SS Delays

It seems that every day we are reminded that the local Social Security offices and the State agencies are experiencing delays due to "backlogs."

We represent a 62 year old Ultrasound Technician from Longwood, Florida.  We filed her application for Social Security Disability ("SSD") benefits on January 8, 2024.  We contacted her local office in Florida repeatedly to discover why her case had not been transferred to the State agency.  We finally had to ask Public Affairs to get involved.

Ms. Love, from Public Affairs, told us that the average wait time in Florida for a claim to get assigned to an analyst at the State agency was 230 days.  With Ms. Love's diligence and help, she was able to get our client's case transferred to an analyst in October.  We submitted all of the supporting medical evidence we had been collecting, and the claimant was approved 2 months later.

It is a long and arduous process to apply for SSD benefits.  We are here to help.  Our office, located in Melville, Long Island, offers free phone consultations.  Please feel free to reach out if you are planning on applying for SSD benefits.

OTRs

Most times, a request for an on-the-record (“OTR”) decision is not considered until a couple of days before a hearing is scheduled to take place. Nonetheless, an OTR should still be pursued because it avoids the stress a claimant experiences when having to attend the hearing with an ALJ. Also, ALJs appreciate OTRs because they allow ALJs to devote more time to more complicated claims.

We represent a 57 year old security guard from Jamaica, who stopped working due to pain from various musculoskeletal impairments. The State agency medical consultants found the severity of the claimant’s pain to be credible. However, those consultants denied Social Security Disability (“SSD”) benefits twice because the claimant had no doctor providing functional limitations.

Since the claimant had to stop working because of pain, we referred the claimant to a pain management specialist, who supplied the requisite opinion. Based on that opinion, we submitted a brief explaining why the medical and vocational evidence in the file supported finding the claimant disabled under the Social Security rules and regulations. The ALJ agreed.

Retaining a disability attorney who has years of experience handling SSD claims is in your best interest. We have an encyclopedic of knowledge of the ins and outs of the SSA, from the initial application with the local office, to working with the State agency, the ALJ’s, and if necessary, the Appeals Council and Federal Court. If you want to greatly increase your chances of receiving a favorable outcome to your SSD claim, please contact our Melville, Long Island office for a free phone consultation.

 

 

 

 

LTD Surveillance

We represent claimants who are applying for Long Term Disability benefits.  We work with many different insurance companies, none of whom have your best interests at heart, even though they act like they are your best friend.

We always warn our clients to be aware of their surroundings because the insurance companies will most likely hire a surveillance company to spy on them, usually for three days in a row.  For example, if you see a strange vehicle on your block that stays in place for an extended period of time, then call the police.  If you notice a car following you, call the police.  If someone comes to your door when you are not expecting anyone, do not answer the door yourself.  The surveillance companies have many tricks to try and catch you doing something that they can manipulate into looking like you were doing something that proves you can work.  This is just a friendly reminder to be careful.

 

 

The Truth about Immigrants and Social Security

by Susan Golden

It is no secret that getting approved for Social Security Disability ("SSD") benefits is a battle.  To be entitled to SSD benefits, a person must have worked and paid into Social Security long enough to earn at least 40 work credits.  If you don't have enough work credits, you might be eligible for Supplemental Security Income ("SSI").  You must meet the same medical criteria, but you also have to meet the financial criteria.

Before filing a claim, we make certain that our clients have current treating doctors who support their inability to work fulltime due to their medical condition(s).  After their application is filed, it is processed by their local Social Security office and then sent to the State agency ("DDS") for review.  But even when we submit supporting medical evidence to DDS, mostly due to the incompetence of their analysts, our client is denied.  More than half of the time, claimants are denied at the initial application, and at the first level of appeal, reconsideration.  As we've discussed so much over the years, the State agency analysts are civil service workers, not doctors or lawyers, and they deny claimants erroneously all of the time.  Claimants have a much better chance of getting approved at the hearing level simply because there are actual attorneys reviewing the claims and experienced Judges presiding at the hearing, if one is needed.  We've had quite a few of our claimant's cases approved On The Record over the past few months, because we have decades of experience handling SSD claims.

We receive a lot of phone calls from people who have applied on their own and have been denied.  They've realized that this is not an easy process, they cannot do this on their own and they are ready to retain us to take over their claim for them.

It has come to our attention that vice presidential candidate J.D. Vance, has been making false claims stating that, "Social Security and Medicare are facing a “massive fraud problem” because of undocumented immigrants who are collecting benefits, citing what he said were incidents of fraud related to him by some of his constituents and friends."   As we stated above, it is difficult to get approved for Social Security even when you meet the eligibility requirements.  You cannot collect benefits if you do not have a Social Security number.  If an immigrant has a Social Security number, and they have enough work credits and a disabling condition that prevents them from working full-time, they will be eligible to apply for benefits, and are entitled to them, just as any U.S. citizen with the same criteria is.

We want to make it perfectly clear that you will not be eligible for SSD benefits if you do not have a Social Security number and if you do not have enough work credits.  If someone tells you that immigrants are taking away your Social Security benefits, they  are dangerously misinformed and do not know what they are talking about.

 

 

"Let's Get Loud" Series - Mental Health Records

by Susan Golden

Claimant 6 – Veteran Rating 100% Disabled and SSA Rules on Mental Health Records

The State Agency denied Mr. C’s case without considering more than half the evidence we submitted.  The denial letter only referred to Mr. C's therapist, and the State Agency’s inability to obtain records from the therapist.  The truth is that we submitted a Medical Findings Summary from the therapist, along with a narrative report from her in lieu of sending her records, per Social Security's own website.  We also had submitted a Medical Findings Summary from the claimant's psychiatrist along with her records.  Furthermore, we submitted a letter from the VA rating Mr. C's disability at 100%.  There was no mention of any of these documents in the denial letter at all.  The continuous denial of claims based on falsehoods at DDS has reached an intolerable point of intentional laziness, disrespect and uncaring.  

 

OTR Efficiency

An on-the-record (“OTR”) decision saves a claimant time by receiving an approval before a hearing with an Administrative Law Judge (“ALJ”) takes place.  An OTR can also save a claimant money.  Since attorney fees grow each month before a claim is approved, by receiving an OTR well in advance of the hearing, there are fewer fees to pay. Unfortunately, most ALJs will not look at a brief requesting an OTR until a couple of days before the scheduled hearing.

