Importance of Vocational Evidence

When applying for disability benefits of any types, the claim adjudicator evaluates the vocational evidence as well as the medical evidence. Sometimes the vocational evidence is even more important that the medical evidence. One of my clients, who was awarded Social Security Disability (“SSD”) benefits today, illustrates that point. 

My client is a 60 year old former electrician, which makes him a person “closely approaching retirement age.” Under the Social Security regulations, it is very unlikely that such a person would have transferable skills to “light” work. An electrician is “medium” work, which is more strenuous than “light work.” Thus, if an electrician cannot physically do his past work, and he is 60 years old, it means he most probably has to be found disabled.

The case law holds that when an SSD claimant has a long work history, especially with the same employer, then their complaints are entitled to substantial credibility. Here, my client had a 40 year work history as an electrician. Additionally, he was earning over a $100,000 annually when he stopped working. It does not take an expert to realize that a person who worked at the same job for 40 years must like what he was doing, and even if he didn’t, the fact that he was earning a six figure income certainly explains why he did it for such a long period of time. In other words, the only logical explanation why he stopped working is that he was physically unable to continue doing so.

I did submit very strong medical reports for the claimant. One was from a chiropractor and the other was from a nurse practitioner. Neither is what Social Security calls an “acceptable medical source.” Had the claimant been under 50 years of age, had a poor work history, or earned a small income, then it is highly unlikely that SSD benefits would have been awarded. Here, the vocational evidence was more important than the medical evidence.

ERISA Exception

I recently settled the claim of a physical therapy assistant who worked for Catholic Health Services after her benefits under her group long term disability (“LTD”) plan were terminated by CIGNA.  While most employee benefit plans are subject to ERISA, LTD plans that are sponsored by churches and church-related entities are not, unless they specifically elect to have ERISA coverage.

Because ERISA did not apply, I was able to file suit in State court, seeking State law remedies.  As a substantive matter, ERISA usually preempts state law remedies like punitive damages, bad faith, unfair business practices, pain and suffering, and consequential damages.  As a procedural matter, because ERISA did not apply, the claimant was entitled to discovery, including deposing CIGNA employees at the courthouse, to introduce new evidence that CIGNA did not consider, and to a jury trial.

Church-related organizations, such as hospitals, schools, and charitable organizations, are not usually governed by ERISA.  Freed from ERISA, claimants who have “church plans" have a more level playing field when forced to fight for their disability benefits.  Perhaps most importantly, when an insurance company makes a decision for a church related LTD plan, its decision is not entitled to any deference.  That is critical because insurers usually argue that their decision does not have to be correct, just a plausible one.

State Agency Exam Notices

Whenever a Social Security Disability (“SSD”) claimant in New York applies for benefits, regardless of his or her diagnosis, the State agency sends a notice stating that, “It will be necessary for you to be examined by” IMA Disability Services (“IMA”).  Unsuspecting claimants think that they have no choice about going to the consultative examination (“CE”) because the State agency notice says it is “necessary."

The State agency notice is misleading.  The Social Security regulations state when it is necessary to attend a CE.  There are actually very few situations where a CE is “necessary,” and in the majority of those cases, the regulations provide that the CE should be performed by the claimant’s treating doctor.

I represent a 49 year old former public safety officer with a back problem.  As is usual, the State agency sent her letters that said it was necessary for her to be examined by IMA for her back.  For various reasons the claimant declined the CE.  Today, I received the claimant’s Notice of Award.

The State agency knows that its notice is misleading.  I send the State agency a lengthy, detailed letter explaining why the CE is not necessary, and asking if they asked the treating doctor to supply the same information that they asked IMA to supply.  Not surprisingly, the State agency fails to respond to my letters, and instead, simply sends another notice, which says that the CE is “necessary.”

SSD Approved In 3 Months

I represent a 58 year old former auto mechanic and deliveryman with cervical radiculopathy, whose application for Social Security Disability (“SSD”) benefits was approved in three months. As I have done in other cases, I supplied functionality reports and treatment records. What was different this time? Really nothing. Perhaps it was a need to make a year end quota. Or maybe it was just a Christmas gift.

Social Security Myth

Today's Newsday had an article entitled "Beware of Bad Tips on Savings for Retirement."  One of the myths addressed was that you can take early Social Security retirement when you turn 62 years old, and still get full benefits later.  

Some people take early retirement because they want to start receiving monthly payments immediately.  The article points out that by doing so, you receive 25% less than if you wait until full retirement age, and 75-80% less than if you wait until age 70.  The implication is that it usually makes more sense to avoid taking early Social Security retirement.

The decision about whether to accept early retirement is simpler if you are receiving monthly Social Security Disability ("SSD") benefits.  The SSD helps stave off having to take early retirement, which eventually leads to larger retirement benefits.

Subpoena Leads to SSD Award for Rheumatoid Arthritis

The Social Security Administration (“SSA”) recognizes that rheumatoid arthritis can be a crippling disease, as an afflicted claimant can be found presumptively disabled under listing 14.09 if the criteria are met. If a listing is not met, then a hearing is typically required.

I represent a 48 year old former dental hygienist who was scheduled for a hearing after an on-the-record (“OTR”) was denied. The typical wait for a hearing is many months, and can even be over a year. One should never be satisfied with simply waiting for the arrival of the hearing date.

I seek updated medical records and reports for most Administrative Law Judges (“ALJs”) if an OTR is denied. For those ALJs who are well known for taking excessive amounts of time before scheduling a hearing, it makes no sense to request updated records after an OTR denial because by the time the hearing arrives they will claim that the medical records are stale, and need to be updated again.

The dental hygienist had to go live in a nursing home because of her rheumatoid arthritis. After an OTR was rejected, I sought updated medical records from the nursing home. However, the nursing home refused to provide any records. Fortunately, the ALJ granted my request to subpoena the nursing home records, which totaled nearly 700 pages of objective clinical findings and diagnostic tests that support the functional less than sedentary functional assessments of the treating doctors that had been submitted previously.

Among other things, the nursing home records showed that since the claimant had been admitted, via stretcher, she had needed a wheelchair to get around, even needed assistance to use it, could not get in and out of bed without help, was incontinent, totally dependent on others for personal hygiene, including toileting, and could not even feed herself. Based on those records, I suggested that a hearing was not needed. The ALJ agreed.

Another CE Problem

     I have written dozens of times about the problems posed when Social Security schedules a Consultative Examination (“CE”) with a non-treating doctor. I had a hearing yesterday in Queens that illustrates one such problem. 

     I was representing a 37 year old former EMT who sustained serious back and knee injuries after a series of motor vehicle accidents. The medical records and the reports of the claimant’s neurologist repeatedly demonstrated that the claimant met the listing criteria for a spinal disorder. However, the medical expert at the hearing questioned whether the listing was met because the report of the one time CE by a non-treating doctor contained some contrary findings. 

     Aberrant findings from a single CE report, from a doctor who is not a neurologist, should not suffice to contradict the longitudinal and consistent medical findings of a neurologist regarding a neurological disorder. Furthermore, the claimant was prepared to testify that the CE findings were fraudulent in that the CE did not actually test what the report claimed was tested. 

     Fortunately, the medical expert testified that while the claimant did not meet the spinal disorder listing, he equaled it in severity. However, another medical expert or Administrative Law Judge may have concluded that the CE findings prevented the listing from being met or equaled. According to the regulations, there was no valid ground for the claimant to have been asked to have a CE with a non-treating doctor. Had the claimant refused to attend the CE, there would have been no evidence to contradict the claimant’s meeting a listing, and he could have avoided the need and wait for a hearing.