New Opinion Weighing

The Social Security Administration hopes that eliminating the treating physician rule will substantially reduce the number of disability applications that get approved. 

We represent a 44 year old former mail carrier from Seaford.  She was referred to us by her sister-in-law, a former client whose Social Security Disability ("SSD") benefits were approved a few years ago.  The mail carrier was looking for a SSD attorney on Long Island.  Her back problem was well supported by objective medical data.  However, it was not until a few days after the claimant’s hearing that we finally were able to provide a report assessing her functional limitations from her orthopedist. This case illustrates how at least one administrative law judge (“ALJ”) weighs medical opinions under the new rules. 

The ALJ found the claimant disabled by finding the opinion of the orthopedist and the medical expert (“ME”) persuasive. The ALJ found the orthopedist persuasive because he personally examined the claimant over an extended period of time, his functional assessment was very recent, and the assessment was corroborated by the ME. The ALJ found the ME persuasive because he had full access to the claimant’s medical history. 

While the ALJ found personal examinations, length of treatment, and reviewing all medical records to be important, he did not indicate which were more important. Since both the orthopedist and ME concluded the claimant lacked a sedentary work capacity, the ALJ did not need to say whether he found the orthopedist or the ME more persuasive. There was no indication if personal examinations and the length of treatment was more important than reviewing all the records. 

Had the ME’s opinion contradicted the orthopedist’s opinion, it is possible that the ALJ would have found the ME more persuasive. It seems advisable that when treating sources are asked to provide functional limitations, they should also be given all medical records to review, which should be reflected in their assessments. 

Listings

Meeting a “listing” is one way to establish entitlement to Social Security Disability (“SSD”) benefits. Frequently, all the criteria of a listing may apply to a claimant, but the treatment records may not reflect each criterion. Recognizing the potential applicability of a particular listing, and that some criteria are absent from the treatment records can be overcome. 

I represent a 42 year old graphic designer from Long Island with various back problems. While he received extensive treatment for his back, including lumbar surgery and MRI testing, the records did not reflect that he always met all of the listing criteria. Therefore, we tailored forms for the claimant’s spine specialist to complete that addressed the criteria for listing 1.04, and the response revealed that the claimant did in fact satisfy each element. 

At the hearing, a medical expert (“ME”) testified that the claimant met listing 1.04. Moreover, the ME testified that even if the claimant did not meet or equal the listing, the medical evidence, including the spine specialist’s report, reflected the inability to perform sedentary work. Since the claimant was 42 years old, without the responses to the form we prepared for the spine specialist, the claimant probably would have been denied SSD benefits.  This is another example of why it is so important to retain an attorney who specializes in SSD claims.  If you are thinking about applying for SSD benefits, please contact my office for a free phone consultation. We have offices that are conveniently located in both Nassau and Suffolk counties on Long Island. 

 

 

Peripheral Arterial Disease

Peripheral Arterial Disease (“PAD”) is a circulatory problem in which narrowed arteries reduce blood flow to your limbs. According to the Mayo Clinic, the lack of blood flow causes pain, numbness and cramping that is triggered by activity. And according to the American Heart Association, people with diabetes are especially at high risk for PAD. 

Diabetes induced PAD creates a Catch-22. Elevating the legs is advised for diabetics who have painful or swollen feet. However, elevating the legs can exacerbate leg pain for PADS patients. I represent a claimant with diabetes induced PAD whose Social Security Disability (“SSD”) case was approved today in large part because of the Catch-22. 

While my claimant had an extensive work history, the administrative law judge (“ALJ”) wanted to know primarily why the claimant could not work. I explained that the claimant’s legs and feet were always painful. Her endocrinologist wanted the claimant to elevate her feet when sitting, which the vocational expert said precluded work. The claimant’s cardiologist wanted the claimant to rest because of the PAD, but noted that elevating her legs could cause pain, and in fact, the claimant’s leg pain was worse when lying down at night, resulting in very poor sleep. The ALJ noted the sleep deprivation provided additional grounds that supported the claimant being off task and unable to work. 

 The claimant was referred to me by her husband, who was a previous client of mine, and whose claim was also approved. As he was happy with the outcome of his claim, it was an obvious decision to refer his wife to me, and he knew that my expertise as a Social Security Disability attorney would produce the same outcome for his wife. My Long Island office in Nassau County was also convenient for him and his wife, although because of their disabilities, we were able to accommodate their not having to visit the office in person.

LTD Doctor Scam

I have been a disability attorney on Long Island for two decades, and in that time, there has been no improvement in the way Long Term Disability (LTD) Insurance companies process their claims. Their bottom line is profit, and denying hundreds of thousands of claims that qualify for approval. One of the major tactics disability insurers use is hiring doctors, who failed to succeed in their medical practices. Disability insurers essentially pay these failed doctors to fabricate excuses to deny insureds their LTD benefits, without even performing an examination. Only an attorney who specializes in Disability Law can help you fight these insurance companies, and win.

COLA

Social Security recently announced a 1.6% cost of living adjustment for recipients of SSD and SSI benefits. The adjustment goes into affect in January, but in December you can see how much the dollar increase will be by logging onto your account at ssa.gov.

If you are not receiving benefits but are thinking about applying, you should consider hiring an attorney who specializes in disability. Please do not hesitate to contact my office staff for a free phone consultation. We have offices in Nassau and Suffolk Counties on Long Island.

Exhaustive Hospital Records

When a medical expert (“ME”) testifies at a Social Security hearing, the testimony is usually adverse to finding the claimant disabled. Apparently, one way to increase the likelihood that an ME will testify favorably is to provide a copy of all the hospitalization records. Within the last month, I had two different MEs say the evidence supported finding the claimants disabled based upon the voluminous hospitalization records. 

