I met today with the Traumatic Brain Injury (“TBI”) support group that meets in Cedarhurst. The timing of the meeting was interesting because I had just seen the ABC News piece earlier in the morning regarding TBIs, which was a follow up to the piece on Bob Woodruff who suffered a TBI while reporting in Iraq.
According to the news item, veterans returning from the Middle East with TBIs are not getting the medical treatment that they deserve. Moreover, it seems that the veterans with TBIs are discovering latent problems that are not apparent for a substantial period of time after the injury. Furthermore, it has become readily apparent that the TBIs are requiring prolonged treatment and care.
Among many other things that I discussed with the TBI group, I pointed out that is that a claimant becomes eligible for Medicare 24 months after Social Security finds that he or she became disabled. As noted above, since TBIs often require prolonged medical care, Medicare is frequently needed as a means of obtaining medical services.
Wednesday, February 28, 2007
Memory Problems & File Surprise
In January 2006, I applied for Social Security Disability (“SSD”) benefits for a client who had suffered a stroke in 2003. Last October, the Social Security Administration (the “SSA”) initially denied the claim even though I secured a medical report from his doctor opining that the claimant met a “listing.” A listing is a condition that is considered so severe that the claimant is presumed to be disabled. The good news is that I submitted a brief explaining why the claimant’s application should be approved without the necessity of holding a hearing, and my request was granted. The typical wait for a hearing is close to two years.
The most significant thing about the decision concerns the onset date. The decision not only found that the claimant had been disabled since 2003, but also agreed to reopen a previously unknown application.
The claimant has memory problems as a result of his stroke, and did not recall filing for SSD benefits previously. Because of the claimant’s memory problems, I often discussed the claimant’s case with his friend, and she advised me that the claimant had filed for SSD. However, according to the SSA, they could not locate any records of a prior application.
After succeeding in expediting the scheduling of the claimant’s hearing, I prepared for the hearing by reviewing the claim file. The last piece of paper in a miscellaneous part of the claim file that is often overlooked contained a note that indicated the claimant had in fact filed an application previously, but the SSA could not locate it. I immediately brought the information about the prior application to the attention of the hearing office, which notified the Administrative Law Judge. Consequently, the claimant will now be entitled to several more years of SSD benefits.
Whenever a client has memory problems it makes sense to discuss the disability matter with a friend or relative of the claimant who can help fill in the gaps. It is also prudent to be extra careful when reviewing that client’s claim file because it may reveal helpful information which the claimant has forgotten.
The most significant thing about the decision concerns the onset date. The decision not only found that the claimant had been disabled since 2003, but also agreed to reopen a previously unknown application.
The claimant has memory problems as a result of his stroke, and did not recall filing for SSD benefits previously. Because of the claimant’s memory problems, I often discussed the claimant’s case with his friend, and she advised me that the claimant had filed for SSD. However, according to the SSA, they could not locate any records of a prior application.
After succeeding in expediting the scheduling of the claimant’s hearing, I prepared for the hearing by reviewing the claim file. The last piece of paper in a miscellaneous part of the claim file that is often overlooked contained a note that indicated the claimant had in fact filed an application previously, but the SSA could not locate it. I immediately brought the information about the prior application to the attention of the hearing office, which notified the Administrative Law Judge. Consequently, the claimant will now be entitled to several more years of SSD benefits.
Whenever a client has memory problems it makes sense to discuss the disability matter with a friend or relative of the claimant who can help fill in the gaps. It is also prudent to be extra careful when reviewing that client’s claim file because it may reveal helpful information which the claimant has forgotten.
Thursday, February 22, 2007
Benefits While Working
A person can work, yet still be entitled to disability benefits. I received a fully favorable decision from the Social Security Administration (the “SSA”) where my client’s Social Security Disability application was approved even though he returned to work.
The claimant had to stop working on August 26, 2005 at an auto body repair shop because of neck, back and leg pain. The SSA conceded that the medical evidence demonstrated the claimant was functionally disabled. However, the claimant admitted that he had resumed working on a part time basis in order to pay for medical treatment, and it appeared to the SSA that the work constituted “substantial gainful activity” (“SGA), which would preclude benefits.
I advised the SSA that the claimant never worked more than 12 hours, nor earned more than $175, in any week, which was below SGA. I also cited case law holding that employment is not proof positive of ability to work, since disabled people, if desperate (or employed by an altruist), can often hold a job. The SSA agreed that the claimant should not be punished and denied disability benefits merely because he has continued working to pay for medical treatment.
There are many situations where a claimant may be entitled to receive disability benefits despite working. Do not assume that you cannot get disability benefits simply because you worked after the date you claim you became disabled.
The claimant had to stop working on August 26, 2005 at an auto body repair shop because of neck, back and leg pain. The SSA conceded that the medical evidence demonstrated the claimant was functionally disabled. However, the claimant admitted that he had resumed working on a part time basis in order to pay for medical treatment, and it appeared to the SSA that the work constituted “substantial gainful activity” (“SGA), which would preclude benefits.
I advised the SSA that the claimant never worked more than 12 hours, nor earned more than $175, in any week, which was below SGA. I also cited case law holding that employment is not proof positive of ability to work, since disabled people, if desperate (or employed by an altruist), can often hold a job. The SSA agreed that the claimant should not be punished and denied disability benefits merely because he has continued working to pay for medical treatment.
There are many situations where a claimant may be entitled to receive disability benefits despite working. Do not assume that you cannot get disability benefits simply because you worked after the date you claim you became disabled.
Tuesday, February 20, 2007
FERS Reconsideration
If you are employed by the federal government and become disabled, then you may be entitled to benefits under the Federal Employees Retirement System (“FERS”). Like most disability programs, a FERS applicant needs to provide both medical and vocational proof of disability.
Even if you establish that you have a serious medical condition that started while working for the federal government, which has lasted over a year, you still need to show that the medical condition caused a service deficiency and that the agency failed to make a reasonable accommodation. The agency is not always helpful, and in fact, may affirmatively attempt to prevent a claimant from obtaining benefits.
I received a decision today from the Office of Personnel Management (“OPM”) that reversed its initial decision to deny my client’s application for disability retirement benefits. That decision reveals the importance of establishing the vocational proof in a FERS claim.
After submitting overwhelming clinical, diagnostic and opinion medical evidence from several treating sources, OPM conceded that the claimant satisfied the medical portion of his claim. However, according to OPM, the agency said that the claimant did not establish that it failed to accommodate the claimant’s medical condition. Under FERS, a claimant needs to show that any accommodation the agency offered was unreasonable. The agency claimed that it made reasonable attempts to accommodate the claimant by providing special on site training and opportunities for training outside agency.
I successfully argued that while the agency may have attempted to accommodate the claimant with additional training, the training that was offered was not reasonable. The constant supervision from the on site training increased the claimant’s anxiety; the agency denied the claimant’s request to train on his own; and the off site training was in another state, which was precluded because of the claimant’s agoraphobia. I also cited case law that held where an employee could not accept a position due to agoraphobia, it was impossible for employer to make a reasonable accommodation for employee.
When filing an application for retirement disability under FERS, it is essential that you provide the requisite medical and vocational evidence, which must show the causal nexus between the medical condition and the inability to work.
Even if you establish that you have a serious medical condition that started while working for the federal government, which has lasted over a year, you still need to show that the medical condition caused a service deficiency and that the agency failed to make a reasonable accommodation. The agency is not always helpful, and in fact, may affirmatively attempt to prevent a claimant from obtaining benefits.
I received a decision today from the Office of Personnel Management (“OPM”) that reversed its initial decision to deny my client’s application for disability retirement benefits. That decision reveals the importance of establishing the vocational proof in a FERS claim.
After submitting overwhelming clinical, diagnostic and opinion medical evidence from several treating sources, OPM conceded that the claimant satisfied the medical portion of his claim. However, according to OPM, the agency said that the claimant did not establish that it failed to accommodate the claimant’s medical condition. Under FERS, a claimant needs to show that any accommodation the agency offered was unreasonable. The agency claimed that it made reasonable attempts to accommodate the claimant by providing special on site training and opportunities for training outside agency.
I successfully argued that while the agency may have attempted to accommodate the claimant with additional training, the training that was offered was not reasonable. The constant supervision from the on site training increased the claimant’s anxiety; the agency denied the claimant’s request to train on his own; and the off site training was in another state, which was precluded because of the claimant’s agoraphobia. I also cited case law that held where an employee could not accept a position due to agoraphobia, it was impossible for employer to make a reasonable accommodation for employee.
When filing an application for retirement disability under FERS, it is essential that you provide the requisite medical and vocational evidence, which must show the causal nexus between the medical condition and the inability to work.
Botta v. Barnhart
--- F.Supp.2d ----, 2007 WL 486730 (E.D.N.Y.)
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Guilia BOTTA Plaintiff,
v.
Jo Anne BARNHART, Commissioner of Social Security, Defendant.
No. 05CV4382(ADS)(ARL).
Feb. 13, 2007.
Law Offices of Jeffrey Delott, Jericho, By Jeffrey Delott, Esq., of Counsel, for the Plaintiff.
Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Brooklyn, By Keisha-Ann G. Gray, Assistant United States Attorney.
MEMORANDUM OF DECISION AND ORDER
SPATT, District J.
*1 Guilia Botta (the “plaintiff”) commenced this action pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security (the “Commissioner” or the “defendant”) denying her April 26, 2001 claim for disability insurance benefits. Presently there are three applications before the Court: (1) the plaintiff's appeal of an order of United States Magistrate Arlene R. Lindsay, dated February 6, 2006, denying the plaintiff's motion for discovery; (2) the plaintiff's motion for judgment on the pleadings pursuant toRule 12(c) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”); and (3) the defendant's cross-motion for judgment on the pleadings.
I. BACKGROUND
A. Procedural History
On April 26, 2001, the plaintiff filed an application for disability insurance benefits. (Tr. 72-75.) The plaintiff claimed that she was unable to work since December 28, 1998 because of a back injury and bursitis of both shoulders. (Tr. 72.)
On September 6, 2001, the Commissioner denied the plaintiff's application. (Tr. 42-52.) On November 5, 2001, the plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 47.) On October 21, 2003, a hearing was conducted before ALJ Seymour Fier. The plaintiff appeared with her attorney and an Italian interpreter. In addition to the plaintiff's testimony, the ALJ also heard testimony from a medical expert, Dr. Theodore Cohen, and a vocational expert, Dr. Fred Siegel.
In a decision dated February 19, 2004, the ALJ determined that the plaintiff was not entitled to disability insurance benefits. (Tr. 18-23.) According to the ALJ, the plaintiff was not disabled within the meaning of the Act because she retained the ability to return to her past relevant work as a sewing machine operator. (Tr. 21.) The plaintiff had worked as a sewing machine operator in a bridal shop from June, 1980 until the time of her alleged disability in December, 1998. (Tr. 86.)
On or about March 1, 2004, the plaintiff filed a request for review of the ALJ's determination with the Appeals Council. (Tr. 12.) On July 29, 2005, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. (Tr. 6-9.) The Appeals Council's denial of review rendered the ALJ's decision the Commissioner's final administrative determination. On September 16, 2005, the plaintiff commenced this action.
B. The Administrative Record
1. The Plaintiff's Background and Testimony
The plaintiff was born on June 13, 1947 in Italy, and is now 59 years old. The plaintiff testified that she became a citizen of the United States in 1979. The plaintiff has two children, a 37 year-old daughter and a 33 year-old son. She lives with her husband and her daughter. The plaintiff testified that she has had years of schooling in Italy; can not read or write at all in English; and can not read or write “much” in Italian. For the past eighteen years until the time of the onset of her alleged disability, the plaintiff worked as a sewing machine operator.
