Ileocolic Resection is the removal of the end of the small bowel and beginning of the colon with the two ends being joined back together. It can be required for a variety of reasons, including Crohn’s Disease.
I have a client whose ileocolic resection left her with chronic diarrhea that would occur without warning. As a result, the claimant said she needed constant bathroom access, which her gastroenterologist confirmed. Furthermore, her gastroenterologist stated that the claimant would need half hour bathroom breaks multiple times a day at work, and that her condition would cause her to miss more than three days of work each month.
The claimant’s application for Social Security Disability (“SSD”) benefits was approved today without a hearing. It is somewhat unusual for a claimant with a “non-exertional” impairment to have an SSD application approved without a hearing. A non-exertional impairment is one that does not affect the person’s ability to sit, stand, walk, lift, carry, push, or pull.
A case involving a non-exertional impairment is more difficult to establish than an exertional impairment that affects a person’s strength, that is, the person’s ability to sit, stand, walk, lift, carry, push, or pull. Sometimes it may be necessary to obtain a vocational assessment to establish disability based upon a non-exertional impairment.
If you are unable to work due to a medical condition, even though you have no problem sitting, standing, walking, lifting, carrying, pushing, or pulling, then you would be well advised to consult with an attorney experienced in handling disability matters.
Thursday, September 27, 2012
Wednesday, September 19, 2012
ALJ Bias Overcome
Padro v. Astrue is the class action filed against Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Marilyn P. Hoppenfeld, who are Social Security Administration Administrative Law Judges (“ALJs”) from Queens (the “Queens Five”). The Padro Amended Complaint, which can be downloaded from my web page’s Resources tab, alleges that the Queens Five are biased against claimants.
One of plaintiffs named in the Padro Amended Complaint is my client. She applied for Social Security Disability (“SSD”) benefits in April 2006. ALJ Nisnewitz denied the application in July 2007, but the Appeals Council remanded the case back to him in February 2009. In September 2009, ALJ Nisnewitz denied the application again, and the Appeals Council refused to review the claim, so I appealed to federal court.
The federal district court judge, Dora Irizarry, rejected Nisnewitz’s decision for many of the reasons asserted against him in the Padro bias class action. In fact, Judge Irizarry complained about Nisnewitz’s “contentiousness,” and ordered that the case be heard by a different ALJ.
The claim that Nisnewitz denied twice was approved today by another ALJ - without a hearing. However, because of ALJ Nisnewitz’s bias, the claimant had to wait three times as long as it should have taken the claimant to get her past due benefits. In the interim, she received no interest, and the cost to the SSA was needlessly excessive, as ALJ Nisnewitz required extra hearings and experts. Nisnewitz’s actions were a waste of tax dollars.
Padro is in the process of being settled. The settlement should result in many claimants whose applications were denied by the Queens Five receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.
One of plaintiffs named in the Padro Amended Complaint is my client. She applied for Social Security Disability (“SSD”) benefits in April 2006. ALJ Nisnewitz denied the application in July 2007, but the Appeals Council remanded the case back to him in February 2009. In September 2009, ALJ Nisnewitz denied the application again, and the Appeals Council refused to review the claim, so I appealed to federal court.
The federal district court judge, Dora Irizarry, rejected Nisnewitz’s decision for many of the reasons asserted against him in the Padro bias class action. In fact, Judge Irizarry complained about Nisnewitz’s “contentiousness,” and ordered that the case be heard by a different ALJ.
The claim that Nisnewitz denied twice was approved today by another ALJ - without a hearing. However, because of ALJ Nisnewitz’s bias, the claimant had to wait three times as long as it should have taken the claimant to get her past due benefits. In the interim, she received no interest, and the cost to the SSA was needlessly excessive, as ALJ Nisnewitz required extra hearings and experts. Nisnewitz’s actions were a waste of tax dollars.
Padro is in the process of being settled. The settlement should result in many claimants whose applications were denied by the Queens Five receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.
Thursday, September 6, 2012
Updating Medical Evidence
A State agency makes the initial decision whether or not to approve an application for Social Security Disability (“SSD”) benefits. If the State agency denies the application, then the next step in New York is to request a hearing before an Administrative Law Judge (“ALJ”) at the Office of Disability Adjudication and Review (“ODAR”).
After ODAR receives an appeal, it sends the claimant an introductory letter that discusses the procedures at the hearing level. One of the things that the introductory letter advises the claimant is that additional evidence should be provided. Typically, the letter will state, “Giving us evidence early can often help us review your case sooner.”
