It is not unusual for a Social Security Disability claimant to have to wait two years before an Administrative Law Judge (“ALJ”) hears the case. One way the Social Security Administration is trying to reduce the backlog is the Senior Attorney Adjudicator program. The purpose of the initiative is to allow certain attorney advisors to issue fully favorable on-the-record (“OTR”) decisions to expedite the decisions, and conserve ALJ resources for the more complex cases and cases that require a hearing.
The chances of having an OTR approved, which at many hearing offices is now the province of Senior Attorney Adjudicators, is by explaining why the decision is not a complicated one that requires a hearing. This can be accomplished by showing that the application must be approved because the claimant meets a Medical-Vocational rule that requires a finding of disability. I received a fully favorable OTR decision today from a Senior Attorney Adjudicator that illustrates this point.
I represent a 53 year old former elementary school crossing guard, which is light, unskilled work, with an 8th grade education. A Medical-Vocational rule requires finding such a person disabled, even if they are capable of performing sedentary work. In other words, the medical evidence would have to show that the claimant is capable of performing at least light work, which among other things, requires the ability to lift up to 20 pounds occasionally and 10 pounds frequently, and stand or walk for 6 hours during an 8-hour workday. Citing evidence that indicated the claimant could not even do full time sedentary work made it an uncomplicated case.
Saturday, July 25, 2009
Thursday, July 23, 2009
Medical Improvement
Statistics from the Social Security Administration show that some Administrative Law Judges (“ALJs”) have a significantly lower approval rate than other ALJs. ALJ Seymour Fier only had an approval rate of 33% for 2008, which is less than half that of other ALJs, including those at the same hearing office. Just because ALJ Fier labels his decision "fully favorable," doesn't mean that it actually is.
ALJ Fier issued a fully favorable decision to a clothing salesman who was 48 years old when he became disabled due to very severe asthma and cardiovascular disease. At the hearing, the ALJ had the medical expert (“ME”) testify before the claimant, and the ME concluded the claimant could not do sedentary work. When I stated that I only had a few questions for the ME because he could confirm that the claimant met two of the listings for pulmonary impairments, the ALJ stated that it was not necessary in light of the ME’s testimony.
The ALJ’s “fully favorable” decision states that the claimant should be re-evaluated in 24 months because "medical improvement is expected." None of the medical evidence supports that statement. To the contrary, the treating doctors stated that the claimant’s conditions are permanent and progressive. While there is no doubt that the claimant’s condition will continue to deteriorate, the issue of medical improvement should not have been an issue if the ME had been allowed to testify regarding the claimant meeting a pulmonary listing.
ALJ Fier issued a fully favorable decision to a clothing salesman who was 48 years old when he became disabled due to very severe asthma and cardiovascular disease. At the hearing, the ALJ had the medical expert (“ME”) testify before the claimant, and the ME concluded the claimant could not do sedentary work. When I stated that I only had a few questions for the ME because he could confirm that the claimant met two of the listings for pulmonary impairments, the ALJ stated that it was not necessary in light of the ME’s testimony.
The ALJ’s “fully favorable” decision states that the claimant should be re-evaluated in 24 months because "medical improvement is expected." None of the medical evidence supports that statement. To the contrary, the treating doctors stated that the claimant’s conditions are permanent and progressive. While there is no doubt that the claimant’s condition will continue to deteriorate, the issue of medical improvement should not have been an issue if the ME had been allowed to testify regarding the claimant meeting a pulmonary listing.
Friday, July 17, 2009
Fibromyalgia
Disability benefits adjudicators are averse to approving claims based upon fibromyalgia. Fibromyalgia claims are frequently denied for allegedly lacking objective evidence. I represent a 37 year old banker with fibromyalgia whose application for Social Security Disability (“SSD”) benefits was approved in only three months.
To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted functionality assessments from two rheumatologists and an infectious disease specialist. Based upon their examinations and review of the medical records, each specialist concluded the claimant was unable to do sedentary work on a full time basis.
