SSA Notice of Awards

The Social Security Administration (“SSA”) sends a Notice of Award (“Notice”) if a disability claim is approved. The Notice provides information such as the amount of the monthly and/or retroactive benefits. The Notices regularly contain errors, such as incorrect disability onset dates, and therefore they should be reviewed carefully.

One of my clients sent me a Notice that she received today. Despite the fact that the SSA knew that I was representing the claimant, had called me about the claimant several times, and had sent me a dozen pieces of correspondence concerning her claim, the Notice revealed that the SSA failed to withhold the attorney fee.

I immediately notified the claimant about the SSA error. The claimant was happy to learn about the Notice’s mistake before spending her award. There have been many other occasions where the SSA failed to send me Notices, which resulted in delaying informing the claimant that the attorney fee had not been deducted from their retroactive benefit check.

It seems the longer it takes the claimant to learn about such errors, the more they feel as if they “lost” benefits. It is in everyone’s best interest to rectify these discrepancies as soon as possible. I always advise claimants to let me know when they receive Notices for this and other reasons. For example, earlier this month I was able to get the SSA to correct the Notice’s disability onset date and issue three additional months of benefits before the benefits were processed, which avoided a protracted process had they already been processed.

SSA Doctors

The State agency, also known as the Disability Determination Service, usually threatens that an application for disability benefits cannot be approved unless the claimant is examined by an agency doctor. Some of my earlier blogs have addressed the reasons why the regulations provide that the state agency's threats are wrong.

I received two fully favorable decisions yesterday that reinforce the reasons why state agency medical exams are not mandatory in most circumstances. Each decision said that because there was no agency medical opinion, Ruling 96-6p did not apply. That Ruling addresses the weight to be accorded state agency medical opinions.

Ruling 96-6p does not mandate exams by state agency doctors. The two decisions approved disability benefits while explicitly referencing the absence of state agency medical exams. Thus, not only do the regulations explain why state agency medical exams are usually unnecessary, but there is no Ruling that requires them either.

Protective Filing Date

A protective filing date is the date when a person first contacts the Social Security Administration (the “SSA”) about filing for benefits, which may be used to establish an earlier application date than the date the SSA claims it received the signed application. An earlier application date can result in additional benefits.

On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.

On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.

An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.

The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.

If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.

On The Record Requests

One way to avoid hearing delays after a Social Security Disability (“SSD”) claim has been denied is to file a request for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the rules and regulations show that a hearing is not needed.

A strong argument for having an OTR approved is that disability is required under a Medical-Vocational Rule. I represent a 52 year old former quality control engineer whose OTR was approved in less than two months. I submitted a report from the claimant’s physiatrist, as well as the treating chiropractor, that he claimant was unable to perform sedentary work. The OTR pointed out that even if the claimant were capable of sedentary work, in light of the claimant’s adverse vocational factors, he would have to be found disabled pursuant to Medical – Vocational Rule 201.14.

The Attorney Advisor’s opinion accepted the argument for the application of Rule 201.14, and approved the OTR. As a result, the claimant did not have to wait for a hearing, which typically takes well over a year. For most SSD claimants, receiving the SSD benefits sooner is important because cash flow becomes a problem when they no longer have a steady income.

SSA Delays

Statistics from the Social Security Administration (“SSA”) state that the majority of Social Security Disability (“SSD”) claims are denied initially. The next step in the process is either reconsideration, or a hearing. In some places, such as New York, reconsideration has been eliminated, which is no real concern because few cases were approved at that stage. The newest SSA statistics state that it takes an average of 426 days to process a claim at the hearing level.

Given the time frames typically associated with SSD claims, it makes sense to pursue them as aggressively as possible as soon as possible. That is why I always try to obtain and submit multiple supporting medical opinions before the SSA makes its initial decision.

I represent a 47 year old former fire marshal and dispatcher whose SSD application was approved in three months after being considered at the initial stage. Among other things, I submitted reports from the physiatrist, internist, and podiatrist that explained why the claimant’s medical conditions prevented him from being able to perform the physical demands of any type of work.

While the claimant had severe injuries, he was under 50 years of age, which is a significant reason that leads to claims being denied initially. It is likely that the claimant’s SSD application may have been approved at the hearing stage if only one of his doctors’ supporting reports had been submitted. However, having submitted three supporting medical reports apparently explains why the claimant’s application was approved so quickly at the initial stage.

Dialysis & Disability

Kidneys filter waste, excess fluid, and toxins from the blood. When a person’s kidneys stop working fatigue commonly occurs. As the kidney failure progresses the fatigue may prevent a person from working on a full time basis, which could support a claim for disability benefits.

There are two ways for a person with failing kidneys to establish entitlement to Social Security Disability (“SSD”) benefits. A claimant can show that the resulting fatigue prevents them from being able to perform the physical demands of work during an eight hour work day. Alternatively, a claimant can establish that they meet the “listing” criteria for chronic renal disease if the condition requires dialysis.

I represent a former police officer from Queens whose SSD application was approved today without a hearing. The senior staff attorney said he had no problem approving the on-the-record (“OTR”) request I had submitted because there was evidence both that the claimant lacked the ability to work a full day, and met the renal disease listing criteria. The staff attorney contacted me though because he needed an explanation for the officer’s income after his disability onset, for which I supplied a statement that it represented sick time.

Using both methods for establishing disability and offering to assist the staff attorney overcome any issues he perceived enabled the officer to avoid a protracted wait of months if not years for a hearing. Moreover, a hearing did not necessarily guaranty that the SSD application would be approved.

Disability Opinions & Medical Tests

Claimants are frequently surprised when their disability claims are denied even though their doctors provided a letter stating that claimant was disabled or was unable to work. A conclusory disability statement by a physician is rarely sufficient by itself to justify a finding of disability.

I represent a former police officer who had been seeing an orthopedist who stated the officer should refrain from working. The Social Security Administration (“SSA”) denied the officer’s application for Social Security Disability (“SSD”) benefits even though there were diagnostic tests showing significant cervical spine abnormalities.

In preparing the officer’s appeal, I obtained detailed functional assessments from the treating pain management specialist and neurosurgeon. Both of the specialists’ reports identified the clinical examination and diagnostic test findings that limited the officer’s ability to perform physical work demands.

I received a fully favorable decision today from the SSA. The decision cited the findings and conclusions of the officer’s pain management specialist and neurosurgeon, but not the treating orthopedist.

LTD and SSD

Most group long term disability (“LTD”) plans require claimants to apply for Social Security Disability (“SSD”) benefits. Most LTD plans reduce your LTD benefits by the amount of your SSD benefits. Even though your LTD plan may have an easier definition of disability to meet than SSD, the former can help establish entitlement to the latter in some circumstances.

I represent a 61 year old former newspaper machinist whose LTD plan required him to file for SSD benefits. The LTD plan defined being disabled as being unable to do your last occupation. A machinist is classified as “medium” work, meaning it required being able to lift and carry up to 50 pounds. The LTD plan concluded that the machinist’s knee and back problems prevented him from being able to perform his occupation.

The Social Security Administration (“SSA”) medical-vocational rules provide that a 60 year old claimant without transferable skills is disabled even if capable of sedentary or light work, which require lifting up to 10 and 20 pounds respectively. Medical records and reports specifically devised by the LTD plan to determine if the claimant could work as a machinist were submitted to the SSA. The SSA quickly approved the machinist’s SSD benefits today. It appears that the SSA accepted the LTD evidence and determination that the claimant could not perform medium work, which then required finding the claimant disabled under the SSA medical-vocational rules.

CIGNA Sued For Surveillance

In Tennessee, CIGNA terminated the long term disability (“LTD”) benefits of an anesthesiologist with Complex Regional Pain Syndrome after being required to attend a functional capacity evaluation (“FCE”) by a physical therapist. The anesthesiologist sued CIGNA and its private investigator for invasion of privacy and civil conspiracy. A Tennessee court refused to dismiss the claims.

The anesthesiologist contended that the videotaping of her FCE unreasonably intruded on her right to seclusion. She argued that her case was analogous to the situation involving intrusion into private medical situations. The relevant case law holds that whether an intrusion would be offensive to persons of ordinary sensibilities is a question for the fact-finder. The court ruled that the case comes down to a question of reasonableness, and that a jury will determine whether the anesthesiologist’s privacy was invaded by considering the degree, context, circumstances, motives, and setting surrounding the intrusion.

