Hearing Wait Gets Worse

According to statistics provided by the Social Security Administration (“SSA”), there has been a steep increase in the amount of time hearing offices take to process disability claims. It now takes about 450 days on average for a claimant to get a hearing, which is about 100 days longer compared to 2012. 

An SSA audit from November stated that the hearing backlog is nearing a million cases. One cause is that the SSA changed the rules late last year to make it more difficult for attorney advisors to issue favorable decisions. The SSA seems to attribute the increasing delays to budgetary problems.

Internists’ Disability Opinions

The Social Security Administration (“SSA”) gives greater weight to the disability opinion of a specialist than an internist, who frequently is considered to be a generalist. Many people do not even think to ask their internists to complete reports to support their disability application, which is a mistake. 

An internist can be the most appropriate physician to provide a disability opinion in many circumstances. For example, when a claimant has multiple, different types of impairments your internist is probably the best person to ask for an opinion as the physician most knowledgeable about all of your medical problems. An internist is also usually responsible for continuing care after other specialists have completed their job, such as a surgeon who may only follow up once after the operation. 

The SSA approved two cases this week based on the medical information that internists provided. One claimant was a 54 year old home health aide with orthopedic impairments, diabetes, and carpal tunnel syndrome, while the other was a 44 year old nurse with orthopedic problems and anxiety. Each internist gave functional assessments and narrative information that explained why the claimants lacked the ability to work on a full time basis.

SSA Form 821

One of the countless forms that the Social Security Administration (“SSA”) uses is SSA-821 “Work Activity Report.”. The SSA asks a claimant who is applying for Social Security Disability (“SSD”) benefits to complete form SSA-821 when it sees the claimant has income after the date when the SSD application says the claimant became disabled, known as the alleged onset date (the “AOD”). 

Not all income after the AOD precludes receipt of SSD benefits. I represent a 60 year old extermination service salesperson whose SSD benefits were awarded today even though her form SSA-821 reflected two sources of income after the AOD. However, neither provided grounds to issue a partially favorable decision. 

The first source of income represented accrued vacation time, while the second represented unused sick time. Both of those sources of income constitute passive income. A person can receive SSD benefits regardless of the amount of income they receive so long as it is passive income.

Binder & Binder Goes Bankrupt

The Wall Street Journal (“WSJ”) and Reuters reported that Binder & Binder filed for bankruptcy late yesterday. Those filings indicate that Binder plans to close offices and reduce its staff from about 1,000 to about 350. It remains to be seen how that reduced staff can handle Binder’s nearly 58,000 clients. 

The WSJ has been critical of Binder & Binder for many years. While I was wary about the WSJ’s contention that Binder & Binder engaged in fraudulent conduct, I did suggest that when selecting a Social Security law firm, to make sure that an attorney would be the person representing you. Most of Binder & Binder’s employees are not attorneys, which, among other things, means your conversations may not be privileged.

The WSJ cited tougher scrutiny of disability claims, by Administrative Law Judges who are approving significantly fewer cases, as one of the main reasons for Binder’s problems. Tougher scrutiny created greater problems for Binder & Binder because the majority of its work is performed by non-attorney advocates. I agree with Troy Rosasco, another Social Security Disability attorney, who blogged: 

In my opinion, this is a good example why Social Security disability representation should be left to smaller local law firms rather than mega-national corporations with non-attorney advocates. The Social Security Administration should rescind fee withholding for non-attorney advocates which are the steroids allowing Binder & Binder and similar corporations to grow exponentially. 

It is clear that the Binder & Binder non-attorney advocate business model may now be imploding on a massive scale, and its reported 57,000 clients are possibly at risk. massive scale, and its reported 57,000 clients are possibly at risk.

A large portion of Binder & Binder’s debt comes from their ubiquitous television advertisements. Binder might stop taking new cases and just work on the cases they already have, which would take two or three years for the majority of claims. Without the cost of advertising, Binder’s expenses would decrease significantly, and they would gradually lay off employees as the numbers of files decrease, while their income would probably stay about the same the same during the same time period. 
  

Sensorineural Deafness

Sensorineural deafness, the most common type of hearing loss, occurs either from damage to the inner ear, the auditory nerve that runs from the ear to the brain, or the brain. Leading causes are loud noises, diseases, aging, trauma, and genetics. Symptoms include imbalance, tinnitus, difficulty following conversations and higher pitched sounds.

When the labyrinthine-vestibular impairment causes loss of balance and tinnitus that is accompanied by severe hearing loss, the Social Security Administration (“SSA”) deems the condition to be disabling. To meet the applicable listing, caloric or other vestibular testing is needed to show the vestibular labyrinth disturbance, while audiometry is needed to show the hearing loss.

I represent a 50 year old carpenter with Meniere's Disease, who had to stop working because of his balance and hearing loss. He treated at the Veterans Administration (“VA”), which conducted the requisite testing to meet the listing. The VA physician wrote a narrative report explaining why the claimant met the listing, which was the basis for the SSA approval. Notably, there is a directive for the VA to help complete forms to obtain SSD benefits.

Dementia

Dementia is a permanent loss of brain function that affects memory, thinking, language, judgment, and behavior. Dementia is not a disease, but rather, it is a group of symptoms that are caused by various diseases or conditions. 

When dementia is caused by a series of small strokes it is known as multi-infarct dementia or vascular dementia. The symptoms of vascular dementia include: confusion; difficulty with attention and concentration; diminished ability to organize thoughts or actions, and to analyze a situation, develop an effective plan and communicate that plan to others; memory loss; unsteady gait; incontinence; and depression. 

I represent a 54 year old financial operations consultant with progressive dementia, paresthesias, decreased strength and memory, antalgic gait, headaches and some orthopedic and vision problem as well. The treating cardiologist diagnosed the claimant with vascular dementia from cerebrovascular disease, which was verified by a brain MRI, CT scan, and EP study. 

The Social Security Administration found the claimant was disabled today, and therefore, entitled to disability benefits. No hearing was required. A hearing was avoided because the hearing office staff had specified additional evidence that they felt was needed to make a decision, which was promptly supplied. It is vital that the hearing office personnel know that they can rely on your representative whenever it comes to any request for information.

CIGNA Says Claimant Cannot Do Any Work

Last August, a U.S. District Court reversed CIGNA’s termination [Federal Court Reverses CIGNA] of long term disability (“LTD”) benefits. The court found that CIGNA had failed to identify any evidence that the claimant’s condition improved to justify terminating LTD benefits. However, the Court ruled that while the claimant had proven that he was disabled under the LTD policy’s “regular occupation” period, CIGNA had to be given the opportunity to determine if the claimant were disabled under the policy’s subsequent “any occupation” period. 

