SSD Approved in 2 Months

I represent a 55 year old sewer superintendent with abdominal and hiatal hernias, glaucoma, diabetes, obesity, and lastly, an ankle problem. The state agency insisted, not once, but twice, that it was “necessary” for the claimant to attend a consultative examination (“CE”) for a “joint problem;” that he “must keep” that appointment. 

We advised the State agency that the claimant wanted his treating doctor to perform the CE, as the regulations stipulate. The claimant did not have a CE, yet his application for Social Security Disability (“SSD”) benefits was approved in two months, a few weeks after the State agency told the claimant that he had to go to the CE. 

When will the State agency on its own, or at the direction of the Social Security Administration (“SSA”), eliminate the misrepresentative language of the letters notifying claimants about CEs? The notices should not say the CEs are “necessary.” The notices should not say the claimant “must” attend the CE. Most importantly, when will the State agency, or the SSA, require compliance with the regulations that provide CEs should be performed by treating doctors?

Hiring A Vocational Expert

Regardless of the reason why an Administrative Law Judge (“ALJ”) has a vocational expert (“VE”)  testify at a hearing for Social Security Disability (“SSD”) benefits, a claimant should consider retaining their own VE. 

I represent a former carpenter with hand and shoulder impairments, whose SSD application was approved following an Appeals Council remand. His case turned on a report submitted by his VE. 

The Social Security VE at the hearing testified that while the claimant only had use of his left hand and upper extremity, he could do jobs, such as working as a parking attendant and toll collector. I got the VE to admit that her testimony was not based on the Dictionary of Occupational Titles. Furthermore, I persuaded the ALJ that it was poor reasoning to assume that a person without use of their dominant upper extremity could be trusted to park cars safely, or grab money and operate a cash register with one hand. 

The claimant’s VE, who has also worked as a VE at SSD hearings, had submitted a report concluding that the claimant was incapable of any full time work due to his impairments. The ALJ gave greater weight to the claimant’s VE, than to the hearing VE. Importantly, that means that the ALJ gave some weight to the hearing VE. Therefore, in the absence of the claimant’s VE, his SSD claim would have been denied.

VA Rating & SSD

I represent a former mail carrier seeking Social Security Disability (“SSD”) benefits, who the Department of Veterans Affairs (“DVA”) had rated as 90% disabled. More importantly, the DVA states that the claimant was ”totally and permanently disabled due solely to your service connected disabilities.” 

Last year, the Seventh Circuit ruled that great – not some - weight should be given to a DVA disability finding of 70% because any differences between the VA and SSA disability criteria are small. While the administrative law judge (“ALJ”) approved my client’s SSD claim after a hearing, he only gave the VA disability some weight. 

The Seventh Circuit approach makes more sense. The VA and SSA are both federal agencies with the same task; deciding whether a claimant is totally disabled from being able to work. Considering that the Seventh Circuit ruled that a VA rating of 70% should be given great weight, there is even more reason to give a VA rating of 90% great weight. Had the ALJ given the 90% VA rating great weight, then there would have been little or no need to conduct a hearing, which is important since the wait for a hearing is now nearing two years.