*2 The plaintiff claims to have stopped working as a sewing machine operator in December, 1998 because of pain in her shoulder, her back, and her legs. After the plaintiff stopped working, she collected Unemployment Insurance Benefits for approximately four months, and has been collecting Workers' Compensation for approximately the last three years. The plaintiff testified that she spends her days watching television, crocheting, sitting in the yard, or playing with her dog. She watches television for approximately one hour, unless she is watching a movie that she likes, when she will “sit there more.” Her husband and daughter shop and do the chores, but occasionally the plaintiff will cook a light meal. The plaintiff has not made any effort to return to work since her injury. She testified that when she sits at the sewing machine her back, leg, and shoulder hurt.
The plaintiff testified that she has not been to an emergency room at any time within the last three years. The remainder of her testimony regarding her medical treatment was somewhat inconsistent. In response to questioning by the ALJ regarding whether the plaintiff is “seeing a doctor on a regular basis,” the plaintiff testified that she sees a doctor, who is Chinese and whose name she doesn't remember, once per year for “tests”; that she sees Dr. Peter Berra, her “family doctor,” approximately once every two months; and that she is taking a “water pill” and Aspirin. Upon questioning by her attorney, the plaintiff testified first that she saw Dr. Benjamin Yentel for her back, neck, and shoulder injury just once; and later that she saw him “every month.” She also testified that she hasn't seen Dr. Yentel for “two or almost three months,” but immediately after that stated that she saw him “last week,” but that he now refuses to treat her because her insurance will not pay.
The plaintiff also testified about her subjective limitations in response to questions by her attorney. The plaintiff testified that her back, her legs, the back of her neck, and her shoulders hurt. She believes that she can sit for about one half hour at one time without a problem, but then will have to get up. She cannot stand for a long time because her legs hurt. The plaintiff testified that she can only walk “around the block, a block and a half.” The plaintiff testified further that when she last worked, she would have to lift “more than 30 pounds,” and that now she can only lift “a couple of pounds.” The plaintiff is not currently getting treatment, but testified that her doctors told her that she cannot work.
2. The Medical Evidence
a. Dr. Richard Nottingham
On November 30, 1998, Dr. Richard Nottingham examined the plaintiff. Dr. Nottingham's specialty is not apparent from the administrative record. (Tr. 123.) At that time in 1998, the plaintiff was 51 years old. The plaintiff's chief complaint was of pain in the low back region and the left leg. Dr. Nottingham indicated that the plaintiff had this problem for many years, and that he had seen the plaintiff in 1992 for sciatica. The plaintiff had intermittent pains since 1992, and did not have numbness in her legs.
*3 Upon examination, Dr. Nottingham indicated that the plaintiff was overweight; the range of motion of her back was “markedly limited with pain”; and “straight leg raise to 70 degrees causes back pain .” An x-ray of the lumbosacral spine revealed mild degenerative changes. The doctor's impression was “left sciatica” and he noted to “rule out herniated disc left lumbar region.” (Tr. 123.)
b. Dr. Myong S. Choi
On a referral from Dr. Nottingham, on December 7, 1998, Dr. Choi reviewed an M.R.I. of the plaintiff lumbar spine that was conducted. (Tr. 124-125.) Dr. Choi's impression was of L4-5 herniated disc, subligamentous type, with minimum compression of the anterior thecal sac; L5-S1 circumferential bulging disc without significant spinal stenosis. (Tr. 125.)
c. Dr. Peter H. Hollis
On December 28, 1998, Dr. Peter H. Hollis, a neurological surgeon, examined the plaintiff on a referral from Dr. Nottingham. (Tr. 164.) In a letter to Dr. Nottingham, Dr. Hollis reported that the plaintiff was a fifty-two year old woman “who has had several years of progressive pain in the lower back radiating into the left leg with numbness and tingling.” The plaintiff provided her M.R.I. to Dr. Hollis, who reported that the M.R.I. showed mild disc herniations in the two lower lumbar areas, but no clear nerve compression. Dr. Hollis also stated that he saw a suggestion of bilateral foraminal encroachment at L5-S1.
The plaintiff's main symptoms at that time were involved pain radiating from the back to the left buttock and thigh. The plaintiff had no spine tenderness; her straight leg raising test was positive on the left at 60 degrees, and negative on the right; she was able to heel and toe walk; and a motor examination revealed normal strength. Dr. Hollis' impression was lumbar radiculopathy with and/or possible peripheral neuropathy. Dr. Hollis noted that he would arrange for the plaintiff to have a lumbar myelogram and post myelo-CT scan to better document and delineate the exact nature and extent of any neural impingement and to better evaluate the plaintiff for foraminal stenosis. Dr. Hollis indicated that he would also arrange for the plaintiff to have an EMG to rule out peripheral neuropathy.
On February 1, 1999, Dr. Hollis saw the plaintiff for a follow-up examination. (Tr. 163.) Dr. Hollis indicated that the plaintiff had a lumbar myelogram and post myelo-CT scan. The plaintiff's left radiculopathy was causally related to the L4-5 disc hernation. Dr. Hollis made similar findings on the right side at L5-S1. Dr. Hollis opined that these findings explained the plaintiff's bilateral lumbar radiculopathy. Dr. Hollis provided treatment options to the plaintiff, which included weight loss and aggressive exercise, or surgical decompression. Dr. Hollis stated that the plaintiff was “choosing the conservative route,” but did not elaborate further.
On March 1, 1999, Dr. Hollis saw the plaintiff for a second neurological follow-up examination. Dr. Hollis reported that the plaintiff's lumbar myelogram and post myelo-CT scan showed multiple disc hernations causing neural impingement. Dr. Hollis recommended that the plaintiff undergo surgical intervention, but the plaintiff was not interested in surgery at that time.
d. Dr. Robert A. Duca
*4 On April 6, 1999, Dr. Robert A. Duca, an orthopaedic surgeon, examined the plaintiff on behalf of the State of New York. (Tr. 126.) In a report to the New York State Insurance Fund, Dr. Duca stated that the plaintiff stopped working on December 12, 1998 due to increased pain and decreased range of motion in her lumbar spine as a result of an unspecified work-related injury. The plaintiff reported to Dr. Duca that she was a sewing machine operator and experienced increased pain in her lumbosacral spine after prolonged periods of sitting.
At the time of the April 6, 1999 examination the plaintiff's chief complaints were severe pain in the lumbar spine and decreased range of motion. The plaintiff's spine was tender to the touch, and Dr. Duca reported swelling and limited range of motion. Dr. Duca diagnosed the plaintiff with herniated disc at L4-5; minimal compression of the thecal sac; and a bulging disc at L5-S1.
Dr. Duca reported that the plaintiff was “in moderate distress” and she was prescribed Celebrex, Norflex, BID, andVicodin. He and indicated that he would evaluate her again in two weeks. Dr. Duca requested authorization to perform an epidural injection at the lumbar spine. Although Dr. Duca reported that the plaintiff was only “in moderate distress,” he also reported that she was “totally disabled and unable to work” at that time.
The administrative record contains seventeen Workers' Compensation forms completed by Dr. Duca during the period between April 22, 1999 and March 2, 2001. (Tr. 127-145). Each Workers' Compensation Form related to either one or two examinations in the weeks preceding the date of the form. In all of the forms, Dr. Duca indicates that the plaintiff suffers from a herniated disc and a lumbar disc bulging; that the plaintiff is not working and totally disabled from working; and requests authorization for a series of epidurals.
In the earliest report, Dr. Duca notes that the plaintiff is in “moderate distress.” (Tr. 127.) In the next report, Dr. Duca states that the plaintiff is in “moderate distress,” but also requests that the Workers' Compensation Board expedite his request because the plaintiff “is in serious pain.” (Tr. 128.). In the series of reports dated between July 12, 1999 through June 5, 2000, Dr. Duca remarked that the plaintiff was “in severe distress” and was not improving with conservative treatment. (Tr. 127-136). After June 5, 2000, Dr. Duca no longer indicated that the plaintiff was in severe distress or that she not responding to conservative treatment. (Tr. 137-145).
On May 24, 2001, Dr. Duca responded to a questionnaire from the New York State Office of Temporary and Disability Assistance, Division of Disability Determinations regarding the plaintiff's physical condition. (Tr. 115-121.) Dr. Duca reported that he first treated the plaintiff on April 6, 1999, and treated her monthly until the date of her last visit on May 3, 2001. At that time, the plaintiff was 5 feet tall and 190 pounds. Dr. Duca noted his diagnosis as “compression anterior thecal sac”, “central herniate disc L4-5,” and “L5-S1 disc bulge.” The plaintiff's symptoms were pain, decreased range of motion, and intermittent radiculitis in both lower extremities.
*5 Dr. Duca reported that the plaintiff was initially treated with Celebrex, Norflex, and Vicodin, but that she did not improve with the medication. Dr. Duca requested epidural injections from the Workers' Compensation Board, but at that time no injections had been approved.
In Dr. Duca's opinion, the plaintiff had no significant abnormality in her gait. He suggested that the plaintiff was limited to 5-10 pounds in her ability to lift and carry; less than 2 hours per day in her ability to stand and/or walk; less than 6 hours per day in her ability to sit. Also, the plaintiff had limitations in her ability to push and/or pull. Dr. Duca also reported that repetitive leg/foot motions aggravate the plaintiff's lumbar symptoms of pain and decreased range of motion, and extreme temperatures could aggravate this condition.
e. Dr. Kyung Seo
On May 29, 2001, Dr. Kyung Seo, a state agency examiner, examined the plaintiff. (Tr. 146-147.) Dr. Seo stated his opinion that the plaintiff's injury was “probably job-related.” Upon examination, Dr. Seo reported that the plaintiff walked into the examination room without any difficulty; had no problems standing up from a sitting position; had no difficulty getting on and off the examination table; and that her fine motor coordination of both hands was normal.
At this time, the plaintiff weighed 205 pounds and was 4 feet, 9 inches tall. The plaintiff's cervical spine showed normal lordosis. The plaintiff had a normal range of motion and no spasm of the paraspinal muscles. The plaintiff's upper extremities showed normal range of extension of both shoulders. Flexion of both shoulders was 120 degrees, but the plaintiff complained of aching pain of the supraspinatus muscle area. There was no muscular atrophy. The plaintiff's internal and external rotation was normal.
The plaintiff thoracolumbar spine showed mild thoracic kyphosis and increased lumbar lordosis. The plaintiff's forward flexion was 30 degrees, and extension was 0. Lateral rotation and lateral flexion was 15 degrees with mild spasm of the paraspinal muscles of the low back.
The plaintiff showed no muscular atrophy of the thigh or lower leg in both legs. Straight leg raising test was 45 degrees, but the plaintiff complained of back pain and pulling sensation on the posterior surface of the left popliteal area. The plaintiff had a normal range of motion in both hips, and knee joint flexion of 90 degrees. The plaintiff complained of back pain when walking toe-to-toe and heel-to-heel, but was capable. The plaintiff could squat approximately half-way down complaining of back pain. Dr. Seo rated the plaintiff muscle strength in both legs as Grade 5/5.
Dr. Seo's impression was that the plaintiff suffered from “low back derangement, probably disc problem and myofascial pain of both shoulders and arms. Functionally, due to aching pain of both shoulders and low back pain, presently, sitting, standing, bending, lifting and carrying heavy objects is slightly limited.” Dr. Seo's prognosis was “guarded.”
f. Dr. Benjamin Yentel
*6 Dr. Benjamin Yentel examined the plaintiff approximately eleven times during the period between her initial examination on November 27, 2001 and June 18, 2003. (Tr. 165-188.) It is not entirely clear why the plaintiff went to Dr. Yentel, but it appears that Dr. Yentel examined the plaintiff on behalf of the State of New York within the context of her Workers' Compensation proceedings. Also, Dr. Yentel's specialty is not apparent from the administrative record.