The rheumatologists’ opinions are particularly important because the only accepted standard for diagnosing fibromyalgia is the criteria from the American College of Rheumatology (the “ACR”). The rheumatologists specified that their diagnosis and opinions regarding the severity of the claimant’ fibromyalgia was based on strict adherence to the ACR criteria. All three specialists explained why the claimant’s fibromyalgia was severe enough to preclude her from working, and those opinions were buttressed by a report that a vocational consultant prepared.
Fibromyalgia claims not only need longitudinal treatment records showing complaints and diagnoses of fibromyalgia, but also multiple expert opinions regarding the severity of the claimant’s condition to have any chance of being approved.
To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted functionality assessments from two rheumatologists and an infectious disease specialist. Based upon their examinations and review of the medical records, each specialist concluded the claimant was unable to do sedentary work on a full time basis.
The rheumatologists’ opinions are particularly important because the only accepted standard for diagnosing fibromyalgia is the criteria from the American College of Rheumatology (the “ACR”). The rheumatologists specified that their diagnosis and opinions regarding the severity of the claimant’ fibromyalgia was based on strict adherence to the ACR criteria. All three specialists explained why the claimant’s fibromyalgia was severe enough to preclude her from working, and those opinions were buttressed by a report that a vocational consultant prepared.
Fibromyalgia claims not only need longitudinal treatment records showing complaints and diagnoses of fibromyalgia, but also multiple expert opinions regarding the severity of the claimant’s condition to have any chance of being approved.
Monday, June 29, 2009
Chronic Fatigue Syndrome (CFS)
The Social Security Administration (the “SSA”), which denies a majority of disability claims initially, has a particularly difficult time approving CFS claims. In fact, the SSA had to issue a Ruling specifically addressing how CFS claims need to be evaluated, known as 99-2p.
I represent a 58 year old medical laboratory technologist who stopped working because of CFS. Her request for a fully favorable decision on the record was just approved, which means that she will receive her Social Security Disability (“SSD”) benefits without having to wait for a hearing.
I attribute the approval to two things. First, I obtained a detailed narrative from the claimant’s infectious disease specialist, Dr. Susan Levine. CFS is a diagnosis through exclusion, and frequently involves overlapping medical conditions. Dr. Levine’s report explained how the claimant’s complex and disparate medical findings supported the CFS diagnosis and functional limitations.
Second, and more importantly, in the absence of diagnostic testing for CFS, the claimant’s credibility is especially important. I provided legal precedents explaining why the claimant’s 35 year work history required a presumption of credibility. Moreover, I obtained medical assessments from four other treating physicians who corroborated Dr. Levine’s opinion that the claimant could not do sedentary work. In light of the five supporting medical opinions, the Administrative Law Judge who approved the case rejected the opinion of the SSA disability analyst who said the claimant could work.
When seeking SSD benefits based on CFS, a claimant should attempt to submit both a narrative report that provides a detailed explanation for the diagnosis, and multiple functional assessments.
I represent a 58 year old medical laboratory technologist who stopped working because of CFS. Her request for a fully favorable decision on the record was just approved, which means that she will receive her Social Security Disability (“SSD”) benefits without having to wait for a hearing.
I attribute the approval to two things. First, I obtained a detailed narrative from the claimant’s infectious disease specialist, Dr. Susan Levine. CFS is a diagnosis through exclusion, and frequently involves overlapping medical conditions. Dr. Levine’s report explained how the claimant’s complex and disparate medical findings supported the CFS diagnosis and functional limitations.
Second, and more importantly, in the absence of diagnostic testing for CFS, the claimant’s credibility is especially important. I provided legal precedents explaining why the claimant’s 35 year work history required a presumption of credibility. Moreover, I obtained medical assessments from four other treating physicians who corroborated Dr. Levine’s opinion that the claimant could not do sedentary work. In light of the five supporting medical opinions, the Administrative Law Judge who approved the case rejected the opinion of the SSA disability analyst who said the claimant could work.
When seeking SSD benefits based on CFS, a claimant should attempt to submit both a narrative report that provides a detailed explanation for the diagnosis, and multiple functional assessments.