An OTR also avoids the stress a claimant experiences when having to attend a hearing with an ALJ.  Hearings can last for a couple of hours if there are experts, and hearings usually do not start on time.  If the case is strong, ALJs like OTRs because they free up time and resources for more complicated claims.

We represent a 55 year old claimant from Franklin Square with physical and mental impairments, who worked as a teacher’s aide and an administrative clerk.  Those occupations are considered light, i.e., more strenuous than sedentary work.  I submitted a brief showing how Vocational Experts had testified that both occupations provide no skills that transfer to sedentary work.

FI showed that five treating doctors explained why the claimant could not even perform sedentary work.  The State agency medical consultant, whose credentials could not be determined because the State refused to disclose the full name, was the only doctor who believed the claimant could work.  The State consultant never saw the claimant, and failed to review most of the medical records.

Given the above facts, I maintained that the claimant should be found disabled under the Grid rules, even if she were capable of full time sedentary work.  Consequently, I asked the ALJ to issue an OTR.  The ALJ agreed that an OTR would be appropriate, which eliminated the need for the claimant to attend the hearing.

This is a perfect example of why retaining an experienced, knowledgable disability attorney is in your best interest if you intent on applying for SSD benefits.  Please call my Long Island office for a free phone consultation.

 

 

 

"Let's Get Loud" Series - DDS's Laziness

by Susan Golden

Claimant 4 – Consultative Exams ordered by the State agency

Ms. G  applied for SSD benefits on June 26, 2024.  Ms. G was an elementary school teacher for 33 years.  She suffers from severe migraines, vertigo, severe back problems and anorexia, to name a few of her impairments.  On August 5, 2024, we submitted supporting medical reports from Ms. G’s treating doctors, which included an EMG and a pharmacy printout.

On August 22, 2024, my assistant, Samantha Diamond, received a phone call from Mr. Begelman, the analyst at the State agency assigned to Ms. G’s case.  He was calling to advise us that he was scheduling Ms. G. for a Consultative Exam (“CE”) with the IMA, the company that SS contracts with to perform CE’s.  According to the regulations, CE’s are supposed to be scheduled only after making best efforts to obtain the necessary information from the treating sources, which are the preferred source.  When Ms. Diamond asked Mr. Begelmann= if he had reviewed Ms. G’s file and seen what we submitted, he admitted that he hadn’t even looked at the file yet.  So without even knowing what was or was not needed, and without doing the bare minimum required by the regulations, Mr. Begelman scheduled Ms. G for a CE with IMA.

Notably, most of the time the “specialists” at IMA are from the wrong medical board, if they are certified at all, let alone trained in the specialty that is relevant to the claimant’s impairments.  Additionally, IMA doctors claim they do not have any records or information from the State agency about claimants, which begs the question, how do they know what exam to perform?  IMA also has signs all over their offices which state that Social Security claimants are not allowed to record their exams, yet in small print on the same sign it states that Workers’ Comp claimants are allowed.  That disparate treatment is ridiculous, and if our claimant tries to record an exam, the IMA employees cry that their HIPAA rights are being violated.  HIPAA only applies to a person’s medical information - it provides no rights, and has no relevance, to IMA staff.  Since IMA admits to allowing Workers Comp claimants to record exams in the very same offices where the SS claimants are being examined, by the very same staff, and the very same doctors, then IMA must be confessing to countless HIPPA violations.

"Let's Get Loud" Series - ALJ's

by Susan Golden

Claimant 3:  Administrative Law Judges

Mr. V applied for benefits in 2017.  He retained our service after he had applied on his own.  Mr. V. worked as a jeweler his entire professional life, well over 30 years.  He had 2 children, and was separated from his wife, but they remained friendly.  His only concern was being able to take care of his children.  He suffered from severe lower back pain and needed surgery.

On January 10, 2018, I submitted proof of dire need to the State agency.  Mr. V’s case was initially denied and a hearing was scheduled for April 12, 2019.  On January 30, 2019, three months before the scheduled hearing, I received a phone call from Mr. V’s mother that he had passed away.  She actually found him dead on the floor of their apartment.

ALJ John Carlton, at the Bronx hearing office, denied Mr. V’s claim on September 26, 2019.  It took the ALJ FIVE months to issue a decision.  We appealed the case to the Appeals Council (“AC”).  Prior to 2016, the AC remanded and even approved quite a lot of cases.  After 2016, approvals disappeared, remands are rare, and most cases are denied.  Mr. V’s claim was denied by the AC on December 9, 2019.

We appealed the case to Federal Court.  The Honorable Judge Ronnie Abrams ordered a remand for a new hearing on July 6, 2021.  The case was supposed to go back to ALJ Carlton for another hearing, but first it had to be sent back to the AC for processing from Judge Abrams.  The AC did not send it back to ALJ Carlton until January 2022.

On January 9, 2022, we received a letter from the Bronx hearing office, on behalf of the ALJ, requesting updated medical information, despite knowing that the claimant had been deceased at this point for three years.  On March 9, 2022, two months later, we received another letter from Hearing Office Director Michael E. Higgins, requesting a “current Authorization to Release Information” form.  Again, the claimant was deceased.  What is going on at this office?  The hearing was scheduled for June 8, 2022, six months after the Bronx OHO received the case, almost a year after the case was remanded by Judge Abrams, three years after the claimant passed away, and five years after he had originally applied for SSD benefits.

On September 27, 2022, almost four months after the last hearing, we sent a letter to Chief Judge Selwyn S. Walters at the Bronx OHO because ALJ Carlton had still not issued a decision.  We did not receive a response.  On December 21, 2022, SIX months after the last hearing, ALJ Carlton denied the claim again, seventeen months after Judge Abrams remand order.

After filing another appeal in Federal Court, on December 13, 2023, United States Magistrate Judge Stewart D. Aaron remanded Mr. V’s case for a new hearing.  The case was assigned to a different judge, ALJ Joani Sedaca at the New York City OHO, because ALJ Carlton had already heard the case twice.  Notably, our initial request for a hearing was May 9, 2018.  Mr. V’s third hearing has been scheduled for December 2, 2024, six and half years after the initial request, and six years since Mr. V passed away.

MS Approval

We frequently represent claimant diagnosed with multiple sclerosis (“MS”), an undeniably progressive and incurable disease.   When seeking Social Security Disability (“SSD”) benefits, our MS applications have always been approved after hearings with an administrative law judge (“ALJ”).  In other words, ALJs recognize readily these claims as meritorious.

