Another Win in Federal Court

U.S.D.C. Judge Gary Brown took the Social Security Administration (“SSA”) to task for denying our client’s claim for years, and ordered the SSA to pay her benefits.

Judge Brown criticized the SSA for its dilatory practices involving Social Security Disability (“SSD”) claims, which includes delaying litigation by moving for extensions of time to file the administrative record (“AR”).  While Judge Brown rejected my opposition to the SSA’s motion to extend the time to file the AR, in today’s decision he indicated that he may deny similar extensions in the future.

Judge Brown also criticized Administrative Law Judge (“ALJ”) Brian Crawley, whose decision Judge Brown called “indefensible,” involved “crucial errors,” and was “rife with error.”  The SSA agreed that it could not defend ALJ Crawley’s decision.  Nonetheless, the SSA told Judge Brown that the case should be remanded so ALJ Crawley could review the case again.  Judge Brown refused to do so.

To avoid “the seemingly interminable review cycle,” the SSA was ordered to pay the claimant SSD benefits.  Judge Brown asked if it was readily apparent to the SSA that the ALJ’s decision was unsupported, then, “why did reaching this fairly obvious decision require so much time, effort and expense?”

The answer to Judge Brown’s question is a cynical policy that the SSA has seemingly taken in recent years.  The denial rate of the State agencies that make the initial benefit decisions has remained steady, but the ALJ denial rate has increased over the years.  More importantly, the SSA has precipitously reduced the percentage of cases that it approves and remands since 2016.  The SSA must believe that many claimants will not go to court, and if they do, then the court will decide if a remand is needed.  The SSA has foisted its obligation to determine if a remand is needed onto the courts.  The SSA probably hopes that the courts will respond by denying more cases in order to discourage appeals, and even if they do not, it significantly delays the time when the SSA has to pay benefits.  The SSA does not pay interest on past due benefits.

This is our second Federal case in recent months that has been approved solely for calculation of benefits.  Our client would have given up a long time ago, if she had applied on her own.  And this is what the SSA hopes for.  But we do not give up,  so if you need a disability attorney who will fight for you, then please call our office.  We offer a free phone consultation and have offices on Long Island in both Nassau and Suffolk counties.

 

 

 

ANS Disorder

The autonomic nervous system (“ANS”) regulates virtually all of our body functions and systems, including blood pressure, pulse, heart rate, body temperature, breathing, sweating, digestion, swallowing, bowel function, sleep patterns, urination, and sexual response.   An ANS disorder can affect all or part of the ANS, which obviously can cause seriously disabling problems. An ANS disorder can be caused by other medical conditions.

According to the CDC, “myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) is a disabling and complex illness.”  Studies have found that ANS dysfunction symptoms were strongly associated with ME/CFS.

We were retained by a 35 year old former attorney from Great Neck after he was denied Social Security Disability (“SSD”) benefits based upon ME/CFS.  We secured various sources of medical records and reports.  SSD benefits were approved on reconsideration, without having to wait for a hearing, after we demonstrated how the claimant’s comorbid ANS disorder and ME/CFS precluded any type of full time activity.

Our claimant is overwhelmed with gratitude over the speed in which we were able to get him approved, and because he won't have to suffer through a hearing.  Even though he is an attorney, he realized that he needed to retain an attorney who specialized in disability, and that he shouldn't be handling the claim himself.  He found us on AVVO, and based on the reviews, decided to call us for a free phone consultation, and then retained us.  You can call us for a free phone consultation if you plan on applying for disability.  We have offices on Long Island in both Nassau and Suffolk counties.

Pain Management

We represented two claimants with orthopedic  impairments seeking Social Security Disability (“SSD”) benefits at hearings with administrative law judge (“ALJ”) Patrick Kilgannon today.  One was a 49 year old insurance agent from Syosset, and the other was a 33 year old Day Care Assistant from Baldwin.  What they had in common were extensive pain management records and diagnostic tests.

It is difficult to prove pain.  It is common sense that a pain management specialist is uniquely qualified to determine the extent to which pain affects a claimant’s functionality.  A pain management specialist’s opinion regarding the subjective effect of pain is bolstered when there is “objective” evidence of an impairment that can cause pain.

For each claimant, we submitted a significant quantity of pain management treatment notes, electrodiagnostic test reports, and functional restrictions and limitations from the treating pain management specialists.  As a result, the ALJ made clear that both claimants would be entitled to receive SSD benefits.

Our clients could not be happier with the outcomes of their claims.  One of the claimants retained us after she had applied on her own and was denied.  We appealed her claim and took over from there.   It is always a wise decision to retain an attorney who specializes in disability if you find yourself in a position where you need to apply for disability.  Please feel free to call our office for a free phone consultation.  Our offices are located on Long Island in both Nassau and Suffolk counties.

Alzheimer’s Disease

The CDC determined that Alzheimer’s disease is the most common type of dementia.  This insidious condition is a progressive disease beginning with mild memory loss that can result in the inability to carry on a conversation and respond to the environment as it affects thought, memory, and language.  Alzheimer’s can prevent a person from being able to to carry out daily activities.

We represent a 52 year old from Fresh Meadows afflicted with Alzheimer’s who worked at a senior level for a large international advertising conglomerate.  Because of her medical condition, we had to deal with the claimant’s spouse, who was understandably under a great deal of emotional and financial stress.

By marshaling the requisite medical and vocational information, we were able to obtain both Long Term Disability (“LTD”) and Social Security Disability (“SSD”) benefits quickly.  The LTD and SSD application processes are not simple, and we are happy that at least we were able to help with the financial stress.

Disabling Migraine Headaches

You do not need to have experienced a migraine headache to recognize that they can be utterly disabling.  When seeking Social Security Disability (“SSD”) benefits, the problem is establishing how migraines disable you.

