Impaired Use of Hands

When applying for disability benefits based on a hand impairment, it is just as important to focus on the difficulty with manipulating objects as it is with lifting and carrying objects.  That is especially true when seeking Social Security Disability (“SSD”) benefits because of a special ruling which provides that, “Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity .... for repetitive hand-finger actions.”

If there is any significant manipulative limitation of an individual's ability to handle and work with small objects with both hands, then it will result in a significant erosion of the unskilled sedentary occupational base.  The significant limitation should result in a finding of disability, or at least require the Social Security Administration to support a denial with vocational testimony.  The stronger the manipulative limitation, the stronger the chance the claim will be approved.

          I represent a 51 year old television technical director with Carpal Tunnel Syndrome (“CTS”) and cervical radiculopathy, whose SSD application was approved today without ever being denied.  I had already secured his long term disability benefits.  The treatment records, disability assessments, and diagnostic testing showed that the claimant had severe CTS, which causes paresthesia, pain, numbness, and other symptoms in the distribution of the median nerve, which includes the fingers.  I was able to show that his hand problems were particularly bad because the CTS was compounded by cervical radiculopathy at the C6-C7 level, which causes pain, paresthesia, and numbness to radiate from the neck and from around the shoulder into the outer aspect of the arm and forearm, and along the dorsal aspect of the thumb and into the index and middle fingers.

Onset Appeal

I represent  a 50 year old former firefighter, who received a partially favorable decision (the “PFD”).  The PFD stated that the claimant became disabled on July 1, 2010 (the “EOD”), not his alleged onset date (“AOD”) of April 1, 2005.  Nothing in the record mentioned July 1, 2010.  The EOD was simply plucked out of thin air.

            I convinced the claimant to pursue an onset appeal, to have him found disabled as of the AOD.  The Administrative Law Judge agreed that the medical evidence supported the AOD, and issued a fully favorable decision today.  The end result is that the claimant will receive about an additional year of benefits.

            Before deciding to accept a PFD, a claimant should always consult with an attorney.  A successful onset appeal can result in a significant amount of additional monetary benefits.  Moreover, the earlier a claimant is found disabled, the sooner the claimant can receive Medicare, which has a two year waiting period.

Representative Payee

A representative payee is an individual or organization that receives Social Security Disability (“SSD”) benefits for someone who cannot manage his or her money.  The payee is supposed to use the SSD benefits to pay for the needs of the beneficiary and to save any remainder.

I represent a 50 year old former contract specialist with a traumatic brain injury (“TBI”), whose SSD application was approved today.  I secured reports from the claimant’s treating physicians that showed the TBI was so severe that it met the “listing” for an organic brain disorder.

         During the hearing, I elicited testimony from the claimant’s mother regarding the claimant’s cognitive deficits.  Among other things, I had the mother describe how the claimant requires assistance for most every daily activity, and that included the mother’s taking over the responsibility for handling all of the claimant’s financial matters.  I did not raise the issue of a representative payee at the hearing.  Fortunately, in his decision, Administrative Law Judge Joseph Faraguna recommended that a determination be made for a representative payee.

        

           Social Security's Representative Payment Program provides financial management for the payment of SSD benefits to beneficiaries who are incapable of managing them.  Family or friends can serve as representative payees, but if they are not available, Social Security will ask a qualified organization to be a representative payee.

Amending SSD Onset Date

          An incorrect onset date can result in a loss of Social Security Disability (“SSD”) benefits.  A 47 year old former correction officer retained me after her application for SSD benefits was denied.  Her application said that she became disabled on May 29, 2010 (the “AOD”), and she told me that she was advised to pick that date based on a conversation with a Social Security representative. 

