reinstatement" of your disability benefits without having to file a new application.  Failure to report excess earnings can result in substantial repayment obligations once Social Security identifies the discrepancy. It is crucial to familiarize yourself with these regulations to prevent such situations from occurring.

Lifelong Disability Approved

Our client is a 30-year-old woman born with Cerebral Palsy, a lifelong condition affecting her mobility, muscle control, and overall functional capacity. Despite significant limitations, she had attempted to navigate the disability process twice on her own but was denied both times. By the time she retained our office, she was understandably frustrated.

We elected to file a new application and developed the case thoroughly from the outset. Updated medical records were obtained, and we worked to ensure the evidence clearly documented not only her diagnosis, but also her limitations in standing, walking, balance, coordination, and endurance over the course of a workday. Unfortunately, the State agency denied the application at the initial and reconsideration levels. While disappointing, these denials, are not uncommon, even in cases involving longstanding impairments.

We requested a hearing before an Administrative Law Judge ("ALJ"). Prior to the hearing date, the attorney at the hearing office assigned to review the file explored the possibility of resolving the matter without a formal appearance before the ALJ. Although those discussions were constructive, the case ultimately proceeded to a hearing. As part of our pre-hearing preparation, we amended the alleged disability onset to a much earlier date. At the hearing, the ALJ observed our client directly and heard her testimony regarding her daily functioning and work-related limitations. Following the hearing, the ALJ issued a fully favorable decision.

Every disability case is unique, but this one reinforces why careful case development, strategic advocacy, and preparation for hearing can change the outcome entirely. If you are considering filing for SSD, please reach out to our office for a free consultation.

 

 

Vocational Evidence

Obtaining Social Security Disability (“SSD”) benefits requires proving the inability to perform any full-time job for at least twelve months.  The process requires submitting substantial medical support from treating providers. Many claimants are unaware that there is also a vocational component involved in the evaluation process.

In addition to submitting medical evidence, claimants must provide detailed information about their work history for the past five years. Social Security not only reviews medical documentation but also employs Vocational Experts ("VEs") to examine claimants' work histories. A VE considers the claimant’s job experience, age, and any restrictions or limitations when determining what work, if any, is possible. A VE may also assess whether the claimant possesses transferable skills that would allow them to work full-time in another occupation.

VEs frequently rely on the Dictionary of Occupational Titles ("DOT") an outdated resource.  Each occupation listed in the DOT is classified into categories such as sedentary, light, medium, heavy or heavy work.

We represent a 52-year-old Peace Officer from Baldwin, New York, who recently received a Fully Favorable Decision regarding their SSD application. Several months prior to the scheduled hearing, we requested an On the Record (“OTR”) decision; the administrative law judge ("ALJ"), however, declined to grant it at that time.

Shortly before the hearing, we submitted an in-depth description of the claimant’s past occupation as a Peace Officer from his employer, New York City, including the requirements necessary for the position. Upon reviewing this information, the ALJ recognized that the claimant did not possess transferable skills applicable to other occupations. As a result, the ALJ approved the OTR the day before the hearing was scheduled.

  

QR Increases on Approvals

It is no coincidence that all of our cases approved by the State agency at the initial and reconsideration levers are being reviewed by the Federal government's Quality Review ("QR") unit. The QR process process is supposed to select State agency decisions at random.  However, the QR unit only pulls approved cases to evaluate.  In most instances, the approvals are confirmed. 

For decades, only one or two of our cases annually would be selected for QR, and rarely overturned. We spoke to a State agency analyst who verified that almost every approved claim is currently being pulled for further examination. This new policy is counterproductive to efforts to reduce costs and spending.  Overturning approvals makes it harder for disabled people, who cannot work due to medical conditions, to receive Social Security Disability benefits. This alarming treatment of individuals with disabilities is deeply concerning.

Rare Remand Approval After a Decade

 A decade is defined as a period of ten years. Although this is a considerable length of time, it can feel especially prolonged for individuals who have been unable to work due to significant medical conditions and have had no income during this period. No dedicated worker anticipates experiencing such circumstances; however, these situations often arise beyond their control due to unforeseen health challenges.