At the initial evaluation, Dr. Yentel noted that the plaintiff suffered from muscle spasms of the cervical and lumbosacral spine. (Tr. 188.) The plaintiff's cervical spine was tender to the touch, and the plaintiff's range of motion in this area was “impaired 30% in all parameters.” The plaintiff's right shoulder was tender to the touch and her range of motion in the shoulder was impaired 15% with elevation. The plaintiff's lumbosacral spine was tender to the touch, and her range of motion in this area was “impaired 30% in all parameters.”
Dr. Yentel's impression was that of a “cervical spine sprain/strain,” “S/P right shoulder injury”; and “Lumbosacral spine sprain/strain.” Dr. Yentel's treatment plan included physical therapy three times per week with a program of heat, massage, exercise, ultrasound and electrical stimulation. The doctor's treatment notes for the plaintiff's follow up visits are substantially identical with his notes from the initial evaluation, except for minor variances in the plaintiff's range of motion. The plaintiff continued to complain of pain over the cervical spine, the right shoulder, and the lumbosacral spine radiating to the lower extremities during this time. One notable different aspect of Dr. Yentel's reports is that he began referencing the plaintiff's M.R.I. that revealed a herniated disc and a bulging disc, however he did not note these results until April 16, 2002. (Tr. 182.) Also, after reviewing the M.R.I. result, Dr. Yentel did not immediately change his impression to include a herniated disc and a bulging disc. (Tr. 180.)
On May 6, 2003, Dr. Yentel examined the plaintiff at a follow-up visit. (Tr. 165.) At this visit, Dr. Yentel remarked that the plaintiff's condition worsened from previous visits because of a lack of physical therapy. The plaintiff's physical therapy was discontinued by her insurance company. Dr. Yentel notes that he must insist that physical therapy be reinstated or the plaintiff's condition will worsen further. (Tr. 165.)
The administrative record contains reports that Dr. Yentel periodically provided to the Workers' Compensation Board during the period between November 27, 2001 and June 18, 2003. In these reports Dr. Yentel indicates that the plaintiff suffers from “cervical sprain/strain”; “complex derangement”; and “lumbar sprain/strain .” Dr. Yentel indicates his opinion that the plaintiff is totally disabled.
On September 30, 2003, Dr. Yentel completed a medical assessment form for the plaintiff. (Tr. 190-195.) In that form, Dr. Yentel indicated that he first treated the plaintiff on November 27, 2001; last treated her on May 6, 2003; and that she visited him “3 times weekly.” Dr. Yentel stated his opinion that because of lumbar radiculopathy the plaintiff could stand or walk for approximately 1-2 hours without interruption and sit for 1-2 hours without interruption during an 8 hour workday. Dr. Yentel also opined that the plaintiff could not climb, stoop, kneel, balance, crouch or crawl, handle objects, or push/pull; and should not reach. When asked how many pounds the plaintiff could lift and or carry, Dr. Yentel responded “none.” (Tr. 195.)
g. Dr. David T. Neuman
*7 On March 22, 2004, Dr. David T. Neuman, an orthopedist, examined the plaintiff's shoulder at the request of Dr. Yentel. (Tr. 196-197). Dr. Neuman reported that the plaintiff told him that on the day of her injury in 1998 the pain in her shoulder was “10/10 severity.” At the time of the examination on March 22, 2004, the plaintiff complained of pain of a severity of “9/10.” Dr. Neuman stated that the pain was “sharp,” “constant,” and that it woke the plaintiff from sleep. The plaintiff had swelling, and the problem has gotten worse since it started. The plaintiff also complained that the problem is worsened by standing, walking, lifting, and twisting. Dr. Neuman's assessment was that the plaintiff suffered from bilateral shoulder pain, and bilateral shoulder internal derangement. Dr. Neuman recommended that the plaintiff apply ice to her shoulders at least twice per day; do physical therapy; and continue taking oral anti-inflammatory medications.
3. Medical Expert Testimony
Dr. Theodore Cohen appeared at the plaintiff's hearing at the request of the ALJ and testified as a medical expert. (Tr. 217-222). Significantly, Dr. Cohen never examined the plaintiff, He reviewed the medical records in this case and listened to the plaintiff's testimony at the hearing. In response to questioning by the ALJ, Dr. Cohen testified while the plaintiff does have some pain, he didn't think it was disabling at all. Asked by the ALJ how he would describe the plaintiff's residual functional capacity, Dr. Cohen stated that “she can do light work.” Dr. Cohen also discredited the plaintiff's subjective complaints and the plaintiff's and Dr. Yentel's statements that the plaintiff can only lift approximately one pound.
4. Vocational Expert Testimony
Dr. Fred Siegel appeared at the plaintiff's hearing at the request of the ALJ and testified as a vocational expert. (Tr. 222-226.) In response to questioning by the ALJ, Dr. Seigel testified that the plaintiff's past job as a sewing machine operator is considered “light” work, and that if the ALJ was to find that the plaintiff could do light work, that she could return to her previous work.
Upon cross-examination by the plaintiff's attorney, Dr. Siegel testified that the plaintiff should only have to lift up to, and generally less than, 20 pounds in her job as a sewing machine operator and that the plaintiff had no transferrable skills. Dr. Siegel conceded that if the plaintiff was required to lift 30 pounds at her job as a sewing machine operator, then she couldn't do the “particular single assignment” that required her to lift that much weight, but insisted that wedding dresses, which the plaintiff produced, do not weigh 30 pounds.
C. The ALJ's Decision
The ALJ denied the plaintiff's claim. On February 19, 2004, the ALJ issued a written decision stating his conclusion that, based upon the evidence at the hearing, the plaintiff did not qualify for disability insurance benefits. (Tr. 18-23.) Specifically, the ALJ made the following findings:
*8 1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(j) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
3. The claimant has an impairment or a combination of impairments considered “severe” based on the requirements in the Regulations 20 CFR § 404.1520(b).
4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision.
6. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of the claimant's impairments (20 CFR § 404.1527).
7. The claimant has the following residual functional capacity: the full range of light work.
8. The claimant's past relevant work as a sewing machine operator did not require the performance of work-related activities precluded by her residual functional capacity (20 CFR § 404.1565).
9. The claimant's medically determinable lumbar radiculopathy, cervical pain and shoulder pain do not prevent the claimant from performing her past relevant work.
10. The claimant was not under a “disability” as defined in the Social Security Act, at any time through the date of the decision (20 CFR § 404.1520(e)).
(Tr. 22-23.)
In making this determination, the ALJ did not give controlling weight or even great weight to the opinions of Dr. Duca or Dr. Yentel, who both considered the plaintiff to be totally disabled. According to the AJL, Dr. Duca provided little objective findings to support his conclusions, and his opinion was of limited probative value because it appeared to the ALJ to have been rendered in the context of the plaintiff's Workers' Compensation claim, to which a different standard for disability applies. The ALJ also found Dr. Yentel's opinion of disability unsupported by sufficient objective findings, and that his reported results on physical examination did not rise to the level of a disability. In addition, the ALJ found the opinions of both Dr. Duca and Dr. Yentel to be contrary to the opinions of Dr. Seo, the state agency examiner, and Dr. Cohen, the medical expert, who both found that the plaintiff had slight functional limitations.
Finally, the ALJ found that the plaintiff lacked credibility. The ALJ rejected the plaintiff's testimony that she is unable to speak or read English based on her testimony that she became a United States citizen in 1979, which required her to demonstrate competency in reading, writing, and speaking English. The ALJ also discounted the plaintiff's testimony regarding her symptoms and functional limitations. According to the ALJ, the plaintiff's allegations of pain and restricted mobility were disproportionate to the evidence, specifically considering the results of her M.R.I., her prescribed conservative treatment, the fact that she was not hospitalized, her choice not to undergo surgery, the type and dosage of her medication, and the range of daily living activities she engages in.
II. DISCUSSION
A. As to the Objections to the Magistrate Judge's Order
*9 The plaintiff commenced this action on September 16, 2005. On January 20, 2006, the plaintiff filed a letter motion with United States Magistrate Judge Arlene R. Lindsay seeking an order compelling the defendant to produce “[t]he transcript or tape recording of [Medical Expert] Theodore Cohen's testimony during the hearing of Ajay Prasad, which took place before ALJ Fier on February 24, 2000 and March 6, 2000.” On February 6, 2006, Magistrate Judge Lindsay denied the plaintiff's motion to compel. On February 21, 2006, the plaintiff filed a timely appeal of Magistrate Judge Lindsay's order.
Pre-trial discovery issues are generally considered non-dispositive matters. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990). When considering an appeal of magistrate judge's ruling on a non-dispositive matter, a district judge will modify or set aside any portion of the magistrate's order found to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any [non-dispositive] pretrial matter ... where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.”); Fed.R.Civ.P. Rule 72(a). A finding is clearly erroneous if “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948);United States v. Isiofia, 370 F.3d 226, 232 (2d Cir.2004). An order is contrary to law “when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Catskill Dev., L.L.C. v. Park Place Entrn't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002) (citation omitted).
A party seeking to overturn a discovery order therefore bears a heavy burden. See Com-Tech Assocs. v. Computer Assocs. Int'l, 753 F.Supp. 1078, 1098-99 (E.D.N.Y.1990),aff'd, 938 F.2d 1574 (2d Cir.1991). “Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused.” Universal Acupuncture Pain Servs., P.C. v. State Farm Mut. Auto. Ins. Co., No. 01 CV 7677, 2002 WL 31309232, at *1 (S.D.N.Y. Oct. 15, 2002) (citing Lanzo v. City of New York, No. 96 CV 3242, 1999 WL 1007346, at *2 (E.D.N.Y. Sept. 21, 1999)).
Having reviewed the submissions of the parties, the Court finds no reason to disturb Judge Lindsay's order denying the plaintiff's motion to compel. The crux of the plaintiff's argument is that the ALJ disproportionately used Dr. Cohen as a medical expert, who is himself biased against claimants, and that this over-use of Dr. Cohen is evidence of the ALJ's bias. The Court agrees with Magistrate Judge Lindsay that the plaintiff is not entitled to this discovery because, with reasonable certainty, the transcript fo Dr. Cohen's testimony at an unrelated hearing would not establish that ALJ Fier misuses Dr. Cohen. Information regarding the ALJ's selection of hearing experts would be relevant to the issue of the ALJ's bias. However, the plaintiff did not ask Judge Lindsay to compel the disclosure of this type of evidence. Therefore, the Court finds that the plaintiff failed to satisfy her high burden in overturning a pre-trial discovery order of a Magistrate Judge. Accordingly, Judge Lindsay's order, dated February 6, 2006, is affirmed.
B. As to the ALJ's Determination
*10 In its review of the Commissioner's decision, the Court must determine whether (1) the Commissioner applied the correct legal standard, see Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); and (2) the decision is supported by substantial evidence, see 42 U.S.C. § 405(g);Brown v. Apfel, 174 F.3d 59, 61-62 (2d Cir.1999). Substantial evidence is “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), and requires enough evidence that a reasonable person “might accept as adequate to support a conclusion.” Brown, 174 F.3d at 62-63.
In determining whether the Commissioner's findings are supported by substantial evidence, the Court's task is “to examine the entire record, including contradictory evidence and evidence from which conflicting interferences can be drawn.” Brown, 174 F.3d at 62 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (per curiam)). In addition, the Court is mindful that “it is up to the agency, and not this court, to weigh the conflicting evidence in the record.” Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998). In evaluating the evidence, “ ‘the court may not substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon de novo review.’ “ Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991) (quoting Valente v. Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984)).