CIGNA and the investigator also moved for summary judgment to dismiss the civil conspiracy claim on the grounds that because the anesthesiologist could not establish her underlying claim for invasion of privacy she could not establish a conspiracy to invade the anesthesiologist’s privacy. However, the court concluded that a jury could find that the anesthesiologist’s privacy was invaded.
CIGNA’s then argued that the conspiracy claim had to be rejected because there was no evidence that CIGNA or the investigator knew the FCE clinic had uncovered windows, and that the investigator “simply got lucky” when he went to there and was able to film the anesthesiologist. The court also rejected that argument finding that it overlooked that CIGNA ordered the surveillance, scheduled it for when the FCE was to take place, identified the location for the FCE, and fully or reasonably expected that the FCE would be filmed by the investigator. Thus, the court also held that the conspiracy claim would have to be decided by the jury.

Attorney Advisors

One way to avoid the long wait for a hearing on your Social Security Disability (“SSD”) appeal is to ask an attorney advisor to consider issuing a fully favorable decision. Since an attorney advisor, who is a staff attorney at the hearing office, looks at claimant files before an administrative law judge (“ALJ”) does, asking the attorney to issue a favorable decision is even more expeditious than asking an ALJ to do so.

An attorney advisor can approve an SSD application based on new evidence, or any error indicating that a fully favorable decision should be issued. The attorney advisor can request additional evidence or schedule a conference with the parties, although the latter is rare.

I received a fully favorable decision today from an attorney advisor for a 57 year old former sewing machine operator based on a Findings Integrated Template (“FIT”) that I submitted three months earlier. A FIT is essentially a fill in the blank form that the Social Security Administration (“SSA”) uses to facilitate issuing favorable decisions by converting the proposed FIT decision submitted by the claimant’s attorney into the attorney advisor’s decision. Thus, instead of having to wait one to two years for a hearing, the proposed FIT decision and use of the attorney advisor enabled the claimant to be approved for SSD benefits in only three months.

The SSA regulation authorizing attorney advisor decisions is set to expire August 10, 2011.

Social Security Doctors

When filing for Social Security Disability ("SSD") benefits, the Social Security Administration ("SSA") usually asks claimants to be examined by one of its doctors in what is referred to as a consultative examination ("CE"). The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.

The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. In general, if a CE is actually needed, then it is supposed to be performed by a treating doctor. Nonetheless, in almost every case, claimants are sent letters telling them that they must go to a CE by an unnamed doctor.

I represent a 59 year old teacher who was told that she must attend a CE by Industrial Medicine Associates ("IMA"). After I sent a detailed letter explaining why the rules and regulations showed that such a request was inappropriate, the CE demand was withdrawn, and she received a check for SSD benefits today.

The state agency, which requests the CEs, and IMA, have both told me that CEs are routinely scheduled on every case. I represent a former nurse whose SSD benefits were also approved today, and she was never sent a notice to attend a CE. Therefore, it cannot be said that SSA policy requires a CE in every case.

While there are some circumstances when a CE is needed, since the CE reports normally indicate that the claimant is not disabled, a CE by a non-treating doctor should be attended only if the request is authorized under the SSA rules and regulations.

Unum Reverses Termination

I represent a former advertising executive whose long term disability ("LTD") benefits were terminated by Unum after its in house psychiatrist rejected the opinion of the claimant's treating psychologist. Unum had repeatedly approved LTD benefits based upon the treating psychologoist's summary narrative reports and responses to Unum's form questionnaires. Unum terminated benefits after its psychiatrist issued a medical report that concluded the claimant was no longer disabled.

The report from Unum's psychiatrist set forth eight reasons why the claimant was not disabled. Fortunately, the treating psychologist continued to support the claimant's inability to work, and provided a detailed report that rebutted each of the eight reasons espoused by Unum's psychiatrist. Without being able to rely on the report of its psychiatrist any longer, Unum reinstated the claimant's LTD benefits.

LTD insurance companies always defer to their doctors' opinions. Therefore, in order to succeed in reversing an adverse determination, you need to ensure that the treating doctors specifically address and rebut each of the contentions that the insurer relied on to rationalize its denial or termination.

Electronic Records Express

Applications for Social Security Disability ("SSD") benefits can now be filed on the internet, as can all subsequent documents through Electronic Records Express ("ERE"). When using ERE, you receive a receipt that confirms the date and time of the filing. Unfortunately, the ERE receipt fails to ensure that the records you submit will be seen by an Administrative Law Judge ("ALJ") .

The last two weeks I had three hearings with two ALJs from the Brooklyn hearing office. I submitted on the record requests ("OTRs") to have the applications approved without the need for a hearing, and received ERE receipts for the OTRs.

Last week, the first ALJ said that the OTRs were not associated with the files until the morning of the hearings, and he would have approved them if he had seen them earlier. Today, the second ALJ said he never saw the OTR, even though he said the ERE receipt that I showed him was in order. Additionally, after the hearing office sent me a CD Rom copy of the file last month, I had refaxed the OTR a second time after discovering that it was omitted from the file. The ALJ also said that had he seen the OTR he would have approved it.

ERE cannot be relied upon to guaranty that your OTR or medical records will be placed into the hearing file. To make certain that the ALJ will review the documents you submit you still need to call the ALJ's assistant to ensure that they are associated with the proper file.

Multiple Impairments

Unlike some disability programs, you can receive Social Security Disability (“SSD”) benefits if the combined effect of all your impairments renders you disabled, even if no single impairment is disabling by itself. I received a notice of award today for a 61 year old former school clerk that illustrates this point.

The claimant’s SSD benefits were approved four months after her application was filed, which is fairly quick. I submitted reports from four of the claimant’s treating physicians that each addressed different impairments. The oral surgeon’s report addressed TMJ, the pain management specialist’s addressed cervical radiculopathy and headaches, the psychiatrist’s addressed mental disorders, and the orthopedist’s addressed herniated cervical discs and carpal tunnel syndrome.

Although the restrictions and limitations that each impairment caused may have been borderline, the combined effect of all of the impairments showed that the claimant was unable to perform any type of work on a full time basis. While the claimant may ultimately have succeeded in obtaining SSD benefits based upon only one doctor’s report, it is highly unlikely that the claimant’s application would have been approved in only four months if all four of the physicians’ reports had not been submitted. The goal in every case should not merely be winning, but winning as quickly as possible.

Liver Cancer

The Social Security Disability (“SSD”) application process is usually a lengthy one. However, if you have a critical condition that requires an immediate decision you may be eligible to request a Compassionate Allowance, which is designed to reduce the time between applying and receiving benefits. Compassionate Allowances are an expedited way for the Social Security Administration (“SSA”) to identify medical conditions that invariably qualify for SSD benefits based on minimal objective medical information.

I represent a 58 year old plumber diagnosed with live cancer, which is one of the diseases included on the Compassionate Allowance list. Others on the list include cancers, lymphomas, mesothelioma, Creutzfeldt-Jakob Disease, Lesch-Nyhan Syndrome, spinal or brain injuries, early onset Alzheimer's Disease and some types of dementia. To avoid any potential delay, the application and report regarding liver cancer were faxed, mailed, and followed up almost on a daily basis to ensure that everything was received and being immediately processed as a Compassionate Allowance. The claimant’s SSD benefits, as well as his children’s benefits, were approved today, three weeks after the application was filed.

The SSA can deny a request for a Compassionate Allowance just like any other SSD claim. Similarly, the SSA can lose evidence submitted on a Compassionate Allowance claim, or have it fall through the bureaucratic cracks like thousands of other SSD claims. While an attorney should not be required to obtain SSD benefits ultimately for a condition on the Compassionate Allowance list, if time is a concern, then an attorney can help ensure that the SSD application, along with any Child’s Benefits application, will be expeditiously and properly processed as a Compassionate Allowance.

Unum Approves Fibromyalgia Claim

Several years ago I was able to get Unum to approve long term disability (“LTD”) benefits for a woman who worked for Keyspan when her claim was reviewed under the Reassessment Settlement Agreement. Towards the end of last year, Unum started to re-evaluate her claim, which included a field visit interview, even though the identical questions had already been answered in response to questionnaires Unum sent, and new medical records, even though her treating doctor said that the claimant’s condition had not improved.

