“Fully Favorable” Decisions

Just because a Social Security Disability hearing decision is entitled “fully favorable” does not mean that the claimant will receive all the benefits to which he or she is entitled. Not infrequently, there is an error regarding the disability onset date or application filing date that reduces the amount of the claimant’s retroactive benefit.

I represent a 60 year old court reporter who received a “fully favorable” decision today that in fact, is not fully favorable. While the ALJ issued the decision with the correct onset date, he neglected to cite the correct application filing date. This has the effect of reducing her retroactive benefit.

At the hearing, I pointed out that April 27, 2007 was the wrong application date because I had filed it via certified mail on February 19, 2007. Not only did the receipt show that date, but an administrative exhibit confirmed that the application was submitted on February 19, 2007. Moreover, I gave the ALJ a blank application claim form sent by a person from the district office, with that person’s initials and date of July 27, 2006 handwritten on the form.

The claimant stopped working in June 2005. Therefore, regardless of whether the actual February 19, 2007 filing date, or July 27, 2006 protective filing date, is used, the claimant is entitled to additional benefits. These circumstances require a letter to the ALJ to revise the decision; otherwise, an appeal needs to be filed.

Treating Sources

When applying for Social Security Disability (“SSD”) benefits you should identify all of your treating doctors, even those who are not treating your primary impairment. I represent a 49 year old whose biggest problem is lymphoma, but she also suffers from autoimmune disease and chronic fatigue syndrome. I was able to obtain her SSD benefits in less than two months, which I attribute to identifying all of her treating sources.

The claimant has been treating with three oncologists for her lymphoma. It is not uncommon for the Social Security Administration (the “SSA”) to deny application of claimants who have been diagnosed with lymphoma or breast cancer for example. What differed here was the claimant’s additional treatment for autoimmune disease and chronic fatigue. In addition to the oncologists, I provided the SSA with the treating source information for the three internists, five gastroenterologists, four rheumatologists, and three other doctors that the claimant has been seeing for her medical conditions.

A cynic might conclude that the disability examiner assigned to the claimant’s case simply wanted to avoid all the work required to develop the claimant’s application. However, since an approval in less than two months is relatively rare, as is a claimant who is treating with nearly 20 doctors, logic dictates that recognizing the scope of the claimant’s treatment was the reason for rapid approval. While this may be an extreme example, it remains advisable to identify every medical source who treats a condition that can impact one’s ability to work.

Using Vocational Evidence To Expedite Benefits

I represent a 56 year claimant whose application for Social Security Disability (“SSD”) benefits was denied even though her internist of 20 years, physiatrist, psychologist and chiropractor, all provided a very restricted residual physical and mental functional capacity. Therefore, I submitted a on-the-record (“OTR”) request for a fully favorable decision.

The hearing office said that a report from the claimant’s cardiologist indicated the claimant was able to exercise, which was deemed to be inconsistent with the claimant’s orthopedic injuries. Therefore, the hearing office said that a hearing was needed so the Administrative Law Judge could evaluate the claimant’s credibility. As a result, the OTR had not been approved, and the claimant would have to await a hearing. The current hearing back log is 18-24 months.

I asked to speak with the staff attorney reviewing the case. I pointed out that the claimant was over 55 years of age, and had a 30 year work history. I explained that the case law provides that a claimant with a long work history is entitled to an inference that when she stopped working she did so for the reasons testified to. I added that for the last 15 years of her career, the claimant was employed at a variety of occupations that were all of light work, and those jobs averaged well over $100,000 a year. By 2003, when the claimant’s medical conditions made her stop working, she was earning close to $300,000 annually. Therefore, the vocational evidence was objective proof that the claimant was credible, and thus, no hearing was needed.

The OTR was approved today. The result is that the claimant will receive her SSD benefits close to 2 years earlier than would have otherwise been the case. This is one of the many reasons why it is important to establish a rapport with the hearing office staff attorneys.

SSD & Mental Disability

I represent a 44 year old former CEO of a construction company, who became unable to work because of mental impairments. When evaluating mental disability, the Social Security Administration (“SSA”) frequently fails to understand that a person may be entitled to Social Security Disability “SSD” benefits even if the claimant does not meet a “Listed” mental impairment. A listed impairment is a medical condition that is considered so severe that the claimant is automatically deemed disabled.