I represent a 48 year old truck driver whose SSD application was denied by the State agency, and I requested a hearing on July 23, 2012. On August 25, 2012, I submitted a new report from the claimant’s orthopedist, which contained information similar to a report that I had previously submitted from the orthopedist. A week later, a decision was made to approve the claim.
It is possible that the claimant’s SSD application eventually would have been approved even if the second report from the orthopedist had not been submitted. However, submitting the new report acted as a trigger for the claim file to be reviewed, which resulted in an approval without a hearing. Even if additional medical evidence appears cumulative, it should be provided to the ODAR.
After ODAR receives an appeal, it sends the claimant an introductory letter that discusses the procedures at the hearing level. One of the things that the introductory letter advises the claimant is that additional evidence should be provided. Typically, the letter will state, “Giving us evidence early can often help us review your case sooner.”
I represent a 48 year old truck driver whose SSD application was denied by the State agency, and I requested a hearing on July 23, 2012. On August 25, 2012, I submitted a new report from the claimant’s orthopedist, which contained information similar to a report that I had previously submitted from the orthopedist. A week later, a decision was made to approve the claim.
It is possible that the claimant’s SSD application eventually would have been approved even if the second report from the orthopedist had not been submitted. However, submitting the new report acted as a trigger for the claim file to be reviewed, which resulted in an approval without a hearing. Even if additional medical evidence appears cumulative, it should be provided to the ODAR.
Sunday, September 2, 2012
Should I Take Early Retirement?
People who cannot work, who are approaching or have reached age 62, regularly contact me to ask if they should take early retirement from Social Security. If the medical reason why you cannot work is not life threatening, then it usually makes sense to avoid early retirement. However, rather than comparing the benefits of early versus normal Social Security retirement, you should consider the possibility of Social Security Disability (”SSD”) if a medical condition prevents you from working.
If you are found disabled, your SSD benefits should be paid at the higher "full retirement age" rate, instead of the discounted "early retirement" rate. I have found that when people pursue SSD and early retirement, the SSD application tends to be denied, which is why I usually advice against seeking the latter. Moreover, when both benefits are sought, the applications take much longer than usual to get processed.
If you are found disabled, your SSD benefits should be paid at the higher "full retirement age" rate, instead of the discounted "early retirement" rate. I have found that when people pursue SSD and early retirement, the SSD application tends to be denied, which is why I usually advice against seeking the latter. Moreover, when both benefits are sought, the applications take much longer than usual to get processed.
Friday, August 31, 2012
IMA Disability Services
After you apply for Social Security Disability (“SSD”) benefits in New York, you will be sent a letter from the Office of Temporary and Disability Assistance (“OTDA”), or will receive a call from IMA Disability Services, telling you that you “must” be examined by an IMA doctor. Sometimes, IMA will even say that your application will be denied if you do not go to the exam. For some reason, the IMA appointments are automatically scheduled without any investigation as to whether or not they are really needed.
I represent a 50 year old nurse whose SSD application was approved today, even though she had previously received a letter from OTDA telling her that it was “necessary” for IMA to examine her, and that she “must” attend the appointment. Why are claimants told to to go the IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for exams? Why are claimants told they have to go to IMA exams in virtually every case when it is not true? The answer may have nothing to do with a claimant’s medical evidence.
The OTDA pays IMA a great deal of money for examining claimants, which money comes from our taxes. The fact that the OTDA automatically pays for IMA exams that are not necessary means that tax revenues are being wasted. Even if an exam were actually necessary, the why doesn’t the OTDA ask the claimants’ doctors to do the exam, especially since many would do so without requiring payment from the OTDA; that is, without cost to the taxpayer? How much do taxpayers pay IMA annually for unnecessary exams?
I represent a 50 year old nurse whose SSD application was approved today, even though she had previously received a letter from OTDA telling her that it was “necessary” for IMA to examine her, and that she “must” attend the appointment. Why are claimants told to to go the IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for exams? Why are claimants told they have to go to IMA exams in virtually every case when it is not true? The answer may have nothing to do with a claimant’s medical evidence.
The OTDA pays IMA a great deal of money for examining claimants, which money comes from our taxes. The fact that the OTDA automatically pays for IMA exams that are not necessary means that tax revenues are being wasted. Even if an exam were actually necessary, the why doesn’t the OTDA ask the claimants’ doctors to do the exam, especially since many would do so without requiring payment from the OTDA; that is, without cost to the taxpayer? How much do taxpayers pay IMA annually for unnecessary exams?
Tuesday, August 28, 2012
Carpenter Wins SSD For Wrong Reason
I represent a carpenter with an arthritic neck, back, and shoulder, carpal tunnel syndrome, and sleep apnea, who was awarded Social Security Disability (“SSD”) benefits yesterday. However, the decision approving the SSD benefits did so on grounds that were not entirely correct.
