The Law Offices of Jeffrey Delott

Veterans Medical Source Statements

2012-01-30T13:21:00.002-05:00

Medical Source Statements that describe a claimant’s functional restrictions and limitations are crucial to any type of disability claim, as it is the effect of a medical condition, not its mere diagnosis, that actually counts. For example, in POMS DI 22505.007, the Social Security Administration (“SSA”) discusses the importance of obtaining a functionality assessment from the claimant's treating doctor because he or she should have the most knowledge about the claimant’s impairments.

Because the SSA usually does not request functional assessments from claimants’ doctors, the claimant must do so. Historically, it was very difficult to obtain functional assessments for claimants who were treated through the Veterans Health Administration (“VHA”). However, that changed when the VHA issued a directive on October 29, 2008, 2008-071, which requires it to assist veterans with completing forms for various benefits, specifically including Social Security Disability (“SSD”) benefits.

A veteran retained me after his application for SSD benefits was denied. Citing the VHA directive, I was able to secure a functional assessment from the claimant’s treating physician at the VHA. With the addition of the VHA Medical Source Statement containing the claimant’s functional assessment, the SSA approved the claimant’s SSD benefits.

Disabled by Schizophrenia

2012-01-25T07:27:00.004-05:00

Many people are under the misperception that schizophrenia is a disease where the person has a split or multiple personality. According to the Mayo Clinic, schizophrenia is a group of severe brain disorders in which people interpret reality abnormally, and may result in some combination of hallucinations, delusions and disordered thinking and behavior. Importantly, the Mayo Clinic points out that the ability of schizophrenics to function normally and to care for themselves usually deteriorates over time.

When applying for disability benefits, the question is has the schizophrenia deteriorated the claimant’s ability to function in a work setting. A 41 year old college graduate, who had been a shoe salesman for nearly a quarter century, retained me after his application for Social Security Disability (“SSD”) benefits had been denied on the ground that he could “perform simple low level jobs.” Social Security agreed that the claimant could no longer work as a shoe salesman, but identified three other jobs from the Dictionary of Occupational Titles that he purportedly could perform.

Before preparing to attack Social Security’s conclusion that the claimant could perform the three identified occupations, I decided to investigate if the evidence would demonstrate that the claimant met the “listing” for schizophrenia. If a claimant meets a listing, then Social Security must find that the claimant is disabled without needing to determine if the claimant has the functional ability to work.

The records in the claimant’s Social Security file appeared to show the claimant met the criteria of the listing for schizophrenia. Rather than making a legal argument explaining why the claimant met the listing, I provided the listing criteria to the treating psychiatrist, and asked for his medical opinion as to whether or not the claimant met the listing. Since the psychiatrist did opine that the claimant met the listing, I requested a fully favorable decision on the record (“OTR”), which was approved.

The OTR was particularly advantageous to the claimant. Besides reducing his attorney fee, the OTR also enabled the claimant to avoid the stress of a hearing. Moreover, knowing that he would be approved for SSD benefits mitigated the likelihood of the claimant’s condition deteriorating even further.

Receiving SSD Benefits and an Income

2012-01-18T14:18:00.001-05:00

I represent a 40 year old machinist with orthopedic impairments, diabetes, and sleep apnea who was just approved for Social Security Disability (“SSD”) benefits without a hearing even though he is receiving an income.

The first question to be determined when reviewing an SSD application is whether the claimant is working. If the answer is yes, and the amount earned from working is substantial, then the application will be denied. Social Security normally investigates evidence of work activity after a claimant’s disability onset date by reviewing earnings information from the IRS. However, not all income is treated the same.

To be eligible for disability benefits, a person must be unable to engage in substantial gainful activity (“SGA”). The income must be derived from work activity. Income that is not related to work does not constitute SGA. Examples would include passive investment income, return of loan payments, gifts, and other types of disability benefits.

The claimant’s application was held up because Social Security said they had evidence of work activity after the onset date. The evidence was simply learning that the claimant had income, as opposed to any evidence of actual work activity. Once I established that the source of the income were long term disability benefits, SSD benefits were approved.

Vocational Credibility

2012-01-17T13:20:00.002-05:00

I represent a 58 year old criminal attorney whose Social Security Disability (“SSD”) application was just approved without a hearing. I had submitted a report from the treating psychologist assessing the claimant’s mental residual functional capacity that showed he met the listing for affective disorders. However, I have submitted similar reports on other cases where a hearing was required. What was different here?

The ostensible purpose of a hearing is to assess the credibility of the claimant’s testimony if the medical records are deemed equivocal. Why was the psychologist’s report accepted as a reliable measure of the claimant’s symptomatology on this occasion? I believe the answer is the claimant’s work history.

The claimant worked for over 30 years. I cited the case law holding that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability, and that such a record justifies the inference that a claimant stopped working upon becoming disabled. In other words, the vocational evidence buttressed the medical evidence.

Even more important than the longevity of the claimant’s work history was his earnings history. I emphasized that the claimant was earning $250,000 a year. I posed that if the psychologist’s opinion that the claimant met a listing were rejected, then the only issue was whether the claimant, who was earning $250,000 a year was exaggerating his claim that he lacks the ability to perform simple, unskilled work in order to receive SSD benefits equal to less than 10% of his predisability income.

Sometimes commonsense is more important than medical evidence.

SSD For Police Officer

2012-01-12T12:50:00.002-05:00

I represent a 38 year old police officer who was just approved for Social Security Disability (“SSD”) benefits. Like many police officers that I have represented, the claimant suffered orthopedic injuries while working as a police officer that rendered him disabled. Unlike my representation of other police officers seeking SSD benefits, the claimant was approved in less than three months without being asked to attend a consultative examination (“CE”).

The claimant’s physiatrist and arthritis specialist provided supporting records and reports. However, that alone is not usually sufficient to avoid being directed to attend a CE. I ascribe the anomaly to the fact that in the recent past the claimant had been receiving pain management from a physician who has performed CEs for Social Security in connection with SSD applications. If I’m right, this raises two implications.

The first implication is that Social Security presumes that treating doctors lack credibility. Despite my submitting supporting medical records and reports when applying for SSD benefits, Social Security virtually always asks that my clients attend a CE to be performed by one of their doctors. In other words, it is presumed that a treating source’s opinion cannot be relied upon. That implicit assumption runs counter to the Social Security rules and regulations that require greater weight to be given to treating sources, because their opinions are supposed to be considered more reliable.

The second implication that is raised is whether one should consider seeking treatment from a doctor who also works for the CE provider, which in New York is usually Industrial Medicine Associates (“IMA”). While experience indicates that the doctors who work for IMA may lack the qualifications of a claimant’s other treating doctors, it appears that Social Security will give undue weight to the doctor who also works for IMA. While the IMA doctor probably will not improve a claimant’s treatment, it apparently could expedite the receipt of SSD benefits.

Kienbock's Disease

2012-01-05T16:21:00.002-05:00

Kienbock's disease is avascular necrosis of the carpal lunate. Avascular necrosis, which is also known as osteonecrosis, is a disease where bone dies from lack of blood supply. Kienbock's disease is most commonly observed in patients from 20 to 40 years of age, and has a predilection for the right hand in persons engaging in manual labor. According to Northwestern Health Sciences University, Kienbock's disease results in progressive pain, swelling, and disability.

I represent a 50 year old carpenter whose application for Social Security Disability benefits was approved today because his Kienbock's disease had become disabling. As usual, the claimant was ordered to go to “IMA Disability Services”, which I explained was unnecessary. The case law makes clear that a carpenter has no transferable skills. Without being about to use his dominant hand due to Kienbock's disease, the claimant obviously could no longer perform has past relevant manual labor. Under the medical-vocational rules, the claimant had to be found disabled even if he were physically capable of sedentary work.

Patchogue Incompetence

2012-01-04T13:08:00.002-05:00

Delays in processing Social Security Disability claims are so rampant that they have resulted in Congressional hearings. The delays are not necessarily due to under staffing as much as they are due to incompetent staffing. The claims processing at the Patchogue field office has been worse in our experience compared to other local field offices.

Over the years, my office has consistently experienced more problems with the Patchogue field office than any other local field office. It defies credibility that Patchogue regularly claims it cannot find documents that I have submitted by certified mail and fax with a confirmation of receipt. The two most recent examples of Patchogue’s ineptitude came to light yesterday.

The first case concerns an application that I filed on May 5, 2011. When I did not receive a decision, I faxed a letter to Patchogue on November 14, 2011, advising that it had been over six months since I filed the claimant’s application, and asked when I could expect to receive a decision. Because Patchogue failed to respond, my office called yesterday, and was told by a Ms. Peterson that the claimant’s application had been denied in October, but that I wasn’t told because they did not have written notice that the claimant had appointed me as his representative. However, even if that were true, which it is not, Ms. Peterson failed to explain why she failed to send a copy of the denial notice to the claimant.

The claimant’s application package was sent by certified mail, and included form SSA-1696, which is written notice that I was the claimant’s representative. Additionally, we provided Patchogue with a copy of a letter dated May 17, 2011 that Mr. Grabiner, the District Manager of the Patchogue office, sent to me confirming that Patchogue had “received written notice that [the claimant] has appointed you to act as the representative in connection with this claim.”

Not surprisingly, neither Ms. Peterson, Mr. Grabiner, nor anyone else at Patchogue, was able to explain the error. Nor was anyone at Patchogue able to explain why they failed to respond to my November 14, 2011 letter, or phone calls regarding the same. Needless to say, due to Patchogue’s blunder the processing of the claimant’s application will be much delayed.

The second case involves an application that I had filed with Patchogue by mail and fax on October 27, 2011. Because I had not heard anything from Patchogue in response to the application, I had my assistant call them on December 15, 2011. Patchogue told my assistant that they were still “loading” applications from September, and to give them some time.

After discovering Patchogue’s incompetence with the first case discussed above yesterday, I directed my office to follow up on this other case immediately. Not surprisingly, Patchogue said that they did not have the application, and the representative transferred the call to the supervisor. My office left several messages and sent faxes, but the supervisor has failed to call back. Thus, another claimant will have to endure delays on their application due to Patchogue's failure to process an application properly or expeditiously.

Appeals Council Doltishness

2011-12-28T10:56:00.002-05:00

When an obviously wrong decision by a Social Security Administrative Law Judge (“ALJ”) is appealed to the Appeals Council you would expect its Administrative Appeals Judges (“AAJs”) to correct it. Unfortunately, the AAJs too frequently fail to rectify the ALJ’s errors.

I received a decision by AAJs Barbara Johnson and Louann Igasaki that, rather than rectifying the error by ALJ Seymour Fier, who is one of the ALJ’s being sued in a class action for anti-claimant bias, actually compounds the ALJ’s error. Even though all three physicians stated that the claimant lacked a sedentary work capacity, Fier stated the claimant had a sedentary work capacity until March 2008 because the claimant was “working” until that date. Fier omitted from his decision that the claimant’s “working” in 2007 and 2008 only amounted to $1,725.28 and $4,233.00 respectively, which does not come close to approaching substantial gainful activity (“SGA”), and certainly fails to demonstrate the claimant had anything close to the ability to work on a sustained full time basis.

The case law and regulations are absolutely clear that a person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA. To make matters even worse, even if the work had been SGA, Fier failed to consider whether the work constituted an unsuccessful work attempt or trial work period. The Appeals Council disregarded the case law and regulations, and affirmed the ALJ’s decision that the claimant had a sedentary work capacity. But that was not even their real error.

The claimant was over 55 years old at the time he became disabled. I advised the Appeals Council that ALJ Fier ruled that the claimant had no transferable skills, which was based on the testimony of the Vocational Expert (“VE”). Absolute proof that ALJ Fier concluded the claimant had no transferable skills was his applying Medical Vocational Rule 201.28, which is used when a claimant has no transferable skills. ALJ Fier mistakenly thought the claimant was under 50 years of age, and by applying Rule 201.28 would be able to deny benefits.

Because the claimant was over 55 years of age, ALJ Fier should have applied Rule 201.06. However, it makes no difference whether ALJ Fier’s applying Rule 201.28 was an attempt to deny SSD benefits consistent with his anti-claimant bias, or was a “clerical error” as AAJs Johnson and Igasaki claimed.

The claimant was over 55 years of age and had no transferable skills, and therefore, the medical vocational rules required that he be found disabled. Johnson and Igasaki claimed that a clerical error regarding the claimant’s age caused ALJ Fier to apply Rule 201.28. However, Fier’s clerical error regarding the claimant’s age had nothing to do with Fier’s conclusion that the claimant lacked transferable skills. Not surprisingly, Johnson and Igasaki failed to mention that there was any clerical error regarding the finding that the claimant lacked transferable skills.

Instead of correcting ALJ Fier’s obvious error, Johnson and Igasaki compounded it by issuing an order remanding the case for a VE to determine if the claimant had transferable skills – even though that was already done at the previous hearing, and even though Fier had already determined that the claimant lacked transferable skills. AAJs Johnson and Igasaki inexplicably ordered that another ALJ be assigned to the case.

Binder and Binder

2011-12-23T15:07:00.005-05:00

The Wall Street Journal wrote an article yesterday that was highly critical of Binder and Binder. The article discusses how Tom Coburn, the Senator from Oklahoma, who is the top Republican on a subcommittee on Social Security, said Binder & Binder's practices were "potentially fraudulent" and raised questions on how many disability beneficiaries "are potentially improperly receiving benefits."

I doubt the charges that Binder & Binder engaged in fraudulent conduct since that implies they were knowingly and intentionally deceiving the Social Security Administration. It is much more likely that any alleged problems stemmed from Binder & Binder's practice of using non-attorney representatives to handle most of the work when processing Social Security Disability ("SSD") claims. It should be readily obvious that a claim will be handled more carefully, timely, and in compliance with applicable rules and regulations when the claim is handled by an attorney as opposed to a lay person. Binder & Binder is not alone in that respect.

As the Wall Street Journal pointed out, other large companies have tried to mimic Binder & Binder's volume business model. There are nationwide companies that Long Term Disability insurance companies tell people to use that handle SSD claims in a manner akin to Binder & Binder. Claimants should think twice before using the services of those large companies because perceive the insurance companies as their clients.

When deciding who to chose to represent you for your SSD application, make sure that an attorney is the person who will handle every phase of your claim.

NYCERS Disability Pension

2011-12-08T09:04:00.002-05:00

I represent a 48 year old hospital executive whose application for disability retirement benefits under Article 15 of the Retirement and Social Security Law was recommended by the Medical Board four months after it was filed. To qualify for a disability pension, an applicant has to show that he or she is permanently incapacitated from performing his or her regular job duties. This showing requires linking the medical evidence to the vocational evidence.

The claimant sustained injuries when hit by a car at work. The medical evidence from the claimant’s orthopedists, internists, and physiatrist provided the clinical findings to support their opinions regarding the claimant’s restrictions and limitations. The clinical findings and opinions were further corroborated by diagnostic tests, hospital records, and medication prescribed. Additionally, I explained how the Social Security Disability and Workers Compensation reports and awards substantiated the NYCERS claim.

Once the functional capacity was objectively supported, I established the claimant’s work duties through Department of Labor publications and a vocational evaluation. The key was demonstrating how the claimant’s restrictions and limitations precluded her from performing the work duties and physical requirements identified in the publications and vocational evaluation, as that showed a permanent incapacity from performing regular job duties.

It is always possible that the claimant may eventually have been approved for a disability pension without the vocational evidence. However, the claimant’s chances of succeeding, and doing so initially, certainly improved by addressing the vocational as well as the medical evidence.

Can You Receive SSD If You Have Income?

2011-12-03T13:46:00.005-05:00

I received a decision today from Administrative Law Judge (“ALJ”) Seymour Rayner that approved Social Security Disability (“SSD”) benefits for the owner of a home improvement business. ALJ Rayner readily accepted that the claimant was disabled from his past work as a carpenter due to various cardiovascular related impairments. However, ALJ Rayner required a supplemental hearing to determine whether the claimant’s income as business owner precluded the receipt of SSD benefits.

Experience has shown that there is a presumption that self employed SSD claimants are working off the books. In this particular case, the disability examiner explicitly told the claimant that he would never receive SSD benefits because the examiner believed the claimant was still working.

Passive income does not prevent a claimant from receiving SSD benefits. For example, workers compensation or private disability benefits are not an automatic bar to receiving SSD benefits. Accessing an individual retirement account or tapping funds from other non-work sources such as investment income, rental property, annuities or earned interest, will not prevent entitlement to SSD benefits.

I provided ALJ Rayner with the claimant’s business records. There was no documentary evidence that the claimant was performing work or services of any kind. The claimant was simply taking periodic payments from the business as profits. In other words, the money that the claimant was getting from his business was passive income, and was no different than profits from selling stocks or bonds.

There are many ways to establish that income received is not the type that would preclude receiving SSD benefits. Simply because a Social Security representative says you cannot get SSD because you have income is not necessarily true.

Adverse Evidence

2011-11-25T18:02:00.003-05:00

When seeking a fully favorable decision on the record (“OTR”) to avoid a hearing on an application for Social Security Disability (“SSD”) benefits, it is important to address the adverse evidence as well as the supporting evidence.

I represent a 42 year old woman who worked in automotive customer service since she graduated from high school in 1988. The treating neurologist said the claimant lacked the ability to perform sedentary work due to cervical radiculopathy and an Arnold Chiari malformation. An Attorney Advisor approved the claimant’s OTR today, accepting the neurologist’s cervical radiculopathy diagnosis, but rejecting the Arnold Chiari malformation diagnosis.

The claimant had a cervical MRI that revealed, among other things, a herniated disc compressing the spinal cord and nerve root. While one head MRI revealed an Arnold Chiari malformation, the other revealed less severe findings that did not meet the diagnostic criteria of an Arnold Chiari malformation. Nonetheless, the Attorney Advisor still gave controlling weight to the treating neurologist’s opinion.

A Social Security doctor rejected the neurologist’s opinion and claimant’s complaints. Investigation disclosed that the Social Security doctor was an endocrinologist, which I argued was unqualified to evaluate the claimant’s neurological condition. That point was proven by the Social Security doctor’s suggestion that the claimant have a psychological exam, which obviously was completely irrelevant to the claimant’s impairments. More importantly, the Social Security doctor said that the treating neurologist’s clinical findings were disproportionate to the claimant’s MRIs, which showed spinal cord and nerve root compression. No neurologist would concur with the Social Security doctor’s absurd conclusion.

The Attorney Advisor may have had concerns about the reliability of the treating neurologist’s opinion since there was equivocal evidence regarding the Arnold Chiari malformation diagnosis. Given that concern, the Attorney Advisor could have rejected the OTR and left it to the Administrative Law Judge to evaluate the treating neurologist’s opinion. If the Attorney Advisor was ambivalent about the OTR, by utterly rebutting the viability of the Social Security doctor’s opinion, which was the only adverse evidence in the file, it should have removed any concerns about approving the OTR.

Multiple Impairments

2011-11-25T15:58:00.004-05:00

Can you be found disabled if you have more than one medical condition even if no single impairment is disabling? Under the Social Security regulations, the answer is yes. When evaluating an application for Social Security Disability (“SSD”) benefits, the combined effect of a claimant’s multiple impairments must be considered.

A 41 year old boilermaker from Tennessee retained me to appeal the denial of his SSD application. Six weeks after I received the claimant’s file, I submitted a request for a fully favorable decision on-the-record (“OTR”), which was approved in three weeks. Thus, the claimant was able to avoid the stress of, and wait for, a hearing.