The claimant was denied benefits despite the fact that his treating psychologist provided a written explanation as to why the claimant met listings for depression and anxiety. Nonetheless, I argued that that the claimant’s mental impairments required finding him disabled under the SSA’s Program Operations Manual System ("POMS"). When a claimant alleges a mental limitation that does not meet or equal a listing, the POMS says the SSA must consider whether the claimant has the ability to meet the mental demands of his past relevant work, and if not, whether he has the ability to adjust to other work considering his remaining mental and other functional capacities and vocational factors.

I secured a report from the claimant’s psychologist specifying how the claimant was unable to meet the basic mental demands of unskilled work. Based on those limitations, I submitted an on-the-record request to approve the claimant’s application to the SSA, which was granted five weeks later. As a result, the claimant avoided the nearly two year wait for a hearing

Attorney Adjudicator

One of the ways that the Social Security Administration (the “SSA”) is trying to reduce its backlog of disability claims is by allowing staff attorneys known as Attorney Adjudicators to issue on the record (“OTR”) requests for fully favorable decisions. An OTR is a submission that asks the SSA hearing office to approve disability benefits without the need for a hearing.

Establishing a rapport with the staff attorneys increases the chances of having an OTR approved. I represent a 37 year old woman whose past work included various sedentary, light and medium semiskilled positions. Her application was approved OTR today because of the dialogue that I had with the staff attorney who reviewed her file.

I had submitted supportive medical records, diagnostic tests and reports from the claimant’s orthopedist, neurosurgeon, internist, and pain management specialist. Nonetheless, the staff attorney called me because he felt the file was insufficient to support the OTR request that I had submitted. While I had submitted diagnostic tests with some of the medical reports several months earlier, the last report I submitted referred to updated diagnostic tests. After securing the recent MRI and EMG, which actually revealed some progression of the claimant’s condition, the staff attorney approved the OTR.

Because of my volume of cases at this particular hearing office, I know the staff attorneys there fairly well. At this point, they know that if there is a problem with a file, such as a gap in the record or stale records, that I will obtain the information they need quickly and with great alacrity. Similarly, if I call the staff attorneys they are also willing to tell me the reason why an OTR was not approved, which enables me to cure the perceived deficiency. The staff attorneys are happy because I make their job a little easier and help reduce their case load. I’m happy to help because it results in most OTRs being approved, which avoids the long wait for a hearing.

Even at a hearing office that is notorious for Judge’s who deny claims, because the staff attorneys know me, most of my OTRs are approved, which is due in part to my providing additional information based on discussing the OTR. Not only is it important to be aware of the OTR mechanism, but it is also important to know the players when navigating the process.

Past Earnings

Sometimes the best argument when seeking disability benefits involves simple common sense. I represent an advertising executive with severe liver disease and leukemia. Not only did the treating doctors insist that the conditions were functionally disabling, but they were also potentially terminal. Nonetheless, the disability examiner refused to render a decision based on the medical information that had been supplied.

Because the disability analyst was indifferent to the medical evidence, I submitted a letter highlighting the vocational issues. The claimant had a long work history where he earned well over $150,000 annually. As a matter of law, I pointed out that claimant’s with long work histories are presumed to be credible. Thus, the claimant’s subjective complaints had to be accepted as a basis for approving benefits. It should be obvious that anyone who works for a long time either likes working and/or has a strong work ethic. It is also common sense that someone does not stop working in order to collect a disability benefit that is only a fraction of what they were earning previously.

The claimant’s application was approved shortly after submission of the vocational evidence. Since the medical evidence did not change, the logical explanation for the approval was the disability analyst’s consideration of the common sense vocational arguments.

Benefits Without A Hearing

Perhaps the most common complaint I hear about the Social Security Disability (“SSD”) process is that it years to get benefits. That has not been my experience as I normally succeed in obtaining benefits prior to a hearing. I represent a woman who worked as a service manager for a bank whose application was approved today six months after applying.

I did two things that my experience shows led to the approval. First, although Social Security made repeated demands that my client attend a consultative examination (“CE”) by one of their doctors, I advised her not to attend and to disregard their threats of denying her application if she refused to be examined. The regulations state when a claimant can be asked to attend a CE, and simply seeking a second opinion is not one of them.

The other thing I did was to submit medical reports from three treating physicians. Social Security as well as many practitioners in this field will tell you that all you need is one supporting source to secure benefits. While that may be true, it is also true that the more corroborating medical opinions you supply the stronger your case, and the sooner your application will be approved. I have no doubt that the claimant’s application would have been rejected if I had submitted only one report instead of three