SSD After Returning To Work

It is possible to receive Social Security Disability (“SSD”) benefits even if you have recovered and returned to work. The SSD process is notoriously slow, and it is not unusual for a claimant to undergo a lengthy disability appeal process that has lasted for years. By the time the case has proceeded to a hearing, the claimant may have recovered from their disabling impairments. 

 A “closed period” of SSD eligibility could result. A closed period of disability can occur when a claimant was unable to work for 12 months, the durational requirement, but their medical condition improved and enabling them to resume working. Thus, even if you never applied for SSD benefits, if you were out of work for medical reasons more than a year you should consider proceeding with an SSD claim, even though you no longer qualify for benefits. SSD benefits will not be available during the five month waiting period.

It may be easier for a claimant to receive closed period disability benefits than it is to receive open period disability benefits. If an ALJ approves an open period disability, it will be costly, because it is likely the claimant will continue to receive SSD benefits for many years to come. Approving a closed period claim involves less of a financial risk for the SSA. 

I just received an on-the-record (“OTR”) decision from an ALJ who rarely grants them. The OTR occurred after I notified the ALJ that the claimant would be seeking a closed period. The ALJ approved either because of the lower financial risk, or because the claim seemed more credible because of the additional evidence of a good work ethic.

Unum Avoids Trial

I filed a lawsuit in federal court against Unum for wrongful termination of long term disability (“LTD”) benefits in October 2016. Unum was never able to identify a single medical test, exam finding, or symptom that had changed, let alone improved, since it approved the claimant’s LTD benefits, as well as her short term disability benefits and her individual disability policy benefits. 

Unum filed a motion to dismiss the action, and lost. Then Unum filed a motion for summary judgment, asking the court to remand the case, and they lost again. Since Unum always asks courts to uphold their decision, asking for a remand was an admission that they knew their decision was wrong. Now, just days before pretrial submissions were due for the trial, which is scheduled to begin next month, Unum asked the court to cancel the trial because they are reinstating the claimant’s benefits. 

Unum knew all along that it lacked any legitimate defense for its decision to terminate LTD benefits. When it became obvious that my client would reject their low ball settlement offers, and would proceed to trial, Unum asked to cancel the trial at the eleventh hour. My client refused to waive her right to statutory attorney fees as the prevailing party, interest, and costs.

State Agency Fraud

The Social Security Administration (the “SSA”) is reinstituting the reconsideration stage in New York come January 1, 2019. Close to 90% of claims are denied on reconsideration, so why is it being restored? Given that the SSA has been passing rules to make it more difficult to obtain benefits, such as eliminating the treating physician rule, logic dictates that reinstituting reconsideration is intended to do the same. 

Here is a recent example of what can be expected from an extra round of State agency review. I represent a 58 year old claimant who had worked as a school nurse for 27 years. A pain management specialist, internist, and pulmonologist each concluded the claimant had a less than sedentary work capacity. The claimant’s pulmonary function tests each show she met a listing. 

On January 9, 2018, “L. Samuel,” (the State agency doctors are afraid to disclose their first names) a State agency internist, concluded that the claimant was limited to lifting 10 pounds, and was credible. Based on that opinion, the State agency analyst advised approving the claim. However, it was decided that there was a vocational “error” in applying the medical-vocational rules. The State agency then had Samuel redo his report two weeks later. 

During the two week interim period, there was absolutely nothing added to the claim file – no medical evidence, no financial evidence, no vocational evidence. Nonetheless, based on the identical information, without any explanation whatsoever, Samuel now concluded that the claimant could lift twice as much, 20 pounds, and for some reason, was no longer credible. 

Subsequently, an internist from the SSA reviewed the medical records, and rejected Samuel’s attempt to “redo” his conclusions. When brought to the attention of the ALJ assigned to case, the claim was approved without a hearing. I suggested that L. Samuel be referred to the Office of the Inspector General to account for his fraud, but I am confidant that nothing will be done. 

The above illustrates what happens when the State agency effectively reconsiders a claim. Although I would not anticipate that each reconsideration will result in fraud, this serves as evidence that State agency doctors are partial, which serves the interest in the SSA reducing the number of approvals, and increasing delays for those who eventually do get approved.

Ulcerative Colitis

According to the Crohn’s & Colitis Foundation, ulcerative colitis is a chronic disease of the large intestine, also known as the colon, in which the lining of the colon becomes inflamed and develops tiny open sores, or ulcers, that produce pus and mucous. The Mayo Clinic lists diarrhea, abdominal pain and cramping, weight loss, fatigue and urgency to defecate as symptoms. 

Many occupations cannot be accommodated for instantaneous and at will bathroom access, which is what ulcerative colitis frequently requires. That is one basis for a finding of disability. Another was discussed in my previous posting – absenteeism. 

I represent a 57 year old medical technician with ulcerative colitis, whose disability benefits were approved yesterday. The claimant was found to be able to perform sedentary work. However, because it was also found that the claimant would miss two days of work a month, the claimant was found disabled.

How Absenteeism Affects Disability

There are two parts to disability benefit cases - the vocational issues and the medical issues – with the former frequently being overlooked. The task of the person deciding if a claimant is disabled is to ascertain the claimant’s physical and mental restrictions and limitations (R&Ls), and then to compare them with the relevant occupational demands. 

Regardless of whether the claim is being considered by an insurance company, governmental agency, or some other entity, it is usually the claimant’s responsibility to provide the reviewer with support for the claim, which should include R&Ls from the treating sources. The R&Ls should include opinions regarding both exertional and nonexertional abilities, which can be determinative sometimes. 

I represent a 44 year old former hospital admissions clerk with mental impairments, whose Social Security Disability (“SSD”) benefits were approved today. The treating psychiatrist provided supporting narrative reports, progress notes, and impairment assessments. Ultimately, the ALJ rested his decision approving the SSD application on the psychiatrist’s opinion that the claimant’s medical condition would cause him to miss work at least three days a month. It is generally accepted that an employee cannot miss three days of work a month, and still maintain employment, which the vocational expert at the hearing confirmed. 

When pursuing a claim for any type of disability benefits, it is important to have the treating sources opine about any R&L that could potentially adversely impact the claimant’s ability to work.

Do You Need A Lawyer To Get SSD?

The answer to the question is….maybe. The medical and vocational facts are different in every case so there is no definitive answer. I have heard countless times that representatives at the district Social Security offices discourage claimants from using attorneys, even though the Social Security Administration’s (“SSA”) statistics always show that claimants who are represented by attorneys have higher approval rates. 

I represent a 48 year old former cable television technician, which was strenuous work, with severe neck and back problems. She retained us after her SSD application was denied. After reviewing her file, we secured a great deal of medical records and disability reports from her pain management specialist, chiropractor, internist, and neurosurgeon. It was obvious at the hearing that the judge would find that the claimant was entitled to SSD benefits. 

