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.