The claimant was disabled by fibromyalgia, which was being treated by a rheumatologist. Courts recognize that a rheumatologist is the appropriate specialist to treat fibromyalgia. I provided reports from the rheumatologist that showed the claimant’s condition had not changed since Unum had approved LTD benefits. Nonetheless, Unum insisted on receiving reports from the claimant’s internist and chiropractor, who were not treating fibromyalgia.

I sent Unum letters stating that records from doctors other than the rheumatologist showed that Unum was either failing to understand the nature of the claimant’s disability or that it was not proceeding in good faith. However, because Unum stopped paying LTD benefits during its re-evaluation, to expedite a decision, I allowed Unum to receive reports from the claimant’s other doctors, but not before ensuring that they understood the type of responses that Unum would seize upon to terminate benefits. Although records from her other doctors were irrelevant because they were not treating fibromyalgia, Unum restored the LTD benefits only after receiving their reports.

Fortunately, because the claimant had discussed the situation with her other doctors, even though their reports were not actually relevant, they did not contradict the information provided by the rheumatologist. I have no doubt that if a report from one of the other doctors was inconsistent with the rheumatologist’s report, then Unum would have terminated the claimant’s LTD benefits. Unfortunately, when dealing with disability insurance companies, you have to be very careful, even with evidence that is not actually relevant.

Comorbid Conditions

When applying for long term disability (“LTD”) benefits no single medical condition necessarily needs to be disabling. I represent a 41 year old former Insurance Company Vice President whose LTD benefits Lincoln Financial Group approved on appeal today after supplying evidence of a second medical condition.

The claimant came to me after Lincoln had rejected her LTD application, which was based upon her neck impairments. On appeal, besides revealing the flaws with the way Lincoln reviewed the claimant’s cervical problems, I also notified Lincoln that the claimant was being treated for Chronic Fatigue Syndrome (“CFS”). The report from the rheumatologist treating the CFS indicated that the claimant could not work full time due solely to the CFS, just as the claimant’s orthopedist and pain management specialist both concluded that the claimant could not work full time due to her neck problems.

It should have been obvious that if the claimant’s neck impairments and CFS independently rendered the claimant incapable of working, that the combination of the two certainly did. Lincoln’s approval letter did not specify the reason why it reversed its decision and decided to approve LTD benefits. The major difference between what the claimant submitted when applying, and what I supplied when appealing, was the evidence regarding the CFS. Therefore, it would seem most likely that it was the claimant’s comorbid condition that resulted in the approval.

“Partially Favorable” Decisions

The Social Security Administration (“SSA”) sometimes approves Social Security Disability (“SSD”) benefits with an onset date after the one in the claimant’s application. The belated approval is called a partially favorable decision. A claimant can appeal the partially favorable decision, and receive monthly SSD benefits in the interim.

I represent a former interior designer who became disabled in November 2008, and who just received a partially favorable decision from Administrative Law Judge (“ALJ”) David Nisnewitz that approved SSD benefits as of April 2009. As usual, because all of the treating physicians supported the claimant’s application, Nisnewitz had half a dozen medical and vocational experts testify in order to create evidence to deny the application. However, the last expert to testify was a psychologist named Sharon Grand who stated the claimant met a listing for depression, which prevented the ALJ from denying the case.

As is his custom, ALJ Nisnewitz ignored the overwhelming objective and subjective evidence that supported the claimant’s disability from November 2008 through April 2009. Instead, again as is his practice and pattern, Nisnewitz simply accepted the opinions of medical experts who never examined the claimant over those of the treating physicians, despite the fact that courts have repeatedly told the ALJ that it is improper for him to do so.

Since claimants can receive SSD benefits pending an appeal of a partially favorable decision, there is no reason to waive the additional benefits that they might be entitled to receive. Claimants should promptly appeal such a decision, which could provide additional benefits, such as child’s benefits too.

Income Doesn't Bar Disability Benefits

Receiving an income does not automatically preclude receiving Social Security Disability (“SSD”) benefits. The test is whether you are engaging in work that involves significant physical or mental activity for pay or hopefully for profit, which excludes any type of passive investment income.

Since entitlement to SSD benefits does not include a financial need requirement, receiving loans or gifts of money from friends or relative is not an issue. There may be circumstances where a claimant receives money through a family run business while alleging that he or she was not working at the business. In these situations the Social Security Administration presumes that the claimant is working rather than receiving a gift.

On numerous occasions I have represented a claimant who continued to receive money through a family run business after the time when the claimant alleged that he or she stopped working there. The question is how do you prove that the money the claimant received from the family business was not for engaging in work that involved significant physical or mental activity.

I represent a 39 year old woman who worked at her father’s company as a secretary because she was unable to work elsewhere due to her reflex sympathetic dystrophy (“RSD”). Her RSD eventually became so severe that she was unable even to work with all of the accommodations at her father’s business. However, in order to maintain her health insurance, the claimant’s father continued to keep her on the payroll.

I submitted third party evidence to substantiate the fact that the claimant had not been working. Today, I received a fully favorable decision from Administrative Law Judge Ronald Waldman who concluded that the claimant’s 2008 and 2009 income was not substantial because she had not actually worked.

Celiac Disease

Bloomberg News just reported that environmental influences have apparently caused a fivefold rise in Celiac disease during the last 30 years. People with Celiac disease have a problem digesting gluten, which is a protein in staple foods like bread, crackers, and pasta. Fatigue is a common symptom of Celiac disease.

The fatigue from Celiac disease can become severe enough to prevent you from working a complete day. If so, you could be eligible for disability benefits the same way that being afflicted with Chronic Fatigue Syndrome or any other disease resulting in fatigue could render you eligible.

Celiac disease is frequently associated with other autoimmune disorders that also contribute to one’s inability to work. Therefore, even subsisting on a gluten-free diet may not improve one’s functionality sufficient to work a complete day at work. One of my clients was approved for disability benefits due to fatigue and weakness from Celiac disease and myasthenia gravis.

Proving Disabling Pain

Disability adjudicators accept that applicants can become disabled if their pain is bad enough to reduce their ability to perform the physical demands of working. The problem for claimants is usually how to prove that their condition is severe enough that they can no longer work. The claimant’s task basically is trying to provide objective proof to support the subjective claim of pain.

I represent a 57 year old former airline passenger service agent whose radiating neck pain forced him to stop working. His disability benefits were approved today four months after his application was filed without requiring any type of appeal or hearing.

Among other things, the claimant had a cervical MRI that showed discs contacting the spinal cord. His pharmacy list of pain medications and patches, and operative reports of pain injections, were lengthy. As the default position of disability adjudicators is that a claimant’s pain is overstated, simply providing a supportive MRI would be deemed insufficient because while it confirms a diagnosis it fails to establish severe pain. Similarly, just providing pharmacy records would be deemed insufficient because it could be evidence of an addiction or overreaction to a condition. However, supplying both types of medical records provided objective evidence not only that the claimant had a medical condition that was capable of causing severe pain, but also that the condition was being treated as causing severe pain. That objective evidence rendered the pain management physician’s opinion, that the claimant’s condition prevented him from being able to work due to his pain, readily credible.

Some of my colleagues believe that I “gild the lily” by securing and submitting as much evidence as I do, which does make for extra work. However, the end result speaks for itself.

EAJA Fees

A federal court judge ruled today that the Social Security Administration (the “SSA”) should pay my client’s legal fees under the Equal Access to Justice Act (“EAJA”) for pursuing an appeal even after the SSA offered to remand the case for another hearing before the SSA Administrative Law Judge (“ALJ”). I received a similar decision in another case about three months ago.

U.S. District Judge Hurley remanded the case for another hearing before the same ALJ, and then referred my motion for EAJA fees to U.S. Magistrate Judge William Wall. Today, Magistrate Judge Wall ruled that it was reasonable to award attorney fees for time I spent working on the claimant’s appeal after I refused to accept the SSA’s offer to remand the case. The EAJA award will reduce the claimant’s legal fees if, as anticipated, Social Security Disability (“SSD”) benefits are approved on remand.

Magistrate Judge Wall’s decision is significant because there are relatively few reported decisions where a plaintiff’s attorney has been awarded EAJA fees for time spent after the SSA offered a remand. The decision was also significant because it ruled that I was entitled to be reimbursed for Westlaw research costs.