As more than four months had elapsed, and CIGNA still had not rendered a decision, I faxed a letter warning that I would file a new action unless I received CIGNA’s decision by the end of the week. The following day, I was advised that CIGNA would find the claimant unable to perform any occupation, and was approving continuing LTD benefits. As a result, in addition to LTD benefits, my client will also receive coverage under health, life, and dental policies. It seems to me that CIGNA could save a significant amount of money in administering LTD claims and in attorney fees if it would pay patently supported claims.

Biased SSA Review Policy

A few years ago, the Social Security Administration (“SSA”) created the Division of Quality (“DQ”) and Quality Review Branch (“QRB”), which has increased the number of Administrative Law Judge (“ALJ”) decisions that the Appeals Council reviews on its “own motion.” The ostensible purpose of the DQ was to ensure greater consistency among ALJ decisions. However, as more time progresses, it has become apparent that the true purpose is to try to reduce the number of ALJ decisions that get approved. 

My experience and that of my colleagues has been that the DQ has only reviewed clients’ ALJ decisions that have approved disability benefits. Several ALJs have told me that since the DQ was formed, the SSA has been demanding greater justification for approving disability claims, and statistics corroborate that ALJs have been pressured into significantly decreasing their approval rates during the same time period. 

The problem is that the SSA is supposed to be a neutral and non-adversarial agency. The DQ should be checking to see that ALJ decisions denying disability benefits are supportable with the same frequency that it checks ALJ decisions approving disability benefits. This lack of mutuality simply amplifies the cynicism about a claimant’s increasing difficulty of receiving a full and fair hearing process.

Videotaping IMEs

For decades, long term disability (“LTD”) insurance companies have routinely videotaped disability claimants both at and away from their homes, engaged in daily activities. The LTD insurers use the surreptitious surveillance to rebut the claimants’ claims of physical or mental limitations caused by their disabling condition. 

Courts have admitted the surveillance videotape based on the LTD insurers’ argument that if claimants are telling the truth about their medical conditions, then they should have nothing to hide. Conversely, if claimants are being dishonest, then the videotape is evidence exposing the dishonesty. 

There are now small high-definition cameras that are relatively inexpensive that make it easy to conceal videotaping. Disability claimants could and should use these types of cameras to take surveillance videotape when the LTD insurers requires them to submit to a so-called "independent medical examination" (“IME”), which everyone knows is anything but independent. Claimants could use the surveillance to rebut the validity of the assertions made by the insurer’s IME physicians. 

Since LTD insurers extensively embrace the use of surveillance videotaping of claimants, it would be hypocritical for the insurers to object to claimants using surveillance videotape of IME doctors. If the LTD insurers argue that they need videotape surveillance because there are dishonest people who commit fraud to reap the monetary gain from disability benefits, then the insurers have to concede that there are also dishonest people who commit fraud to reap the monetary benefit from conducting disability IMEs. 

A boilerplate clause in virtually every group LTD policy is the right of the insurer to conduct a medical exam of the claimant, the so-called IME. My experience has been that the insurer IME are doctors, usually with subpar credentials, who have had little success in making a living practicing medicine, and therefore need IME income. These doctors know that if they want to continue to have their income supplemented by IMEs, then they need to deliver reports that the insurers will like; otherwise, they will not receive repeat business. 

I have been unable to locate any rule, regulation, or statute that prohibits videotaping an LTD IME. In fact, every time I advise an LTD insurer that my client will videotape an IME, to which they always object, the LTD insurer has been unable to identify any law or contractual provision that would prohibit videotaping an LTD IME. Therefore, since courts have routinely accepted surveillance of disability claimants as evidence submitted by LTD insurers, courts should accept surveillance of IME doctors as evidence submitted by LTD claimants. 

There is no reason why a court should reject videotape evidence that shows an LTD IME did not tell the truth, or failed to do what the IME report claimed was done. Inconsistencies between an IME report and IME videotape are no different than inconsistencies between what a disability claimant claims and surveillance videotape purportedly reveals.

Unum Agrees Claimant Can’t Do Any Work

I represent a securities trader with psoriatic arthritis, whose long term disability (“LTD”) benefits Unum was looking to terminate after the definition of disability in its policy changed from own occupation to any occupation in October 2014. As far back as January 2014, Unum had been asking for medical evidence to support the change in definition, which I had been opposing as being premature. 

Unum found that the evidence I submitted supported that my client’s condition prevents him from being able to perform any relevant occupation. Consequently, Unum approved making continued LTD benefits. 

In its approval letter, Unum asked to be advised if my client’s contact information changed. I have instructed Unum countless times that it may not contact my client directly. Therefore, there is no need for Unum to be advised of any such change. What Unum is not saying is that it wants to know if my client relocates in case it wants to pay for surveillance as a means to terminate his LTD benefits, since the medical evidence does not provide a basis for doing so.

Remand Reversal

Administrative Law Judge (“ALJ”) Bruce MacDougall has retired from the Jericho Social Security hearing office. He had denied the Social Security Disability (“SSD”) application of one of my clients with numerous orthopedic and neurologic impairments, by rejecting the opinions of the treating orthopedist and pain management specialist, even though the opinions were objectively supported. 

The Appeals Council agreed that the ALJ failed to provide good reasons for rejecting the treating doctors’ opinions, and remanded. Among other things, the Appeals Council ruled that the ALJ failed to identify any evidence to support his conclusion that the claimant could sit on a “regular and continuing basis” for an 8 hour, five day a week, basis. Consequently, the Appeals Council rejected the ALJ’s decision, ordered a new hearing. 

A new ALJ heard the case on remand. As there was no evidence to contradict the opinions of the treating doctors, a vocational expert (“VE”) was asked if the claimant could work based upon the functional findings of the treating doctors. The VE concluded that the opinions of the treating doctors precluded even sedentary work. Accordingly, the claimant’s SSD application was approved. 

The remand was relatively simple because there was a great deal of work put into the papers submitted to the Appeal Council. I always prepare my appeal to the Appeals Council as if I were submitting a summary judgment brief in federal court. If the Appeals Council rejects the appeal, I incorporate my Appeals Council comments into the federal court complaint. Fortunately, the new ALJ essentially accepted the arguments made to the Appeals Council, which served as the basis for the remand, obviating the need to proceed to federal court.

Pseudarthrosis

Pseudarthrosis, which is commonly referred to as a nonunion or false joint, is a bone fracture that will not mend because the body perceives bone fragments as separate bones and does not attempt to unite them. Pseudarthrosis occurs from inadequate healing after the fracture, and can result from a failed attempt of spinal fusion. Pain recurs in a very similar location to that before surgery. 

I represent a 42 year old grocery store manager with back problems. The State agency denied his Social Security Disability (“SSD”) application even though diagnostic testing revealed lumbar radiculopathy. However, weeks after I submitted a report from the treating spine specialist diagnosing the claimant with pseudarthrosis, his SSD benefits were approved.