The claimant has a seizure disorder, sleep apnea, headaches, mild memory loss, difficulty concentrating, and arthritis causing joint, neck, and back pain. None of the impairments met a listing, and no single medical condition resulted in an inability to perform simple unskilled work.

The claim file that Social Security compiled had no records from the claimant’s physician, and the prior denials were based solely on the opinion of the Social Security doctors. I not only obtained the treating doctor’s records and functionality assessment, but I detailed the multitude of medical findings that supported the disability opinion. For example, the OTR explained what encephalomalacia and hematoma are, how they were treated, and why they caused the claimant’s mental and physical limitations. I also cited the Tennessee law that justified giving the treating physician’s opinion controlling weight, which language was tracked in the decision approving benefits.

Rheumatoid Arthritis

2011-11-25T15:03:00.001-05:00

According to the Arthritis Foundation, Rheumatoid Arthritis or “RA” is an incurable form of inflammatory arthritis and an autoimmune disease. In RA, the immune system attacks the body’s own tissues, specifically the synovium, which is a thin membrane that lines the joints. As a result of the attack, fluid builds up in the joints, causing pain in the joints and inflammation that can occur throughout the body. The pain and stiffness from RA can become disabling.

I represent a 51 year old dental hygienist who was approved yesterday because the Administrative Law Judge (“ALJ”) accepted the opinion of the claimant’s rheumatologist that the claimant’s RA precluded her from performing sedentary work. Blood tests and x-rays objectively established the diagnosis of RA. The ALJ concluded that the clinical findings and symptoms of joint pain, stiffness, weakness, reduced range of motion, decreased grip strength, and tenderness supported the rheumatologist’s functional assessment.

As noted in my September 16, 2011 blog, a claimant can obtain an opinion that the RA is severe enough to meet listing 14.09, which is potent medical evidence. However, as listing explanations come in narrative form, many doctors charge a substantial fee for the opinion.

Cerebrovascular Accident & SSD

2011-11-21T14:40:00.005-05:00

According to the Merck Manual, a stroke is called a cerebrovascular disorder because it affects the brain (cerebro-) and the blood vessels (vascular). A stroke or cerebrovascular accident (“CVA”) occurs when blood stops flowing to the brain causing permanent brain damage from cells dying. Stroke symptoms include numbness or weakness to one side of the body, confusion, difficulty speaking, vision loss, imbalance, and headache.

I represent a 52 year old postmaster who had to stop working because of a CVA. The claimant’s application for Social Security Disability (“SSD”) benefits was approved without a hearing. An Attorney Advisor approved my request today for a fully favorable decision on-the-record (“OTR”) based on meeting listing 12.02.

Hospital records and diagnostic testing established that the claimant had suffered a stroke. Clinical records revealed the claimant lost cognitive ability, memory, and impulse control, while experiencing mood disturbance, left sided weakness, slurred speech, and personality change. I was able to obtain reports from the claimant’s neuropsychologist that explained why the claimant’s symptoms resulted in marked functional mental limitations.

Despite the medical records supporting the claimant’s entitlement to SSD benefits, the State agency had originally denied the application based upon the opinion of a State agency doctor, who never examined the claimant. My OTR cited the case law holding that where psychological impairments are involved, the opinion of a medical professional who has examined the claimant face-to-face is more reliable than that of a nonexamining physician. The rationale is that a treating psychiatrist's opinion, based on medical evidence derived from face to face visits, is “inherently more reliable than an opinion based on a cold record because observation of the patient is critical to understanding the subjective nature of the patient's disease and in making a reasoned diagnosis.”

The Attorney Advisor agreed with my criticism of the of State agency doctor’s opinion, and gave it little weight. Being able to quote case law directly on point regarding the reliability of the State agency doctor’s opinion certainly elevated the weight of the treating doctor’s opinion, and perhaps was the reason why the claimant was able to avoid the protracted wait for a hearing.

Was A Video Hearing Needed?

2011-11-11T08:10:00.000-05:00

Can Medical Records Be Too Good? I represent a 60 year old guidance counselor with cervical and lumbar radiculopathies, which were supported with very severe EMG and MRI testing. The claimant, who had a 40 year work history with a high salary, also had marked depression according to the treating psychiatrist. The medical evidence was so strong that I was surprised when the Administrative Law Judge (“ALJ”) rejected the claimant’s request for a favorable on-the-record (“OTR”) decision.

Because the OTR was rejected, a hearing was required. The claimant permanently relocated from Long Island to Florida during the application process because the warm weather was better for his health. The ALJ held the hearing in Orlando with the claimant and the vocational expert (“VE”), while I appeared via videoconference at the Jericho hearing office.

The hearing started with my questioning the claimant. About 20-30 minutes into my direct examination of the claimant, the ALJ politely interrupted me to say that he was paying the claim. The VE never even testified. The ALJ explained that the treating doctors’ mental and physical functional capacities were so limited that he felt he needed to see and hear the claimant for himself. The ALJ said that he was concerned that the doctors were focused on trying to help the claimant get benefits, rather than accurately assessing the claimant’s functionality.

The claimant worked for 40 years and earned a good salary, and returned to work after very severe motor vehicle accidents. Of course he only stopped working when he was no longer able to do so. In fact, he worked longer than he should have, and his severely limited ability to work was reflected in his doctors’ limited functional assessments.

It was improper to insist that the claimant appear for a hearing because the ALJ questioned the accuracy of the treating doctors’ functionality reports. The rules make clear that an ALJ is not supposed to make his decision based on a “sit and squirm” test. Rather, as the rules and regulations provide, if the ALJ has concerns about the accuracy or consistency of medical records, then the ALJ has a duty to recontact the treating sources about the records.

NOSSCR Conference

2011-11-10T08:54:00.004-05:00

Every time I go to a NOSSCR conference, I hope to take back a couple of things that I can use on a regular basis. Last week at San Antonio was no exception. The one thing that stands out was a case I heard about during the Second Circuit meeting.

The case is called Edwards v. Astrue, and was issued by Judge Mark Kravitz in Connecticut last August. According to the attorney who represented the Social Security claimant, Judge Kravitz ruled that an ALJ cannot allow a hearing expert to testify by telephone over the objection of a claimant. I googled the facts on my iphone as he described the case, and found it on Justia. Much to my surprise, Judge Kravitz did reject the ALJ's decision denying the claimant disability benefits because the medical expert was allowed to testify telephonically.

When I returned from the NOSSCR conference, I had Edwards published on Westlaw. Its cite is Edwards v. Astrue, 2011 WL 3490024 (D.Ct. Aug. 10, 2011). Why is Edwards important?

Some ALJs, like the five ALJs accused of anti-claimant bias in the Queens Class Action, have hearing experts from outside the area testify by telephone. The ALJs eschew the rules that require them to select experts in rotation, and hand pick those experts who they know from experience will testify adversely to claimants. Edwards reduces the ability of ALJs to cherry pick bad experts.

If you believe that an ALJ is improperly relying on a hearing expert who testifies telephonically, then object. You have the right to confront a witness, especially an adverse one. I would also suggest making FOIA requests to see how often ALJs use experts. I think NOSCCR should pressure the SSA to publish that information annually, or make annual FOIA requests for that information on behalf of its membership.

SSD Approved in 2 Weeks

2011-10-29T13:52:00.003-05:00

I represent a 60 year old claimant who alleged that he became disabled after working 40 years as a steamfitter due to his diabetes and cardiovascular impairments. The claimant’s application for Social Security Disability (“SSD”) benefits was denied twice, even though it was conceded that he could no longer work as a steamfitter. He then retained me to represent him at a hearing.

I immediately reviewed the SSA’s electronic file, and obtained reports from the claimant’s endocrinologist and internist to provide the medical findings, conclusions, and functional evaluations that I believed were needed to strengthen the case. Rather than waiting for a hearing, I filed a request for a fully favorable decision on the record (“OTR”). I pointed out that the application had been denied based upon the opinion of a non-examining orthopedist, who was unqualified to evaluate diabetic or cardiovascular problems. The OTR was approved two weeks later, as controlling weight was given to the opinions of the claimant’s endocrinologist and internist.

The claimant’s case was at the White Plains, NY hearing office. According to the Social Security Administration, the average wait time for a hearing at that office is a year, but local practitioners believe the typical waiting time is actually longer. In any case, an OTR should always be made whenever there is objective medical evidence to support an SSD claim.

SSD Approved In 2 Months

2011-10-24T15:49:00.001-05:00

Last Friday’s blog entry discussed disability benefits and diabetes. Today, I received an approval of another claimant with diabetes just two months after filing his application for Social Security Disability (“SSD”) benefits.

The 52 year old claimant had worked for over 20 years as a truck driver. His diabetes not only resulted in neuropathy, but also prevented a broken ankle from healing properly. Neuropathy and difficulty healing are both symptoms of diabetes.

It must have been readily obvious that a person who has those conditions is incapable of working as a truck driver, which not only requires heavy lifting, but also using foot controls. Because of the special medical – vocational rules that applied in the claimant’s case, even if he had been capable of performing sedentary desk work, he would have been entitled to SSD benefits.

Disability and Diabetes

2011-10-21T14:08:00.001-05:00

Diabetes is a group of diseases characterized by high blood glucose levels that result from defects in the body's ability to produce and/or use insulin. According to the American Diabetes Association, 8.3% of the population has diabetes, which contributes to hundreds of thousands of deaths a year, and causes: frequent urination, thirst, extreme hunger, unusual weight loss, extreme fatigue and irritability, frequent infections, blurred vision, slow healing cuts and bruises, and tingling and numbness in the hands and feet.

Millions of people in the United States have diabetes. A person can readily establish a diagnosis of diabetes through routine laboratory blood tests. The question for disability adjudicators is when is diabetes severe enough to warrant being found disabled. Stated from the claimant’s perspective, how does one show that his or her diabetes precludes working on a sustained basis?

As noted above, diabetes can cause many different types of symptoms of varying intensity. While all symptoms should be pointed out, I find that tying the most serious ones to a specific work function is the best approach. I represent a former electrician whose disability application was approved today because of the effect that diabetes had on his ability to work.

I secured reports from the claimant’s endocrinologist. He confirmed that the claimant had many of the typical diabetes symptoms: lower extremity pain and weakness, hand weakness, vascular disease, loss of manual dexterity, rapid heartbeat, dizziness, difficulty walking, nausea, kidney problems and frequent urination, excessive thirst, depression, and fatigue. The most problematical symptoms were the pain, numbness, and tingling in the feet, which made walking and standing very difficult.

The endocrinologist concluded that the claimant was unable to stand or walk for even one hour a day because of the diabetes. To support his conclusion, the doctor cited Nerve Conduction Studies that revealed sensorimotor polyneuropathy in the lower extremities. The diabetic peripheral neuropathy objectively established the nerve damage that credibly explained the claimant’s inability to be on his feet, which is required for any full time occupation.

Social Security Benefit Increase

2011-10-19T08:58:00.001-05:00

Starting next year, people who are receiving Social Security Disability benefits will get a 3.5% increase in their benefits. This will be the first such raise in three years. However, Medicare premiums will also rise next year, which will reduce the anticipated 3.5 increase somewhat.

Vocational Experts

2011-10-14T12:29:00.002-05:00

In general, a vocational expert (“VE”) is an expert in the areas of vocational rehabilitation, vocational and earning capacity, lost earnings, cost of replacement labor and lost ability/time in performing household services. They typically perform evaluations for purposes of civil litigation, as an aspect of economic damages.

The role of a VE is somewhat different at a Social Security Disability (“SSD”) hearing. In theory, a VE is supposed to testify about the number of jobs in the national economy that are available for an individual with a specific set of functional limitations. However, in practice, role of the VE at a SSD hearing is usually to create evidence for the Administrative Law Judge (“ALJ”) who has already determined that the claimant is not disabled, and uses the VE to present testimony to substantiate that the claimant can work.

A claimant with spina bifida asked me to represent him after his initial hearing with an ALJ. The claimant had received SSD in the past, but asked that it be stopped because he wanted to try working out of his house. A couple of years later, after surgery related to his spina bifida rendered him incontinent, the claimant stopped working and reapplied for SSD.

Prior to the hearing, I provided the ALJ with a report from a VE that explained in detail why the claimant’s need for bathroom breaks and access rendered the claimant incapable of working. The ALJ agreed, and approved his SSD application.

The VE report was expensive, but I convinced the claimant that the cost was worth it, especially since it would amount to less than one month’s benefits. I received the claimant’s notice of award today, which specified that his past-due benefits are over $190,000.

IMA Consultative Examinations

2011-10-05T13:06:00.002-05:00

When filing for Social Security Disability ("SSD") benefits, the overwhelming vast majority of the time, the Social Security Administration ("SSA") sends notices to claimants that they have been scheduled for a “consultative examination” ("CE"). In New York, the CE notices are sent by the Office of Temporary & Disability Assistance (the “State agency”), which is responsible for making the initial medical decision on SSD claims. The notices say that IMA Disability Services will perform the CE. The notice is usually followed by phone calls from IMA warning that the SSD application will be denied if the claimant fails to appear for the appointment.

The CE notices are misleading because they state, “It will be necessary for you to be examined by the Specialist named below.” The so-called specialist is “IMA Disability Services.” The CE notices also state that, “You must keep this appointment at the time and date indicated below.” The use of the words “necessary” and “must” are untrue because most claimants do not need to be seen by a doctor from IMA.

The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. Three of my SSD clients were approved for benefits today. The SSA had sent CE notices to all three of the claimants, but none of them went for the CE.

In all three cases, I filed written objections to the CE, specifying the factual and legal reasons why the CE would violate the SSA rules and regulations. In the limited circumstances where a CE is actually needed, it is supposed to be performed by a treating doctor. As discussed in my September 28, 2011 blog entry, the SSA cannot ask a claimant to go for a CE simply because it wants an “independent’ opinion. Before asking a claimant to go for a CE on the grounds that a treating doctor’s report supposedly contains a conflict or ambiguity that must be resolved, the SSA is obligated to ask the treating doctor to explain the alleged conflict or inconsistency.

Hoppenfeld & The Rotation Policy

2011-10-01T08:11:00.007-05:00

My September 23, 2011 blog entry discussed the conduct of Administrative Law Judge (“ALJ”) Hoppenfeld during a recent hearing. Among other things, I explained how ALJ Hoppenfeld misused Medical Experts (“MEs”). One of the ways that it seemed Hoppenfeld misused MEs is by violating the rotation policy of the Social Security Administration (the “SSA”).

The SSA’s rotation policy is found in the HALLEX, which is the Hearings, Appeals and Litigation Law manual. The HALLEX defines the procedures for executing the Appeals Council policy in adjudicating disability claims. The rotation policy is found at HALLEX I-2-5-36(D):

Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See I-2-5-31, Blanket Purchase Agreements.) An ALJ must select an ME who is maintained on any RO's roster to the extent possible. The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called. If an ME in the specialty needed by the ALJ is not available on the RO roster of the HO's region, then the ALJ should look to other RO rosters to obtain the services of an ME.

My September 23, 2011 blog entry explained why it looked like ALJ Hoppenfeld violated the rotation policy by using ME Jonas for my last two clients’ hearings. Merely an odd coincidence? Notably, when my last client was proceeding pro se, ALJ Hoppenfeld did not find any reason to call experts. However, after Hoppenfeld learned that I was representing the claimant, she suddenly saw the need for THREE experts, including ME Jonas, even though not a single document had been added to the file. It would seem incumbent upon the SSA to investigate whether ALJ Hoppenfeld ever orders MEs when claimants appear pro se, and whether she orders MEs after pro se claimants retain attorneys.

The other ME at my client’s hearing was Dr. John Axline. Judge Coogan just issued a new decision Knight v. Astrue, 2011 WL 4073603 (E.D.N.Y. Sept. 13, 2011). Consistent with Hoppenfeld’s conduct in cases where I represent claimants, as well as the class action allegations that Hoppenfeld is biased against claimants, in Knight, Hoppenfeld refused to comply with the treating physician rule by elevating the ME's opinion over the treating physician’s opinion. In the latest decision, the ME just happened to be John W. Axline, the same ME who Hoppenfeld selected to testify at my client’s hearing. Judge Coogan found that Hoppenfeld gave “conclusory reasons for her decision to credit the opinion of the independent medical expert, Dr. Axline, over that of” the treating doctor. Judge Coogan ruled that the medical evidence “clearly” failed to “substantiate Dr. Axline's RFC determination or discredit that of” the treating doctor.

Judge Coogan has become the latest in the long line of federal district court judge’s who have rejected ALJ Hoppenfeld’s decisions for the very reasons alleged in the class action, which are the same reasons that apply in the cases where I have represented claimants before Hoppenfeld.

Hoppenfeld’s misuse of experts must be investigated. As noted above, the SSA should investigate whether ALJ Hoppenfeld ever orders MEs when claimants appear pro se, and whether she orders MEs after pro se claimants retain attorneys. Additionally, each regional hearing office maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a Blanket Purchase Agreement. As ODAR now encourages MEs to appear by telephone, ALJs like Hoppenfeld now can pick MEs who are located anywhere in the country. Therefore, the chances of an ALJ using the same ME should be far smaller now than in the past, yet Hoppenfeld is using the same MEs. ME Axline certainly does not live close to the Queens ODAR, which is why he testifies by telephone. The SSA should verify if Hoppenfeld is complying with the rotation policy. The SSA can do that by reviewing the expert invoices prepared for use at Hoppenfeld’s hearings. Any vouchers and other documentation that are used in the selection and payment of MEs should also be reviewed for hearings that ALJ Hoppenfeld has held.

Alzheimer’s

2011-09-30T13:51:00.001-05:00

According to the Alzheimer’s Association, Alzheimer's is the most common form of dementia, which is a general term for memory loss and other intellectual abilities serious enough to interfere with daily life.

Applying for Social Security Disability (“SSD”) is usually a lengthy process. However, if you have a critical condition that requires an immediate decision you may be eligible to request a Compassionate Allowance, which is designed to reduce the time between applying and receiving benefits. Compassionate Allowances are an expedited way for the Social Security Administration (“SSA”) to identify medical conditions that invariably qualify for SSD benefits based on minimal objective medical information.

I represent a 60 year old claimant who worked in security. He was diagnosed with Alzheimer’s, which is one of the diseases included on the Compassionate Allowance list. Others on the list include cancers, lymphomas, mesothelioma, Creutzfeldt-Jakob Disease, Lesch-Nyhan Syndrome, and spinal or brain injuries. To avoid any potential delay, after the application was filed earlier this month, reports regarding the claimant’s dementia were faxed and followed up almost on a daily basis to ensure that everything was received and being immediately processed as a Compassionate Allowance. The claimant’s SSD benefits were approved on September 26, 2011, less than 4 weeks after the application was filed.

The SSA can deny a request for a Compassionate Allowance just like any other SSD claim. Similarly, the SSA can lose evidence submitted on a Compassionate Allowance claim, or have it fall through the bureaucratic cracks like thousands of other SSD claims. While an attorney may not be required to obtain SSD benefits in the long run for a condition on the Compassionate Allowance list, if time is a concern, then an attorney can help ensure that the SSD application, along with any Child’s Benefits application, will be expeditiously and properly processed as a Compassionate Allowance.

Federal Court Reassigns Nisnewitz Case

2011-09-28T08:49:00.006-05:00

Another U.S. District Court Judge, Doris Irizarry, has issued a decision that rejected the denial of Social Security Disability ("SSD") benefits by Administrative Law Judge ("ALJ") David Nisnewitz.