We represent a 55 year old bookkeeper from Bayside with MS, whose SSD application was approved by ALJ Schriver without a hearing.  We were pleased that it was obviously to ALJ Schriver that our client was disabled.  The question that arises is why isn’t it ever obvious to the State agency that MS claimants are disabled, and do not need hearings to prove it.

 

 

by Susan Golden

Claimant 2:  State Agency Ineptness

Ms. A applied for SSD benefits on December 19, 2023.  She suffers from Post-Covid Syndrome.  We also represented her for Long Term Disability benefits, which was approved in two months, based on the same medical evidence that we submitted to Social Security.  By the beginning of March 2024, we had submitted to the NY State agency ("DDS"), Ms. A’s medical records and reports from eight doctors, all of whom supported Ms. A’s inability to work fulltime.  We filed even more medical support to the Agency than we typically do, because we included an Independent Medical Exam and Functional Capacity Evaluation, both of which supported her disability.

On March 5, 2024, I called Ms. Mohammad, the analyst at DDS who was assigned to Ms. A’s claim.  I advised her that we had submitted an overabundance of supportive medical evidence in a timely manner.  I purposely did this because DDS considers any medical records more than three months old to be “stale,” and they habitually sit on cases for longer than that in order to claim they don’t have recent records.

I called Ms. Mohammad again on April 3, 2024, since I had not heard back from her, and there still was no decision on Ms. A’s claim.   On May 20, 2024, I left a message for Ms. Muhammads’s supervisor, Ms. Flowers-Williams, as I had still not heard back from Ms. Muhammad.  Ms. Flowers-Williams did not return my call, but Ms. Muhammad finally did.  I told her that I could see Ms. A’s efile via the ERE system, and no work had been done on Ms. A’s case since the end of February.  Ms. Muhammad told me she would “get to it.”  Two days later, on May 22, 2024, after not looking at the file since the end of February, Ms. Muhammad told me she sent the case to the State agency in-house “doctors” for review.  As expected, Ms. A’s case was denied on May 29, 2024, six days after the “doctors” received the claim.  In other words, they reviewed 800 pages of medical records in six days.  The denial letter lists the medical sources upon which the State agency based their decision.  They ignored most of the medical evidence we submitted; not even mentioning half of the evidence we had submitted.  Unfortunately, this scenario happens all of the time, and our only recourse is to appeal.

We received a phone call from DDS last week, asking us to submit "updated" records from Ms. A's doctors.  When we asked the analyst how long she's had the case, she said since June.  So it took her almost 4 months to contact us for updated records, and completely ignored our comments on Ms. A's appeal which stated that the original records we submitted months ago were submitted in a timely manner, and they should make a decision based on those records.  We will not play their games.  DDS needs to own up to their own delays and ineptness, and make a decision based on the supporting documents.  But they will continue to drag this out, and make Ms. A must wait what will be several more months, if not years, before she gets approved.

What is the number one question that I am asked by claimants?  “How am I supposed to survive with no income while waiting for a decision?”  I have no answer for that because there is no answer!  And no one in the SSA seems to care.

SSA Slammed

By Susan Golden

As a follow up to my last blog, I am happy to report that while not in response to my letter to the Commissioner of Social Security, John Oliver took on the Social Security Administration on his Last Week Tonight with John Oliver episode on September 15, 2024.  I am glad someone is trying to help.  Thank you @LastWeekTonight.

"Let's Get Loud " Series - Payment Center Delays

by Susan Golden

About a week ago, after receiving yet another egregious denial on one of our client's cases, I decided that I needed to do something more to help our clients.  After much thought, I wrote a letter to Martin O'Malley, the Commissioner of Social Security and sent copies of the letter to Senators Gillibrand and Schumer.  I also sent a copy of the letter to the media.  I chose to give a synopsis of some of our clients' cases, each case representing a different, serious problem  within the Social Security Administration.  I wanted to make some "noise".  While our hands are tied, and we have to follow the SSA's procedures regarding appealing claims, I want to get these stories out there, and hope that someone in the government or media will hear my plea and really try to make changes within the SSA that benefits our hard working, deserving citizens.

I want to share these cases with you, while respecting the privacy of our clients.  Today I will begin with the first case in the series, Let's Get Loud.  Our client was approved for SSD benefits, 11 years after applying.  Her case highlights the problems at the payment centers, where an approved claimant's retroactive benefits are calculated and then released to the claimant.

Claimant Number 1:  Delayed Retroactive Benefits

Ms. Y was forced to stop working on December 12, 2012, due to a Protein S deficiency that causes her blood to clot, resulting in deep vein thromboses and pulmonary emboli.  Her post thrombotic syndrome produces painful leg edema, which requires her to elevate her legs as much as possible.  Ms. Y applied for benefits on October 23, 2013.  Her date last insured was December 3, 3017.  She had her first hearing on October 16, 2015.  On March 23, 2023, after Ms. Y’s case was twice reversed by federal district court and reassigned to ALJ Patrick Kilgannon, he issued a partially favorable approval of benefits as of September 12, 2017.  We appealed to Federal Court again, and received a remand solely for a calculation of benefits on December 18, 2023, for the time period from February 15, 2013 to September 12, 2017.

On May 15, 2023, I sent information to Ms. Y’s field office in Freeport, New York, advising them that Ms. Y was in a dire need situation.  She had no medical insurance, and no money, and without medical treatment, she could die.  I asked that her retroactive benefits be expedited.  It has been eleven years since Ms. Y applied for benefits, seventeen months since her first approval, and Ms. Yearby has not received a dime of her retroactive benefits.  I have been emailing the Special Appeals Federal Court Remand processing center since May 2023.  The processing centers are responsible for calculating claimants’ retroactive benefits who have had their claims approved in Federal Court or after a Federal Court remand.  Most of my emails go unanswered.  On the rare occasion I get a response after begging for one, it is the same robotic response each time, “currently our processing times are longer than normal.”

