Teacher Finally Receives SSD Benefits

I was retained after a federal court remanded this case to ALJ Iris Rothman. The claimant’s prior attorney was ambivalent about representing the claimant because ALJ Rothman inexplicably refused to review the case objectively. Sure enough, ALJ Rothman denied the claim a second time despite overwhelming medical and vocational evidence.

Rather than the usual terse one or two page or two decision, the Appeals Council (the “AC”) remanded this claim a second time in a detailed five page remand order. The AC not only made it clear that ALJ Rothman’s second decision was utterly devoid of any merit, but strongly and repeatedly indicated that the claim met at least one of three listed impairments. If a listing is met, then the claimant is deemed disabled without any further evaluation.

The new ALJ assigned to the case issued a fully favorable decision on the grounds that the claimant’s macular degeneration equaled listing 2.04 as of her February 1, 2005 onset date. If you believe the denial of your SSD benefits was wrong seek a second legal opinion. While the legal process for reversing an erroneous benefits decision may take some time, SSD benefits should be approved as long as there is supporting medical and vocational evidence.

SSA Consultative Examiners

The reason that Administrative Law Judges give the vast majority of the time to deny applications for Social Security Disability (“SSD”) benefits is that the opinions of the state agency consultative examiners (“CEs”) show the claimant can work. Once again, a federal district court has ruled that it was improper for an ALJ to do so.

I was retained to appeal an SSD case to the Eastern District of New York, which was assigned to Judge Nicholas Garaufis. My primary argument was that the ALJ gave more weight to the opinions of the CEs than to the claimant’s treating doctors, and in doing so, failed to apply the treating physician rule properly. In the New York metro area, CEs are usually performed by Industrial Medicine Associates.

The claimant’s treating doctor provided a detailed residual functional capacity (“RFC”) assessment demonstrating the claimant lacked the ability to perform the physical demands of sedentary work. However, the ALJ interpreted the CEs’ vague conclusions as providing for a sedentary RFC, and relied on those opinions to deny the claimant’s SSD application. Judge Garaufis ruled that:

"As Plaintiff correctly notes, the ALJ cannot rely on those RFCs as evidence contradicting the Treating Physician RFC. This is because an inconsistency with a consultative examiner is not sufficient, on its own, to reject the opinion of the treating physician."

It seems that most ALJ SSD denials are based upon the opinions of the CEs, and most of the time the ALJ provides little or no reason for elevating the CEs’ opinion over that of the treating physician. Whether appealing to the Appeals Council or federal court, it is essential to point out the absence of a legitimate or logical basis for the ALJ’s rejecting the treating physician’s opinion.

Child’s Benefits

If you succeed in winning Social Security Disability (“SSD”) benefits, then you may also be entitled to receive additional benefits for your children under 18 years of age. The child’s benefit is usually about half of the SSD benefit. You cannot rely on the Social Security Administration (the “SSA”) to take steps to help you secure the child’s benefits.

I represent a 53 year old press operator whose SSD application was approved after 4 months. The SSA did not notify him about his right to child’s benefits. The claimant did not think he was entitled to child benefits because his son had already graduated from high school. However, the claimant’s SSD benefit onset date was several months before the son graduated. As a result, the claimant will be entitled to receive several additional thousand dollars worth of benefits.

When applying for SSD benefits, always disclose the identities of dependents. The disclosure provides a protective filing date for child’s benefits.

UPS

Aetna administers the United Parcel Service (UPS) long term disability (“LTD”) plan. Fortunately, UPS maintains the right to reverse Aetna’s decisions.

A UPS package supervisor retained me after Aetna terminated his LTD benefits on the grounds that he could do sedentary work based upon an functional capacity examination (“FCE”). In my 74 page appeal to Aetna, which included 46 pages of new medical records, I explained how the FCE actually showed that the claimant could not do sedentary work. Aetna denied the appeal based upon a peer review that rejected the FCE, and conclusorily stated that there was no clinical support showing the claimant was unable to do sedentary work.

Aetna’s final decision was hypocritical. Aetna relied upon the FCE to terminate LTD benefits, but Aetna refused to allow the claimant to rely upon the FCE after admitting that it showed the claimant could not do sedentary work. In other words, Aetna accepts evidence when it thinks the evidence will support its decision, but rejects the identical evidence when it thinks the evidence will not support its decision.

As for the peer review, Aetna provided absolutely no reason why it accepted the opinion of the peer review doctor it paid to review the claimant’s medical records, over the opinions of the claimant’s treating orthopedist, pain management specialist, internist, rheumatologist, physiatrist, and physical therapist, each of whom explained why the claimant could not do sedentary work. I pointed out these and other critical flaws to UPS, which reversed Aetna’s decision.

