Clerical Mistakes

The Social Security Administration (the “SSA”) makes clerical mistakes all the time. For example, the SSA constantly loses birth certificates and medical records even when those documents are sent by certified mail. The SSA also has frequent problems with maintaining its files. The SSA fails to get records to the state agency reviewing the file and vice versa; and the district office fails to get all of the records to the hearing office (“ODAR”).

I represented a claimant with a strong case for receiving Social Security Disability (“SSD”) benefits whose claim was approved today. Like the majority of SSD claims, the SSA denied the initial application. Once the file was transferred to the ODAR, I submitted a request for a fully favorable decision on the record (“OTR”) summarizing the medical and vocational evidence and providing the legal arguments in support of awarding SSD benefits.

The majority of the time, my OTR requests are approved, which saves the claimant money and avoids the stress of having to attend a hearing. Despite the fact that this claimant’s OTR was very strong, the OTR was denied. The ODAR would not explain the basis for rejecting the OTR, and the claimant was scheduled for a hearing. In preparation for the hearing I reviewed the file. However, even though the OTR was hand delivered, it was not in the file. I showed the filing receipt to the ODAR, but they had no answer why the OTR was not associated with the file.

After resubmitting the OTR, the claimant’s application and OTR were approved. Because of the ODAR clerical error, the claimant had to wait a few extra months to receive his SSD benefits. This was yet another example showing that despite documents being sent via certified mail or hand delivered, after a claim is denied the file should always be reviewed as soon as possible.

Needless Forms

I had another self employed claimant's SSD application approved today at the initial level. I was surprised because I had been told that the claim would be denied for two reasons.

First, I was told that the claim would be denied if I failed to submit a work activity report, which details any work after the alleged disability onset date. I refused to submit the work activity form because I contended that all the information had already been supplied with the application. Second, I was told that the claimant's application would be denied unless I submitted his complete tax records for the past year, but I refused to provide anything other than the first page of the federal tax return on grounds of relevancy.

Because the application was approved at the initial level without explanation, I cannot know the reason why the "required" information did not prevent approval of the application. However, the experience does indicate that demands for superfluous information cannot justify rejecting a valid claim.

Objective Evidence of Pain

Thousands of disability claims of all types are denied for lack of “objective” evidence, even though the case law consistently states that a claim should be denied solely because of a purported lack of objective evidence. Many people can no longer work because of pain, which is by definition subjective. Even when objective proof of a condition that causes the pain is presented, it is common for the claim to be denied.

A great way to “objectify” the pain is treatment by a pain management specialist. I had a claimant who was diagnosed with fibromyalgia and reflex sympathy dystrophy (“RSD) by a rheumatologist. The diagnoses were not disputed and were confirmed by objective clinical findings. Even though the rheumatologist supported the claim, the claim was denied on the grounds that there was no support that the claimant’s pain was severe enough to prevent her from working. The claimant asked me to handle the appeal.

On appeal, I submitted a medical report from the claimant’s pain management specialist, who was also a board certified neurologist. The neurologist had not been contacted, nor had his records been obtained. It seemed arbitrary to deny that the claimant’s pain was disabling without considering any evidence from the pain management specialist.

The neurologist diagnosed the claimant with fibromyalgia, complex regional pain syndrome, and chronic pain syndrome. Just like the rheumatologist, the neurologist identified the positive clinical findings that supported the diagnoses, and he also provided similar restrictions and limitations. The only real difference in the reports was that the neurologist detailed the nature, location, frequency, severity and precipitating factors of the claimant’s pain. As a pain management specialist, there was no basis for discounting his opinion regarding the severity of the claimant’s pain, and the claim was approved today.

I advise my clients to treat with pain specialists, even if the medications and treatments offered are similar to what other treating physicians are providing. It seems difficult to reject an opinion regarding a claimant’s pain from a physician who specializes in pain management.

The SSA & The Self Employed Claimant

When it comes to disability, the default position of the Social Security Administration (the “SSA”) is that applicants are not disabled. Thus, the SSA draws every presumption and inference in favor of denying an application for Social Security Disability (“SSD”) benefits. One such presumption concerns applicants who were self-employed.

When an applicant who was self employed applies for SSD, the SSA presumes that the applicant is still working off the books. This presumption frequently gets extended to ridiculous lengths. I had a client who after receiving SSD told the SSA that he was resuming work for his wife’s company. Instead of rewarding the claimant for his honesty, the SSA demanded an overpayment on the grounds that he must have been working off the books for years.

Despite the fact that the SSA never has any evidence that a formerly self-employed SSD applicant is working off the books, the SSA asserts that it will deny benefits unless the claimant proves otherwise. The claimant can submit an affidavit that he or she is not working, which is the same evidence that must be accepted at a hearing. However then the SSA has rejected such affidavits at the initial application stage, and requested tax records. However, when I have produced the tax records revealing no income, or advised the SSA that the claimant did not file because there was no income, the SSA still refused to approve benefits for lack of evidence.