Ms. Yearby had no choice but to return to work at a substantial risk of stroke or death during 2021-2022 because she needed medical insurance.  Her doctor repeatedly confirmed that she risked her life by working.  It does NOT take seventeen months to figure out what a claimant is owed.  In fact, a year after they had the claim, the processing center asked us for Ms. Y’s pay stubs for the time period that she worked.  It took them a year to ask for that information, and then several months later they asked Ms. Y to submit Form SSA-821, Work Activity Report.  As you can see, the mishandling of this claim is horrific.  I even went to the media and contacted Kristen Thorne of ABC news.  Her attempts to contact the processing center have been futile because they did not even respond to her.

Another Seven Year Saga

A 35 year old claimant from Brooklyn with mental impairments retained us in March 2017, to apply for Social Security Disability (“SSD”) benefits.  We successfully went to federal court twice to get the administrative law judge (“ALJ”) reversed.  The second reversal ordered that the case be reassigned to a new ALJ.

On remand, the new ALJ accepted the opinions of the treating psychiatrists, and found the claimant was entitled to SSD benefits since 2016.  It took five administrative hearings, two protracted federal court appeals, and over seven years, but the claimant finally obtained the outcome she desired.

This case was not a difficult case to approve as evidenced by the final decision.  The decision was based on the same medical evidence that had been submitted five years ago.  If the SSA wasn't fraught with analysts and adjudicators who are lazy and incompetent, and if so many of the SSA's rules and regulations weren't so outdated and nonsensical, then this case would have been approved seven years ago.

We don't give up on our clients if they have a medical problem with doctors who support their case and are willing to help.  We truly care about our clients, and in many cases, such as this one, form a special bond with them.  If you want an experienced disability attorney who is going to fight for you, please call our Melville, Long Island office for a free phone consultation.

 

 

Non-Medical Evidence

We represent a 61 year old from Mount Vernon with physical impairments.  The administrative law judge (“ALJ”) held a hearing today, which made it clear that Social Security Disability (“SSD”) benefits would be approved. The approval was expected given the impact of a new regulation.

The claimant’s past relevant work (“PRW”) had consisted of three occupations during the previous 15 years: Customer Care Representative (“CCR”), which was sedentary work, Medical Clerk and Ward Clerk, which were light occupations.  However, under the revised regulation, PRW is now limited to the past five years, which made CCR no longer relevant.  The State agency found Ms. Thomas not disabled because she could perform her past sedentary work as a CCR.

Under the Grid rules, the claimant had to be found disabled if she had no acquired skills from her PRW as a Medical Clerk or Ward Clerk that could transfer to sedentary occupations.  Before the hearing, I supplied the ALJ with various federal court decisions where vocational experts (“VEs”) testified the Medical Clerk and Ward Clerk occupations did not provide any transferable skills.  Thus, even accepting the State agency doctor’s opinion that the claimant could do sedentary work, a finding of disabled was required.

The hearing was relatively short.  ALJ posed a hypothetical to the VE, who concluded the claimant was unable to perform her PRW.  And because the ALJ accepted the treating opinions that the claimant could not even perform sedentary work, transferability was not even an issue.  Consequently, the claimant had to be found disabled.

Every claimant's case is different.  There are many factors that Social Security takes into consideration when deciding whether or not a person is unable to work a fulltime job, which is Social Security's definition of being disabled.  The person's age, past work history, and medical problems are just to name a few.  So while it may seem obvious to someone that they are disabled and cannot work,  it is not so clear cut to Social Security.  In this case, it was non-medical evidence based on the claimant's PRW and Grid rules that we focused on, which is the evidence the ALJ based his approval upon.  Our client put her trust in us, and together, we obtained the information necessary to get her SSD benefits approved.  Please call our office, if you are thinking of applying for SSD, for a free phone consultation.  Our office is conveniently located on the border of Nassau and Suffolk counties on Long Island.

LTD Approvals

We just received approvals from MetLife, New York Life, and Lincoln Life on three long term disability (“LTD”) applications.  While the approvals involved different insurers and impairments, the applications were similar in their preparation.  Our approach has been called gilding the lily, but our results speak for themselves.

LTD applications almost invariably consist of three parts:  forms for the claimant, the employer, and the treating doctor.  If only those three forms are returned, then the insurer is almost guaranteed to insist on receiving more information before approving.  When we submit an LTD application it is usually is accompanied by objective diagnostic testing and clinical records, witness statements, medical treatise data, functional assessments, and vocational reports.

Most employers establish LTD plans by buying an insurance policy.  Because that insurance company is liable for paying any claims, that is a conflict of interest  results in denials of valid claims.  To be profitable, the insurer must have a liability acceptance rate (“LAR”) where it takes in more premiums than it pays out in claims.  When the LAR is too high, insurers deny more claims, regardless of the merits.

By providing more evidence compared to other applicants, insurers take the path of least resistance, and target other claimants for denial or termination.   Don't let the insurance company fool you by pretending to care, and to be your friend.   All they care about is making money.

Please feel free to call our office for a free phone consultation.  We have helped thousands of individuals obtain long term disability benefits under individual and group policies from many insurance companies, including Unum, Prudential, Reliance, The Standard, Guardian, and Metropolitan Life, to name a few.

 

RCPD

Retrograde cricopharyngeal dysfunction (“RCPD”) is  lifelong condition, where a dysfunctional cricopharyngeus muscle causes an inability to burp, causing in excess gas and discomfort in the chest or throat.  The symptoms include stomach, chest or throat pain, loud gurgling noises, bloating, nausea, and excessive gas.

RCPD is an objectively demonstrable physical impairment.  However, according to the Yale School of Medicine, RCPD symptoms can make social interactions embarrassing, resulting in people experiencing social anxiety.

We represent a 54 year old credit card clerk with RCPD from Massapequa, whose Social Security Disability (“SSD”) benefit application was approved today by an Administrative Law Judge (“ALJ”).  Because the claimant’s mental health providers would not provide their records, or a summary report, we arranged for a psychologist who frequently works for Social Security to evaluate the claimant.  While the ALJ believed the RCPD probably precluded sedentary work, the ALJ determined that the claimant was even more impaired mentally.

Simply submitting medical records is not enough to get an approval for SSD benefits, which is why it is highly recommended to retain an experienced disability attorney to represent you.  Please call our Melville, Long Island office for a free phone consultation.

Disabled Adult Child Benefits

Most people are unaware that there are special situations where a "child" over the age of 21, who is disabled, can apply for Social Security Disability ("SSD") benefits under one of their parents' social security record ("SSR").  One of the parents must be receiving SSD benefits, Social Security Retirement benefits, or have passed away.   Thus, a person over 22 years of age, who did not have enough work history to apply on their own SSR, can apply on a parent's SSR.

