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.
Wednesday, January 26, 2011
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.
Thursday, December 30, 2010
SSA Notice of Awards
The Social Security Administration (“SSA”) sends a Notice of Award (“Notice”) if a disability claim is approved. The Notice provides information such as the amount of the monthly and/or retroactive benefits. The Notices regularly contain errors, such as incorrect disability onset dates, and therefore they should be reviewed carefully.
One of my clients sent me a Notice that she received today. Despite the fact that the SSA knew that I was representing the claimant, had called me about the claimant several times, and had sent me a dozen pieces of correspondence concerning her claim, the Notice revealed that the SSA failed to withhold the attorney fee.
I immediately notified the claimant about the SSA error. The claimant was happy to learn about the Notice’s mistake before spending her award. There have been many other occasions where the SSA failed to send me Notices, which resulted in delaying informing the claimant that the attorney fee had not been deducted from their retroactive benefit check.
It seems the longer it takes the claimant to learn about such errors, the more they feel as if they “lost” benefits. It is in everyone’s best interest to rectify these discrepancies as soon as possible. I always advise claimants to let me know when they receive Notices for this and other reasons. For example, earlier this month I was able to get the SSA to correct the Notice’s disability onset date and issue three additional months of benefits before the benefits were processed, which avoided a protracted process had they already been processed.
One of my clients sent me a Notice that she received today. Despite the fact that the SSA knew that I was representing the claimant, had called me about the claimant several times, and had sent me a dozen pieces of correspondence concerning her claim, the Notice revealed that the SSA failed to withhold the attorney fee.
I immediately notified the claimant about the SSA error. The claimant was happy to learn about the Notice’s mistake before spending her award. There have been many other occasions where the SSA failed to send me Notices, which resulted in delaying informing the claimant that the attorney fee had not been deducted from their retroactive benefit check.
It seems the longer it takes the claimant to learn about such errors, the more they feel as if they “lost” benefits. It is in everyone’s best interest to rectify these discrepancies as soon as possible. I always advise claimants to let me know when they receive Notices for this and other reasons. For example, earlier this month I was able to get the SSA to correct the Notice’s disability onset date and issue three additional months of benefits before the benefits were processed, which avoided a protracted process had they already been processed.
Tuesday, December 21, 2010
SSA Doctors
The State agency, also known as the Disability Determination Service, usually threatens that an application for disability benefits cannot be approved unless the claimant is examined by an agency doctor. Some of my earlier blogs have addressed the reasons why the regulations provide that the state agency's threats are wrong.
I received two fully favorable decisions yesterday that reinforce the reasons why state agency medical exams are not mandatory in most circumstances. Each decision said that because there was no agency medical opinion, Ruling 96-6p did not apply. That Ruling addresses the weight to be accorded state agency medical opinions.
Ruling 96-6p does not mandate exams by state agency doctors. The two decisions approved disability benefits while explicitly referencing the absence of state agency medical exams. Thus, not only do the regulations explain why state agency medical exams are usually unnecessary, but there is no Ruling that requires them either.
I received two fully favorable decisions yesterday that reinforce the reasons why state agency medical exams are not mandatory in most circumstances. Each decision said that because there was no agency medical opinion, Ruling 96-6p did not apply. That Ruling addresses the weight to be accorded state agency medical opinions.
Ruling 96-6p does not mandate exams by state agency doctors. The two decisions approved disability benefits while explicitly referencing the absence of state agency medical exams. Thus, not only do the regulations explain why state agency medical exams are usually unnecessary, but there is no Ruling that requires them either.
Monday, December 13, 2010
Protective Filing Date
A protective filing date is the date when a person first contacts the Social Security Administration (the “SSA”) about filing for benefits, which may be used to establish an earlier application date than the date the SSA claims it received the signed application. An earlier application date can result in additional benefits.
On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.
On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.
An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.
The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.
If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.
On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.
On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.
An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.
The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.
If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.
Friday, December 10, 2010
On The Record Requests
One way to avoid hearing delays after a Social Security Disability (“SSD”) claim has been denied is to file a request for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the rules and regulations show that a hearing is not needed.
A strong argument for having an OTR approved is that disability is required under a Medical-Vocational Rule. I represent a 52 year old former quality control engineer whose OTR was approved in less than two months. I submitted a report from the claimant’s physiatrist, as well as the treating chiropractor, that he claimant was unable to perform sedentary work. The OTR pointed out that even if the claimant were capable of sedentary work, in light of the claimant’s adverse vocational factors, he would have to be found disabled pursuant to Medical – Vocational Rule 201.14.
The Attorney Advisor’s opinion accepted the argument for the application of Rule 201.14, and approved the OTR. As a result, the claimant did not have to wait for a hearing, which typically takes well over a year. For most SSD claimants, receiving the SSD benefits sooner is important because cash flow becomes a problem when they no longer have a steady income.
SSA Delays
Statistics from the Social Security Administration (“SSA”) state that the majority of Social Security Disability (“SSD”) claims are denied initially. The next step in the process is either reconsideration, or a hearing. In some places, such as New York, reconsideration has been eliminated, which is no real concern because few cases were approved at that stage. The newest SSA statistics state that it takes an average of 426 days to process a claim at the hearing level.
Given the time frames typically associated with SSD claims, it makes sense to pursue them as aggressively as possible as soon as possible. That is why I always try to obtain and submit multiple supporting medical opinions before the SSA makes its initial decision.
I represent a 47 year old former fire marshal and dispatcher whose SSD application was approved in three months after being considered at the initial stage. Among other things, I submitted reports from the physiatrist, internist, and podiatrist that explained why the claimant’s medical conditions prevented him from being able to perform the physical demands of any type of work.
While the claimant had severe injuries, he was under 50 years of age, which is a significant reason that leads to claims being denied initially. It is likely that the claimant’s SSD application may have been approved at the hearing stage if only one of his doctors’ supporting reports had been submitted. However, having submitted three supporting medical reports apparently explains why the claimant’s application was approved so quickly at the initial stage.
Given the time frames typically associated with SSD claims, it makes sense to pursue them as aggressively as possible as soon as possible. That is why I always try to obtain and submit multiple supporting medical opinions before the SSA makes its initial decision.
I represent a 47 year old former fire marshal and dispatcher whose SSD application was approved in three months after being considered at the initial stage. Among other things, I submitted reports from the physiatrist, internist, and podiatrist that explained why the claimant’s medical conditions prevented him from being able to perform the physical demands of any type of work.
While the claimant had severe injuries, he was under 50 years of age, which is a significant reason that leads to claims being denied initially. It is likely that the claimant’s SSD application may have been approved at the hearing stage if only one of his doctors’ supporting reports had been submitted. However, having submitted three supporting medical reports apparently explains why the claimant’s application was approved so quickly at the initial stage.
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