Did the claimant have to have an attorney? No. Did it help the claimant to have an attorney at the hearing? Obviously. Would the judge have approved the claimant’s SSD benefits without a benefit? Possibly, but the SSA’s statistics say her chances of winning were better with an attorney. Would the claimant’s SSD application have been approved initially had an attorney represented her? Possibly. There certainly is nothing to lose by consulting with disability attorney before filing an SSD application.

Advanced Practice Registered Nurses

As of March 27, 2017, the Social Security Administration (“SSA”) considers an Advanced Practice Registered Nurse (“APRN”) to be an acceptable medical source (“AMS”). That means when you apply for Social Security Disability (“SSD”) benefits, information from an APRN can establish that you have a medically determinable impairment, and even meet a listing. 

I represent a 37 year old claimant from Texas with mental impairments whose SSD application was approved in three months. A psychiatrist, APRN, and Social Worker all treat the claimant. What makes the relatively rapid approval significant is that the opinion regarding the claimant’s mental restrictions and limitations was provided by an ANPR. If this claimant had submitted her SSD application before March 27, 2017, then it would not have been approved. 

Notably, the rule seems to have been overlooked at some SSA District Offices. Applicants have retained us after they were denied, who advised that representatives from their District Office said that the medical evidence and opinions should come from medical doctors. Anyone seeking SSD benefits should treat APRNs just as they would treat a medical doctor or doctor of osteopathy.

Bipolar Disorder

According to the National Institute of Mental Health, bipolar disorder, also known as manic-depressive illness, is a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. According to the National Institute of Mental Illness, nearly 83% of people diagnosed with bipolar disorder are classified as severe. And according to the Mayo Clinic, physical health problems that frequently occur with bipolar disorder are heart disease, thyroid problems, headaches, or obesity.

I represent a woman with bipolar disorder who became disabled when she was 34 years old. Her comorbid conditions included heart disease, thyroid problems, headaches, and obesity. ALJ Weiss found that she met the bipolar listing  today, which means that he will be approving her application for Social Security Disability benefits.

The ALJ seemed persuaded by two factors. First, even though the claimant was relatively young, she had worked every year of her life since she was only 14 years old, and had continued to work through numerous hospitalizations. Second, the hospitalization records included the medical findings that supported the listing criteria. Frequently, ALJs are reluctant to find that a claimant meets the criteria of a mental listing when they come from progress notes of treating sources. 

Even if bountiful and supportive reports and records are submitted from treating mental health providers, records from hospitalizations should always be sought for filing too. Hospital records usually do not include any information regarding functional limitations resulting from bipolar disorder. However, when hospital personnel make the same findings that treating providers observed, many ALJ’s consider the former’s medical information to be more objective.

SS Benefits Increase

People receiving Social Security benefits will be receiving their biggest increase in seven years, even though the increase will not match the rate of inflation in certain portions of the country.

Dysautonomia

According to Dysautonomia International, dysautonomia is when your autonomic nervous system (“ANS”) malfunctions. The ANS controls heart rate, blood pressure, digestion, pupil dilation and constriction, kidney function, and body temperature. A malfunctioning ANS can result in many problems, including double vision, incontinence, dizziness, chronic fatigue, cognitive impairment, syncope, vertigo, orthostatic hypotension, and weakness. ANS is usually incurable.

I represent a 57 year old former customer service representative with ANS. Despite providing treatment records, narrative reports and impairment questionnaires, the State agency denied my client’s application for Social Security Disability (“SSD”) benefits. However, shortly after submitting a functional capacity examination (“FCE”) report, the claimant’s SSD application was approved by the Social Security hearing office.

An FCE provides objective evidence to corroborate the opinions of doctors who provide physical restrictions and limitations. While the cost of an FCE can be substantial, it is recommended.

Young Person Granted OTR

Awards of Social Security Disability (“SSD”) have decreased the past few years. SSD awards to claimants under 45 years of age have always been more difficult to obtain. On-the record (“OTR”) decisions have become rare in recent years. Today, I received an OTR for a 42 year old claimant with neck and back problems. 

What does it take to obtain SSD benefits, without a hearing, for a younger person these days? The answer in this case was slews of abnormal diagnostic tests, multiple surgeries, and several supporting medical opinions. We submitted MRI and CT scan tests; pain management records, including epidural and other injection records and ablations; lumbar and cervical operative reports; pharmacy reports enumerating many potent narcotic pain killers, NSAIDS, and muscle relaxants; progress notes; and disability opinions from orthopedists, pain management specialists, physiatrist, and internist. 

Despite the above, the State agency still managed to deny the SSD application. Fortunately, the ALJ assigned the case recognized the overwhelming amount of evidence supporting the claimant’s application, and approved the SSD benefits OTR, thereby saving the claimant the time, stress and trouble associated with a hearing.

Earnings After Onset

When applying for Social Security Disability (“SSD”) benefits, the State agency usually investigates income that a claimant received after the alleged onset date (“AOD”) to determine if there was an unsuccessful work attempt, if the AOD needs to be amended to a later date, or if it was passive income. 

Passive income includes money that you receive from accrued sick and personal days and other types of disability benefits, such as workers compensation and long term disability benefits. Passive income frequently delays having SSD benefits approved, even when the State agency explicitly concludes that earnings after the AOD are not an issue. 

I had two ALJs approve SSD claims this week, where the sole issue was post-AOD earnings. In the first case, the earnings were other disability benefits, and today the earnings were from accrued leave. While it is understandable that an ALJ wants the claimant’s testimony regarding post-AOD earnings to be sworn under oath, why can’t the issue be resolved via sworn affidavit? That would save the ALJ from having to schedule and hold a hearing, and would result in the claimant receiving SSD benefits much sooner.

On a related note, I have had many cases where a claimant seeking SSD benefits was receiving a salary, usually by a relative, to enable the claimant to maintain health insurance, even though the claimant did not actually work.  The ALJs have accepted the claimants' testimony at hearings that the claimants were disabled during that time.  Last week, an ALJ agreed that one of my clients was disabled during the time his wife's company paid him, based on averring in a Work Activity Report that he did not work, but was on payroll solely to be covered by the company's medical insurance.

Unum Motion To Remand Denied

I have a case pending in federal court against Unum for wrongful termination of long term disability (“LTD”) benefits. Besides previously approving the LTD benefits, Unum had also approved my client’s benefits under a short term disability plan, as well as under an Individual Disability Insurance policy. 