The claimant went without LTD benefits for nearly a year because of Aetna’s actions. To compound matters, the claimant’s other benefits, such as medical insurance, were terminated when the LTD benefits were terminated. The claimant had to spend thousands of dollars for medical testing, reports, and attorney’s fees to get his benefits reinstated. If UPS employees have any influence at work they should consider persuading management to replace Aetna.

Retrospective Medical Opinions

In Scandura v. Astrue, 2009 WL 648611 (E.D.N.Y. Mar 10, 2009), the Chief Judge of the Eastern District of New York rejected the opinion of Administrative Law Judge (“ALJ”) Hazel Strauss because, among other things, the ALJ failed to acknowledge the validity of a retrospective medical opinion. Similarly, in Vicari v. Astrue, 2009 WL 331242 (E.D.N.Y. Feb 10, 2009), the court rejected the ALJ’s decision because it erroneously asserted that “a retrospective opinion is not acceptable dispite [sic] the attorneys [sic] allegations to the contrary.”

In other words, even if a physician first examines a Social Security Disability (“SSD”) claimant after the date last insured (“DLI”), the retrospective opinion still must be examined under the treating physician rule. In order to receive SSD benefits, a claimant must establish disability prior to the DLI.

I represent a 45 year old former carpenter who minimized his medical treatment after losing his health insurance. As a result, there was no doctor who treated the claimant prior to DLI to give an opinion regarding the claimant’s functional capacity. However, I submitted a functional assessment from the claimant’s current doctor, who gave a retrospective disability onset date. ALJ Crawley gave significant weight to the opinion, and approved the claimant’s SSD application.

The law is clear and well-established. As long as the retrospective opinion is well supported, such as when the doctor bases his opinion in part on reviewing pre-DLI medical records, it must be analyzed like any other medical opinion.

Senior Attorney Adjudicators

It is not unusual for a Social Security Disability claimant to have to wait two years before an Administrative Law Judge (“ALJ”) hears the case. One way the Social Security Administration is trying to reduce the backlog is the Senior Attorney Adjudicator program. The purpose of the initiative is to allow certain attorney advisors to issue fully favorable on-the-record (“OTR”) decisions to expedite the decisions, and conserve ALJ resources for the more complex cases and cases that require a hearing.

The chances of having an OTR approved, which at many hearing offices is now the province of Senior Attorney Adjudicators, is by explaining why the decision is not a complicated one that requires a hearing. This can be accomplished by showing that the application must be approved because the claimant meets a Medical-Vocational rule that requires a finding of disability. I received a fully favorable OTR decision today from a Senior Attorney Adjudicator that illustrates this point.

I represent a 53 year old former elementary school crossing guard, which is light, unskilled work, with an 8th grade education. A Medical-Vocational rule requires finding such a person disabled, even if they are capable of performing sedentary work. In other words, the medical evidence would have to show that the claimant is capable of performing at least light work, which among other things, requires the ability to lift up to 20 pounds occasionally and 10 pounds frequently, and stand or walk for 6 hours during an 8-hour workday. Citing evidence that indicated the claimant could not even do full time sedentary work made it an uncomplicated case.

Medical Improvement

Statistics from the Social Security Administration show that some Administrative Law Judges (“ALJs”) have a significantly lower approval rate than other ALJs. ALJ Seymour Fier only had an approval rate of 33% for 2008, which is less than half that of other ALJs, including those at the same hearing office. Just because ALJ Fier labels his decision "fully favorable," doesn't mean that it actually is.

ALJ Fier issued a fully favorable decision to a clothing salesman who was 48 years old when he became disabled due to very severe asthma and cardiovascular disease. At the hearing, the ALJ had the medical expert (“ME”) testify before the claimant, and the ME concluded the claimant could not do sedentary work. When I stated that I only had a few questions for the ME because he could confirm that the claimant met two of the listings for pulmonary impairments, the ALJ stated that it was not necessary in light of the ME’s testimony.

The ALJ’s “fully favorable” decision states that the claimant should be re-evaluated in 24 months because "medical improvement is expected." None of the medical evidence supports that statement. To the contrary, the treating doctors stated that the claimant’s conditions are permanent and progressive. While there is no doubt that the claimant’s condition will continue to deteriorate, the issue of medical improvement should not have been an issue if the ME had been allowed to testify regarding the claimant meeting a pulmonary listing.