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.
Tuesday, August 20, 2019
Monday, August 19, 2019
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.
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.
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.
Tuesday, August 13, 2019
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.
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.
Thursday, August 8, 2019
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.
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.
Tuesday, August 6, 2019
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.
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.
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