I represent Leslie Bailey, who is also the lead plaintiff in the class action lawsuit that was filed against five ALJ's from the Queens hearing office, including ALJ Nisnewitz, on the grounds that they are biased against claimants. Judge Irizarry found that ALJ Nisnewitz's contentiousness was inappropriate, and did not advance the ultimate goal of developing the record in a meaningful way. Notably, one of the allegations against ALJ Nisnewitz in the class action is that he "routinely holds hearings that are combative, adversarial,and intimidating for claimants." As a result of ALJ Nisnewitz's conduct, Judge Irizarry ordered that Ms. Bailey's individual case be reassigned to a different ALJ on remand.

Judge Irizarry remanded ALJ Nisnewitz's decision because, once again, he relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though federal court judges have repeatedly told him that the testimony of an ME “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.

ALJ Nisnewitz knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion because it violates the Treating Physician Rule ("TPR"), yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over? According to the attorneys prosecuting the bias class action, ALJ Nisnewitz's habitual failure to comply with the TPR is evidence of his bias against claimants.

Another tactic that ALJ Nisnewitz employs in an attempt to circumvent the TPR is to insist that claimants have an independent "consultative examination" ("CE") when the treating doctors clearly support the disability claim. ALJ Nisnewitz insists on an independent CE because he assumes that treating doctors cannot be trusted. ALJ Nisnewitz's insistence on an independent CE is not found in the Social Security rules or regulations because the rules and regulations incorporate the opposite assumption, that is, that treating doctors are more reliable and credible because of their treating relationship, which is why the TPR requires them to be given greater weight.

As Judge Irizarry noted in her decision, the Social Security rules and regulations also require that an ALJ recontact a treating doctor regarding any alleged reason the ALJ has for rejecting that doctor's opinion. When ALJ Nisnewitz insisted on sending Ms. Bailey for an independent CE, I advised ALJ Nisnewitz that he first had to recontact the treating doctor, but ALJ Nisnewitz refused to do so because he knew the doctor would be able to explain away any excuse for discrediting his opinion. Judge Irizarry found that ALJ Nisnewitz violated the TPR and the Social Security regulations for CEs, by asking for a CE without making any attempt to recontact any of the treating doctors.

Approval After Federal Court Remand

2011-09-24T11:57:00.002-05:00

I took over a Social Security Disability (“SSD”) claim for a 40 year old nurse technician with severe physical and mental impairments from another attorney when the claim had to be appealed to federal court. I succeeded in federal court, and the case was remanded to Administrative Law Judge (“ALJ”) Newton Greenberg.

ALJ Greenberg denied the claim for a second time based upon a medical report from Mohammed Khattak. Khattak was the doctor who examined the claimant one time for the Social Security Administration (“SSA”). I advised ALJ Greenberg in writing and during the hearing that the SSA had removed Khattak from its panel of doctors because his reports contained findings and conclusions that Khattak knew were false. The Appeals Council rejected ALJ Greenberg’s decision, and the case was reassigned to ALJ Jerome Hornblass.

Today, I received a fully favorable decision from ALJ Hornblass, who ruled that the claimant became disabled on April 30, 2003, based on the opinion of the treating psychologist, Dr. Ed Robins. Dr. Robins had concluded the claimant was unable to work in a report that I had secured for the claimant’s prior hearing with ALJ Greenberg. Consistent with SSA rules and regulations, ALJ Hornblass explained that Dr. Robins’ “extended treatment and observation of the claimant allows a more insightful and detailed, longitudinal picture of claimant’s medical impairment.” ALJ Greenberg had rejected Dr. Robins’ opinion in favor of Mohammed Khattak.

The claimant can now expect to receive eight years of past due SSD benefits. As you can imagine, the claimant’s inability to work and deprivation of benefits had created incredible financial and emotional problems for the claimant. The claimant’s protracted plight was caused by an ALJ who inexplicably refused to follow the unambiguous rules and regulations of the SSA. Fortunately, the claimant chose to pursue her appeals rather than simply give up.

Abusive Hoppenfeld Conduct

2011-09-23T11:37:00.003-05:00

On April 22, 2011, I discussed the class action lawsuit that accuses Administrative Law Judges (“ALJs”), including Marilyn P. Hoppenfeld, of bias against Social Security disability claimants. The New York Times article about the class action, and a copy of the class action complaint, can be found on my web page’s Resources tab. I had a hearing yesterday with Hoppenfeld that mirrors the allegations in that class action lawsuit.

From the outset, Hoppenfeld tried to intimidate the claimant. In one of the most disgusting displays that I have ever seen by an ALJ, despite the fact that Hoppenfeld knew the claimant had an IQ in the retarded range, she kept telling him that his mother should be arrested for not making him go to school. When she saw that her comment upset the claimant, ALJ Hoppenfeld continued to ask why his mother had not been arrested. Moreover, Hoppenfeld refused to sit at her seat, and stood over the claimant throughout much of the hearing. Furthermore, in addition to screaming at me and interrupting my cross examinations in front of the claimant, Hoppenfeld had a guard stand in back of him, and then had the guard sit facing the claimant.

One of the issues in the claimant’s case is Hoppenfeld’s misuse of experts. When the claimant was proceeding pro se, ALJ Hoppenfeld did not find any reason to call experts. However, after Hoppenfeld learned that an attorney was representing the claimant, she suddenly saw the need for THREE experts. I reviewed the claimant’ official SSA file on line both before I was retained, and after ALJ Hoppenfeld decided three hearing experts were needed. Not a single document was added during the interim. The only change was that ALJ Hoppenfeld now knew that the claimant was being represented by an attorney. That decision, in and of itself, evidences Hoppenfeld’s bias. But there is much more.

Misuse of experts happens to be one of the allegations in the class action lawsuit filed against ALJ Hoppenfeld for her anti-claimant bias. The class action alleges that her “consistent errors are highly probative of her anti-claimant bias,” and her pervasive misuse of experts is one of the examples of those consistent errors.

One way that ALJ Hoppenfeld abuses the hearing process is by failing to comply with Social Security’s rotation policy in HALLEX I-2-5-36(D), which provides:

Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See I-2-5-31, Blanket Purchase Agreements.) An ALJ must select an ME who is maintained on any RO's roster to the extent possible. The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called. If an ME in the specialty needed by the ALJ is not available on the RO roster of the HO's region, then the ALJ should look to other RO rosters to obtain the services of an ME.

As part of its investigation into ALJ Hoppenfeld’s anti-claimant bias, Social Security needs to review if she complies with the rotation policy. Both hearings I had with Hoppenfeld during the past 2 years included the same Medical expert (“ME”), a psychiatrist named Alfred Jonas. In the first case, Jonas testified that fibromyalgia is really misdiagnosed depression, and Hoppenfeld refused to allow me to cross examine ME Jonas regarding the basis for his belief that fibromyalgia does not really exist.

Yesterday was the next time I had a case with ALJ Hoppenfeld, and once again ALJ Hoppenfeld had ME Jonas testifying. It is either an incredible coincidence that ME Jonas was selected for each hearing, or it is further proof that ALJ Hoppenfeld intentionally skirts the rotation policy in order to use experts who she knows from prior practice would testify adversely to claimants. ME Jonas’ testimony at the claimant’s hearing certainly supports the latter.

The claimant had a Comprehensive Psychological Evaluation (“CPE”) performed by Dr. Gus C. Pappetrou, a VESID psychologist. VESID is a New York State agency that tries to help disabled people find or maintain work. The claimant is a 52 year old, with a fourth grade education. Because he was unable to continue his unskilled work as a roofing helper due primarily to back and knee pain, the claimant sought VESID’s help to find alternative employment. VESID sent the claimant to Dr. Papapetrou for the CPE, which was a battery of psychological tests, including IQ tests. ME Jonas apparently thought Dr. Pappetrou was the claimant’s psychologist, and testified that he did not know what VESID is.

The CPE found that the claimant had a Verbal IQ of 69 and a Full Scale IQ of 67. If a claimant has a Verbal IQ of 69 OR a Full Scale IQ of 67, then if he has an additional limitation imposing significant limitations of function, it would require a finding of disabled under listing 12.05C. The claimant’s treating physician concluded that the claimant cannot even perform sedentary work. However, as stated in the class action, ALJ Hoppenfeld has a practice and pattern of ignoring treating physician opinions. Hoppenfeld’s second ME was J. Warren [1]

[1] Axeline also went out of his way to try to discredit the claimant. Even though the claimant had testified that he took extra pain medication today because he knew he would have to sit for a prolonged period of time, and even though he left the room because he needed breaks, Axeline felt it necessary to point out to ALJ Hoppenfeld that the claimant had been sitting during the hearing. As an initial matter, the “sit and squirm” test has been universally rejected. Moreover, if Axeline thought the claimant’s ability to sit at the hearing was relevant, then he should have asked the ALJ to inquire about the effects that sitting at the hearing would have on him the next day. Axeline failed to ask that question because he knew, and as the claimant testified afterwards, he would be in excessive pain and stuck at home the next day.

Axeline, who testified that the claimant’ physical impairments would limit him to light work. The case law holds that the inability to perform very heavy, heavy, or medium work, and being limited to light work, constitute significant limitations of function under 12.05C. Therefore, ALJ Hoppenfeld should have immediately ruled that the claimant met 12.05C. However, just as she did in my prior cases, ALJ Hoppenfeld ignored the reliable treating evidence in favor of ME Jonas’ testimony.

In my prior case, Hoppenfeld accepted ME Jonas’ absurd testimony that fibromyalgia does not exist in order to deny the claimant’s SSD benefits. Here, ALJ Hoppenfeld accepted Jonas’ bizarre testimony regarding Dr. Papapetrou. As an initial matter, Jonas is unqualified to assess Dr. Papapetrou’s CPE. Jonas stated that he is a psychiatrist, not a psychologist, and admitted that he has never performed any psychological testing, including the tests performed in the CPE. Jonas also admitted that the tests used in the CPE are valid tests, including the IQ tests. However, ME Jonas said that he could not accept the IQ scores because Dr. Papapetrou did not state the tests were valid.

Jonas’ conclusion shows the depraved lengths he will go to assist an ALJ in denying benefits. On the one hand, Jonas assumes that the claimant’s IQ scores are not valid because Dr. Papapetrou did not say they were valid. On the other hand, Jonas did not assume that the claimant’s IQ scores are valid, even though Jonas admitted that Dr. Papapetrou did not say the IQ scores were invalid. Similarly, Jonas stated that he would not accept the CPE because Dr. Papapetrou did not state that the claimant was not inebriated. According to Jonas’ logic, the claimant has no left arm because Dr. Papapetrou failed to say he has one. Moreover, Jonas admitted that if the claimant were inebriated, then he would have expected Dr. Papapetrou to say so.

Because Jonas has a history of testifying that the only listing claimants meet is for substance abuse, as he did once again at yesterday’s hearing, I asked ALJ Hoppenfeld to admit into the record a letter from Dr. Patel, the claimant’s doctor, stating that alcohol has nothing to do with the claimant’s inability to work. ALJ Hoppenfeld refused to admit Dr. Patel’s letter into evidence. Hoppenfeld then claimed Dr. Patel’s letter was already admitted, but refused to identify the exhibit initially, and then stated it was Exhibit 13F. I immediately told Hoppenfeld that Dr. Patel’s letter was not in Exhibit 13F. Not surprisingly, ALJ Hoppenfeld and Jonas failed to explain how alcohol could have contributed to the claimant’s learning disorder or retardation, which was evident when he was 10 years old and failed to graduate beyond the fourth grade. The claimant submitted letters from a neighbor and former employer who that the claimant cannot read ort write.

Throughout the hearing, ALJ Hoppenfeld constantly interrupted my questioning of her expert witnesses whenever she recognized the answers would help the claimant’s case. Hoppenfeld coached the expert witnesses with leading questions, and even worse, she repeatedly testified for the experts to prevent them from giving answers that would help the claimant’s case. ALJ Hoppenfeld repeatedly refused to allow the experts to answer questions that she thought would help the claimant. EVERY time that Hoppenfeld refused to develop the record, I asked her to cite what rule or regulation she relied upon to prevent the expert from answering, and Hoppenfeld failed every single time to cite any authority for her rulings. When I said she was not above the law and had to comply with the Social Security rules and regulations her boilerplate non-response was that this was her hearing.

Hypocritically, Hoppenfeld claimed that I was improperly asking the claimant leading questions. I asked her to cite the authority that precluded me from doing so. Once again, Hoppenfeld was incapable to do so. She claimed that her 30 years as a trial lawyer was her authority. I told her that any lawyer would know that when dealing with a claimant with an IQ below 70, which ME Jonas testified should have resulted in a diagnosis of mental retardation, it was appropriate to ask leading questions. In other words, Hoppenfeld had no problem asking her experts leading questions, but refused to allow me to ask leading questions to the claimant despite his being diagnosed with a learning disorder and or mental retardation.

Despite ALJ Hoppenfeld’s interruptions, I did get ME Jonas to testify that he would accept the IQ scores from Dr. Papapetrou’s CPE if he explained (a) why he did not specifically state in the CPE that the test scores were valid, (b) why he did not say if the claimant was inebriated; and (c) why the diagnosis was learning disorder instead of mental retardation. I stated that I would have the claimant or his wife obtain those answers from Dr. Papapetrou, even though for the reasons stated above, Jonas’ professed need for that information is specious at best.

In short, Jonas knew that the CPE required finding the claimant disabled. Therefore, his solution was concocting fraudulent reasons for discrediting it, in order to require the claimant to attend a new consultative examination. In other words, if the evidence conclusively supports disability, throw it out. If Jonas truly believed that the CPE IQ scores could only be deemed reliable if Dr. Papapetrou had explained why he did not specifically state in the CPE that the test scores were valid or if the claimant were inebriated, and why Dr. Papapetrou’s diagnosis was learning disorder instead of mental retardation, then a simple letter or call to Dr. Papapetrou would solve that problem. However, since Hoppenfeld and Jonas know that Dr. Papapetrou would be able to explain away Jonas’ inane excuses they insist that the claimant start all over and see somebody else for testing in the hope that they will get results less favorable to the claimant.

The only reason Hoppenfeld refuses to seek information from Dr. Papapetrou to clarify his IQ scores is because she knows he will support the claimant’s disability. The rules and regulations require ALJ Hoppenfeld to contact Dr. Papapetrou if she believes there is any inconsistency that requires clarification or if there is a gap in the CPE report. The rules and regulations do not allow Hopenfeld to request a second opinion simply because she does not like the fact that the prior opinion requires a finding of disabled. Hoppenfeld cannot even claim that Dr. Papapetrou cannot be trusted because he is a biased treating source. Dr. Papapetrou works for VESID, a State agency just like the State agency that would send the claimant for a consultative exam.

ALJ Hoppenfeld’s use of Jennifer Dizon, the vocational expert (“VE”), was equally unprofessional and violative of the rules and regulations. Hoppenfeld would not allow me to ask hypothetical questions to the VE on the grounds that it was not based on medical evidence. This shows Hoppenfeld’s bias or utter incompetence. The very definition of a hypothetical question is that it is not based on a particular document or finding. In any case, my hypothetical was based upon Dr. Patel’s medical conclusions.

The VE identified three occupations from the Dictionary of Occupational Titles (“DOT”) that she claimed the claimant could do: 323.687-014 housekeeper, 729,687-010 electrical assembler, and 230.687-010 pamphlet distributor. Once again, Hoppenfeld continually interrupted my questioning, testified for the VE, and refused to let the VE answer questions, each time Hoppenfeld suspected the testimony would hurt her ability to deny the claimant’ application. Hoppenfeld’s gross failure to develop the record is another example of her anti-claimant bias, which is another one of the allegations in the class action filed against her.

The VE testified that the three occupations had a DOT language level of 1, which she said requires recognizing the meaning of 2,500 words, which was false testimony. The DOT actually states that a language level 1 requires the ability to recognize 2,500 two or three syllable words. Perhaps the VE’s serious mistake could be attributed to her thinking the distinction was unimportant. Although I find it hard to believe that a person responsible for assessing people’s ability to work would think that whether a person can recognize 2,500 words as opposed to 2,500 two and three syllable words to be unimportant. However, the VE’s testimony was outright deceptive. The VE failed to disclose that language level 1 also requires the ability to read at the rate of 95-120 words per minute. The claimant cannot read at all let alone 95 to 120 words a minute. The VE knew that, which explains why she omitted that highly critical fact. The VE also failed to note that language level 1 also requires the ability to compare similarities and differences between words and between series of numbers.

The VE’s description of the language requirements of the occupations gets even worse. She stated that a claimant at that level would have to be able to print simple sentences. What the DOT actually states is that level 1 requires the ability to print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. Once again, the VE’s omission of these highly probative requirements bespeaks the taint and unreliability of her testimony. Notably, electrical assembler requires language level 2, which is even more complicated than level 1.

Language 2 level requires a passive vocabulary of 5,000-6,000 words; the ability to read at rate of 190-215 words per minute, including adventure stories and comic books; looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation; and the ability to read instructions for assembling model cars and airplanes. As for writing, level 2 requires the ability to write compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs. Additionally, level 2 requires the ability to speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses. The claimant undeniably lacks those abilities too.

The VE’s testimony regarding math level 1 is just as reprehensible. Not having access to the DOT at the hearing, I also asked the VE what the math requirements were for level 1. The VE testified that level 1 required adding and subtracting. Once again, the VE, who stated that she was reading from the DOT, misstated the truth. According to the DOT, math level 1 requires adding and subtracting two-digit numbers, as opposed to leaving the impression that adding and subtracting single digit numbers was all that was required. Even more egregious, the VE intentionally omitted that math level 1 requires the ability to multiply and divide 10's and 100's by 2, 3, 4, 5. The VE purposely concealed that information because she recognized that it was at odds with the claimant’s ability to perform those tasks. Concrete evidence of the VE’s despicable testimony was her falsely testifying that the claimant said he performed measurements while working as a roofer. I stated that there was no such testimony, and then asked the claimant if he did any measuring at work, to which he said no.

The VE admitted that according to the DOT the claimant could not perform the three occupations if he were unable to read or write. However, the VE then testified that the claimant could do the housekeeper job and pamphlet distributor anyway. When I tried asking the VE to explain the basis for her conclusion that was contrary to the DOT, Hoppenfeld refused to allow the VE to answer, even though SSR 00-4p specifically requires that information. Hoppenfeld refused to allow me to cross examine the VE properly on that point because she knew the VE lacked any basis for her testimony that conflicted with the DOT. I asked the VE how many pamphlet distributors she had observed at work because I wanted to see the basis for her testimony that contradicted the DOT. The VE evasively said she had observed 500 pamphlet distributors at work. When I asked how many did she observe for a full 8 hour day to see if they required no reading or writing, Hoppenfeld told the VE not to answer, although the VE then admitted the answer was none, and that she had merely passed by those purported 500 pamphlet distributors at street corners.

I have lived in Manhattan for many years, and never saw that many pamphlet distributors, yet the VE somehow managed to see 500 of them in Rochester. More importantly, the VE’s claim that she knows a pamphlet distributor does not need to read and write because she passed them by on street corners is an insult to her profession, and demonstrates that when her opinion contradicts the DOT it is not reliable. Similarly, the VE testified that the claimant could work as an electrical assembler, contrary to the DOT, because that work did not require the ability read and write. However, when I asked how many electrical assemblers she observed at work in order to come to her conclusion which was at odds with the DOT she admitted that she had never done so.