Remand of a disability claim for further administrative procedures is an appropriate remedy where, among other matters, (1) “there are gaps in the administrative record or the ALJ has applied an improper legal standard,” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.1999); or (2) new, material evidence is adduced that was not produced before the agency. See Raitport v. Callahan, 183 F.3d 101, 104 (2d Cir.1999) (citation omitted).
C. Availability of Benefits
Federal disability insurance benefits are available to those individuals who are “disabled” within the meaning of the Act. See 42 U.S.C. §§ 423(a), (d). A plaintiff is “disabled” under the Act if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical ormental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d). The impairment must be of “such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Federal regulations set forth a five-step analysis that the Commissioner must follow in evaluating disability claims:
1. The ALJ must consider whether the claimant is currently engaged in substantial gainful activity.
2. If not, the ALJ must consider whether the claimant has a “severe impairment” which limits her mental or physical ability to do basic work activities.
*11 3. If the claimant has a “severe impairment,” the ALJ must ask whether, based solely on medical evidence, that limitation is listed in Appendix 1 of the regulations.
4. If the impairment is not “listed” in the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment.
5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work.
20 C.F.R. §§ 404.1520,416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004);Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) ( citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant's educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983).
In this case, the ALJ adhered to the appropriate five-step analysis. At step one, the ALJ found that the plaintiff had not engaged in gainful activity since December 28, 1998. At steps two and three, the ALJ found that the medical evidence established the plaintiff was severely impaired by her neck, shoulder, and back injury, but that this impairment did not meet or equal the criteria of any impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. At step four, the ALJ found that the plaintiff retained the functional capacity to perform her past relevant work as a sewing machine operator. Because the ALJ was satisfied the plaintiff, despite her impairment, could still perform the light work of sewing machine operator, he did not proceed to the fifth step.
The plaintiff makes two primary arguments why the ALJ's conclusions are incorrect: (1) the ALJ wrongly rejected the opinions of the plaintiff's treating physicians; and (2) the ALJ failed to properly assess the plaintiff's credibility and erred in rejecting her subjective complaints.
D. Analysis
1. The Treating Physician Rule
The Commissioner must accord special evidentiary weight to the opinion of the treating physician.See Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004);Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 119 (2d Cir.1998). The treating physician rule “mandates that the medical opinion of the claimant's treating physician [be] given controlling weight if it is well supported by the medical findings and not inconsistent with other substantial record evidence .”Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000);see 20 C.F.R. § 404.1527(d)(2);Halloran, 362 F.3d at 31;Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002);Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999);Clark, 143 F.3d at 119.
*12 When the Commissioner chooses not to give the treating physician's opinion controlling weight, the Commissioner must “give good reasons in his notice of determination or decision for the weight he gives [the claimant's] treating source's opinion.” Clark, 143 F.3d at 118 (quoting C.F.R. §§ 404.1527(d)(2); 416.927(d)(2)). In his determination of the level of deference to give the treating physician, the ALJ must consider the following factors: (i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant factors, 20 C.F.R. §§ 404.1527(d)(2),416.927(d)(2); see Clark, 143 F.3d at 118. Failure to give good reasons is a ground for remand. Schall v. Apfel, 134 F.3d 496, 503-04 (2d Cir.1998).
The plaintiff identifies Dr. Duca and Dr. Yentel as her treating physicians. The ALJ chose not to afford controlling weight or great weight to either Dr. Duca or Dr. Yentel's opinion that the plaintiff was totally disabled. In the Court's view, it was proper to do so. This is so, even though there is evidence in the administrative record that supports Dr. Duca's and Dr. Yentel's determination of disability. In particular, Dr. Hollis twice recommended to the plaintiff that she have surgery. Also Dr. Neuman reported that the plaintiff's pain was of a severity of “9/10”, and that the pain was constant.
However, this evidence of a disability conflicts with other evidence in the record. Importantly, in the same report that Dr. Duca states that the plaintiff is totally disabled, he also notes that she is in only “moderate distress.” Also, Dr. Neuman recommended a conservative course of treatment for the plaintiff, involving only ice, physical therapy, and oral anti-inflammatory medications. Similarly, Dr. Yentel also prescribed conservative treatment of physical therapy, heat, massage, exercise, and ultrasound. Dr. Seo remarked that the plaintiff was “slightly” limited.
However, having determined that the opinions of Dr. Duca and Dr. Yentel were not entitled to controlling weight, the ALJ should have considered (i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant factors in order to assign appropriate weight to the opinions of these doctors. The defendant concedes that the ALJ failed to discuss these factors. Although the ALJ should “comprehensively” set forth the reasons for the weight assigned to a treating physician's opinion, the failure to do so does not require remand if it can be ascertained from the entire record and the AJL's opinion that the ALJ “applied the substance” of the treating physician rule.Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir.2004);Van Dien v. Barnhart, No. 04 Civ. 7259(PKC), 2006 WL 785281, at *14 (S.D.N.Y. Mar. 24, 2006).
*13 The Court has considered the entire record and the ALJ's decision and concludes that it cannot state affirmatively that the ALJ “applied the substance” of the treating physician rule in this case. It appears that the ALJ's rejection of Dr. Duca's opinion was based on an incomplete understanding of the length, nature, and extent of his treatment of the plaintiff. The ALJ's entire discussion regarding Dr. Duca is as follows:
Dr. Robert Duca first treated the claimant in April 1999 for a central L4-5 disc herniation and an L5-S1 disc bulge. Her symptoms included intermittent radiculitis to both extremities. Despite a very limited physical examination he declared the claimant to be disabled (Exhibit 1F).
...
In this case Dr. Duca ... opined that the claimant is disabled. [This opinion] is [in]sufficiently supported by objective evidence of record. Dr. Duca has provided little by way of objective findings in support of his conclusion. His physical examination was cursory at best and does not provide evidence sufficient to support his conclusion. It also appears to have been rendered in the context of the claimant's Workers' Compensation claim. Workers' Compensation has a separate standard for disability than does the Social Security Act. Dr. Duca's opinion thus has limited, if any probative value.
(Tr. 21-22.)
The exhibit that the ALJ referred to, “Exhibit 1F”, is the questionnaire that Dr. Duca submitted to the New York State Office of Temporary and Disability Assistance Division of Disability Determinations. (Tr. 115-121.) This questionnaire does state that Dr. Duca first saw the plaintiff on April 6, 1999. However, the ALJ failed to mention that Dr. Duca indicated in the questionnaire that he also treated the plaintiff on a monthly basis through May 3, 2001. This treatment consisted of at least seventeen other office visits. The fact that Dr. Duca treated the plaintiff on many occasions during the relevant period is corroborated by the billing forms that Dr. Duca submitted to the Workers' Compensation Board. (Tr. 127-145.) Dr. Yentel also examined the plaintiff on numerous occasions. The ALJ rejected the opinions of these doctors, who saw the plaintiff repeatedly over a period of time, in favor of the opinion of one doctor who never examined the plaintiff and saw her for the first time on the day of the administrative hearing.
Under the regulations, the ALJ has an affirmative obligation to develop the administrative record. Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996);Echevarria v. Secretary of Health & Human Servs ., 685 F.2d 751, 755 (2d Cir.1982). The regulations describe this duty by stating that, “[b]efore we make a determination that you are not disabled, we will develop your complete medical history ... [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.” 20 C.F.R. § 404.1512(d). The Court finds that the ALJ failed to satisfy his duty of developing the record in this case. If the ALJ believed that Dr. Duca's examination of the plaintiff in May, 2001 to be “cursory,” he should have requested medical records from Dr. Duca when it was apparent that the available records in the case were sparse in this regard. See 20 C.F.R. § 404.1512(f). The ALJ also could have solicited additional information from Dr. Yentel, who also examined the plaintiff many times and would presumably have a good understanding of the plaintiff's condition.
*14 For the reasons stated above, the Court finds that the ALJ failed to give good reasons for his determination regarding the weight to be afforded to the opinion of Dr. Duca and Dr. Yentel and therefore violated the treating physician rule. Accordingly, remand is appropriate.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the Commissioner's motion pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings is DENIED, and it is further
ORDERED, that the plaintiff's motion for judgment on the pleadings is GRANTED; and it is further
ORDERED, that the final decision of the Commissioner is vacated and this case is remanded to the Commissioner pursuant to the sixth sentence of 42 U.S.C. § 405(g), for further administrative proceedings in accordance with this Memorandum of Decision and Order; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
SO ORDERED.
E.D.N.Y.,2007.
Botta v. Barnhart
--- F.Supp.2d ----, 2007 WL 486730 (E.D.N.Y.)
Thursday, February 15, 2007
Biased ALJ
Attorneys who practice Social Security Disability law on a regular basis know which Administrative Law Judges (“ALJ’s) routinely deny claims that other ALJs would approve. I took over a case involving such an ALJ when it had to be appealed to federal court. That ALJ had his preferred doctor serve as hearing expert at the claimant’s hearing because the ALJ knew that doctor was also biased against disability claimants.
Yesterday, the district court vacated the ALJ’s decision. The Social Security Administration (the “SSA”) requires that hearing experts be randomly selected in rotation. I argued that discovery regarding the ALJ’s general bias was needed based on the ALJ’s misuse of his pet doctor.
The federal court denied the SSA’s motion to affirm the ALJ’s decision. In remanding the case, the federal court ruled that, “Information regarding the ALJ’s selection of hearing experts would be relevant to the issue of the ALJ’s bias.”
You cannot prevent your case from being assigned to a biased ALJ. If you wind up with an unfortunate assignment, you must take every possible step to present the best possible case because the odds are that you will need to establish bases for appeal to federal court. Make sure that you understand not only the administrative errors, but also the legal and litigations issues for appeal.
Yesterday, the district court vacated the ALJ’s decision. The Social Security Administration (the “SSA”) requires that hearing experts be randomly selected in rotation. I argued that discovery regarding the ALJ’s general bias was needed based on the ALJ’s misuse of his pet doctor.
The federal court denied the SSA’s motion to affirm the ALJ’s decision. In remanding the case, the federal court ruled that, “Information regarding the ALJ’s selection of hearing experts would be relevant to the issue of the ALJ’s bias.”
You cannot prevent your case from being assigned to a biased ALJ. If you wind up with an unfortunate assignment, you must take every possible step to present the best possible case because the odds are that you will need to establish bases for appeal to federal court. Make sure that you understand not only the administrative errors, but also the legal and litigations issues for appeal.
Tuesday, February 13, 2007
The Law Offices of Jeffrey Delott Disability Law Archive
The following content is an archive from my old blog:
Fast SSD Hearing
One of the biggest problems with the Social Security Disability process is the amount of time it takes. The initial determination usually takes about 6 months. The decision is made by a disability analyst who is not a doctor and who ignores what the treating doctor says, so the decision is normally unfavorable. The next step here after a denial is waiting for a hearing before an administrative law judge. Unfortunately, according to government statistics, the wait for a hearing is usually about 1 1/2 to 2 years. Nonetheless, I have been able to take steps to shorten the wait for a hearing
When a client of mine has been scheduled for a hearing, and a request for on the record decision has been rejected, I institute Congressional Inquiries. The grounds for an inquiry vary, but it seems to be the one mechanism that hearing offices recognize for expediting a hearing.
Yesterday, I had a hearing for client who could no longer work because of Chronic Fatigue Syndrome and Fibromyalgia. Because I commenced a Congressional Inquiry, the hearing was scheduled only a couple of months after the initial denial. Moreover, the judge approved the application on the record during the hearing and issued a Bench Decision. Typically, even if a judge tells a claimant that the application will be approved, it may still take months to get a written decision. The Bench Decision avoids that delay.