The problem is that the SSA is requiring the claimant to prove a negative; that is, something that does not exist. You can prove you are working by your testimony or that of co-workers. Employment and tax records can also establish gainful activity. Because there is no direct proof that one is not working, what can one do when the SSA rejects indirect proof?

I recently succeeded in getting SSD benefits approved for a formerly self-employed hardware store owner at the initial application stage. I refused to provide the tax records of the applicant’s spouse on numerous grounds. However, I supplied letters from the hardware store suppliers stating that the applicant no longer worked at the store. Those letters must have sufficed because the SSA, which had told me benefits would be denied if I refused to turn over the tax records, approved the application. The letters were very short, and required little effort on the part of the suppliers, or the claimant in securing them.

POMS For Mental Impairment Claims

I receive many Social Security Disability referrals for claimants with mental impairments. It seems that unless a mental impairment is so severe that the claimant is hospitalized, the attorney is not interested in handling the claim. That should not be the case.

Like physical impairments, a claimant can establish entitlement to benefits by providing evidence that a "Listing" is satisfied. If the criteria of a listing are met, then the claimant is presumptively deemed disabled, and there is no need to consider if the claimant can perform past or any other work. A claimant's condition needs to be pretty severe to meet a listing.

A case that I got approved this week, for a woman in her thirties, at the initial application level, illustrates another way to get benefits approved. When a claimant's mental limitations do not meet or equal a listing, the Social Security Administration (the "SSA") must consider if the claimant has the ability to meet the mental demands of past relevant work. The SSA is supposed to do that by considering whether the claimant can meet the basic mental demands of unskilled work.

According to the SSA's internal operating rules called the "POMS", the mental demands of unskilled work include the ability to: (a) understand, carry out and remember simple instructions; (b) make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions; (c) respond appropriately to supervision, coworkers and work situations; and (d) deal with changes in a routine work setting. A substantial loss of ability to meet ANY of those basic mental demands justifies a finding that the claimant is disabled.

By providing a detailed questionnaire to the claimant's treating mental health provider, I was able to show that the claimant is disabled under the POMS. Since the POMS is supposed to apply at the initial application level, providing evidence to support the POMS is an effective way to get an application approved quickly.

Don’t Be Misled By A Biased Judge

Many of the Administrative Law Judges (“ALJs”) at the Queens Office of Disability and Adjudication Review have reputations for disapproving strong disability claims. Statistics show that a higher percentage of cases from Queens are overturned compared to other hearing offices. The ALJs often go to extraordinary lengths to justify their denials.

Last week a Queens ALJ stated that because a claimant had not been terminated from her job she was not disabled. I explained that the issue is not whether the claimant was employed in name, but rather whether she was capable of engaging in substantial gainful activity. The ALJ obviously knew he was wrong because for decades the courts have ruled that, “The first step in the sequential process is a decision whether the claimant is engaged in ‘substantial gainful activity.’” Furthermore, the ALJ knows that the regulations state that, “At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.” In other words, in order to avoid approving the claimant’s application, the ALJ was intentionally misapplying the most basic issue at any Social Security Disability hearing.

A claimant unfamiliar with Social Security law would not have thought to question the ALJ’s assertion that because the claimant was not terminated from her job she was not entitled to disability benefits. Neither claimants nor their representatives should blindly accept an ALJ’s opinion of the law. In a situation such as this, I immediately request a copy of the hearing tape and submit a post-hearing memorandum explaining the correct recitation of the law.

LTD Plan Limitations

Many disability plans provide for the payment of benefits through an insurance policy. When an insurance carrier is liable for paying benefits under a disability plan it usually also acts as the plan’s claims administrator. In those circumstances, the insurance carrier has a conflict of interest because if it approves a claim as claims administrator, then it has to pay those benefits under the policy it issued that provides for the payment of benefits. Consequently, the insurance company’s decisions as claims administrator favor avoiding the payment of claims.

One way that carriers avoid liability is by intentionally mischaracterizing physical disability claims as mental disability claims. I just received an approval of both a short and long term disability claim where the carrier’s conflict of interest obviously influenced its decision.

The claimant submitted evidence that her mental and physical impairments precluded her from being able to work. Jefferson Pilot approved disability benefits based upon the mental condition, but asserted that there was insufficient evidence of physical impairments to support total disability. That assertion was false because there was just as much, if not more, evidence to support disability based solely upon the claimant’s physical impairments. As it typical of many disability plans, the claimant’s limited benefits for a mental condition for 24 months. Jefferson Pilot’s decision was a baseless attempt to limit its liability to 24 months.

Under these circumstances, I always send a letter to the carrier immediately, advising that the claimant rejects the decision insofar as it rejected disability benefits based upon the physical impairments. This avoids the carrier from subsequently arguing that a claim based upon physical impairments is waived. I expressly notify the carrier that the claimant will pursue disability benefits beyond 24 months because the medical evidence establishes an inability to work due solely to physical impairments.