We represent a sixty-year-old former NYPD police lieutenant from Massapequa, NY, who suffers from fibromyalgia, carpal tunnel syndrome, and pain and fatigue in her back, neck, and shoulder.  She worked 27 years for the NYPD.  She has been unable to work at any job since July 2009 due to her medical conditions.  She had hoped to return to work, but her condition never improved, even though she had surgery, physical therapy, medication regiments, and other medical modalities including injections and steroids.

On March 27, 2015, we applied for Social Security Disability (“SSD”) benefits, alleging a disability beginning on November 28, 2010.  The claimant has had strong supporting objective medical evidence from her treating neurologist, primary care doctor and physiatrist from the initial application.  After her claim was denied on September 5, 2015, we requested an administrative hearing.

On September 5, 2017, Administrative Law Judge (“ALJ”) Andrew Weiss held a hearing.  ALJ Weiss had two witnesses testify, Amy Leopold, a vocational expert, and Steven Golub, M.D., a medical expert.  Our client testified as well, with ALJ Weiss hounding her with every answer she gave.  We were horrified at the way he conducted himself during the hearing.

On October 25, 2017, ALJ Weiss denied our client’s claim without any substantial evidence for doing so.  He gave little weight to our client’s treating doctors, instead playing doctor and forming his own conclusions.  We appealed the case to the Appeals Council (“AC”) and submitted additional supporting medical evidence.  The AC not only upheld the ALJ’s denial on September 10, 2018, but declared that our additional evidence would not change their opinion and did not even consider the evidence.

We filed a lawsuit in Federal Court.  On November 20, 2020, Federal Court district Judge Joan M. Azrack remanded the case back to ALJ Weiss.  She found numerous, serious flaws in ALJ Weiss’s analysis of our client’s case beyond giving our client’s treating providers little weight.   In her decision, she pointed out that the ALJ relied on incorrect dates at multiple points in his analysis of the claim and referred to irrelevant periods of time.  She even stated “Additionally, the Commissioner concedes that the ALJ “misunderstood or mischaracterized” the opinion of the medical expert, Dr. Golub…”.

Our client had to wait an additional nine months from Judge Azrack’s decision to have a second hearing with ALJ Weiss.  Incredibly, ALJ Weiss repeated the exact same errors in this decision that Judge Azrack had asked him to correct, and on September 2, 2021, he again, denied our client’s case, claiming that our client had the residual capacity to perform the full range of light work after previously finding she could only perform sedentary work.  We appealed the decision again to the AC, and on February 23, 2023, eighteen months after ALJ Weiss’s second denial, the AC “found no reason under our rules to assume jurisdiction”  In other words, they upheld ALJ Weiss’s second denial.

We immediately filed another appeal in Federal Court where the case was assigned to Honorable Unites States District Judge Gary R. Brown.  In a decision dated January 10, 2024, Judge Brown criticized ALJ Weiss for repeating the same errors as he did in his first denial, and for his blatant mishandling of the medical expert testimony.  Judge Brown concluded that ALJ Weiss based his decision on “non-existent” opinions  from “non-existent doctors.”  Judge Brown reprimanded ALJ Weiss for not developing the record and remanded the case back to be heard by a different ALJ.

Thirteen months after Judge Brown’s remand, our client’s third hearing was heard on February 11, 2025, by ALJ Alan Berkowitz,  ALJ Berkowitz denied the claim on February 28, 2025, concluding that the claimant was able to perform light work by repeating the same errors that ALJ Weiss had committed.

Bypassing the AC, we appealed the claim directly to Federal Court.  Once again, the case was assigned to Judge Brown.  The attorneys representing the Social Security Administration (“SSA”) were afraid to defend ALJ Berkowitz’s decision.   In an extremely rare decision, Judge Brown accepted the SSA’s stipulation to have the AC issue a fully favorable decision, concluding that our client was entitled to received SSD benefitss stipulation to have the AC issue a fully favorable decision, concluding that our client was entitled to received SSD benefits.