UNUM Reassessment
I just resolved another reassessment case. I have found that the key to a reassessment case is usually focusing on the Social Security Disability ("SSD") award. The Regulatory Settlement that covers the reassessment requires that substantial weight be given to the Administration's decision, the effect of which is to effectively level the playing field. This case was tough because it involved a closed period of time, during which the claimant never applied for SSD benefits. Despite the fact that this case was being reassessed, Unum's actions seemed just as partial as a typical group disability claim subject to ERISA. After aggressively attacking the inadequacy of the information Unum disclosed regarding its review, and its transparently slanted review of the medical evidence, the matter was transferred to another representative. The new representative promptly and earnestly discussed resolving the claim. It could be that Unum's strategy is to continue to assume a hard line stance to avoid liability on reassessed claims, until confronted with someone who obviously is familiar with handling Unum or long term disability claims.
I just resolved another reassessment case. I have found that the key to a reassessment case is usually focusing on the Social Security Disability ("SSD") award. The Regulatory Settlement that governs the reassessment requires that substantial weight be given to the Administration's decision, the effect of which is effectively to level the playing field. This case was tough because it involved a closed period of time, during which the claimant never applied for SSD benefits. Despite the fact that this case was being reassessed, Unum's actions seemed just as partial as a typical group disability claim subject to ERISA. After aggressively attacking the inadequacy of the information Unum disclosed regarding its review, and its transparently slanted review of the medical evidence, the matter was transferred to another representative. The new representative promptly and earnestly discussed resolving the claim. It could be that Unum's strategy is to continue to assume a hard line stance to avoid liability on reassessed claims, until confronted with someone who obviously is familiar with handling Unum or long term disability claims.
Obtaining SSD Benefits Without A Hearing
The government’s own statistics show that the majority of Social Security Disability (“SSD”) claims are denied, and then the claimant has to wait two years before his or her appeal is heard by have to be appealed. The younger the claimant, the more likely the claim will be denied, especially when a person is younger than 50 years old. Also, claims that are based upon medical impairments that cannot be established by a laboratory test, such as Chronic Fatigue Syndrome or emotional conditions, are more likely to be denied.
Based on these statistics, it would seem very unlikely that a 43 year old claimant who stopped working due to anxiety would have his application for SSD benefits approved and receive his first check in only six months. However, that is precisely what happened this week. The claimant’s condition does not require institutionalization. Therefore, the question arises, how did I get his application approved so quickly?
The claimant had difficulty with new supervisors and tasks at work. The stress from deteriorating performance exacerbated his anxiety to the point where he had anxiety attacks that prevented him from going to work, and he became agoraphobic. Since the claimant was only treating with a psychiatrist, I sent him for treatment to clinical psychologist. I then submitted not only a narrative report from the psychologist, but also submitted reports from both the psychiatrist and psychologist evaluating the claimant’s mental functionality. While each of those treating sources concluded the claimant’s condition precluding him from returning to work, those reports primarily indicated that the claimant had moderate limitations. That being the case, how was I able to get this claim approved so quickly?
After personally interviewing the claimant at length, I learned that he had Crohn’s Disease or ulcerative colitis, which was being aggravated by his emotional condition. I referred the claimant to a rheumatologist because they are the specialists who deal with inflammatory diseases such as Crohn’s Disease. The rheumatologist, who diagnosed the claimant with osteoporosis as well as Crohn’s Disease, concluded that the claimant is limited to sitting for 1 hour, and standing/walking for 0 to 1 hour, in an 8 hour day. Furthermore, Dr. Stein concluded that the claimant is limited to lifting as well as carrying only 5 pounds on an occasional basis.
I have had many other cases with reports of mental impairments that were as severe as this claimant’s, yet benefits were denied. Similarly, I have had many other cases with reports of physical impairments that were as severe as this claimant’s, yet benefits were denied. Thus, it apparently was the combination of the claimant’s mental and physical impairments that was deemed so severe that the application was approved in such a short time. The lesson here is that so long as a case if thoroughly investigated and prepared, even cases that typically seem destined for denial can be approved quickly.
Fast SSD Hearing
One of the biggest problems with the Social Security Disability process is the amount of time it takes. The initial determination usually takes about 6 months. The decision is made by a disability analyst who is not a doctor and who ignores what the treating doctor says, so the decision is normally unfavorable. The next step here after a denial is waiting for a hearing before an administrative law judge. Unfortunately, according to government statistics, the wait for a hearing is usually about 1 1/2 to 2 years. Nonetheless, I have been able to take steps to shorten the wait for a hearing.
When a client of mine has been scheduled for a hearing, and a request for on the record decision has been rejected, I institute Congressional Inquiries. The grounds for an inquiry vary, but it seems to be the one mechanism that hearing offices recognize for expediting a hearing.
Yesterday, I had a hearing for client who could no longer work because of Chronic Fatigue Syndrome and Fibromyalgia.
Because I commenced a Congressional Inquiry, the hearing was scheduled only a couple of months after the initial denial Moreover, the judge approved the application on the record during the hearing and issued a Bench Decision.
Typically, even if a judge tells a claimant that the application will be approved, it may still take months to get a written decision. The Bench Decision avoids that delay
SSD Seminar
I was a keynote speaker at a National Business Institute seminar entitled Handling A Social security Disability Case. My focus was discussing tactics for succeeding at the hearing level and also how to avoid ethical problems in a disability practice. In short, I said that my approach is to handle Social Security matters from the outset as if they are fully litigated federal court actions issues, even though in theory the disability process is supposed to be a non-adversarial and administrative one.
Being thorough and aggressively pushing claims to approval as fast as possible not only is the goal for succeeding at any level of review, but it also helps ensure that claimant’s interests are best served.
A client’s SSD case was approved today on the record, meaning that I won his case without having to wait for a hearing, which would not have taken place for about two years. That achievement was especially fortuitous for the claimant because he first came to see me after his application had already been denied.
The claimant’s situation was a classic one. The claimant, who was an electrician, had knee problems. He submitted his treatment records from his treating orthopedist, yet the claim was denied based upon the strength of the exam by a Social Security doctor and the SSA disability examiner.
I did several things to get the application approved. First, I got the treating doctor to provide a functionality assessment based upon his treatment records, which showed that the claimant lacked the ability to perform even sedentary work. Second, I sent the claimant to a board certified orthopedist for a comprehensive disability evaluation. That examination corroborated the findings of the treating orthopedist. Third, I investigated the qualifications of the Social Security doctor and learned that her field of medicine is emergency medicine, not orthopedics. Finally, my review of the Social Security file revealed that the Social Security disability assessment was completed by a disability analyst, who was not a doctor, in violation of the agency’s own rules.
Armed with the additional positive evidence I filed papers arguing that it was unnecessary to wait for a hearing before the new evidence required approval of benefits. The treating doctor’s functionality assessment and the other orthopedist’s comprehensive evaluation showed that the claimant could not return to work as an electrician nor perform any other type of work. Since the Social Security doctor lacked the proper qualifications to evaluate the claimant and the disability analysts was not a doctor, there was no evidence to contradict the evidence I submitted. The hearing agreed and the application was approved at least a year and half before a hearing would even have been scheduled.
LTD Approval Without Attorney Fee
Yesterday, I was advised by Hartford that they approved the LTD claim of one of my clients. I invested a substantial amount of time and effort over several months to get her application approved, and was able to do so without having to appeal. Consequently, my client received her LTD benefits just as her salary extension was ending. The result is that there was no retroactive benefit to pay an attorney fee.
Because of the possibility of receiving little or no fee, many attorneys won't represent a claimant until their claim has been denied, which I feel is ethically questionable. A case should not be rejected for fear of receiving a minimal fee. At worst, a satisfied claimant becomes a referral source for other potential clients.
Be Wary of Alleged Overpayments
Many people become terrified when the Social Security Administration (the “SSA”) tells them that they owe thousands of dollars because they supposedly received disability benefits improperly. Don’t panic. There are many reasons why you may not be responsible for repaying any money.
The SSA may be under the misimpression that certain income that was reported to the IRS reflects your work activity. You may not owe any money because the income at issue may be attributable to another person or family member, or may represent passive income, such as rent or dividends. For example, even Donald Trump would be able to collect disability benefits if he could no longer work.
There are also vocational various concepts, such as trial work periods, unsuccessful work attempts and substantial gainful activity that may bar an overpayment even if you were working. I just received a decision today that illustrates this point.
A claimant came to me after she was accused of receiving an overpayment in excess of $10,000 because around the same time that her application for benefits was approved she resumed working on and off. I was able to show that many of her jobs constituted unsuccessful work attempts, including one that lasted nearly 6 months. Additionally, I convinced the SSA to approve 9 months of trial work period benefits, despite the fact that the claimant resumed working less than one year from the onset date of her application. The end result that the claimant’s overpayment was completely erased AND the SSA found that she was also entitled to some back benefits.
This type of Social Security case requires a thorough understanding of the vocational law so make sure that your attorney has specific experience in this area.
Watch Your Onset Date
The Social Security Administration (the “SSA”) does not like approving claims, as evidenced by the fact that 60-70% of applications are denied initially. As for the other 30-40%, one of the SSA’s favorite ploys is to issue a partially favorable decision that approves benefits, but only as of date after the disability began. Don’t accept a decision that arbitrarily reduces your benefits.
One of my client’s became disabled in February 2004. However, the SSA found him disabled as of July 27, 2005, even though no medical evidence concerned that time period. On the other hand, there were two treating specialists whose medical records showed the client could not even do sedentary work.
I convinced the claimant to appeal the partially favorable decision. On appeal, I submitted reports from the two specialists explaining the reasons for their opinion why the claimant became disabled in February 2004. I emphasized the claimant’s long, 40 year work history to show that the claimant would work if he could. The SSA approved the February 2004 onset date without a hearing based on the claimant’s impressive work history. Do not be afraid to appeal an arbitrary onset date. Make sure you completely understand a decision before you decide to accept it.
Court Remands Case as the SSA Violated Its Own Rules
The final resort for a person whose Social Security Disability (“SSD”) claim has been denied is federal district court. I took over an SSD claim from another attorney when it came time to file a lawsuit in federal court. I persuaded the judge to remand the matter to the Social Security Administration (“SSA”) for further review. A remand is not unusual. However, the particular basis for this remand is noteworthy.
The Administrative Law Judge (“ALJ”) from the SSA had rejected the treating doctor’s opinion. Instead, the ALJ relied on the medical assessment from the state agency that evaluates claimants for the SSA. My investigation revealed that the medical assessment was in fact prepared by a disability analyst, not a physician as required by the SSA’s own rules. The district court agreed that the ALJ’s reliance on the state medical assessment was improper, and today's remand order advised the ALJ about the error.
While the rules require the state agency assessment to be prepared and signed by a physician, it has become increasingly rare for physicians to do so. Always make sure to review the state agency assessment and every other piece of evidence in the claim file before a hearing as well as when filing papers in federal court.
Disability For Postal Worker
Many people forfeit disability benefits either because they are unaware of potential benefits or because they mistakenly believe that they are not entitled to them. I received a decision approving Social Security Disability (“SSD”) benefits yesterday for a postal carrier today that illustrates this point. A 48 year old mail carrier who was injured in a car accident reluctantly came to see me after his personal injury attorney referred him. The mailman was reluctant because he was already receiving disability benefits under the Federal Employee Retirement System also known as FERS. He thought that he was not allowed to receive benefits under both SSD and FERS. The standard for receiving disability retirement benefits under FERS frequently requires proving only that you are disabled from your last position. The standard for receiving SSD benefits usually requires proving that you are disabled any position. While the SSD standard may be tougher than the FERS standard, receipt of one does not bar receipt of the other. A treating physiatrist supported the SSD application by concluding the postal carrier could not work. On my advice, the claimant began treatment with an arthritis specialist, who concurred and concluded the claimant could not perform any type of work. Because the claimant had disability opinions from multiple medical specialists his application was for SSD approved without a hearing. If you cannot work, it makes sense to consult with an attorney about all of your rights. When inquiring about potential disability benefits, make sure the attorney is familiar with the various sources for benefits.
