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.
Saturday, February 12, 2011
Videoconference Hearings
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
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
Tuesday, February 8, 2011
Federal Court Decision
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.
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
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.
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.
Monday, February 7, 2011
Union Disability Approved
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.
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.
Wednesday, January 26, 2011
Does ALJ Strauss Try To Get Reversed?
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.
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.
Thursday, January 13, 2011
ALJ Fier Unfit To Rehear Case
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.
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.
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