SSA Backlogs

We received the email below, from the Social Security Administration, notifying us that due to the backlog of initial disability claims, the wait time for a disability determination has increased from 90-120 day to 200-230 days. 

Dear Colleague, In the past, the notice sent to claimants when we  receive disability internet claims submitted by a third-party stated that claimants would receive a  disability determination within 90-120 days. However, due to the backlog of initial disability  claims, it has been taking an average of 200-230 days  for claimants to receive a disability determination. We understand this may be confusing to claimants  and can result in unnecessary calls to our offices.  To provide better expectations for when a claimant  should expect to receive a decision, we have updated  the notice to reflect the current timeframe of 200-230  days.We continue to review and update our notices to  ensure they are clear and accurate. This is the first  change with more expected to come. We appreciate your continued support. Sincerely, Dawn Bystry Associate Commissioner Office of Strategic and Digital Communications

DDS Disrespect

After we receive a favorable decision for a client, our representation ends.  But many of our clients are subject to reviews by the  Social Security Administration ("SSA").  The timeframe of the review varies for each individual client, dependent on an ALJ's recommendation upon approving a claim.  The time frame for the review can be anywhere from 12 months to 3 years from the decision.  We always advise our clients to continue treatment with their doctors, because if they don't, then the SSA will interpret that to mean they have improved and are no longer disabled.

We periodically receive phone calls from former clients, advising us that they are being reviewed.  Even though we no longer represent them, we do try to help them through the process.

We received a phone call from a former client, who was under review.  He suffers from severe anxiety and agoraphobia.  He told us that he had received a letter notifying him that he needed to attend a Consultative Exam.  We recommended that he call his doctors and ask them if they had received a request from the State agency for updated records, and if they had, to make sure they sent the requested records back to the State agency as soon as possible.  When he spoke to his doctors, they had not received a request from the State agency for their records.  We told our client to call the analyst at the State agency, who was handling his case, and ask her why she was sending him for a CE when she hadn't even requested records from his doctors.  His doctors were more than happy to cooperate.

Our client called us to let us know that he had spoken to the analyst.  He told us that the analyst was extremely rude to him, and made him feel like he had done something wrong.  All this did was make someone with extreme anxiety even more anxious.  This is not the first time, nor will it be the last, that we've been told by a client that they've been treated like this by an employee of the SSA.

We advised our client to call the analyst's supervisor to report this analyst.  No one deserves to be treated with such disrespect.  It's one thing when it's directed at us, we are used to it, but it is completely unacceptable for a State agency analyst, or any SSA employee, to speak to a claimant in such a manner.

Our client reached the supervisor who brushed off his complaint about the analyst's behavior towards him, but the supervisor did  advise him that they had received the records from his doctors and he did not have to attend the CE.  If the analyst had done her job properly from the beginning, our client would not have been thrown into a state of severe anxiety.

If you find yourself in a situation such as this, don't be afraid to contact a supervisor and report the behavior of the analyst or the SSA employee who has treated you this way.  Don't be afraid to advocate for yourself.  You have been approved for disability.  If you are still disabled and have not improved since you were approved for SSD, then your doctors' records will support that.

 

IMA Disability

I used to surmise that the State agency has an unwritten regulation that requires it to insist that every Social Security Disability (“SSD”) claimant attend a consultative examination (“CE”).  I have to come realize that because the State agency examiners and medical consultants are too lazy or too busy to read the claimants’ file, they disregard all the medical evidence in the file, and simply rubberstamp whatever CE concludes.  Therefore, the State agency sends letters to claimants requiring them to attend CEs by IMA.

When attending CEs, we have our clients confirm that the IMA doctors do not review any medical records.  Thus, the State agency does in fact ignore all the medical evidence in claimants’ files other than the CE report.

We represent a 60 year old teacher assistant from Brooklyn with physical and mental impairments.  The State agency sent a letter to the claimant to attend two, not one, IMA CEs.  I sent a letter asking the State agency to explain how the scheduled CEs complied with the regulations.  I never received a response to my letter, but a couple of weeks later, the State agency notified us that the claimant’s  SSD application was approved.

