Reviewing An Employer’s Work Description

The typical Long Term Disability (“LTD”) application has three forms; one for the claimant, one for the treating doctor, and one is for the employer. While the doctor’s form provides the medical information, the employer’s form provides the vocational information. The importance of the Employer’s form should not be overlooked because the vocational evidence is just as important as the medical evidence. It is especially easy to disregard the importance of the Employer’s form if the insurance company processing the LTD application sends it directly to the employer for completion. 

I filed an LTD application with Guardian Life Insurance Company of America for a 55 year old floor trader who sustained left leg, right hand and arm injuries. The claimant stood virtually the entire day at work. However, when I asked for a copy of the Employer’s form from Guardian, the Human Resources manager indicated the job was sedentary. After notifying the discrepancy with the claimant, he obtained a letter from his direct supervisor attesting to the fact that the occupation required being on his feet most of the day, as well as a letter from the Human Resources manager that her error happened because she used the incorrect job description to complete the Employer’s form. 

I received a letter today from Guardian approving the LTD application. There is a very good chance that the application may have been denied absent the correction to the vocational information provided by the Employer’s form.

Podiatrists

The Social Security regulations specifically state that podiatrists are acceptable medical sources for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle. Nonetheless, claimants often overlook podiatrists when seeking Social Security Disability (“SSD”) benefits. 

I have stated in the past not to underestimate the importance of podiatrists when applying for disability benefits, which some claimants apparently do because foot problems are not the primary impairment. When a foot problem is the primary problem, the treating podiatrist’s opinion is paramount. 

I represent a 48 year former warehouse worker whose suffered injuries in a vehicular accident. His main injury was to his left foot, although he also sustained severe neck and back injuries. His SSD application was approved today. While the claimant submitted a report from his neurologist explaining how his neck and back injuries prevented him from working, the Administrative Law Judge gave greater emphasis to the opinion of the claimant’s podiatrist. 

If you have a foot injury, regardless of whether its your primary problem, your podiatrist’s records and disability opinion should be sought.

Off Task

I received an interesting fully favorable decision today for a 49 year old former fire fighter with pulmonary problems that originated from 9/11 related exposure. 

The claimant’s breathing problems resulted in sleeping problems, which caused the claimant to sleep during the day. Furthermore, the claimant’s medications exacerbated the claimant’s daytime somnolence. As a result, the Administrative Law Judge (“ALJ”) found that the claimant would be off task at least 20% of the work day. 

I researched the various Social Security rules and regulations, but did not find anything regarding being off task and disability. However, a review of the case law revealed dozens of cases where vocational experts unanimously testified that a person would be disabled from substantial gainful activity if off task 20% of the time. 

Many symptoms, such as pain, fatigue, or mental disorders causing a lack of focus and concentration, can effect a person’s ability to stay on task. Medical opinions regarding the percentage of time that impairments cause claimants to be off task should be incorporate into functional assessments. Not only can an opinion supporting a claimant’s inability to stay on task provide positive evidence to support a claim, but it can also provide ammunition to cross examine an unsupportive vocational expert.

Social Security Reconsideration

In most States, if your application for Social Security Disability (“SSD”) is denied, the first appeal you can file is a Request for Reconsideration. Seeking reconsideration only requires you to complete a short form concerning any changes in your health, and any work you have done since you filed your SDD application. Like the first level of review, reconsideration decisions are made by a claims examiner from the State Disability Determination Services (“DDS”). 

New York is one of the States where reconsideration of an SSD claim denied for medical reasons has been eliminated. Most reconsiderations are denied; about 85% of cases. Criticism about reconsideration being a rubberstamping formality led to its elimination in some states. 

 I represent a 49 year old electrician whose SSD application was approved by the New Jersey DDS. What makes the reconsideration approval especially rare, is that no additional medical evidence was submitted. This indicates that the DDS recognized its original decision was seriously flawed. While the decision saved Social Security resources by reducing the hearing office caseload, one wonders why the application was not approved form the outset.

Fully Favorable Decisions

Not all fully favorable decisions from Social Security are actually fully favorable. A couple of months ago, I received an approval of Social Security Disability (“SSD”) benefits from an Administrative Law Judge (“”ALJ”). During the hearing, I amended the claimant’s onset date to January 2010. However, when I reviewed the decision, I noticed that the onset date was amended to June 2010. 

There is a 60 day period to raise any issue with respect to a hearing decision. I notified the hearing the office of the discrepancy. Today, a revised hearing decision was issued that accepted January 2010 as the amended the disability onset date. As a result, the claimant will receive an addition half year’s SSD benefits. Even if you receive what appears to be a fully favorable decision, you need to review it carefully to ensure that no benefits are effectively being waived.

Operative Reports

It is not uncommon for an Administrative Law Judge (“ALJ”) to deny a Social Security Disability (“SSD”) claim on the grounds that a medical condition is not severe enough to be disabling because the claimant did not have surgery.  The case law had made clear that it is not necessary to have surgery to show that medical condition is disabling.  Nonetheless, if you have undergone surgery, then it should be obtained and submitted as evidence.

I had two cases that were approved today without any difficulty.  Both claimants sustained orthopedic injuries from motor vehicle accidents.  The first case involved a 48 year old warehouse manager whose foot was crushed, and the other concerned a 41 year old paralegal whose neck and back were injured.   

Generally, Social Security prefers denying SSD benefits to claimants who are under 50 years old.  I have had many claimants who are under 50 years old with motor vehicle injuries who retained me after their SSD application was denied.  What the two cases I had today in common was that each claimant underwent major surgery.  Each ALJ decision highlighted the surgery.

Treatment reports and functional capacity assessments can suffice to establish entitlement to SSD benefits.  However, operative reports tend to lead to faster claim approvals.  Many ALJs favor what Social Security doctors say over treating doctors because the ALJs think that treating doctors’ reports overstate a claimants’ disability in order to help them get SSD benefits.  It seems that ALJs perceive surgery as evidence that a treating doctor is not exaggerating the extent of a claimant’s inability to work.

Unusual SSD Approvals

I received two very different and unusual approvals of Social Security Disability (“SSD”) applications today. 

The first was a fully favorable decision from the Appeals Council (“AC”). While that by itself is rare, since most AC decision are either remands or denials of relief, this decision was particularly rare because the Administrative Law Judge (“ALJ”) had approved the application last month. On its own initiative, the AC decided to review the ALJ’s approval, and decided that there was nothing to do. I have had more reviews by the AC on its own initiative during the last year than in the last ten years combined. It is unclear whether such reviews are a wise use of the Agency’s limited resources. 

The second unusual decision was a fully favorable approval of an application that was filed almost a decade ago in 2004. I took over the case after it had already been to federal court. After I took the case to federal court a second time and two more hearings with medical and vocational experts, the claimant’s application was finally approved.