Based upon Dr. Patel’s conclusion that the claimant could not stoop, kneel, or crouch, I asked the VE if a person with those limitations could do the three jobs that the she had identified. The VE said that she thought a person could. However, when I asked how she made that conclusion contrary to the DOT, the VE said she had no answer. In fact, because the VE admitted that she had no answer, ALJ Hoppenfeld said that she would hold the hearing open so the VE could provide answers.

I then asked the VE if the claimant lacked the ability to pay attention and concentrate, which is what Dr. Patel had concluded, could he perform any of the three occupations. The VE said yes because those occupations were SVP 2. However, when I asked where the DOT stated that an occupation with an SVP of 1 or 2 did not require the ability to pay attention or concentrate, once again, the VE was unable to state where the DOT said that.

ALJ Hoppenfeld precluded additional cross exam of the VE. The claimant testified that because of his hands he drops things. He showed the ALJ how his hand cramps up into a claw. The records reflect the claimant’s hand tremors, and he testified that Dr. Patel said he had arthritis in his hands. Dr. Patel concluded in report that the claimant is restricted from using his hands for handling, grasping, turning, and twisting objects, which the three occupations the VE identified require. Not surprisingly, the VE failed to address that point, and Hoppenfeld omitted those limitations, as well as many others, from the hypothetical questions she posed to the VE.

As you may surmise, the above represents merely the tip of the iceberg. Hoppenfeld’s actions yesterday were emblematic of the unfair way that she handles hearings. Her anti-claimant bias is transparent. She referred to the claimant’s testimony under oath as “claims,” indicating a predetermined decision not to accept his statements as credible. At the same time, Hoppenfeld readily accepted the testimony of Jonas regarding the CPE, even though he never did any IQ testing and is not a psychologist, and Hoppenfeld readily accepted the VE’s testimony, which is replete with errors, omissions, and inconsistencies.

In short, you have an illiterate 52 year man, who never went past the fourth grade, with a history of unskilled menial heavy work, who even Jonas admitted is mentally retarded or learning disabled, who went for help to VESID to try to work after he was no longer able to work as a roofer helper. ALJ Hoppenfeld went way out of her way to deprive the claimant a full and fair hearing by following her practice and pattern of unfair tactics. As usual, Hoppenfeld showed she was rejecting the opinion of the treating physician, Dr. Patel, in favor of non-examining sources. She showed that she would rely on ME Axeline not only to reject Dr. Patel’s findings and conclusions, but also the findings and conclusions of Dr. Gallo, who performed the consultative examination for Social Security. Hoppenfeld showed that she would use Jonas, who investigation could show was selected out of rotation, to reject the findings and conclusions of Dr. Papapetrou, who works for New York State, even though Jonas lacks the expertise to critique IQ and psychological testing.

Social Security should investigate all the experts that Hoppenfeld uses to see if she complies with the rotation policy. Hoppenfeld’s pervasive interruption of cross examination, testifying for expert witnesses, and refusing to develop the record by improperly ordering experts not to answer questions demonstrates a gross deprivation of a fair hearing. Simply going through the motions of holding a hearing is not the same as conducting a full and fair hearing.

If you believe that you ALJ Hoppenfeld treated you unfairly, then you can find out information to file a complaint with Social Security at http://www.ssa.gov/pubs/10071.html.

Rheumatoid Arthritis

2011-09-16T15:53:00.001-05:00

Rheumatoid Arthritis (“RA”), which is an incurable form of inflammatory arthritis, is an autoimmune disease where the immune system attacks the body’s own tissues. As a result of the attacks, fluid builds up in the joints, causing joint pain and inflammation throughout the body. The pain and stiffness from RA can become disabling.

When applying for Social Security Disability (“SSD”) benefits, the most expeditious way to establish entitlement to benefits is to show that the claimant meets the criteria under “listing” 14.09. If the criteria of a “listing” are met then the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

Two ways to meet 14.09 is to demonstrate that the RA effects (a) at least one of the claimant’s major weight-bearing joints resulting in the inability to ambulate effectively, or (b) joints in each upper extremity resulting in the inability to perform fine and gross movements. Simply providing records showing a claimant has RA is insufficient to meet the listing because it does not show the functional effects of the disease.

I represent a 53 year old former salesperson with RA whose SSD application was approved today without ever being denied. I worked with the claimant’s rheumatologist to provide a letter to Social Security that explained why the claimant met listing 14.09. Without the rheumatologist’s listing opinion it is very unlikely that her SSD application would have been approved without a hearing.

SSD Overpayments

2011-09-08T13:21:00.001-05:00

I am frequently retained after the Social Security Administration (the “SSA”) rules that a claimant is liable for an overpayment of Social Security Disability (“SSD”) insurance benefits. An overpayment is the difference between the amount the SSA paid the claimant and the amount to which the SSA subsequently alleges was actually due.

It seems that the SSA almost always assumes that there was in fact an overpayment, and instead focuses only on whether the claimant is entitled to have the overpayment waived. I received a decision from the Appeals Council today remanding the decision of the Administrative Law Judge (“ALJ”) on this very issue. The Appeals Council agreed that the issue was not whether the claimant qualified for waiver of the alleged SSD overpayment, but rather, whether there an overpayment in the first place.

The ALJ concluded that the SSA overpaid my client $1,501.40 in SSD benefits between July 1, 2009 to September 30, 2009 on the grounds that the claimant was “performing work activity.” The first step in the sequential evaluation is to determine whether the claimant was engaged insubstantial gainful activity (“SGA”). Whether or not the claimant performed work activity is irrelevant unless it constituted SGA. I argued that the ALJ never made any attempt to determine if the alleged work activity constituted SGA under any of the three SGA tests. The Appeals Council agreed and remanded the case.

Under all three SGA tests the claimant’s so-called work activity cannot be deemed to qualify as SGA. As a result, not only will the claimant be entitled to SSD benefits during the July 1, 2009 to September 30, 2009 time period, but she will also be entitled to benefits from October 1, 2009 through the present.

LTD Approved In Less Than A Month

2011-09-06T12:42:00.001-05:00

Applying for benefits under a group long term disability (“LTD”) plan typically takes a fairly long time. Therefore, I was surprised when Unimerica Life Insurance of New York approved an LTD application for an elementary school teacher less than a month after I submitted it.

Along with the application forms, I provided a detailed vocational analysis specifying the physical demands required of an elementary school teacher. I then demonstrated how the medical forms that the claimant’s neurologist, physiatrist, and orthopedist completed showed how the claimant lacked the ability to perform the physical demands of the occupation. In addition, I submitted diagnostic MRI and EMG reports revealing numerous objective findings consistent with the treating doctors’ opinions.

Technically, the claimant was only supposed to file the LTD Plan application forms when applying. However, the additional physician and test reports made it unmistakably clear that the claimant lacked the ability to continue working, especially when those reports were examined in the context of the vocational data. Had I not supplemented the LTD Plan application forms with the additional medical records and vocational information, then I am sure that the claim would not have been approved as quickly.

Maximizing Disability Benefits

2011-09-03T12:26:00.000-05:00

According to the Social Security Administration (“SSA”), a protective filing date is, “The date you first contact us about filing for benefits. It may be used to establish an earlier application date than when we receive your signed application.”

Social Security Disability (“SSD”) benefits are available after a full five month waiting period. When filing a Social Security Disability (“SSD”) application, it is possible to be awarded up to twelve months of retroactive benefits. As long as an application is filed within seventeen months of the disability onset date a claimant will not lose potential SSD benefits.

I represent a 40 year old truck driver with a knee replacement who became disabled more than 17 months before initially contacting me. I advised the claimant to contact the SSA for an appointment to file for SSD benefits in order to receive a protective filing date, which he did. I further advised the claimant to send a confirmatory letter to the SSA as proof of the contact because the SSA does not always send a letter to claimants for an appointment.

The claimant eventually retained me, and I filed an application for SSD benefits two months later. The claimant received a fully favorable decision today that found the claimant disabled as of the protective filing date. As a result, the claimant received two additional months of SSD benefits.

Mixed Connective Tissue Disease

2011-09-02T12:08:00.003-05:00

I represent an industrial salesman from Oregon whose application for Social Security Disability (“SSD”) benefits was denied on June 16, 2011 by the State agency on the grounds that the claimant was expected to get better within 12 months. On that same date, I filed an on-the-record (“OTR”) request for a fully favorable decision, which Social Security approved on August 25, 2011.

The claimant was diagnosed with mixed connective tissue disease (“MCTD”). According to the Mayo Clinic, MCTD is an uncommon autoimmune disorder that causes overlapping features of primarily three connective tissue diseases — lupus, scleroderma and polymyositis, and it also may have features of rheumatoid arthritis.

I was able to avoid a hearing for the claimant by showing that he met a “listing” covering MCTD. Under Ninth Circuit law, if a claimant meets the criteria of listing 14.06, then the impairments are considered severe enough that they presumptively preclude any gainful work activity. I obtained a letter from the claimant’s doctor detailing how the claimant met the medical criteria that are listed in 14.06. The OTR then explained how the doctor’s finding and conclusions matched the listing’s criteria.

A medical opinion that a claimant meets a listing is the best type of evidence that can be used to establish entitlement to SSD benefits. Proving that a claimant meets a listing is the best argument to espouse on an OTR. Avoiding a hearing means the claimant need not deal with the stress of a hearing, improves the claimant’s cash flow, and can reduce the claimant’s attorney fee.

When To Amend The Disability Onset Date

2011-08-29T13:00:00.003-05:00

Telling the Social Security Administration (“SSA”) that you want to change an application for Social Security Disability (“SSD”) benefits to reflect a later disability onset date can result in a faster approval, possibly without losing any benefts.

I represent a former plastics salesperson whose May 26, 2011 SSD application said she became disabled in August 2005, at which time she was 48 years old. The SSA denied the claimant’s application on August 4, 2011, and I received the claim file a week later. I then filed an on-the-record (“OTR”) appeal on August 14, 2011, which amended the claimant’s onset date from August 2005 to her 50th birthday in July 2007. The five month waiting period would be satisfied as of January 2008.

The SSA can pay SSD benefits up to 12 months before the month in which an application is filed. Thus, the earliest date when the claimant could potentially receive benefits was May 2010.

In order to qualify for SSD benefits, an applicant must establish disability before the “date last insured (DLI).” The claimant’s DLI was March 31, 2008, which was after her 50th birthday.

I filed the claimant’s OTR on August 14, 2011. The SSA approved and paid the SSD benefits within two weeks after the OTR was filed.

Under the circumstances applicable to the claimant’s case, the Medical – Vocational Rules made it easier for her to establish disability as of her 50th birthday. Without the amendment, it is likely that the OTR would not have been approved. Since the claimant’s SSD benefits could not be paid prior to May 2010, establishing disability as of July 2007 instead of August 2005 did not result in a decrease of benefits.

Right To Cross Examine Post Hearing Experts

2011-08-23T15:47:00.003-05:00

I represent a 49 year old former pastry chef who had a hearing for Social Security Disability (“SSD”) benefits before Administrative Law Judge (“ALJ”) Ronald Waldman. The claimant’s treating orthopedist provided diagnostic tests and treatment records that supported his opinion that the claimant could not do any type of work. Moreover, under the Medical – Vocational rules, the claimant would have to be found disabled even if she could do sedentary work.

After the hearing, the ALJ sent interrogatories to a general surgeon named Dr. Thomas H. Weiss who has not practiced medicine for nearly twenty years. It was unclear why the ALJ did not pose the interrogatories to the treating orthopedist, especially since his opinion was well supported. Dr. Weiss made medical findings without ever examining the claimant, which were equivocal.

New York law holds that a claimant has a due process right to cross-examine an expert who issues a post-hearing report. Consequently, I advised the ALJ that if he intended to rely on Weiss’ report to deny SSD benefits, then the claimant would invoke her right to cross-examine the expert.

The ALJ issued a fully favorable decision today, which obviated the need to cross examine the expert. The ALJ gave the treating physician’s opinion more weight than the expert’s opinion on the grounds that it was more consistent with the record as a whole, which raises the question why the interrogatories were needed.

Although an ALJ may not ultimately rely on a post hearing expert’s opinion to deny SSD benefits, it is important to preserve the right to cross examine the expert in case the report is adverse or equivocal. Appeals Council reviews are not always thorough, and a supplemental hearing to cross examine the expert is needed in order to present a complete record for judicial review.

Commissioner’s Statement Is Offensive

2011-08-22T10:10:00.002-05:00

Stephen Ohlemacher's article in today’s Newsday entitled “Soc. Sec. Disability In Peril” includes a quote from Social Security Commissioner Michael Astrue that is offensive to disability applicants. The article discusses how the Social Security Disability program is in financial trouble as aging baby boomers and laid off workers are filing large numbers of claims.

One would expect disability claims to increase as the large number of baby boomers approach retirement age since older workers are more likely to become unable to work compared to younger workers. Disability claims should also be anticipated from workers who have been laid off because many were allowed to work with special accommodations, especially older workers who had developed good will with their employers.

Instead of recognizing the legitimate reasons why more people need to apply for disability benefits under the present circumstances described above, Commissioner Astrue attributes the increase to “economic desperation” as laid off claimants “take a shot at disability.” Many baby boomers are applying because age has taken its toll on their ability to work, not because they are economically desperate. The greater number of older people, the greater number of expected disability claims. Moreover, assuming that a laid off worker “takes a shot at disability” out of economic desperation demonstrates a preconceived notion that the claimant is not applying due to inability to work, which violates the supposed non-adversarial process for evaluating disability claims.

Gilding the Lily

2011-08-20T12:16:00.004-05:00

The Shakespearean derived phrase “gilding the lily“ means to make superfluous additions to what is already complete. I’ve been accused of gilding the lily by submitting evidence from multiple supporting treating sources when applying for disability benefits. Although it may be true that benefits might be approved based on support from a single physician, I’ve found that providing reports from additional medical sources expedites favorable decisions.

I represent a 50 year old construction worker whose Social Security Disability (“SSD”) benefits were approved in less than five months after he retained me. When the claimant came to me, he explained that he could not work because he had knee problems. However, after interviewing the claimant, I learned that he also had wrist and shoulder problems. I wound up filing records and reports for all three of the claimant's problems.

It is possible that the claimant’s SSD application may have been approved if he had relied solely on his knee problems as a basis for his disability. Nonetheless, experience has demonstrated that the chances of obtaining an approval increase substantially when presenting evidence of all impairments, even if only of secondary import in the mind of the claimant. In fact, the regulations specifically require that the combined effect of all of the claimant’s impairments be considered when evaluating the ability to work.

SSD Approved in 2.5 Months

2011-08-16T08:51:00.005-05:00

Social Security is well known for taking a long time to decide if it should approve an application for Social Security Disability (“SSD”) benefits. Therefore, when it makes a rare decision quickly, the question is why?

I represent a former car salesman whose SSD application was approved in 2.5 months, which is significantly faster than normal. A car salesman is considered light work because it requires the individual to be on his feet most of the work day. There is no reported case where a court found a car salesman to have skills that would transfer to sedentary work.

Given the claimant’s age, he would have to be found disabled even if capable of sedentary work. This “Grid” situation is not unusual, and by itself does not explain why SSD benefits were approved in a little over two months. Two other factors may explain the rapid decision.

I submitted reports from the claimant’s internist regarding back problems, and pulmonologist regarding breathing problems, that showed the claimant lacked the ability to do even sedentary work. Establishing comorbid conditions that independently warrant a finding of disabled obviously presents a stronger case. I also explained the significance of the claimant’s 38 year work history as a car salesman, which is objective evidence of a good work ethic and credibility. The synergistic effect of the comorbid evidence and work history simply made it too difficult for the State agency to contest the application.

When to File for SSD

2011-08-06T12:38:00.002-05:00

I am constantly being contacted by people who were led to believe that they needed to be disabled and out of work for a year before applying for Social Security Disability (“SSD”) benefits. The regulations actually state that you must have a condition that has lasted or can be expected to last for at least 12 months in a row.

I always advise potential claimants to file as soon as possible. The initial decision in the local offices usually takes about a half year. The worst thing that can happen is that the application could be denied for failing to meet the 12 month duration requirement, but that rationale would eventually disappear on appeal at the 12 month mark. Another possibility is a suspension.

I represent a 53 year old custodian whose application was approved today. I filed his SSD application in March, stating that he became disabled in January. In April, the disability determination services notified me that they were postponing reviewing the claimant’s SSD application on the grounds that more time had to pass to evaluate whether he met the 12 month duration requirement.

The end result is that the claimant’s application was approved 5 months after it was filed, and 8 months after he stopped working. Cash flow was particularly troublesome for the claimant so the relatively quick approval was important.

It is also possible that the 12 month duration requirement will not present a problem. I represent a carpenter whose SSD application was also approved today. He stopped working January 31, 2011, and I filed his application on February 3, 2011. His application was initially denied for his refusal to attend a consultative examination, not for failing to meet the duration requirement. I promptly filed an on-the-record request for a fully favorable decision, which was approved today. The end result here being that the claimant's application was approved about 7 months after it was filed.

Disability & Incontinence

2011-08-05T13:07:00.002-05:00

A Social Security Disability (“SSD”) claimant with spina bifida asked me to represent him after his initial hearing with an Administrative Law Judge (“ALJ”). The claimant had received SSD in the past, but asked that it be stopped because he wanted to try working out of his house. A couple of years later, after surgery related to his spina bifida rendered him incontinent, the claimant stopped working and reapplied for SSD.

The ALJ had sent interrogatories to a medical expert, who stated the claimant could do sedentary work, even though the spina bifida and related surgery had left him incontinent. At the hearing I was able to show that the claimant’s condition was worse when he reapplied compared to when he had originally been approved for SSD. On cross exam, the medical expert testified that he did not review any evidence from the time of the claimant’s original application, and was unable to explain why he believed the claimant could work now, even though his condition was worse than when he had been approved for SSD previously.

Prior to the hearing, I provided the ALJ with a report from a vocational expert. Her report explained in detail why the claimant’s need for bathroom breaks and access rendered the claimant incapable of working. The ALJ agreed that the claimant’s incontinence significantly compromised his ability to work, and approved his SSD application.

Just as certain medical conditions require supporting reports from treating doctors, some diseases or injuries require supporting reports from vocational experts. The ALJ had asked a medical expert, but not a vocational expert, to testify at the claimant’s hearing. Even if the ALJ had rejected the vocational expert’s report, it would have provided very strong grounds for a reversal or remand on appeal.

Hoppenfeld Fibromyalgia Bias

2011-07-31T11:50:00.004-05:00

On The Record Requests

2011-07-26T11:37:00.002-05:00

If an application for Social Security Disability (“SSD”) benefits is denied by the State agency, then you can request a hearing with an administrative law judge. Government statistics show that it takes over a year before you get to have a hearing. That delay can be reduced significantly by submitting a request for a fully favorable decision on the record (“OTR”).

An OTR should summarize the medical and vocation evidence, and demonstrate why the Social Security rules and regulations show that a hearing is not needed. SSD benefits must be granted where a treating doctor’s opinion that a claimant cannot work is given controlling weight. In theory, only one doctor’s supporting opinion is required to get SSD benefits.

I represent a 40 year old former financial strategic planner with cervical radiculopathy and chronic fatigue syndrome (“CFS”), whose OTR was approved today. SSD benefits are frequently denied to applicants who are younger than 50 years old, especially prior to a hearing. One way to increase the chances of having an OTR granted is to submit disability opinions from multiple medical sources.