The cases were completely different. One involved Social Security Disability (“SSD”) benefits for an adult with various musculoskeletal problems, while the other concerned Child’s Insurance Benefits (“CIB”) for a claimant with interstitial cystitis. There were thousands of pages of hospital records, and just today, about another thousand were received in the CIB case after the fully favorable decision was received. The ME in the adult case admitted that he did not read all the records. 

There are listings that apply where a claimant has been hospitalized a certain number of times during a fixed period of time, but neither of the MEs testified as much. I suspect that the MEs equate hospitalizations with the severity of a medical impairment. Obtaining hospital records are usually more difficult to obtain in a timely manner compared to treating doctors’ records. However, even if most of the documentation may not contain much information pertinent to the claimant’s disability application, the need for the hospitalization seems to impress an ME much more than progress notes.  

Both of these cases happened to be on Long Island, but in general, my office staff is very familiar with requesting medical records from the hospitals in the Metropolitan area including Nassau and Suffolk Counties, Queens, Brooklyn and Manhattan.  

If you find yourself in the position of needing to apply for SSD benefits, please call my office for a free phone consultation.  My staff and I will be able to assist you with any questions you might have.  Having a SSD attorney with years of experience and expertise handling your claim will make the process of applying for SSD much less stressful and overwhelming.

Expert Interrogatories

When an administrative law judge (“ALJ”) wants to deny a Social Security Disability (“SSD”) application after a hearing, but the evidence supports disability, the ALJ may send interrogatories to a medical expert (“ME”). If the interrogatories are adverse to the claimant, the ALJ must follow proffer procedures, and the claimant has the right to cross examine the ME. If the ALJ denies an application based on the interrogatories without proffering them, then the SSD claim will be remanded for further proceedings. 

Most of the time, ME interrogatory responses contradict the supporting opinions of the treating physicians. In those unusual situations where the opposite is true, and the ALJ intends to issue a fully favorable decision, the interrogatories do not need to be proffered. What happens if the ALJ tries to get a ME to retract an opinion that supports finding you disabled? 

I have a case where ALJ Donaghy received interrogatory responses from ME Rita Clark last March that corroborated the disability findings and opinions of the claimant’s psychiatrist and psychologist, and concluded that the claimant met a listing. The ALJ never proffered those responses, and refused to issue a fully favorable decision. Instead, last August, the ALJ resent the verbatim interrogatories, which even included the identical typos. 

The only ostensible reasons to resend the identical interrogatories was the ALJ’s hope that Dr. Clark would change her responses for some reason. However, that did not happen. In fact, Dr. Clark reinforced her prior interrogatories responses as additional evidence in the eFolder that supported her opinion. 

The three mental health providers who had been treating the claimant since 2009 each concluded that the claimant became disabled before 2010. Despite the fact that the unanimous consensus was that the claimant has been disabled since before 2010, the ALJ decided to ignore all of their opinions, and to ask ME Clark when the claimant became disabled. 

The fourth interrogatory asked: 

if you have sufficient information to form an opinion within a reasonable degree of medical or psychological probability as to past limitations, on what date were the limitations you found first present? 

The question you posed was not the least bit ambiguous or confusing. In fact, to make sure that there was absolutely no misunderstanding the interrogatory, the ALJ’s letter to ME Clark stated: "Please note that the relevant period for this opinion is 12/14/04 - 12/31/10." To make matters even clearer for Dr. Clark, if that were even possible, the ALJ italicized and bolded her statement, so that Dr. Clark could not conceivably misunderstand the request. And ME Clark did not. 

Dr. Clark agreed with the conclusions of the three treating sources. In no uncertain terms, in response to the fourth interrogatory, Dr. Clark stated that the claimant has been disabled since April 6, 2009. However, just as the ALJ was unwilling to accept the opinions of the three treating sources that the claimant became disabled during the relevant period, she was unwilling to accept that Dr. Clark concurred with them, even though the fourth interrogatory and answer were perfectly clear. 

I sent the ALJ a letter stating that the “new” interrogatories asked exactly what the fourth interrogatory previously asked, and that the ALJ neglected to explain for the record why she believed it was necessary to ask Dr. Clark the same thing again, other than to get her to change her answer to create an excuse to reject the opinions of the three treating sources. Nonetheless, the ALJ still refused to decide the claimant’s application. Only after a letter recounting the facts was sent to the Division of Quality Service did the ALJ finally approve the claimant’s SSD benefits.

We let the claimant know today that he was approved.  He had initially filed his application on his own, and decided to retain us after his claim was initially denied.  He believed his application would have been denied again if not for our help.  Although the claimant resides in Rego Park, Queens, a friend of his who was a former client of mine, referred him to my office.  While I am a disability attorney with offices in Jericho and Melville on Long Island, I regularly do hearings in Queens.  Many of my clients do not reside in Nassau or Suffolk County.  Because of their disabilities, many clients, even those who live on Long Island, have difficulty coming to my offices.  Therefore, my staff and I make the process easy by collecting information by phone, email and fax to minimize their need to travel to my office.

Surveillance Report

I represent a 53 year old former auto body mechanic from Rego Park, Queens, with back and emotional impairments whose Social Security Disability (“SSD”) application was approved today without a hearing. What made this case interesting was that the file, more specifically, the medical evidence “F” section of the eFolder, included a surveillance report from the Cooperative Disability Investigations (“CDI”) Unit of the Social Security Administration (“SSA”). 

According to the SSA Office of the Inspector General, the CDI Units investigate disability claims under SSA’s Title II and Title XVI programs that State disability examiners believe are suspicious. The CDI program’s primary mission is to "obtain evidence that can resolve questions of fraud before benefits are ever paid.” 

The eFolder contained no explanation why the State disability examiners would believe the claimant’s application was suspicious. Nor did the eFolder provide any basis for suspecting the claimant was engaging in fraudulent activity. Consequently, pursuant to a Social Security regulation and HALLEX provision, I asked the administrative law judge (“ALJ”) to issue a subpoena to command the appearance of the author of the surveillance report, the production of the video recording taken during the investigation, and all documentation that purportedly justified the investigation. 

