Claims for Social Security Disability (“SSD”) benefits have always proceeded slowly, and the pandemic has only compounded matters further. As a result, an SSD claimant can wait close to two years for a hearing. Consequently, medical reports and records can become stale by the time the hearing arrives.
We represent a 50 year old truck driver from Plainview with knee, back and shoulder problems whose SSD application was filed in 2018. His hearing was transferred to another hearing office, which then rescheduled the date of the hearing.
The medical evidence that had been submitted would be a year old by the new hearing date. Although complicated by the pandemic, we were able to obtain and submit updated reports. Shortly afterwards, we were notified that the claimant’s SSD application would be approved on the record, and therefore, there was no need for a hearing.
Friday, June 26, 2020
OTRs
The Social Security Administration (“SSA”) began implementing changes in 2009 with administrative law judge (“ALJ”) training, claims assignment, and monitoring, which were designed to reduce the disability allowance rate. Those changes reduced the ALJ and appellate allowance rates. The SSA has continued to change the rules to make approvals more difficult, most notably, by eliminating the treating physician rule. The on-the-record (“OTR”) allowance rate has correspondingly decreased. An OTR allowance can occur when a review indicates that a case can be allowed without a hearing.
Now may be the time to request an OTR. Because of the coronavirus, hearings are being held by telephone. While a claimant can reject a telephone hearing in favor of an adjournment, many of my clients have chosen to proceed with the telephone hearing, rather than wait when an in person hearing can be scheduled.
The logistics of a telephone hearing are problematical. I am located at my home office, the claimant is located their home, the claimant’s witness is located at their home, the ALJ is located at their home, medical and vocational witnesses are located at their homes, and the hearing assistant is located at the hearing office. The potential for chaos and technical issues in obtaining an adequate recording is substantial. That potentiality might be avoided if an OTR is approved.
I have received more OTRs since the start of COVID19 restrictions than I have the last few years. I represent a 21 year old with Autism, whose OTR was approved last Friday, for a telephone hearing that was scheduled today. The evidence was strong, even the State agency psychologists’ opinions were somewhat supportive, even though they had yet to see the extremely supportive reports and records of the treating mental health providers. Nonetheless, absent current circumstances, the ALJ probably would have gone through the motions of holding the hearing, even though he most likely was already persuaded that the medical evidence established the claimant’s entitlement to benefits.
A sheet metal worker from Bethpage, secretary from Farmingdale, and network engineer from Islip Terrace, were also just approved OTR. Absent current circumstances, the ALJs probably would have held the hearings for those claimants too.
If you are thinking about applying for SSD benefits, it is in your best interest to hire an attorney who specializes in disability law. My office offers free phone consultations. We have offices on Long Island in both Nassau and Suffolk counties.
Now may be the time to request an OTR. Because of the coronavirus, hearings are being held by telephone. While a claimant can reject a telephone hearing in favor of an adjournment, many of my clients have chosen to proceed with the telephone hearing, rather than wait when an in person hearing can be scheduled.
The logistics of a telephone hearing are problematical. I am located at my home office, the claimant is located their home, the claimant’s witness is located at their home, the ALJ is located at their home, medical and vocational witnesses are located at their homes, and the hearing assistant is located at the hearing office. The potential for chaos and technical issues in obtaining an adequate recording is substantial. That potentiality might be avoided if an OTR is approved.
I have received more OTRs since the start of COVID19 restrictions than I have the last few years. I represent a 21 year old with Autism, whose OTR was approved last Friday, for a telephone hearing that was scheduled today. The evidence was strong, even the State agency psychologists’ opinions were somewhat supportive, even though they had yet to see the extremely supportive reports and records of the treating mental health providers. Nonetheless, absent current circumstances, the ALJ probably would have gone through the motions of holding the hearing, even though he most likely was already persuaded that the medical evidence established the claimant’s entitlement to benefits.
A sheet metal worker from Bethpage, secretary from Farmingdale, and network engineer from Islip Terrace, were also just approved OTR. Absent current circumstances, the ALJs probably would have held the hearings for those claimants too.
If you are thinking about applying for SSD benefits, it is in your best interest to hire an attorney who specializes in disability law. My office offers free phone consultations. We have offices on Long Island in both Nassau and Suffolk counties.