Proper Hearing Notice

A colleague stated that, for the second time in two weeks, the Jericho Social Security hearing office added an expert witness just one week before the hearing. He wanted to know if there was a basis for objecting to the short notice. The answer is yes. 

Under the Social Security regulations, 20 CFR § 404.938, a hearing notice must be sent at least 20 days before the hearing, and must state if the appearance of any witness is scheduled to be made in person, by video teleconferencing, or by telephone. Furthermore, HALLEX I-2-3-15D requires the notice to include the proper names of expert witnesses. 

A hearing notice is defective if it failed to identify the name of a medical or vocational expert at least 20 days before the hearing. The notice would be defective even if it indicated that an expert would appear, but failed to identify the proper name of the expert. For example, a notice that states that the hearing will include testimony from the name of a company that provides vocational services without specifying the individual from that company is defective. 

There are two choices when the hearing notice is defective. You can waive the right to receive a proper notice of hearing at least 20 days before the hearing. Alternatively, you can insist that an amended notice of hearing be mailed to include the proper name of the expert, and that notice must be provide at least 20 days notice.

Video Taping Consultative Examination

For virtually every Social Security Disability (“SSD”) claim, the State Agency sends letters to claimants telling them that they have to attend a consultative examination (“CE”). In New York, the State Agency contracted with Industrial Medicine Associates (“IMA”) to perform the CEs. 

There is no Social Security ruling, regulation, statute, guideline, POMS, HALLEX, or case law that precludes an SSD claimant from video recording his or her CE. To the contrary, video taping an IMA CE is consistent with the SSA tape recording experts and witnesses at hearings. Notably, section 137 of the Workers’ Compensation law specifies that a claimant has the “right to video tape or otherwise record” an examination. 

One of my clients appeared at IMA for his CE. However, the IMA office manager refused to allow the CE to proceed because the claimant wanted to video tape it. The IMA office manager stated that they had the “discretion” to refuse to be video taped. When the claimant asserted his right to videotape the CE, the office manager told him to leave. 

Because the claimant video taped the IMA office manager saying that they had the “discretion” to refuse to be video taped, and telling him to leave, it is undeniable that IMA, not my client, refused to proceed with the CE. That videotape will prove that any assertion by the State agency that the claimant “failed to cooperate” is a lie, as he was ready, willing, and able to examined.

Antiphospholipid Syndrome

I have recently taken on several disability clients afflicted with Antiphospholipid Syndrome. According to the Mayo Clinic, Antiphospholipid Syndrome is an incurable condition that occurs when your immune system mistakenly attacks some of the normal proteins in your blood, which can cause blood clots, stroke, headaches, rashes, cardiovascular disease, and memory loss. 

I represent a 62 year old bookkeeper with Antiphospholipid Syndrome, whose Social Security Disability (“SSD”) application was approved today after just three months. Having obtained the documentation establishing the diagnosis of Antiphospholipid Syndrome, it was not difficult showing the claimant’s entitlement to SSD benefits, even though her past work sedentary. 

In order to reduce the claimant’s risk of a clot in her legs, her doctor advised her to elevate them frequently above the height of her heart. As sedentary work cannot be performed properly with elevated legs, whether lying down or reclining in a chair, the claimant had to be found disabled.

Non-Hodgkin’s Lymphoma

Non-Hodgkin’s Lymphoma is cancer that originates in your lymphatic system, which is the disease-fighting network that is spread throughout your body.  According to the National Cancer Institute, there are over 70,000 new cases of Non-Hodgkin’s Lymphoma each year in the U.S.  Typical symptoms include: swollen lymph nodes; abdominal pain or swelling; chest pain, coughing, or trouble breathing; fatigue; fever; night sweats; and weight loss.

Like any medical condition, a person with Non-Hodgkin’s Lymphoma can establish disability by showing that it, or its treatment, prevents then from having the functional capacity to work.  A person with Non-Hodgkin’s Lymphoma can also establish disability by showing that a listing is met.

I represent a 46 year old teacher with Non-Hodgkin’s Lymphoma whose Social Security Disability application was approved in two months.  The only explanation for the rapid approval is that Social Security determined the claimant met the applicable listing, 13.05.

Supplemental Hearing Cancelled

I represent a 46 year old delivery driver with neck, back, shoulder, and knee problems, who submitted reports from several of his doctors that provided for a very restrictive functional capacity. The administrative law judge (“ALJ”) said that he wanted a supplemental hearing after a consultative examination (“CE”) because he could not understand the basis for the restrictions. I objected to the CE on the grounds that the ALJ was obligated to contact the treating doctors if he believed the restrictions were inconsistent with the medical records. 

After receiving additional treatment records, the ALJ cancelled the supplemental hearing and CE. The treatment records did provide a wealth of contemporaneous objective and subjective evidence regarding the claimant’s condition. However, the treatment records did not provide functional limitations, which treatment records rarely if ever do. 

The purpose of treatment records is to provide information that the doctor may want to remember at the next exam; not to provide evidence of functional restrictions and limitations for legal proceedings. The Social Security Administration (“SSA”) knows that, which is why it uses forms such as DDD-3883 and HA-1151 to obtain restrictions and limitations from treating doctors. The problem is that ALJs are requiring that treatment records to serve as evidence to support a doctor’s functionality assessment, which is absurd because treatment records serve a completely different purpose. 

Physicians do not record all of their observations when taking exam notes, especially ones that have been made before or for which reminding is not needed. If a patient sees a doctor for back pain, the doctor is unlikely to write in that date’s notes that the patient’s back was sore or stiff. However, some ALJs would deny benefits on the grounds that the clinical findings supposedly are inconsistent with the functional restrictions. Asking the treating doctor to harmonize the alleged inconsistency prevents an ALJ from improperly rejecting a treating doctor’s opinion.

SSA Still Not Using eCAT Properly

The Social Security Administration (“SSA”) has been using the electronic claims analysis tool (“eCAT”) to document a disability adjudicator’s analysis since 2009. The goal was to foster uniformity so that applicants would be treated the same regardless of where they lived, and to ensure that all SSA policies are considered during the disability adjudication process. 

The eCAT produces a Disability Determination Explanation (“DDE”) that documents the detailed analysis and rationale for either allowing or denying a claim. The DDEs of my claimants repeatedly show that the eCAT is failing to ensure the SSA policy of asking treating sources to conduct a consultative examination (“CE”) is being followed. 

I represent a 50 year old landscaper with cervical radiculopathy, diabetic neuropathy, and arthritic knees, whose Social Security Disability application was approved today without a hearing by an Administrative Law Judge (“ALJ”) after a State agency examiner named Davidson, who used the eCAT to create the DDE, had denied the application. Davidson denied the SSD application solely because the claimant refused to attend an unnecessary CE that would have violated the Social Security rules and regulations. In the DDE, Davidson misrepresented that she contacted a treating doctor who refused to accept the State approved fee for performing the CE. The truth was that each treating doctor was ready, willing, and able to perform the CE. 