After the court denied Unum’s motion to dismiss, Unum filed a summary judgment motion that asked the court to remand the case to Unum. There are hundreds of reported cases where Unum files motions to affirm its decision to deny or terminate disability benefits. Unum’s seeking a remand is an admission that it knows its decision to terminate my client’s LTD benefits cannot be sustained. 

Friday, the court denied Unum’s motion to remand, and ruled that a bench trial with medical witnesses will be scheduled in early January. The court also actually stated on the record that my client will likely prevail at the trial. Norman Bress and Peter Kouros will probably be Unum's witnesses, and possibly Gary Greenhood too. If anyone has information about any of those Unum doctors that they are willing to share, please contact my office.

SSA Misinformation

There are a variety of benefits that may be available if you become entitled to receive Social Security Disability (“SSD”) benefits. The Social Security Administration (“SSA”) does not provide those benefits automatically, but requires applications to be filed to receive them. Moreover, either intentionally or unintentionally, the SSA frequently provides misinformation about the availability of these additional benefits. 

I represent a claimant who received SSD benefits starting in March 2008, but whose children’s benefits did not start until 2013. The claimant never received a letter from the SSA advising him to file an application for children’s benefits when he was approved for SSD benefits, and proved that he had problems receiving mail at that time. The claimant was also told by the local Social Security that there were no other benefits available for him besides his SSD. 

After I obtained a remand from the Appeals Council, I persuaded the ALJ to reverse his original decision. As a result, the ALJ ruled that the claimant was entitled to receive an additional five years of children’s benefits. As the claimant is now gravely ill from his disability, hopefully the decision will provide some solace.

SS Retirement Benefits

This article gives great advice regarding getting when and how to get the most out of Social Security retirement benefits.

Pain Management Support

I represent a 58 year old former security officer with hip, shoulder and back impairments, whose Social Security Disability (“SSD”) application was approved without a hearing. What distinguished this case from the countless other SSD applications based on orthopedic impairments is the support from pain management physicians. 

The claimant had seen more than one pain management specialist, whose treatment records were provided. Just as importantly, we submitted reports detailing the claimant’s functionality. Those records and reports objectified the effects of the claimant’s pain. 

The Social Security Administration (“SSA”) views the opinions of treating physicians with skeptically, which is why the SSA withdrew the rule that gave the opinions of treating physicians greater weight than the SSA doctors. I had numerous Administrative Law Judges (“ALJ’s”) and SSA medical experts tell me that they do not care what treating doctors say because they will say anything to help their patients. ALJ’s reject SSD applications by asserting claimant’s complaints of pain lack credibility and are inconsistent with the objective medical record. 

No medical specialist is in a better position to opine about the effects of a claimant’s subjective complaints of pain than a pain management specialist, which makes it more difficult for the SSA to deny a claim. Moreover, logic dictates that the SSA will find complaints of pain more credible when a claimant sees the need to treat with a pain management specialist.

Social Security Scam

We received a phone call today from a former client who was very upset because he had received a voice mail from Social Security accusing him of fraud. Fortunately, before returning the call, he called me. I advised my client that Social Security would never leave a message like that. I urged him to call his local Social Security office to advise them of the phone call, which obviously was a scam. Do not ever respond to such a call, and contact your local Social Security office if you have any questions.

More Trouble for SSD

The denial rates for Social Security Disability ("SSD") benefits have been increasing for several years now. Nonetheless, in order to invigorate that trend, the Trump Administration has changed the rules governing the hiring of Administrative Law Judges ("ALJ's"). Instead of going through a competitive interviewing process based on experience, the new executive order makes it easier for Presidential appointed Agency Heads to hire new ALJ's directly. This fosters the selection of ALJs who are predisposed to deny SSD benefits, which is a goal of the Administration.  More denials means more appeals, choking the already backlogged system with more claims, and increasing even further the amount of time that people will have to wait for a favorable decision.

Recording A CE

Regardless of what the medical records reveal, the State agency tells a Social Security Disability (“SSD”) claimant to go for consultative examinations ("CE”). CEs almost invariably contain fraudulent findings. For example, the CE report will say that the claimant had no trouble getting on and off the exam table, when the claimant only sat in a chair. This has been happening for many years.

To guard against fraudulent findings, I advise my clients to video record the CE, which are performed by ­IMA. Because there is no law, rule, or regulation that prohibits a SSD claimant from recording the CE, IMA claims that it is against their policy. However, in IMA offices, they have signs stating that claimants can record their exams, so their “policy” is specious at best. 

I represent a 52 year old former teacher for the deaf whose SSD application was approved by an ALJ today. The State agency had denied the claim on the grounds that the claimant refused to attend the CE. The claimant testified that when the IMA doctor saw the claimant’s spouse recording the exam, the doctor threw a fit, left the exam room, and refused to return. The claimant further testified that she never refused to answer any question or submit to an exam by IMA. If the reports of IMA doctors actually reflected what transpired during their exams, then there would be no reason for IMA’s “policy.”

COPD

Chronic obstructive pulmonary disease (“COPD”) is a progressive disease that makes it hard to breathe. COPD symptoms include breathing difficulty, cough, mucus (sputum) production and wheezing. The symptoms of COPD are progressively worsening and persistent breathlessness on exertion, eventually leading to breathlessness at rest.

Because a claimant is initially symptomatic upon exertion, the more strenuous a claimant’s job is, the sooner that person is likely to become unable to perform it. Thus, a laborer in the construction industry is much more likely to be found disabled soon after the onset of COPD, compared to a receptionist who spends most of the day sitting. 

I represent a 55 year old floor tiler whose Social Security Disability (“SSD”) claim was approved today. His job required him to carry 100 pound boxes of tiles and sacks of grout. The administrative law judge (“ALJ”) found it credible that the level of exertion to perform the tiling work was precluded by the COPD. Had the claimant’s work required mostly sitting, then the ALJ would not have found the COPD to be disabling until it had progressed to the point where little exertion resulted in symptoms.

CE Boondoggle Continues

For many years, I have been describing how virtually every single State agency examiner who processes applications for Social Security Disability benefits insists that claimants must attend consultative examination “CE”s. Almost every CE is scheduled in violation of the Social security rules and regulations, and results in a waste of time and taxpayer money. By demanding a CE, the State agency is saying it does not believe what the treating doctor says. Notably, ALJ Kilgannon just said the same thing during a hearing last week, which shows that the aforementioned concept is not limited to the State agency. 

I represent a 54 year old former carpenter with knee, neck, back, and shoulder impairments. On May 21, 2018, the State agency told the claimant he had to attend CEs for his knee and depression. Ignoring my May 23, 2018 letter detailing why a CE was improper, the State agency rescheduled them on May 31, 2018. 