Developing The Record
In Social Security Disability (“SSD”) cases, a failure to develop the record is considered to be a lack of a fair hearing. Therefore, to avoid having a decision rejected, an administrative law judge (“ALJ”) is required to develop the record. As a result, many ALJ’s go to extremes to ensure that every possible medical record, regardless of relevance, is part of the file.
It takes a long time to get a hearing. Consequently, the medical records may no longer be current when the hearing takes place. There is a sound way to avoid needlessly protracting the hearing process by insisting that any possible medical evidence be obtained.
A medical expert (“ME”) or a treating physician can opine that updated medical records would be cumulative or unnecessary. We represent a 39 year old with cervical radiculopathy who worked as a massage therapist. By the time the hearing arrived, the records from the claimant’s orthopedist were over a year old.
After the ME testified that the claimant met a listing 1.04, the ALJ asked if the claimant’s condition could have improved subsequent to the orthopedist’s latest records in the file. Since the ME testified that the condition would most likely stabilize or get worse, the ALJ determined that the updated records were superfluous.
If you are thinking about applying for SSD, please call my office for a free phone consultation. We would be happy to answer any questions you might have. We have offices conveniently located on Long Island in Nassau and Suffolk counties.
It takes a long time to get a hearing. Consequently, the medical records may no longer be current when the hearing takes place. There is a sound way to avoid needlessly protracting the hearing process by insisting that any possible medical evidence be obtained.
A medical expert (“ME”) or a treating physician can opine that updated medical records would be cumulative or unnecessary. We represent a 39 year old with cervical radiculopathy who worked as a massage therapist. By the time the hearing arrived, the records from the claimant’s orthopedist were over a year old.
After the ME testified that the claimant met a listing 1.04, the ALJ asked if the claimant’s condition could have improved subsequent to the orthopedist’s latest records in the file. Since the ME testified that the condition would most likely stabilize or get worse, the ALJ determined that the updated records were superfluous.
If you are thinking about applying for SSD, please call my office for a free phone consultation. We would be happy to answer any questions you might have. We have offices conveniently located on Long Island in Nassau and Suffolk counties.
WC IME
A fairly regular question is how much weight should Social Security give to the opinion of a workers compensation (“WC”) doctor. Federal courts usually hold that reports from WC doctors are not substantial evidence because their conflict of interest may have dictated their contents.
We represent a 49 year old security guard from Levittown with back and cardiovascular vascular problems whose Social Security Disability (“SSD”) application was approved today despite an adverse report from a WC doctor. While we pointed out how federal courts treat WC medical opinions, the administrative law judge (”ALJ”) rejected the WC report on different grounds. The ALJ found that the opinion of the WC doctor was rendered solely for the purpose of determining disability under WC, which used standards and criteria that are different than Social Security.
It is imperative to address any negative evidence in the file at an SSD hearing, if not sooner. The ALJ might have relied on the WC medical opinion if we had not done so.
This is another example of why it is so important to retain an attorney who specializes in Social Security Disability when applying for SSD benefits. If you are considering applying for SSD, please call my office for a free phone consultation. We have offices conveniently located on Long Island in Nassau and Suffolk counties.
We represent a 49 year old security guard from Levittown with back and cardiovascular vascular problems whose Social Security Disability (“SSD”) application was approved today despite an adverse report from a WC doctor. While we pointed out how federal courts treat WC medical opinions, the administrative law judge (”ALJ”) rejected the WC report on different grounds. The ALJ found that the opinion of the WC doctor was rendered solely for the purpose of determining disability under WC, which used standards and criteria that are different than Social Security.
It is imperative to address any negative evidence in the file at an SSD hearing, if not sooner. The ALJ might have relied on the WC medical opinion if we had not done so.
This is another example of why it is so important to retain an attorney who specializes in Social Security Disability when applying for SSD benefits. If you are considering applying for SSD, please call my office for a free phone consultation. We have offices conveniently located on Long Island in Nassau and Suffolk counties.
Saturday, June 6, 2020
Updating Records
Claims for Social Security Disability (“SSD”) benefits have always proceeded slowly, and the pandemic has only compounded matters further. As a result, an SSD claimant can wait close to two years for a hearing. Consequently, medical reports and records can become stale by the time the hearing arrives.