To compound matters even further, Davidson also expunged critical evidence from the file that supported the claimant’s application. In the Residual Functional Capacity (“RFC”) section of the DDE, Davidson also misrepresented that no RFC assessments are associated with the claim, yet Davidson even admitted in the Record Source Statement section of the DDE report that one of the claimant’s dual board certified specialists in Pain Medicine and Physical Medicine and Rehabilitation concluded the claimant was limited to sitting 2 hours, and standing/walking less than 1 hour. 

The ALJ approved the claimant’s SSD application based on the RFC provided by the claimant’s treating physician. If Davidson had followed the goal of the eCAT, and had complied with the SSA policy of asking treating doctors to perform CEs, then the time and resources of the SSA would have been preserved, and the claimant would have received his approval sooner. The State agency needs to be made accountable for habitually ignoring the purpose of the eCAT.

Passive Income

You can receive Social Security Disability (“SSD”) benefits and still receive income from other sources. If the income is passive, such as money from investments, there are no limits to how much you can receive. There are limits only if the income is from your work activity. 

SSD benefits are often held up because the Social Security Administration believes claimants are working. If a claimant explains that income is from rental property, the SSA requires a hearing to take sworn testimony that the claimant is not doing any physical work for the property. If a claimant explains that income is from their former business, then SSA will want letters from former suppliers that the claimant no longer works there, or proof of the business being closed. 

I represent a 55 year old lab technician with cervical and lumbar radiculopathy and carpal tunnel syndrome whose SSD benefits were held up because of “earnings” after her disability onset. The amount of the “earnings” greatly exceeded substantial gainful activity limits. The source of the earnings was an insurance company, which we were able to show represented benefits paid under a group disability plan through work. This shows that as long as the income was passive, a claimant is entitled to SSD benefits regardless of the amount of the passive income.

Establishing Mental Disability

The Social Security Administration (“SSA”) uses the same process for evaluating disability regardless of whether the cause is mental or physical. In short, the SSA determines whether or not the limitations from mental impairments result in a functional capacity to work. 

The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approves disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report. 

If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability. A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the basic mental demands of work. 

A 46 year old telecom worker retained me after her application for Social Security Disability (“SSD”) benefits was denied. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits based largely on the listing letter.

Langerhans Cell Histiocytosis

Langerhans cell histiocytosis (“LCH”) is a rare disorder that is treated like a cancer, but is an autoimmune disorder in which immune cells begin to overproduce and attack the body instead of fighting infection. LCH creates excessive histiocyte cells, which normally help the immune system destroy foreign materials and fight infection. The extra histiocytes can form tumors, or cause pain and swelling and other complications, such as fractures or secondary compression of the spinal cord. 

Like many types of cancer, the Social Security Administration (“SSA”) recognizes that LCH is such a serious medical condition that it gets expedited review as a potential Compassionate Allowance. Compassionate Allowances allow the SSA to identify medical conditions that invariably qualify for Social Security Disability (“SSD”) benefits based on minimal objective medical information. 

Once objective diagnostic testing confirms the presence of a condition on the Compassionate Allowance list, the SSA usually approves SSD benefits without any further inquiry. In other words, the SSA approves benefits based upon the presence of the condition. Meeting a listing even requires showing that a serious medical condition has reached a certain severity level. 

I represent a 53 year old restaurant manager with LCH whose SSD application was approved two months after it was filed, and less than a week after I submitted reports from the claimant’s two doctors providing for the LCH diagnosis.

IMA Disability Services

Typing “IMA Disability Services” (“IMA”) in the search box on my blog page will reveal that I probably have written about IMA more than any other topic. 

I was notified that the Social Security Disability (“SSD”) application of one of my client’s, a 54 year old custodian with back and knee problems, was approved today. On June 13, 2014, July 8, 2014, July 28, 2014, and July 29, 2014, the State agency sent my client letters stating that he had to be examined by IMA. Moreover, IMA telephoned my office and stated that they can schedule an exam and, they don’t have to send my office a letter. 

Social Security has paid IMA millions of dollars to examine disability claimants. IMA is charged with knowing the rules and regulations for scheduling and performing exams as part of its contractual obligation for the exclusive right to perform the exams for Social Security. IMA is obligated to send written notification to claimants when scheduling exams. 

Perhaps more importantly, when applying, I notify Social Security that neither they nor the State Agency are authorized to communicate with the claimant directly, and I cite the applicable sections of the POMS, where the attorney must be contacted after advising that the claimant does not want to be contacted by the State agency directly. As far as I am concerned, if I do not receive written notification that the State agency wants a claimant to attend an exam, then it was never scheduled. Notwithstanding the above, despite the fact that IMA sent four letters demanding that the claimant attend its exam, and despite the fact that IMA insisted that it was imperative for the claimant be examined, his SSD application was approved today, three months after it was filed.

Federal Court Reverses CIGNA

U.S. District Court Judge Bianco reversed the termination of long term disability (“LTD”) benefits yesterday by CIGNA. CIGNA claimed that it could terminate my client’s LTD benefits because he did not submit “time concurrent” evidence of disability. CIGNA’s in house shill, Dr. John Mendez, said that evidence was “time concurrent” if submitted within one month of CIGNA’s termination decision. 

Mendez testified at his deposition that the need for “time concurrent” evidence to establish disability was based on his “clinical experience, expertise, and knowledge.” Gary Person, who supervises CIGNA disability appeals, admitted during his deposition that neither the Policy, nor any other CIGNA document, required “time concurrent” evidence to establish disability. Judge Bianco accepted my argument that since CIGNA’s Disability Policy did not state that “time concurrent” evidence was required, it could not provide a basis to terminate Plaintiff’s LTD benefits. 

Judge Bianco also agreed that CIGNA failed to identify any affirmative finding that the claimant’s condition improved to justify terminating LTD benefits. Since CIGNA had previously found the claimant was disabled, Judge Bianco found the claimant remained disabled because CIGNA terminated LTD benefits based upon a purported absence of evidence, as opposed to affirmative evidence showing the claimant got better. Judge Bianco added that implying that the claimant had improved because he took an overseas trip was unpersuasive selective cherry-picking.

SSD for RSD

Reflex Sympathetic Dystrophy (“RSD”), which is also known as Complex Regional Pain Syndrome (CRPS), is believed to be a nervous system malfunction that develops in response to trauma, and affects so many people that the Social Security Administration (the “SSA”) promulgated a special rule for it. 

I represent a 46 year old foreman working for a boat manufacturer with RSD whose application for Social Security Disability (“SSD”) benefits was approved today without the need for a hearing. While the claimant had submitted reports that documented the medical findings and resulting functional restrictions, the SSA did not approve the SSD benefits until the claimant submitted treatment records from the his orthopedist. 

