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.