We represent a 49 year old psychologist from Syosset whose migraines gradually compelled her to reduce working from a full time basis to a very limited and irregular part time basis.  Retaining a vocational expert (“VE”) is helpful by explaining how functional limitations resulting from migraines impacts the ability to work.  The question becomes, how do you demonstrate that you have functional limitations due to migraines.

Our client was treated for migraines by a neurologist as well as a migraine specialist.  We obtained protracted treatment records for headaches, and testimony from multiple sources about how the claimant needs to lie down and avoid noise, light, and warmth when having migraines.  We also submitted reports that opined, among other things, how the claimant’s migraines would result in her being off task and absent from work.

The administrative law judge accepted the treating doctors’ limitations, found the claimant was unable to sustain any full time activity, and ruled that she was entitled to SSD benefits.

State Agency Notices

Some things never seem to change.  In 2018, I wrote about a persistent problem that claimants face when applying for Social Security Disability benefits.  In 2019, I wrote how the State agency sends claimants a letter stating that “it is necessary” to be examined by a doctor from IMA Disability Services (“IMA”).  However, these consultative examinations are rarely “necessary.”

According to Merriam Webster, “necessary” means required.  However, under the regulations, the State agency rarely meets the criteria for a claimant to submit to a consultative examination by IMA.  For years I have been asking for an investigation into the IMA boondoggle, but that request has fallen on deaf ears.

We represent a 56 year old from Great Neck with orthopedic problems and prostate cancer, who had worked as a security supervisor.  He received six (6) letters from the State agency insisting that

“IT WILL BE NECESSARY FOR YOU TO BE EXAMINED BY THE SPECIALIST NAMED BELOW,” which was IMA.  The claimant was approved today without having needed to attend a hearing, and without having been examined by IMA.  These misleading State Agency letters should stop.

If our client had not retained us, he would presumably have attended those examinations, and wouldn’t have known that he wasn’t required to go to them, and the outcome could have been very different.   You should plan on retaining a disability attorney if you are thinking about applying for SSD.  Your attorney has your best interests at heart; Social Security does not.  Please call one of our Long Offices for a free phone consultation.  We have offices located in both Nassau and Suffolk counties.

Rheumatoid Arthritis

We represent a 51 year old warehouse manager from Plainview with Rheumatoid Arthritis. Like most listings the Social Security Administration (“SSA”) has made the listing for Rheumatoid Arthritis more difficult to meet. Nonetheless, we were still able to get the claimant’s application for Social Security Disability (“SSD”) benefits approved without having to wait for a hearing.

The SSA has determined that most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. As the Mayo Clinic has noted, “rheumatoid arthritis tends to affect your smaller joints first — particularly the joints that attach your fingers to your hands.”

We submitted the relevant diagnostic and clinical medical evidence showing that rheumatoid arthritis had attacked the claimant’s hands. We also submitted medical evaluations from the claimant’s treating specialists explaining how the rheumatoid arthritis limited the claimant’s ability to use his hands. Apparently, because the claimant lacked bilateral manual dexterity, he was found disabled under the “Grid” rules.

Don't Give Up

We represent a 32 year old with bipolar disorder from Deer Park who worked in real estate.  We filed the claimant’s Social Security Disability (“SSD”) application in 2016.  We succeeded in getting the case remanded from federal court, and after it was denied a second time by the administrative law judge, we succeeded in getting the claim reversed by the Appeals Council.  Finally, after more than a five year war, we won the final battle, and obtained a fully favorable decision for the claimant.

We represent disabled claimants, including those seeking SSD benefits, at all levels of the application and appeal process.  If you are contemplating seeking or appealing a claim for disability benefits, please call us for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

EAJA Fees Approved

When we succeed in getting an unfavorable Social Security Disability ("SSD") decision reversed in Federal Court, we apply for attorney fees under the Equal Access to Justice Act ("EAJA"), which are for the work done at the federal court level.  After we receive attorney fees for work at the administrative level, the EAJA fees go to the client.  Therefore, we frequently reject the low ball offers that the Social Security Administration ("SSA") offers for EAJA fees because we recognize that those fees will eventually go to the client.

When applying for EAJA fees, we have to submit a memorandum of law explaining why we are entitled to the amount we are requesting, and a Declaration substantiating the time expended.  The hourly statutory rate for EAJA fees is less than a third of the hourly market rate for attorney fees.  Nonetheless, the SSA opposes our requests for EAJA fees.

Judge Cogan recently ordered the SSA to pay SSD benefits to one of our claimants.  The SSA opposed our request for EAJA fees, which will be going to the claimant because payment of the SSD benefits has already been ordered.  Judge Cogan stated the following about our request for EAJA fees:

"Nevertheless, there is one other point that guides the exercise of my discretion on this issue: plaintiff’s submissions were much better than the average submissions I get in social security review proceedings. Plaintiff’s submissions were more thorough, better organized, and more persuasive. It is not all that often that the Commissioner meets her match in written advocacy skill. Rather, too often in these cases, I receive little help from the plaintiff’s attorney, and must develop arguments myself that are merely mentioned. That includes having to hunt through the record to get a true sense of the longitudinal nature of the plaintiff’s treatment, which was an important issue in this case (as it is in many cases). I would rather have a plaintiff's attorney spend an extra 10 or 15 hours preparing papers of the quality I received here than having to spend an extra 10 or 15 hours myself trying to figure out whether there is a basis for a conclusory assertion in the plaintiff’s brief."

As a result, the claimant will be receiving thousands of dollars more than the SSA offered.

 

Typical DDS Waste

I have been writing about how the State agency known as Disability Determination Services (“DDS”) has been wasting taxpayer time and money for years.  Today gave rise to another perfect example of where the DDS decision made absolutely no sense.

We represent a 44 year old from Whitestone with heart problems who worked in maintenance for a school.  The claimant had a slew of hospitalizations due to his cardiac problems, which included a heart attack.  Moreover, the claimant developed severe psychological problems as a result of his cardiac related limitations.  Additionally, the claimant earned over a $100,000 a year, so commonsense should have told DDS that the claimant would have continued working rather than receive less than a quarter of that amount in SSD benefits.