The treatment records merely corroborated the evidence that had already been submitted. It remains unclear if the records were requested for the sake of completeness, or whether the SSA was attempting to see if there was anything in the records that would contradict the supporting evidence already in the file.

State Agency Waste and Delay

The State Agency makes the initial decision when you apply for Social Security Disability (“SSD”) benefits. Unfortunately, the vast majority of the time, it is a clerk, not a doctor, who makes the decision for the State agency. As you can imagine, those clerks usually make the wrong decision. Even worse, sometimes the clerks go out of their way to avoid approving SSD applications. 

I represent a 49 year old pharmaceutical manager with depression. The State agency clerk named T. Cotman denied the application on the grounds that the claimant’s psychiatrist did not send treatment notes to substantiate her opinions about the claimant’s mental limitations. The psychologist had submitted a report that specifically identified the medical findings supporting her restrictions and limitations due to the claimant’s depression. However, Cotman purged that report from the claimant’s file. On appeal, a copy of the report, together with the Electronic Records Express receipt showing that the State agency received it on November 23, 2012 at 2:51 PM EST, was resubmitted. 

The psychologist’s report showed that the claimant met the listing for depression. Based solely upon that report, the claimant’s SSD application should have been approved. The administrative law judge (“ALJ”) approved the claimant’s SSD application today based upon that report; as the psychologist refused to produce the treatment records on confidentiality grounds. The ALJ did have a Social Security psychologist review the report, who opined it showed the claimant met the listing. 

If Cotman had asked a Social Security psychologist to review the report, instead of purging it from the file, then the claimant’s application would have been approved more than a year earlier. Moreover, it would have prevented the hearing office and ALJ from having to expend their time and resources to do precisely what the State agency was obligated to do.

Lyme Disease

Lyme Disease is an infection caused by bacteria called Borrelia burgdorferi, which can lead to chronic encephalomyelitis. There are laboratory blood test findings that can provide objective support for the diagnosis. However, whether Lyme is considered disabling is a function of the severity of its symptoms.

I represent a 48 year old woman from Virginia with Lyme Disease that worked as an engineer, whose Social Security Disability (“SSD”) application was approved today without a hearing. The key was that the claimant was treating with the right specialist, dual board certified in Infectious Disease and Internal medicine, who prepared a very detailed narrative report, which explained why the treatment, objective and subjective medical evidence, precluded the claimant from functioning in a full time capacity. 

Many disability adjudicators are predisposed to reject disability claims based upon Lyme Disease, and frequently even question the validity of the disease itself. The narrative report was expensive, but still represented less than one month’s SSD benefits.

SSD Benefits for Hearing Loss

Can you receive Social Security Disability (“SSD”) benefits if you have problems hearing but are not deaf? The answer is yes. Perhaps the tougher question is how do you establish your entitlement to SSD benefits when you have problems hearing but are not deaf. Most claimants establish their entitlement to SSD benefits by showing how their medical conditions prevent them from performing the physical or mental demands of work. For example, claimants with back or knee problems show that their conditions prevent them from being able to sit or stand long enough to work. 

Showing how a hearing problem prevents you from doing the physical or mental demands of work is very difficult. An alternative way of establishing entitlement to SSD benefits is by demonstrating you meet the criteria of a listing. There is a listing, numbered 2.10 specifically for hearing loss.

Clearly documented medical records are needed to meet the listing based on hearing loss. Listings for many impairments are inexplicably overlooked or rejected. However, because the listing for hearing loss is based on meeting test data, there is no wiggle room for rejecting that the claimant meets the listing. 

I represent an attorney whose SSD claim was approved today. I obtained a report from the claimant’s otolaryngologist detailing why the claimant met listing 2.10. Notably, SSD was awarded without the claimant even being asked to attend a consultative examination.

SSD For Landscaper

A stroke 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, which results in brain damage. A common stroke symptom is weakness to one side of the body. 

I represent a 51 year old unskilled landscaper who had to stop working because of a stroke. The claimant’s symptoms included left sided weakness. The claimant’s application for Social Security Disability (“SSD”) benefits was approved without a hearing. 

Treatment records established that the claimant had suffered a stroke causing left sided weakness, which prevented him from resuming his strenuous work as a landscaper. Social Security rules state that bilateral manual dexterity (“BMD”) is necessary for the performance of substantially all unskilled sedentary occupations. Presumably, it was obvious that the claimant could not perform his arduous past work, and SSD benefits were approved because his lack of BMD precluded sedentary work as well.

Disability Retirement Approved Without A Hearing

I filed application for Article 15 Disability Retirement with New York State for a Motor Equipment Operator, which was approved today without a hearing being required. When seeking disability retirement, I have found that including a vocational assessment (“VA”) and independent medical opinions significantly increases the chances of approval. 

The VA uses the U.S. Department of Labor’s Dictionary of Occupational Titles (the “DOT”) to determine the occupation that most closely matches the State’s job description. The DOT then provides physical and mental demands for the occupation. In addition to exam findings, test reports and restrictions and limitations (“R&Ls”) from the treating doctors, I furnish IME and peer reviews that also provide R&Ls. The VA then compares the R&Ls to the occupation’s demands to determine if the claimant has the ability to perform them. 

The cost of the VA, IME and peer review can be substantial. Nonetheless, I believe that it is an investment that more than pays off in the long run.

SSD for Cement Truck Driver

I represent a 55 year old cement truck driver with neck and back problems whose application for Social Security Disability (“SSD”) benefits was approved today without a hearing. The interesting thing about this case is that it was approved based largely on the opinion of the claimant’s primary care physician (“PCP”). 

 In general, the rules provide that the opinion of a generalist is entitled to less weight than a specialist. Many Administrative Law Judges misapply that rule, and reject the opinion of a PCP on the grounds that he or she is not a specialist. However, when a PCP’s opinion is well supported by clinical and diagnostic findings, it may be entitled to significant or even controlling weight. 

In this case, the PCP’s opinion was supported by several MRI reports as well as exam findings by numerous other orthopedic and pain management specialists. Accordingly, there was more ample grounds for approving SSD benefits based upon the PCP’s opinion. 

There have been many times where clients have neglected to provide their PCP’s information, or were reluctant to ask them to provide reports because they were not the specialist treating the disabling impairment. This case is a perfect example demonstrating why supportive information should not be disregarded just because the source is not a specialist.

USDC Reverses ALJ Wolfe

Administrative Law Judge (“ALJ”) Michelle Wolfe is a bad ALJ. Typical comments from those who appeared before her include: “Judge Wolfe should be ashamed of herself;” and “she denies many cases that should be awarded.” Wolfe only approves 18% of the cases she hears, which is less than half compared to the National average of 44%. In fact, 18% is even lower than the approval rates of the Queens Five before Padro was filed.