Successful Mental Impairment Claims
Last week I received two SSD approvals without a hearing. What’s interesting about those cases is that they took different paths to approval.
The first case involved a bi-polar disorder. There claimant had been seeing a psychiatrist for medical treatment, but had stopped seeing a therapist. I sent the claimant for a comprehensive psychological evaluation. That status exam disclosed the claimant’s current mental findings. I was able to use the psychologist’s findings and conclusions to show that the claimant lacked the ability to perform the basic mental demands of unskilled work. According to the Social Security Administration’s Program Operations Manual System (“POMS”), if a claimant has a substantial loss of ability to meet any of the basic mental demands specified in the POMS, then it justifies a finding that the claimant is unable to work. The request for a fully favorable on the record decision was approved in two weeks.
The second case involved a schizophrenia disorder. The claimant had been seeing a psychiatrist who submitted a very short note stating that the claimant was unable to work. I asked the psychiatrist to complete a report that would assess the claimant’s mental functionality. Because the psychiatrist’s conclusions indicated that the claimant was very severely affected by the disorder, I asked him to detail whether the claimant met listing 12.03. If a claimant meets the criteria of a ”Listing”, then the claimant is considered presumptively disabled and entitled to receive disability benefits. The psychiatrist confirmed that the claimant did in fact meet the listing, and the request for a fully favorable on the record decision was approved in less than two months.
Many people have the misconception that a person with solely mental impairments will rarely succeed in obtaining benefits. These cases show that misconception wrong. In fact, these cases serve to illustrate that when the claim is properly developed and presented, that a claimant can secure benefits without even having to wait years for a hearing.
Why Good Is Not Good Enough
When applying for SSD benefits, the goal should not simply be obtaining benefits. Rather, the goal should be obtaining benefits as quickly as possible. Since attorneys get paid 25% of the retroactive benefits in an SSD case, the sooner you get your benefits, the less you have to pay your attorney. An application was approved today that illustrates this point.
The claimant suffers from Parkinson's. Claims involving neurological disorders like Parkinson's and Multiple Sclerosis are difficult cases to win because claimants go into remission, and diagnoses and treatment frequently are murky. Under the Social Security law, as long as a treating physician’s disability opinion is well supported and uncontradicted, SSD benefits should be approved. Nonetheless, most claims, and Parkinson's claims in particular, are usually denied initially.
I was able to get a very supportive report from one of the claimant’s treating neurologists. Nonetheless, I did not rest there. The claimant was also treating with a second neurologist, from whom I was also able to obtain a very supportive report. Each report was submitted together with actual treatment records. The claimant’s application was approved in only four months. Based on my conversations with the disability analyst reviewing the claimant’s application, the rapid approval was due to the fact that the claimant submitted not one, but two very good reports from her treating specialists.
Simply put, it pays to make sure that your attorney has a record of aggressively securing benefits at the earliest point in time. If the claim had been denied initially, then the claimant would have owed 25% of each month’s benefit as an attorney fee until the application were finally approved.
Retaining A Vocational Expert
Many claimants and their attorneys overlook the importance of vocational evidence, and focus solely on the medical evidence. That can be a critical mistake, as illustrated in a Social Security claim that was approved today.
The claimant 56 years old and had a limited 8th grade education. The only relevant job the claimant had was that of a jewelry polisher, which is a sedentary occupation. His primary problem was his inability to use his hands. Testing revealed chronic and bilateral median neuropathy of the wrists and bilateral ulnar neuropathy of the elbows. The treating doctor said that the claimant’s loss of sensation and pain in both hands would be aggravated if the claimant resumed working, and he concluded that the claimant could not lift or carry more than 5 pounds. The problem was that there was no diagnostic evidence relating to the claimant’s ability to sit.
I directed the claimant to a vocational expert, who submitted a report concluding the claimant could not perform his past relevant work. More importantly, the vocational expert explained that the claimant’s lack of bilateral manual dexterity precluded him from performing any unskilled sedentary work. Consequently, even though there was no diagnostic evidence showing that the claimant had a condition that could limit his ability to sit, he was found totally disabled from any type of substantial gainful activity.
Combined Effect of Ailments
Sometimes people do not consider filing for disability benefits because while they may have many problems, no single one is very serious. That would be a mistake. In fact, even if you applied for benefits, and were denied on the grounds that no one condition is severe enough to be disabling, that still should not deter you from you appealing.
I have a 45 year old, college educated client who had been diagnosed with bronchitis, fibromyalgia, chest pain, bilateral carpal tunnel syndrome, cervical spine radiculopathy and lupus. She applied for Social Security Disability (“SSD”) benefits and benefits under a Disability Insurance Policy (“DI”). While the application for DI benefits is pending on a technical issue, the SSD application had been denied on the grounds that there was no condition that is disabling.
The claimant’s symptoms were insomnia, chronic coughing, dizziness, arthralgias, bilateral arm pain, neck pain, fatigue, stress, left hand numbness, and resultant depressed mood from her various ailments. I conceded that none of the claimant’s problems were individually disabling, but I argued that the combined effect of all of the claimant’s problems eliminated virtually any available job. The judge agreed and the claimant was awarded over two years of retroactive benefits, in addition to monthly benefits going forward.
If you stop working before retirement age for any medical reason, consult with an attorney whose practice is limited to disability law. You may have a right to receive disability benefits without realizing it.
Don’t Be Bullied
Most disability claims are denied initially. Even the statistics from the Social Security Administration (the “SSA”) show that the majority of people who apply for Social Security Disability (“SSD”) are denied initially, and the percentage is significantly higher for claimants who are not represented by an attorney.
An experienced disability attorney knows what type of evidence to submit and arguments to make that increase the chances of an initial approval.
When the SSA is confronted with evidence that overwhelmingly supports a claimant’s application, it frequently approves benefits, but only as of a date later than the claimant requested. The SSA selects an arbitrary onset date in order to reduce the amount of benefits the claimant may receive. When the SSA issues a partially favorable decision, you need to appeal it.
A claimant who just received a partially favorable decision was afraid to appeal the onset date of his disability because the decision indicated that the appealed decision could be unfavorable. That fear is unfounded. While it is possible that an onset appeal could be totally denied at the hearing level, that situation is effectively reserved for situations where evidence of work or fraud comes to light. At the hearing level, the onset date the claimant put in the application is usually approved because greater weight is given to the opinion of the treating doctor, which is normally ignored at the initial level.
Failing to appeal an arbitrary onset date is throwing away money that you are entitled to receive. Before being satisfied with a partially favorable decision, discuss the matter with an attorney who can advise you what is at stake. For example, an earlier onset date could immediately entitle you to Medicare, which you may have to wait for if you received a partially favorable decision.
Don’t Believe Everything You’re Told
Just because judges have denied your applications for Social Security disability benefits doesn’t prove that you are not entitled to receive them. I received a decision approving a client’s application yesterday even though her applications had already been denied twice before she retained me. This time, the judge approved her application without even a hearing. The difference this time was that the claimant did not rely on the Social Security Administration (the “SSA”) to collect the medical evidence for her. I had the claimant get medical reports assessing her to work ability from three doctors, including the pain management specialist who had been treating her for only a year. I was able to get that doctor to give an opinion that the claimant lacked the ability to work even before he started treating the claimant. That retrospective opinion was critical to the claimant obtaining her benefits.
The SSA had not requested any medical evidence from the pain management specialist even though the SSA knew about the treatment. The claimant had been told that the pain management doctor was unimportant because he began treating well after the date the claimant asserted she became disabled. Before you consider giving up potential disability benefits make sure you understand all the facts, and don’t accept what the SSA tells you.
NYCERS and SSD
The key to establishing a claimant’s inability to work and entitlement to benefits is usually demonstrating the severity of the medical conditions at issue. One of the keys to establishing the severity of a medical condition is obtaining opinions from the treating doctors regarding the claimant’s functional capacity. Showing that a claimant lacks the functional capacity to perform relevant work is at the core of most disability claims.
I represent a claimant seeking disability benefits from the New York City Employees’ Retirement System (“NYCERS”) and the Social Security Administration (“SSA”). The disability programs may have different standards, but each still shares the fundamental requirement of medical proof regarding the inability to work.
I secured functional capacity assessments from four of the claimant’s treating physicians for submission to the SSA. NYCERS provided a form for the claimant to have one of her doctors complete. However, after submitting that form, NYCERS informally advised the claimant that her application would be denied. Before receiving an official denial of her NYCERS claim, I submitted the functional capacity assessments from the claimant’s four treating physicians. NYCERS officially approved the claimant’s application today.
It makes sense to consider all medical in connection with a disability claim regardless of what may be minimally required. If you have disability claims with different attorneys, such as a workers compensation attorney and a long term disability attorney, make sure each receives the medical records in the other’s possession. Similarly, if you also have a personal injury claim, make sure your disability attorney has all the medical records that your personal injury attorney has.
Tough Cases Can Be Won
Many of my clients have been told by other people not to bother applying for Social Security Disability (“SSD”) benefits before they turn 50 or 55. While it may be difficult to get SSD benefits approved if you are a younger person, or a person who has a college education, that does not mean that you should wait to file for them.
A college education engineer in his early 40s came to me after his SSD application was denied. He had been told that because he was considered young his chances of getting SSD were little to none. The claimant was surprised because he had submitted medical records evidencing his spine surgery and impaired immune system. I submitted opinion evidence from several treating sources regarding the severity of those impairments. The claimant’s application was approved on the record, without having to wait for a hearing.
If a case is prepared properly, a younger person can obtain SSD benefits, and may be able to do so even without needing to attend a hearing. When it comes to your claim do not rely on generalities; rather, consult with an experienced disability attorney.
Appealing A Partially Favorable Decision
When faced the State Agency handling claims for the Social Security Administration (the “SSA”) is faced with such overwhelming medical evidence that it simply cannot deny an application, it frequently issues a “partially favorable decision” a (“PFD”). A PFD approves benefits, but only after the date the claimant alleges disability, which reduces the amount of benefits awarded.
Claimants frequently are afraid to appeal a PFD because they fear the SSA will decide that no benefits at all should be awarded. Under normal circumstances, a PFD is not overturned in favor of a complete denial of benefits. To the contrary, my appeals of PFDs have resulted in the SSA awarding fully favorable decisions.
I was finally able to convince a client to pursue an onset appeal. A substantial five figure sum was at stake. The client’s internist deferred to the claimant’s arthritis specialist for assessing the claimant’s functionality, who had only been treating the claimant for about a year. The specialist concluded that the claimant had a less than sedentary work capacity. Because the arthritic conditions are progressive in nature, the specialist was able to extrapolate an onset date well before his started treating the claimant.
The SSA accepted the specialist’s opinion, and I received the fully favorable decision today. If you become disabled and the medical evidence supports your onset date, don’t compromise your benefits for fear of the SSA issuing an unfavorable decision.
Fast SSD Hearing
One of the biggest problems with the Social Security Disability process is the amount of time it takes. The initial determination usually takes about 6 months. The decision is made by a disability analyst who is not a doctor and who ignores what the treating doctor says, so the decision is normally unfavorable. The next step here after a denial is waiting for a hearing before an administrative law judge. Unfortunately, according to government statistics, the wait for a hearing is usually about 1 1/2 to 2 years. Nonetheless, I have been able to take steps to shorten the wait for a hearing
When a client of mine has been scheduled for a hearing, and a request for on the record decision has been rejected, I institute Congressional Inquiries. The grounds for an inquiry vary, but it seems to be the one mechanism that hearing offices recognize for expediting a hearing.