The ALJ approved the claimant’s SSD application the day before the hearing. It is unknown if requesting the subpoena played a role in the ALJ’s decision. If you would like to speak with a disability attorney about a CDI Unit report, feel free to call our office. If you live in Long Island, and have questions about a CDI report or disability matter, you can also meet at our offices.

SSD Approved in 2 Months

I represent a 52 year old former Cable Television maintenance worker with neck and back problems whose Social Security Disability (“SSD”) application was approved today after two months. Since SSD benefit approval rates have been decreasing, while decision-waiting times have been increasing, the question arises: what made this SSD claim different? 

The ostensible answer is “objective” evidence. Recent prior posts have discussed how Social Security has placed greater emphasis in the last couple of years on “objective evidence.” To the SSD adjudicators, objective evidence primarily means diagnostic tests. 

We submitted an unusually large number of MRI and EMG tests for the claimant, in addition to treatment records and disability assessments from treating physicians. This indicates that even thought the Social Security Administration has eliminated the treating physician rule, when the opinion of a claimant’s physician is accompanied by significant diagnostic testing, the opinion is likely to be accepted. 

This case involved a disability claimant from Long Island, and we have been able to obtain SSD benefits for many other disability claimants quickly compared to national averages.  For the convenience of our Long Island clients, and potential clients, we have offices in both Nassau and Suffolk county.

Unum Pays

I represent a plaintiff who sued Unum after it terminated her long term disability (“LTD”) benefits in the absence of any improvement in her medical condition. Unum rejected all of the opinions of my client’s doctors in favor of its in house doctors. 

Unum reinstated my clients LTD benefits right before trial, and then argued that the plaintiff was not entitled to attorney fees. Yesterday, not only did the court award attorney fees that were four times the amount of the wrongfully withheld LTD benefits, but the court also awarded paralegal fees, costs that included legal research charges, and $7,120.58 in prejudgment interest. 

Hopefully, this case will make Unum think twice about employing the same tactics in other cases.  If you are thinking about applying for LTD benefits, or appealing a denial, it would be to your advantage to contact a disability attorney who specializes in LTD cases, and is familiar with the tactics the insurance companies use to deny claims.  My offices, located on Long Island in Nassau and Suffolk counties, can be contacted for a free phone consultation.

Bipolar Disorder

According to Stanford Medicine, bipolar disorder is characterized by severe and disabling highs and lows that affects 2.2 million Americans. 

I represent a 55 year old former computer programmer from New Jersey whose Social Security Disability (“SSD”) application was approved yesterday without a hearing.  Even though I am a disability attorney located on Long Island, and my client lives in New Jersey, there were no logistical problems representing him.  The NJ State agency, which makes the initial decision on SSD application, requested the records from each treating source. We provided extensive detailed treatment records and functional assessments from the claimant’s psychiatrist, neurologist, and internist. 

While the SSD application was approved, the State agency is holding up benefits until a representative payee is authorized for the claimant. It is always advisable to have a representative payee in mind when seeking SSD benefits when the claim is based on bipolar disorder.

“Reserved” to the Commissioner

Time and time again, administrative law judges (“ALJs”) invoke the mantra that determining the issue of disability is an issue that is reserved to the Commissioner when deciding Social Security Disability (“SSD”) claims. While that statement is correct, ALJs invariably apply it incorrectly. 

It is true that a treating physician's legal assertion that a claimant is disabled is not entitled to any special significance. However, the case law is clear that the same cannot be said about a treating physician's medical assessment of the claimant’s limitations. The case law holds that a physician’s opinions regarding a claimant’s capacity to sit, lift, and stand for example, are in no way legal conclusions reserved to the Commissioner because they are not an opinion on the issue of legal disability, but on the nature and severity of the claimant’s impairments. 

The problem is that ALJs invoke their “reserved” mantra as a basis to reject the limitations of a physician. That is a misapplication of the law. I received a decision today where the ALJ did just that. However, as the ALJ still issued a fully favorable decision, it will not need to be appealed.

SSD Approved in 4 Months

Currently, it takes about 27 months for the typical Social Security Disability (“SSD”) application to be approved. The average waiting time for a hearing is 18 months. So what leads to an SSD claim getting approved in only four months? 

I represent a 59 year old nursing assistant with neck, back and shoulder problems, whose SSD application was approved today without a hearing or need for consultative examination. The claimant’s impairments were severe, but similar to that of other claimants, whose SSD applications were initially denied. What was different about this claim? The likely answer is the way we described the claimant’s occupation. 

The claimant advised us that she was a nurse. When obtaining additional information to prepare the application, it became clear that the claimant’s occupation was actually that of an assistant nurse. While the distinction may make little difference to many people, and the positions are considered equally demanding from a physical perspective, a nursing assistant is considered to have a lower skill level. 

Vocational experts (“VEs”) have testified that nursing assistants do not have transferable skills to sedentary work. Therefore, under the Social Security “grid” rules, the claimant would be found disabled even if capable of sedentary work. On the other hand, some VEs have testified that nurses have transferable skills to sedentary work. 

Had her application simply listed the generic title of nurse for the claimant, then the claimant would have been denied. This claimant knew it was important to hire a SS attorney rather than applying for disability on her own.  This is just of an example of why it is important to do so, as she is very happy with the results.

Videotaping IMA

When applying for Social Security Disability (“SSD”) in New York, Industrial Medicine Associates (“IMA”) has been performing the consultative examinations (“CEs”) for the State agency for many years now. One of the reasons to videotape IMA CEs is to preserve first hand evidence.  As an SSD attorney, I advise all of my clients to videotape their CEs for this very reason.

