Why Wait?

Some disability attorneys do not submit medical records in support of Social Security Disability ("SSD") claims until after the application has been denied. The rationale is that the State agency that makes the initial determination will disapprove the claim regardless of what medical evidence is submitted. Therefore, medical records are submitted only after the claim file is transferred from the State agency to the Social Security Administration ("SSA") for further processing. I disagree with that approach.

Government statistics indicate that about 30% of SSD claims are approved by the State agency. While the percentage of claims approved by the SSA at the hearing level is higher, it still makes sense to present the strongest case possible at the initial level. I aggressively secure medical evidence and submit it as soon as possible to the State agency, even though it might require me to resubmit it to the SSA if an appeal is required.

I had a client's SSD application approved today after only two and a half months. The client is thrilled because she gets her benefits sooner than expected, which also means that her attorney will be smaller. While aggressively prosecuting claims does not usually result in claims being approved this quickly, not submitting medical evidence until SSA takes over responsibility for the file all but forecloses the possibility of a rapid approval.

No Objective Testing Required for Chronic Fatigue

I took over a Social Security Disability (“SSD”) case from another attorney when the claimant had to go to federal court. The claimant was diagnosed with vestibular disorder and then Chronic Fatigue Syndrome (“CFS”). I succeeded in having the court order another hearing before an administrative law judge (“ALJ”).

The case had been denied for lack of objective evidence. Regarding the vestibular disorder, I pointed out that while the ALJ had cited a normal diagnostic test, he had overlooked five other abnormal tests that substantiated the disorder. Nonetheless, the focus became CFS because the claimant’s infectious disease specialist and family doctor believed the vestibular disorder was symptomatic of the overall CFS.

The treating doctors summarized their clinical findings and conclusions. Their reports also provided detailed functional capacity assessments that precluded sedentary work. However, neither physician cited any diagnostic test data to support their opinions. To the contrary, each stated that there is no diagnostic testing associated with CFS, and that diagnoses, treatment and their disability o pinions were based on their clinical treatment history.

Disability claims are routinely denied or terminated for lack of “objective” evidence. In submitting a case, it is important to note whether there is any diagnostic testing that could possibly be submitted. It is equally important to highlight that physical examination findings are objective medical according to any medical dictionary or treatise.

Non-binding Disability Decision

Many claimants submit applications for more than one type of disability benefit. A reviewing agency or insurance company will always point out that being approved by another agency or insurer for disability benefits is not binding upon it. Nonetheless, a favorable decision should always be supplied because it is still persuasive evidence that must be considered.

Courts repeatedly state that although a Social Security Disability (“SSD”) decision is not binding upon an insurance company in the group long term disability context, it is arbitrary for an insurer to refuse to explain why the favorable SSD decision was wrong. I received a favorable SSD decision that also illustrates an approval should always be brought to the attention of another disability decision maker.

I represent a client whose SSD claim was pending for a year at the initial level. The Social Security Administration (the "SSA) kept raising excuses for refusing to decide the matter. In the interim, I obtained an approval for the claimant’s New York State Disability Retirement Pension. Shortly after I submitted the NYS decision to the SSA, the claimant’s SSD application was approved without explanation, despite threats to deny the SSD claim because the claimant refused to attend a consultative examination. Those threats make it unlikely that it was simply a coincidence that the SSD claim was approved right after the NYS decision was submitted.

Expediting SSD Benefits

Most people who can no longer work need Social Security Disability (“SSD”) benefits as soon as possible to help compensate for the loss of their employment income. The majority of SSD claims are denied leaving, and the typical wait for a hearing is about two years. Under these circumstances a claimant should consider making a request for a fully favorable decision On The Record (“OTR”).

An OTR summarizes the medical and vocational evidence together with the appropriate legal arguments and asks the hearing office to approve SSD benefits without a hearing. My strategy, which is usually successful, is to provide supportive medical evidence from as many treating and consultative sources as possible, even if they do not pertain to the claimant’s primary impairment.

I just had another OTR approved within a month after it was submitted. I obtained medical reports from both of the claimant’s orthopedists, chiropractor and physiatrist, even though from a technical legal basis only a single report is needed to establish entitlement to SSD benefits. However, by submitting four reports, each doctor’s opinion corroborates another, and it would have been very difficult for an Administrative Law Judge (“ALJ”) to come up with excuses to reject the opinions of all four doctors.