I represented a claimant before ALJ Wolfe, who said that she was doing me a favor by approving a partially favorable decision. ALJ Wolfe refused to issue a fully favorable opinion because she argued the claimant lacked credibility. I argued to the Appeals Council that the claimant’s 33 year work history created a strong presumption that the claimant is credible, and that he stopped working for the reasons stated in his submissions to the SSA, which "was not overcome by the ALJ cherry picking a couple of snippets from the record that she believed would help support her decision."

As the federal court appeal took place in Pennsylvania, I referred the case to local counsel. Today, I received a copy of the U.S. District Court opinion that outright reversed Wolfe’s decision, which is unusual because favorable relief is usually a remand to the same ALJ. District Judge Malachy Mannion wrote, “In sum, the court agrees with plaintiff that the ALJ “cherry picked” medical evidence to support a finding of not disabled, rather than reviewing and evaluating the objective medical evidence.” The federal court adopted my argument to the Appeals Council, which was that the claimant should have been granted full benefits because he met the mental listings.

Disability Etiology

When seeking Social Security Disability (“SSD”) benefits, establishing the etiology of why you cannot work is not required. What is required is that you show you that the restrictions and limitations caused by the medical problem prevent you from being able to work. 

A 31 year old clerk retained me after her SSD application was denied. The State agency had denied the claimant’s benefits on the grounds that the medical reports did not show any conditions of a nature that would prevent her from working. 

At the ensuing hearing, the Administration Law Judge (“ALJ”) found it baffling that none of the doctors could determine the cause or a diagnosis of the claimant’s symptoms, which included pain and weakness, and was considering adjourning the hearing so a medical expert could testify. After I pointed out that the claimant’s symptoms were accompanied by objective findings, such as the claimant’s skin turning purple and cold, and joint and muscle swelling, the ALJ took testimony from a vocational expert (“VE”). 

The ALJ asked the VE if the claimant could work based on the restrictions and limitations provided by the treating physicians or the consultative examiner, to which the VE said no. Based on the VE’s testimony, the ALJ approved the case. In other words, it was irrelevant that the claimant was unable to establish the cause of why she was unable to work, all that mattered was that as a result of her medical problems she was unable to perform the physical demands of work.

Unum Field Visit

I represent an owner of a landscaping business who had purchased a disability insurance policy from New York Life, which was subsequently taken over by Unum. I filed a claim under the policy because the claimant’s diabetes prevented him from working.

During the claim process, Unum made several demands that were outside the terms of the policy. Unum requested tax records, but there was no provision entitling Unum to do so. However, that request was moot as no tax returns were filed during the requested period. 

Unum also wanted the claimant to meet with one of its Field Representatives to understand his occupation and duties.  I explained that there was no need for a meeting because any questions could be asked in writing, and that since a Field Representative is not a vocational expert the request was illogical. More importantly, I pointed out that the policy does not permit Unum to use a Field Representative to question the claimant, and wrote Unum that it they believed I was wrong, then they should identify the section of the policy that they claimed empowered Unum to do so. Unum never responded. 

Unum also asked if the claimant had applied for Social Security Disability (“SSD”) benefits, and for an authorization to obtain his SSD file. I told Unum that the claimant would not comply because there was no offset in the policy for SSD benefits, which rendered the request irrelevant. 

I suggested that Unum could make the request relevant by providing a notarized letter stating that Unum would accept the decision of the Social Security Administration as to whether the claimant was disabled under the policy. Once again, Unum never responded. I was advised today that Unum is approving the claim.

Disability Benefits for Truck Driver

What happens when you apply for Social Security Disability (“SSD”) benefits, and your doctor says you cannot work, but the Social Security Administration (“SSA”) doctor says you can? If the medical records support your doctor’s opinion, then your SSD application should be approved. Unfortunately, all too often the State agency ignores that rule, which requires appealing the denial to an administrative law judge (“ALJ”). 

I represent a 48 year old truck driver with back problems, whose SSD application was approved today by an ALJ. The ALJ’s decision exemplifies how medical opinions should be weighed. 

The ALJ gave great weight to the opinion of the claimant’s orthopedist because “he has treated claimant on a regular basis." He is familiar with claimant's medical condition due to the regularity of treatment provided to him, and therefore in the best position to report on claimant's physical condition as well as its impact in his ability to perform work activities.” On the other hand, the ALJ gave little weight to the opinion of the SSA doctor because, “He evaluated the claimant one time and his examination lasted a short period, as per the claimant's testimony at the hearing, and thus he is not familiar with the claimant's functioning."

The State agency knows that the opinion of a claimant’s doctor is supposed to supercede that of the SSA doctor, yet the State agency regularly does the opposite. The result is that the State agency costs the SSA millions of dollars in having to review unnecessary appeals, and delays claimant’s receipt of SSD benefits.

Autoimmune Hepatitis

Autoimmune hepatitis is inflammation in your liver that occurs when your body's immune system attacks your liver, and causes it to become inflamed. The American Liver Foundation says the disease is chronic, meaning it lasts many years. According to the Mayo Clinic, while the cause of autoimmune hepatitis is unclear, some diseases, toxins and drugs may trigger autoimmune hepatitis in susceptible people, especially women. Untreated autoimmune hepatitis can lead to scarring of the liver, known as cirrhosis, and eventually to liver failure. When diagnosed and treated early, however, autoimmune hepatitis often can be controlled with drugs that suppress the immune system. The most common symptoms are fatigue, abdominal discomfort, aching joints, itching, jaundice enlarged liver, nausea and spider angiomas on the skin. 

I represent a 54 year old teacher with autoimmune hepatitis, whose application for Social Security Disability benefits was approved today, four months after it was filed. The key was getting the treating hepatologist to provide a report that detailed the objective clinical and diagnostic test findings, along with the resulting functional limitations.

Unum Reapproval

Unum has an historic tendency to deny and terminate claims at the end of each financial quarter to improve its reserves. A corollary of that accounting tendency is that Unum delays approvals until after a quarter. I just received written notification that Unum reapproved one of my client’s long term disability (“LTD”) claims a couple of days after the first quarter. 

As I do for each of my client’s, sent written notification to Unum in very simple and unambiguous words, “Please ensure that you communicate with me and avoid communicating with my client or her doctors without my prior approval. As it typically does, Unum initially ignored my directions, and contacted the claimant directly anyway. Unum knows that under these circumstances it is not supposed to contact claimants directly. 

To prevent Unum, as well as other LTD insurers, from continuing to contact claimants directly, I found a letter reiterating my direction that they are to refrain from doing so usually fails to deter them. Consequently, I am forced to send threatening letters to ensure that the attorney client relationship is respected. 

I advised Unum that the next attempt to circumvent the representation of my client will result in a complaint being filed with the New York State Department of Financial Services (the “DFS”). Advisory Opinions from the DFS’ General Counsel opine that Unum’s mailing anything to my client without my permission would constitute a wrongful communication.  I add that the DFS has stated that a licensee of the DFS who engages in such conduct may be found to have committed a "determined violation" pursuant to N.Y. Ins. Law § 2402(c) (McKinney Supp. 2005) as an unfair or deceptive act or practice. 

