Federal Court Win

Yesterday, District Court Judge Ann Donnelly rejected the decision of administrative law judge (“ALJ”) Sommattie Ramrup, who had denied Social Security Disability (“SSD”) benefits to my client, who was a petition clerk from Brooklyn, and who suffers from depression. 

Judge Donnelly concluded that ALJ Ramrup had cherry picked medical findings as an excuse to substitute her judgment for the opinions of the claimant’s psychiatrists. Judge Donnelly indicated that the claimant met listing 12.04, but remanded the case anyway so the ALJ can “”re-evaluate” the treating psychiatrists’ opinions. Judge Donnelly also indicated that if ALJ Ramrup does not find that the claimant meets listing 12.04, then she must ensure that the hypothetical question she poses to a vocational expert reflects the claimant’s actual limitations.

 

Whether you are thinking of applying for SSD, or have applied on your own and realize you need an attorney who specializes in disability, please feel free to call my office for a free telephone consultation.  We are conveniently located on Long Island in both Nassau and Suffolk counties. 

Waiting for SSD

It seems to be common knowledge that applying for Social Security Disability ("SSD"), and then waiting for a decision, is a very slow process. On a daily basis, clients ask us how are they supposed to support themselves and pay their bills while waiting for a decision from Social Security? Unfortunately, there is no good answer. The more you work, the more Social Security ("SS") will argue that you are not disabled. But even more heart wrenching, and less commonly known, is the amount of people that pass away while awaiting a decision from SSD. Over the years, we have had clients pass away while waiting for their hearing or decision. As we work very closely with our clients, and develop a relationship with them and some of their family members, it is very difficult and frustrating for us when a client passes away. 

The system is broken in so many ways, and has only gotten worse over the last several years. We have no choice, but to continue to wait and hope that SS gets the help and funding it needs, so people's lives are not ruined while they wait for a decision from SS.

State Agency Employee Fraud

HALLEX I-1-3-9 requires an Administrative Law Judge (“ALJ”) to refer a State agency adjudicator suspected of fraud to refer the matter to the Office of Inspector General (“OIG”).

We represent a Social Security Disability (“SSD”) claimant from East Meadow with spine problems. Reports from adjudicators named M. Jackson and M. Censor said the treating physicians were not allowed to do the claimant’s consultative examination (“CE”) because “Prior experience raises a question as to the objectivity, accuracy, or validity of the evidence from the source(s).” 

The adjudicators conspicuously failed to identify the actual name of the medical source or sources whose prior experience was questioned. We contacted the claimant’s medical sources about their prior experience with the State agency, and none of them stated that they have had any prior experience with it. 

Knowingly making a false boilerplate assertion in order to prevent a treating doctor from performing a CE is fraud. I asked the ALJ to issue a subpoena for the attendance of the adjudicator at the claimant’s hearing for cross-examination. Additionally, I asked the ALJ to notify the OIG about the potential misconduct, especially since was no reason to suspect that it had been limited to this one case. 

The ALJ did not make the adjudicator available for cross-examination, and it is unclear if the ALJ referred the matter to the OIG. If anyone waiting for a hearing has a file with similar boilerplate language from an adjudicator, then request that the matter be referred to OIG. Such misconduct should not be overlooked or condoned. 

If you are looking for an attorney on Long Island who specializes in disability claims, please call my office for a free phone consultation.

Judging Disabilities

It is not uncommon for a potential client to say to me, "there's nothing wrong with my neighbor and he's getting disability," or "I know so many people who look fine, and are getting disability." Many people are disabled from diseases that are invisible to others, like mental health disorders, autoimmune diseases, and even certain types of cancers. Social Security ("SS") has a strict definition of disability. Typically, for SS to find you disabled, your doctors need to support that you are unable to work for 8 hours a day at any job, not just your own job. SS decides if you cannot adjust to other work because of your medical conditions, and if your disability has lasted or is expected to last for at least one year or to result in death. To compound matters, their determination is not only based on information that they receive from your treating doctors regarding your limitations and restrictions resulting from your illness, but also from their doctors, who usually default to finding an ability to work. 

You also must have enough work credits to apply for Social Security Disability ("SSD") benefits. If you do not, then you may qualify for Supplemental Security Income ("SSI"), which follows the same medical requirements as SSD, but requires you to meet certain financial criteria to be eligible. 