I represent a 23 year old former clerical assistant with rheumatoid arthritis and a knee injury. An administrative law judge (“ALJ”) approved her SSD application today, which would have been denied if the IMA CE had not been videotaped. 

The State agency initially denied the claim by disregarding everything the treating specialist concluded, and by having its doctor, Verdella Cincore, claim that the IMA CE report showed the claimant was not disabled. 

According to the New York State Department of Health, Cincore is an ob/gyn, who lacks any board certification. The American Board of Medical Specialties also confirmed that there is no physician named Cincore in the United States who is board certified in any field of medicine. Dozens of websites, including Good Samaritan Hospital, Healthgrades, Doximity, Zoddoc, NPI, HIPAASpace, Medcarelist, all state that Cincore holds herself out as an ob/gyn. According to medicinenet.com, “OB is short for obstetrics or for an obstetrician, a physician who delivers babies. GYN is short for gynecology or for a gynecologist, a physician who specializes in treating diseases of the female reproductive organ.” It should be obvious that an ob/gyn is not the appropriate specialist to evaluate the claimant’s impairments, which have absolutely nothing to do with delivering babies or the female reproductive organ. 

The IMA doctor diagnosed the claimant with complex regional pain syndrome, rheumatoid arthritis, and hypothyroidism, which he wrote resulted in “Moderate to marked restrictions with walking, climbing, kneeling, squatting, bending, and prolonged standing.” However, the videotape of the CE revealed the IMA doctor unambiguously stating that the claimant should get disability benefits, and that it would be unreasonable if she did not get SSD benefits. In the absence of that videotape, the ALJ would have stated that the IMA doctor concluded the claimant could perform sedentary work, and would have denied the SSD application.

Frontal Lobe Syndrome

The frontal lobe of the brain plays a key role in higher mental functions such as motivation, planning, social behavior, and speech production. According to Wikipedia, frontal lobe disorder is an impairment of the frontal lobe that occurs due to disease or head trauma. 

I represent a 46 year old former librarian with frontal lobe syndrome, which developed from brain abscesses from botched surgery, in connection with her NYSLRS disability retirement application. The claimant suffers from headaches, fatigue, depression and a host of other behavioral changes. The cognitive deficits were confirmed by an independent neurological examination that was performed in connection with a medical malpractice action, as well as the NYSLRS independent psychiatric examination. 

It took NYSLRS over 2.5 years to determine that the claimant is permanently incapacitated from performing the duties of her job, which is a typical processing time. Once again, I believe the key was supplying NYSLRS with a vocational evaluation that provided a nexus between the claimant’s functional limitations and occupational duties.

Fahr's Syndrome

Fahr's Syndrome is a rare, genetically inherited neurological disorder that is characterized by abnormal deposits of calcium in areas of the brain that control movement, including the basal ganglia and the cerebral cortex. I represent a 40 year old former IRS representative with Fahr’s Syndrome whose Social Security Disability (“SSD”) application was approved today after the ALJ found that listing 11.06 was met. 

Because Fahr's Syndrome is rare, I submitted medical treatise information from the Internet describing the condition, including its symptoms. During the hearing, the medical expert (“ME”) stated that he found the information very helpful, and testified that the claimant’s condition was like Parkinsonian syndrome, and its severity met listing 11.06. The ALJ agreed and issued a fully favorable decision today. 

Claimants with rare medical conditions are frequently denied SSD benefits because their impairments are misunderstood. A SSD attorney should always submit reliably sourced medical information regarding unusual medical impairments, especially one that describes the common symptoms.

Initial SSD Appproval

Approval rates for Social Security Disability (“SSD”) applications continue to decline, and will continue to do so as the Social Security Administration continues to enact regulations that increase the evidentiary burden for claimants. One strategy may be to bury the State agency with paper. 

I represent a 52 year old former OB/GYN with neck and mental impairments, whose SSD application was approved today. We had submitted objective diagnostic test results and disability opinion evaluations, and the State agency responded by insisting that the claimant attend a consultative examination. However, after submitting over 800 pages of medical records, regardless of their relevance to the claimant’s impairments, the SSD application was approved. 

I have had judges and State agency analysts complain about the “paucity” of medical records in a file, even when they are highly relevant. It is as if there is an unwritten rule that a quantity minimum exists, but such a rule that promotes form over substance makes no sense. For example, if a diagnostic test reveals metastatic cancer, there is no need for additional medical evidence. 

There are many unwritten rules in the SSD process. Another example is that while the law explicitly precludes an ALJ from relying on a “sit and squirm test,” ALJ’s frequently hold hearings simply to see what a claimant looks like. In response to cases where I had submitted very strong evidence, I have even had ALJ say that they just wanted to see the claimant. Bottom line is that unwritten rules exist, and that includes a perception that a claim must be supported with significant amount of documentation, regardless of its relevance. This is another example of why it is so important to retain a Social Security attorney when applying for SSD benefits.

Inconsistent, But Favorable Decision

I represent a 56 year old claimant with intellectual disabilities, who threw out garbage and shoveled snow for New York State. The claimant stopped working because he was unable to remember even simple, recurrent things. His former co-worker had always helped him by telling what to do because he forgot things, but that co-worker passed away. 

The State determined that the claimant was unable to perform his work duties, and awarded him a disability pension. The claimant then went for a two day cognitive evaluation at Hofstra University to evaluate his ability to work. In a highly detailed 25 page, single spaced report, the Hofstra psychologist conducted objective testing that revealed the claimant had a Full Scale IQ of 58. 