            After interviewing the claimant, I learned that her work attempts had ended well before May 29, 2010.  I filed an on-the-record (“OTR”) request for a favorable decision that contended the claimant’s back, knee, arthritis, and hip problems prevented her being able to work.  I obtained reports from the claimant’s orthopedist and rheumatologist explaining why the claimant’s medical conditions prevented her from being able to engage in full time work on a sustained basis.  Additionally, I asked that the claimant’s AOD be amended to reflect a September 2009 onset date.

The OTR was approved today as of the amended September 2009 AOD.  The effect of the amendment is that the claimant will be entitled to receive eight additional months of SSD benefits.  The reason the Social Security representative selected May 29, 2010 as the AOD remains unclear.  This illustrates one of the many reasons why it frequently makes sense to have an attorney handle an SSD application.

State Agency Vocational Experts

          The Social Security Administration (“SSA”) frequently uses a vocational expert (“VE”) at a disability hearing to provide information regarding a claimant’s past work and potential alternative work that the claimant can do.  Much less frequently, the State agency, which makes the initial disability determination for the SSA, may also use a VE.  The information that the VEs provide to the State agency need to be examined just as closely as the testimony VEs provide at hearings.

            I represent a 51 year old former National Sales Manager for a camera company, with acute pituitary insufficiency secondary to cerebrovascular insufficiency.  The State agency agreed that the claimant could not do her past work, but denied the application because one of its VEs said the claimant could perform a substantial number of simple unskilled occupations in the economy.  The VE identified three occupations that the claimant could do.

The first occupation the VE cited was a buckle sorter, which has a specific vocational preparation (“SVP”) of 3.  However, unskilled work only has an SVP of 1 or 2.  The second identified occupation was a hand packer, which the VE said had the Dictionary of Occupational Titles (“DOT”) code number 420.587-018.  However, there is no such DOT code number.  The third occupation the VE cited was cuff folder.  However, there were not a substantial number of cuff folder positions in economy.  More importantly, cuff folder is a sedentary position, and even if the claimant had a sedentary work capacity, the SSA medical vocational rules required finding her disabled.

           After pointing out the VE errors in a letter to the hearing office, the application was approved without a hearing.

Causation and Social Security Disability Benefits

Unlike workers compensation, when seeking Social Security Disability (“SSD”) benefits, it is not necessary to establish that the cause of the disability resulted from work activity.  Just as importantly, when seeking SSD benefits, it is not necessary to establish the exact cause of the inability to work.

I represent a 58 year old woman who used to work as a case manager for the juvenile court system.  She had to stop working because of neck, shoulder, and back injuries.   Among other things, the treating doctor said that those injuries precluded the claimant from lifting or carrying more than 5 pounds.

The claimant’s SSD application was approved today.  The Administrative Law Judge (“ALJ”) agreed that the claimant was disabled because of her inability to lift and carry.   The ALJ indicated that while it was unclear which injury or injuries were responsible for the limited ability to lift and carry, it was evident that the claimant's ability was limited to five pounds.

While some disability benefits require establishing the etiology of the medical condition or what impairment renders the claimant disabled, SSD only requires establishing the existence of a medical condition that can reasonably be expected to cause the claimant’s limitations.

Alport Syndrome

According to the Alport Syndrome Foundation, Alport Syndrome is an inherited disease of the kidney that can also affect the inner ear cochlea and eye.   Like any medical condition, it can be disabling if it becomes severe.

A 57 year old sewage disposal worker retained me last month after his application for Social Security Disability (“SSD”) benefits was denied.  The State agency denied the claim on the grounds that none of the claimant’s medical conditions were severe enough to prevent him from working.

I obtained medical evidence from the claimant’s doctor that explained how Alport’s Syndrome disabled the claimant due to hearing loss and the need for constant bathroom access.  Additionally, I explained how considering all of the claimant’s impairments together showed that the claimant could not work on a sustained basis.  The hearing office agreed, and approved my request for a fully favorable decision on the record less than 1.5 months after I was retained.  Therefore, not only will the claimant avoid having to attend a hearing, but he will also start receiving SSD benefits far sooner than expected.