When the State agency sent a reminder letter about the CEs on June 1, 2018, we faxed a letter advising the State agency that the claimant neither has, nor claimed, a mental impairment. Nonetheless, on June 14, and 15, 2018, the State agency sent additional letters to remind the claimant about the CEs. After a series of calls, the State agency finally agreed that a CE was not needed to address a mental impairment. 

The good news is that the claimant’s SSD benefits were approved last week without a hearing. The bad news is that the attempt to compel the claimant to submit to a mental CE must have delayed the processing of the application. There was nothing in the application regarding a mental impairment. There was no medical record regarding any mental problem. No psychotropic medication was prescribed for the claimant. 

Did the State agency fail to review the file properly when scheduling the mental CE? Does the State agency or its examiners have an undisclosed incentive to schedule needless CEs? I suspect we will still be asking these questions for the unforeseeable future.

Continuing Disability Review

A few years after the Social Security Administration (“SSA”) finds you are disabled, it will conduct a continuing disability review (“CDR”) to determine if you remain disabled. The SSA will find that your medical condition has improved if you significantly reduced treating it. If you stop seeing the same doctors, that can lead to a CDR termination of benefits. 

I represent a 57 year old former information systems tech, whose retained us after her SSD benefits were terminated following a CDR. The claimant had relocated from New York to Connecticut. Despite any evidence that the claimant’s medical condition had improved, her SSD benefits were apparently terminated because she had new doctors, and presumably, the SSA hoped that the claimant would no longer be able to supply medical evidence to support her continued inability to work. 

On reconsideration, after submitting treatment records and tailored disability reports from the Connecticut physicians, the claimant’s SSD benefits were restored. The SSA has been increasingly seeking ways to reduce the number of claimants collecting SSD benefits. You cannot assume that you will continue to receive SSD benefits until you reach retirement age.

Help for Social Security?

Anyone who has applied for Social Security Disability ("SSD") benefits knows that the system has rules that do not make sense and are unfair. Two stand out. First, if you are approved for SSD, there is a 5 month waiting period from your onset date until your benefits to kick in. So if you stopped working on January 15, 2018, your SSD benefits would not start until July 2018. There is absolutely no reason to make people wait for SSD benefits, especially since there is no 5 month waiting time for Supplemental Security benefits. Second, if you are approved for SSD benefits, you must wait 2 years from your date of entitlement for Medicare coverage. Using the example above, you would not be eligible for Medicare until July 15, 2020 if your onset date was January 15, 2018. 

Sen. Bernie Sanders (I-Vt.) and Rep. John B. Larson (D-Conn.) introduced legislation Wednesday that addresses many of the issues facing Social Security, such as lack of funding and long waits for hearings. The legislation also proposes to do away with the 5 month SSD waiting period and the 2 year waiting period for Medicare. If this legislation passed, it would make a huge difference in the lives of disabled individuals who qualify for SSD.

SSD While You Work

A frequent question from claimants is whether they can work and still receive Social Security Disability (“SSD”) benefits. The answer is, it depends. As long as you earn less than substantial gainful activity (“SGA”), and are unable to work full time, you can receive SSD. I represent a 55 year old former data collector whose SSD application was approved even though he is currently working. 

After we arranged for the claimant’s neurologist to perform the consultative examination (“CE”), the State agency wanted more information about the claimant’s part time work. We advised the State agency that the claimant’s employer had made special work accommodations for the claimant, and was only working about 6-7 hours a week. We also confirmed that the claimant was only earning about $600 a month, well below SGA. Shortly thereafter, the SSD application was approved.

DDS Summarily Reversed

The DDS continues to waste taxpayer money. I represent a 54 year old former business owner with Parkinson’s disease (“PD”), who asked me a month go to appeal his application for Social Security Disability (“SSD”) that the DDS denied. Today, a special branch of the Social Security hearing office approved that application. 

The claimant earned over a $100,000 a year, so commonsense tells you that he would rather continue working than receive less than a quarter of that amount in SSD benefits. Moreover, the claimant’s neurologist and psychiatrist provided reports that detailed why the claimant’s PD precludes the ability to perform the physical and mental demands of full-time work. 

The hearing office approved the application only a month after receiving it, which is incredibly fast. Furthermore, the special branch immediately reviewed the application, and the case never went through the normal processing steps. In other words, the hearing office immediately recognized that the application should have been approved, and prevented the claimant from having to wait while the application made its way through the normal channels.

The Future of Social Security

Everyone looks forward to retirement, and most of us are counting on the money we will get from Social Security to live on. There have been countless reports in the news regarding the uncertain fate of Social Security, and how it will affect millions of eligible retirees. There is no question that we cannot rely solely on the money we expect to receive from Social Security when planning for our retirement.

Patchogue Obstruction

I represent a 59 year old administrative assistant with double concussion syndrome whose application for Social Security Disability (“SSD”) benefits was approved in two months. It could have been faster, but the Patchogue office delayed matters by creating rules that do not exist. 

As has been the case for many years now, we filed the claimant’s application and representation forms electronically. However, in this case, we received an unsigned, one sentence letter declaring that our forms were unacceptable because “original wet signature documents” had to be submitted. 

The fact that the letter was unsigned indicates that the sender knew there was no basis for rejecting the forms. The POMS states: 

Either an attorney or non-attorney may use a rubber stamp or e-signature to sign the notice. SSA will accept a rubber-stamped or an electronic signature unless there is a reason to doubt that it represents the intent of the representative to accept the appointment. 

The POMS could not be clearer. Nonetheless, contrary to the POMS, the Patchogue office delayed matters as it insisted that original wet signature documents be submitted. A needless waste of time and resources.

Medical Sources

Recently, the Social Security Administration (“SSA”) enacted new rules concerning evidence from medical providers. The bad news is that the new rules were designed to make it more difficult for a claimant to obtain Social Security Disability (“SSD”) benefits. The rules achieve that goal by eliminating the requirement that controlling weight be given to treating source opinions that are well supported. The bad news is tempered somewhat by allowing more weight to be given treating sources that are not considered acceptable ones, primarily MDs. 

For claims filed after March 27, 2017, the new rules state that all medical sources, not just acceptable medical sources, can provide evidence that the SSA will consider as medical opinions.

I represent a 25 year old with mental impairments whose SSD application was approved after the Administrative Law Judge (“ALJ”) gave even greater weight to the opinion of the claimant’s certified social worker (“CSW”) than the treating psychiatrist. The rationale was that the CSW had extensive face to face interactions with the claimant and reviewed the claimant’s medical records. 

While the new rules eliminate the concept of controlling weight, there is nothing to prevent an ALJ from giving greater weight to a treating doctor after considering all the factors for evaluating medical opinions. Nonetheless, no doubt that those ALJ’s with high denial rates will see the new rules as justification to deny more claims.