While an SSD claim may eventually be approved based upon support from a single source, the chances of avoiding a hearing by obtaining an OTR increase as the number of supporting medical opinions increases. If SSD benefits are needed sooner rather than later, then the extra work involved in preparing an OTR should not be a consideration.

Always Review Your File

If your Social Security Disability claim has been denied, you do not have to wait for a hearing, which typically takes close to two years to schedule. You can make an “on the record” (“OTR”) request that your claim be approved based on the information already contained in the file. The OTR summarizes the medical and vocational evidence and then asserts the legal arguments why the application should be approved.   

        As you may suspect, OTR’s are normally approved only where there is little doubt that the State agency, which makes the initial disability decision, erroneously denied the application. Most of the time, the denial is erroneous for refusing to give adequate weight to evidence from treating sources or for ignoring favorable vocational factors. However, the State agency also makes obvious errors, such as completely overlooking certain evidence or losing evidence, with surprising regularity. Alerting the hearing office to those errors in an OTR is likely to result in the claim being approved.

       I received an OTR today that illustrates how a careful review of a file led to a rapid approval. The claimant’s medical evidence was not that strong. In fact, her long time treating doctors refused to complete reports to support the claimant’s application because, like many doctors, they don’t want to get involved in the disability process. The State agency had denied the application based on the report from the “Consultative Examiner (“CE”),” who is essentially the doctor from Social Security. An exacting review of the file however revealed a note from the State agency disability analyst, which to my shock and glee actually stated in writing that the CE report had to rejected because its conclusions were too vague.

       The claimant did have one doctor who recently began treating her who supported her claims. Because the disability analyst rejected the CE report, there was no medical evidence to contradict the treating doctor’s opinion. Consequently, although the claimant is only 45 years old, and only has one relatively new treating doctor to support her claim, the claimant’s OTR was approved in two weeks.

Vocational Evidence & Credibility

Evidence is divided into objective and subjective evidence. Examples of objective medical evidence are clinical observations and diagnostic tests, while symptoms are subjective. Disability claims are frequently rejected for lack of “objective” medical evidence, or are denied on the grounds that the claimant’s subjective complaints are exaggerated or lack credibility.

Just as it is important to emphasize the objective medical evidence that supports a claim, the objective vocational evidence that supports a claim should also be highlighted. Most claimants overlook how vocational evidence can support their credibility, making it more difficult for their claim to be denied for lack of objective evidence.

One of my client’s disability applications was just approved without ever having been denied. While the claimant had medical evidence supporting his claim, there was no diagnostic testing to support his claims, just clinical records and reports. Nonetheless, the claimant’s application was approved quickly because of the emphasis placed on the vocational evidence.

It is well established in the courts that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant stopped working she did so for the reasons testified to. The presumption of credibility is even stronger where a claimant has a long work history of continuous work at the same employer.

My client’s disability application only wanted the claimant’s work history for the last 15 years. However, I stressed the claimant’s extraordinarily strong, continuous (40) forty year work history. I explained how the claimant’s work history provided objective evidence that rendered his subjective complaints credible. Considering the majority of disability claims are denied initially, and my client did not have unusually strong supporting medical evidence, the emphasis on his vocational evidence was critical to his obtaining benefits quickly

The More The Merrier

The saying, “The More The Merrier,” is particularly apt when applying for disability benefits. Most disability applications do not require more than one treating source as a prerequisite to receiving benefits. However, as the number of supporting sources increases, so too do the chances of securing disability benefits sooner.

I had a perfect application of the more the merrier saying to a disability claim last Friday. I represent a 46 year old health care attendant with her Social Security Disability (“SSD”) and her Disability Pension Retirement (“DPR”) claims. It took only a few months for her SSD claim to be approved, which should increase the chances of her DPR claim, which was just filed, also being approved. An SSD claim typically takes much longer than just a few months to be approved, particularly for a claimant less than 50 years of age.

My client’s claim was approved quickly because supporting reports from three treating sources were submitted. While the claim could have been approved eventually by relying solely on one of the physicians’ reports, it is highly unlikely that the approval would have occurred after only a few months.

When filing a disability application it is critical to ask as many treating sources as possible to prepare supportive reports, even if the doctors or other health care providers are not treating the primary medical condition. If treating sources will not complete paperwork, which happens fairly frequently for a variety of reasons, then start treating with other health care professionals who will. The sooner multiple treating reports are submitting to support a claim, the sooner the claim is likely to be approved.