SSD Approved In 3 Months

I represent a 58 year old former auto mechanic and deliveryman with cervical radiculopathy, whose application for Social Security Disability (“SSD”) benefits was approved in three months. As I have done in other cases, I supplied functionality reports and treatment records. What was different this time? Really nothing. Perhaps it was a need to make a year end quota. Or maybe it was just a Christmas gift.

Social Security Myth

Today's Newsday had an article entitled "Beware of Bad Tips on Savings for Retirement."  One of the myths addressed was that you can take early Social Security retirement when you turn 62 years old, and still get full benefits later.  

Some people take early retirement because they want to start receiving monthly payments immediately.  The article points out that by doing so, you receive 25% less than if you wait until full retirement age, and 75-80% less than if you wait until age 70.  The implication is that it usually makes more sense to avoid taking early Social Security retirement.

The decision about whether to accept early retirement is simpler if you are receiving monthly Social Security Disability ("SSD") benefits.  The SSD helps stave off having to take early retirement, which eventually leads to larger retirement benefits.

Subpoena Leads to SSD Award for Rheumatoid Arthritis

The Social Security Administration (“SSA”) recognizes that rheumatoid arthritis can be a crippling disease, as an afflicted claimant can be found presumptively disabled under listing 14.09 if the criteria are met. If a listing is not met, then a hearing is typically required.

I represent a 48 year old former dental hygienist who was scheduled for a hearing after an on-the-record (“OTR”) was denied. The typical wait for a hearing is many months, and can even be over a year. One should never be satisfied with simply waiting for the arrival of the hearing date.

I seek updated medical records and reports for most Administrative Law Judges (“ALJs”) if an OTR is denied. For those ALJs who are well known for taking excessive amounts of time before scheduling a hearing, it makes no sense to request updated records after an OTR denial because by the time the hearing arrives they will claim that the medical records are stale, and need to be updated again.

The dental hygienist had to go live in a nursing home because of her rheumatoid arthritis. After an OTR was rejected, I sought updated medical records from the nursing home. However, the nursing home refused to provide any records. Fortunately, the ALJ granted my request to subpoena the nursing home records, which totaled nearly 700 pages of objective clinical findings and diagnostic tests that support the functional less than sedentary functional assessments of the treating doctors that had been submitted previously.

Among other things, the nursing home records showed that since the claimant had been admitted, via stretcher, she had needed a wheelchair to get around, even needed assistance to use it, could not get in and out of bed without help, was incontinent, totally dependent on others for personal hygiene, including toileting, and could not even feed herself. Based on those records, I suggested that a hearing was not needed. The ALJ agreed.

Another CE Problem

     I have written dozens of times about the problems posed when Social Security schedules a Consultative Examination (“CE”) with a non-treating doctor. I had a hearing yesterday in Queens that illustrates one such problem. 

     I was representing a 37 year old former EMT who sustained serious back and knee injuries after a series of motor vehicle accidents. The medical records and the reports of the claimant’s neurologist repeatedly demonstrated that the claimant met the listing criteria for a spinal disorder. However, the medical expert at the hearing questioned whether the listing was met because the report of the one time CE by a non-treating doctor contained some contrary findings. 

     Aberrant findings from a single CE report, from a doctor who is not a neurologist, should not suffice to contradict the longitudinal and consistent medical findings of a neurologist regarding a neurological disorder. Furthermore, the claimant was prepared to testify that the CE findings were fraudulent in that the CE did not actually test what the report claimed was tested. 

     Fortunately, the medical expert testified that while the claimant did not meet the spinal disorder listing, he equaled it in severity. However, another medical expert or Administrative Law Judge may have concluded that the CE findings prevented the listing from being met or equaled. According to the regulations, there was no valid ground for the claimant to have been asked to have a CE with a non-treating doctor. Had the claimant refused to attend the CE, there would have been no evidence to contradict the claimant’s meeting a listing, and he could have avoided the need and wait for a hearing.