We obtained opinions from three of the claimant’s specialists that strongly support an inability to work on a full time basis.  Each of those opinions was validated by thousands of pages of medical records.  Nonetheless, DDS denied Social Security Disability (“SSD”) benefits because its doctor, Sovan Powell, said there was “insufficient information.”

It is stupefying to assert that multiple medical opinions with thousands of contemporaneous medical records could possibly constitute “insufficient information.”  Not surprisingly, DDS refused to identify what information they claimed was missing to enable them to determine whether the claimant was disabled and entitled to receive SSD benefits.

Thankfully, administrative law judge (“ALJ”) Margaret Pecoraro reversed the DDS travesty.  After the case was assigned to the ALJ, we asked that the claimant’s file be considered for an OTR.  The ALJ determined that a hearing was not necessary, and approved the claimant’s SSD benefits.

Our client is ecstatic that he was approved without a hearing and is happy that he made the decision to retain us when he first decided to apply for SSD benefits.  If you are thinking about applying for SSD, call our office for a free phone consultation.  Our offices are located on Long Island in Nassau and Suffolk counties.

 

 

 

 

 

Catatonic Schizophrenia

According to the American Psychological Association, catatonic schizophrenia is a relatively rare subtype of schizophrenia that is characterized by abnormal motor activity, specifically, motor immobility.  WebMD includes not moving or talking, and staring at and ignoring others, as the typical symptoms.  It should be obvious that a person afflicted with catatonic schizophrenia cannot work in any type of full time capacity. 

We represent a 54 year old healthcare aide from Smithtown with catatonic schizophrenia.  We provided the State agency with reports from three mental health providers who diagnosed the claimant with catatonic schizophrenia, and described why her condition precluded any type of sustainable employment.  At the State agency’s request, we even provided a consultative examination from the claimant’s psychiatric nurse practitioner.  Nonetheless, it still took over a year for the State agency to approve the claimant’s Social Security Disability (“SSD”) application.

While we applaud the SSD approval, we are disappointed that it took so long for the claimant to receive benefits with all of our prodding.  Without our prodding, who knows how long our claimant's case would have sat at the State agency.  No doubt, the State agency will attribute the delay to the COVID pandemic.

Please don't hesitate to call our office for a free phone consultation if you are thinking about applying for disability.  We have offices located on Long Island in both Nassau and Suffolk counties.

Support Letters

When the Social Security Administration (“SSA”) decodified the treating physician rule, the new regulations called for greatest emphasis for supportability and consistency.  The more a medical opinion is consistent with other evidence, the more persuasive it will be found.

Evidence includes statements from anyone who has observed a claimant.  We represent a 53 year old clerk from Ronkonkoma with neck and head injuries from a motor vehicle accident.  We supplied disability opinions and a great deal of objective diagnostic evidence of musculoskeletal injuries.  Nonetheless, it was not until we submitted support letters from friends and relatives that the SSA approved disability benefits.

Support letters are evidence from non-medical sources that the SSA must consider.  They corroborate the opinions of the treating medical sources.  Consequently, the support letters make the opinions of the treating medical sources more consistent with the evidence compared to the opinions of the non-treating medical sources.

Our client was ecstatic to learn that she had been approved, and said she was so impressed with our handling of her claim and our knowledge of what was needed to get her a favorable decision.  She said she would highly recommend our services to anyone she knows, who might need to apply for disability.

Please feel free to call our office for a free phone consultation if you are considering applying for disability .  We have offices on Long Island conveniently located in both Nassau and Suffolk counties.

 

State Agency Doctors

During the first two levels of review for a Social Security Disability (“SSD”) application, the State agency basically has its doctors deciding the claim.  The State agency doctors frequently lack the credentials or qualifications to evaluate a claimant’s impairments.  Therefore, Social Security attempts to insulate the opinions of State agency doctors by refusing to disclose their full names.

Although federal courts rarely accept the opinions of the State agency medical consultants, administrative law judges (“ALJs”) frequently rely on those opinions to deny SSD benefits.  Fortunately, ALJ Crawley is not one of them.

We represent a 54 year old financial analyst from North Babylon with severe back and knee impairments.  His SSD application was at the first two levels of review based upon the opinions of the State agency doctors, who asserted the claimant could perform light work.  ALJ Crawley rejected those opinions in favor of the claimant’s physiatrist for two reasons.  First, the opinions of State agency doctors were unpersuasive because they were based on a review of the record, and not a direct examination of the claimant.  Second, those opinions were obtained before significant evidence was available for review, which rendered them less relevant in assessing the claimant’s functioning.

If you are considering applying for disability benefits, it is in your best interest to retain an attorney who specializes in disability.  You can call our office for a free phone consultation.  Our offices are conveniently located on Long Island in both Nassau and Suffolk counties.

 

Lung Cancer Approval

We represent a service manager from Shirley, who unfortunately has Stage 4 lung cancer.  By promptly alerting the right representatives at Social Security, and submitting the medical information to qualify for expedited processing, we succeeded in getting benefits approved in 2.5 months.

Delays in processing Social Security applications are well documented.  Knowing how, and being willing, to navigate the Social Security application process from inception is important to ensuring that late stage cancer claims get expedited.

DDS Inconsistency

 

The State agency makes the initial decision on Social Security Disability (“SSD”) applications.  When we advised the State agency that our 24 year old claimant from Uniondale with back problems would not attend a consultative examination (“CE”) due to the COVID-19 pandemic, the State agency agreed that the treating spine specialist could do the CE.  The specialist provided the very information that the State agency requested, yet it denied the claimant’s SSD application anyway.

The administrative law judge (“ALJ”) found the evidence regarding the claimant’s spine impairments compelling, and promptly approved SSD benefits.  The State agency received the exact information that it had requested, and it all supported the claimant’s SSD application. One can only surmise that the State agency gave no regard to the medical evidence because it had predetermined to reject the claim of a 24 year old.