Washington Times Article

Here is a link to an interesting article from the Washington Times. Among other things, it says that the Social Security Administration estimates that it will take another four years to handle the hearing backlog, and that 10,000 of the claimants waiting for those hearings died while they waited.

Lourdes Marasigan

The New York State Office of Temporary & Disability Assistance, Division of Disability Determinations (the “State agency) needs to fire Lourdes T. Marasigan. I have spent years having to overturn decisions that denied Social Security Disability (“SSD”) benefits based on irresponsible reports by Marasigan. 

According to both the American Board of Medical Specialties and New York State Department of Health, Marasigan is not board certified in any specialty, went to medical school in the Philippines, and was trained as an anesthesiologist. Nonetheless, the State agency has Marasigan review every type of medical problem under the sun, including hearing loss, lumbar radiculopathy, brain injuries, vision impairments. As a result, in those rare instances where a consultative examination (“CE”) by Industrial Medicine Associates actually supports an SSD claim, Marasigan comes to the opposite conclusion. 

I represent a 53 year old former truck loader who had seven heart attacks, five stent surgeries, a triple cardiac bypass surgery, hyperlipidemia, hypertension, polycythemia, sleep apnea, and diabetes, that caused weakness, fatigue, vertigo, shortness of breath, and a grand mal seizure. The CE noted the claimant even needed to hold onto the table in the exam room. The CE concluded that the claimant was markedly limited in the ability to walk, stand, climb, or lift anything. 

It is very unusual for a CE to assert that a claimant has any marked limitation, which essentially means precluded for that activity. There is no possibly rational way to interpret the CE to conclude the claimant could stand and walk for even 2 out of 8 hours, or lift any weight for up to a third of the day. Nonetheless, Marasigan opined that the claimant could stand and walk for 6 out of 8 hours and could lift and carry 20 pounds for up to a third of the day, and could lift and carry 10 pounds for about 6 hours a day. 

The State agency denied the SSD claim based on Marasigan’s opinion, even though she never examined or even saw the claimant, and even though the claimant’s cardiologist limited the claimant to sitting for 1 out of 8 hours, standing/walking for less than 1 out of 8 hours, and lifting and carrying somewhere between 0 and 5 pounds for up to a third of the day. The claimant’s internist provided similar restrictions. The bad news was that even though every doctor who examined the claimant, included the CE, provided restrictions that precluded the claimant from any full time activity, the State agency denied the claimant SSD benefits. 

The even worse news was that the case was reconsidered by the State agency quality control, which is fairly rare, yet the claim still was denied. The average wait for a hearing is now well over 600 days. The good news is that rather than remaining idle all that time, the hearing office reviewed the claim about a month later, and reversed the decision.

There simply is no excuse to continue to spend the State agency’s limited resources by employing non-examining doctors, with inapt medical qualifications or backgrounds, to review SSD claims. That injudicious expenditure of resources then wastes the hearing office’s resources too.

Lump Sum Settlements

Disability insurers sometimes will offer a lump sum to a claimant in lieu of continuing to receive a monthly benefit. Insurance companies do so for one reason – to increase their profits. The offers are never in the claimant’s favor because the insurance company is operating in its self-interest, not yours. 

Insurers make unfair offers by misrepresenting that they are offering the present value of the claimant’s future benefits. Present value is the time value of money. If you win a million dollar lottery, the lump sum you can get will be less than a million dollars. The theory is that you can invest the lump sum, which over time would equal a million dollars. 

The lump sum settlement that insurers offer use an interest rate that is too high to represent the present value of the future benefits. The higher the interest rate used, the smaller the lump sum. There is an easy way to prove this if you get a lump sum offer. Ask the insurer what interest they used to calculate the present value of your future benefits. Then tell the insurer that you will accept the lump sum if they purchase an annuity for you at that interest rate. The insurer will tell you that no such annuity is available in the market. 

I represent a claimant who was offered a lump sum in 2014 by CIGNA. Among other things, I advised the claimant that the interest rate used to calculate future benefits was too high. The claimant rejected the offer. 

CIGNA terminated the claimant’s benefits four years later. CIGNA was unable to identify any medical test, exam finding, or symptom that had changed. The case settled for much more than the 2014 offer, even though there was now four fewer years of future benefits. 

If you are currently receiving monthly disability benefits, and the insurance company offers you a lump sum settlement, make sure that you have the offer reviewed by your financial consultant or attorney. Chances are that the settlement is not worth it.

Partially Favorable Decisions

The State agency regularly issues partially favorable decisions (“PFD”) when making initial determinations on Social Security Disability (“SSD”) applications. A PFD should almost always be appealed as this could result in the receipt of substantial additional benefits.  

The first step in appealing a PFD is to review the documents in the eFolder to see if there is one that explains why a later onset date was chosen. Many times it seems that there is absolutely no reason for the delayed onset date. Sometimes there is no document in the eFolder that provides a reason why the State agency issued the PFD. Sometimes, a specific explanation is provided. 

I represent a former carpenter with hand and knee impairments. The State agency issued a PFD based on the claimant turning 55 under the“Grid” rules, instead of when he alleged he became disabled while he was 54 years old. I appealed. At the claimant’s hearing, I questioned him in detail about the treatment records for the 10 month period prior to the PFD. After about 25 minutes, before I could complete the examination, the ALJ agreed that I had established the claimant was disabled from work during that 10 month period. The result was that the claimant will receive nearly an additional year of SSD benefits.

No Help for SSD Backlogs

There is no end in sight for the continued backlog of disability cases at the Social Security Administration. It lacks the funding to hire more ALJ's and staff, and to update their antiquated system. Without the funding, the wait times will continue to grow and cause extreme hardship for the people waiting for decision on their claims.

Fast SSD Approval

We represent a 59 year old carpenter with shoulder and hand problems, whose Social Security Disability (“SSD”) benefits were approved in less than three months. Given the cutbacks to the agencies processing SSD claims, the quick approval was somewhat unusual. 

With the claimant’s help, we were able to obtain and submit treatment records, diagnostic tests, and a narrative report that supported the claimant’s application. The narrative report included restrictions and limitations that described the claimant’s functionality, symptoms, treatment, and supporting objective findings. Consequently, the claimant was not asked to undergo a consultative examination, which frequently is the basis for denying SSD applications.

Vocational Experts

At a Social Security Disability (“SSD”) hearing, an administrative law judge (“ALJ”) can ask a medical expert, vocational expert (“VE”), both, or neither to testify. In some circumstances, it may be advisable for a claimant to retain their own VE. 

I represent a 37 year old former case manager for the State Court system with migraines, neck and back problems, and mental impairments, whose SSD application was approved today, largely because she had retained a VE. I had advised the claimant to retain a VE for two reasons. First, many ALJs find it difficult to account for migraines. Second, the claimant also filed a NYSLERS claim, and that entity does not use VEs when evaluating claims. 

