Friday, October 26, 2007
Why Wait?
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.
Wednesday, October 17, 2007
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.
Tuesday, October 9, 2007
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.
Monday, October 1, 2007
Expediting SSD Benefits
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.
Wednesday, September 19, 2007
Always Review Your File
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.
Monday, September 17, 2007
Vocational Evidence & Credibility
Sunday, September 9, 2007
The More The Merrier
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.
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.
