NYSLERS

I represent a 53 year old former teacher with mental impairments whose application for an Article 15 disability application was approved today a little over a year after it was filed. In the interim, NYSLERS requested the identical information that had already been submitted. I had to submit the treatment records of one treating doctor three times. 

NYSLERS determined that the claimant is permanently incapacitated from performing the duties of her job as a teacher. The NYSLERS decision should be accepted by Social Security as proof that the claimant cannot do her past work, and given the vocational facts of her case, may suffice for an award of Social Security Disability (“SSD”) benefits. 

While a year may seem like a long time to get NYSLERS to approve a disability application, that would be fairly quick for the Social Security to do the same. However, with the NYSLERS award, that should expedite the SSD decision.

Claimant Credibility and Work History

The Social Security Administration (the “SSA”) regulations are only interested in the last 15 years of a disability claimant’s work history because after that time acquired skills are not considered transferable. However, work history in excess of 15 years is important with respect to a claimant’s credibility. The federal courts have repeatedly stated that a claimant with a strong work history justifies the inference that his or her complaints are credible.

A strong work history is essentially objective evidence to support the credibility of a claimant’s testimony at a hearing.  This objective evidence of one’s credibility is important because many cases, such as those involving pain syndromes, fatigue or mental impairments, are based on subjective complaints. The theory is that a claimant with a good work ethic would continue to work if possible.

I represent a 58 year old former collections manager whose Social Security Disability (“SSD”) benefits were approved today because of his work history. While the claimant had two supporting doctors, the Administrative Law Judge (“ALJ”) gave their opinions only “some” weight. However, the ALJ was impressed with the claimant’s longstanding work history, and accepted his testimony about the reason why he could not work. 

 The ALJ did not ask the claimant about his work beyond 15 years. I developed the details about the claimant’s entire work history after the ALJ was done questioning the claimant. A strong work history should always be brought to an ALJ’s attention.

NYS OTDA Fraud Update

A year ago, I posted about unacceptable conduct committed by the New York State Office of Temporary Disability Assistance (the “OTDA”). Unfortunately, there has been no change in the OTDA’s conduct. 

I represent a 54 year old with diabetes, and neck, back, and hand problems, who earned over $100,000 annually working as a steamfitter for 28 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue. 

Once again, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the Social Security Disability (“SSD”) application. 

In 2014, the OTDA told the claimant that he was required to go to a consultative exam (“CE”). The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE, but when scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named A. Washington claimed that there was no treating doctor to perform the CE, and that the claimant had no medical opinion about his being disabled. However, each of those statements was patently false. 

The SSA’s file revealed numerous documents listing the doctors who had been treating the claimant. Moreover, the SSA file contained, not one, but two, reports from treating physicians detailing the reasons why the claimant lacked the physical capacity to work. A. Washington simply lied; i.e., committed fraud, which is knowingly doing or saying something that was false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. 

The SSA reversed the OTDA denial on appeal, at a rapid hearing where the medical and vocational experts immediately testified in the claimant’s favor. 

Any type of incident where the OTDA misrepresents the truth should be reported to the SSA Inspector General.

SSD Approved in Less Than Months

The Deputy Commissioner of the Office of Disability Adjudication and Review (“ODAR”) of the Social Security Administration (“SSA”) is Theresa Gruber. According to Ms. Gruber, the 1.1 million pending hearings at ODAR is a record high, as is the 543 days on average that it takes ODAR to process a claim. Fortunately, I represent a former 58 year old plumber whose Social Security Disability (“SSD”) application was approved in about a month and half, so he avoided the ODAR delays. 

The plumber had two bad knees, one of which had been surgically replaced. I obtained a report from the claimant’s surgeon detailing how the claimant could not stand, walk, and sit anywhere near the number of hours required to perform full time work. However, many claimants provide similar medical support without getting approved so quickly. So what happened here? 

The claimant worked as a plumber for 32 years, earning a six figure income. While the SSA denial rates have increased, there seems to be a trend of approving SSD applications more quickly when the claimant has a protracted work history with a high income. It may be that in light of the hearing backlog, state agencies are being less rigorous when claimants have a protracted work history with a high income because common sense dictates that such a person would continue to work if they could.