We represent a 50 year old truck driver from Plainview with knee, back and shoulder problems whose SSD application was filed in 2018. His hearing was transferred to another hearing office, which then rescheduled the date of the hearing.
The medical evidence that had been submitted would be a year old by the new hearing date. Although complicated by pandemic, we were able to obtain and submit updated reports. Shortly afterwards, we were notified that the claimant’s SSD application would be approved on the record, and the therefore, there was no need for a hearing.
If you are planning on applying for disability, or have already applied and are looking for legal representation, please feel free to call our office for a free phone consultation. Our offices are conveniently located on Long Island in Nassau and Suffolk counties.
We represent a 50 year old truck driver from Plainview with knee, back and shoulder problems whose SSD application was filed in 2018. His hearing was transferred to another hearing office, which then rescheduled the date of the hearing.
The medical evidence that had been submitted would be a year old by the new hearing date. Although complicated by pandemic, we were able to obtain and submit updated reports. Shortly afterwards, we were notified that the claimant’s SSD application would be approved on the record, and the therefore, there was no need for a hearing.
If you are planning on applying for disability, or have already applied and are looking for legal representation, please feel free to call our office for a free phone consultation. Our offices are conveniently located on Long Island in Nassau and Suffolk counties.
NYS OTDA
The New York State Office of Temporary & Disability Assistance (“OTDA”) continues to order Social Security Disability (“SSD”) claimants to be examined by IMA Disability Services for consultative examinations (“CE’s”) under questionable circumstances.
The regulations state that OTDA may decide a CE is needed, but only “If we cannot get the information we need from your medical sources.” The OTDA ignores the regulations. On a continuing and regular basis, the OTDA orders claimants to go to IMA for a CE without any attempt to obtain any information from claimants’ medical sources.
We filed an SSD application for a 32 year old salesperson from East Meadow with mental impairments. A few weeks later, the OTDA insisted that the claimant attend an IMA CE, even though we had already provided disability reports and narrative medical summaries and explanations, from the claimant’s psychologist. The OTDA never made any written or oral request for records from the claimant or his doctors, which we also provided.
We objected to the CE. We asked that the OTDA identify what additional information they contended had not been submitted, and that we would ensure that the claimant’s doctors would provide it. As usual, the OTDA ignored our letter, simply sent another notice that ordered the claimant to attend to the CE. In response, we told OTDA that any CE needed to obtain additional information would have to be conducted by telephone because he has agoraphobia. OTDA said they would see what their doctor said about the agoraphobia.
We did not hear back from OTDA about the CE. However, the OTDA did approve the claimant’s SSD application.
This is another example of why it is beneficial to be represented by an attorney who specializes in disability law when you file a claim for benefits. I have helped thousands of clients obtain SSD benefits, many of whom would have been denied. Please feel free to call my office for a free phone consultation. We have offices conveniently located on Long Island in Nassau and Suffolk counties.
The regulations state that OTDA may decide a CE is needed, but only “If we cannot get the information we need from your medical sources.” The OTDA ignores the regulations. On a continuing and regular basis, the OTDA orders claimants to go to IMA for a CE without any attempt to obtain any information from claimants’ medical sources.
We filed an SSD application for a 32 year old salesperson from East Meadow with mental impairments. A few weeks later, the OTDA insisted that the claimant attend an IMA CE, even though we had already provided disability reports and narrative medical summaries and explanations, from the claimant’s psychologist. The OTDA never made any written or oral request for records from the claimant or his doctors, which we also provided.
We objected to the CE. We asked that the OTDA identify what additional information they contended had not been submitted, and that we would ensure that the claimant’s doctors would provide it. As usual, the OTDA ignored our letter, simply sent another notice that ordered the claimant to attend to the CE. In response, we told OTDA that any CE needed to obtain additional information would have to be conducted by telephone because he has agoraphobia. OTDA said they would see what their doctor said about the agoraphobia.
We did not hear back from OTDA about the CE. However, the OTDA did approve the claimant’s SSD application.
This is another example of why it is beneficial to be represented by an attorney who specializes in disability law when you file a claim for benefits. I have helped thousands of clients obtain SSD benefits, many of whom would have been denied. Please feel free to call my office for a free phone consultation. We have offices conveniently located on Long Island in Nassau and Suffolk counties.
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