IMA Disability Services

The Office of Temporary & Disability Assistance (the “State agency”) is responsible for making the initial decision on Social Security Disability (“SSD”) claims in New York. The State agency sends letters to SSD applicants stating that he or she “must” be examined by a “Specialist” from “IMA Disability Services” (“IMA”). The letter is frequently followed by phone calls warning that the application will be denied if the claimant fails to appear for the appointment. These letters are misleading.

The use of the word “must” is misleading because most claimants do not need to be seen by a doctor from IMA. I represent a former cosmetology account manager whose SSD application was approved a few weeks after being told that she “must” attend an exam by an unnamed “specialist” IMA, which exam she refused to attend. Among other things, the SSA cannot require a claimant to attend a consultative examination (“CE”), such as the IMA exam, without first asking the treating physician to perform it.

There are countless other reasons why most demands for a claimant to attend a CE violate the rules. Not surprisingly, since IMA makes enormous amounts of money from performing thousands of CEs, they try to make claimants believe that they have no right to refuse to attend a CE. Therefore, a claimant should send written objections to the State agency specifying the factual and legal reasons why the CE would violate the rules and regulations.

Self Employment

Most Social Security Disability (“SSD”) applicants who were self employed are initially denied benefits. It seems that the Social Security Administration (the “SSA”) is suspicious that such individuals have not really stopped working. Consequently, because the self employed applicant’s credibility is at issue, a hearing is usually required. The waiting time for a hearing is typically 18-24 months after a claim has been denied.

I represent a former self employed sales representative whose SSD application was approved today only a few months after it was filed. I submitted a letter from the claimant’s accountant stating that the claimant’s business had been inactive and no income had been received for any services rendered as of the disability onset date. SSD benefits were awarded shortly after the accountant’s letter was submitted.

There was strong evidence that the claimant had a severe case of Lupus. Nonetheless, I suspect that the SSA would have denied the application in the absence of the accountant’s letter. The accountant provided third party evidence to substantiate the claimant’s contention that she had stopped working. Because the claimant’s credibility was not at issue to prove that she was no longer working, there was no need to hear her testimony at a hearing.

Headaches

When seeking Social Security Disability (“SSD”) benefits, you don’t have to prove the etiology of your pain with certainty. However, you do need to show that you have a medical condition that could reasonably produce your pain, and that the pain limits your ability to work.

Headaches obviously can cause pain. Frequent and intense headaches could obviously disable you from work. Nonetheless, it is frequently difficult to establish disability because of headaches, due to a lack of evidence.

Evidence that the pain from headaches limits a person’s ability to work can be obtained through functional assessments of the doctors treating the headaches. However, I’ve found that narrative reports from the treating doctors are usually needed to establish the frequency and intensity of the pain to receive SSD benefits, especially prior to a hearing where the claimant would have to testify about the same, which testimony would then be subject to a credibility determination.

I represent a former 58 year old construction supervisor who had to stop working because of headaches. I submitted functional assessments from the treating doctors showing that the claimant lacked the ability to work on a full time basis. However, it was not until I submitted a narrative report from the claimant’s neurologist that SSD benefits were approved. The narrative report described the severity and frequency of the claimant’s headaches, and concluded that they probably had a central nervous system origin.

Without the narrative report, the claimant would have been required to proceed to a hearing, which among other things, would have delayed his benefits for many months. Because the narrative report supplied objective evidence of the frequency and intensity of the claimant’s headaches, his SSD application was approved in four months.

Ankle Injuries

Social Security Disability (“SSD”) benefits may be available even if you have little or no trouble lifting, carrying, or sitting. If you have difficulty walking due to an ankle problem, then you may be entitled to SSD benefits.

One way to qualify for SSD benefits is where the ankle meets the “listing” for major joint dysfunction. The listing is met if the ankle problem revealed by an x-ray causes pain and stiffness that makes walking difficult. The listing defines difficulty walking as being unable to walk a block at a reasonable pace on rough or uneven surfaces. Another way to qualify for the SSD benefits is if the ankle impairment prevents you from being able to stand and walk for at least two hours a day at work, as most sedentary jobs require occasional walking and standing.

I represent a 51 year old former refrigeration mechanic whose x-ray revealed permanent ankle deformities after being fractured. I obtained a report from the treating pain management specialist who said the claimant was limited to standing and walking between 0 and 1 hours during an 8 hour day. Because the claimant’s SSD application was approved without explanation it is unclear if it was approved based on the listing or the claimant’s inability to walk and stand for at least two hours. Regardless of the approval’s rationale, the decision shows that ankle injuries are taken seriously.

Partially Favorable Decisions

When the Social Security Administration (“SSA”) issues a decision approving Social Security Disability (“SSD”) benefits with an onset date later than the one given by the claimant it is called a partially favorable decision. Many times it seems that there is absolutely no reason for the delayed onset date, and that the SSA is simply trying to avoid having to pay additional benefits.

I represent a former maintenance mechanic who stopped working in April 2009 because of neck, knee and back problems. The SSA initially decided that the claimant became disabled five months later in September 2009. Today, Administrative Law Judge Seymour Rayner agreed that the claimant has been unable to perform any type of work since April 2009. As a result, the claimant should now receive the additional months of SSD benefits.

Claimants should not be satisfied when the State agency or the SSA makes a partially favorable decision. Claimants should promptly appeal such a decision, which might even provide additional benefits, such as child’s benefits, besides the SSD benefits.

Bench Decisions

Since I prepare my Social Security Disability (“SSD”) cases thoroughly, I usually have the evidence that merits submitting an on-the-record (”OTR”) request for a fully favorable decision. If the OTR is approved, then the claimant receives SSD benefits without needing a hearing. However, sometimes it may not be possible to submit an OTR. In those circumstances, requesting a bench decision should be considered.

An Administrative Law Judge (“ALJ”) can orally issue a bench decision, which is always fully favorable, that explains his reasons for granting the application at the hearing. The written decision that is issued a few days later is just a few paragraphs, and typically follows a template set forth in ALJ rules called the HALLEX.

I was retained by a 26 year old former dog groomer just a couple of weeks before her hearing. While there was no opportunity for submitting an OTR, the claimant’s case was well supported, and ALJ Crawley issued a bench decision today on the case. By doing so, ALJ Crawley saved time because he or a staff attorney did not have to spend the extra time it would have taken to prepare a typical fully favorable written decision.

The Social Security Administration is urging greater productivity from ALJs. Therefore, it would seem to make sense for ALJs to use the bench decision procedure more often. If an ALJ is inclined to approve a claim, then simply making the request to an ALJ for a bench decision might persuade him or her to use the procedure particularly if the ALJ’s caseload is overly burdened at the moment.

Fibromyalgia

State agencies frequently deny fibromyalgia claimants’ initial applications for Social Security Disability (“SSD”) benefits due to a lack of “objective” evidence. However, there is no diagnostic or laboratory test for fibromyalgia, and the law prohibits the Social Security Administration (the “SSA”) from requiring a fibromyalgia claimant to produce objective evidence to establish entitlement to SSD benefits.

I represent a 43 year old former DHL employee who stopped working because of her fibromyalgia. The SSA granted my on-the-record (“OTR”) request today asking that the claimant’s disability application be approved without a hearing. The State agency had denied the application on the grounds that the “only abnormal finding was increased bilateral crepitus. Muscle strength is full and symmetric. Normal muscle tone without any atrophy or abnormal movements.” The State agency did exactly what the law held cannot be done.

New York Courts recognize that physical examinations of fibromyalgia patients “will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. Hence, the absence of swelling joints or other orthopedic and neurologic deficits is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advanced.”

My OTR argued that the State agency improperly denied the claimant’s application for a lack of objective medical abnormalities. I explained that the treating rheumatologist’s disability assessment was based on the claimant’s meeting the American College of Rheumatology’s tender point criteria for fibromyalgia, and the doctor’s opinion regarding the severity of those tender points.

The SSA agreed that the State agency’s basis for rejecting the treating rheumatologist’s disability opinion was unfounded. Consequently, the claimant’s SSD application was approved without needing to await a hearing

Avoiding SSD Hearings

It can take years to get a Social Security Disability (“SSD”) application approved. According to the Social Security Administration (the “SSA”), the majority of applications are initially denied. The next step in many locations, including the New York metropolitan area, is to have the claim heard by an Administrative Law Judge (“ALJ”). The waiting time for a hearing according to SSA statistics is well over a year. Hearing offices will often tell claimants to expect an 18 to 24 month for the hearing.