Before we agree to represent our clients, we always emphasize how important it is for them to speak with their doctors to confirm they will support the client's inability to work full time.  As soon as we file an application for SSD benefits, we request the client's medical records, and submit them as soon as possible after obtaining them.

 

 

 

VE Rebuttal

A Washington Post article from last year unveiled how administrative law judges (“ALJs”) rely on patently erroneous and obsolete occupational information to deny Social Security Disability (“SSD”) applications.  ALJs asked Larry Underwood to serve as a vocational expert (“VE”) for a quarter century.  Mr. Underwood told the Washington Post that:

"I realized that a lot of vocational experts, including myself, have been giving false testimony for years...The numbers are no accurate.  I decided I can't do that anymore."

Since Social Security has neglected to state what special knowledge, experience, or training is required to qualify as a VE, a VE is more accurately denominated as vocational witness (“VW”).  Despite the fact that a proper cross examination of a VW will reveal that their responses to an ALJ are unsupportable, most ALJ’s accept the VW’s testimony anyway in order to deny SSD benefits.  When it appears that an ALJ will disregard testimony during cross examination of a VW, the claimant should retain a truly independent VW to rebut the Social Security VW.

I represent a 36 year old from East Northport with numerous orthopedic impairments, who had worked as a police officer.  The VW testified that the claimant could perform occupations that courts have ruled are obsolete.  Nonetheless, the ALJ was prepared to accept the VW’s testimony, but my cross examination of the VW could not be completed due to time constraints.  The ALJ stated that he would schedule a supplemental hearing, but I could submit a brief instead to expedite a decision.

I submitted a vocational report from an independent VW, which supported my arguments about that the occupations the Social Security VW had cited were obsolete.  Today, a week before the hearing, the ALJ agreed, and issued a fully favorable OTR.

My claimant is so grateful that I was able to obtain the OTR, and that she did not have to wait for another hearing.  It is important if you plan on applying for SSD, that you retain a disability attorney, like myself, who has years of experience working with Social Security, and knows the system inside and out.

My office offers phone consultations for anyone thinking of applying, or has already applied, for SSD.

 

 

Inexcusable SSD Delay

 We represent a 55 year old police officer from Spring Gardens with metastatic multiple myeloma.  We immediately submitted proof that the claimant’s medical condition met the listed criteria of 13.07(A), and sought expedited review of the Social Security Disability (“SSD”) application.  Nonetheless, the State agency doctors denied the application twice.

It took nearly two years before the claimant received a hearing.  To matters even worse, Social Security transferred the hearing from Queens to Manhattan.  As a result, the claimant was deprived of an in-person hearing because due to his medical condition he could not travel the distance.

At the hearing, the Administrative Law Judge (“ALJ”) threatened that if the claimant refused to accept an amended onset date (“AOD”), the ALJ would schedule another hearing with a medical expert (“ME”), and the ALJ said it was unlikely that the ME would find the claimant still met a listing.  The ALJ then directed me to discuss the AOD with the claimant in private.

The claimant said he could not afford to wait for another hearing.  When the ALJ returned, I pointed out how the evidence supported the AOD, such as his leg bone snapping in half from simply standing on it.  Nonetheless, the ALJ gave the claimant a take it or leave it ultimatum, which I said the claimant had to accept.

When I proceeded to explain that the ALJ was doing the claimant a disservice, the ALJ insisted that he doubted there was any basis to support the claimant currently being disabled.  The ALJ then proceeded to question the claimant, and was shocked to learn that the claimant’s cancer was not in remission, had metastasized, and had to leave his home in 10 minutes to get chemotherapy.  The ALJ sheepishly expressed his sorrow.

The ALJ approved the claimant’s SSD benefits with the AOD today, close to two years after the application was filed.  There was absolutely no justification for the delay, or the ALJ’s threat to further the delays by scheduling another hearing.Inexcusable SSD Delay

Federal Court Remand Again

In probably the most scathing Social Security decision that I have ever read, U.S. District Court Judge Brown remanded our client’s case, and ordered that it be assigned to a new Administrative Law Judge (“ALJ”).  The full opinion can be downloaded from the Court Decisions drop down menu on my website’s Resources tab.