If you are thinking about applying for SSD benefits, it's in your best interest to retain an attorney who specializes in disability.  For more information, please call my office for a free phone consultation.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

ALJ Schriver Reversed

We received a federal court decision today that reversed the denial of Social Security disability (“SSD”) benefits by administrative law judge (“ALJ”) Robert Schriver.

We represent a 50 year old title reader from Bellerose Manor with fibromyalgia.  The ALJ rejected the opinion of the treating rheumatologist that the claimant lacked a sedentary residual functional capacity (“RFC”) because of the fibromyalgia.  We argued that the ALJ impermissibly relied upon his own lay judgment in lieu of medical opinions when concluding the claimant had the RFC for full time work.  The federal district court agreed.

The judge ruled that because the ALJ is a layperson, not a doctor, he is not permitted to interpret raw medical information into an RFC without the assistance of a medical professional’s insight.  The court added that, “Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.”

The most noteworthy part of the decision was that the judge highlighted the importance of the treating physician's opinion even after the repeal of the treating physician rule.

It's important to note, that when you hire an attorney to represent you with a Social Security Disability claim,  you should confirm that he/she has the credentials to take your case to Federal Court, if the need should arise.  Please contact our office for a free phone consultation if you are considering filing for disability.  Our offices are conveniently located on Long Island in both Nassau and Suffolk counties.

The Wait is Over

We filed a Social Security Disability (“SSD”) for a claimant from Brooklyn with depression over 5.5 years ago.  After administrative denials, we appealed in federal court, and succeeded in obtaining a reversal.  On remand, the administrative law judge (“ALJ”) asked a medical expert (“ME”) and a vocational expert (“VE”) to testify.

At the hearing, after the ME testified that the claimant met a listing, the ALJ ended the hearing without any testimony from the VE, which means SSD benefits will be approved.  Today we received the Fully Favorable Decision; however, the notice of award (“NOA”) that details the benefits that are due and the lump sum past due benefits can take many months to get, especially when the claim involves a federal court remand.

Our claimant is ecstatic that he was approved, and grateful that we fought so hard for him.  If you are thinking about applying for disability, please call my office for a free phone consultation.  Our offices are conveniently located on Long Island in Nassau and Suffolk counties.

LTD Buy Outs

A long term disability (“LTD”) benefit “buyout” is where the insurance company pays a lump sum instead of continuing to make monthly payments in the future.  Should you accept a buy out?  A buy out will always be less than the possible total amount of future benefits remaining, for which there are valid reasons.

The insurer will continue to reassess the claim.  The insurer may believe that it is possible for your condition to improve, at which point your benefits will be terminated.  That is why insurers do surveillance, and pay “IME” doctors thousands of dollars to opine that the claimant has improved.  The insurer will also want a discount to reflect the chance that you might die from some unrelated cause.

I typically advise my clients that their only concern should be if the buy out makes financial sense – could they invest the lump sum to earn approximately what the monthly payouts would equal. To determine if a buy out makes sense, you should always discuss it with your financial advisor, who can evaluate the present value formula that the insurer is using.  To oversimplify, if you win a lottery, you can choose a lump sum or annual installment payments.  The former is always smaller than the total amount of the jackpot.

The key to analyzing the present value is the “discount rate,” which is an interest rate.  A lottery uses a discount rate to reflect the annual rate of growth of the invested lump sum for a typical individual, which is what the present value of a lump sum is supposed to do.  Disability insurers knowingly misuse the term present value.  Instead of using an interest rate that reflects the expected rate of investment growth, the disability insurer uses the corporate bond rate because that supposedly reflects the cost to them of borrowing to pay for the lump sum.  However, that has nothing to do with the present value of a lump sum to you; only the cost of the lump sum to them.

Most of the time, we advise claimants that buy outs are offering far too little relative to the overall claim.  We negotiated a buy out for a Unum client today.  The claimant understood that there was a significant discount for Unum.  However, the claimant already had to relocate from Queens to Upstate New York where the cost of living is lower.  After discussing the buy out with financial advisors, despite the discount, the claimant felt she had to accept the buy out due to financial stress.

 

Covid Long Haulers

As if it wasn't hard enough to get approved for Social Security Disability ("SSD"), Covid has complicated the matter even more.  Some people who have had Covid have become "long haulers."  They have experienced lingering medical issues, and new medical issues, which have left them unable to return to work.  While they can apply for SSD, the Social Security Administration ("SSA") is not prepared for how to treat these cases, and will most likely deny them,erroneously.

How many more of our fellow citizens are going to be subjected to the uneducated decisions of the "analysts" at the State agency who review their claims?  These "analysts" are civil service workers, not doctors or lawyers, who most of the time are ill prepared for what they are doing, and are not really interested in trying.  Under the new acting Commissioner of the SSA, we can only hope that the SSA trains their employees about how to handle long haulers' claims, and that they do not automatically deny them or make them wait years for a decision.

Remand for Benefits

There are three possible outcomes when appealing a Social Security Disability (“SSD”) case in Federal court:  the appeal can be denied, remanded for further proceedings, or approved and remanded for a calculation of benefits.  The third possibility is the best for a claimant, but is also the rarest, occurring only 2% of the time.

Unfortunately, more claimants are having to litigate in order to receive SSD benefits.  Social Security has precipitously reduced the percentage of cases that it approves and remands at the Appeals Council since 2016.  It seems that Social Security made the cynical decision that it is a win-win for it to reject more cases at the Appeals Council.

Social Security calculated that many claimants will not go to court, and if they do, then the court will decide if a remand is needed.  Basically, Social Security has foisted its obligation to determine if a remand is needed onto the courts.  Social Security anticipates that the courts will respond to the increased SSD caseload by denying more cases in order to discourage appeals.  At worst, a remand significantly delays the time when Social Security has to pay benefits, and Social Security does not pay interest on past due benefits.