The hearing delay can be avoided by making use of the staff attorneys at hearing offices known as Attorney Advisors. An Attorney Advisor can issue fully favorable on-the-record (“OTR”) decisions, which negates the need for a hearing with an ALJ. The best way to show an Attorney Advisor that a case does not need to be heard by an ALJ is by showing that the claimant meets a Medical-Vocational rule or listed impairment criteria that requires a finding of disability. I received a fully favorable OTR decision today from an Attorney Advisor that illustrates this point.

I represent a 50 year old former construction laborer. I cited a Medical-Vocational rule that required finding him disabled even he were capable of performing sedentary work. While accepting the evidence that the claimant lacked the ability to perform sedentary work, the Attorney Advisor pointed out that even if the claimant possessed that ability the Medical-Vocational rules would require finding him disabled.

The Medical-Vocational rules bolstered the credibility and reliability of the claimant’s complaints and the treating physician’s opinion. The net result was that instead of waiting well over a year for a hearing, the claimant only waited 11 days for his OTR to be approved.

Medical Listing Opinions

I began representing a 41 year old former road crew worker, who stopped working due to depression, after Binder & Binder refused to appeal his case to federal court. I got the case remanded in federal court for a second hearing before Administrative Law Judge ("ALJ") Seymour Raynor, who approved the application yesterday. The major difference between the two hearings was the addition of a medical opinion explaining that the claimant met the listing for depression.

If the criteria of a “listing” are met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits. In fact, the ALJ had a vocational expert ("VE") ready to testify, but after the medical expert agreed with the treating psychiatrist's letter explaining that the claimant met the listing, the ALJ promptly ended the hearing without hearing from the VE.

It is one thing for an attorney to make the legal argument as to why the medical evidence shows that a claimant meets a listing. It is another thing for a doctor to explain why the medical evidence meets the listing criteria. The latter constitutes medical evidence itself, which cannot simply be ignored under the regulations.

Treatment Records

I received a fully favorable decision today from Administrative Law Judge (“ALJ”) Weiss on another federal court remand involving a police officer. The claimant’s doctors concluded that the he lacked the ability to perform sedentary work. The ALJ had Gerald Greenberg testify as a medical expert ("ME"), and he concluded the claimant could do sedentary work.

The cross exam of the ME, who testified the treating doctors’ opinions were inconsistent with their treatment notes, was critical. I was able to get the ME to admit that the treating doctors’ opinions were based on diagnostic testing, and that there were objective clinical signs that supported the diagnoses. More importantly, I got the ME to admit that the purpose of treatment notes is not to provide evidence for a disability matter, which would explain differences between the notes and disability reports. ALJ Weiss accepted the opinions of the treating doctors over ME Greenberg because the former were “consistent with the diagnostic tests, clinical signs and the record as a whole.”

This matter reflects a critical issue when dealing with disability claims. Treatment notes basically serve as a way to remind the physician of things she or he may need to remember at a follow up visit. Many relevant physical exam findings are not included either because, for example, they may have been previously reported and would be redundant, are obvious such as walking with a cane, or are implied, such as trigger points for fibromyalgia. Claims adjudicators frequently try to deny a claim by relying on treatment notes’ omissions as evidence that a person lacks “objective evidence” to support a claim. Therefore, it needs to be pointed out that treatment notes do not serve the same purpose as a narrative or other disability report, which is why they may appear different.

Federal Court Remand

I took over the case of a former dietary aide who needed to file an SSD appeal in federal court. The Appeals Council had agreed with ALJ Weiss that the claimant could perform light work. The court ruled that there were errors when the ALJ made the decision, and remanded the case to ALJ Weiss. After holding a second hearing, ALJ Weiss issued a fully favorable decision today.

During the hearing, I had the claimant testify about the extent of the treating relationship that he had with his neurologist, orthopedists, and chiropractor. Each concluded that the claimant lacked the ability to perform sedentary work. The ALJ had Gerald Greenberg testify at the second hearing as a medical expert ("ME"), and he concluded the claimant could do sedentary and probably light work. On cross exam, I had the ME admit that the treating doctors were in a better position than he was to evaluate how the claimant's symptoms affected his ability to work by virtue of their having examined the claimant. At the close of the hearing I pointed out to the ALJ that even if the claimant had a sedentary work ability that he would still have to be found disabled under the medical-vocational rules.

ALJ Weiss accepted the opinions of the treating physicians over the ME because the ME "did not have a treating relationship with the claimant, nor did he have the benefit of examination." The ALJ also noted that the claimant would have to be found disabled even if he could do sedentary work as the ME had concluded.

The hearing went smoothly because I had assumed that the ME would testify the claimant could do light work, and I had prepared a cross exam to undermine the ME's conclusions. The ALJ had indicated that he would probably issue a decision again finding that the claimant could do light work, but it appears the cross exam of the ME precluded that.

The MTA & SSD

Understanding the rules for obtaining Social Security Disability (“SSD”) benefits can help secure Disability Retirement benefits from New York State or City.

I represent a Superintendent of Maintenance Operations for Buses who needed to apply for SSD benefits and Disability Retirement with the Manhattan and Bronx Surface Transit Operating Authority (the “MTA”). The job required him to be on his feet for at least 6 hours a day, crouch, kneel, stoop, and climb for at least 3 hours a day, and lift 50 pounds. Those physical demands classified his job as medium work, which requires lifting, carrying, pushing, or pulling 50 pounds, and standing/walking for at least 6 hours.

In order to obtain SSD benefits, the claimant not only had to show that he was incapable of performing his past work, but any other type of work as well, which includes sedentary work. Unlike medium work, sedentary work involves sitting most of the day and lifting no more than 10 pounds. Under the rules for obtaining SSD benefits, the claimant could have secured those benefits even if he were able to perform light work, which requires standing and walking for at least six hours. However, because the claimant was also seeking disability retirement benefits from the MTA, I gathered evidence to show the claimant was unable to do even sedentary work.

Yesterday’s decision from the Social Security Administration (“SSA”) concluded that the claimant was unable to do sedentary work. If the claimant cannot do sedentary work, then it should be clear that he lacks the ability to perform more strenuous light work, and certainly medium work, which is even more physically demanding. While the SSA decision is not binding on the MTA, it certainly is persuasive. This is a tactic that I have used successfully many times before.

When Work Doesn’t Count

I filed an application seeking Social Security Disability (“SSD”) benefits for a client who stated that he became disabled in 2005. I received a partially favorable decision today from ALJ Seymour Fier that approved the claimant’s application as of March 2008. This presents a perfect example of the type of partially favorable decision that should be appealed.

As an initial matter, instead of 2005, ALJ Fier erroneously stated that the claimant’s onset date was December 2003. ALJ Fier then concluded that the claimant never performed substantial gainful activity (“SGA”) after December 2003, and that he lacked the ability to perform sedentary work. A person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA.

The claimant testified that he did some very limited work between 2005 and March 2008, and he supplied earnings records showing that the work was not SGA. Nonetheless, even though ALJ Fier admitted that the work was not SGA, he only approved benefits as of March 2008.

ALJ Fier’s decision is clearly wrong. Accepting his findings that the claimant did not engage in SGA after the onset date, and could not do sedentary work, requires reversal. It appears that ALJ Fier hoped that the claimant would be satisfied with a partially favorable decision, and would forfeit his right to SSD benefits prior to March 2008. The reasons behind a partially favorable decision should always be scrutinized.

Gastroparesis

According to the Mayo Clinic, Gastroparesis is a condition in which the muscles in the stomach don't function normally. While strong muscular contractions are supposed to propel food through the digestive tract, in gastroparesis, the muscles in the stomach wall do not, which prevents the stomach from emptying properly. Gastroparesis can interfere with digestion, cause nausea and vomiting, and play havoc with blood sugar levels and nutrition.

I represent a 37 year woman with gastroparesis, who worked as a pastry chef and waitress. She retained me to obtain her Social Security Disability benefits right before her hearing, at which the ALJ scheduled Dr. Michael Falkove to testify as a medical expert. I argued that it was the synergistic effect between the claimant’s gastroparesis and diabetes that made her condition particularly disabling. Dr. Falkove then testified that he agreed, and took the issue one step further.