In this instance, I provided disability opinions from the claimant’s orthopedist, pain management specialist, CFS specialist, and physiatrist. The medical opinions provided corroborative evidence and showed that a contrary State agency opinion was inconsistent with the record as a whole. Without the additional supporting opinions, the OTR probably would have been denied, thereby requiring the claimant to wait for a hearing.

LTD Approved In Two Months

2011-07-19T10:59:00.002-05:00

When you apply for group long term disability (“LTD”) at work you are supposed to get a decision in 45 days under a federal law known as ERISA. However, that is not usually the case, and almost invariably, the insurance company that typically acts as the claim administrator asks for additional time to make a decision. Nonetheless, I received an approval today from Prudential 45 days after filing an application for LTD benefits for a 53 year old woman who had worked for New York City.

Like many other LTD applications that I filed, I submitted supportive medical records and reports together with the LTD application forms. What made this application different? The answer appears to be that I submitted the claimant’s Notice of Award for Social Security Disability (“SSD”) benefits.

Most LTD plans deduct SSD and other disability benefits, such as workers compensation, from the LTD benefit. For some people that will completely offset the LTD benefit, and the entire amount of LTD benefits received will have to be repaid. My client’s SSD substantially reduced her monthly LTD benefits. Absent the SSD offset, it is likely that Prudential would have asked for additional time to review the application because its liability would have been significantly greater.

Work History

2011-07-17T10:41:00.000-05:00

A claimant’s work history can be just as important as a person’s medical history when applying for Social Security Disability (“SSD”) benefits. Yesterday, I had two SSD applications that were approved without ever having been denied that illustrate this point.

I had submitted medical evidence that supported approving each claimant’s application. One claimant was a 49 year old court reporter, and the other was a 50 year old firefighter. However, I have submitted similar medical evidence for many other SSD applicants, including former firefighters and court reporters, whose SSD applications were denied initially. The two applications approved yesterday involved individuals who each had only one job during the past 15 plus years.

It is important to emphasize that a claimant’s alleged inability to work is supported by a strong work history. The courts, particularly those in the Second Circuit that includes New York, have established that claimants with a good work record, especially those with the same employer, are entitled to substantial credibility when claiming inability to work because of a disability.

Social Security presumes that the only reason people with a good work ethic, or who earned a lot of money, stopped working is because they cannot. Emphasizing those positive vocational factors is usually sufficient to alter Social Security’s default position of denial to an approval.

Relocating While Disabled

2011-07-16T08:30:00.004-05:00

The loss of income from becoming disabled forces some people to relocate to a place with a lower cost of living. Unfortunately, relocating can result in delaying approval for Social Security Disability (“SSD”) benefits.

I represent a woman who was 48 years old when she had to stop working as an administrative assistant because of her many medical conditions. The claimant’s diagnoses and treatment were well documented, and the treating physician provided a strong disability opinion. However, the claimant moved to the State of Washington while her SSD application was pending.

It appears that the Seattle hearing office repeated the steps that the Jericho hearing did, and by the time the Seattle Administrative Law Judge (the “ALJ”) started reviewing the application, she no longer considered the treating physician’s disability opinion relevant, even though it was well supported by diagnostic and clinical medical findings. It then took the claimant a substantial amount of time before her new treating physician was willing to provide an opinion that the claimant was incapable of working.

Yesterday I received a fully favorable decision from the Seattle ALJ. I have no doubt that if the claimant had remained in New York then her application would have been approved about a year sooner. While cost of living is obviously a consideration when losing work income, potential disability processing delays should also be considered.

Getting Disability Benefits Quickly

2011-07-11T15:41:00.001-05:00

When seeking Social Security Disability (“SSD”) benefits, you not only want to win your benefits, but you want to win them quickly. Attorneys usually get paid 25% of the past due benefits when working on SSD cases. Therefore, the faster your SSD application is approved, the smaller your attorney fee. It is best to retain an attorney who has experience litigating SSD cases in federal court as they generally have a better understanding of the entire approval process. On the other hand, you should be wary of companies who call themselves disability advocates, where attorneys may not even work on your case.

An insurance company attorney retained me after his SSD application was denied. His application was approved today without a hearing, even though a doctor from Industrial Medicine Associates (“IMA”) examined the claimant for Social Security, and said that the attorney could work. I was able to get the claimant’s application approved without a hearing by showing the evidence used to support the denial was unreliable, and by supplying reliable evidence that unambiguously supported disability.

The denial had been based on the IMA “orthopedic” consultative examination (“CE”) by Linell Skeene, who indicated the claimant has a sedentary work capacity. The claimant had orthopedic and pulmonary impairments. I notified the hearing office that Dr. Skeene is not an orthopedist, but in fact specializes in emergency medicine, and was unqualified to assess the claimant’s impairments. On the other hand, I provided the hearing office with disability opinions from the claimant’s orthopedist, pulmonologist, and physiatrist, each of which showed the claimant lacked a sedentary work capacity.

I have reviewed thousands of SSD claims prepared by non-attorney representatives, who were frequently satisfied with getting one treating physician’s opinion to support a claim. Having litigated SSD claims in federal court as well as at the administrative level, it is obvious that having multiple supporting opinions is not merely cumulative, or “gilding the lily.” The opinions corroborate one another and show that the CE’s opinion is the aberrant one that is inconsistent with the record as a whole. That is an example of the sort of thing that SSD attorneys understand, but many non-attorney disability advocates do not.

Carpal Tunnel Syndrome

2011-07-11T11:49:00.005-05:00

According to the Mayo Clinic, carpal tunnel syndrome ("CTS") is a progressively painful hand and arm condition caused by a pinched nerve in your wrist. CTS can affect a person's ability to work by limiting one's ability to lift, carry, write, etc.

The loss of bilateral manual dexterity ("BMD") is significant in Social Security Disability ("SSD") cases. Social Security rules state that BMD is necessary for the performance of substantially all unskilled sedentary occupations, and will result in a significant erosion of the unskilled sedentary occupational base.

I represent a 57 year old former road crew chief, who could not perform his heavy work because of arthritis, knee, and shoulder problems. The question remained whether he could perform less strenuous sedentary work. However, the claimant had CTS, which the treating orthopedist said prevented the claimant from being able to handle, grasp, turn, or twist objects, or do fine manipulation. Since the CTS resulted in a loss of BMD, it significantly eroded the unskilled sedentary occupational base, resulting in an approval of SSD benefits.

SSD Approved in 3 Months

2011-07-10T08:10:00.003-05:00

Somewhat along the lines of my previous blog entry, yesterday I received a fairly rapid approval on an application for Social Security Disability (“SSD”) benefits. The claimant was a 58 year old former CEO of a nonprofit.

In a relatively short period of time, I was able to submit narrative, functional, and progress reports from two orthopedists and a physiatrist that detailed the claimant's medical condition. This was another claimant who followed our advice regarding ways to work with doctors to get favorable evidence quickly. The medical records provided ample support for the doctors' opinion that the claimant lacked a sedentary work capacity, and those opinions were obviously accepted in approving SSD benefits.

Claims processing is usually a little slower during the summer months. Nonetheless, obtaining and submitting the necessary medical evidence expeditiously can still facilitate a relatively prompt decision.

SSD Approved In Two Months

2011-07-07T19:46:00.002-05:00

It is common knowledge that it usually takes a long time to get an application for Social Security Disability (“SSD”) processed. I represent a 53 year old former Director of Field Operations for New York City whose SSD application was approved today in only two months. What made this case different?

The claimant was very organized. The claimant already had her medical records before meeting me, which saved a substantial amount of time. Perhaps more importantly, the claimant quickly obtained the reports from her two orthopedists and physiatrist that I had requested, each of whom identified the clinical and diagnostic findings to support their opinion that the claimant lacked the ability to perform sedentary work.

It is no guarantee that submitting supportive medical records and reports with an application for SSD benefits will result in an award in only two months. However, securing the evidence promptly can shave many months off the review process, which is beneficial regardless of whether or not the decision is favorable.

SSD & WC Offset

2011-07-03T06:55:00.000-05:00

I represent a 49 year former deliveryman for DHL, whose Social Security Disability (“SSD”) benefits were approved without a hearing yesterday. The decision approving his benefits ended with the statement: “There may be an offset against Social Security disability insurance benefits due to the receipt of Workers’ Compensation.”

If you are entitled to periodic benefits under a workers' compensation (“WC”) law or plan, or to certain public disability benefits, then the Social Security Administration (“SSA”) is generally required to reduce your SSD benefits. The total monthly amount of your benefits cannot exceed 80 percent of your average current earnings before you become disabled. The SSD benefits that you and your family receive will be reduced if the combined total amount, plus your WC payment, plus any public disability benefit payment you receive, exceeds 80 percent of your average pre-injury/illness earnings. The larger your predisability income, the less likely it is that your benefits will be offset.

The offset needs to be considered if you are offered a WC lump sum buyout. If your periodic SSD and WC benefits exceed 80%, then the terms of a WC buyout could reduce the effective rate of your periodic WC payments, thereby reducing the SSD offset.

Disability Analysts

2011-07-01T18:35:00.001-05:00

The initial medical determinations in Social Security Disability (“SSD”) applications in the New York region are usually made by Disability Analysts, not doctors. If an SSD application is denied, both the Social Security Administration (“SSA”) and case law have stated that a Disability Analyst’s assessment of a claimant’s work ability’s is entitled to no weight.

I represent a 43 year old woman with back injuries who had worked with the learning disabled. The claimant had a hearing before Administrative Law Judge (“ALJ”) David Nisnewitz, during which the Medical Expert (“ME”) said the claimant’s back condition was severe enough to meet or equal Listing 1.04A. The claimant’s treating neurologist provided extensive records and opinions that the claimant could not work, but ALJ Nisnewitz disregarded that opinion. Instead, he approved the claimant’s case because the ME’s opinion was more consistent with the record than the “State agency medical consultant.”

Before the hearing started, I advised ALJ Nisnewitz that the State agency’s opinion was from a Disability Analyst, not a physician, and as such could not be considered at all. Despite agreeing on the record not to give any consideration to the Disability Analyst’s opinion, the ALJ did consider it, and he gave it some weight. Moreover, a ME’s opinion is entitled to little if any weight since he never examines the claimant.

The outcome was fortunate for the claimant as the ME testified favorably; however, the ALJ’s decision failed to follow the law regarding the treating physician rule. If the treating physician rule had been followed, then the decision should have concluded that the claimant was disabled based on the findings and conclusions of the treating neurologist.

Federal Court Decision

2011-06-24T17:55:00.001-05:00

A claimant retained me to file an action in federal court seeking Social Security Disability (“SSD”) benefits. Magistrate Judge (“MJ”) Ronald Ellis recommended that the ALJ’s decision be reversed, and remanded solely for a calculation of SSD benefits, which was unusual since most SSD cases are denied or remanded for another hearing.

MJ Ellis had ruled that “it is well-settled that rejecting the opinion of a treating physician solely based on internal inconsistencies is error,” and that the Administrative Law Judge denied the claim by substituting her opinion for that of competent medical evidence. Today, U.S. District Court Judge Paul A. Crotty adopted Magistrate Judge Ellis’ reasoning, which constitutes a complete victory for the claimant.

When seeking an attorney to handle your SSD claim you should ask about their experience litigating SSD cases. Lacking a thorough understanding of the issues that are relevant in federal court at the administrative level can lead to waiving those issues if the claim needs to be appealed to federal court.

Social Security Depravity

2011-06-17T09:24:00.001-05:00

I represent a claimant who was just diagnosed with amyotrophic lateral sclerosis (“ALS”), and was given only a few years to live. Because the Social Security Administration (“SSA”) recognizes the terribly debilitating nature of ALS, the Commissioner requires that ALS disability claims be given expedited processing as a “compassionate allowance.”

I immediately notified the claimant’s local SSA office in West Babylon about the claimant’s ALS diagnosis, and asked that her application for Social Security Disability (“SSD”) benefits be expedited. Instead of expediting the application’s processing, a woman named Ms. McKeon who said she is the office supervisor demanded that an application with an original signature be filed.

Ms. McKeon was told that because of the claimant’s ALS, it was too difficult for her to come to my office to sign the application, so a relative faxed the signed application to me. Ms. McKeon was also advised that other applications that I have submitted by mail without original signatures have been processed. Ms. McKeon was reminded that the SSA cannot require original signatures for the hundreds of thousands of disability applications that are filed on line, and was asked that she cite the law that precludes her from processing the ALS application.

Ms. McKeon has failed to identify what law prevents her from processing the claimant’s SSD application. Ms. McKeon failed to explain why she failed to notify anybody that a faxed application signature would not suffice until I requested expedited processing as a compassionate allowance case. Ms. McKeon failed to explain why the hundreds of thousands of SSD on line applications can be processed without an original signature. To delay the processing of this case, especially after being notified the claimant has ALS, is morally corrupt.

Apparently, the Commissioner’s office needs to make clear that its policy of expediting compassionate allowance cases takes precedence over any law requiring original signatures, even assuming that such a law exists.

Depression and Anxiety

2011-06-16T09:32:00.000-05:00

The Social Security Administration (“SSA”) denies hundreds of thousands of claims for disability benefits each year. The SSA denies about two out of every three people. Claims that are based primarily on symptoms such as mental disorders, fibromyalgia, chronic fatigue etc. are more readily denied because the disability examiners reject them for lack of objective evidence.

It takes the SSA about half a year to make its initial decision, and then more than a year before the claimant can get a hearing. One way to mitigate the wait and backlog is by building a case that the disability meets a listed impairment. If your medical condition meets or equals a listed impairment, then you are considered presumptively disabled, and do not have to prove that you are unable to do your past or any other work.

I represent a college professor who became unable to work after 20 years due to depression and anxiety. Her SSD application was approved yesterday without a hearing. As noted above, it is difficult to get any SSD claim approved before a hearing, let alone one that is primarily based on symptoms. However, in this case, I was able to secure evidence that showed the professor met the listings for both depression and anxiety.

When you work, the SSA gets 7.65% of your paycheck for Federal Insurance Contributions Act taxes. If you paid into FICA, then you are entitled to SSD benefits if you can no longer work. If your disability application has been denied, then see if you can expedite your approval by garnering evidence that you meet a listed impairment. Do not accept rejection simply because you lack objective evidence to support your claim

Fully Favorable Appeals Council Order

2011-06-10T15:09:00.005-05:00

After an Administrative Law Judge (“ALJ”) denies a Social Security Disability (“SSD”) application, a claimant can appeal to the Appeals Council (“AC”). The vast majority of the time, the AC either agrees with the ALJ’s denial, or remands the case to the ALJ for another hearing. Today I received a rare decision from the AC that accepted my appeal arguments, and ruled that my client, a 47 year old former pharmaceutical sales representative, is entitled to nearly seven years of SSD benefits, beginning as of July 23, 2004.

The AC originally agreed that the claimant was not disabled. At that point, I took over the case from another attorney, and filed a complaint in federal court. The United States Attorney who was representing Social Security believed that the decision of the ALJ was so legally untenable that it voluntarily asked the claimant to agree to have the case remanded. Because the claimant relocated, the claim was reassigned on remand to ALJ Sy Raynor, who then also denied the claim.

While my appeals comments contained many legal and factual arguments, they essentially boiled down to a single logical contention. The United States Attorney believed that the 2006 Decision was so legally untenable that it asked the claimant to agree to remand the case. The additional medical evidence I submitted at the second hearing with ALJ Raynor, which even more strongly supported the claimant’s allegations, showed that ALJ Raynor’s decision was even less legally tenable.

I showed how the medical evidence provided persuasive proof that the claimant lacked the ability to perform sedentary work, and that there was no basis to assume that further developing the record would unearth a contrary opinion from a doctor who examined the claimant. Since two ALJs had two separate chances to review the records and request medical evidence, yet failed to carry their burden of proving that the claimant could do sedentary work, and more than five years had passed since the claimant applied for SSD benefits, I argued that the case should be remanded solely for the calculation of benefits.

The AC agreed that the claim should be approved without further proceedings. The lesson from this case is that you should not give up on your valid SSD claim regardless of how many times it has been denied.

Erythema Multiform Major

2011-06-06T12:29:00.000-05:00

Erythema Multiforme Major (“EMM”) is an acute, self-limited, and sometimes recurring skin condition considered to be a reaction associated with certain infections, medications, and other various triggers. EMM is a severe, potentially life-threatening disorder.

I represent a former business owner in Florida with EMM whose application for Social Security Disability (“SSD”) benefits had been denied twice. Today, his on-the-record (“OTR”) request for SSD benefits was approved, which avoided the need for a hearing.

The claimant’s application had been denied apparently because the people reviewing the claim failed to understand it. I obtained a report from the claimant’s physician, which explained that the EMM was triggered by Herpes Simplex infections, for which he takes Acyclovir and Prednisone. Unfortunately, the Prednisone caused reactions that were almost as bad as the EMM. The report also included a functionality assessment that was supported with objective clinical findings.

In connection with the OTR, I then secured a report from a new doctor that is treating the claimant, which corroborated the findings and conclusions of the claimant’s prior physician. Additionally, the claimant’s EMM became so severe during certain flare ups that he was sent to the hospital, and those records, which further corroborated the severity of the claimant’s EMM, were also submitted with the OTR.

The main difference between the medical evidence submitted at the initial levels and OTR was the addition of corroborative evidence. While it is possible that the claimant’s SSD application would have been approved after a hearing without the additional records, the corroborative evidence helped expedite the approval and avoided the angst of a hearing.

SSD in Three Months

2011-06-04T12:59:00.002-05:00

Due to heavy caseloads, initial Social Security Disability (“SSD”) decisions in the New York metropolitan area usually take longer than most other places. I represent a 53 year old former truck driver for DHL whose SSD application was approved today just three months after it was filed. The rapid approval shows that it must have been obvious to the State agency, which makes the initial SSD decision, that the claimant was clearly disabled.

Despite the fact that the claimant obviously had a strong SSD claim, the State agency had sent him a letter stating that it was “necessary” that he have a consultative examination (“CE”)with IMA Disability Services. The claimant was led to believe that his SSD application would be denied if he chose not to attend the CE, even though the Social Security regulations only provide for limited circumstances when a CE is appropriate.

The fact that the claimant’s SSD application was approved in only three months contradicts the State agency’s assertion that it was “necessary” for the claimant to have a CE with IMA. Before attending a CE you should make sure that the State agency’s request complies with the Social Security regulations that govern CEs.

Lincoln Life Pays LTD Benefits

2011-06-01T11:59:00.004-05:00

I represent a 57 year old claimant with an 8th grade education who earned $170,000 a year working as a Director of Construction. The claimant had to stop working as a result of a stroke. The Social Security Administration concluded the claimant was unable to do any type of work.

Lincoln Life denied the claimant’s long term disability (“LTD”) benefits because it claimed he could still work at his old job. However, after the claimant sued Lincoln, Lincoln agreed to pay the LTD benefits. Issues regarding interest on the past due benefits, attorney fees and costs still remain unresolved.

Lincoln has notified the claimant that benefits may be discontinued when the definition of disability under the policy changes from being unable to do one’s past work, to any work. However, Lincoln knows that the Complaint filed in the lawsuit, as well as the previous appeal letters, shows that the claimant is not only incapable of performing his past work, but any other full time work as well, which is why Lincoln wanted to buy out the claim.