The bottom line is, just because a person does not look like what you think a disabled person should look like, does not mean that they are not disabled under SS's definition. It is not easy to get approved for SSD or SSI. That is why it is highly recommended that you retain an attorney who specializes in disability and has experience with SS, and statistics show legal representation results in a significantly higher approval rate. Our office offers free phone consultations, and we have offices on Long Island in Nassau and Suffolk counties.

By Susan Golden

Updating Records

Claims for Social Security Disability (“SSD”) benefits have always proceeded slowly, and the pandemic has only compounded matters further. As a result, an SSD claimant can wait close to two years for a hearing. Consequently, medical reports and records can become stale by the time the hearing arrives. 

We represent a 50 year old truck driver from Plainview with knee, back and shoulder problems whose SSD application was filed in 2018. His hearing was transferred to another hearing office, which then rescheduled the date of the hearing. 

The medical evidence that had been submitted would be a year old by the new hearing date. Although complicated by the pandemic, we were able to obtain and submit updated reports. Shortly afterwards, we were notified that the claimant’s SSD application would be approved on the record, and therefore, there was no need for a hearing.

OTRs

The Social Security Administration (“SSA”) began implementing changes in 2009 with administrative law judge (“ALJ”) training, claims assignment, and monitoring, which were designed to reduce the disability allowance rate. Those changes reduced the ALJ and appellate allowance rates. The SSA has continued to change the rules to make approvals more difficult, most notably, by eliminating the treating physician rule. The on-the-record (“OTR”) allowance rate has correspondingly decreased. An OTR allowance can occur when a review indicates that a case can be allowed without a hearing.

Now may be the time to request an OTR. Because of the coronavirus, hearings are being held by telephone. While a claimant can reject a telephone hearing in favor of an adjournment, many of my clients have chosen to proceed with the telephone hearing, rather than wait when an in person hearing can be scheduled.

The logistics of a telephone hearing are problematical. I am located at my home office, the claimant is located their home, the claimant’s witness is located at their home, the ALJ is located at their home, medical and vocational witnesses are located at their homes, and the hearing assistant is located at the hearing office. The potential for chaos and technical issues in obtaining an adequate recording is substantial. That potentiality might be avoided if an OTR is approved.

I have received more OTRs since the start of COVID19 restrictions than I have the last few years. I represent a 21 year old with Autism, whose OTR was approved last Friday, for a telephone hearing that was scheduled today. The evidence was strong, even the State agency psychologists’ opinions were somewhat supportive, even though they had yet to see the extremely supportive reports and records of the treating mental health providers. Nonetheless, absent current circumstances, the ALJ probably would have gone through the motions of holding the hearing, even though he most likely was already persuaded that the medical evidence established the claimant’s entitlement to benefits.

A sheet metal worker from Bethpage, secretary from Farmingdale, and network engineer from Islip Terrace, were also just approved OTR. Absent current circumstances, the ALJs probably would have held the hearings for those claimants too.

If you are thinking about applying for SSD benefits, it is in your best interest to hire an attorney who specializes in disability law.  My office offers free phone consultations.   We have offices on Long Island in both Nassau and Suffolk counties.

Developing The Record

In Social Security Disability (“SSD”) cases, a failure to develop the record is considered to be a lack of a fair hearing. Therefore, to avoid having a decision rejected, an administrative law judge (“ALJ”) is required to develop the record. As a result, many ALJ’s go to extremes to ensure that every possible medical record, regardless of relevance, is part of the file.

It takes a long time to get a hearing. Consequently, the medical records may no longer be current when the hearing takes place. There is a sound way to avoid needlessly protracting the hearing process by insisting that any possible medical evidence be obtained.

A medical expert (“ME”) or a treating physician can opine that updated medical records would be cumulative or unnecessary. We represent a 39 year old with cervical radiculopathy who worked as a massage therapist. By the time the hearing arrived, the records from the claimant’s orthopedist were over a year old.

After the ME testified that the claimant met a listing 1.04, the ALJ asked if the claimant’s condition could have improved subsequent to the orthopedist’s latest records in the file. Since the ME testified that the condition would most likely stabilize or get worse, the ALJ determined that the updated records were superfluous.

If you are thinking about applying for SSD, please call my office for a free phone consultation.  We would be happy to answer any questions you might have.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.