We represent a 36 year old catering manager from Mineola with multiple impairments, including pseudotumor cerebri, which causes headaches.  Administrative Law Judge (“ALJ”) Roxanne Fuller denied the case, which the Appeals Council rubber stamped.  U.S. District Court Judge Brian Cogan reversed and remanded the case today for a calculation of benefits.

Judge Cogan rejected the ALJ’s argument that because the claimant’s headaches were not disabling because she did not experience them during all her examinations.  Since the record was sufficiently developed, and no medical opinion contradicted the opinions of the treating physicians who concluded the claimant cannot work on a regular basis, Judge Cogan held that a calculation of benefits was the proper remedy.

Our client cannot express her gratitude enough, for our handling and outcome of her claim.   She had originally applied on her own and realized that filing for SSD was an arduous and complex matter.   She was referred to us by an old client of ours, who highly recommended calling us, based on their own positive experience, knowing that we specialize in disability claims, and are able to litigate claims in Federal court when necessary.  Our office offers free phone consultations and have offices conveniently located on Long Island in Nassau and Suffolk counties.

Prostate Cancer

We represent a claimant with complications from prostate surgery who was approved today for Social Security Disability (“SSD”) benefits without even having to attend a hearing with an administrative law judge (“ALJ”).  The ALJ not only found that urinary impairments and fatigue prevented the claimant from performing his past work, but also any other work as well.

Transferability means applying work skills that the person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semi-skilled jobs.  The ALJ concluded that any skills the claimant acquired from his past work were not transferable to any other jobs; that any other occupation would require too much vocational adjustment in terms of tools, work processes, work settings or the industry in order for any acquired skills to be transferable.

Vocational considerations take on added significance when the impairments at issue are non-exertional.  Therefore, we retained and worked with a vocational expert (“VE”) on this matter.  Without the VE, it is unlikely that the claimant’s SSD application would have been approved without a hearing.

More Good News?

Good news is looming on the horizon.  President Biden is planning to make improvements to the Supplemental Security Insurance program, also known as SSI.  This program helps elderly and disabled people, who are unable to work, but without enough work credits to qualify for Social Security Disability benefits.  These claimants would still have to meet the same medical requirements, but Biden is planning to raise the monthly benefit that people can receive.  Currently, the annual SSI benefit is well below the poverty level, and the financial qualifications to qualify for SSI are archaic.  Hopefully, President Biden can include these changes in the next spending package to help lift our most vulnerable out of poverty.

SS Commissioner Fired

Hopefully things will start looking up for people filing for Social Security Disability and/or Supplemental Security Income.  Today, Presiden Biden fired Social Security Commissioner Andrew Saul because:  "Since taking office, Commissioner Saul has undermined and politicized Social Security disability benefits, terminated the agency's telework policy that was utilized by up to 25 percent of the agency's workforce, not repaired SSA's relationships with relevant Federal employee unions including in the context of COVID-19 workplace safety planning, reduced due process protections for benefits appeals hearings, and taken other actions that run contrary to the mission of the agency and the President's policy agenda," the White House official said."   

 

After Saul's firing, Rep. Bill Pascrell, D-N.J, Head of the Ways and Means Committee on Oversight stated, “The leadership of the Social Security Administration under these men has been marked by a stunning streak of disregard, callousness, and destruction of the agency,” said Pascrell. “Saul and Black acted as foxes in the henhouse. Their agenda was not to protect Social Security but to impose cruelty on America’s seniors and disabled. Their removal is overdue and welcome."

 

We are looking forward to many other positive changes within the Social Security Administration going forward, and hope that our seniors and disabled will be treated with the kindness and respect they deserve.

COVID Long-Haulers

COVID has affected the lives of millions of people. While some people who have had COVID recover after two weeks, and return to their normal life, there are many people who are left with long lasting, even permanent, medical conditions that they did not have before contracting COVID. These people are referred to as "long-haulers". One of the many problems these people face is their inability to return to work, for an unknown period of time, or permanently. They face the difficult challenge of applying for disability, whether through Social Security, or from a group or private insurance policy, neither of which is prepared for "long-hauler" claims. But they need to prepare quickly, because there are going to be a lot of people left disabled from this virus, and they will need disability payments to survive.

SDNY Affirms SSD Win

Judge Ronnie Abrams rejected the decision of Administrative Law Judge ("ALJ") John Carlton that our client from the Bronx with spinal impairments was not disabled. The decision is of significant importance because Judge Abrams clarified that "the law that an ALJ may not substitute his own medical opinion for that of a physician" even after the treating physician rule was decodified. Thus, an ALJ cannot base a residual functional capacity ("RFC") assessment on his own interpretation of the medical evidence. In order for an RFC to be supported by substantial evidence it must be based on a physician's opinion.

It is vital to make sure that the disability attorney who will represent you when applying for Social Security Disability will also fight for you in Federal Court if necessary. Not many disability attorneys are qualified and willing to litigate their clients' claims if they have to go to Federal Court, and they will refer you to a litigation attorney. We can and do litigate our clients claims. Please feel free to call our office for a free phone consultation. Our offices are located on Long Island in both Nassau and Suffolk counties.

Prudential Approval

We represent a nurse from Manhassett with Lupus and back problems.  We originally persuaded Prudential to reverse its decision that the claimant was able to work as a nurse after we filed an action in federal court.  However, relatively soon thereafter, Prudential challenged whether the claimant was unable to perform any other occupation.

 

At the time of the lawsuit, even though the claimant only needed to establish that she was incapable of working as a nurse, we went out of our way to demonstrate how the medical and vocational evidence submitted supported her being incapable of performing any full time occupation.  We provided Prudential with information from the claimant’s doctors showing that there had been no change in her medical tests, clinical examination findings, or symptoms.  