Reopening SSD Applications

There is a full 5 month waiting period for Social Security Disability (“SSD”) benefits.  Thus, if you became disabled on June 25, 2009, known as the alleged onset date (“AOD”), then you would first become eligible to receive SSD benefits as of December 2009, known as the date of eligibility (“DOE”).

The most an application can seek in terms of retroactive SSD benefits is 12 months before the month in which the application is filed.  Therefore, if you file an application on May 3, 2011, the earliest DOE would be May 2010, assuming that the AOD predates May 2010 by 5 full months.  If the AOD were June 25, 2009, then the May 3, 2011 application would have a May 2010 DOE, and SSD benefits from December 2009 through April 2010 would be lost.

The above facts were taken from one of my client’s claims, which was approved today without a hearing.  Fortunately for the claimant, I was able to avoid her losing the 6 months of SSD benefits from December 2009 through April 2010, by reopening a prior application that she had filed unsuccessfully before retaining me.

Reopening a prior application is only automatic within 12 months after the initial determination on an SSD application.  The regulations provide that an application can be reopened within 4 years for good cause, which includes new and material evidence.  I moved to reopen the prior application upon filing and when submitting a request for a fully favorable decision on the record to avoid the need for a hearing.  The Administrative Law Judge approved the new application, and reopened the prior application.

Relying on good cause to reopen an application is advisable only as a last resort.  The better practice is to file an appeal, or seek to reopen within the 12 month period.

David Nisnewitz Found Unfit To Be ALJ Again

I have previously described how federal court judges are constantly rejecting the decisions of Administrative Law Judge (“ALJ”) David Nisnewitz for repeatedly failing to comply with the laws regarding Social Security Disability (“SSD”) benefits.  ALJ Nisnewitz continues to make the identical errors of law year after year.  Therefore, I contended that his preference for denying disability claims inhibits his impartial judgment, which The American Heritage Dictionary defines as “bias."

Some of my prior blog entries also described a class action lawsuit that was filed last year, which accused ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants.  The class action is pending before federal district court judge Carol Bagley Amon.

Lazo-Espinoza v. Astrue, 2012 WL 1031417 (E.D.N.Y. Mar. 27, 2012) is the latest federal court decision involving a Nisnewitz decision.  It seems that federal district court judges are becoming just as fed up with Nisnewitz’s disdain for the law and rights of Social Security claimant’s as are the claimants and their representatives:

The administrative record here demonstrates that ALJ Nisnewitz, not only initially disregarded Plaintiff's need for a Spanish language interpreter, but he was dismissive, rude, and intolerant.  His failure to subpoena any of Plaintiff's treating physicians, including a specialist, to amplify the record shows a blatant disregard, not only of the legal standards, but of his obligations as a judicial officer and the basic rights and humanity of a vulnerable segment of our society, the disabled.  This court previously noted such intolerable conduct by ALJ Nisnewitz.  See Bailey v. Astrue, 815 F.Supp.2d 590 (E.D.N.Y.2011); Ginsberg v. Astrue, 2008 WL 3876067 (E.D.N.Y. Aug.18, 2008).

I represented the claimant in the Bailey case, which was reassigned to another ALJ because of Nisnewitz’s “contentiousness.”  Because of the “rudeness, dismissiveness and intolerance on the part of ALJ Nisnewitz that was not appropriate,” the court had to reassign Lazo-Espinoza's claim to a different ALJ on remand once again.

It seems clear to at least one federal district court judge that ALJ Nisnewitz is unfit to hear Social Security cases.  Hopefully, Judge Amon will agree that ALJ Nisnewitz should not hear any cases in the future.

The Social Security Administration may think that transferring ALJ Nisnewitz to another hearing office is the solution.  Such a transfer would not resolve any of the bias issues raised in the class action.  Rather, it would be akin to what the Catholic Church did with pedophile priests; i.e., they transferred the offenders and naively hoped the problem would go away.