Lincoln has stated that it will require additional information to continue paying LTD benefits, even though the claimant’s condition is permanent and will not improve. It is possible that Lincoln’s assertion is simply boilerplate language included in an approval letter. However, any additional documentation would be cumulative and duplicative as it already shows the claimant cannot do any other full time work. It frequently makes sense to continue to retain an attorney under these circumstances to avoid being harassed by insurance companies, and ensure that they do not repeat the same type of tactics and mistakes that led to the original denial of benefits.

Acquiring Work Skills

2011-05-31T13:29:00.002-05:00

To be eligible for disability benefits, a person must be unable to engage in substantial gainful activity (“SGA”). The monthly SGA amount for 2011 is $1000. Understanding SGA can help expedite an award of disability benefits.

I represent a 50 year old claimant who worked as a girl scout leader on a very limited basis, roughly 3 hours a day, 3 days a week, earning about $200 a month. Her claim for Supplemental Security Income benefits was denied on the grounds that she could perform that past work.

The Dictionary of Occupational Titles (“DOT”) classifies skills that can be acquired for each occupation. The closest analog in the DOT to a girl scout leader is Child Monitor 301.677-010, which only has a Specific Vocational Preparation of 3, which means it can take up to three months to acquire that occupation’s skills. There was no evidence that the claimant worked as a girl scout leader long enough to acquire any skills. Moreover, since the claimant failed to work at SGA levels, it also supported the argument that the claimant had no relevant past work.

Since the claimant was over 50 without any past relevant work, the Medical-Vocational Rules required that she be found disabled even if she had the ability to perform sedentary work. The hearing office approved the claimant’s application on-the-record based on that argument. In the absence of the vocational arguments involving the DOT and SGA the claimant probably would have needed to wait for a hearing to be approved.

Court Rejects CIGNA LTD Termination

2011-05-25T05:36:00.005-05:00

Life Insurance Company of North America is a CIGNA company. In Jones v. Life Ins. Co. of N. Amer., which was decided last Friday, U.S.D.C. Judge Michael Telesca ordered CIGNA to pay the plaintiff's long term disability ("LTD") benefits that CIGNA terminated.

As has become customary, CIGNA terminated the LTD benefits by ignoring the medical records and reports from the treating physicians, the side effects of the plaintiff's medications, findings and opinion of the plaintiff's vocational expert, and decision approving the plaintiff's Social Security Disability benefits. Instead, as usual, CIGNA relied on the opinion of its doctor, a functional capacity evaluation, and transferable skill analysis, each of which was inconsistent with the medical records.

Judge Telesca found that CIGNA arbitrarily refused to credit the plaintiff's reliable medical evidence. To make matters even worse, Judge Telesca ruled that CIGNA "clearly" "cherry-picked selective items of submitted evidence in order to support its decision that the Plaintiff was not disabled under the Plan."

As exposed on ABC Good Morning America, CIGNA has a history of improperly handling LTD claims. If CIGNA has denied or terminated your LTD benefits, call The Law Offices of Jeffrey Delott for a free consultation.

Disability Benefits & Substance Abuse

2011-05-20T13:05:00.000-05:00

In 1996, Newt Gingrich and the Republican’s released the “Contract with America,” which included amendments to the Social Security Act. One change was precluding claimants from being eligible for Social Security Disability (“SSD”) benefits or Supplemental Security Income (“SSI”) benefits if drug or alcohol addiction was a “material factor” preventing the claimant from working. In other words, a claimant was not entitled to disability benefits unless his mental or physical limitations would remain disabling even in the absence of drugs or alcohol.

A woman diagnosed with bipolar disorder retained me after her SSD application was denied. At the 1996 U.S. Psychiatric & Mental Health Congress, Kathleen Brady, M.D., Ph.D., an associate professor of psychiatry at the Medical University of South Carolina, reported that "substance abuse occurs in 30% to 60% of patients with bipolar disorder and is more likely to coexist with bipolar illness than with any other Axis I psychiatric disorder." Some of the claimant’s medical records indicated that she had a history of alcoholism.

I was notified today that the claimant’s application was approved based upon the on the record (“OTR”) request I submitted for a fully favorable decision. As a result, the claimant will not have to wait for a hearing to be scheduled. Along with additional medical records and reports, I obtained a drug and alcohol (“DAA”) statement from the claimant’s psychiatrist, all of which were included with the OTR. The OTR decision highlighted that the DAA statement confirmed that the claimant remained disabled notwithstanding any history of alcoholism.

Whenever any disability involves records reflecting some type of substance abuse, it is advisable to get the treating sources to provide a DAA statement explaining how the substance abuse is not a material factor contributing to the claimant’s disability.

SSD Approved In 2 Months

2011-05-19T13:02:00.003-05:00

I represent a 60 year maintenance technician with orthopedic and heart problems from Pennsylvania whose Social Security Disability ("SSD") application was approved two months after it was filed. I submitted reports from the treating sources indicating that the claimant had, at best, a sedentary work capacity.

There appear to be two possible reasons for the rapid approval. First, even if the claimant had a sedentary work capacity, based upon the claimant's adverse vocational factors he would have to be found disabled under the "medical-vocational rules." Second, I made it clear to the disability analyst that before I would permit the claimant to attend a consultative examination by their doctor, which is the usual basis for denying an SSD claim, they would first have to seek the medical information they claim was lacking from a treating source.

Endometriosis

2011-05-19T12:10:00.003-05:00

Endometriosis is a condition in which bits of tissue from the lining of the uterus grow outside the uterus. It causes swelling and inflammation, cramps, fatigue, chronic pelvic or back pain, and the formation of scar tissue.

A 41 year old former police officer with endometriosis, who applied for Social Security Disability ("SSD")in 2009, asked me to represent her after her claim was scheduled for a hearing. Since an SSD application based on endometriosis is relatively unusual, I secured a narrative report from the claimant's gynecologist that established a 20 year treatment relationship that included a dozen surgeries for the endometriosis. Additionally, the gynecologist stated that the claimant's condition was debilitating.

The endometriosis diagnosis was indisputable. The only issue was whether the condition was severe enough to prevent the claimant from working. By establishing that he had a 20 year treatment relationship with the claimant that included 12 surgeries, the gynecologist's opinion that the claimant could not work due to debilitating pain was given controlling weight. It is possible that had the claimant understood the need for submitting the type of report that I obtained from her gynecologist, she may have been able to avoid the hearing, which took place nearly a year and a half after she filed her SSD application.

Raising The Retirement Age

2011-05-17T08:37:00.005-05:00

In 1983, Congress justified raising the retirement age from 65 up to 67 years on improvements in healthcare and increases in longevity. At that time, the average life expectancy in the United States was 74.5 years. A quarter of a century later, in 2009, the average life expectancy here increased by four years to 78.7. Last Friday, we learned that the funds for Social Security and Medicare will run out sooner than expected. The combination of continued increases in longevity and decreases in trust funds will likely result in Congress raising the retirement age again, just as it did in 1983.

How would an increase in the retirement age affect Social Security Disability (“SSD”) benefits? For those over 50, it is frequently easier to secure SSD benefits for those who do not have sedentary jobs. Essentially, those with desk jobs will subsidize to some extent those people who have more physically intensive occupations.

Regardless of the nature of one’s occupation, there is increasing uncertainty about the availability of funds to pay SSD benefits, and amount of SSD benefits to which a person may be entitled. There may even be needs testing to receive SSD benefits in the future just as there currently is needs testing to receive Supplemental Security Income benefits.

One way to mitigate the effects from the potential unavailability of SSD benefits is to purchase an insurance policy. Just as you can purchase life, health, or car insurance, you can also purchase disability insurance. Even if you are covered by a group disability policy or pension fund through work it is a good idea to purchase an individual disability insurance policy. If you are considering buying disability insurance, then make sure that you have the policy reviewed by an attorney who has experience litigating them before you make the purchase.

No More Paper Checks

2011-05-03T05:14:00.001-05:00

The Treasury Department is replacing paper checks with direct electronic transfers effective May 1, 2011 for new applicants of Social Security, Veterans Affairs or other federal benefits. New applicants for federal benefits need to provide their bank’s routing number and account number, which should be located on the bottom of a personal check. People currently receiving federal benefits by paper check must make the switch to direct deposit by March 1, 2013.

Electronic money transfers are supposed to save the government money, and be safer and more convenient than the paper checks. Last year at least 540,000 Social Security and Supplemental Security Income paper checks were reported lost or stolen and required replacement. For more information, visit www.GoDirect.com.

Treating Doctors

2011-05-02T13:27:00.003-05:00

The Social Security regulations require a treating doctor’s opinion that a patient cannot work to be given controlling weight if it is supported by clinical and test findings, and is consistent with the record as a whole. When such a treating opinion exists Social Security is supposed to approve an application for Social Security Disability (“SSD”) benefits. However, especially prior to a hearing, having another treating doctor to corroborate the disability opinion is frequently needed.

I represent a 58 year old former security manager with rheumatoid and osteoarthritis whose SSD application was approved today without a hearing. After the claimant’s application was denied, but before a hearing was scheduled, I submitted a report from the claimant’s orthopedist that corroborated the disability opinion of the claimant’s rheumatologist.

The State agency had denied the SSD application on the grounds that a consultative examination ("CE") was needed because there supposedly was insufficient evidence to support the claimant’s disability. However, the attorney advisor found that it was unnecessary for a CE.

It is not unusual for the State agency, attorney advisors, or Administrative Law Judges to reject an SSD application when there is only one treating opinion. However, when there are two treating opinions that conclude the claimant cannot work it is much more difficult to conclude the disability opinions are not consistent with the record as a whole.

SSA Prehearing

2011-04-29T17:26:00.001-05:00

It typically takes the Social Security Administration (the “SSA”) over a year to schedule a hearing with an Administrative Law Judge (“ALJ”) after a disability claim has been denied. However, there is a regulation that allows an attorney advisor to approve a disability claim without having to wait for a hearing with an ALJ. The regulation, 20 C.F.R. § 404.942, was due to expire August 10, 2011, but earlier this month the SSA extended the program to August 13, 2013.

A 49 year old teleconference specialist retained me after his disability application was denied last February. On March 4, 2011, I received a copy of the claim file after the local Social Security office transferred the case to the Jericho hearing office. On April 1, 2011, I submitted a request for a fully favorable decision on-the-record (“OTR”). Today, I received a fully favorable decision today from an attorney advisor.

By using the prehearing process with the attorney advisor, the claimant’s application was approved in two months instead of having to wait over a year just to receive a hearing with an ALJ. The expedited receipt of benefits not only helped the claimant’s cash flow, but also resulted in his paying a smaller attorney fee.

Using the prehearing process with the attorney advisors at the Queens hearing office is even more important. As discussed in the New York Times and in my prior blog entries, a class action was brought accusing Queens ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss, who have low approval rates, with bias against claimants (the “Queens Five”). Not only can an attorney advisor expedite the processing of a disability claim in Queens, it can also avoid having to deal with the Queens Five.

Disability Redefined

2011-04-26T07:05:00.001-05:00

I brought an action against Guardian Life Insurance of America seeking long term disability (“LTD”) benefits on behalf of a woman with rheumatoid arthritis, fibromyalgia, and chronic fatigue syndrome. Guardian agreed to reinstate my client’s LTD benefits. What made this case somewhat unusual is how Guardian’s policy defined disability.

Like most group LTD plans and policies, the Guardian policy defined disability for the first 24 months as being unable to perform your own occupation. However, while most LTD plans define disability as being unable to perform any other occupation thereafter, the Guardian policy defined disability as being unable to perform at least two of six activities of living (“ADLs”).

The significance of the Guardian definition is that after the own occupation period it placed more emphasis on vocational expertise than usual. Whereas an LTD claim typically revolves around a battle of medical experts, here the focus centered on the findings and opinions of vocational experts. I have no doubt that Guardian would not have reinstated my client’s benefits if she had not retained a vocational expert to rebut the opinions of Guardian’s vocational expert.

The main issue in every LTD case is what does the medical and vocational evidence provide. Unfortunately, I have found that the vocational aspects of LTD claims are frequently given too little attention or are overlooked altogether. That simply cannot be the case in any instance where an LTD plan or policy defines disability based on ability to perform ADLs.

Consultative Examinations

2011-04-23T14:43:00.002-05:00

If you apply for Social Security Disability (“SSD”) benefits in the New York metropolitan area, you will probably be sent to a doctor from Industrial Medicine Associates for a consultative examination (“CE”). Although the regulations actually provide very limited circumstances when a CE is appropriate, Social Security requires them in the vast majority of cases. CE’s are a single exam, and as the courts have ruled, provide opinions that are vague.

A CE’s opinion is usually unreliable compared to a treating doctor’s opinion. A CE frequently takes insufficient time to perform an adequate exam. Many claimants have testified that their CE lasted less than five minutes, and one examiner was even removed from CE eligibility after admitting he lacked the time to perform valid exams.

I represent a former dry wall apprentice, janitor-custodian, and tow truck operator whose on-the-record request for a fully favorable decision (“OTR”) was approved today by an Attorney Advisor. In granting the OTR, the Attorney Advisor explained that he gave less weight to the CE’s opinion because it was based on only one exam, and was vague.

The five Queens Administrative Law Judges (the “Queens Five”) who are the subject of the class action alleging that they are biased against claimants, constantly deny claims by elevating the opinions of CEs over treating physicians. If an Attorney Advisor understands that it is improper to give greater weight to a CE than a treating physician, then shouldn’t the Queens Five be able to understand that too, especially since their decisions have been rejected by federal court judges for that very reason?

Evidence of Hoppenfeld Bias

2011-04-22T10:31:00.004-05:00

Recent blog entries have discussed the class action lawsuit that was filed earlier this month that accuses Administrative Law Judges (“ALJs”) Marilyn P. Hoppenfeld, David Nisnewtz, Michael D. Cofresi, Seymour Fier, and Hazel C. Strauss (the “Queens Five”) of bias against disability claimants. The New York Times first reported news of the class action. In the Resources section of my website, iwantmydisability.com, a copy of the New York Times article can be viewed, and a copy of the class action complaint that was filed in federal court can be downloaded.

A common tactic the Queens Five use to deny disability claims is using “medical experts” to testify at hearings. These doctors only review the records of claimants; they never examine the claimants. The Queens Five deny disability claims by accepting the medical experts’ opinions, who testify claimants can work, in favor of the treating doctors’ opinions, who conclude the claimants cannot work.

When I attend hearings at the neighboring hearing offices in Jericho and Brooklyn, it is the exception if the ALJs use medical experts. The opposite is true when I appear in Queens. In fact, I had one case recently where ALJ Nisnewitz required three medical experts as well as a vocational expert to testify. However, ALJ Hoppenfeld just provided an even more interesting example of how medical experts are misused.

During a hearing a couple of months ago, a claimant asked for an adjournment so that she could retain an attorney. Hoppenfeld had scheduled the original hearing without any type of expert. However, without any explanation, after learning that the claimant retained me, Hoppenfeld suddenly saw a need for, not one, but two medical experts. Additionally, Hoppenfeld also suddenly found a need for a vocational expert to testify. Nothing changed after the claimant’s hearing. The only thing that is different is that Hoppenfeld now knows that I am representing the claimant.

When Hoppenfeld was holding a hearing with a pro se claimant, she apparently was not worried about denying the claim even though the evidence would not support that decision. However, now that Hoppenfeld knows an attorney will be present, it seems that she recognizes that she has to concoct evidence through medical and vocational expert testimony to deny the claimant’s application.

ALJ Nisnewitz Rejected Again

2011-04-21T06:50:00.001-05:00

Another U.S. District Court Judge, Denis Hurley, has rejected the decision of Administrative Law Judge (“ALJ”) David Nisnewitz that denied Social Security Disability benefits. In Day v. Astrue, once again, ALJ Nisnewitz relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though federal court judges have previously told the ALJ that the testimony of an ME “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.

ALJ Nisnewitz knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion, yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over?

The American Heritage Dictionary defines “bias” as a preference that inhibits impartial judgment. Since ALJ Nisnewitz has a history of repeatedly making the same mistakes, it is logical to conclude that his preference for denying disability claims inhibits his impartial judgment.

In my September 29, 2009 blog entry, I wrote, “It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility.” As noted in my recent blog entries, a class action lawsuit was filed this month accusing ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants. As a result of the class action, the Social Security Administration will not be able to evade its responsibility for investigating the bias of the Queens Five.

Working And SSD

2011-04-15T17:27:00.004-05:00

After your Social Security Disability (“SSD”) application is approved you might be able to work without losing your benefits. A trial work period (“TWP”) allows you to test your ability to work for at least nine months without losing benefits, regardless of how much you earn, as long as your condition has not improved.

The first 36 months after the TWP ends is the re-entitlement period, during which SSD benefits can be reinstated without filing for a new period of disability. You can receive full SSD benefits for two additional months, the grace period, regardless of how much you earn.

The Appeals Council reviews SSD claims that Administrative Law Judges have denied. The Appeals Council rarely approves SSD claims, and Appeals Council allowances comprise only 0.1% of all approvals. Today, I received an Appeals Council approval for a 52 year old former youth coordinator, who had received a partially favorable decision.

The claimant returned to work for eleven months after he stopped working due to neck, knee, and back problems. The Appeals Council found that the claimant’s medical condition had not improved during those eleven months, even though he had resumed working. After applying the nine month TWP and two month grace period the Appeals Council ruled that there would be no break in the claimant’s SSD benefits.

ALJ Bias Class Action

2011-04-15T11:16:00.000-05:00

Last Wednesday, I wrote about the class action lawsuit filed against Administrative Law Judges (“ALJs”) David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”). If you are interested in the details of that lawsuit, I have added a link under my website’s Resources tab so you can read the actual complaint that was filed in court.

It should be noted that the lawsuit excludes three other ALJs in Queens hearing office: Margaret Pecoraro, Sol Wieselthier and Gal Lahat. There is a consensus that none of these three ALJs have exhibited the pattern and practice of anti-claimant bias that the Queens Five have demonstrated.

One of the goals of the class action lawsuit is to annul the decisions of the Queens Five that denied claims of disability claimants, and to provide new hearings before ALJs other than the Queens Five. If your disability claim has been denied in whole or part by one of the Queens Five, then you should consider contacting the attorneys representing the plaintiffs to ensure your inclusion in the potential class.

Federal Court Decision

2011-04-13T15:49:00.000-05:00

I was retained to file an action in federal court seeking Social Security Disability (“SSD”) benefits that had been denied by Administrative Law Judge (“ALJ”) Robin Arzt. Today, Magistrate Judge (“MJ”) Ronald Ellis recommended that the ALJ’s decision be reversed, and remanded solely for a calculation of SSD benefits. The MJ’s decision is somewhat unusual since a majority of SSD cases are denied, and of those granted, most remand for another hearing before the same ALJ who heard the claim previously.

The claimant’s doctors said the claimant could not do sedentary work. However, ALJ Arzt rejected their opinions’ on the grounds that they supposedly were inconsistent with their clinical notes. MJ Ellis ruled that “it is well-settled that rejecting the opinion of a treating physician solely based on internal inconsistencies is error.” MJ Ellis noted that the treating doctors’ opinions were not contradicted by any other doctor, and that the ALJ had simply substituted her opinion for that of competent medical evidence.

MJ Ellis said that in the absence of contradictory medical evidence, there was no reason to remand the case for another hearing, especially since the claimant had filed for SSD benefits over six years ago. When looking to retain an attorney to handle your SSD case, ask for their experience litigating SSD cases. Understanding the issues that are important in federal court can help secure SSD benefits when the application is pending at Social Security, which can result in benefits being awarded years earlier.