 

Prudential notified the claimant today that it determined she is unable to be gainfully employed.  If we had not exceeded the evidentiary requirements initially, it is unlikely that Prudential would have concluded that the claimant was disabled from any occupation.

 

Please take note of how important it is to retain an attorney who specializes in disability claims, if you intend on filing for disability.  Our office offers free phone consultations.  We have offices located on Long Island, in both Nassau and Suffolk counties.

Rheumatoid Arthritis

Rheumatoid Arthritis or “RA” is an incurable form of inflammatory arthritis and an autoimmune disease.  When applying for Social Security Disability (“SSD”) benefits, the most expeditious way to establish entitlement to benefits is to show that the claimant meets the criteria under “listing” 14.09.

We represent a 47 year old Vice President of Human Resources from Glen Cove, who was approved for SSD benefits in five months, without requiring a hearing.  There was no written decision because the claimant was approved at an early stage.  However, we were able to access the internal documents from the Social Security file, and learned that the claimant met listing  14.09 because of the effect that the RA had on her hands.  We had submitted a report that focused on how the claimant’s use of her hands were limited, and treatment records that reflected the nodules on them.

The SSD claim process is a lengthy one, especially during the COVID era.  Explaining why the medical evidence supported the claimant meeting the listing significantly expedited her receipt of SSD benefits.   This is why it is so important to have a disability attorney representing you for SSD benefits.  If you are planning on applying for SSD, or have already applied on your own, please call my office for a free phone consultation.  Our offices are conveniently located on Long Island in both Nassau and Suffolk counties.

We Take Care of Our Own?

SSA had two programs available to US citizens who are disabled, Supplemental Income Insurance ("SSI") and Social Security Disability ("SSD").   You need to have enough work credits to apply for SSD, and SSA uses a formula to calculate your monthly benefit based on your earnings.  SSI is a program for people who do not have enough work credits, and who do not have more than $2,000 in their bank account, and meet the financial criteria to be eligible for SSI.  The maximum monthly benefit for SSI is $783 a month.  Who can live on that?  Our country needs to do better, and the SSI and SSD programs need a huge overhaul to meet today's standard of living, and take care of their own citizens, who are unable to work due to a medical condition.

 

Mystery Solved

Sometimes it is unclear why Social Security approves a claimant.  We represent a 32 year old educator from Brooklyn with bipolar disorder, whose supplemental security Income (”SSI”) application was just approved.  We submitted very strong medical opinions along with their treatment records, but that does not usually result in an approval prior to a hearing with an administrative law judge.

We received a notice of award (“NOA”) for the claimant.  However, a NOA explains the benefits to which a claimant is entitled, but does not explain the basis for the decision.  Because Social Security conducts continuing disability reviews ("CDR"), it would help a claimant prepare for that eventuality if the NOA was accompanied with some sort of rationale for the approval.  As the client's attorney, I was able to access his electronic file and review the State agency's notes.  This enabled us to ascertain that the claimant was approved because he met the listing for bipolar disorder, which will prove invaluable when his CDR comes up.

Is the claimant had not retained us, or another disability attorney, he would never have known the basis for his approval.  This is why it is so important to hire a disability attorney if you are thinking of applying for disability.  We have offices conveniently located on Long Island, in both Nassau and Suffolk counties.  Please call our office for a free phone consultation.

More State Agency Deceit

We filed a reconsideration appeal on May 3, 2021.  Just three weeks later, the Stage agency denied the claim without requesting any additional information. The State agency claimed that we refused to allow our client to attend a Consultative Exam (“CE”) because of “a medical condition.”  That claim was deceptive at best.

The State agency concealed that the claimant’s "medical condition" was his cardiovascular heart disease, which resulted in two heart surgeries in February, and two more surgeries in March, when COVID was still raging.  In his condition, the claimant could not risk being exposed to COVID.  To minimize the risk, we offered to have one of his cardiologists perform the CE, who also happen to be the preferred source under the regulations.  His doctors were perfectly willing to perform the CE, but the State agency ignored that offer.

The medical section of our client’s Social Security claim file contains 2,421 pages of records that support his disability from work.  The State agency denied this claim because the claimant did not attend a CE.  We have seen quality control memos rejecting such denials, and reminding the State agency to make a decision on the other evidence in the file.  The State agency failed to do that here.

There were thousands of pages of medical records.  The State agency refused to identify any medical documentation that was purportedly missing.  There was a great deal of documentation regarding our client’s medical conditions, including diagnoses, objective diagnostic test data, operative reports, supportive letters and reports from multiple treating doctors.  There was no need for our client to attend a CE.

Logic dictates that the State agency was too lazy to review the 2,421 pages of medical records. This claim should have been approved.  It is a travesty that it was denied.

We will continue to fight for our client and are confident that the hearing office will give this claim the proper consideration and review.  If you find yourself in need of assistance applying for disability, please contact my office for a free phone consultation.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

 

Responsiveness Counts

Social Security Disability (“SSD”) claimants frequently ask, “How long does it take to get a decision?”  That general question cannot really be answered because it depends on countless variables.  However, the process can be hastened if your doctors and other sources supporting your claim respond promptly and fully.

We represent a former salesperson from Lynbrook who suffers from anxiety and PTSD whose SSD application was approved without a hearing.  We were able to obtain reports from the claimant’s psychiatric nurse practitioners, one of whom also provided thorough and complete answers to a questionnaire from Social Security, and psychotherapist.  As everything Social Security requested was expeditiously submitted, a consultative examination was not requested.

The claimant may not have had the same outcome if she had filed on her own.  This is why it is so important to retain an attorney who specializes in disability if you plan on applying for SSD.  If you are thinking about 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.

 

 

 

ALJ Gets It Right

Administrative Law Judge (“ALJ”) decisions frequently state that whether a Social Security Disability (“SSD”) claimant is disabled “is an issue reserved for the Commissioner.”  While that may be a correct recitation of the law, most ALJs apply it incorrectly.