Dr. Falkove stated that while the claimant did not meet the listing for diabetes, he believed the claimant equaled that part of the listing that requires association with neuropathy. If a listing is met or equaled, then the claimant is presumed disabled, and there is no need to address the claimant’s ability to perform past or other work. Dr. Falkove explained that the claimant equalled the diabetes listing because the nutritional malabsorption from gastroparesis was a neurological manifestation that resulted in severe symptoms, as evidenced by the claimant’s hospitalizations.

When the disabling condition is somewhat atypical, you need to do some medical research to understand the nature of the problem. Diabetes is not usually disabling when it is controlled. By investigating the nature of the claimant’s medical conditions, I was able to explain why the claimant’s diabetes could not be well-controlled, which helped the medical expert explain why a listing was equaled.

Sjogren's Syndrome

Sjogren's Syndrome is an autoimmune condition in which the immune system destroys moisture-producing glands, such as tear glands and salivary glands. Symptoms include dry eyes, dry mouth, difficulty swallowing, loss of taste and smell, swollen salivary glands, severe dental cavities caused by dry mouth, and oral yeast infections. Fatigue and joint pain may occur as well, ranging in intensity from mild to disabling.

I represent a 56 year old woman who worked as a home health aide until she had to stop working due to her Sjogren’s. Her Sjogren’s was confirmed by biopsy and blood testing. The claimant’s fatigue, joint pain, and recurrent infections rendered her unable to continue working. I was retained after the claimant’s Social Security Disability (“SSD”) application had been denied, and she had been scheduled for a hearing. The claimant started receiving her SSD benefits today.

I had obtained a report from the claimant’s treating rheumatologist that showed the claimant lacked the ability to perform any type of work on a full time basis. Nonetheless, I argued that because the claimant met the “listing” for Sjogren’s, she did not need to establish her ability to perform the physical demands of working. The Social Security medical expert at the hearing insisted that there was no listing for Sjogren’s, at which point I insisted that he use a more current handbook containing the listings. The Sjogren’s listed was added in March 2008.

Benefits After A Federal Court Remand

In the last month, I received fully favorable decisions for two Social Security Disability (“SSD”) claimants whose application denials I got reversed in federal court. On remand, each Administrative Law Judge (“ALJ”) not only approved SSD benefits, but also approved a fee agreement between myself and the claimant. However, the fee agreement expressly states that it is not valid following a federal court remand, and that a fee petition would be submitted.

When the first fee agreement was mistakenly approved, it resulted in a delay of the releasing of benefits to the claimant and myself. I wanted to ensure that a similar mistake would not happen again. Therefore, the day after a hearing before ALJ Seymour Fier, which was a federal court remand, I sent him a letter notifying him that I would be submitting a fee petition and not a fee agreement. I attached a copy of the fee petition, signed by the claimant, agreeing to the 25% contingency fee.

Despite having fax and electronic filing confirmation that ALJ Fier received my letter advising him that I was proceeding via fee petition, he approved a fee agreement. Since the fee petition seeks a larger fee than the fee agreement, it could be that the ALJ is seeking to drive a wedge between the claimant and myself. In order to try to prevent that very scenario, I submitted the claimant’s signed petition agreeing to the contingent fee, but ALJ Fier inexplicably ignored it, which unfortunately, may delay the release of the claimant’s benefits.

Firefighter Gets SSD Benefits

It is common knowledge among firefighters that if they become unable to work because of an injury or illness, then they may apply for a monthly disability retirement benefit from their pension. However, many firefighters are surprised to learn that they may also be eligible for a monthly Social Security Disability ("SSD") benefit.

I represent a retired firefighter who reluctantly came to see me after he was referred by another retired firefighter whose SSD benefits I secured. The firefighter was under the impression that he was not entitled to SSD benefits because he was not "totally disabled," which he equated with being an invalid or bedridden. I explained why he misunderstood the standard for receiving SSD benefits, and subsequently submitted his application.

Yesterday, I received the firefighter's fully favorable decision. My "on-the-record" request to approve his application was granted, which meant that he was not required to testify at a hearing. Unfortunately, because of the firefighter's misapprehension regarding his rights, he applied for SSD benefits four and a half years after he became disabled and unable to work. Consequently, the firefighter forfeited a large five figure sum worth of SSD benefits.

Prudential Approved LTD, For Now

I represent a 37 year old woman from Wisconsin with back and neck impairments who worked as a territory manager for a food distribution company until October 2007. Prudential initially determined that the claimant was unable to resume working at her own job and approved benefits under a group long term disability (“LTD”) policy based on the opinions of the treating specialists. Subsequently, Prudential terminated the LTD benefits based upon the conclusions of three “independent” doctors from MES Solutions who never examined the claimant.

On appeal, I showed that the conclusions of the MES doctors could not be sustained. First, I obtained narrative reports and functional assessments from the treating doctors rebutting the MES doctors’ reviews. Second, I sent the claimant for a functional capacity evaluation that yielded test results consistent with the opinions of the treating physicians. Third, I also sent the claimant for an independent medical exam, which also corroborated the findings and conclusions of the treating physicians.

Because I had anticipated that Prudential would conduct a protracted review, I advised the claimant to ensure that her doctors specified that not only was she incapable of performing her regular occupation, but also that they address her inability to perform even less strenuous sedentary work on a sustained basis. After 24 months of receiving LTD benefits, the claimant’s group LTD policy redefined disability from being unable to do past work, to being unable to do any work.

It took a year and four months to get Prudential to reverse its termination of benefits. Today I received Prudential’s letter approving benefits for “a minimum of 24 months of benefits,” which leaves the claim for LTD benefits after April 8, 2010 unresolved. In other words, just as I had warned the claimant, once she forced Prudential to concede that she would be unable to return to her job, Prudential would then turn to its fall back position and contend that her ability to perform any other work had yet to be established.

Chronic Fatigue Syndrome

The Social Security Administration (the “SSA) issued a ruling which recognizes that the symptoms of Chronic Fatigue Syndrome (“CFS”) significantly overlap with the symptoms of fibromyalgia. The SSA also acknowledges that a rheumatologist is an appropriate specialist for treating those conditions. Since CFS, and fibromyalgia, are usually diagnosed without objective evidence, the opinion of a treating rheumatologist is particularly important.

I represent a 59 year old florist who applied for Social Security Disability benefits because his CFS left him without the stamina to work on a full time basis. The treating rheumatologist described the incapacitating fatigue and exhaustion the claimant suffered, and explained how it affected his functionality. The SSA approved the claimant’s application today without a hearing based on the rheumatologist’s opinion because “he is a specialist in the area of concern.”

Because of the absence of applicable diagnostic testing for CFS it is advisable to consult with a disability attorney before applying for any type of disability benefit to ensure that the appropriate medical evidence is submitted.

Getting Benefits While Working

There are various scenarios in which a person can work, yet still be entitled to receive Social Security Disability (“SSD”) benefits. One of those situations involves the concept of a trial work period (“TWP”). The purpose of a TWP is to allow an individual to test his or her ability to work without losing SSD benefits. The idea is to provide an incentive to encourage people to try to resume working.

A TWP can last for a total of nine months, which need not be consecutive. The money a claimant earns for working those months is not considered to be evidence showing that a claimant's disability has ended, until the claimant has performed more than nine months of TWP activity.

I represent a 41 year old custodian whose SSD benefits were disputed because his annual earnings statement reflected that he received income after his disability onset date. I contended that none of the income after the onset date contradicted the claimant’s disability. As a factual matter, I stated that part of the income was from accrued sick and vacation time, which had nothing to do with work activity. As a legal matter, I argued that the remaining income after the disability onset date was attributable to a TWP.

In a decision received today, the Administrative Law Judge accepted my arguments. The result was that the claimant received an additional five figure sum as part of his retroactive SSD benefits.

EAJA Fees

Senior Judge Arthur Spatt awarded $10,868.60 in fees today under the Equal Access to Justice Act ("EAJA") due to Administrative Law Judge ("ALJ") Iris Rothman's unjustifiable conduct. ALJ Rothman denied the claimant's application for Social Security Disability ("SSD") benefits twice. Each time the Court and Appeals Council rejected ALJ Rothman's decision.

At the claimant's third hearing, ALJ Seymour Rayner approved the claimant's SSD application. I then asked Judge Spatt to award attorney fees under EAJA. The SSA argued that I was not entitled to attorney fees following ALJ Rothman's second hearing because ALJ Rayner had considered new evidence.