A second psychologist from Hofstra confirmed that the claimant met all the criteria of the listing for intellectual disability. That report showed that the claimant cannot subtract, multiply, or divide, and can only add up to ten using his fingers. We also obtained an opinion from the psychologist that requested opinions regarding mental limitations using vocationally familiar terms, which included being off task. The psychologist determined that the claimant would be off task at least 20% of the time. The Social Security consultative examiner’s report confirmed that the claimant cannot perform simple calculations, or count backwards. Based on a detailed neurological evaluation, another one of the claimant’s doctors, dual board certified in psychiatry and neurology and pain medicine, also concluded that the claimant was unable to work due to sleep apnea. 

ALJ Pellegrino rejected the mental limitations detailed in the Hofstra report, and therefore, the ALJ said that the claimant would not be disabled under the medical-vocational “Grid” rules. However, the ALJ said that because the second Hofstra psychologist said the claimant would be off task 20% of the time, he was disabled, and entitled to Social Security Disability benefits. The odd thing is that the ALJ rejected the cognitive limitations in the Hofstra report, but accepted the off task limitation as a result of the those limitations.

How Slow Is It?

No, not a comedian’s straight line, but rather a query regarding the deliberateness with which the Social Security Administration (“SSA”) processes claims.

Over a decade ago, on April 29, 2008, I asked administrative law judge (“ALJ”) Newton Greenberg, now deceased, to amend his fully favorable decision to correct the Social Security Disability (“SSD”) application filing date. The decision said the filing date was April 27, 2007. During the hearing, I pointed out that I had the certified mail receipt showing that I filed the claimant’s SSD application on February 19, 2007. The decision found the claimant became disabled on June 27, 2005. During the hearing, I also pointed out that, consistent with my certified mail receipt, Exhibit 2E in the claim file confirmed that February 19, 2007 was the date when I actually filed the SSD application.

At the end of the hearing, I gave the ALJ an application claim form that was mailed by a person from the SSA district office, with that person’s initials on it, and was dated July 27, 2006. Mailing that claim form showed that the SSA was advised that the claimant wanted to file for SSD benefits, which is grounds for a protective filing date. When the hearing ended, the ALJ said that he would investigate the mailing from the district office.

When I received the ALJ’s decision, there was no discussion at all about the incorrect onset date. It merely stated that the application was filed on April 27, 2007. Consequently, I immediately submitted a letter asking the ALJ to issue an amended decision to reflect the actual filing date. At a minimum, the hearing decision needed to be amended to reflect an application date of February 19, 2007.

However, I argued that the application I handed the ALJ provided substantial evidence for a protective filing date of July 27, 2006, which would provide another seven months of benefits beyond the February 19, 2007 date.

I received an answer to my request for an amended decision today – 11 years and 3 months later. A new decision that accepted August 2, 2006 as the protective filing date. No explanation why the July 27, 2006 date was rejected, but obtaining an additional seven months of benefits.

Medical Persuasiveness

Social Security Disability (“SSD”) applications filed after March 2017 are subject to the new regulations that exclude the treating physician rule. Rather than determining the amount of weight to accord medical opinions, the Social Security Administration (“SSA”) now determines which medical opinions are more persuasive. 

The regulations explain how persuasiveness should be measured, just as they had explained how weight was to be ascertained. And just as the courts repeatedly had to rule whether the proper weight was accorded to medical opinions, they will surely be asked to rule on whether the SSA properly determined the persuasiveness of medical opinions. 

I represent a 49 year old former carpenter with back problems, whose SSD application was approved after a hearing. The decision of the administrative law judge (“ALJ”) sheds some light on how persuasiveness will be determined, at least by this particular ALJ. 

The ALJ found the opinions of the treating orthopedist and the pain management doctor persuasive because they had treated the claimant frequently since 2011. Conversely, the ALJ found the opinion of the non-examining doctor less persuasive because it was inconsistent with the level of treatment the claimant received, and because he was not privy to all of the medical records.

Meeting a Social Security Listing

According to the National Kidney Foundation, dialysis is needed when your kidneys are only functioning at 10-15% of capacity. Dialysis removes the waste, excess fluid, and toxins from the blood, which the kidneys can no longer do. Side effects from dialysis include: nausea and vomiting, muscle cramps, itching, insomnia, restless leg syndrome, anemia and fatigue, and dizziness. 

One way to establish entitlement to Social Security Disability (“SSD”) benefits when you are on dialysis is by showing you meet the “listing” criteria for chronic kidney disease. I represent a former police detective who had contacted me when he was looking for a Social Security Disability attorney. His SSD application was approved less than a month after we filed it. The application emphasized that besides meeting the listing, the claimant’s vocational factors also favored a finding of disability. 

Especially now that the SSA requires reconsideration in New York, the trend over recent years has been for an increased amount of time to obtain a decision. Tailoring the application to the claimant’s unique medical and vocational attributes avoided that protracted process.

Help for SS?

Maybe, just maybe, there is some hope for people applying for Social Security Disability benefits. We have long maintained that the system is fraught with fraud, an example of which is the doctors that they hire to review claims. U.S. Rep John Larson from Connecticut, who is the chair the Social Security Subcommittee is trying to launch an investigation into these doctors. The doctors are paid by the amount of claims they review, so one can only imagine their incentive to speed through the claim files to make as much money as possible. We can only hope that something good comes out of this, and that this problem is rectified giving applicants a greater chance of being approved at the initial application.

NYS OTDA & IMA

On March 26, 2019, I received a letter from the New York State Office of Temporary and Disability Assistance (the “State agency”) that said “it is necessary for [my client] to be evaluated by one or more of our doctors.” Previously, the State agency had sent four other letters stating that it was necessary for the claimant to be examined by IMA Disability Services (“IMA”). 

My client is a 61 year old former nursing assistant with various musculoskeletal problems. Her application for Social Security Disability (“SSD”) benefits was approved today without a hearing. While the claimant went to IMA, the exam was not completed because she insisted on video recording it. 

New York State has one of the highest, if not the highest, rate of SSD claimants being sent for exams by State agency doctors. The excessive boondoggle should be investigated because there are thousands of SSD claimants being sent for exams that are NOT necessary.