Thursday, June 25, 2009
Dictionary of Occupational Titles
Applications for Social Security Disability (“SSD”) benefits require providing work history information. When I submit SSD applications, I provide the Dictionary of Occupations Title (the “DOT”) occupation code for the claimant’s past work where I believe Social Security medical-vocational rules, also known as the “Grid rules,” should apply.
I represent a 58 year old former dental assistant, who stopped working because of her back, neck and knee pain. I provided the DOT code when submitting the SSD application, and pointed out how the claimant would be entitled to receive SSD benefits even if the medical evidence indicated that she had the ability to do sedentary work.
The majority of SSD applications are denied initially. Those applications that are not denied, typically take at least five months to be approved. The claimant’s application was approved in only three months.
Providing the DOT code may avoid having the file referred for vocational review, which saves time. Highlighting the applicability of the Grid rules may also help the State agency recognize that SSD benefits should be approved.
I represent a 58 year old former dental assistant, who stopped working because of her back, neck and knee pain. I provided the DOT code when submitting the SSD application, and pointed out how the claimant would be entitled to receive SSD benefits even if the medical evidence indicated that she had the ability to do sedentary work.
The majority of SSD applications are denied initially. Those applications that are not denied, typically take at least five months to be approved. The claimant’s application was approved in only three months.
Providing the DOT code may avoid having the file referred for vocational review, which saves time. Highlighting the applicability of the Grid rules may also help the State agency recognize that SSD benefits should be approved.
Tuesday, June 23, 2009
Voluntary Remand
When Social Security claims are pursued in federal court two things typically happen. First, after the parties brief their case, the court decides in favor of one side, or neither side and remands the case back to the Administrative Law Judge (“ALJ”) who previously heard the case. Second, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. The question arises, does it ever make sense to reject a voluntary remand.
Accepting a voluntary remand avoids the possibility that a federal district court judge would affirm the decision of the SSA. The next step would be to proceed to a federal appellate court, but they do not usually reverse such decisions. Nonetheless, there are some occasions when a voluntary remand should be rejected.
I represent a minor plaintiff whose claim for Supplemental Security Income (“SSI”) benefits was denied by ALJ Newton Greenberg. I believed that the evidence showed the plaintiff met childhood listings for mental retardation. In fact, I believed the ALJ’s own conclusions showed the plaintiff met listings 112.05D and 112.05F, without any need for the federal court judge to consider anything other than the ALJ’s unfavorable decision. Moreover, my legal research uncovered two factually indistinguishable cases where the courts granted the plaintiff’s motion for judgment on the pleadings, and remanded solely for the calculation of benefits.
Each time that the U.S. Attorney offered my client a voluntary remand, I advised his mother to decline it. After granting the U.S. Attorney extra time to brief the case and discuss it with the SSA, he advised me that the SSA had decided to pay the plaintiff all of his SSI benefits.
Had I accepted the offer, then the plaintiff would have needed to wait for another hearing before ALJ Greenberg, which the plaintiff’s mother did not want because she felt he was very abusive towards her son. Thus, by rejecting the voluntary remand, the plaintiff received his SSI benefits much faster than he would have, even if ALJ Greenberg had reversed himself. Furthermore, the plaintiff avoided having to be subjected to ALJ Greenberg’s abusive questioning.
Accepting a voluntary remand avoids the possibility that a federal district court judge would affirm the decision of the SSA. The next step would be to proceed to a federal appellate court, but they do not usually reverse such decisions. Nonetheless, there are some occasions when a voluntary remand should be rejected.
I represent a minor plaintiff whose claim for Supplemental Security Income (“SSI”) benefits was denied by ALJ Newton Greenberg. I believed that the evidence showed the plaintiff met childhood listings for mental retardation. In fact, I believed the ALJ’s own conclusions showed the plaintiff met listings 112.05D and 112.05F, without any need for the federal court judge to consider anything other than the ALJ’s unfavorable decision. Moreover, my legal research uncovered two factually indistinguishable cases where the courts granted the plaintiff’s motion for judgment on the pleadings, and remanded solely for the calculation of benefits.