I also provide citations from hornbook law that such conduct violates the Statement of Principles of the National Conference of Lawyers, Insurance Companies, and Adjusters. One of the declarations in the Statement of Principles is that an insurer may not deal directly with a claimant represented by an attorney without such attorney’s consent. The word "deal" is interpreted by the committee to mean to "negotiate," "settle," "do business with," and "negotiate for a settlement or a payment." 

Unlike my letters simply reiterating my request to communicate solely through me, I found that the letters advising of the consequences for continuing to ignore my directions do deter the misconduct.

Establishing Mental Disability

The Social Security Administration (“SSA”) uses the same process for evaluating disability regardless of whether the cause is mental or physical. In short, the SSA determines whether the limitations from mental impairments results in a functional capacity to work. 

The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approved disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report. 

If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability. 

A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the mental demands of work. A 48 year old teacher worker retained me to handle her application for Social Security Disability (“SSD”) benefits. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits the following month without the need for a hearing.

Medicaid Disability Determinations

Some claimants applying for Social Security Disability (“SSD”) benefits also seek Medicaid. The medical reports that are completed when applying for Medicaid can also prove helpful for the SSD application. 

The State agency makes the initial medical decision when applying for SSD benefits. Similarly, a State agency makes the Medicaid disability determination, and asks doctors to complete Form LDSS-1151. 

The State agency routinely favors the opinions of its doctors over claimant’s doctors. However, when the findings and opinions of a treating doctor have been accepted in connection with approving Medicaid, the State agency usually gives the treating doctor’s opinion great, if not controlling, weight. 

I filed an SSD application for a property manager who was also seeking Medicaid. I submitted the claimant’s LDSS-1151 form that her doctor had completed. Right after her Medicaid was approved, the claimant’s SSD application was approved.

SSA Staff Attorneys

Just as Administrative Law Judges are now required to have more evidence supporting their decisions when approving Social Security Disability (“SSD”) benefits, so too do the staff attorneys.

I represent a claimant with severe back problems. The medical evidence included a report from the treating neurologist, who explained that the claimant’s lumbar neuropathy resulted in restrictions and limitations that precluded full time work. The neurologist had been treating the claimant well before the claimant said he became disabled. Diagnostic testing confirmed compression of both the L4 and L5 nerve roots. Up until recently, the aforementioned reports would have been sufficient to receive an approval. 

Prior to a hearing, I was advised by a staff attorney that additional evidence would be needed to more clearly establish the onset of the claimant’s disability. The neurologist had no problem providing a relatively short narrative report explaining the onset of the claimant’s disability. After the narrative was submitted, the claimant did in fact receive a fully favorable decision. 

It is unclear if the elevated burden of proof for SSD applications, which according to SSA employees has been in place for about two years, is intended to be permanent. If it is, a study should be done to determine if the extra work resources used to evaluate applications now is costing more than the money saved on denied applications that would have been approved. Perhaps more importantly, what are the demographics of those additional applicants who are now being denied? For example, are those new denials mostly comprised of unrepresented claimants, or claimants who cannot afford treatment?

Patchogue Problems Persist

Social Security’s Patchogue District Office has a history of failing to provide the same level of service compared to other offices. Although their mistakes are eventually corrected at the hearing level, the delay imposes hardship on claimants in the interim. 

 On October 4, 2012, I filed an application seeking Social Security Disability (“SSD”) benefits for a 56 year old landscaper, who suffers from diabetes and arthritis. The claimant’s SSA-16 form stated that the claimant stopped working for FedEx on July 7, 2012, which specified that the FedEx employment should be considered an unsuccessful work attempt (“UWA”) because it lasted less than three months. Since FedEx was irrelevant because it was an UWA, the claimant’s SSA-3368 form stated that the claimant stopped working, as a landscaper, in 2007. 

In June 2012, the State agency found the claimant became disabled from his heavy work as a landscaper on July 7, 2012, by giving controlling weight to the opinion of the treating physician. The obvious question was why was the claimant found disabled as of July 7, 2012 instead of 2007. To learn the answer we tried to call Patchogue. 

Despite repeated messages, nobody from the Patchogue District Office would return our calls after we learned that the State agency applied a July 7, 2012 onset date. We had to call another local office to try get information. Ms. Henpfling from the Riverhead District Office told us that Patchogue failed to follow protocol when a claimant’s application contains discrepant onset dates in the SSA 16 and SSA 3368. Without making any attempt to contact our office, and without the permission or authority of the claimant or us, Patchogue took it upon themselves to cross out the year 2007 on the claimant’s SSA 3368, and handwrote in July 7, 2012 for the onset date. 

Patchogue’s error was corrected by the Jericho hearing office today, as the claimant received a fully favorable decision with the correct onset date. The end result is that the claimant will be awarded more than a year of additional benefits, but it took nearly two years to get the error corrected. Not only did the delay make it difficult for the claimant to pay his bills, but it also wasted the time of the hearing office, all of which could have been avoided if Patchogue would answer a phone.

Benefits Turned On Vocational Error

I represent a machinist whose application for Social Security Disability (“SSD”) benefits was approved today after the administrative law judge (“ALJ”) corrected a vocational error made by a State agency examiner named J. Nimrod. The state agency makes the initial decision whether to approve SSD benefits. 

Nimrod stated that the claimant’s past relevant work included a position as a “clerical/secretarial worker,” which would be a sedentary job. The problem is that Nimrod’s statement was untrue. As made explicitly clear in the claimant’s application, the only job she had was as a machinist. 

Even though the claimant stated that she only had one job during the last 20 years, Nimrod made her complete Form 3369, which is only to be completed if a claimant had more than one job during the last 15 years. The claimant completed the form, and confirmed that her occupation was not sedentary or light, but was medium, because she was on her feet up to 8 hours a day, sat only 1-2 hours a day, and lifted up to 50 lbs, including 25 lbs frequently. 

Under the medical-vocational rule that applied to the claimant’s situation, if her past work was as a machinist, and she were limited to sedentary work, then she would be entitled to SSD benefits. The ALJ agreed that the claimant’s sole past relevant work was as a machinist. Because the ALJ also agreed that the claimant only had a sedentary work capacity, and was therefore unable to do her past medium work as a machinist, her benefits were approved.

Disability Benefits While Working

The first question that the Social Security Administration (the “SSA”) asks when evaluating an application for Social Security Disability (“SSD”) benefits is whether the claimant is working.  The SSA typically relies on information obtained from the IRS.  If you are working, and the amount you earned is substantial, then your SSD application will be denied.

Under certain circumstances, you can work or receive money, yet still have the right to collect SSD benefits.  One way that you can work without it affecting your right to SSD benefits is if the work does not constitute “substantial gainful activity” (“SGA").  Similarly, if your income is not derived from work, then it does not affect your eligibility for SSD benefits either.

