A state agency makes the initial decision whether to approve applications for Supplemental Security Income (“SSI”). Unlike a claim for Social Security Disability benefits, an SSI applicant also has to show that he or she lacks financial assets to receive benefits.
A claimant came to me after her SSI application was denied. I immediately appealed and submitted additional medical evidence. Sometimes the state agency reviews its initial decisions on its own as part of a quality review process. When inquiring why I had not received a copy of the file exhibits, and why the case had not been transferred to the hearing office, I learned that the state agency was re-evaluating the application in light of the additional medical evidence that I had submitted.
Based upon the additional review performed by the state agency, the Social Security Administration (the “SSA”) issued a Notice of Decision (the “Notice”). The Notice said that the claimant met the medical requirements for disability benefits, but that a decision regarding the nonmedical requirements was pending. I regularly get calls from clients who are concerned or unclear about what these Notices mean.
The Notice states that the SSA has concluded that the medical evidence supports the claimant’s allegations that he or she is disabled. However, before benefits can be approved, an SSI applicant also has to show that he or she lacks financial assets, and that is what the Notice refers to as the nonmedical requirements.
Thursday, February 26, 2009
Wednesday, February 25, 2009
Vocational Experts
There are two types of experts who may appear at Social Security Disability hearings; a medical expert and/or a vocational expert (“VE”). The typical role for a VE is answering whether a claimant can do work other than his or his past work.
Claimants have the right to ask the VE questions. My cross examinations have lasted over an hour, and cover countless topics, much of which relates to the VE’s background and methodology as opposed to the particulars of the claimant’s case. In essence, I treat the cross examination of the VE as if it were a federal court deposition. At a minimum however, the VE needs to be queried regarding the treating doctors’ functional evaluations.
I represent a 48 year old who had to stop working and close his real estate agency because of his rheumatoid arthritis. The VE identified possible occupations the claimant could do based upon hypothetical questions posed by the administrative law judge (“ALJ”). On cross examination, I asked the VE if the claimant could perform those occupations given the various limitations assessed by the claimant’s treating doctors. The VE responded that if the treating doctors’ assessments were accepted, then the claimant could not do any type of work.
The above cross examination essentially eliminates the VE’s opinion, and makes the fate of the case ride on the ALJ’s accepting or rejecting the treating doctors’ opinions. Because the regulations favor treating doctors’ opinions, a denial by the ALJ becomes difficult to sustain ultimately. Perhaps cognizant of that point the ALJ approved the claimant’s application for disability benefits.
Claimants have the right to ask the VE questions. My cross examinations have lasted over an hour, and cover countless topics, much of which relates to the VE’s background and methodology as opposed to the particulars of the claimant’s case. In essence, I treat the cross examination of the VE as if it were a federal court deposition. At a minimum however, the VE needs to be queried regarding the treating doctors’ functional evaluations.
I represent a 48 year old who had to stop working and close his real estate agency because of his rheumatoid arthritis. The VE identified possible occupations the claimant could do based upon hypothetical questions posed by the administrative law judge (“ALJ”). On cross examination, I asked the VE if the claimant could perform those occupations given the various limitations assessed by the claimant’s treating doctors. The VE responded that if the treating doctors’ assessments were accepted, then the claimant could not do any type of work.
The above cross examination essentially eliminates the VE’s opinion, and makes the fate of the case ride on the ALJ’s accepting or rejecting the treating doctors’ opinions. Because the regulations favor treating doctors’ opinions, a denial by the ALJ becomes difficult to sustain ultimately. Perhaps cognizant of that point the ALJ approved the claimant’s application for disability benefits.
Tuesday, February 24, 2009
Responsive Doctors
Simply having doctors that agree that you are unable to work is not enough to succeed in obtaining disability benefits. While on vacation, I was introduced to a woman whose disability claim was denied, even though her doctor agreed that she could no longer continue working. However, her doctor did not want to prepare any reports to support her claim.
Many potential clients have asked me what to do when their doctors will not support their claim. I suggest that the patients tell their doctors two things. First, that most long term disability (“LTD”) or Social Security Disability (“SSD”) claims are not like personal injury claims in that treating doctors are rarely required to testify. Second, that as patients they recognize that medical reports take time to complete, and that their doctors will be paid for their time.
For whatever reason, many doctors cannot be persuaded to complete reports in connection with a disability claim. In those cases, I advise the claimant to seek a new doctor. If a doctor agrees that working aggravates a patient’s condition, then the doctor should be willing to do the paper work to help the patient get the disability benefits that would enable him or her to stop working.
Many potential clients have asked me what to do when their doctors will not support their claim. I suggest that the patients tell their doctors two things. First, that most long term disability (“LTD”) or Social Security Disability (“SSD”) claims are not like personal injury claims in that treating doctors are rarely required to testify. Second, that as patients they recognize that medical reports take time to complete, and that their doctors will be paid for their time.
For whatever reason, many doctors cannot be persuaded to complete reports in connection with a disability claim. In those cases, I advise the claimant to seek a new doctor. If a doctor agrees that working aggravates a patient’s condition, then the doctor should be willing to do the paper work to help the patient get the disability benefits that would enable him or her to stop working.
Wednesday, February 11, 2009
Multiple Sclerosis
Multiple Sclerosis (“MS”) is typically treated by a neurologist. When applying for Social Security Disability (“SSD”) benefits based upon MS it is extremely beneficial to have a well-supported opinion from a neurologist.
I represent a 48 year old who was employed as a food counter clerk and maintenance mechanic before his MS forced him to stop working. The claimant had been treating with a neurologist for his MS for over eight years. During the same time period the claimant also saw his family doctor.
The Administrative Law Judge (“ALJ”) had a neurologist serve as a Medical Expert (“ME) to testify at the claimant's SSD hearing. In general, an ME is not supposed to be given more weight than a treating doctor. However, the ALJ gave greater weight to the ME than the family doctor, who strongly supported the claimant’s SSD application, because the ME was a specialist. Fortunately, the claimant also supplied records and reports from his neurologist, whose opinion also strongly supported the claimant’s application. The ALJ gave greater weight to the claimant’s neurologist than the ME because the treating neurologist was board certified and had a lengthy and ongoing treating relationship with the claimant.
If the claimant had only submitted his medical records, or had only provided a functional assessment from his family doctor, then the ALJ would have denied the SSD application. Not only is it important to get medical opinions to interpret the treatment records and test reports, but one of those opinions and assessments should come from an appropriate specialist, especially if an ME will testify.
I represent a 48 year old who was employed as a food counter clerk and maintenance mechanic before his MS forced him to stop working. The claimant had been treating with a neurologist for his MS for over eight years. During the same time period the claimant also saw his family doctor.
The Administrative Law Judge (“ALJ”) had a neurologist serve as a Medical Expert (“ME) to testify at the claimant's SSD hearing. In general, an ME is not supposed to be given more weight than a treating doctor. However, the ALJ gave greater weight to the ME than the family doctor, who strongly supported the claimant’s SSD application, because the ME was a specialist. Fortunately, the claimant also supplied records and reports from his neurologist, whose opinion also strongly supported the claimant’s application. The ALJ gave greater weight to the claimant’s neurologist than the ME because the treating neurologist was board certified and had a lengthy and ongoing treating relationship with the claimant.
If the claimant had only submitted his medical records, or had only provided a functional assessment from his family doctor, then the ALJ would have denied the SSD application. Not only is it important to get medical opinions to interpret the treatment records and test reports, but one of those opinions and assessments should come from an appropriate specialist, especially if an ME will testify.
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