How Slow Is It?

No, not a comedian’s straight line, but rather a query regarding the deliberateness with which the Social Security Administration (“SSA”) processes claims.

Over a decade ago, on April 29, 2008, I asked administrative law judge (“ALJ”) Newton Greenberg, now deceased, to amend his fully favorable decision to correct the Social Security Disability (“SSD”) application filing date. The decision said the filing date was April 27, 2007. During the hearing, I pointed out that I had the certified mail receipt showing that I filed the claimant’s SSD application on February 19, 2007. The decision found the claimant became disabled on June 27, 2005. During the hearing, I also pointed out that, consistent with my certified mail receipt, Exhibit 2E in the claim file confirmed that February 19, 2007 was the date when I actually filed the SSD application.

At the end of the hearing, I gave the ALJ an application claim form that was mailed by a person from the SSA district office, with that person’s initials on it, and was dated July 27, 2006. Mailing that claim form showed that the SSA was advised that the claimant wanted to file for SSD benefits, which is grounds for a protective filing date. When the hearing ended, the ALJ said that he would investigate the mailing from the district office.

When I received the ALJ’s decision, there was no discussion at all about the incorrect onset date. It merely stated that the application was filed on April 27, 2007. Consequently, I immediately submitted a letter asking the ALJ to issue an amended decision to reflect the actual filing date. At a minimum, the hearing decision needed to be amended to reflect an application date of February 19, 2007.

However, I argued that the application I handed the ALJ provided substantial evidence for a protective filing date of July 27, 2006, which would provide another seven months of benefits beyond the February 19, 2007 date.

I received an answer to my request for an amended decision today – 11 years and 3 months later. A new decision that accepted August 2, 2006 as the protective filing date. No explanation why the July 27, 2006 date was rejected, but obtaining an additional seven months of benefits.

Medical Persuasiveness

Social Security Disability (“SSD”) applications filed after March 2017 are subject to the new regulations that exclude the treating physician rule. Rather than determining the amount of weight to accord medical opinions, the Social Security Administration (“SSA”) now determines which medical opinions are more persuasive. 

The regulations explain how persuasiveness should be measured, just as they had explained how weight was to be ascertained. And just as the courts repeatedly had to rule whether the proper weight was accorded to medical opinions, they will surely be asked to rule on whether the SSA properly determined the persuasiveness of medical opinions. 

I represent a 49 year old former carpenter with back problems, whose SSD application was approved after a hearing. The decision of the administrative law judge (“ALJ”) sheds some light on how persuasiveness will be determined, at least by this particular ALJ. 

The ALJ found the opinions of the treating orthopedist and the pain management doctor persuasive because they had treated the claimant frequently since 2011. Conversely, the ALJ found the opinion of the non-examining doctor less persuasive because it was inconsistent with the level of treatment the claimant received, and because he was not privy to all of the medical records.

Meeting a Social Security Listing

According to the National Kidney Foundation, dialysis is needed when your kidneys are only functioning at 10-15% of capacity. Dialysis removes the waste, excess fluid, and toxins from the blood, which the kidneys can no longer do. Side effects from dialysis include: nausea and vomiting, muscle cramps, itching, insomnia, restless leg syndrome, anemia and fatigue, and dizziness. 

One way to establish entitlement to Social Security Disability (“SSD”) benefits when you are on dialysis is by showing you meet the “listing” criteria for chronic kidney disease. I represent a former police detective who had contacted me when he was looking for a Social Security Disability attorney. His SSD application was approved less than a month after we filed it. The application emphasized that besides meeting the listing, the claimant’s vocational factors also favored a finding of disability. 

Especially now that the SSA requires reconsideration in New York, the trend over recent years has been for an increased amount of time to obtain a decision. Tailoring the application to the claimant’s unique medical and vocational attributes avoided that protracted process.

Help for SS?

Maybe, just maybe, there is some hope for people applying for Social Security Disability benefits. We have long maintained that the system is fraught with fraud, an example of which is the doctors that they hire to review claims. U.S. Rep John Larson from Connecticut, who is the chair the Social Security Subcommittee is trying to launch an investigation into these doctors. The doctors are paid by the amount of claims they review, so one can only imagine their incentive to speed through the claim files to make as much money as possible. We can only hope that something good comes out of this, and that this problem is rectified giving applicants a greater chance of being approved at the initial application.

NYS OTDA & IMA

On March 26, 2019, I received a letter from the New York State Office of Temporary and Disability Assistance (the “State agency”) that said “it is necessary for [my client] to be evaluated by one or more of our doctors.” Previously, the State agency had sent four other letters stating that it was necessary for the claimant to be examined by IMA Disability Services (“IMA”). 

My client is a 61 year old former nursing assistant with various musculoskeletal problems. Her application for Social Security Disability (“SSD”) benefits was approved today without a hearing. While the claimant went to IMA, the exam was not completed because she insisted on video recording it. 

New York State has one of the highest, if not the highest, rate of SSD claimants being sent for exams by State agency doctors. The excessive boondoggle should be investigated because there are thousands of SSD claimants being sent for exams that are NOT necessary.

ALJ “Gets It”

Administrative Law Judge (“ALJ”) Jose Perez-Gonzalez issued a decision that approved my client’s social security disability (“SSD”) benefits by doing what surprisingly few other ALJ’s do – he rested his decision upon common sense. 

I represented a 57 year old former teacher with mental impairments at an SSD hearing, where a psychologist testified as a so-called medical expert (“ME”). The ME stated that the claimant was not disabled, despite the fact that the long time treating psychiatrist stated that the claimant’s condition was so severe, that she met a listing. The ME claimed that the psychiatrist’s opinion was not consistent with his medical notes, which the ME admitted he could not read. 

The ALJ rejected the ME’s opinion based upon my cross examination of the ME. I got the ME to admit that treatment providers do not document all symptoms that their patients might have, and that their notes are used to try to jar their memory, and not to serve as documentary evidence for future legal proceedings. The ALJ agreed, and therefore, rejected the ME’s testimony, in favor of the treating psychiatrist’s opinion. 

ALJ Perez-Gonzalez’s conclusion, that treatment providers create notes to jar their memory at future medical appointments, and not to serve as documentary evidence, goes beyond common sense. Nonetheless, the majority of the time when an ALJ wants to reject the opinion of a treating doctor, the excuse for doing so is that the opinion is not supported by the treatment notes. Every cross examination of an ME should focus on rebutting the often inevitable assertion that treatment notes fail to support the treating doctor’s opinion.

SSD Approved in 4 Months

Initial approval of Social Security Disability (“SSD”) benefits is becoming increasingly rare with each passing year. Initial approvals are usually reserved for claimants who are over 55 years of age, meet a listing, or qualify as a compassionate allowance. I represent a claimant who fit none of those criteria.

I represent a 43 year old former delivery truck driver with severe back problems, whose SSD application was approved in only four months. This case stood out though for a couple of reasons. 

First, we submitted a very favorable workers compensation (“WC”) IME report. While the SSA always states that it is not bound by anyone else’s decision, the SSA finds WC IME reports more credible than treating specialists’ opinions. 

Second, we submitted a great number of electrodiagnostic test data, surgical reports, along with treatment records from numerous examining sources. While there is no quantitative requirement, the SSA tends to find it easier to justify approving a voluminous file.