Judge Spatt rejected the SSA's argument, holding that just because ALJ Rayner considered new evidence did not mean that ALJ Rothman's conduct at the second hearing was reasonable. To the contrary, Judge Spatt ruled that ALJ Rothman acted unreasonably in refusing to consider a new report containing the opinion of the claimant's treating doctor, which was necessitated after ALJ Rothman had lost the report containing the doctor's original opinion.

Stroke

According to the National Stroke Association, a stroke or "brain attack" occurs when a blood clot that is blocking an artery or a blood vessel breaks, thereby interrupting blood flow to an area of the brain. The result is that brain cells begin to die and brain damage occurs. Typical stroke symptoms include numbness or weakness to one side of the body, confusion, difficulty speaking, vision loss, imbalance, and headache. If stroke symptoms become permanent they can be disabling.

I represent a 47 year old salesman from Florida who had to stop working because of a stroke. While it is frequently difficult to obtain disability benefits in stroke cases, the claimant’s disability application was just approved in only two months.

Like most stroke cases, there was little difficulty establishing that the claimant had experienced a stroke. The claimant lost vision in one eye, had balance problems, difficulty remembering things and words, and experienced weakness and some difficulty communicating. Unlike many stroke cases though, I was able to demonstrate how those symptoms concretely impacted the claimant’s ability to function.

The claimant developed a fear of falling because since his stroke he had actually fallen several times. This was not an irrational phobia but a legitimate response to an actual risk of significant danger. As a result of the claimant’s latest fall he broke several bones, and was hospitalized. His application was approved shortly after the hospital records were submitted.

The importance of the hospitalization was not so much that he broke some bones evidencing that he had sustained a bad fall, but as I explained, the fall demonstrated that he continued to experience significant and persistent motor loss or dysfunction. The claimant simply lacked the ability to ambulate safely on a regular basis. As usual, it is not enough merely to supply medical records indicating that a claimant suffers from a particular diagnosis, but rather, it is the impact that the diagnosis has on the individual’s ability to function that needs to be established.

New Jersey District Court Remand

New Jersey District Court Judge Bumb remanded the decision of Administrative Law Judge (“ALJ”) Andrew Weiss today for failing to apply Social Security Ruling (“SSR”) 83-20 properly. The ALJ had determined that the claimant became disabled due to his mental disorders in March 2007 because that is when he started seeing a psychologist. I argued that there was no evidence showing that the claimant’s condition became worse in March 2007, and there was evidence showing that he was disabled by January 2005.

Judge Bumb agreed that the ALJ failed to explain why the claimant’s testimony was credible after March 2007, but not before then. Judge Bumb also agreed that the ALJ erred in finding the claimant did not take psychotropic medications until 2006 because the records revealed that he started taking them in 2004. Perhaps most importantly, Judge Bumb agreed that the ALJ erred in requiring contemporaneous medical records to support an onset date.

By refusing to accept a partially favorable decision from the ALJ, the claimant now has the potential of receiving many additional months and thousands of dollars in disability benefits. When receiving a partially favorable decision you should ask your attorney how many additional months of benefits are at stake.

District Court Remand

I took over the case from another attorney of a 52 year old Salvadoran aircraft plater who speaks very little English and has no formal education. The ALJ rejected the opinions of the claimant’s doctors solely on the grounds that they were inconsistent and lacked supporting findings. I argued that if the ALJ believed that the doctors’ reports contained a conflict or ambiguity, then his duty to develop the administrative record required him to ask the treating doctor to explain the alleged inconsistency or missing information. I also argued that the ALJ improperly rejected the claimant’s testimony.

Today, Judge Denis Hurley agreed with my arguments, and ruled that the Social Security Administrative Law Judge (“ALJ”) failed (a) to explain his reasons for finding that the treating doctors’ opinions were not well-supported by acceptable clinical and laboratory diagnostic techniques or were inconsistent with substantial evidence; (b) to identify the inconsistencies between the treating doctors’ opinions and the other medical evidence in the record; (c) to consider what weight to give to the treating doctors’ opinions; (d) to do a function by function analysis of the claimant’s ability to work; and (e) to consider the claimant’s testimony regarding his symptoms.

Reviewing Judge Hurley’s decision makes clear that there were numerous things wrong with the ALJ’s analysis. If those errors had been pointed out to the Appeals Council, it is very possible that it would have remanded the case, which would have saved two years’ time. If an ALJ denies your Social Security Disability claim, make sure your attorney has the right experience for appealing your claim to the Appeals Council as well as federal court.

ALJ Hoppenfeld Overtly Acts Biased

Administrative Law Judge (“ALJ”) Marilyn Hoppenfeld denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected Hoppenfeld’s denial because there was no medical evidence contradicting the opinion of the five treating doctors, including the treating rheumatologist, who supported finding her disabled. This time, Hoppenfeld relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application for lacking objective evidence, even though federal courts previously told Hoppenfeld that that she cannot reject the opinion of the physician treating the claimant’s fibromyalgia by “requir[ing] objective’ evidence for a disease that eludes such measurement, and that the opinions of two MEs who did not examine the claimant are not substantial evidence.”

Because Hoppenfeld claimed that there was no tape recording from the claimant’s remanded May 14, 2009 hearing, following the claimant’s the supplemental October 15, 2009 hearing, I requested a recording of that hearing, but was sent a copy of the claimant’s pre-remand January 10, 2008 hearing instead.

During the October 15, 2009 hearing, I stated on the record more than once that the claimant’s brother was waiting to testify. Hoppenfeld said there was not enough time that day for the brother’s testimony, or to cross examine the medical expert, but would schedule a supplemental hearing. One of the reasons why I wanted the hearing recording was to make sure that the recording clearly reflected the claimant’s invocation of her right to have a witness testify on her behalf and to cross examine an expert. Since I was not provided with a hearing recording, to ensure that Hoppenfeld could not claim that the claimant had not asserted her right for witness testimony and cross examination, I submitted a series of letters.

In response to a letter from Hoppenfeld dated November 2, 2009 that supposedly enclosed “Exhibit 27” for my review, I faxed and filed electronically a letter on November 7, 2009, where I asked Hoppenfeld when she was scheduling a hearing for the claimant’s brother to testify. I also advised Hoppenfeld that she had failed to enclose a copy of Exhibit 27F. Because I received no response, I reiterated my requests on November 17, 2009 by fax and electronic filing. Later that day, I received a response to my letter, but once again, while it acknowledged that Exhibit 27F was given to a medical expert, Hoppenfeld had failed to enclose a copy of that exhibit.

In response to interrogatories that Hoppenfeld sent a medical expert, in her letter dated December 11, 2009, Hoppenfeld stated:

You may also request a supplemental hearing at which you would have the opportunity to appear, testify, produce witnesses, and submit additional evidence and written or oral statements concerning the facts and law. If you request a supplemental hearing, I will grant the request unless I receive additional records that supports a fully favorable decision. In addition, you may request an opportunity to question witnesses, including the authors(s) of the enclosed report(s).

Immediately upon receipt of Hoppenfeld’s December 11, 2009 letter, by fax and electronic filing, I unambiguously stated:

Among other things, your letter states that I can request a supplemental hearing. I do request a supplemental hearing to cross examine Gerald Winkler, which I would prefer be scheduled at the same time that you schedule a time to take the testimony of the claimant’s brother.

Thus, not once, not twice, but three times I had now notified Hoppenfeld in writing, that I wanted a supplemental hearing to cross examine Gerald Winkler and to produce the claimant’s brother as a witness.

By letter faxed and filed electronically on April 21, 2010, I alerted Hoppenfeld that over half a year had elapsed since she held the claimant’s hearing, and agreed to schedule a supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler. This was the fourth time in writing that I had requested the supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler.

Finally, on May 20, 2010, by letter faxed and filed electronically, I submitted my fifth written request to schedule the supplemental hearing to take the testimony of the claimant’s brother and to cross examine Gerald Winkler.

Despite stating at the end of the hearing that she would schedule a supplemental hearing, and despite reiterating in writing that she would schedule the supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler, Hoppenfeld refused to do so, and instead issued her unfavorable decision. I cannot think of a more concrete example of an ALJ depriving a claimant of Due Process rights.