Each time that the U.S. Attorney offered my client a voluntary remand, I advised his mother to decline it. After granting the U.S. Attorney extra time to brief the case and discuss it with the SSA, he advised me that the SSA had decided to pay the plaintiff all of his SSI benefits.
Had I accepted the offer, then the plaintiff would have needed to wait for another hearing before ALJ Greenberg, which the plaintiff’s mother did not want because she felt he was very abusive towards her son. Thus, by rejecting the voluntary remand, the plaintiff received his SSI benefits much faster than he would have, even if ALJ Greenberg had reversed himself. Furthermore, the plaintiff avoided having to be subjected to ALJ Greenberg’s abusive questioning.
Tuesday, June 16, 2009
Subpoena Denials
The law requires that a Social Security Disability claimant be able to cross-examine the author of an adverse report. Since the reports of the doctors who do the consultative examinations (“CE”) for Social Security almost invariably indicate the claimant can work, I always insist that the administrative law judge (“ALJ”) issue a subpoena for the CE doctor.
I have had cases reversed by the Appeals Council and federal courts recently because the ALJ failed to give a valid reason for refusing to issue subpoenas for CEs. When an ALJ denies a subpoena request, I always respond to protect the record for appeal. I did this Friday after ALJ Hazel Strauss refused to issue a subpoena.
The first reason for Strauss’ refusal was that the CE took place eight years ago. However, Strauss would not allow the passage of time to prevent her from giving any weight to the CE report, I stated that her precluding me from cross-examining the CE doctor is a denial of Due Process.
The second reason for Strauss’ refusal was her belief that “it is not likely [the CE doctor] would be able to testify to anything except what the report of the examination states, as consultants do not keep records beyond year of such examinations.” I noted that not only is her speculation as to what the CE doctor might remember irrelevant, but also my cross examination does not need to be limited to examination findings because his examination practices and procedures during the thousands of CEs he performed are proper subjects of cross examination because they could provide probative information.
Third reason for Strauss’ refusal was that CE records are disposed within a year. I replied that such a justification for rejecting a subpoena is absurd because it takes more than a year between the time the CE is performed and the hearing is scheduled. According to Strauss’ logic, no CE doctor would ever be subpoenaed.
The letter to ALJ Strauss provides the Appeals Council with a clear procedural Due Process violation for remanding a potential adverse decision. The subpoena denial is also a failure to develop the record that a U.S. Attorney can accept as an excuse for a voluntary remand.
I have had cases reversed by the Appeals Council and federal courts recently because the ALJ failed to give a valid reason for refusing to issue subpoenas for CEs. When an ALJ denies a subpoena request, I always respond to protect the record for appeal. I did this Friday after ALJ Hazel Strauss refused to issue a subpoena.
The first reason for Strauss’ refusal was that the CE took place eight years ago. However, Strauss would not allow the passage of time to prevent her from giving any weight to the CE report, I stated that her precluding me from cross-examining the CE doctor is a denial of Due Process.
The second reason for Strauss’ refusal was her belief that “it is not likely [the CE doctor] would be able to testify to anything except what the report of the examination states, as consultants do not keep records beyond year of such examinations.” I noted that not only is her speculation as to what the CE doctor might remember irrelevant, but also my cross examination does not need to be limited to examination findings because his examination practices and procedures during the thousands of CEs he performed are proper subjects of cross examination because they could provide probative information.
Third reason for Strauss’ refusal was that CE records are disposed within a year. I replied that such a justification for rejecting a subpoena is absurd because it takes more than a year between the time the CE is performed and the hearing is scheduled. According to Strauss’ logic, no CE doctor would ever be subpoenaed.
The letter to ALJ Strauss provides the Appeals Council with a clear procedural Due Process violation for remanding a potential adverse decision. The subpoena denial is also a failure to develop the record that a U.S. Attorney can accept as an excuse for a voluntary remand.
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