ALJ Bias In Queens

2011-04-13T11:10:00.004-05:00

I have addressed the issue of Administrative Law Judges' ("ALJs") bias in the Queens Social Security hearing office on several occasions. The Social Security Administration ("SSA") even implied that my raising the issue of ALJ bias in my blog was untrue and disparaging. However, an article published in today's New York Times validates my opinion.

In "Suit Alleges Bias in Disability Denials by Queens Judges," Sam Dolnick wrote that the Queens hearing office, "is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits." The article cites statistics and comments from the same sources as my blog entries to demonstrate the aberrantly high denial rate for ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss.

Jim Walden is the attorney bringing the class action against the ALJs. The lawsuit seeks to bar the five ALJs from hearing any more claims, and to annul all their decisions since 2005 to deny benefits. My blog entries have asked how is it possible that Queens ALJs repeatedly make the same errors. Likewise, Mr. Walden said that the Queens ALJs “make the same legal and factual errors again and again.” Succinctly, Mr. Walden said that, “It is routine and systemic, and it shows you the fix is in.”

ALJ Strauss Rejected Again

2011-04-10T08:07:00.003-05:00

This is a follow up to my March 20, 2011 post entitled “ALJ Strauss Reversed Again, which has become a series of posts discussing how the federal courts are continually reversing the Social Security Disability ("SSD") decisions of Administrative Law Judge ("ALJ") Hazel Strauss. The decisions of U.S. district court judges reveal Strauss’ pattern of denying SSD claims by failing to comply with applicable rules and regulations.

Caira v. Astrue, 2011 WL 1326607 (E.D.N.Y. March 31. 2011), is the latest reported decision involving ALJ Strauss. Consistent with Strauss’ pattern of improperly denying SSD claims, in Caira, U.S. District Court Judge Raymond Dearie commented that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.” Judge Dearie seems to imply that Strauss did not reach her erroneous decision as a result of a simple mistake. Judge Dearie stated that Strauss’ rationale for her erroneous decision was a “mystery,” and that she “simply declared, without any analysis, that she gave ‘significant weight’ to the opinion of [the] consulting examiner,” and the State agency’s non-examining doctor. Judge Dearie ruled that Strauss “accepts these doctors’ bald conclusions despite substantial contemporaneous and contradictory evidence in the record.”

Judge Dearie also criticized Strauss’ slanted selectivity. Specifically, Judge Dearie found that Strauss “provided no basis for choosing one account over the other;” failed to incorporate the relevant facts into her analyses; “jumped to conclusions that were not adequately supported by the consultants reports;” and “credited only the sliver of [the treating doctor’s] written opinion which suits a finding that the claimant is not disabled, but ignored the vast majority of the opinion counseling otherwise.” Therefore, Judge Dearie concluded that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.”

Judge Dearie also found that Strauss’ reasons for rejecting the claimant’s credibility in Caira to be defective. Specifically, Judge Dearie found that Strauss’ “contentions are puzzling in light of the extensive documented objective evidence of the claimant’s disability.” Judge Dearie added that Strauss mischaracterized and overstated the claimant’s daily activities, which did not “even minimally” support an ability to work. To the contrary, Judge Dearie determined that, “There is not a hint of evidence in this case of fraud or malingering, and persuasive evidence exists of disability.”

Perhaps Judge Dearie is finally fed up with Strauss’ transparently wrong decisions. With seeming frustration with Strauss’ decision in Ciara, Judge Dearie refused to subject the claimant to another hearing before ALJ Strauss. Using harsh language for a federal district court judge, Judge Dearie held:

The Court will not sanction such a pointless exercise when proper application of the law to the existing record permits a single conclusion: that claimant is disabled and entitled to benefits.

A federal court has now explicitly announced that it is “pointless” to require a claimant to continue through the appeal process for a Strauss decision. At what point does the Social Security Administration have an obligation to pay attention to what the federal courts are saying about Strauss’ decisions? What point is there to wasting judicial and Administration resources by requiring claimants to appeal Judge Strauss’ decisions that follow her pattern of improperly rejecting and discrediting the opinions of treating physicians and claimants’ credibility?

Seven Year Wait Over

2011-04-08T13:20:00.001-05:00

I was asked by another attorney to take over the Social Security Disability (“SSD”) case of a 52 year old Salvadoran aircraft plater who speaks very little English and has no formal education. The U.S. District Court granted my summary judgment motion, and remanded the case back to Administrative Law Judge (“ALJ”) Seymour Rayner.

The claimant had applied for SSD benefits in 2004, and had treated with various specialists for his lumbar radiculopathy since that time. Eventually, the claimant continued his treatment with his internist only when it was determined that there was little else his other doctors could do to improve his condition.

At the remanded hearing, among other things, I pointed out that the ALJ had previously been under the mistaken impression that the claimant’s internist was a chiropractor, which resulted in his opinion being given less weight. This time, the ALJ gave great weight to the internist’s opinion because he had been treating the claimant since 2004. Today I received a fully favorable decision from ALJ Rayner.

It is possible that had the mistake been brought to the ALJ’s attention upon reviewing the original decision, then the ALJ may have been persuaded to conduct a supplemental hearing to correct the error. As it stands, the claimant had to wait nearly three years for a decision from (a) the Appeals Council, which was a denial and the point at which I took over the case, and (b) federal court, which remanded the decision.

Lyme Disease

2011-03-31T12:23:00.001-05:00

Lyme Disease is an infection caused by bacteria called Borrelia burgdorferi, which can lead to chronic encephalomyelitis. Symptoms from Lyme Disease can involve cognitive impairment, weakness in the legs, awkward gait, facial palsy, bladder problems, vertigo, and back pain.
A 39 year old woman with Lyme Encephalopathy who worked in accounts payable retained me after her Social Security Disability (“SSD”) application was denied, even though the Social Security doctor who examined the claimant admitted that, among other things, the claimant had a “cognitive disorder secondary to Lyme disease.” The claimant’s neuropsycholgist had diagnosed the claimant with dementia due to medical condition, major depressive disorder, and anxiety disorder.

The claimant’s SSD application was approved less than three months after I was retained, and five days after I submitted a request for a fully favorable decision on-the-record (“OTR”). The rapid approval was based on a functionality report that I asked the treating neuropsychologist to complete, and the results of that doctor’s neuropsychological testing. Among other things, I was able to show how the test results explained the claimant’s cognitive limitations.

Many disability adjudicators are predisposed to reject disability claims based upon Lyme Disease, and frequently even question the validity of the disease itself. When applying for SSD, a claimant with Lyme Disease should focus the application on the effects of Lyme since adjudicators predisposed against Lyme claimants may attribute the functional deficits to another condition.

ALJ Strauss Reversed Again

2011-03-20T08:02:00.002-05:00

This is a follow up to my January 26, 2011 post entitled “Does ALJ Strauss Try To Get Reversed?”. That post discussed how the federal courts are continually reversing the Social Security Disability ("SSD") decisions of Administrative Law Judge ("ALJ") Hazel Strauss. In short, I discussed how the decisions of U.S. district court judges reveal that Strauss has exhibited a practice and pattern of denying SSD claims by failing to comply with applicable rules and regulations.

Not surprisingly, the latest reported decision involving Strauss is yet another reversal. In Pluck v. Astrue, 2011 WL 917654 (E.D.N.Y. Mar. 9, 2011), U.S. District Court Judge Gleeson rejected Strauss’ decision, which followed the same practice and pattern of improperly rejecting and discrediting the opinions of treating physicians and testimony of claimants while improperly relying on medical expert’s testimony. Judge Gleeson ruled that Strauss selectively cherry picked evidence and cited only that evidence that contradicted the claimant’s case; ignored evidence that supported the claimant’s case; and misconstrued ambiguous evidence against the claimant. To make matters even worse, Judge Gleeson also found that Strauss violated the rules and regulations by rejecting the treating physicians’ opinions without contacting them, and relied on isolated events as an excuse to reject the claimant’s credibility. Notably, consistent with Strauss’ practice and pattern of wrongly denying claims, Judge Gleeson ruled that Strauss blindly adopted the testimony of the medical expert without explanation.

Why is it that federal district court judges keep rejecting Strauss decisions? According to Social Security’s latest disposition data, Strauss approved only 6 out of 60 cases. The national approval average for ALJs is in the 60% range, which is 600% higher than Strauss’ approval rate. This statistical data along with the federal court reversals showing that Strauss continues to violate the same rules and regulations is evidence that ALJ Strauss is biased against claimants or lacks a fundamental understanding of the rules and regulations.

In light of the statistics and federal court decisions, why hasn’t Social Security required Strauss to go for special training? How low does an approval rate have to be before action is taken? Does Social Security investigate an ALJ like Strauss when an approval rate is so aberrant, or where federal court decisions show that the ALJ repeatedly violates the same rules and regulations? While it appears that Social Security has not taken any action regarding these questions, it has seen fit to send me a threatening letter merely for raising these issues.

Remand To A New ALJ

2011-03-16T12:39:00.005-05:00

I took over the Social Security Disability (“SSD”) claim for a 40 year old nurse technician with severe physical and mental impairments. After obtaining a remand, Administrative Law Judge (“ALJ”) Newton Greenberg denied her claim based upon a medical report from Mohammed Khattak, who was the doctor that examined the claimant for the Social Security Administration (“SSA”).

I advised ALJ Greenberg that the SSA removed Khattak from the panel of doctors allowed to examine claimants because the SSA determined that his reports were improperly unreliable. I further advised the ALJ that as a result of Khattak being kicked off the panel, federal courts had ruled that his medical reports were entitled to no weight. Nonetheless, ALJ Greenberg relied on Khattak’s report to deny the claimant’s application.

When I appealed to the Appeals Council, among other things, I noted that, consistent with his reliance on Khattak’s report, that according to federal court judges, ALJ Greenberg’s decisions “ignored extremely relevant evidence, misrepresented other evidence, and substituted his own judgment for that of medical experts in an analysis that at times tended toward the bizarre;” and selectively relied on facts, improperly picking and choosing only such evidence to support his determination, without considering evidence supporting the claims. The Appeal Council just rejected ALJ Greenberg’s decision, and ordered that the case be assigned to a new ALJ.

Reassignment to another ALJ was a goal of my appeal, which was filed over two years ago. However, it took so long for the Appeals Council to make a decision that ALJ Greenberg died in the interim, and as such, the reassignment order was moot. Nonetheless, if you believe that an ALJ has failed to review your case fairly, one of your remedies is to argue for reassignment.

“Secret” Child’s Benefits

2011-03-11T17:48:00.004-05:00

If you are awarded Social Security Disability (“SSD”) benefits, the Social Security Administration (“SSA”) will send you a Notice of Award that details the past and future SSD benefits to which you are entitled. However, the SSA does not automatically tell you that you may be entitled to receive additional benefits for your children under 19 who are still in school. Nor does the SSA tell you that you cannot receive children’s benefits unless you file a separate application for them.

I represent a 46 year old HVAC mechanic who received his first SSD check today, less than five months after I filed his application. The SSA did not notify him about his right to children’s benefits, nor did they send him an application for those auxiliary benefits. The children’s benefit is usually about half of the SSD benefit.

You cannot rely on the SSA to take steps to help you secure children’s benefits. When applying for SSD benefits it is important to disclose the identities of dependents because the disclosure provides a protective filing date for those benefits.

Unfair CIGNA Tactics Detailed

2011-03-10T10:01:00.005-05:00

On March 7, 2011, a federal appellate court ordered CIGNA to pay a claimant long term disability (“LTD”) benefits because its unfair tactics were found to be arbitrary and capricious.

The tactics of CIGNA that the appellate court described in Salomaa v Honda follow the same pattern and practice that I have argued in my cases against CIGNA. Salomaa discussed in detail how: (1) every doctor who examined the claimant concluded he was disabled; (2) CIGNA demanded objective evidence for a medical condition where no such evidence exists; (3) CIGNA failed to consider that the Social Security Administration found the claimant disabled; (4) CIGNA shifted its reasons for denying benefits each time the claimant refuted them; and (5) CIGNA refused to identity what information it would accept to support the claimant’s claim.

Last week, CIGNA upheld its termination of one of my client’s disability benefits. Not surprisingly, CIGNA followed its usual practice and pattern of reviewing disability claims, and employed each of the five tactics identified in Salomaa. The next appeal will highlight the similarities between Salomaa and my client's claim. Notably, when I litigated Alfano v. CIGNA Life Ins. Co. of New York, 2009 WL 222351 (S.D.N.Y. Jan 30, 2009) a couple of years ago, Judge Gerard Lynch, now on the Second Circuit Court of Appeals, ruled that similar tactics by CIGNA were arbitrary and capricious, and ordered CIGNA to pay my client’s LTD benefits and attorney fees.

If you have had an LTD claim denied or terminated by CIGNA, have an attorney review it to see if CIGNA did so in an unfair manner. It is best to allow the attorney to undertake the review before exhausting your appeals with CIGNA.

LTD Policy Offsets

2011-03-07T09:05:00.001-05:00

Most group long term disability (“LTD”) policies reduce your benefit if you receive money from other sources of disability income, such as workers compensation and Social Security Disability (“SSD”). If you are paying for group LTD disability coverage, then you should have it reviewed by an attorney to ensure it is worthwhile.

Most group LTD policies provide for a benefit equal to 50-67% of your salary. If your salary is $80,000 a year, a 60% LTD benefit would be $48,000 or $4,000 a month. If you have a child, the maximum SSD benefit could equal about $4,000 a month. Therefore, it is possible that your LTD benefit would be totally offset by your SSD benefit, and it makes no sense to pay for LTD coverage. In other words, group disability policies really misrepresent the disability benefit they provide due to offsets. Your annual Social Security earnings statement estimates your potential SSD and family benefits.

I represent a claimant with two group LTD policies. One is through her employer, and the other is through a professional associational, AICPA. The employer’s group disability policy offsets any benefit from any other group insurance coverage. This requires considering whether it makes sense to pay for both policies. For example, it could make sense if there is the belief that the AICPA is more likely to pay a benefit, or if there is a likelihood or going to work for another employer, whose LTD policy may not have such an offset. If the claimant were already disabled, then the issue would be whether an application should be filed under each policy, which might depend on whether they offer the same benefit.

It also makes sense to ask an attorney to review your group disability policy if you are leaving your current employer. Many group LTD plans allow employees to convert their LTD coverage to an individual LTD policy, and you can negotiate to exclude offsets, such as SSD, from the converted policy.

Partially Favorable Decisions

2011-03-03T16:56:00.002-05:00

A federal court remanded the decision of Administrative Law Judge (“ALJ”) Andrew Weiss for failing to apply Social Security Ruling (“SSR”) 83-20 properly. The ALJ found that the claimant became disabled due to his mental disorders in March 2007 because that is when he started seeing a psychologist. However, I argued that there was no evidence showing that the claimant’s condition became worse in March 2007, and there was evidence showing the claimant was disabled by January 2005.

On remand, without a hearing, ALJ Frederick Timm found the claimant became disabled as of January 31, 2005. By refusing to accept a partially favorable decision and prosecuting the case in federal court the claimant wound up receiving many additional months of Social Security Disability (“SSD”) benefits that amounted to a large five figure sum.

I received another partially favorable decision today, from ALJ Arthur Schneider. The ALJ selected a disability onset date that was based upon a report by a treating internist, even though the ALJ admitted that the internist concluded the claimant became disabled earlier at her alleged onset date. There were several other medical specialists who concluded that the claimant became disabled at her alleged onset date, including a neurologist who explained that the claimant’s condition was so severe that she met a listing 1.04 as of the alleged onset date. This claimant is also prepared to litigate in federal court in order to receive the additional SSD benefits to which she is entitled.

SSD While Working

2011-03-01T07:32:00.001-05:00

Many claimants are unaware that there are circumstances where a person has the right to collect Social Security Disability (“SSD”) benefits while working. I received a decision today that illustrates this point.

I represent a 41 year old with cerebral palsy, who applied for SSD benefits at his local Social Security office on September 25, 2009. Social Security assigned the claimant a disability onset date of August 27, 2009, which is when he stopped working.

The claimant retained me when his case was scheduled for a hearing. Although he had worked for many years, his cerebral palsy had progressed, which resulted in his working only part time starting in December 2007. At the hearing, I asked Administrative Law Judge (“ALJ”) Joseph Faraguna to consider amending the claimant’s onset date to December 2007 because he had been earning less than $700 a month, which I contended was not substantial gainful activity (“SGA”). As of January 2010, SGA requires earning more than $1,000 per month, which generally precludes being found disabled.

ALJ Faraguna accepted the amended onset date, and found that the claimant became disabled in December 2007, instead of September 2009. By alerting the ALJ to the disability onset date error made by the Social Security employee, the claimant will receive more than a year and a half in additional SSD benefits.

Date Last Insured

2011-02-28T21:06:00.003-05:00

In order to qualify for Social Security Disability (“SSD”) benefits a claimant must have acquired enough work credits, which are earned by paying taxes into the Social Security systems. Work credits expire after a period of time. The Date Last Insured (“DLI”) is the day when the work credits expire. A claimant must establish that he became disabled before the DLI.

Some claimants are under the misperception that they are precluded from obtaining SSD benefits if they fail to apply before the DLI. A claimant can apply well after the DLI, and still be approved for SSD. I filed an SSD application last April for a 55 year old former salesperson whose DLI expired at the end of 1999. I received her SSD approval today.

When the claimant contacted me she had been led to believe that she was not eligible for SSD benefits because her DLI had expired in 1999. The claimant will now start receiving her monthly SSD as well as SSD benefits back to April 2009.

Multiple sclerosis

2011-02-28T09:51:00.003-05:00

Multiple sclerosis (“MS”) is a chronic, often disabling disease that attacks the brain, spinal cord, and optic nerves. When applying for Social Security Disability (“SSD”) benefits, the best strategy is to provide evidence that shows the claimant meets the MS “listing.” If the criteria of the MS “listing” are met then the applicant is presumed to be disabled, and no further medical or vocational development is required. Since MS is usually treated by a neurologist it would be best to obtain an opinion from a neurologist that the claimant meets the criteria under the 11.09 listing for MS.

I represent a 54 year old former attorney whose SSD application was approved in less than three months, and shortly after I submitted medical evidence from the claimant’s neurologist showing that the 11.09 criteria were met. The claimant was not even asked to be examined by a Social Security doctor.

If a hearing has already been scheduled, showing that a claimant meets a listing is important because it makes it significantly more difficult for an Administrative Law Judge to deny the claim, or for the denial to be sustained on appeal. Moreover, it is also likely that an attorney advisor would approve an on-the-record request for a fully favorable decision if shown that the medical evidence meets a listing.

Expediting Disability Benefits

2011-02-28T08:22:00.002-05:00

The attorney-advisors who work in the Social Security hearing offices can help you avoid the long wait for a hearing on your Social Security Disability (“SSD”) appeal if they approve your on-the-record (“OTR”) request for a fully favorable decision. I just returned from being out of the country for a week, and found that attorney advisors from Jericho, New York and Topeka, Kansas had approved two OTRs.

Preparing an OTR requires summarizing the medical and vocational evidence, and explaining why the Social Security rules and regulations show that a hearing is not needed to approve disability benefits. The Kansas OTR involved a 48 year old woman who had worked with the mentally disabled, who has cervical radiculopathy. The Jericho OTR concerned a 51 year old former jewelry sales representative with neck and back impairments as well as carpal tunnel syndrome. I have found that since Social Security has started using templates to write their decisions that an OTR request does not need to be long; it just has to focus on the most salient pieces of evidence in the record.