There are relatively few VEs locally who are familiar with the SSD process, and many of them also work for Social Security Administration (“SSA”), which was true for the VE that the claimant retained. After bringing the VE’s report to the attention of one of the staff attorneys at the SSA hearing office, he advised me that he would recommend an OTR, which the ALJ approved today. 

The ALJ’s decision gave great weight to the opinions of the claimant’s orthopedist and neurologist, who had provided diagnostic tests and treatment records to support their opinions. However, that is not unusual, yet very few cases now get approved OTR. The ALJ’s decision also gave great weight to the VE’s opinion that there was no work that the claimant could perform full time. That distinction indicates that it was the reason why the ALJ found an OTR was justified.

Disability & Medicare

It is important to remember that after you become eligible for Social Security Disability (“SSD”) benefits, you can also receive Medicare. Since many claimants get their health insurance through their employers, which terminates after they stop working, Medicare becomes vitally important. 

The lack of health insurance can also affect your ability to obtain SSD benefits. I represent a 58 year old claimant from Florida for his SSD claim. He had been a carpeting foreman and had developed shoulder and ankle problems. His internist, podiatrist, and orthopedist provided reports to support the SSD application. 

The State agency asked if the claimant was going to have surgery on his shoulder. I advised the State agency that the claimant could not afford to have the surgery because he had no health insurance. Shortly thereafter, the claimant’s SSD benefits were approved. 

When SSD benefits are approved, you are automatically enrolled in Medicare after you get SSD benefits for two years. The two parts of Medicare that you receive are hospital insurance and medical insurance.

IMA Disability Services

Don’t believe everything you hear; especially when it comes from IMA Disability Services (“IMA”).

I represent a 58 year old construction foreman, whose job was very heavy work. He had rheumatoid arthritis and carpal tunnel syndrome, which prevented him from continuing to work. As usual, the State agency directed the claimant to attend a consultative examination (“CE”). 

I advised my client to videotape the CE. Two weeks ago, he went to the IMA office in Bohemia with his wife, who was videotaping the entire CE process with her cell phone. He was taken for an x-ray before the physical examination. Before the x-ray was taken, an IMA representative told the claimant that he was not allowed to record the CE. When the claimant insisted that he had the right to videotape his own exam, he was told that the CE would not proceed and to leave. 

As the claimant was leaving IMA, he was told that he would be back the next week. The claimant never returned to IMA, and he received his Social Security Disability (“SSD”) check in the mail today.

NYSLERS & SSD

When applying for disability benefits, the Social Security Administration (“SSA”) is required to consider evidence from other governmental agencies. While a decision from another agency awarding disability benefits is not binding on the SSA, the SSA can find such a decision to be very persuasive. 

I represent a 52 year old former teacher with back, knee, shoulder, and mental impairments. In May 2017, the SSA was given a report from the treating orthopedist that concluded the claimant could not work, and that report was supported with treatment notes and MRI test data. In October 2017, the SSA was given a report from the treating spine surgeon that concluded the claimant could not work, and that report was supported with treatment notes, surgical reports, and MRI test data. In December 2017, the SSA was given a report from the treating psychiatrist, which concluded that claimant could not work. Despite well supported opinions from three different specialists, the SSA did not approve SSD benefits. 

Two weeks ago, the SSA was provided with proof that NYSLERS found the claimant unable to work. Today, we learned that the SSA approved the claimant’s SSD benefits. While the NYSLERS approval was not binding under the regulations, the SSA must have found it to be convincing.

Help for SSD Benefits?

Some politicians on the Ways and Means Committee actually understand how claimants are being adversely affected by the Social Security Administration's ("SSA's") lack of funding. The wait times for hearings at the SSA have so greatly increased, along with the wait times for receipt of benefits, that Ways and Means might actually try to do something about it. Those politicians are urging the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and related agencies Chairman, to increase funding to the SSA to help combat the backlog, which is negatively affecting millions of disabled workers.

Vocational Experts

At a Social Security Disability (“SSD”) hearing, an administrative law judge (“ALJ”) can ask a medical expert, vocational expert (“VE”), both, or neither to testify. In some circumstances, it may be advisable for a claimant to retain their own VE.

I represent a 37 year old former case manager for the State Court system with migraines, neck and back problems, and mental impairments, whose SSD application was approved today, largely because she had retained a VE. I had advised the claimant to retain a VE for two reasons. First, many ALJs find it difficult to account for migraines. Second, the claimant also filed a NYSLERS claim, and that entity does not use VEs when evaluating claims. 

There are relatively few VEs locally who are familiar with the SSD process, and many of them also work for Social Security Administration (“SSA”), which was true for the VE that the claimant retained. After bringing the VE’s report to the attention of one of the staff attorneys at the SSA hearing office, he advised me that he would recommend an OTR [9/20/17], which the ALJ approved today. 

The ALJ’s decision gave great weight to the opinions of the claimant’s orthopedist and neurologist, who had provided diagnostic tests and treatment records to support their opinions. However, that is not unusual, yet very few cases now get approved OTR. The ALJ’s decision also gave great weight to the VE’s opinion that there was no work that the claimant could perform full time. That distinction indicates that it was the reason why the ALJ found an OTR was justified.

Supporting Records

Over the last several years, I have discussed how the Social Security Administration (“SSA”) has pressured administrative law judges (“ALJ’s) into adjudicating more cases, and requiring that approvals be supported by more evidence. The result is that Social Security Disability (“SSD”) approval rates have been steadily declining. 

I represent a 39 year old former route sales driver with neck and back problems whose SSD application was approved today without a hearing. The claimant had been waiting a year for a hearing, and had submitted medical tests, records and reports from several physicians that supported the claimant’s application. 

A few days ago, I submitted about 100 pages of updated medical records from the surgeon who had been treating the claimant. The additional records were cumulative in that they did not provide new information about the claimant’s impairments, but corroborated the medical evidence that was already in the file. 

The ALJ’s office called today to advise that the case was being granted on-the-record. As the additional information was cumulative in nature, this is indicative of the type of case that would have been approved much sooner in the past, but now requires additional support to justify approval.

Budget Cuts Increase Wait Times

It seems as if everyday we have to explain to current and potential clients about how painfully slow the process is for receiving a decision on their Social Security Disability ("SSD") application. The wait time for a decision has increased dramatically over the past eight years, especially over the last 3 years. Part of the reason is because of an increase in applications as "baby boomers" get older. Another part is because of the budget cuts imposed by the government. 