We represent a 22 year old client from Bethpage, New York with mental impairments, who lacked sufficient work credits to apply on his own SSR for SSD benefits.  He would have had to apply for Supplemental Security Income ("SSI"), and his monthly benefit would have been much lower.  Moreover, since he lived with his mother he may not have even qualified for SSI benefits.

When he first contacted us, we asked him if either of his parents received SSD benefits.  Because he advised us that his mother was receiving SSD benefits, we were able to apply for his SSD benefits under his mother's SSR.

We received a fully favorable decision from ALJ Tirrell, after supplying medical records that he requested in addition to the medical evidence we had already submitted.

This is another example of why you should retain an experienced disability attorney if you plan on applying for SSD.  Our office, located in Melville, Long Island, offers a free phone consultation.

Multiple Sclerosis

Multiple Sclerosis (“MS”) is a disabling disease because of its symptoms.  Merely having objective evidence for the diagnosis is insufficient to secure disability benefits.

We represent a 32 year old with MS from Bethpage who worked as a teacher.  The MS diagnosis was never challenged, but the State agency denied Social Security Disability (“SSD”) benefits.  We obtained reports from the claimant’s neurologist, internist, pain management specialist, and chiropractor explaining why the claimant’s symptoms interfered with her ability to work consistently.  Based on those reports, the administrative law judge (“ALJ”) agreed that the claimant would be off task at least 21% of the time.  Then, based on the testimony of the vocational expert, the ALJ determined the claimant was disabled.

You cannot assume that you will get approved for disability based on a medical diagnosis.  It’s important to know what information, beyond a diagnosis and medical records, would be needed to have your claim approved.  This is why we always recommend hiring an experienced disability attorney to represent you for your SSD claim.  Our office, located on Long Island, offers a free phone consultation.  Please call us if you want to apply for disability and we will discuss your options with you.

Headaches

Disability adjudicators are skeptical about approving claims for headaches because the pain cannot be seen, and there is no diagnostic test for them.  However, if a cause for the headaches can be objectively established, then the benefits should be approved.

We represent a 55 year old administrative clerk from Wantagh with pseudotumor cerebri.  Pseudotumor cerebri is a somewhat rare condition that causes increased pressure inside the skull.  As the pressure increases, so do a person’s headaches.  In preparation for a hearing with an administrative law judge (“ALJ”), we submitted medical treatise information identifying the symptoms of pseudotumor cerebri, and detailed reports from the treating neurologist, which explained the genesis and severity of the resulting headaches.

The ALJ issued a fully favorable decision, awarding the claimant Social Security Disability ("SSD") benefits.   Our client is overjoyed, and thankful that she retained us.  We highly recommend retaining an experienced disability attorney if you are applying for SSD benefits.  Call our office for a free phone consultations.  We are conveniently located on Long Island in Melville.

Transferable Skills

The number of on-the-record (“OTR”) approvals has decreased over the years, due in large part to the elimination of the treating physician rule allowance rate has correspondingly decreased.  Nonetheless, when the vocational facts align with the medical evidence, an OTR should be sought.

We represent a 58 year old from Port Jefferson Station with sleep apnea, cardiovascular and orthopedic impairments that stopped him from working in law enforcement.  During a hearing with an ALJ from Connecticut, a vocational witness (“VW”) testified that the claimant’s past work was light and had no transferable skills.

The claimant’s pulmonologists confirmed that Mr. Kline met the criteria of listing 3.02 A and B, based on an FVC of 1.68 and an FEV of 1.12.  The claimant’s pulmonary function testing revealed “severe restriction/obstruction.”

After the case was transferred back to the Long Island hearing office, the physicians treating the claimant’s musculoskeletal impairments and obstructive sleep apnea concluded the claimant could not even perform sedentary work.  Moreover, the VW had testified that leg elevation would preclude all work, and the claimant’s orthopedist stressed the importance for the claimant to elevate his legs.

In light of the above, we submitted a request for an OTR.  Even if the claimant did not meet a listing, his less than sedentary work capacity would require finding him disabled.  Furthermore, even if the claimant did not meet a listing, and did not have a less than sedentary work capacity, his need to elevate his legs would require finding him disabled.  Additionally, even if the claimant did not meet a listing, and did not have a less than sedentary work capacity, and did not need to elevate his legs, and had light work capacity, then the medical-vocational rules would require finding him disabled.  The ALJ approved canceled the hearing, and approved the OTR.

 

OTR Approved

The number of on-the-record (“OTR”) approvals has decreased over the years, due in large part to the elimination of the treating physician rule allowance rate has correspondingly decreased.  Nonetheless, when the vocational facts align with the medical evidence, an OTR should be sought.

We represent a 58 year old from Port Jefferson Station with sleep apnea, cardiovascular and orthopedic impairments that stopped him from working in law enforcement.  During a hearing with an ALJ from Connecticut, a vocational witness (“VW”) testified that the claimant’s past work was light and had no transferable skills.

The claimant’s pulmonologists confirmed that the claimant met the criteria of listing 3.02 A and B, based on an FVC of 1.68 and an FEV of 1.12.  The claimant’s pulmonary function testing revealed “severe restriction/obstruction.”

After the case was transferred back to the Long Island hearing office, the physicians treating the claimant’s musculoskeletal impairments and obstructive sleep apnea concluded the claimant could not even perform sedentary work.  Moreover, the VW had testified that leg elevation would preclude all work, and the claimant’s orthopedist stressed the importance for the claimant to elevate his legs.

In light of the above, we submitted a request for an OTR.  Even if the claimant did not meet a listing, his less than sedentary work capacity would require finding him disabled.  Furthermore, even if the claimant did not meet a listing, and did not have a less than sedentary work capacity, his need to elevate his legs would require finding him disabled.  Additionally, even if the claimant did not meet a listing, and did not have a less than sedentary work capacity, and did not need to elevate his legs, and had light work capacity, then the medical-vocational rules would require finding him disabled.  The ALJ approved canceled the hearing, and approved the OTR.

 

LTD Approvals

We obtained reversals of a long term disability (“LTD”) denial and a termination this week from Hartford and Lincoln.  What they had in common was submitting overwhelming objective and subjective medical and vocational evidence.  We advised each client in advance that the reports, records, tests, and letters we needed might seem like gilding the lily to them, but our track record for successfully securing LTD benefits speaks for itself.