Many ALJs invoke language that the legal determination of disability is reserved exclusively to the Commissioner when they try to circumvent the law that requires an ALJ to choose between medical opinions.  In doing so, the ALJ conflates a determination of disability, which is a legal opinion, with a claimant’s functional limitations, which is a medical opinion.  The courts have consistently held that while a doctor’s statement that a claimant is disabled is not a medical opinion regarding functional limitations, and is not an opinion on the ultimate issue of legal disability, but rather on the nature and severity of the plaintiff's impairments.

I represent a 36 year old from Holbrook with severe spine, shoulder and elbow problems that worked as a carpenter, whose SSD application was approved today by ALJ Berkowitz.  One of the claimant’s doctors stated that the claimant was disabled, and provided functional limitations that precluded full time work.  The ALJ distinguished between the two, and noted that while the disability statement was an issue reserved to the Commissioner, the doctor’s less than sedentary functional assessment was not.

If you are thinking about applying for disability, you should retain an attorney who specialized in disability.  I have over 25 years of disability experience.  Please call my office for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Berkowitz Reversed A Second Time

We represent a 32 year old bipolar disorder from Deer Park who worked in real estate.  We filed the claimant’s Social Security Disability (“SSD”) application in 2016, which administrative law judge (“ALJ”) Alan Berkowitz denied.  After the Appeals Council denied review, we appealed to federal court, where we got the ALJ’s decision reversed for a second hearing.  The ALJ partially denied the SSD application at the new hearing by repeating the same mistakes that he made at the first hearing.  The Appeals Council reversed the ALJ, and ordered that the case be reassigned to another ALJ.  This should all sound familiar to regular readers of this blog.

We are a full service SSD office, and represent claimants at all levels of the application and appeal process.  If you find yourself unable Please call us for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

SSD Inside Attack

Anyone who has worked hard should expect to be approved for Social Security Disability ("SSD") benefits when they become unable to work due to the physical and mental toll their jobs have taken on them.  As long as your doctors confirm that your condition prevents you from working on a full time basis, you should expect to be approved, and rightfully so.

Many of our citizens work in physically demanding jobs, such as construction workers, factory workers, cleaning services, etc., which frequently result in physical impairment.   We could not survive without these essential workers, but they are not being rewarded for their service.

Former President Trump appointed Andrew Saul as the Commissioner of Social Security.  Saul continues to enact new rules that make it even more difficult to get approved for SSD benefits due to physical impairments, especially musculoskeletal problems.  We need to get the Saul rule overturned, and remove him as Commissioner.  You pay his salary, yet he does not have your best interests at heart.   We need a Commissioner with empathy and compassion for the most vulnerable members of society.  You funded Social Security; you worked for it; you need to fight for it.

       

Applying for SSD

Applying for Social Security Disability ("SSD") or Supplemental Income ("SSI") can be an overwhelming, anxiety provoking task, especially if you apply on your own. Retaining an attorney who specializes in disability can make the process a lot less intimidating and overwhelming. And recent studies have shown that you are 3x more likely to be approved for SSD or SSI if you are represented by an attorney. If you are thinking about applying for SSD or an SSI appeal, my office offers free phone consultations. If we take your case, we handle everything for you, from filing your application to representing you in court, if it comes to that. We speak to Social Security on your behalf, making the process a lot less overwhelming for you. We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Help for SSD?

In the last few weeks of the Trump presidency, he and his administration passed a number of rules that would make it even more difficult than it already is to be approved for Social Security Disability or Supplemental Security Income. We have to hope that the Biden administration will be able to reverse those rules, and sooner rather than later.

Credibility Approval

 

We represent a 50 year old former general clerk from Florida with physical and mental impairments seeking Social Security Disability (“SSD”) benefits.  At the claimant’s hearing, the administrative law judge (“ALJ”) noted that the claimant had no medical treatment the past year.  Typically, an ALJ will deny SSD benefits under those circumstances on the assumption that if a claimant stops treating, then it shows they got better.  Alternatively, some ALJs will deny SSD benefits on the grounds that the claimant failed to supply the requisite contemporaneous evidence to support their claims.

We explained to the ALJ that the case law in New York provides that a claimant cannot be penalized for failing to seek medical treatment if they cannot afford it or lack health insurance.  The claimant, who was homeless, credibly testified that both of those circumstances applied in her case.  The ALJ accepted that testimony, and approved the claimant’s SSD application.

Please call me office for a free phone consultation if you are interested in applying for disability.  We have offices located in Nassau and Suffolk counties on Long Island.

MS Victory

We represent a 38 year old former pharmacy technician from Ozone Park with multiple sclerosis (“MS”).  We filed her application for Social Security Disability (“SSD”) benefits six years ago.  We continued to fight for SSD benefits at all levels of adjudication.  The first administrative law judge (“ALJ”) on the case was Jay Cohen.  Cohen’s decision denying SSD benefits was so transparently defective that when we appealed to federal court, the attorneys representing Social Security immediately asked us to agree to remand the case.

The good news is that the case was finally approved today by a new ALJ.  The bad news is that it took the claimant six years to get approved.  Moreover, as is typical in cases that last this long, it will take many months for her to get paid.  Having said that, the claimant is grateful that we "stuck with her" and finally got her approved.

If you need assistance applying for disability, or help with a claim that you already filed, please feel free to call my office for a free phone consultation.  We have offices conveniently located in Nassau and Suffolk counties on Long Island.

 

 

Cigna Reverses LTD Denial

We were retained by a 59 year old former Director of Engineering from Brooklyn with multiple medical issues, whose long term disability (“LTD”) benefits were terminated by Cigna based on an Insurance Medical Exam (“IME”) by Jeffrey Liva, who makes his living doing IMEs for disability insurance companies.  Cigna paid $6,000 for the Liva IME.  Contrary to the treating doctors, Liva said the claimant could work.