The Social Security Administration ("SSA") had been given the green light to hire more Administrative Law Judges ("ALJs"), which would have reduced the wait times for a hearing. However, last January the current administration put a hiring freeze on government agencies, and also cut their budgets. Therefore, the SSA could not hire more ALJs, and the wait time for a hearing continues to grow. Imagine, not being able to work due to severe medical problems, which means no income, and then the government expects you to wait 2+ years for a hearing. While having an attorney can only decrease the wait time in some situations, it does greatly increase your chance of being approved.

Support Letters

The majority of the time, claimants are found entitled to receive disability benefits by virtue of the severity of their symptoms, not their diagnosis. When a claimant has a Social Security Disability (“SSD”) hearing, the Social Security rules and regulations require an administrative law judge (“ALJ”) to determine if the claimant’s symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. That “other evidence” includes witnesses and support letters. 

It is always a good practice at an SSD hearing to have a witness testify, who will help corroborate the claimant’s complaints and limitations. Support letters should be submitted even if the claimant brings a witness to the hearing, and should absolutely be used when no witness will testify. 

I represent a 51 year old claimant with MS, whose SSD claim was approved today. The claimant was unable to bring a witness with her to the hearing, but I had procured several support letters that I submitted. The ALJ ruled that claimant's statements concerning the intensity, persistence and limiting effects of her symptoms were reasonably consistent with the medical evidence and other evidence in the record. The ALJ singled out the statements of the claimant's daughters among the support letters.

SSD For MS

The Social Security Administration (“SSA”) has taken steps to make it harder to obtain Social Security Disability (“SSD”) benefits. One of the tactics the SSA has been using is continuously making the listings more complicated.

MS is a chronic, often disabling disease that attacks the brain, spinal cord, and optic nerves. Disabling symptoms include overwhelming fatigue, numbness, and poor coordination. Like many listings the SSA rewrote the one pertaining to MS. As a result, treating neurologists are usually no longer willing to provide an opinion that a patient meets the MS listing, which no doubt was the SSA’s goal.

I represent a 56 year old former teaching assistant with MS whose SSD benefits were approved today. The treating neurologist would not opine that the claimant met the MS listing because he said it was ridiculously convoluted, and replete with cross references on cross references. Nonetheless, the neurologist did provide treatment records with a report that detailed the claimant’s functional limitations.

The ALJ had no problem accepting the neurologist’s medical findings and opinions. However, the claimant had to wait years before her hearing was scheduled. If the SSA had not intentionally increased the complexity of the MS listing, then the neurologist probably would have opined the claimant met its criteria, which could have avoided a hearing.

Misconceptions About SSD Continue

Misconceptions surrounding the Social Security Disability ("SSD") insurance program continue, even among politicians and beneficiaries. SSD is not a welfare program, and is not for "lazy" people who do not want to work. SSD was initiated to protect working American citizens in the event they became sick and unable to work. Unlike welfare, SSD is only available to people who have worked and paid into the program. The money in the SSD program is the money that we have had withheld from our paychecks, to be paid into social security. So when you retire, or become disabled, the money you receive is YOUR money. 

It has become extremely difficult to get approved for SSD, even when you have your doctors' support. The denial rates, and the wait for a hearing, have grown exponentially over the last couple of years. This means that people are forced to live for 2+ years without any income, awaiting a decision on their SSD claim. The obvious question is, why would anyone choose to go through this if they were able to work? Why would they choose to be "lazy" and if approved, collect SSD for a fraction of the money they earned while they were working? The 2018 monthly average SSD benefit people will receive if found disabled is $1197 a month. 

As long as the inaccuracies and misconceptions about the SSD program are maintained, people will continue to believe that their disabled fellow citizens are somehow cheating the system. It is unconscionable and extremely troubling that these erroneous statements are so casually and ignorantly thrown around by our own politicians. Before you are sucked into their lies, and truly believe your friend, your neighbor, or your co-worker is lazy and a liar, stop and get the facts. Until it affects you, or someone you care about, it is easy to believe the rhetoric some politicians are spewing. It is also very easy to judge people when you are not in their position.

Patchogue Fails Again

We represent a client whose initial application for Social Security Disability ("SSD") benefits falls under the jurisdiction of the Patchogue District Office. We filed the SSD application at the beginning of November. The claim has been a problem from the beginning. The applicant previously filed an application on his own. The Patchogue office erroneously denied that application because its representative made errors concerning the claimant's prior earnings. Since filing his SSD claim last November, we have spoken with three different people at the Patchogue office, one of which was a supervisor. We also received a date-stamped letter from the Patchogue office as proof that they received our letters of representation. 

On January 10, 2018, we spoke with the supervisor, Ms. Sheremeta. We explained that we had spoken with Mr. Parks on December 8, 2017, confirming with him that their office had received our letters of representation, which we had faxed to them in November. We made that call because they had previously told us that they were having problems with their fax, and we wanted to make sure we did not need to mail our letters of representation to them again. 

Ms. Sheremeta spent 15 minutes on the phone with us to correct the problems. Ms. Sheremeta advised us to send the paperwork that was needed to Mr. Hessler, and she would have him re-open and process the claim. We faxed the requested paperwork to Mr. Hessler. We called Patchogue again on January 19, 2018, and spoke with Mr. Powers, who advised us that the case had not been re-processed yet, but that he did see the notes to re-open it. 

Each person we spoke with: Mr. Parks, Ms. Sheremeta, and Mr. Powers, confirmed that they had our letters of representation in the claimant's file. If they did not have our letters, then they would not have been able to discuss anything about the claim with us. 

We called the Patchogue office yet again on February 1, 2018, to follow up on the claim. Ms. Abraham advised us that they did not have our letters of representation, and therefore, she could not give us any information. We explained to her that this was impossible, based on all our previous conversations and correspondence with the Patchogue office. Nonetheless, Ms. Abraham refused to speak with us, and refused to allow us to speak with Ms. Sheremeta. At that point, in total frustration at their ineptitude, we re-faxed our letters of representation along with a cover letter to Ms. Sheremta. 

We called Patchogue the following day, and again spoke with Ms. Abraham. She confirmed that our fax was sitting on Ms. Sheremeta's desk, but as Ms. Sheremeta was out and had not scanned the paperwork into the system, Ms. Abraham told us that she could not speak with us about the claimant's case. 

We called Patchogue yet again today, and spoke with Ms. Kanhai. She asked us for the claimant's information including, their SSN, date of birth, and home address. She also asked us for the claimant's mother's maiden name. We explained to Ms. Kanhai that previously no one ever, including the supervisor, had asked us this question, but she still refused to give us any information regarding the claimant's file. 

The Patchogue District Office is notorious for their negligence, disorganization, and ineptness. As others have told us, they need to get their act together. We have filed a complaint with the office of public affairs. This is no way to run an office, especially one that is supposed to be serving the public and helping our hard working citizens to get disability.