Hoppenfeld cannot claim that she is too dumb to understand her fundamental duty to develop the record because she admitted in writing that she had to schedule a supplemental hearing. Hoppenfeld cannot claim that she is incompetent and negligently failed to schedule a supplemental hearing because I invoked that right at the hearing, and then reminded her five times in writing that the claimant was invoking that right. Hoppenfeld’s deliberate, intentional, and gross misconduct clearly evinces her bias. Shockingly, Hoppenfeld’s failure to schedule the hearing is far from the most obvious evidence of bias in this particular case.

I have advised my client to file a complaint about Hoppenfeld’s pursuant to the “Administrative Law Judge/Public Alleged Misconduct Complaints System,” which is intended to track complaints about ALJ misconduct. The system will include information about bias complaints, investigations of complaints, and information about the claimants’ attorneys, which can facilitate collaborative action and evidence gathering. Any claimant or attorney filing bias complaint against ALJ Hoppenfeld should make clear that they want it incorporated into the Administrative Law Judge/Public Alleged Misconduct Complaints System

Veterans

With Memorial Day approaching it is a good time to address veterans who apply for disability benefits. I represent a 48 year veteran who worked as a cook, and treated at the Veterans Administration (the "VA"), whose Social Security Disability ("SSD") application was approved today.

Unlike many doctors, the VA maintains detailed typed treatment records. Since the VA also performs diagnostic testing, those reports are also contained in the VA's files. Like most doctors though, the VA treatment notes are created to aid the doctors when treating their patients, and not to serve as evidence in connection with a disability claim. Consequently, the VA records do not usually contain any information about the patient's ability to work or function.

I obtained functionality assessments from the claimant's physicians at the VA. Because of the VA's legible and detailed records, it was relatively easy for the VA doctors to explain the basis for their conclusions. The veteran treated with doctors outside the VA too, but their treatment records were less clear. Without ever being denied or needing to attend a hearing the veteran's disability application was approved.

NYCERS & SSD

A claimant needs to show that she or he is no longer able to perform his or her job in order to qualify for a disability retirement pension under the New York City Employee Retirement System (“NYCERS”). By contrast, to qualify for Social Security Disability (“SSD”) benefits, a claimant usually needs to show that he or she is unable to perform any other work. While these are different standards, a favorable NYCERS decision could be helpful when applying for SSD benefits.

An SSD claimant must show that he or she cannot do past work before having to show that he or she cannot do any other work. If a claimant qualified for a NYCERS disability pension then logically that would satisfy the burden of proving an inability to do past work. It would be very difficult for the SSA to argue that it is in a better position to assess a claimant’s ability to work than that person’s actual employer, the City, and its medical board. Therefore, a favorable NYCERS decision shifts the question to whether the claimant can do any other work.

Under certain circumstances, a NYCERS decision that a claimant is entitled to a disability retirement pension effectively requires a finding that the claimant is entitled to SSD benefits. For example, SSD claimants who are over 50, performed non-sedentary work for the last 15 years, and lack transferable skills, are entitled to SSD benefits. Today I received approval of SSD benefits without a hearing for a 56 year old physician, just two weeks after submitting his NYCERS decision. The SSA agreed that the claimant could not perform his past work, had no skills that are transferable to sedentary work, and therefore concluded that the “vocational-medical rules” required that he be found disabled.

While a NYCERS decision is not binding on Social Security, it is persuasive, and can expedite a favorable decision.

Medical Evidence and Functionality

Most people are surprised when their disability applications are denied even though they submitted medical records from their supportive doctors. Claimants should not be surprised. Medical records can readily establish the existence of a medical condition and treatment for it. However, simply having a diagnosed condition, even one that is regularly treated, typically results in a disability denial.

I took over the Social Security Disability (“SSD”) claim of a 56 year old office manager from Binder & Binder that had been denied. The file contained myriad treatment and test records, but nothing that evaluated the claimant’s physical ability to work. Within a month I obtained the treating internist’s assessment of the claimant’s functional capacity, and submitted an on-the-record (“OTR”) request for a fully favorable decision. The Judge agreed to the OTR, determined that no hearing was needed, and concluded that SSD benefits were warranted.

It is not enough simply to collect and submit medical records. The medical records need to be used to show the impact that the medical condition has on the claimant’s ability to work. When there are also adverse vocational factors, the medical evidence can require finding the claimant disabled under the medical-vocational rules.

Deceptive SSA Notices

The Office of Temporary & Disability Assistance (the “State agency”) is responsible for making the initial decision on Social Security Disability (“SSD”) claims in New York. The State agency sends letters to SSD applicants stating that he or she “must keep the appointment” to be examined by a “specialist” from IMA Disability Services (“IMA”). The letters are frequently followed by phone calls from IMA threatening that the application will be denied if the claimant fails to appear for the appointment.

As a legal matter, it is untrue that a claimant “must keep the appointment.” The truth is that most claimants do not need to be seen by a doctor from IMA. The rules provide that a claimant cannot be compelled to attend a consultative examination (“CE”), such as the IMA exam, without first seeking the particular information from the treating physicians, or asking them to clarify any alleged inconsistency in the medical evidence. However, the State agency sends the letters for the IMA CE without complying with the rules.

As a factual matter, it is also untrue that a claimant “must” attend the IMA CE. Many times, even after insisting that a claimant must attend an IMA exam, and after threatening to deny a claim if the applicant refuses to attend, SSD benefits are approved anyway. I represent a 59 year old former nurse whose SSD application was approved today six weeks after she was told that she must attend an exam by IMA.

There are countless other reasons why most demands for a claimant to attend a CE violate the rules. Not surprisingly, since IMA makes enormous amounts of money from performing thousands of CEs, they try to make claimants believe that they have no right to refuse to attend a CE. Therefore, letters insisting that a claimant attend a CE should be objected to in writing, preferably citing the regulatory basis for the objections.

Onset Date

The last date that a person works is not always the onset date for disability purposes. Understanding the difference can result in additional benefits being paid.

I represent a 53 year old former communications field technician who was injured on December 8, 2008, resulting in leg pain. On March 9, 2009, the claimant started experiencing severe back pain, and he learned that his leg pain was due to a spinal cord injury, for which he had surgery the following day on March 10, 2009.

The employer provides 13 weeks of sick pay, which is reduced to 50% thereafter. Because of his good work record, to enable him to receive an additional 13 weeks of full sick pay, the employer allowed the claimant to return to work the first week of June 2009. From that date until September 28, 2009, the claimant did not work a full day, and was unable able to perform his work duties, which I contended showed that he lacked the ability to work.

I was notified today that March 9, 2009 was accepted as the claimant’s disability date instead of September 28, 2009, which is the last date that he worked. Consequently, the claimant received an additional six months of disability benefits.

Queens ALJs

For years, claimants and their attorneys have complained about the inability to receive an impartial hearing on their Social Security Disability (“SSD”) claims from the Administrative Law Judges (the “ALJs”) at the Jamaica Queens hearing office. In a recent blog, I provided statistics from the Social Security Administration (the “SSA”) that evidenced the bias complaints.

I represent a 31 year old woman with fibromyalgia and lupus who held various jobs during the past 15 years. The claimant’s SSD application and on-the-record (“OTR”) request for a fully favorable decision were denied in Queens. Because of her precarious financial situation, the claimant relocated to Florida. The Orlando Florida hearing office approved her OTR today, just two weeks after the file was transferred. If the claimant was so obviously disabled that Orlando approved the OTR in just two weeks, why wasn't Queens able to recognize that also?

When Can You File For SSD Benefits?

My clients are frequently surprised to learn that they do not need to be out of work for a year before they can file for Social Security Disability (“SSD”) benefits. In fact, you can file for SSD benefits the day after you stop working because SSD benefits can be awarded if your medical condition is found capable of preventing you from working for at least 12 months.

I represent a 44 year old truck driver who had to stop working because of his injuries in September 2009. I filed his application the following month, and while it was initially denied in February, it was approved yesterday week through the on-the-record process. Because the SSA believed that the claimant’s condition would be disabling for at least a year, he was found eligible to receive SSD benefits as of March 2010, which is after the expiration of the full five month waiting requirement.

The claimant should start receiving his monthly SSD benefits shortly, which is well within a year of the date that he stopped working. The result is that the claimant can start to pay for his needs sooner than expected, and it also minimizes his legal fees.