 

ALJ Reverses DDS's Denials

Obtaining Social Security Disability (“SSD”) benefits can be a long and frustrating process, especially for claimants whose disabilities are not always visible. A recent fully favorable decision for one of our clients illustrates how thorough medical documentation and effective legal representation can make a difference.

We represented a 52 year old client from West Babylon who suffered from post-concussion syndrome, cognitive disorder, chronic migraine headaches, and anxiety and depressive disorders.  These impairments caused persistent symptoms such as severe headaches, brain fog, memory problems, difficulty concentrating, fatigue, and emotional distress. Despite ongoing treatment, her condition showed little improvement.

From the outset, extensive and consistent medical evidence supported this case. Multiple treating providers documented her symptoms, limitations, and lack of meaningful improvement over several years.  Detailed records showed near-daily migraines, cognitive deficits, difficulty using computer screens, and significant mental health struggles.  Despite the strong medical support, a Social Security disability analyst from the State agency denied our client’s application at the initial and reconsideration levels.  Unfortunately, these early denials are common and often occur even when substantial evidence is present in the file. 

We requested a hearing before an Administrative Law Judge (“ALJ”).  At this stage, the case finally received the individualized attention it deserved. The ALJ carefully reviewed the medical evidence, hearing testimony, and medical opinions.  The ALJ determined our client was limited to less than a full range of light work, to only simple, routine tasks, to being off-task 15% of the workday, and to missing work two days of work each month.  Based on those limitations, the ALJissued a fully favorable decision.

This case highlights several important realities about the SSD review process.  Strong medical evidence alone is not always enough at the early stages as many valid claims are denied by the State agency analyst. Frequently, a hearing provides the best opportunity for a full and fair evaluation.

Navigating this process without guidance can be overwhelming. With our knowledgeable representation, our clients are better positioned to obtain the benefits they deserve.

Mental Health Approval

Social Security Disability (“SSD”) benefits are not only for older individuals or those with physical impairments. Serious mental health conditions can be just as disabling. Unfortunately, younger applicants often face greater challenges because Social Security frequently believes they can adjust to other types of work even if they cannot perform their past work. Our client’s case shows how proper legal representation can make a critical difference when seeking SSD benefits.

We represent a 36-year-old woman from Huntington with a long history of mental health conditions, including PTSD, panic disorder, generalized anxiety disorder, chronic depression, PMS disorder, and ADHD. After she applied for SSD benefits on her own and was denied, she contacted our office to take over her case. We strengthened the medical and vocational evidence, and secured confirmation from her doctors that she was significantly limited in her ability to function in a work setting, which became a key part of her case.

Ultimately, we requested a hearing before an Administrative Law Judge (“ALJ”). At the hearing, a vocational expert evaluated whether jobs existed in the national economy that our client could perform. Based on the mental health limitations, the expert testified that there were no jobs our client could perform on a sustained, full-time basis. After reviewing the evidence and testimony, the ALJ approved her application for SSD benefits. This case exemplified the difficulty that younger individuals with mental health conditions face with the disability process. With our experienced representation, recognizing the type of medical support needed, and careful preparation, our client was able to secure the SSD benefits she deserved.

Reconsideration

If an application for Social Security Disability ("SSD") benefits is denied, the next step is to request reconsideration.  Reconsideration is basically an appeal to the same State agency that made the initial decision. At reconsideration, a different analyst reviews the case for a new perspective.

We represent a 52-year-old Insurance Coordinator from Old Bethpage, who suffers from severe IBS, ADD, and hypothyroidism. Her claim was recently approved by the State agency during the reconsideration phase. The only new evidence we provided were treatment notes from her last three monthly infusions with her doctor, which have been ongoing since we filed the initial claim. Although the agency requested records that we had already submitted, we had to clarify this for them. In reality, the extensive medical evidence presented at the start should have sufficed for benefit approval. The SSD process ended up spending unnecessary resources and caused delays for a claim that should have been resolved much earlier.