ALJ “Gets It”

Administrative Law Judge (“ALJ”) Jose Perez-Gonzalez issued a decision that approved my client’s social security disability (“SSD”) benefits by doing what surprisingly few other ALJ’s do – he rested his decision upon common sense. 

I represented a 57 year old former teacher with mental impairments at an SSD hearing, where a psychologist testified as a so-called medical expert (“ME”). The ME stated that the claimant was not disabled, despite the fact that the long time treating psychiatrist stated that the claimant’s condition was so severe, that she met a listing. The ME claimed that the psychiatrist’s opinion was not consistent with his medical notes, which the ME admitted he could not read. 

The ALJ rejected the ME’s opinion based upon my cross examination of the ME. I got the ME to admit that treatment providers do not document all symptoms that their patients might have, and that their notes are used to try to jar their memory, and not to serve as documentary evidence for future legal proceedings. The ALJ agreed, and therefore, rejected the ME’s testimony, in favor of the treating psychiatrist’s opinion. 

ALJ Perez-Gonzalez’s conclusion, that treatment providers create notes to jar their memory at future medical appointments, and not to serve as documentary evidence, goes beyond common sense. Nonetheless, the majority of the time when an ALJ wants to reject the opinion of a treating doctor, the excuse for doing so is that the opinion is not supported by the treatment notes. Every cross examination of an ME should focus on rebutting the often inevitable assertion that treatment notes fail to support the treating doctor’s opinion.

SSD Approved in 4 Months

Initial approval of Social Security Disability (“SSD”) benefits is becoming increasingly rare with each passing year. Initial approvals are usually reserved for claimants who are over 55 years of age, meet a listing, or qualify as a compassionate allowance. I represent a claimant who fit none of those criteria.

I represent a 43 year old former delivery truck driver with severe back problems, whose SSD application was approved in only four months. This case stood out though for a couple of reasons. 

First, we submitted a very favorable workers compensation (“WC”) IME report. While the SSA always states that it is not bound by anyone else’s decision, the SSA finds WC IME reports more credible than treating specialists’ opinions. 

Second, we submitted a great number of electrodiagnostic test data, surgical reports, along with treatment records from numerous examining sources. While there is no quantitative requirement, the SSA tends to find it easier to justify approving a voluminous file.

Louis Fuchs

A medical Expert (“ME”) at a Social Security Disability (“SSD”) hearing is supposed to be impartial.  Louis Fuchs is the exact opposite.  Regardless of what the medical evidence reveals, Fuchs manages to conclude that the claimant is capable of working.

I represent a claimant whose SSD claim was denied based upon Fuchs’ testimony.  When the case was appealed to federal court, the attorney representing the SSA immediately asked to have the case remanded.  Fuchs’ testimony was so patently unsupportable that the SSA did not want to defend it.

I represented the claimant at a hearing last month.  Administrative Law Judge Kilgannon determined that Fuchs’ opinion was entitled to little weight based upon the opinion of the treating specialist and cross examination testimony from the new ME at the hearing.

If Fuchs is assigned your case, expect him to testify that you can work.  Your detailed cross examination should investigate the bases for his opinion, which should prove unsupportable.

Social Media and Disability

The Trump Administration wants to use social media as a way to prevent disabled people from collecting disability, that is if they seem to be happy, disabled people.

LA Times on Trump and Social Security Disability

President Trump's proposed budget for 2020 includes drastic cuts to Social Security, Medicare and Medicaid. It also includes huge cuts to food stamps, housing and family assistance.

SSA & Facebook

If you are receiving Social Security Disability benefits, or applying for them, you should know that our government is trying to use Facebook, to obtain confidential information about you.

SSD and Working

Almost daily, potential, past and present clients, ask me if they are allowed to get a job while collecting Social Security Disability ("SSD") benefits. This article explains the different choices you have regarding working while receiving SSD benefits.

U.S.D.J. Azrack Reverses ALJ

U.S. District Court Judge Joan Azrack reversed the decision of Administrative Law Judge (“ALJ”) Andrew Weiss, in which he relied on opinion of disgraceful so-called medical expert named Steven Shilling. Judge Azrack’s decision is being added to the Court Decisions under our website’s Resources tab. 

Judge Azrack found that “the flaws in Dr. Shilling’s opinion clearly warrant remand.” Elaborating, Judge Azrack explained that, “The testimony from Dr. Shilling, the non-examining medical expert who testified at the administrative hearing, mischaracterized certain medical records and appeared to ignore others.” Judge Azrack proceeded to detail how Shilling manipulated and misrepresented the facts concerning the claimant’s stress tests. 

ALJ Weiss tends to overemphasize the objective evidence in his decisions. Therefore, it was not surprising that he predicated his decision on the stress test data. However, it was surprising that ALJ Weiss gave Shilling’s opinion “great weight,” and elevated it over the opinion of the treating cardiologist, who conducted the stress tests, and concluded it precluded the claimant from working.

Objective Testing

Two claims were approved today. The first involved a 58 year old construction excavator with cardiovascular problems, and the other involved a 48 year old tractor trailer driver with neck and back problems. What did they have in common? The answer is a significant amount of objective test reports for their respective conditions. 

Regardless of whether you are considering long term disability, individual disability income, or Social Security Disability, the law states that providing objective evidence is not required to establish entitlement to benefits. Nonetheless, claim adjudicators are almost always more liable to approve disability benefits when the claim is supported with objective test data. 

Treating physicians frequently do not request diagnostic testing due to cost and insurance issues, and the belief that the medical impairments are unlikely to change or improve. Nonetheless, if seeking disability is contemplated, if probably makes sense to push your doctors to prescribe objective testing as often as possible.