This is the second time that the claimant’s case has been remanded.  The first time, U.S. District Judge Azrack remanded it.  In that first lawsuit, Judge Brown said that Social Security was “ably represented by an Assistant United States Attorney,” because he conceded that “ALJ Weiss’ decision was indefensible.”

Judge Brown found that ALJ Weiss essentially repeated the same errors of law and added some further problems.  Regarding the vocational evidence, Judge Brown determined that ALJ Weiss: “gravely misstate[d] the record; ”ignored the testimony he elicited and determined—based on illusory findings—that the plaintiff could” work; and “fatuously” added the claimant could climb ladders.

Regarding the medical evidence, Judge Brown stated that “blatant mishandling of vocational expert information pales in comparison to ALJ Weiss’s failure to consider the Court’s directives in connection with medical expert testimony.”  Specifically, Judge Brown stated that, “Undeterred by the concession of error by the Commissioner and Judge Azrack’s express findings, ALJ Weiss, once again, bases his determination in some measure on the non-existent opinion provided by the apparently non-existent (in this case) Dr. Golub.”  Judge Brown added that ALJ Weiss, “through thinly-veiled machinations,” disregarded the claimant’s evidence.

Judge Brown also excoriated the legal representation provided by Social Security’s Office of the General Counsel (the “OGC”):

“The slapdash nature of the review provided by ALJ Weiss—in which he misidentified the purportedly critical medical expert witness and continued to rely on that “opinion” despite Judge Azrack’s rejection of the same—is echoed in the quality of the representation of the Commissioner on this appeal. For example, in its papers, counsel for the Commissioner repeatedly uses the wrong pronouns to refer to the plaintiff. Such scrivener’s errors could be simple mistakes, but may also reflect a careless, cut-and-paste creation of filings.”

Judge Brown then added:

“What’s more troubling, however, is the failure of counsel to exercise reasoned discretion in this case. During the first review of this case before Judge Azrack, the Commissioner was represented by an Assistant U.S. Attorney for this district, who exercised the good sense and judgment to concede error as to ALJ Weiss’s mistakes. Here, the record is inarguably worse, as rather than correct the errors identified by Judge Azrack, ALJ Weiss perpetuated and compounded the mistakes. And yet, substitute counsel for the Commissioner, a cross-designated agency attorney, refused to acknowledge any error.  Instead, in the filings, the Commissioner has the temerity to request that this Court conduct ‘a searching review of the record’ to correct the “the absence of an express discussion by the ALJ” of relevant factors.”

After attacking the particular OGC attorney who defended Social security in this case, Judge Brown criticized the quality of OGC representation in general:

“This Court has observed that, in at least certain instances, cross-designated agency counsel have repeatedly and unapologetically taken indefensible positions in social security disability cases, even in the face of judicial criticism.”

We have been representing the claimant for over a decade, and will continue to do so.   We have maintained from the day that we filed her application that she should be approved for SSD benefits.  We have no doubt that we will be successful.

 

IMA

The Social Security regulations identify the limited circumstances when a person seeking Social Security Disability (“SSD”) benefits should be sent for a consultative examination (“CE”).  However, upon receiving an SSD application, the knee jerk reaction of our State agency is to tell a claimant they must go to Industrial Medicine Associates (“IMA”) for a CE by an unnamed person, for an unspecified reason.

One of our former clients, an insurance representative from Brookhaven, came back to us after a continuing disability review (“CDR”) resulted in her SSD benefits being terminated.  When we appealed, the State agency sent the usual demand for a CE by IMA.  We explained why the CE would be inappropriate, and the State agency specified what additional medical information was needed, which we supplied from the claimant’s specialists.  Shortly thereafter, the claimant’s SSD benefits were reinstated.

Even though our client had not needed our services for over 10 years, she knew she could contact us to help her again, and was confident that we could get her benefits reinstated.    Needless to say, she is very happy and grateful that we were able to help her again.