The claimant was 49 years and 10 months old at the time he became disabled. A "borderline" situation exists where the claimant is "within a few days to a few months of reaching an older age category. The claimant would have reached an older age category in two months when he became 50 years old. Under similar “borderline” circumstances, the courts have refused to apply the medical-vocational rules mechanically, and have applied the older age bracket. For example, in Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N.Y. (1995), the Court ruled that the claimant, who was three months shy of his 50 birthday, should have been treated as if he were in the 50 year old category.
If the claimant had been treated as a 50 year old, then even if he had a sedentary work capacity, the medical-vocational rules would have required that he be found disabled. The claimant’s arthritis specialist and his neurologist both said the claimant lacked a full time sedentary work capacity. While the Administrative Law Judge (“ALJ”) determined that the claimant had a full time sedentary work capacity, as noted above, applying the borderline case doctrine, the claimant should have been found disabled under the medical vocational rules.
For some reason, the ALJ did not apply the borderline case doctrine, and therefore, did not find the claimant disabled under the medical vocational rules. Instead, the ALJ required a hearing at which he called a vocational expert (“VE”) to testify. The VE testified that given the claimant’s vocational background and physical limitations, there were no jobs that he could perform, and the ALJ accepted that testimony to award SSD benefits.
Had the ALJ applied the borderline doctrine, which is contained in the hearing rules known as the HALLEX, then there would have been no need for a VE. In fact, there would have been no need for a hearing as the medical vocational rules required that the claimant be found disabled.
The claimant was 49 years and 10 months old at the time he became disabled. A "borderline" situation exists where the claimant is "within a few days to a few months of reaching an older age category. The claimant would have reached an older age category in two months when he became 50 years old. Under similar “borderline” circumstances, the courts have refused to apply the medical-vocational rules mechanically, and have applied the older age bracket. For example, in Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N.Y. (1995), the Court ruled that the claimant, who was three months shy of his 50 birthday, should have been treated as if he were in the 50 year old category.
If the claimant had been treated as a 50 year old, then even if he had a sedentary work capacity, the medical-vocational rules would have required that he be found disabled. The claimant’s arthritis specialist and his neurologist both said the claimant lacked a full time sedentary work capacity. While the Administrative Law Judge (“ALJ”) determined that the claimant had a full time sedentary work capacity, as noted above, applying the borderline case doctrine, the claimant should have been found disabled under the medical vocational rules.
For some reason, the ALJ did not apply the borderline case doctrine, and therefore, did not find the claimant disabled under the medical vocational rules. Instead, the ALJ required a hearing at which he called a vocational expert (“VE”) to testify. The VE testified that given the claimant’s vocational background and physical limitations, there were no jobs that he could perform, and the ALJ accepted that testimony to award SSD benefits.
Had the ALJ applied the borderline doctrine, which is contained in the hearing rules known as the HALLEX, then there would have been no need for a VE. In fact, there would have been no need for a hearing as the medical vocational rules required that the claimant be found disabled.
Tuesday, August 21, 2012
Binder & Binder Replaced
A 49 year old business owner asked me to take over his Social Security Disability (“SSD”) case from Binder & Binder because he said they failed to service his claim properly. He also complained that he kept getting assigned new “advocates” at Binder & Binder, who were not attorneys, and they never returned his calls on a timely basis. I regularly am asked to take over cases from people who are being represented by Binder & Binder.
Binder & Binder attracts thousands of clients by spending millions of dollars on television advertising. They may have won more cases than anyone, but they have also lost more. They run their SSD practice as a business; they don’t call themselves a law firm, and experience has shown that you will have difficulty speaking with an attorney.
When I was the Senior Litigator at Binder & Binder, some clients complained that they never even had the opportunity to speak with an attorney until a few minutes before their hearing. I get my clients through referrals, and every one of them is important to me. People retain me because they know they are not a statistic in a mass production business. I run my practice as a profession, I operate a law firm, and you will be able to speak with me, and as a lawyer, your communications with me are privileged.
Binder & Binder attracts thousands of clients by spending millions of dollars on television advertising. They may have won more cases than anyone, but they have also lost more. They run their SSD practice as a business; they don’t call themselves a law firm, and experience has shown that you will have difficulty speaking with an attorney.
When I was the Senior Litigator at Binder & Binder, some clients complained that they never even had the opportunity to speak with an attorney until a few minutes before their hearing. I get my clients through referrals, and every one of them is important to me. People retain me because they know they are not a statistic in a mass production business. I run my practice as a profession, I operate a law firm, and you will be able to speak with me, and as a lawyer, your communications with me are privileged.
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