Yesterday, I had a hearing for client who could no longer work because of Chronic Fatigue Syndrome and Fibromyalgia. Because I commenced a Congressional Inquiry, the hearing was scheduled only a couple of months after the initial denial. Moreover, the judge approved the application on the record during the hearing and issued a Bench Decision. Typically, even if a judge tells a claimant that the application will be approved, it may still take months to get a written decision. The Bench Decision avoids that delay.
UNUM Reassessment
I just resolved another reassessment case. I have found that the key to a reassessment case is usually focusing on the Social Security Disability ("SSD") award. The Regulatory Settlement that covers the reassessment requires that substantial weight be given to the Administration's decision, the effect of which is to effectively level the playing field. This case was tough because it involved a closed period of time, during which the claimant never applied for SSD benefits. Despite the fact that this case was being reassessed, Unum's actions seemed just as partial as a typical group disability claim subject to ERISA. After aggressively attacking the inadequacy of the information Unum disclosed regarding its review, and its transparently slanted review of the medical evidence, the matter was transferred to another representative. The new representative promptly and earnestly discussed resolving the claim. It could be that Unum's strategy is to continue to assume a hard line stance to avoid liability on reassessed claims, until confronted with someone who obviously is familiar with handling Unum or long term disability claims.
I just resolved another reassessment case. I have found that the key to a reassessment case is usually focusing on the Social Security Disability ("SSD") award. The Regulatory Settlement that governs the reassessment requires that substantial weight be given to the Administration's decision, the effect of which is effectively to level the playing field. This case was tough because it involved a closed period of time, during which the claimant never applied for SSD benefits. Despite the fact that this case was being reassessed, Unum's actions seemed just as partial as a typical group disability claim subject to ERISA. After aggressively attacking the inadequacy of the information Unum disclosed regarding its review, and its transparently slanted review of the medical evidence, the matter was transferred to another representative. The new representative promptly and earnestly discussed resolving the claim. It could be that Unum's strategy is to continue to assume a hard line stance to avoid liability on reassessed claims, until confronted with someone who obviously is familiar with handling Unum or long term disability claims.
Obtaining SSD Benefits Without A Hearing
The government’s own statistics show that the majority of Social Security Disability (“SSD”) claims are denied, and then the claimant has to wait two years before his or her appeal is heard by have to be appealed. The younger the claimant, the more likely the claim will be denied, especially when a person is younger than 50 years old. Also, claims that are based upon medical impairments that cannot be established by a laboratory test, such as Chronic Fatigue Syndrome or emotional conditions, are more likely to be denied.
Based on these statistics, it would seem very unlikely that a 43 year old claimant who stopped working due to anxiety would have his application for SSD benefits approved and receive his first check in only six months. However, that is precisely what happened this week. The claimant’s condition does not require institutionalization. Therefore, the question arises, how did I get his application approved so quickly?
The claimant had difficulty with new supervisors and tasks at work. The stress from deteriorating performance exacerbated his anxiety to the point where he had anxiety attacks that prevented him from going to work, and he became agoraphobic. Since the claimant was only treating with a psychiatrist, I sent him for treatment to clinical psychologist. I then submitted not only a narrative report from the psychologist, but also submitted reports from both the psychiatrist and psychologist evaluating the claimant’s mental functionality. While each of those treating sources concluded the claimant’s condition precluding him from returning to work, those reports primarily indicated that the claimant had moderate limitations. That being the case, how was I able to get this claim approved so quickly?
After personally interviewing the claimant at length, I learned that he had Crohn’s Disease or ulcerative colitis, which was being aggravated by his emotional condition. I referred the claimant to a rheumatologist because they are the specialists who deal with inflammatory diseases such as Crohn’s Disease. The rheumatologist, who diagnosed the claimant with osteoporosis as well as Crohn’s Disease, concluded that the claimant is limited to sitting for 1 hour, and standing/walking for 0 to 1 hour, in an 8 hour day. Furthermore, Dr. Stein concluded that the claimant is limited to lifting as well as carrying only 5 pounds on an occasional basis.
I have had many other cases with reports of mental impairments that were as severe as this claimant’s, yet benefits were denied. Similarly, I have had many other cases with reports of physical impairments that were as severe as this claimant’s, yet benefits were denied. Thus, it apparently was the combination of the claimant’s mental and physical impairments that was deemed so severe that the application was approved in such a short time. The lesson here is that so long as a case if thoroughly investigated and prepared, even cases that typically seem destined for denial can be approved quickly.
Fast SSD Hearing
One of the biggest problems with the Social Security Disability process is the amount of time it takes. The initial determination usually takes about 6 months. The decision is made by a disability analyst who is not a doctor and who ignores what the treating doctor says, so the decision is normally unfavorable. The next step here after a denial is waiting for a hearing before an administrative law judge. Unfortunately, according to government statistics, the wait for a hearing is usually about 1 1/2 to 2 years. Nonetheless, I have been able to take steps to shorten the wait for a hearing.
When a client of mine has been scheduled for a hearing, and a request for on the record decision has been rejected, I institute Congressional Inquiries. The grounds for an inquiry vary, but it seems to be the one mechanism that hearing offices recognize for expediting a hearing.
Yesterday, I had a hearing for client who could no longer work because of Chronic Fatigue Syndrome and Fibromyalgia.
Because I commenced a Congressional Inquiry, the hearing was scheduled only a couple of months after the initial denial Moreover, the judge approved the application on the record during the hearing and issued a Bench Decision.
Typically, even if a judge tells a claimant that the application will be approved, it may still take months to get a written decision. The Bench Decision avoids that delay
SSD Seminar
I was a keynote speaker at a National Business Institute seminar entitled Handling A Social security Disability Case. My focus was discussing tactics for succeeding at the hearing level and also how to avoid ethical problems in a disability practice. In short, I said that my approach is to handle Social Security matters from the outset as if they are fully litigated federal court actions issues, even though in theory the disability process is supposed to be a non-adversarial and administrative one.
Being thorough and aggressively pushing claims to approval as fast as possible not only is the goal for succeeding at any level of review, but it also helps ensure that claimant’s interests are best served.
A client’s SSD case was approved today on the record, meaning that I won his case without having to wait for a hearing, which would not have taken place for about two years. That achievement was especially fortuitous for the claimant because he first came to see me after his application had already been denied.
The claimant’s situation was a classic one. The claimant, who was an electrician, had knee problems. He submitted his treatment records from his treating orthopedist, yet the claim was denied based upon the strength of the exam by a Social Security doctor and the SSA disability examiner.
I did several things to get the application approved. First, I got the treating doctor to provide a functionality assessment based upon his treatment records, which showed that the claimant lacked the ability to perform even sedentary work. Second, I sent the claimant to a board certified orthopedist for a comprehensive disability evaluation. That examination corroborated the findings of the treating orthopedist. Third, I investigated the qualifications of the Social Security doctor and learned that her field of medicine is emergency medicine, not orthopedics. Finally, my review of the Social Security file revealed that the Social Security disability assessment was completed by a disability analyst, who was not a doctor, in violation of the agency’s own rules.
Armed with the additional positive evidence I filed papers arguing that it was unnecessary to wait for a hearing before the new evidence required approval of benefits. The treating doctor’s functionality assessment and the other orthopedist’s comprehensive evaluation showed that the claimant could not return to work as an electrician nor perform any other type of work. Since the Social Security doctor lacked the proper qualifications to evaluate the claimant and the disability analysts was not a doctor, there was no evidence to contradict the evidence I submitted. The hearing agreed and the application was approved at least a year and half before a hearing would even have been scheduled.
LTD Approval Without Attorney Fee
Yesterday, I was advised by Hartford that they approved the LTD claim of one of my clients. I invested a substantial amount of time and effort over several months to get her application approved, and was able to do so without having to appeal. Consequently, my client received her LTD benefits just as her salary extension was ending. The result is that there was no retroactive benefit to pay an attorney fee.
Because of the possibility of receiving little or no fee, many attorneys won't represent a claimant until their claim has been denied, which I feel is ethically questionable. A case should not be rejected for fear of receiving a minimal fee. At worst, a satisfied claimant becomes a referral source for other potential clients.
Be Wary of Alleged Overpayments
Many people become terrified when the Social Security Administration (the “SSA”) tells them that they owe thousands of dollars because they supposedly received disability benefits improperly. Don’t panic. There are many reasons why you may not be responsible for repaying any money.
The SSA may be under the misimpression that certain income that was reported to the IRS reflects your work activity. You may not owe any money because the income at issue may be attributable to another person or family member, or may represent passive income, such as rent or dividends. For example, even Donald Trump would be able to collect disability benefits if he could no longer work.
There are also vocational various concepts, such as trial work periods, unsuccessful work attempts and substantial gainful activity that may bar an overpayment even if you were working. I just received a decision today that illustrates this point.
A claimant came to me after she was accused of receiving an overpayment in excess of $10,000 because around the same time that her application for benefits was approved she resumed working on and off. I was able to show that many of her jobs constituted unsuccessful work attempts, including one that lasted nearly 6 months. Additionally, I convinced the SSA to approve 9 months of trial work period benefits, despite the fact that the claimant resumed working less than one year from the onset date of her application. The end result that the claimant’s overpayment was completely erased AND the SSA found that she was also entitled to some back benefits.
This type of Social Security case requires a thorough understanding of the vocational law so make sure that your attorney has specific experience in this area.
Watch Your Onset Date
The Social Security Administration (the “SSA”) does not like approving claims, as evidenced by the fact that 60-70% of applications are denied initially. As for the other 30-40%, one of the SSA’s favorite ploys is to issue a partially favorable decision that approves benefits, but only as of date after the disability began. Don’t accept a decision that arbitrarily reduces your benefits.
One of my client’s became disabled in February 2004. However, the SSA found him disabled as of July 27, 2005, even though no medical evidence concerned that time period. On the other hand, there were two treating specialists whose medical records showed the client could not even do sedentary work.
I convinced the claimant to appeal the partially favorable decision. On appeal, I submitted reports from the two specialists explaining the reasons for their opinion why the claimant became disabled in February 2004. I emphasized the claimant’s long, 40 year work history to show that the claimant would work if he could. The SSA approved the February 2004 onset date without a hearing based on the claimant’s impressive work history. Do not be afraid to appeal an arbitrary onset date. Make sure you completely understand a decision before you decide to accept it.
Court Remands Case as the SSA Violated Its Own Rules
The final resort for a person whose Social Security Disability (“SSD”) claim has been denied is federal district court. I took over an SSD claim from another attorney when it came time to file a lawsuit in federal court. I persuaded the judge to remand the matter to the Social Security Administration (“SSA”) for further review. A remand is not unusual. However, the particular basis for this remand is noteworthy.
The Administrative Law Judge (“ALJ”) from the SSA had rejected the treating doctor’s opinion. Instead, the ALJ relied on the medical assessment from the state agency that evaluates claimants for the SSA. My investigation revealed that the medical assessment was in fact prepared by a disability analyst, not a physician as required by the SSA’s own rules. The district court agreed that the ALJ’s reliance on the state medical assessment was improper, and today's remand order advised the ALJ about the error.
While the rules require the state agency assessment to be prepared and signed by a physician, it has become increasingly rare for physicians to do so. Always make sure to review the state agency assessment and every other piece of evidence in the claim file before a hearing as well as when filing papers in federal court.