Myasthenia Gravis

Myasthenia Gravis (“MG”) is a chronic autoimmune neuromuscular disorder that causes voluntary muscle weakness. There is a listing for MG. However, like many listings, the Social Security Administration (“SSA”) rewrote the MG listing to make it more difficult to meet. 

I represent a 51 year old former owner of an auto repair business whose application for Social Security Disability (“SSD”) benefits was approved in only four months without providing a listing opinion from the treating neurologist. However, I provided the SSA with hundreds of pages of treatment records that noted visual and speech difficulties, weakness and fatigue. 

As MG is relatively rare, many SSA analysts are unfamiliar with it, which makes the approval in only four months somewhat unexpected. It appears that the claimant had his claim reviewed by someone who performed their job properly, rather than automatically denying something they did not understand.

Lupus

About 1.5 million Americans have Lupus according to the Lupus Foundation of America. Because the Social Security Administration (“SSA”) recognizes that Lupus frequently can prevent a person from being able to work, it created a listing for it. Claimants with Lupus can receive Social Security Disability (“SSD”) benefits even if they do not meet the criteria for the listing. 

I represent a 59 year old former administrative clerk with Lupus whose SSD claim was approved today, without the need for a hearing. We submitted a report from the treating rheumatologist that cited RNP and ANA antibodies as the laboratory test data that supported his opinions. A staff attorney from the hearing office then asked us for that objective medical evidence, we provided copies of the test results. Thereafter, the staff attorney advised us that she would recommend having SSD benefits approved.

SSD Delays

If you Google Social Security Disability (“SSD”) delays, you will find countless articles about the record long waiting time to get a hearing with an Administrative Law Judge, or about how thousands of people are dying while they wait for their SSD benefits.  Claimants frequently ask me what they can do to minimize their wait time.  My answer is that they should visit their doctors to ensure that they provide the necessary test results, treatment records, and opinion reports and forms that I advised.

I represent a 59 year old house cleaner with back and neck problems, whose SSD application was approved today in less than five months.  While the majority of my clients are in their 50’s with musculoskeletal problems, few get approved in less than five months.  The only thing that was really different here was that the claimant promptly provided all of the medical information that I suggested was needed to support her claim.

The SSD process takes much longer than it should.  Because claimants can no longer work and have no income, most cannot afford the usual delay involved.  It helps to be proactive.  While we always request documentation, doctors obviously are more responsive to information requests from their patients, than they are to us.

WC Medical Opinions

Many people file both Workers Compensation (“WC”) and Social Security Disability (“SSD”) claims. During the SSD application process, the Social Security Administration (“SSA”) frequently obtains the records and reports of the WC doctors. How much weight does the SSA give to the opinion of a WC doctor? 

Last year, in an SSD appeal, a federal district court judge rejected the opinion of a WC doctor because he failed to specify if the claimant could sit for 6 hours a day. The district court judge reasoned that the SSA administrative law judge (“ALJ”) was not permitted to speculate about the claimant’s capacity to remain seated based on the WC medical reports, and had a duty to procure medical evidence that specifically discussed the claimant’s capacity to sit for six hours and to stand and walk for two hours. 

What happens if a WC doctor addressed whether or not a claimant could sit for 6 hours a day? In New York, it has long been recognized that when reviewing a SSD claim, the opinions of WC doctors are entitled to little weight. Federal court judges have discounted reports from WC doctors on the grounds that self-interest may well have dictated their contents, and they should not be permitted to constitute substantial evidence. 

Despite the aforementioned, ALJs frequently seek to deny SSD benefits by elevating the opinions of WC doctors over the opinions of treating doctors. 

I represent a 46 year old former cement truck driver whose SSD application was approved today. Despite the fact that two treating orthopedists and a treating pain management specialist specified that the claimant lacked the ability to perform sedentary, the ALJ insisted that the claimant provide the report from the WC doctor. 

The claimant’s WC case was closed a few years ago after he received a lump sum settlement. However, I was able to obtain, and submit, the WC doctor’s report to the ALJ a couple of weeks after the hearing. I enclosed the report with a cover letter that included the citations and greater explanation concerning the relevant case law briefly mentioned above. I contended that there was no reason to defer to the opinion of the WC doctor because the ALJ already had medical evidence from the treating doctors that specifically discussed the claimant’s inability to sit for 6 hours a day. 

The ALJ, who was from the Virginia hearing office, approves as many SSD claims as he denies. Regardless of where the ALJ is located, because the claimant resides and would appeal to federal court in New York, New York case law would apply to the appeal. Considering that my client was under 50 years of age, I suspect that the ALJ would have denied the SSD application based on the WC doctor’s opinion if I had not provided the cover letter explaining how New York courts have treated WC medical opinions.

Government Targets the Disabled

In another cruel and unusual twist, the Trump Administration has given states the power to require people on Medicaid to "participate in a work program or other form of approved “community engagement” in order to retain their health benefits." By doing this, it puts the disabled in an "in-between” position, which will lead to more people being disability benefits and even death.

Another SSD Myth Busted

I have written several blogs regarding some of the myths about people who apply for Social Security Disability ("SSD") benefits.  One of the biggest myths is that these people are lazy, and just want to sit home and collect SSD benefits.  The truth is that most of those people would much rather be working than sitting at home, and having to rely on SSD benefits, which pay only a fraction of what they had been earning.  Here on Long Island,  SSD benefits rarely cover the most basic necessities. These people are like you and I, have worked hard their entire lives, paid into Social Security, and became disabled for a multitude of reasons beyond their control.  Even with doctors supporting their claims, and their years of employment attesting to their credibility, they are too often denied SSD benefits.  We have no right to judge them.  If these people have enough work credits, then they are eligible for SSD benefits.  If they do not, then they may eligible for Supplemental Security Income (“SSI”).  So unlike what the government would have you believe, no one is getting benefits that they are not eligible to receive.  Nonetheless, the government has been taking affirmative steps to increase the SSD and SSI denial rates, while allowing the waiting times for hearing to hit a record high.

The Truth About SSD

"Social Security is a pay-as-you-go system with current workers contributing to older Americans." However, while cutting taxes, the government spouts the need to cut funding to Social Security and Medicare due to budget deficits and annual dept, when in reality this is not even close to the truth.

SS Benefits 101

Many clients that call us have no idea that they could have applied for Social Security Disability benefits. This article explains who is eligible, and what steps need to be taken to apply for these benefits.

Increase in SS Denials

It's pretty much common knowledge that the denials for Social Security Disability benefits have increased exponentially over the past several years. What may not be common knowledge is that our government has directed the Social Security judges to deny as many claims as possible, even when the law supports the merits of the claim.