I received a fully favorable decision on-the-record today after providing the SSA with information about earnings that my client received after she stopped working.  First, the SSA agreed that a portion of the earnings, which came from a part time job, was too low by itself to constitute SGA.  Second, the remaining portion of the earnings, which amount was large enough that it could have qualified as SGA, was not deemed SGA since it did not come from work, but rather, reflected money that the claimant received as a member of a class action lawsuit. 

There are other situations where you can receive an income, yet still receive SSD benefits. Do not assume that you cannot collect SSD benefits simply because you worked or received money after the date that you claim you became disabled.

Scleroderma

According to the American College of Rheumatology, Scleroderma (also known as systemic sclerosis) is a chronic disease that causes the skin to become thick and hard; a buildup of scar tissue; and damage to internal organs such as the heart and blood vessels, lungs, stomach and kidneys.  The effects of scleroderma vary widely and range from minor to life-threatening, depending on how widespread the disease is and which parts of the body are affected.  The Scleroderma Foundation estimates that 300,000 people in the United States suffer from scleroderma, which is incurable, disabling and, often, fatal.

I represent a banking executive whose application for Social Security Disability (“SSD”) benefits was denied by the State agency on the grounds that the claimant’s condition should not stop her from being able to work.  Social Security agreed that the claimant had scleroderma, it just did not want to accept that the condition was severe enough to render the claimant, who was under 50 years of age, incapable of any type of full time work.

The most concrete way to establish the severity of scleroderma is by showing that it meets the criteria of a “listing” (see 5/3/12 blog) specifically, 14.04.  If the scleroderma meets the listing 14.04, then the claimant is presumptively deemed disabled.  The best way to show that a claimant meets a listing is by getting the treating specialist to provide a medical opinion explaining why the claimant meets each of the listing’s criteria.  Sure enough, today, the ALJ approved the claimant’s SSD application based on her rheumatologist’s opinion that claimant’s scleroderma met listing 4.04. 

Agoraphobia

Agoraphobia is an irrational and often disabling fear of being out in public. According to the Anxiety and Depression Association of America, people with agoraphobia stop going into situations or places in which they've previously had a panic attack in anticipation of it happening again, and avoid places where they feel immediate escape might be difficult. Some agoraphobes cannot travel beyond their safety zones without suffering severe anxiety. 

The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration's Office of Disability Adjudication and Review. The HALLEX is used by administrative law judges (“ALJs”) when administering hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX procedures and policy statements govern hearings. 

HALLEX I-2-3-10 concerns scheduling hearings. Among other things, HALLEX I-2-3-10 provides that an ALJ will consider conducting the hearing at the claimant's request by telephone. Specifically, HALLEX I-2-3-10 notes that, “the regulations permit the claimant or any party to the hearing to request to appear at the hearing by telephone. The ALJ will grant the request to appear by telephone if the ALJ determines that extraordinary circumstances prevent the claimant or other party from appearing in person.” 

The ALJ granted my request to have the claimant appear by telephone due to her agoraphobia. I had the claimant’s husband appear in person to testify, and he explained that that his wife did not sound terribly anxious precisely because she was at home, but that her condition would significantly deteriorate if she were outside that safe zone. The ALJ understood, and issued a fully favorable decision today approving her for disability benefits.

Padro Deadline

While the Padro class action was settled last year, notices about the settlement were just sent last month to class members whose applications were denied by the Queens Five. In order to take advantage of the settlement, class members must affirmatively request a new hearing before a non-Queens Five Administrative Law Judge (“ALJ”). 

The requirement to affirmatively request a hearing was an obvious mistake because why would a claimant chose to let a biased denial stand? The settlement requires class members to request a hearing in 60 days. Failure to do so will likely result in being denied the right to a hearing before a new ALJ. The deadline mandates that a hearing be requested in 60 days, which means that about half the time to request a new hearing has expired.

State Agency Reports Misrepresentations

When the State agency makes the initial determination on a Social Security Disability (“SSD”) application, it prepares a Disability Determination Explanation. The hearing office relies on that eCAT report.

I represent a 55 year old internship coordinator with back problems whose SSD application was approved today, despite the fact that “A. Washington,” the State agency examiner, prepared an eCAT report that a treating doctor was not contacted to perform a consultative examination (“CE”) because there was no treating doctor. However, in that very same eCAT report, Washington noted that the claimant had two treating doctors. 

I filed an OTR for the claimant, which was granted today. The OTR pointed out the eCAT discrepancy. If the discrepancy were not pointed out, it is likely that the claim would have sat until a hearing was held. Since the SSA spent a lot of money on eCAT, you would think that it would honestly comply with the SSA’s simple and unambiguous policy of asking treating sources to perform CEs.

Amending Onset To Avoid Hearing

Sometimes Social Security Disability (“SSD”) claims are denied in whole or part because of the date that the claimant selected as the onset of the disability, known as the alleged onset date (“AOD”). Stated differently, the Administrative Law Judge (“ALJ”) may agree that the claimant is disabled, but may disagree as to when the disability began. 

I avoided a hearing today because I amended the onset date forward a few months. Although amending the AOD decreased the size of the disability period, it did not reduce the claimant’s SSD benefits. There is a full five month waiting period for SSD benefits. An applicant can receive SSD benefits for a maximum of 12 months before the month of the application. Thus, if the AOD is amended prior to the 17 month period, then no SSD benefits are lost. 

Amending an AOD to a later date can make it easier for an ALJ to approve SSD benefits without a hearing for numerous reasons. The later date may be consistent with an increase in medical treatment. The later date could coincide with a notable medical record, such as an MRI. The later date may place the claimant into a different age category that facilitates granting SSD benefits, and so on. The major caveat is ensuring that the new AOD does postdate the date last insured.

Carpenter Avoids Disability Hearing

I was able to avoid a hearing for a 52 year old carpenter from New Jersey that was scheduled for Friday by filing an on-the-record ("OTR") brief. Like many claimants, the carpenter had strong support for his back problems from his spine specialist, whose opinion was supported by MRI testing. The claimant avoided the hearing because of the vocational facts. 

The OTR cited the case law holding that carpenters do lack transferable skills, which means that under Social Security’s Medical-Vocational Rules, the claimant had to be found disabled even if capable of sedentary work. Therefore, the only issue was whether the claimant has the capacity to do light work. 

The carpenter’s work history also helped the case. He graduated from high school in 1979, and spent his entire adult life, from 1979 through 2012, working as a carpenter. The OTR showed that the Third Circuit has established that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. More specifically, where a claimant has a long work history of continuous work at the same employer, he is entitled to substantial credibility. I contended that the claimant’s strong work history was objective evidence establishing his credibility, and there was no need for a hearing to assess it. The Administrative Law Judge agreed and approved the OTR.