Disability For Postal Worker
Many people forfeit disability benefits either because they are unaware of potential benefits or because they mistakenly believe that they are not entitled to them. I received a decision approving Social Security Disability (“SSD”) benefits yesterday for a postal carrier today that illustrates this point. A 48 year old mail carrier who was injured in a car accident reluctantly came to see me after his personal injury attorney referred him. The mailman was reluctant because he was already receiving disability benefits under the Federal Employee Retirement System also known as FERS. He thought that he was not allowed to receive benefits under both SSD and FERS. The standard for receiving disability retirement benefits under FERS frequently requires proving only that you are disabled from your last position. The standard for receiving SSD benefits usually requires proving that you are disabled any position. While the SSD standard may be tougher than the FERS standard, receipt of one does not bar receipt of the other. A treating physiatrist supported the SSD application by concluding the postal carrier could not work. On my advice, the claimant began treatment with an arthritis specialist, who concurred and concluded the claimant could not perform any type of work. Because the claimant had disability opinions from multiple medical specialists his application was for SSD approved without a hearing. If you cannot work, it makes sense to consult with an attorney about all of your rights. When inquiring about potential disability benefits, make sure the attorney is familiar with the various sources for benefits.
Successful Mental Impairment Claims
Last week I received two SSD approvals without a hearing. What’s interesting about those cases is that they took different paths to approval.
The first case involved a bi-polar disorder. There claimant had been seeing a psychiatrist for medical treatment, but had stopped seeing a therapist. I sent the claimant for a comprehensive psychological evaluation. That status exam disclosed the claimant’s current mental findings. I was able to use the psychologist’s findings and conclusions to show that the claimant lacked the ability to perform the basic mental demands of unskilled work. According to the Social Security Administration’s Program Operations Manual System (“POMS”), if a claimant has a substantial loss of ability to meet any of the basic mental demands specified in the POMS, then it justifies a finding that the claimant is unable to work. The request for a fully favorable on the record decision was approved in two weeks.
The second case involved a schizophrenia disorder. The claimant had been seeing a psychiatrist who submitted a very short note stating that the claimant was unable to work. I asked the psychiatrist to complete a report that would assess the claimant’s mental functionality. Because the psychiatrist’s conclusions indicated that the claimant was very severely affected by the disorder, I asked him to detail whether the claimant met listing 12.03. If a claimant meets the criteria of a ”Listing”, then the claimant is considered presumptively disabled and entitled to receive disability benefits. The psychiatrist confirmed that the claimant did in fact meet the listing, and the request for a fully favorable on the record decision was approved in less than two months.
Many people have the misconception that a person with solely mental impairments will rarely succeed in obtaining benefits. These cases show that misconception wrong. In fact, these cases serve to illustrate that when the claim is properly developed and presented, that a claimant can secure benefits without even having to wait years for a hearing.
Why Good Is Not Good Enough
When applying for SSD benefits, the goal should not simply be obtaining benefits. Rather, the goal should be obtaining benefits as quickly as possible. Since attorneys get paid 25% of the retroactive benefits in an SSD case, the sooner you get your benefits, the less you have to pay your attorney. An application was approved today that illustrates this point.
The claimant suffers from Parkinson's. Claims involving neurological disorders like Parkinson's and Multiple Sclerosis are difficult cases to win because claimants go into remission, and diagnoses and treatment frequently are murky. Under the Social Security law, as long as a treating physician’s disability opinion is well supported and uncontradicted, SSD benefits should be approved. Nonetheless, most claims, and Parkinson's claims in particular, are usually denied initially.
I was able to get a very supportive report from one of the claimant’s treating neurologists. Nonetheless, I did not rest there. The claimant was also treating with a second neurologist, from whom I was also able to obtain a very supportive report. Each report was submitted together with actual treatment records. The claimant’s application was approved in only four months. Based on my conversations with the disability analyst reviewing the claimant’s application, the rapid approval was due to the fact that the claimant submitted not one, but two very good reports from her treating specialists.
Simply put, it pays to make sure that your attorney has a record of aggressively securing benefits at the earliest point in time. If the claim had been denied initially, then the claimant would have owed 25% of each month’s benefit as an attorney fee until the application were finally approved.
Retaining A Vocational Expert
Many claimants and their attorneys overlook the importance of vocational evidence, and focus solely on the medical evidence. That can be a critical mistake, as illustrated in a Social Security claim that was approved today.
The claimant 56 years old and had a limited 8th grade education. The only relevant job the claimant had was that of a jewelry polisher, which is a sedentary occupation. His primary problem was his inability to use his hands. Testing revealed chronic and bilateral median neuropathy of the wrists and bilateral ulnar neuropathy of the elbows. The treating doctor said that the claimant’s loss of sensation and pain in both hands would be aggravated if the claimant resumed working, and he concluded that the claimant could not lift or carry more than 5 pounds. The problem was that there was no diagnostic evidence relating to the claimant’s ability to sit.
I directed the claimant to a vocational expert, who submitted a report concluding the claimant could not perform his past relevant work. More importantly, the vocational expert explained that the claimant’s lack of bilateral manual dexterity precluded him from performing any unskilled sedentary work. Consequently, even though there was no diagnostic evidence showing that the claimant had a condition that could limit his ability to sit, he was found totally disabled from any type of substantial gainful activity.
Combined Effect of Ailments
Sometimes people do not consider filing for disability benefits because while they may have many problems, no single one is very serious. That would be a mistake. In fact, even if you applied for benefits, and were denied on the grounds that no one condition is severe enough to be disabling, that still should not deter you from you appealing.
I have a 45 year old, college educated client who had been diagnosed with bronchitis, fibromyalgia, chest pain, bilateral carpal tunnel syndrome, cervical spine radiculopathy and lupus. She applied for Social Security Disability (“SSD”) benefits and benefits under a Disability Insurance Policy (“DI”). While the application for DI benefits is pending on a technical issue, the SSD application had been denied on the grounds that there was no condition that is disabling.
The claimant’s symptoms were insomnia, chronic coughing, dizziness, arthralgias, bilateral arm pain, neck pain, fatigue, stress, left hand numbness, and resultant depressed mood from her various ailments. I conceded that none of the claimant’s problems were individually disabling, but I argued that the combined effect of all of the claimant’s problems eliminated virtually any available job. The judge agreed and the claimant was awarded over two years of retroactive benefits, in addition to monthly benefits going forward.
If you stop working before retirement age for any medical reason, consult with an attorney whose practice is limited to disability law. You may have a right to receive disability benefits without realizing it.
Don’t Be Bullied
Most disability claims are denied initially. Even the statistics from the Social Security Administration (the “SSA”) show that the majority of people who apply for Social Security Disability (“SSD”) are denied initially, and the percentage is significantly higher for claimants who are not represented by an attorney.
An experienced disability attorney knows what type of evidence to submit and arguments to make that increase the chances of an initial approval.
When the SSA is confronted with evidence that overwhelmingly supports a claimant’s application, it frequently approves benefits, but only as of a date later than the claimant requested. The SSA selects an arbitrary onset date in order to reduce the amount of benefits the claimant may receive. When the SSA issues a partially favorable decision, you need to appeal it.
A claimant who just received a partially favorable decision was afraid to appeal the onset date of his disability because the decision indicated that the appealed decision could be unfavorable. That fear is unfounded. While it is possible that an onset appeal could be totally denied at the hearing level, that situation is effectively reserved for situations where evidence of work or fraud comes to light. At the hearing level, the onset date the claimant put in the application is usually approved because greater weight is given to the opinion of the treating doctor, which is normally ignored at the initial level.
Failing to appeal an arbitrary onset date is throwing away money that you are entitled to receive. Before being satisfied with a partially favorable decision, discuss the matter with an attorney who can advise you what is at stake. For example, an earlier onset date could immediately entitle you to Medicare, which you may have to wait for if you received a partially favorable decision.
Don’t Believe Everything You’re Told
Just because judges have denied your applications for Social Security disability benefits doesn’t prove that you are not entitled to receive them. I received a decision approving a client’s application yesterday even though her applications had already been denied twice before she retained me. This time, the judge approved her application without even a hearing. The difference this time was that the claimant did not rely on the Social Security Administration (the “SSA”) to collect the medical evidence for her. I had the claimant get medical reports assessing her to work ability from three doctors, including the pain management specialist who had been treating her for only a year. I was able to get that doctor to give an opinion that the claimant lacked the ability to work even before he started treating the claimant. That retrospective opinion was critical to the claimant obtaining her benefits.
The SSA had not requested any medical evidence from the pain management specialist even though the SSA knew about the treatment. The claimant had been told that the pain management doctor was unimportant because he began treating well after the date the claimant asserted she became disabled. Before you consider giving up potential disability benefits make sure you understand all the facts, and don’t accept what the SSA tells you.
NYCERS and SSD
The key to establishing a claimant’s inability to work and entitlement to benefits is usually demonstrating the severity of the medical conditions at issue. One of the keys to establishing the severity of a medical condition is obtaining opinions from the treating doctors regarding the claimant’s functional capacity. Showing that a claimant lacks the functional capacity to perform relevant work is at the core of most disability claims.
I represent a claimant seeking disability benefits from the New York City Employees’ Retirement System (“NYCERS”) and the Social Security Administration (“SSA”). The disability programs may have different standards, but each still shares the fundamental requirement of medical proof regarding the inability to work.
I secured functional capacity assessments from four of the claimant’s treating physicians for submission to the SSA. NYCERS provided a form for the claimant to have one of her doctors complete. However, after submitting that form, NYCERS informally advised the claimant that her application would be denied. Before receiving an official denial of her NYCERS claim, I submitted the functional capacity assessments from the claimant’s four treating physicians. NYCERS officially approved the claimant’s application today.
It makes sense to consider all medical in connection with a disability claim regardless of what may be minimally required. If you have disability claims with different attorneys, such as a workers compensation attorney and a long term disability attorney, make sure each receives the medical records in the other’s possession. Similarly, if you also have a personal injury claim, make sure your disability attorney has all the medical records that your personal injury attorney has.
Tough Cases Can Be Won
Many of my clients have been told by other people not to bother applying for Social Security Disability (“SSD”) benefits before they turn 50 or 55. While it may be difficult to get SSD benefits approved if you are a younger person, or a person who has a college education, that does not mean that you should wait to file for them.
A college education engineer in his early 40s came to me after his SSD application was denied. He had been told that because he was considered young his chances of getting SSD were little to none. The claimant was surprised because he had submitted medical records evidencing his spine surgery and impaired immune system. I submitted opinion evidence from several treating sources regarding the severity of those impairments. The claimant’s application was approved on the record, without having to wait for a hearing.
If a case is prepared properly, a younger person can obtain SSD benefits, and may be able to do so even without needing to attend a hearing. When it comes to your claim do not rely on generalities; rather, consult with an experienced disability attorney.
Appealing A Partially Favorable Decision
When faced the State Agency handling claims for the Social Security Administration (the “SSA”) is faced with such overwhelming medical evidence that it simply cannot deny an application, it frequently issues a “partially favorable decision” a (“PFD”). A PFD approves benefits, but only after the date the claimant alleges disability, which reduces the amount of benefits awarded.
Claimants frequently are afraid to appeal a PFD because they fear the SSA will decide that no benefits at all should be awarded. Under normal circumstances, a PFD is not overturned in favor of a complete denial of benefits. To the contrary, my appeals of PFDs have resulted in the SSA awarding fully favorable decisions.
I was finally able to convince a client to pursue an onset appeal. A substantial five figure sum was at stake. The client’s internist deferred to the claimant’s arthritis specialist for assessing the claimant’s functionality, who had only been treating the claimant for about a year. The specialist concluded that the claimant had a less than sedentary work capacity. Because the arthritic conditions are progressive in nature, the specialist was able to extrapolate an onset date well before his started treating the claimant.
The SSA accepted the specialist’s opinion, and I received the fully favorable decision today. If you become disabled and the medical evidence supports your onset date, don’t compromise your benefits for fear of the SSA issuing an unfavorable decision.
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