Consultative Exams ("CEs") and the State agency ("DDS")

I get more questions about CEs than any other topic.  DDS schedules CEs before they even request records from the claimant's treating doctors, who according to Social Security's own rules are the "preferred source" for medical information.

I represent a 48 year old Medical Assistant from Bay Shore whose impairments cause suffering from debilitating pain.  The DDS representative handling the case told my office that this was a very strong case, with an overabundance of medical evidence.  Nonetheless, the representative still denied Social Security Disability ("SSD") benefits solely because the claimant did not attend a CE.

My client was approved today at her hearing.  The ALJ acknowledged all of the supporting objecting evidence I obtained from the claimant's treating doctors, which included MRI's, scans and other objective test results.  The ALJ found the claimant's testimony to be credible, consistent with the treatment provided, and the treating doctors' opinions to be persuasive.  The fact that the claimant did not attend a CE was not even mentioned.

DDS continues to practice the boondoggle policy of scheduling needless CEs for claimants.  The CE gives DDS the excuse to ignore the large amounts of medical information in the file, and deny the claim based on the vague CE opinions, which the federal courts uniformly deride.  CEs delay benefits as they force claimants to defend themselves against the typically fraudulent exams those doctors perform.

My client is extremely happy that she retained an experienced disability attorney who was able to obtain a favorable outcome for her, rather than trying to take on Social Security by herself. Please call my office for a free phone consultation if you are thinking about applying for SSD benefits.  My office is conveniently located in Melville, Long Island.

 

 

MS

The disabling effects of MS when it attacks the brain, spinal cord, and optic nerves is well known. Nonetheless, while the overwhelming fatigue, pain, numbness, and poor coordination that results from MS have not changed, the Social Security Administration (“SSA”) made it near impossible to meet the listing for MS. Therefore, obtaining Social Security Disability (“SSD”) benefits for MS depends on demonstrating that its functional limitations preclude being able to work, just as is true for most medical impairments.

I represent a 38 year old from Whitestone with MS who worked as a food service manager. The MS diagnosis was never questioned. However, the State agency denied her SSD application because it refused to believe that the claimant’s symptoms were severe enough to preclude her from working on a full time basis.

We obtained a report from the treating physical therapist detailing the claimant’s functional limitations. But the State agency denied the claim. We then submitted a report from the treating neurologist that corroborated the claimant’s functional limitations, yet the claim still was denied. Only after filing a report from the surgeon treating the claimant’s cervical and lumbar spine disorders, which concurred with the limitations assessed by the physical therapist and neurologist, were SSD benefits approved.

With the elimination of a meaningful listing, it took 11 months to get SSD benefits approved. While that may seem quick since it takes many SSD applicants years to secure approval, the application justified approval much sooner.

It is always in your best interest to retain an experienced disability attorney if you plan on applying for SSD. Please call our Melville office for a free phone consultation.

SSA Backlogs

We received the email below, from the Social Security Administration, notifying us that due to the backlog of initial disability claims, the wait time for a disability determination has increased from 90-120 day to 200-230 days. 

Dear Colleague, In the past, the notice sent to claimants when we  receive disability internet claims submitted by a third-party stated that claimants would receive a  disability determination within 90-120 days. However, due to the backlog of initial disability  claims, it has been taking an average of 200-230 days  for claimants to receive a disability determination. We understand this may be confusing to claimants  and can result in unnecessary calls to our offices.  To provide better expectations for when a claimant  should expect to receive a decision, we have updated  the notice to reflect the current timeframe of 200-230  days.We continue to review and update our notices to  ensure they are clear and accurate. This is the first  change with more expected to come. We appreciate your continued support. Sincerely, Dawn Bystry Associate Commissioner Office of Strategic and Digital Communications

DDS Disrespect

After we receive a favorable decision for a client, our representation ends.  But many of our clients are subject to reviews by the  Social Security Administration ("SSA").  The timeframe of the review varies for each individual client, dependent on an ALJ's recommendation upon approving a claim.  The time frame for the review can be anywhere from 12 months to 3 years from the decision.  We always advise our clients to continue treatment with their doctors, because if they don't, then the SSA will interpret that to mean they have improved and are no longer disabled.

We periodically receive phone calls from former clients, advising us that they are being reviewed.  Even though we no longer represent them, we do try to help them through the process.

We received a phone call from a former client, who was under review.  He suffers from severe anxiety and agoraphobia.  He told us that he had received a letter notifying him that he needed to attend a Consultative Exam.  We recommended that he call his doctors and ask them if they had received a request from the State agency for updated records, and if they had, to make sure they sent the requested records back to the State agency as soon as possible.  When he spoke to his doctors, they had not received a request from the State agency for their records.  We told our client to call the analyst at the State agency, who was handling his case, and ask her why she was sending him for a CE when she hadn't even requested records from his doctors.  His doctors were more than happy to cooperate.

Our client called us to let us know that he had spoken to the analyst.  He told us that the analyst was extremely rude to him, and made him feel like he had done something wrong.  All this did was make someone with extreme anxiety even more anxious.  This is not the first time, nor will it be the last, that we've been told by a client that they've been treated like this by an employee of the SSA.

We advised our client to call the analyst's supervisor to report this analyst.  No one deserves to be treated with such disrespect.  It's one thing when it's directed at us, we are used to it, but it is completely unacceptable for a State agency analyst, or any SSA employee, to speak to a claimant in such a manner.

Our client reached the supervisor who brushed off his complaint about the analyst's behavior towards him, but the supervisor did  advise him that they had received the records from his doctors and he did not have to attend the CE.  If the analyst had done her job properly from the beginning, our client would not have been thrown into a state of severe anxiety.

If you find yourself in a situation such as this, don't be afraid to contact a supervisor and report the behavior of the analyst or the SSA employee who has treated you this way.  Don't be afraid to advocate for yourself.  You have been approved for disability.  If you are still disabled and have not improved since you were approved for SSD, then your doctors' records will support that.

 

IMA Disability

I used to surmise that the State agency has an unwritten regulation that requires it to insist that every Social Security Disability (“SSD”) claimant attend a consultative examination (“CE”).  I have to come realize that because the State agency examiners and medical consultants are too lazy or too busy to read the claimants’ file, they disregard all the medical evidence in the file, and simply rubberstamp whatever CE concludes.  Therefore, the State agency sends letters to claimants requiring them to attend CEs by IMA.