A claimant should want their attorney to submit an OTR whenever possible because it could result in receiving benefits many months, even years, before a hearing would take place. The expedited awarding of disability benefits not only improves the claimant’s cash flow sooner and avoids the stress of a hearing, but may also result in a reduced attorney fee. The SSA regulation authorizing attorney advisor decisions is set to expire August 10, 2011.

Radiculopathy

2011-02-19T13:03:00.002-05:00

Radiculopathy or radiculitis is any disease of the spinal nerve roots or cord, whose typical symptoms include pain, numbness, tingling, and weakness. When the evidence shows that a spinal condition is causing radicular symptoms a disability claim is usually approved.

When applying for Social Security Disability (“SSD”) benefits, if a claimant’s spine condition compromises the nerve roots or spinal cord, resulting in pain, range of motion and motor strength loss, and either reflex or sensory loss, then a claimant should be found presumptively disabled under listing 1.04, making the claimant’s functionality irrelevant. Usually, a treating doctor’s opinion that a claimant meets listing 1.04 is needed to have an SSD application approved at first instance. However, there are exceptions when the evidence is crystal clear.

I represent a 56 year old former appliance repairman whose SSD application was approved shortly after I submitted the claimant’s neck and back MRI reports. I had made sure to submit treatment records that had described various spinal impairments and radicular symptoms that met listing 1.04, yet the claim sat for several months. Then, just a couple of weeks after I submitted the MRI reports, which undeniably revealed spinal conditions that impinged and flattened the nerve roots and spinal cord, the SSD application was approved.

Even though a treating doctor’s listing 1.04 opinion was not submitted, medical records were submitted that clearly evinced all of the criteria of the listing. The claimant was not asked to be examined by a Social Security doctor, which is how Social Security normally assesses a claimant’s functionality. Therefore, it appears that listing 1.04 was found to apply. By understanding what information regarding the claimant’s spine conditions should be submitted it greatly expedited the claimant's receipt of SSD benefits.

Expediting Disability Benefits

2011-02-12T16:17:00.002-05:00

When a person becomes disabled and can no longer work the loss of income can result in severe financial hardship. For many claimants, it is critical not only to obtain disability benefits, but to do so quickly. When seeking Social Security Disability (“SSD”) benefits, having a thorough understanding of the medical and vocational evidence, and their interplay with the rules and regulations, can lead to an expedited approval.

I represent a 51 year old former jewelry sales representative who was approved for SSD today without a hearing after I submitted an on-the-record (“OTR”) request for a fully favorable decision. An Attorney Advisor can approve an OTR when the evidence in the file shows that a hearing is unnecessary. While the clerks at the State agency who make the initial disability decisions may not fully comprehend the applicable rules and regulations, Attorney Advisors do.

The claimant’s primary problem was neck and back spine problems. The evidence I submitted to the State agency included MRIs and EMGs with positive findings, and a report from the claimant’s neurologist that specified why the claimant could not perform sedentary work. No new evidence was submitted to the hearing office, where the OTR was reviewed by the Attorney Advisor.

Under applicable rules, when a claimant’s relevant past work is non-sedentary, and the claimant is over 50 years old, that person must be found disabled even if capable of sedentary work if there are no transferable work skills. Although I did not proffer a report from a vocational expert, I was able to aver in the OTR that no reported case had ever found that a jewelry sales representative has transferable skills. Therefore, I argued that a regulation known as Medical-Vocational Rule 201.14 required finding the claimant disabled. The Attorney Advisor assigned to the OTR agreed, and the claimant’s SSD application was approved.

The argument for applying Rule 201.14 was probably critical. Without the argument, it is likely that the Attorney Advisor could have decided that whether the medical evidence supported the inability to perform sedentary work was a close question, which an Administrative Law Judge would need to resolve.

Videoconference Hearings

2011-02-12T08:33:00.002-05:00

The Social Security Administration allows attorneys and experts to appear at hearings via teleconference or telephone in order to reduce costs and increase scheduling flexibility. Teleconferencing is also used to redistribute workloads so that while a claimant may attend a hearing at the local hearing office, the Administrative Law Judge ("ALJ") may appear via video from another hearing office.

Many claimants have relied on Nationwide Social Security Disability (“SSD”) practices to represent them because they cannot find local representation. Those Nationwide practices sometimes send disability representatives to hearings who are not attorneys. Moreover, those Nationwide practices have claimants deal with non-attorneys throughout most of the process, and a great many claimants never see or speak with an attorney until a hearing.

Telecommunication appearances eliminate the need to rely on Nationwide disability practices. I had SSD hearings this week in Washington State and Wisconsin. For the Wisconsin hearing, the claimant went to the Madison, Wisconsin office, the ALJ appeared from Milwaukee, Wisconsin office, and I appeared at the Queens, New York office. I had previously obtained SSD benefits for the claimant’s uncle, who was also from Wisconsin, without ever having to make an appearance there. Both claimants were able to communicate with me directly without having to rely on non-attorneys

Federal Court Decision

2011-02-08T11:57:00.000-05:00

National Organization of Social Security Claimants' Representatives (“NOSSCR”) is an association of attorneys who represent Social Security Disability and Supplemental Security Income claimants. The latest edition of NOSSCR’s Social Security Forum, chose my decision in Sergenton v. Astrue, 714 F.Supp.2d 412 (E.D.N.Y. 2010) for publication in its “Selected Cases” section.

Sergenton held that the Social Security Administration had to pay attorney fees because ALJ Rothman acted unreasonably. After losing the report of the claimant’s doctor, which was the basis for the federal court remanding the case, ALJ Rothman refused to contact the doctor or consider the replacement report I submitted from the doctor.

Patchogue Incompetence

2011-02-08T00:18:00.004-05:00

Claimants frequently wonder why it takes so long to have their Social Security Disability (“SSD”) applications processed. One reason is that many of the people working at the District Offices simply are incompetent. The worst in the area seems to be Patchogue where even the District Manager is worthless.

I filed a claimant’s application on May 14, 2010 by certified mail. I now use certified mail because too often the District Offices had claimed that they never received documents I sent via first class mail. On July 8, 2010, I filed an appeal on line, for which I received electronic written confirmation of the filing. It took my office four calls and two faxes before we were finally told on October 6, 2010 that the file had not been transferred to the hearing office because Patchogue claimed it never received my client’s application. I immediately faxed Patchogue copies of the letters that they had sent me, including one confirming receipt of the application.

After leaving messages on October 7 and 8, 2010 that went unreturned, on October 12, 2010, a Ms. Greco said they now had not received the July 8, 2010 appeal. Therefore, my office immediately faxed the appeal to a Ms. Shami, and requested a call confirming that she had received it. In typical fashion, there was no return call. On October 18, 2010, two more messages were left for Patchogue, where after being left on hold for 15 minutes, the call was disconnected. A third call and fax to Ms. Fusilli were needed, and the appeal was now sent for the third time. After another call, Ms. Shami asked for some of the same application forms that had been sent via certified mail on May 14, 2010.

The requested application forms were faxed yet again on October 19, 2010, and requested confirmation that they were received, which of course did not happen. The next day, another message was left for Ms. Shami, who again failed to confirm receipt of the prior day's fax.

On October 27, 2010, my office faxed another application form to Ms. Shami, and asked for a confirmatory call. The next day, Ms. Shami actually left a message that she had received the form 4184. When nothing was heard on the claim, on November 4, 2010, Shami was called about the form 4184, and because she was not available, another one was faxed twice, even though she had previously confirmed its receipt on October 28, 2010.

On November 5, 2010, Ms. Shami now claimed that Patchogue never had received the application or appeal, so it was now faxed for the fifth time. Later that day, Ms. Shami confirmed that she had now received everything that she needed to process the application.

On November 12, 2010, two messages were left for a Mrs. Ross because we were told that Ms. Shami no longer worked there. On November 16, 2010, a Mrs. Scott said that she had to speak with Mrs. Fusilli. The next day a message was left for Ms. Scott because no answer was received. On November 19, 2010, Ms. Fusilli transferred my office’s call to a Mrs. Turner, who said she was working on the file, that everything seemed to be there, and she would call the next day.

On December 17, 2010, another message was left for Ms. Turner, which was followed up with a fax. It took three calls on December 22, 2010 to get through to Ms. Turner, including being put on hold for 15 minutes and then getting disconnected. Later that day, Ms. Turner said that the claim had to be appealed again.

On January 4, 2011, a Mrs. Peterson asked for a fax of the appeal, and she confirmed receiving it. The following day, another message was left for Ms. Peterson to make sure the file was being transferred to the hearing office. On January 18, 2011, the hearing office had not received the file, and another message was left with Ms. Turner at Patchogue. When that call was not returned another message was left with her on January 24, 2011, and then again on January 27, 2011.

On January 28, 2011, after sending another fax to Patchogue about transferring the file, my office was told the appeal had been sent to Jericho on January 4, 2011. However, when Jericho was called, they said they had received nothing from Patchogue. On February 1, 2011, Jericho still had received nothing from Patchogue, so another message was left with Ms. Turner at Patchogue, but not before the first call required being placed on hold for 15 minutes and then getting disconnected.

On February 7, 2011, my office spoke with a Mrs. Heeber, who stated that there was nothing in the file. A call was then placed to District Manager Grabiner. My assistant stated that we had sent all the documents multiple times, to which Grabiner said "Jeff Delott always says that". Of course I say that because I send everything to the SSA with fax confirmation, certified mail confirmation, and electronic confirmation from the SSA because of their history of claiming they don't receive documents. Grabiner then said that we had been lying because we had not sent his office any documents. When asked why her calls were never returned, Grabiner told my assistant that it wasn’t his job to know.

In short, rather rectifying the countless errors by those under his charge, Grabiner claimed that no errors had ever occurred because no documents had ever been sent to his office. Moronically, Grabiner said that certified mail, fax, and SSA electronic receipt confirmations did not prove anything. It is hard to imagine a more egregious instance of complete incompetence, negligence, and arrogance by a civil servant. It is people like Grabiner, and his utter failure to supervise those under his charge properly, that results in claimants having to wait needlessly long periods of time before receiving their SSD benefits.

Union Disability Approved

2011-02-07T15:23:00.000-05:00

I represent an electrician whose pension claim with the Joint Industry Board of the Electrical Industry (the “Board”) was denied because “he was not found to be disabled by the Social Security Administration.” The SSA actually ruled that the claimant was disabled from his job as an electrician, but not from sedentary work. Because the Board refused to find the claimant disabled, I filed an action in federal court.

Shortly after filing the complaint in federal court, the Board asked me to dismiss the lawsuit, and to allow it to reconsider the claim again. I agreed to the reconsideration, but only to staying the lawsuit, not dismissing it. After the Board reconsidered the same arguments that I submitted before the lawsuit, it approved the application for disability retirement.

It is unclear why the Board changed its decision to deny the claimant’s application. What is clear is that absent the lawsuit, the claimant’s application would not have been approved.

Does ALJ Strauss Try To Get Reversed?

2011-01-26T13:11:00.002-05:00

Administrative Law Judge ("ALJ") Hazel Strauss has been deciding Social Security Disability ("SSD") cases for over a decade. In most SSD cases, the ALJ has to apply the Treating Physician Rule ("TPR"). You would think that after thousands of hearings ALJ Strauss would have learned how to apply the TPR.

I asked the Appeals Council to review a Strauss SSD denial on November 14, 2009. I argued that ALJ Strauss has a practice and pattern of denying SSD claims that she knows should be approved, which I supported by citing decisions from federal district court judges reversing Strauss' failure to apply the TPR correctly.

About a year ago, on February 1, 2010, I had to supplement my appeal because District Court Judge Dearie had just issued Robinson v. Astrue, 2009 WL 4722256 (E.D.N.Y. Dec. 9, 2009), which rejected Strauss’ decision for some of the same reasons set forth in my comments to the Appeals Council, including the failure to apply the TPR correctly. Since that time, I have had to supplement my comments five more times because district court judges keep reversing Strauss.

On February 13, 2010, I supplemented the appeal because District Court Judge Gleeson has just issued Primiani v. Astrue, 2010 WL 474642 (E.D.N.Y. Feb. 5, 2010), which was the latest federal court case reversing a Strauss decision. As usual, in denying SSD benefits in Primiani, Strauss intentionally employed the same tactics that she had to know violated the Social Security rules and regulations.

On July 2, 2010, I supplemented my client's appeal a third time because Judge Dearie rejected another Strauss decision in LoRusso v. Astrue, 2010 WL 1292300 (E.D.N.Y. Mar. 31, 2010), for, yet again, improperly giving greater weight to the opinion Social Security’s one time examining consulting doctor and rejecting the opinion of the treating physician.

On November 6, 2010, I supplemented the claimant’s appeal for the fourth time because Pena v. Comm. of Soc. Sec., 2010 WL 4340449 (E.D.N.Y. Oct. 22, 2010), rejected Strauss’ decision for her failure to give controlling weight to the opinion the treating physician. District Court Judge Nicholas Garaufis stated that Strauss improperly rejected a treating physician's opinion based on "internal conflicts in that physician's clinical findings.” Judge Garaufis then said Strauss compounded her error by failing to apply the rules for weighing opinions when a treating doctor’s opinion is not given controlling weight.

On December 25, 2010, I supplemented the claimant’s appeal for the fifth time because Martinez v. Astrue, 2010 WL 5126224 (E.D.N.Y. Dec. 9, 2010), rejected Strauss’ decision again. The Court held that Strauss’ RFC determination “was not based upon a medical assessment of plaintiff's physical limitations. Instead, the ALJ based her determination on her own evaluation of the medical findings in the record, committing legal error.”

The onslaught of transparently wrong decisions from ALJ Strauss has continued unabated. Today, I had to supplement the appeal for the sixth time as federal courts reversed two more Strauss decisions for the usual reasons. In Patel v. Astrue, 2010 WL 5125986 at *6 (E.D.N.Y. Dec. 10. 2010), Judge Gleeson ruled that Strauss, as usual, had failed to comply with the TPR despite evidence that “emphatically and consistently” supported disability. Judge Gleeson criticized Strauss’ “cursory” and “insufficient” analysis. Similarly, in Canton v. Astrue, 2010 WL 5391184 (E.D.N.Y. Dec. 22, 2010), Judge Garaufis also ruled that Strauss utterly failed to apply the TPR, and also failed to assess the claimant’s credibility properly.

It seems that every time a federal district court judge has to review a decision by Strauss it is rejected for failing to follow the TPR. How is it possible that after all these years and after thousands of hearings ALJ Strauss has failed to learn how to follow the TPR? The latest ALJ disposition data stated that Strauss approved 3 cases and denied 34 cases, while the average approval rate rate for ALJs is around 60%. That disposition data indicates that there are many more federal courts reversals of Strauss decisions to come.

ALJ Fier Unfit To Rehear Case

2011-01-13T18:17:00.005-05:00

According to data from the Social Security Administration (the "SSA"), the allowance rate in 2009 for disability decisions by Administrative Law Judges ("ALJ's") was 63%, or almost two out of every three cases. Many of the ALJs at the Queens, New York hearing office are known for being anti-claimant because of their low allowance rates. One of those ALJ's is Seymour Fier.

The most recent data from the SSA covered the time period from September 25, 2010 through November 26, 2010. During that time period, ALJ Fier denied thirty (30) cases and approved full benefits in only six (6) cases. Statistics show that ALJ Fier's allowance rate is way below normal.

Statistics are not the only source of evidence revealing ALJ Fier's inability to evaluate disability cases objectively. Federal district judges have also issued decisions indicating that ALJ Fier is not fit to review cases fairly. The latest reported decision came from Judge Nicholas Garaufis in McDowell v. Social Security, 2010 WL 5026745 (E.D.N.Y. Dec. 3, 2010).

Judge Garaufis stated that ALJ Fier "did not devote even a single sentence of analysis to" his finding that the claimant did not meet a "listing." Similarly, Judge Garaufis lamented that ALJ Fier devoted only "a single, conclusory pen-stroke without providing even a modicum of analysis or a token recitation of a single fact," for his conclusion that the claimant lacked credibility. In light of ALJ Fier's obvious inability to review the plaintiff's claim fairly, Judge Garaufis not only reversed ALJ Fier's decision, but also ordered the SSA to reassign the claim to a different ALJ.

SSA Notice of Awards

2010-12-30T17:06:00.001-05:00

The Social Security Administration (“SSA”) sends a Notice of Award (“Notice”) if a disability claim is approved. The Notice provides information such as the amount of the monthly and/or retroactive benefits. The Notices regularly contain errors, such as incorrect disability onset dates, and therefore they should be reviewed carefully.

One of my clients sent me a Notice that she received today. Despite the fact that the SSA knew that I was representing the claimant, had called me about the claimant several times, and had sent me a dozen pieces of correspondence concerning her claim, the Notice revealed that the SSA failed to withhold the attorney fee.

I immediately notified the claimant about the SSA error. The claimant was happy to learn about the Notice’s mistake before spending her award. There have been many other occasions where the SSA failed to send me Notices, which resulted in delaying informing the claimant that the attorney fee had not been deducted from their retroactive benefit check.

It seems the longer it takes the claimant to learn about such errors, the more they feel as if they “lost” benefits. It is in everyone’s best interest to rectify these discrepancies as soon as possible. I always advise claimants to let me know when they receive Notices for this and other reasons. For example, earlier this month I was able to get the SSA to correct the Notice’s disability onset date and issue three additional months of benefits before the benefits were processed, which avoided a protracted process had they already been processed.

SSA Doctors

2010-12-21T04:57:00.002-05:00

The State agency, also known as the Disability Determination Service, usually threatens that an application for disability benefits cannot be approved unless the claimant is examined by an agency doctor. Some of my earlier blogs have addressed the reasons why the regulations provide that the state agency's threats are wrong.

I received two fully favorable decisions yesterday that reinforce the reasons why state agency medical exams are not mandatory in most circumstances. Each decision said that because there was no agency medical opinion, Ruling 96-6p did not apply. That Ruling addresses the weight to be accorded state agency medical opinions.

Ruling 96-6p does not mandate exams by state agency doctors. The two decisions approved disability benefits while explicitly referencing the absence of state agency medical exams. Thus, not only do the regulations explain why state agency medical exams are usually unnecessary, but there is no Ruling that requires them either.

Protective Filing Date

2010-12-13T16:41:00.002-05:00

A protective filing date is the date when a person first contacts the Social Security Administration (the “SSA”) about filing for benefits, which may be used to establish an earlier application date than the date the SSA claims it received the signed application. An earlier application date can result in additional benefits.

On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.

On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.

An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.

The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.

If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.

On The Record Requests

2010-12-10T14:44:00.001-05:00

One way to avoid hearing delays after a Social Security Disability (“SSD”) claim has been denied is to file a request for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the rules and regulations show that a hearing is not needed.

A strong argument for having an OTR approved is that disability is required under a Medical-Vocational Rule. I represent a 52 year old former quality control engineer whose OTR was approved in less than two months. I submitted a report from the claimant’s physiatrist, as well as the treating chiropractor, that he claimant was unable to perform sedentary work. The OTR pointed out that even if the claimant were capable of sedentary work, in light of the claimant’s adverse vocational factors, he would have to be found disabled pursuant to Medical – Vocational Rule 201.14.

The Attorney Advisor’s opinion accepted the argument for the application of Rule 201.14, and approved the OTR. As a result, the claimant did not have to wait for a hearing, which typically takes well over a year. For most SSD claimants, receiving the SSD benefits sooner is important because cash flow becomes a problem when they no longer have a steady income.