The claimant had an uphill battle because it is virtually unheard of for a disability insurer to reverse a denial after investing thousands of dollars for an IME to say a claimant can work.  We appealed with various diagnostic test reports, and medical and vocational reports, to rebut the Liva opinion, but Cigna failed to respond within 45 days as required under federal law.  Consequently, we sued Cigna, which had the effect of ensuring a favorable standard of judicial review for the claimant.  Today, Cigna finally responded with a letter reversing its decision to terminate the claimant’s LTD benefits.

It took many months to develop the medical and vocational evidence that was submitted on appeal.  Despite the fact that the appeal evidence overwhelmingly demonstrated that the claimant remained unable to work in any full time capacity, it still took actually commencing litigation to obtain the result.

If you are in need of an attorney who specializes in disability claims, please feel free to contact my office for a free phone consultation.  We have offices conveniently located in Nassau and Suffolk counties on Long Island.

State Agency Medical Consultants

At the initial stages of the Social Security Disability (“SSD”) application process, the Social Security Administration relies on doctors who work for each State’s disability determination services (“DDS”) to evaluate the medical evidence.  The DDS doctors, also known as State agency medical consultants, do not examine claimants.  Consultative examiners (“CEs”), who are from private companies that contract with DDS, examine claimants.

DDS doctors usually disregard what claimants’ doctors say, and just focus on what the CEs say, when evaluating SSD claims.  If an SSD application is denied based upon the conclusion of a DDS doctor, then a claimant typically has to wait a couple of years before an administrative law judge (“ALJ”) can hold a hearing on the denied application.  During that delay, claimants can continue to submit updated medical information.  By the time an ALJ has to decide a case, it is likely that the opinion of a DDS doctor has become stale, which is especially true if the claimant provided additional medical evidence during the wait for a hearing.  

We were retained to represent a 52 year old former attorney from Rockville Centre with multiple medical impairments after his SSD application had been denied based on the opinions of the DDS doctors.  We supplied a substantial amount of medical evidence while the claimant awaited his hearing with ALJ Alan Berkowitz, who approved the claimant’s SSD application today.  Notably, ALJ Berkowitz stated that the opinions of the DDS doctors were unpersuasive because they did not review the updated medical evidence

This is an example of why it is so important to retain an attorney who specializes in disability, if you decide to apply for Social Security Disability benefits.   Please call my office for a free phone consultation.  Our Long Island offices are conveniently located in both Nassau and Suffolk counties.

ALJ Berkowitz Reversed Second Time

We represent a claimant from Uniondale with Protein S Deficiency that causes clotting problems, and requires her to elevate her legs most of the day to prevent additional deep vein thromboses from developing.

We filed the claimant’s Social Security Disability (“SSD”) application in 2013, which administrative law judge (“ALJ”) Alan Berkowitz denied.  After the Appeals Council denied review, we appealed to federal court, where we got the ALJ’s decision reversed for a second hearing.  However, the ALJ denied the SSD application at the new hearing by repeating the same mistakes that he made at the first hearing.  This time though, the Appeals Council reversed the ALJ, and ordered yet another hearing. 

Fortunately, the Appeals Council determined that it would be unfair to subject the claimant to a third hearing with the same ALJ, and ordered that the case be reassigned to another ALJ. 

We are a full service SSD office, and represent claimants at all levels of the application and appeal process.  If you find yourself unable Please call us for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Some Good News

When someone is approved for Social Security Disability (“SSD”) benefits, or Supplemental Income benefits (“SSI”), accompanying the decision is a guideline for when the claimant’s case should be reviewed.  SSD and SSI are considered temporary disabilities, unless a person has a condition that is expected to end in death within 14 months from the time they stop working.  A review requires the beneficiary to complete paperwork with updated medical information, and to get updated records from their treating doctors to support that they are still disabled, and unable to work full time.  Typically, the older a person is, or the lesser the likelihood of their condition improving, the longer the length of time there is between reviews.  However, under the Trump administration, a new rule was passed to require more frequent reviews, no matter what the age or medical condition of the beneficiary was.  President Biden has withdrawn that rule, which will provide much relief for people who are receiving disability.  There will still be reviews, but not at the ramped up rate that the Trump administration had wanted, which was just another excuse to hurt and disgrace those people who are truly disabled and rely on the little amount of money they received for disability, because they’re medical condition(s) prevent them from being able to work full time.

ALJ Smith Reversed Again

We represent a 23 year old claimant from Huntington with disruptive mood dysregulation disorder whose application for social security disability (“SSD”) insurance benefits was denied by Administrative Law Judge (“ALJ”) Susan G. Smith. The Appeals Council remanded the case to another ALJ after because Smith had failed to conduct a fair hearing.

ALJ Smith made a mockery out of the administrative hearing process because she never intended to consider the claimant’s testimony. The purpose of a hearing is for the ALJ to look fully into the issues and question the claimant. A claimant’s testimony is taken when the objective evidence supposedly fails to substantiate the degree of impairment-related symptoms so the ALJ can consider the claimant’s statements about the intensity, persistence, and limiting effects of her symptoms.

After confirming the information that the claimant had already submitted about her education and past work, the ALJ only asked why the claimant stopped working. The ALJ failed to ask the claimant anything at all about her pain, or inability to work with coworkers, supervisors or the public. In fact, the ALJ failed to ask the claimant anything whatsoever about her physical or mental impairments. In other words, the ALJ had predetermined to reject the claimant’s testimony concerning her symptoms regardless of what she had to say. 

Prejudging is the very definition of bias. ALJ Smith’s disregard for anything the claimant could possibly say demonstrated her prejudging. I asked the Appeals Council to reassign the case to another ALJ if it were not remanded for a calculation of benefits. The Appeals Council chose the latter, and the new ALJ assigned to the case issued a fully favorable decision today.

Survivor Benefits

Most people don't know what they are entitled to receive after a loved one passes away who was collecting Social Security benefits.  This article explains what one should do under those circumstances.