U.S.D.J. Amon Reverses ALJ Iwuamadi

Following oral argument, U.S. District Court Judge Carol Bagley Amon reversed the decision of Administrative Law Judge (“ALJ”) Ifeoma Iwuamadi, and ordered the Social Security Administration (“SSA”) to pay the claimant Social Security Disability (“SSD”) benefits. Judge Amon’s decision is being added to the Court Decisions under our website’s Resources tab. 

Judge Amon ruled that ALJ Iwuamadi failed (a) to give sufficient weight to the opinion of the claimant’s psychiatrist; (b) improperly relied on the opinion of a non-examining psychologist to determine the claimant’s limitations; (c) improperly substituted her opinion that the claimant could perform “simple, routine and repetitive tasks and simple work-related decisions with occasional contact from supervisors,” despite an absence of any support whatsoever for that conclusion in the medical evidence. 

Judge held that ALJ Iwuamadi’s decision was so deficient that it could not even be remedied by ordering further proceedings. Consequently, Judge Amon held that because ALJ Iwuamadi’s decision not only applied incorrect legal standards, but also lacked substantial evidence, the case was remanded solely to calculate and pay benefits.

Proposed SS Rule Hurts

As if getting approved for Social Security Disability benefits isn't hard enough, President Trump has proposed a rule that would eliminate people's constitutional due process right to an in-person hearing. We cannot let them happen. Fight for your rights and contact your Congressmen and Senators to oppose the change.

Borderline Age

When seeking Social Security Disability (“SSD”) benefits, the Social Security Administration (“SSA”) applies different rules depending upon the age of the claimant. The SSA Rulings state that, “The chronological ages, 45, 50, 55, and 60 may be critical to a decision.” The SSA’s regulations, HALLEX and POMS provide that the SSA “will not apply the age categories mechanically in a borderline age situation.” A “borderline situation” exists where the claimant is within a few days to a few months of reaching an older age category. 

I represent a nurse with gastroenterologic impairments, whose SSD application was approved today. The claimant was 49 years and 10 months old on the onset date of her disability. In approving the application, the administrative law judge (“ALJ”) concluded that “Applying the age categories non-mechanically, and considering the additional vocational adversities in this case, the claimant was an individual closely approaching advanced age on the established disability onset date.” 

A person who is under 50 falls into the category of a “younger individual.” A person who is 50 to 54 falls into the category of an individual “closely approaching advanced age.” As a 49 year old, the SSA rules for the nurse indicated that she should have been found not disabled, while as a 50 year old, the converse is true. However, the ALJ decided to treat the nurse’s application as a borderline situation, and applied the age categories non-mechanically, to find the nurse disabled as of her onset date. The result is that the claimant will receive two additional months of SSD benefits, which equals several thousand dollars.

The Wait Is Killing Them

Sadly, yet again, one of our clients passed away while waiting for his Social Security Disability ("SSD") hearing to be scheduled. This case is more egregious than usual because we submitted his claim on a "dire need" basis on December 21, 2017. We provided supporting documentation, including a letter from the claimant's landlord that verified the claimant was five months behind on his rent, and in danger of being evicted. 

The Social Security Administration ("SSA") has certain regulations that it must follow when a case meets the criteria for dire need.  This case met that criteria, and the SSA even flagged it as dire need. 

On April 13, 2018, the State agency denied the claim. We appealed it the same day, and confirmed with the Bronx Office of Hearings Operations ("OHO") that it was still flagged as dire need, and should be expedited. 

On December 21, 2018, the case was assigned to a judge to be scheduled for a hearing. It is not uncommon for a case to sit in this status for months before the hearing is actually scheduled, and then at least another 75 days until the date of the hearing. Being aware of the standard procedures, we called the Bronx OHO to expedite the hearing. The Bronx OHO said it could not be done, even though the status in the electronic file clearly said "ready to schedule." We explained the situation to the representative, who said the case was being expedited, and to call back in a few weeks. Because we were dissatisfied with the treatment of this expedited case, we called Bronx again on January 4, 2019, but received the same response. 

Last Friday, the claimant's elderly mother called to say that he had passed away overnight. We immediately called the hearing office to advise them about the claimant, and to advise them that the claimant's wife would take his place at his hearing. We were matter of factly told what form needed to be filled out, and that we had to produce a copy of the death certificate. No emotion, no caring, nothing. It seems that so may claimants die while waiting for their hearing that it has become a common occurrence. 

We called the Bronx OHO today to advise them that we had submitted the required documentation. The rep asked why we were calling. In other words, the rep's attitude was the guy is dead, so what's the rush. We explained that we wanted to be sure they received the documentation, and that we wanted the hearing to be scheduled promptly so the claimant's wife and children did not wind up homeless. The rep reiterated that if we submitted what he asked for, then there was no reason for us to call, and that they would get back to us when they were ready to schedule. Wrong. The Bronx OHO's failure to perform its duties on a timely basis possibly led or contributed to the claimant's death, and his family's imminent homelessness. 

Experience has proven that even when we have submitted something, especially something important, that if we do not call the SSA to highlight the submission, they mysteriously claim that they do not have it. The OHO rep was rude, uncaring, and unhelpful, which is not unusual, and will not deter us. This is how we fight for each and every one of our clients, and we will continue to do so.

IMA

In New York, the State agency uses IMA Disability Services (“IMA”) to perform consultative examinations ("CEs”).  I represent a 57 year old probation officer with a bad back and ocular albinism, who received four letters from the State agency stating that it was “necessary for you to be examined by” IMA. The letter emphasized that the claimant “must keep this appointment at the time and date indicated above.” 

Despite the mandatory language in the CE letters, the CE was not imperative. Sometimes the State agency representative is amenable to cancelling a CE if they receive certain medical information. That was the case with this claimant, whose Social Security Disability application was approved today, after we negotiated providing the State agency with medical information in response to a particularized request.