When attending CEs, we have our clients confirm that the IMA doctors do not review any medical records.  Thus, the State agency does in fact ignore all the medical evidence in claimants’ files other than the CE report.

We represent a 60 year old teacher assistant from Brooklyn with physical and mental impairments.  The State agency sent a letter to the claimant to attend two, not one, IMA CEs.  I sent a letter asking the State agency to explain how the scheduled CEs complied with the regulations.  I never received a response to my letter, but a couple of weeks later, the State agency notified us that the claimant’s  SSD application was approved.

Before we agree to represent our clients, we always emphasize how important it is for them to speak with their doctors to confirm they will support the client's inability to work full time.  As soon as we file an application for SSD benefits, we request the client's medical records, and submit them as soon as possible after obtaining them.

 

 

 

VE Rebuttal

A Washington Post article from last year unveiled how administrative law judges (“ALJs”) rely on patently erroneous and obsolete occupational information to deny Social Security Disability (“SSD”) applications.  ALJs asked Larry Underwood to serve as a vocational expert (“VE”) for a quarter century.  Mr. Underwood told the Washington Post that:

"I realized that a lot of vocational experts, including myself, have been giving false testimony for years...The numbers are no accurate.  I decided I can't do that anymore."

Since Social Security has neglected to state what special knowledge, experience, or training is required to qualify as a VE, a VE is more accurately denominated as vocational witness (“VW”).  Despite the fact that a proper cross examination of a VW will reveal that their responses to an ALJ are unsupportable, most ALJ’s accept the VW’s testimony anyway in order to deny SSD benefits.  When it appears that an ALJ will disregard testimony during cross examination of a VW, the claimant should retain a truly independent VW to rebut the Social Security VW.

I represent a 36 year old from East Northport with numerous orthopedic impairments, who had worked as a police officer.  The VW testified that the claimant could perform occupations that courts have ruled are obsolete.  Nonetheless, the ALJ was prepared to accept the VW’s testimony, but my cross examination of the VW could not be completed due to time constraints.  The ALJ stated that he would schedule a supplemental hearing, but I could submit a brief instead to expedite a decision.

I submitted a vocational report from an independent VW, which supported my arguments about that the occupations the Social Security VW had cited were obsolete.  Today, a week before the hearing, the ALJ agreed, and issued a fully favorable OTR.

My claimant is so grateful that I was able to obtain the OTR, and that she did not have to wait for another hearing.  It is important if you plan on applying for SSD, that you retain a disability attorney, like myself, who has years of experience working with Social Security, and knows the system inside and out.

My office offers phone consultations for anyone thinking of applying, or has already applied, for SSD.

 

 

Inexcusable SSD Delay

 We represent a 55 year old police officer from Spring Gardens with metastatic multiple myeloma.  We immediately submitted proof that the claimant’s medical condition met the listed criteria of 13.07(A), and sought expedited review of the Social Security Disability (“SSD”) application.  Nonetheless, the State agency doctors denied the application twice.

It took nearly two years before the claimant received a hearing.  To matters even worse, Social Security transferred the hearing from Queens to Manhattan.  As a result, the claimant was deprived of an in-person hearing because due to his medical condition he could not travel the distance.

At the hearing, the Administrative Law Judge (“ALJ”) threatened that if the claimant refused to accept an amended onset date (“AOD”), the ALJ would schedule another hearing with a medical expert (“ME”), and the ALJ said it was unlikely that the ME would find the claimant still met a listing.  The ALJ then directed me to discuss the AOD with the claimant in private.

The claimant said he could not afford to wait for another hearing.  When the ALJ returned, I pointed out how the evidence supported the AOD, such as his leg bone snapping in half from simply standing on it.  Nonetheless, the ALJ gave the claimant a take it or leave it ultimatum, which I said the claimant had to accept.

When I proceeded to explain that the ALJ was doing the claimant a disservice, the ALJ insisted that he doubted there was any basis to support the claimant currently being disabled.  The ALJ then proceeded to question the claimant, and was shocked to learn that the claimant’s cancer was not in remission, had metastasized, and had to leave his home in 10 minutes to get chemotherapy.  The ALJ sheepishly expressed his sorrow.

The ALJ approved the claimant’s SSD benefits with the AOD today, close to two years after the application was filed.  There was absolutely no justification for the delay, or the ALJ’s threat to further the delays by scheduling another hearing.Inexcusable SSD Delay

Federal Court Remand Again

In probably the most scathing Social Security decision that I have ever read, U.S. District Court Judge Brown remanded our client’s case, and ordered that it be assigned to a new Administrative Law Judge (“ALJ”).  The full opinion can be downloaded from the Court Decisions drop down menu on my website’s Resources tab.

This is the second time that the claimant’s case has been remanded.  The first time, U.S. District Judge Azrack remanded it.  In that first lawsuit, Judge Brown said that Social Security was “ably represented by an Assistant United States Attorney,” because he conceded that “ALJ Weiss’ decision was indefensible.”

Judge Brown found that ALJ Weiss essentially repeated the same errors of law and added some further problems.  Regarding the vocational evidence, Judge Brown determined that ALJ Weiss: “gravely misstate[d] the record; ”ignored the testimony he elicited and determined—based on illusory findings—that the plaintiff could” work; and “fatuously” added the claimant could climb ladders.

Regarding the medical evidence, Judge Brown stated that “blatant mishandling of vocational expert information pales in comparison to ALJ Weiss’s failure to consider the Court’s directives in connection with medical expert testimony.”  Specifically, Judge Brown stated that, “Undeterred by the concession of error by the Commissioner and Judge Azrack’s express findings, ALJ Weiss, once again, bases his determination in some measure on the non-existent opinion provided by the apparently non-existent (in this case) Dr. Golub.”  Judge Brown added that ALJ Weiss, “through thinly-veiled machinations,” disregarded the claimant’s evidence.

Judge Brown also excoriated the legal representation provided by Social Security’s Office of the General Counsel (the “OGC”):

“The slapdash nature of the review provided by ALJ Weiss—in which he misidentified the purportedly critical medical expert witness and continued to rely on that “opinion” despite Judge Azrack’s rejection of the same—is echoed in the quality of the representation of the Commissioner on this appeal. For example, in its papers, counsel for the Commissioner repeatedly uses the wrong pronouns to refer to the plaintiff. Such scrivener’s errors could be simple mistakes, but may also reflect a careless, cut-and-paste creation of filings.”

