Appeals Council Doltishness

When an obviously wrong decision by a Social Security Administrative Law Judge (“ALJ”) is appealed to the Appeals Council you would expect its Administrative Appeals Judges (“AAJs”) to correct it. Unfortunately, the AAJs too frequently fail to rectify the ALJ’s errors.

I received a decision by AAJs Barbara Johnson and Louann Igasaki that, rather than rectifying the error by ALJ Seymour Fier, who is one of the ALJ’s being sued in a class action for anti-claimant bias, actually compounds the ALJ’s error. Even though all three physicians stated that the claimant lacked a sedentary work capacity, Fier stated the claimant had a sedentary work capacity until March 2008 because the claimant was “working” until that date. Fier omitted from his decision that the claimant’s “working” in 2007 and 2008 only amounted to $1,725.28 and $4,233.00 respectively, which does not come close to approaching substantial gainful activity (“SGA”), and certainly fails to demonstrate the claimant had anything close to the ability to work on a sustained full time basis.

The case law and regulations are absolutely clear that a person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA. To make matters even worse, even if the work had been SGA, Fier failed to consider whether the work constituted an unsuccessful work attempt or trial work period. The Appeals Council disregarded the case law and regulations, and affirmed the ALJ’s decision that the claimant had a sedentary work capacity. But that was not even their real error.

The claimant was over 55 years old at the time he became disabled. I advised the Appeals Council that ALJ Fier ruled that the claimant had no transferable skills, which was based on the testimony of the Vocational Expert (“VE”). Absolute proof that ALJ Fier concluded the claimant had no transferable skills was his applying Medical Vocational Rule 201.28, which is used when a claimant has no transferable skills. ALJ Fier mistakenly thought the claimant was under 50 years of age, and by applying Rule 201.28 would be able to deny benefits.

Because the claimant was over 55 years of age, ALJ Fier should have applied Rule 201.06. However, it makes no difference whether ALJ Fier’s applying Rule 201.28 was an attempt to deny SSD benefits consistent with his anti-claimant bias, or was a “clerical error” as AAJs Johnson and Igasaki claimed.

The claimant was over 55 years of age and had no transferable skills, and therefore, the medical vocational rules required that he be found disabled. Johnson and Igasaki claimed that a clerical error regarding the claimant’s age caused ALJ Fier to apply Rule 201.28. However, Fier’s clerical error regarding the claimant’s age had nothing to do with Fier’s conclusion that the claimant lacked transferable skills. Not surprisingly, Johnson and Igasaki failed to mention that there was any clerical error regarding the finding that the claimant lacked transferable skills.

Instead of correcting ALJ Fier’s obvious error, Johnson and Igasaki compounded it by issuing an order remanding the case for a VE to determine if the claimant had transferable skills – even though that was already done at the previous hearing, and even though Fier had already determined that the claimant lacked transferable skills. AAJs Johnson and Igasaki inexplicably ordered that another ALJ be assigned to the case.

Binder and Binder

The Wall Street Journal wrote an article yesterday that was highly critical of Binder and Binder. The article discusses how Tom Coburn, the Senator from Oklahoma, who is the top Republican on a subcommittee on Social Security, said Binder & Binder's practices were "potentially fraudulent" and raised questions on how many disability beneficiaries "are potentially improperly receiving benefits."

I doubt the charges that Binder & Binder engaged in fraudulent conduct since that implies they were knowingly and intentionally deceiving the Social Security Administration. It is much more likely that any alleged problems stemmed from Binder & Binder's practice of using non-attorney representatives to handle most of the work when processing Social Security Disability ("SSD") claims. It should be readily obvious that a claim will be handled more carefully, timely, and in compliance with applicable rules and regulations when the claim is handled by an attorney as opposed to a lay person. Binder & Binder is not alone in that respect.

As the Wall Street Journal pointed out, other large companies have tried to mimic Binder & Binder's volume business model. There are nationwide companies that Long Term Disability insurance companies tell people to use that handle SSD claims in a manner akin to Binder & Binder. Claimants should think twice before using the services of those large companies because they perceive the insurance companies as their clients.

When deciding who to chose to represent you for your SSD application, make sure that an attorney is the person who will handle every phase of your claim.

NYCERS Disability Pension

I represent a 48 year old hospital executive whose application for disability retirement benefits under Article 15 of the Retirement and Social Security Law was recommended by the Medical Board four months after it was filed. To qualify for a disability pension, an applicant has to show that he or she is permanently incapacitated from performing his or her regular job duties. This showing requires linking the medical evidence to the vocational evidence.

The claimant sustained injuries when hit by a car at work. The medical evidence from the claimant’s orthopedists, internists, and physiatrist provided the clinical findings to support their opinions regarding the claimant’s restrictions and limitations. The clinical findings and opinions were further corroborated by diagnostic tests, hospital records, and medication prescribed. Additionally, I explained how the Social Security Disability and Workers Compensation reports and awards substantiated the NYCERS claim.

Once the functional capacity was objectively supported, I established the claimant’s work duties through Department of Labor publications and a vocational evaluation. The key was demonstrating how the claimant’s restrictions and limitations precluded her from performing the work duties and physical requirements identified in the publications and vocational evaluation, as that showed a permanent incapacity from performing regular job duties.

It is always possible that the claimant may eventually have been approved for a disability pension without the vocational evidence. However, the claimant’s chances of succeeding, and doing so initially, certainly improved by addressing the vocational as well as the medical evidence.

Can You Receive SSD If You Have Income?

I received a decision today from Administrative Law Judge (“ALJ”) Seymour Rayner that approved Social Security Disability (“SSD”) benefits for the owner of a home improvement business. ALJ Rayner readily accepted that the claimant was disabled from his past work as a carpenter due to various cardiovascular related impairments. However, ALJ Rayner required a supplemental hearing to determine whether the claimant’s income as business owner precluded the receipt of SSD benefits.

Experience has shown that there is a presumption that self employed SSD claimants are working off the books. In this particular case, the disability examiner explicitly told the claimant that he would never receive SSD benefits because the examiner believed the claimant was still working.

Passive income does not prevent a claimant from receiving SSD benefits. For example, workers compensation or private disability benefits are not an automatic bar to receiving SSD benefits. Accessing an individual retirement account or tapping funds from other non-work sources such as investment income, rental property, annuities or earned interest, will not prevent entitlement to SSD benefits.

I provided ALJ Rayner with the claimant’s business records. There was no documentary evidence that the claimant was performing work or services of any kind. The claimant was simply taking periodic payments from the business as profits. In other words, the money that the claimant was getting from his business was passive income, and was no different than profits from selling stocks or bonds.

There are many ways to establish that income received is not the type that would preclude receiving SSD benefits. Simply because a Social Security representative says you cannot get SSD because you have income is not necessarily true.