Erythromelalgia

According to The Erythromelalgia Association , "Erythromelalgia (EM) is a rare neurovascular condition that most commonly affects the feet, but may also occur in the hands, face, or other parts of the body.” Erythromelalgia is a condition characterized by episodes of pain, redness, and swelling in various parts of the body, particularly the hands and feet. Its hallmark is the triggering or worsening of symptoms with exposure to heat (heat intolerance) or exercise and relief with cooling. 

The Merck Manual notes that erythromelalgia can progressively become incapacitating. The Merck Manual states that treatment includes avoiding exposure to heat, resting, elevating the legs or arms, and applying cold packs to the legs or arms or immersing them in cold water. The American Chronic Pain Association (“ACPA”), notes that erythromelalgia progresses as a person gets older, and the pain “can be so debilitating that it impedes everyday activities,” and can “prevent an affected person from regularly going to school or work.” 

I represent a 39 year old claimant with erythromelalgia, who worked in data entry. The erythromelalgia has been spreading. The claimant’s left upper extremity is where the erythromelalgia started, and it now affects both hands. The claimant’s doctors concurred that the he would be off task over 20% of the time because of his impairments. The ALJ agreed, and found the claimant was disabled. 

Limbic Encephalitis

Limbic Encephalitis (“LE”) is a type of encephalitis caused by an autoimmune disorder. The primary symptom of LE is short term memory (“STM”) loss. Other common symptoms are drowsiness, fatigue, confusion, seizures, headaches, hallucinations, anxiety and depression. 

I represent a 37 year old office manager with LE, whose Social Security Disability (“SSD”) benefits were approved today. The claimant's medical records documented all of the common LE symptoms. Although the LE was controlled, the claimant’s residual brain damage caused STM loss and confusion, which resulted in her forgetting where she was, and what she was doing. 

Based upon the objective medical condition, the LE, the Administrative Law Judge (“ALJ”) accepted the opinion of the treating neurologist that the claimant would be off task more than 15% of the time, would be unable to concentrate 90% of the time, and would be unable to maintain a regular schedule. After the vocational expert testified that those limitation precluded work, the ALJ ruled that the claimant was entitled to SSD benefits.

Government Shutdown and SS

The government shutdown is affecting a lot of federal workers, and Americans. Luckily, the Social Security Administration has not been affected. Claims for Social Security Disability will continue to be reviewed and processed. Both Retirement and Disability beneficiaries will continue to receive their checks.

Concussions

A concussion is a traumatic brain injury that affects your brain function. According to the CDC: physical symptoms include headaches, dizziness, and fatigue; cognitive symptoms include poor concentration, focus and memory; and emotional symptoms include irritability, depression and anxiety.

A neurologist usually treats the physical and cognitive symptoms from a concussion, while a mental health provider treats the emotional symptoms. When seeking disability based upon post-concussion syndrome, it is best to support the claim with the medical records from both professionals. 

I represent a 58 year old teacher’s aide whose Social Security Disability (“SSD”) disability claim was approved today based upon a combination of all her symptoms. Great weight was given to the treating neurologist’s opinion regarding the claimant’s physical and cognitive symptoms, and great weight was given to the claimant’s psychologist regarding the claimant’s emotional symptoms. Notably, less weight was given to the opinions of the claimant’s other treating specialists and examining physicians.

Migraines

According to the Mayo Clinic, “Migraine attacks can cause significant pain for hours to days and can be so severe that the pain is disabling.” Nonetheless, proving that migraines are disabling enough to collect Social Security Disability (“SSD”) benefits is difficult. Many administrative law judges (“ALJs”) dislike finding migraines disabling because they are hard to establish objectively. 

I represent a 37 year old woman, who was able to establish the chronicity of her migraine headaches through her treatment with a neurologist that specialized in headaches. Just as importantly, the claimant was able to establish the severity of her headaches by submitting records from two-dozen emergency room visits when her ongoing treatment with her headache specialist and pain management specialist was unavailing. 

The claimant’s doctors stated that the headaches would result in the claimant missing more than 3 days of work a month, and being off task more 10% of the time. A vocational expert said those limitations would preclude full time work. Accordingly, the ALJ found the claimant’s migraines were disabling, and entitled to SSD benefits.

Physician Assistants

According to the American Academy of PAs, PAs are medical professionals who diagnose illness, develop and manage treatment plans, prescribe medications, and often serve as a patient’s principal healthcare provider. For the longest period of time, the Social Security Administration (“SSA”) did not consider a PAs to be acceptable medical sources (“AMS”).

SSA regulations provide that only the opinions of AMS can be given controlling weight, and can establish medically determinable impairments. I represent a welfare examiner whose SSD benefits were approved today, but whose PA’s opinion was given no weight because he was not an AMS. 

The claimant filed her SSD application on October 23, 2016. However, for claims filed after March 27, 2017, PAs are now AMS. There were several reasons why the SSA committed legal error by giving the PA’s opinion no weight. However, those errors were moot since SSD benefits were approved. Nonetheless, for claims filed after March 27, 2017, a PA’s opinion can no longer be disregarded simply because they are not a physician.

SSA Stay Denied

I represent a plaintiff seeking Social Security Disability (“SSD”) benefits in federal court. Because of the partial government shutdown, the Social Security Administration (“SSA”) asked the court to stay oral argument scheduled for next Monday indefinitely. 

I opposed the stay on the grounds that the SSA attorney is unaffected by the shutdown because the SSA remains fully funded. The SSD hearings that have been scheduled for my clients in the next two weeks have not been stayed. Each day since the shutdown began, my office has conducted business with half a dozen of the SSA’s district offices. The SSA’s Appeals Council has also worked on my clients’ cases since the shutdown began. 

I argued that since SSD hearings are proceeding, and every type of administrative business continues, there is no excuse to delay oral argument any further. The court agreed and denied the stay.