Judge Brown then added:

“What’s more troubling, however, is the failure of counsel to exercise reasoned discretion in this case. During the first review of this case before Judge Azrack, the Commissioner was represented by an Assistant U.S. Attorney for this district, who exercised the good sense and judgment to concede error as to ALJ Weiss’s mistakes. Here, the record is inarguably worse, as rather than correct the errors identified by Judge Azrack, ALJ Weiss perpetuated and compounded the mistakes. And yet, substitute counsel for the Commissioner, a cross-designated agency attorney, refused to acknowledge any error.  Instead, in the filings, the Commissioner has the temerity to request that this Court conduct ‘a searching review of the record’ to correct the “the absence of an express discussion by the ALJ” of relevant factors.”

After attacking the particular OGC attorney who defended Social security in this case, Judge Brown criticized the quality of OGC representation in general:

“This Court has observed that, in at least certain instances, cross-designated agency counsel have repeatedly and unapologetically taken indefensible positions in social security disability cases, even in the face of judicial criticism.”

We have been representing the claimant for over a decade, and will continue to do so.   We have maintained from the day that we filed her application that she should be approved for SSD benefits.  We have no doubt that we will be successful.

 

IMA

The Social Security regulations identify the limited circumstances when a person seeking Social Security Disability (“SSD”) benefits should be sent for a consultative examination (“CE”).  However, upon receiving an SSD application, the knee jerk reaction of our State agency is to tell a claimant they must go to Industrial Medicine Associates (“IMA”) for a CE by an unnamed person, for an unspecified reason.

One of our former clients, an insurance representative from Brookhaven, came back to us after a continuing disability review (“CDR”) resulted in her SSD benefits being terminated.  When we appealed, the State agency sent the usual demand for a CE by IMA.  We explained why the CE would be inappropriate, and the State agency specified what additional medical information was needed, which we supplied from the claimant’s specialists.  Shortly thereafter, the claimant’s SSD benefits were reinstated.

Even though our client had not needed our services for over 10 years, she knew she could contact us to help her again, and was confident that we could get her benefits reinstated.    Needless to say, she is very happy and grateful that we were able to help her again.

Unconscionable DDS Delays

 by Susan Golden

There used to be a time, years ago, when it seemed like the State agency representatives actually did their jobs.  Now those representatives, including supervisors, are far and few between.

We represent a 59 year old videographer from Floral Park, who suffers from severe arthritis in both of his hips, as well as severe anxiety and depression. We filed his application for Social Security Disability ("SSD") benefits in October of 2022.  In January of 2023, we alerted Social Security that our claimant was in dire financial need, and was in danger of losing his home.  If someone is at risk of being homeless, or having their utilities turned off, Social Security is supposed to expedite the claim.  When the application is dire need, instead of the usual 6-7 months to make a decision, Social Security is obligated to prioritize the claim, and make a decision as quickly as possible.

It took more than a year before our claimant's SSD application was finally approved.  It is absolutely horrific that a claim that was supposed to be expedited, was not a priority to anyone at the Stage agency; not to the analyst handling the claim, not to the analyst’s supervisor, not to the supervisor’s supervisor.  We did our job by providing the State agency with all of the medical and vocational evidence necessary to make a quick decision.  They simply did not do their job.

We have access to the claimant’s efile, just as the analysts at the State agency do.  We upload the evidence electronically into the efile, and can view that evidence just as the analyst and supervisor's handling the claim can.  However, the State agency analysts let cases sit in limbo for months, and then claim that the medical evidence we submitted, which was timely when we submitted it, is “stale” or “not current enough.”   The State agency told us that they consider any records more than three months old to be “stale.”   However, they fail to return our calls.  When they finally do call us, they claim they cannot see the evidence we submitted, even though we can see it in the same efile.  Alternatively, they purposely delay returning our calls, and/or responding to our letters, for over three months so they can claim the evidence is too old.  It is a vicious cycle, with no consequences or repercussion for their intentional mishandling of disability claims.

In this case, we submitted a letter four times from the claimant’s landlord that the claimant was in danger of being evicted for not paying his rent.  The first letter was submitted in January of 2023, a year ago.  We submitted letters from the claimant's utility companies that his water and electricity were being turned off.  We repeatedly escalated the matter, calling supervisor after supervisor, going up the ladder, trying to find someone who would do something!  Even after we reached a supervisor who seemed willing to help, it still took another month for our claimant's SSD benefits to be approved.

Our claimant is very appreciative that we fought for him and were successful in obtaining his SSD benefits.  We will continue to fight for our clients, and hope that we can put pressure on Social Security to change their broken, outdated system, and hire people who actually care about doing their job.

Transferable Skills

 There are two parts to every disability benefit claim – the medical evidence and the vocational evidence. It literally can pay to know the vocational rules when seeking Social Security Disability (“SSD”) benefits.

We represent a 55 year old automobile mechanic from Centerport, who had a stroke.  The Social Security rules classify a 55 year old as a person of advanced age.  The vocational rules were outcome determinative in his case because the claimant lacked transferable skills.

Transferability refers to acquired work skills, not to aptitudes and attributes that are more properly characterized as qualities necessary and useful in nearly all jobs.  An automobile mechanic is classified as skilled medium work.  The case law has repeatedly reported testimony from vocational experts that an automobile mechanic does not have any transferable skills.

The claimant was a high school graduate.  Under the Grid Rules, a person of advanced age, who is a high school graduate, with no transferable skills, must be found disabled even if capable of performing the physical demands of light work.

The treating neurologist limited the claimant to sitting for 8 hours, and standing/walking for 4 hours, in an 8 hour day, and occasionally lifting up to 9 pounds.  As that opinion was supported with a brain MRI that confirmed chronic infarcts with multiple intercranial stenosis, the Administrative Law Judge accepted the opinion.  Since the claimant could not lift 20 pounds, not stand and walk for 6 out of 8 hours, he could not perform light work.   Therefore, he was found disabled under the Grid rules.

It is important to retain an experienced, disability attorney who has extensive knowledge about Social Security's rules, both medical and vocational.   If you or someone you know is considering applying for SSD benefits, please call our office for a free phone consultation.  Our offices are located on Long Island in both Nassau and Suffolk counties.