Clerical Mistakes

The Social Security Administration (the “SSA”) makes clerical mistakes all the time. For example, the SSA constantly loses birth certificates and medical records even when those documents are sent by certified mail. The SSA also has frequent problems with maintaining its files. The SSA fails to get records to the state agency reviewing the file and vice versa; and the district office fails to get all of the records to the hearing office (“ODAR”).

I represented a claimant with a strong case for receiving Social Security Disability (“SSD”) benefits whose claim was approved today. Like the majority of SSD claims, the SSA denied the initial application. Once the file was transferred to the ODAR, I submitted a request for a fully favorable decision on the record (“OTR”) summarizing the medical and vocational evidence and providing the legal arguments in support of awarding SSD benefits.

The majority of the time, my OTR requests are approved, which saves the claimant money and avoids the stress of having to attend a hearing. Despite the fact that this claimant’s OTR was very strong, the OTR was denied. The ODAR would not explain the basis for rejecting the OTR, and the claimant was scheduled for a hearing. In preparation for the hearing I reviewed the file. However, even though the OTR was hand delivered, it was not in the file. I showed the filing receipt to the ODAR, but they had no answer why the OTR was not associated with the file.

After resubmitting the OTR, the claimant’s application and OTR were approved. Because of the ODAR clerical error, the claimant had to wait a few extra months to receive his SSD benefits. This was yet another example showing that despite documents being sent via certified mail or hand delivered, after a claim is denied the file should always be reviewed as soon as possible.

Needless Forms

I had another self employed claimant's SSD application approved today at the initial level. I was surprised because I had been told that the claim would be denied for two reasons.

First, I was told that the claim would be denied if I failed to submit a work activity report, which details any work after the alleged disability onset date. I refused to submit the work activity form because I contended that all the information had already been supplied with the application. Second, I was told that the claimant's application would be denied unless I submitted his complete tax records for the past year, but I refused to provide anything other than the first page of the federal tax return on grounds of relevancy.

Because the application was approved at the initial level without explanation, I cannot know the reason why the "required" information did not prevent approval of the application. However, the experience does indicate that demands for superfluous information cannot justify rejecting a valid claim.

Objective Evidence of Pain

Thousands of disability claims of all types are denied for lack of “objective” evidence, even though the case law consistently states that a claim should be denied solely because of a purported lack of objective evidence. Many people can no longer work because of pain, which is by definition subjective. Even when objective proof of a condition that causes the pain is presented, it is common for the claim to be denied.

A great way to “objectify” the pain is treatment by a pain management specialist. I had a claimant who was diagnosed with fibromyalgia and reflex sympathy dystrophy (“RSD) by a rheumatologist. The diagnoses were not disputed and were confirmed by objective clinical findings. Even though the rheumatologist supported the claim, the claim was denied on the grounds that there was no support that the claimant’s pain was severe enough to prevent her from working. The claimant asked me to handle the appeal.

On appeal, I submitted a medical report from the claimant’s pain management specialist, who was also a board certified neurologist. The neurologist had not been contacted, nor had his records been obtained. It seemed arbitrary to deny that the claimant’s pain was disabling without considering any evidence from the pain management specialist.

The neurologist diagnosed the claimant with fibromyalgia, complex regional pain syndrome, and chronic pain syndrome. Just like the rheumatologist, the neurologist identified the positive clinical findings that supported the diagnoses, and he also provided similar restrictions and limitations. The only real difference in the reports was that the neurologist detailed the nature, location, frequency, severity and precipitating factors of the claimant’s pain. As a pain management specialist, there was no basis for discounting his opinion regarding the severity of the claimant’s pain, and the claim was approved today.

I advise my clients to treat with pain specialists, even if the medications and treatments offered are similar to what other treating physicians are providing. It seems difficult to reject an opinion regarding a claimant’s pain from a physician who specializes in pain management.

The SSA & The Self Employed Claimant

When it comes to disability, the default position of the Social Security Administration (the “SSA”) is that applicants are not disabled. Thus, the SSA draws every presumption and inference in favor of denying an application for Social Security Disability (“SSD”) benefits. One such presumption concerns applicants who were self-employed.

When an applicant who was self employed applies for SSD, the SSA presumes that the applicant is still working off the books. This presumption frequently gets extended to ridiculous lengths. I had a client who after receiving SSD told the SSA that he was resuming work for his wife’s company. Instead of rewarding the claimant for his honesty, the SSA demanded an overpayment on the grounds that he must have been working off the books for years.

Despite the fact that the SSA never has any evidence that a formerly self-employed SSD applicant is working off the books, the SSA asserts that it will deny benefits unless the claimant proves otherwise. The claimant can submit an affidavit that he or she is not working, which is the same evidence that must be accepted at a hearing. However then the SSA has rejected such affidavits at the initial application stage, and requested tax records. However, when I have produced the tax records revealing no income, or advised the SSA that the claimant did not file because there was no income, the SSA still refused to approve benefits for lack of evidence.

The problem is that the SSA is requiring the claimant to prove a negative; that is, something that does not exist. You can prove you are working by your testimony or that of co-workers. Employment and tax records can also establish gainful activity. Because there is no direct proof that one is not working, what can one do when the SSA rejects indirect proof?

I recently succeeded in getting SSD benefits approved for a formerly self-employed hardware store owner at the initial application stage. I refused to provide the tax records of the applicant’s spouse on numerous grounds. However, I supplied letters from the hardware store suppliers stating that the applicant no longer worked at the store. Those letters must have sufficed because the SSA, which had told me benefits would be denied if I refused to turn over the tax records, approved the application. The letters were very short, and required little effort on the part of the suppliers, or the claimant in securing them.