The Law Offices of Jeffrey Delott

Getting SSD Even If You Can Work

2009-12-21T15:00:00.004-05:00

Receiving Social Security Disability (“SSD”) benefits is dependent upon the interaction between medical and vocational evidence. There are circumstances where a person can receive SSD benefits even if physically able to work, because of adverse vocational factors.

I represent a 57 year old who immigrated here from Haiti after graduating high school, and spent his last 26 years working for New York City as an automobile mechanic. The claimant was treated by an orthopedic surgeon for knee, bilateral shoulder and lumbar back injuries. The doctor said that the claimant could do some sedentary work, but his findings and conclusions showed the Plaintiff lacked the ability to perform a full range of sedentary work. Nonetheless, I was able to get the claimant’s application approved without a hearing based on the vocational evidence.

If the relevant past work of a person over the age of 55 was not sedentary, and there are no skills that are transferable to sedentary work, then that person is entitled to SSD benefits even if physically capable of sedentary work. I provided the hearing office with case law holding that there are no transferable skills for an automobile mechanic, which is medium to heavy work. Therefore, even if the medical evidence were interpreted as showing the claimant had a sedentary work ability, I had demonstrated that the claimant would still be entitled to SSD benefits. An attorney advisor agreed, and issued a fully favorable decision approving the claimant’s application without having to wait for a hearing.

Settling With CIGNA

2009-12-11T18:57:00.001-05:00

Like many insurance companies, CIGNA’s initial decisions to terminate long term disability (“LTD”) benefits can be quite indefensible. Unfortunately, most people are unable to persuade CIGNA to reverse an adverse decision, and need an attorney’s assistance.

I was retained by a former paramedic officer from Arizona to represent him in connection with his LTD claim with CIGNA. After discussing the claim with the representative who terminated the LTD benefits, I was advised that CIGNA would not reverse its decision. Therefore, my client asked me to file a lawsuit against CIGNA.

The medical and vocational evidence weighed heavily in favor of finding that the claimant remained disabled under CIGNA’s policy, and I drafted a 33 page Complaint. However, before filing the action, I provided a copy of the Complaint to a senior level CIGNA representative to review. While initially believing that CIGNA’s decision appeared appropriate, after discussing the Complaint with me and considering the Complaint in full detail, the senior representative decided to reverse CIGNA’s decision to terminate benefits.

If I had litigated the case, as requested by the claimant, I am confident that the court would have reversed CIGNA’s decision, which could have resulted in a substantial amount of additional attorney fees. However, by persuading the claimant to consider allowing CIGNA to review the Complaint before actually filing suit it resulted in his LTD benefits being restored more quickly.

It obviously makes sense to retain an attorney experienced in disability litigation when seeking LTD benefits. Familiarity with the minutia of the legal issues relating to claims involving LTD benefits enabled me to persuade CIGNA to reverse its decision without having to litigate, which enabled the claimant to receive his benefits much sooner than he expected.

Health Insurance For Children

2009-12-11T18:01:00.001-05:00

For many disabled parents, the loss of working income makes it difficulty to afford health insurance for children. After a year long court battle to recover child’s benefits in connection with a Social Security Disability case, I received a Notice of Award for child’s benefits that included a note about insurance for children through the Children’s Health Insurance Program (“CHIP”).

Each State’s CHIP provides health insurance to uninsured, low-income children 18 years of age or younger, including those who are homeless. You can call 1-877-KIDS-NOW (1-877-543-7669) to find out how to apply, or go to http://cms.hhs.gov/schip for more information.

Avoiding An Improper Consultative Exam

2009-12-09T10:39:00.001-05:00

In the vast majority of cases, the Social Security Administration (“SSA”) insists that disability claimants attend a consultative examination (“CE”), which is performed by a doctor selected by the SSA. However, the SSA rules and regulations require that the claimant’s treating doctor perform a CE subject to a few exceptions. The exception that the SSA usually relies upon as grounds for a CE is that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies. Before the SSA or an Administrative Law Judge (“ALJ”) can ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, the ALJ must first recontact the treating doctor to explain the perceived conflict, gap or inconsistency.

I represent a former police officer whose arthritis specialist and orthopedist provided reports describing why their patient’s condition prevented him from working in any capacity. ALJ Weiss insisted that the officer attend a CE by an “independent” orthopedist because of alleged conflicts and inconsistencies in the medical reports, but I insisted that the ALJ first recontact the treating doctors in accordance with the regulations. ALJ Weiss then denied the officer’s application on the grounds that the officer lacked good cause for refusing to attend the CE.

After filing a complaint in federal court, the SSA admitted that the officer had good cause for refusing to attend the “independent” CE, and that it was improper to penalize the officer for refusing to attend it. The SSA asked the officer to remand the case, and would require the ALJ to recontact the treating doctors to clarify or provide additional information to resolve the perceived conflicts and inconsistencies in their reports. The SSA also agreed that the Appeals Council remand order will direct the ALJ to issue a decision on the merits of the case even if the officer refuses to attend an independent CE without good cause.

The SSA’s remand offer confirms that a treating source is the preferred source for performing a CE. The SSA’s remand offer also confirms that it cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. Finally, the SSA’s remand offer shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the SSA’s rules and regulations.

Multiple Sclerosis

2009-11-26T14:56:00.002-05:00

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” are met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

Multiple Sclerosis (“MS”) is typically treated by a neurologist. Therefore, when applying for SSD benefits based upon MS, the best type of evidence would be an opinion from a neurologist that the claimant meets the criteria under the 11.09 listing for MS.

I represent a 53 year old former secretary and bookkeeper for her husband’s business whose SSD application was approved yesterday, just one month after I submitted a narrative report from her neurologist explaining why the 11.09 criteria were met. The claimant was not even asked to be examined by a Social Security doctor.

The rapid approval was undoubtedly due to the listing opinion from the neurologist. The first thing I always do when analyzing a claim is to determine whether the claimant’s condition can meet or equal a listing, and then securing the necessary records and reports from the treating doctor. If a hearing has already been scheduled, showing that a claimant meets a listing is important because it makes it significantly more difficult for an Administrative Law Judge to deny the claim, or for the denial to be sustained on appeal.

Protective Filing Dates

2009-11-20T12:48:00.005-05:00

When filing a Social Security Disability (“SSD”) application, it is possible to be awarded up to twelve months of retroactive benefits. Since there is a full five month waiting period for SSD benefits, a claimant will not lose potential SSD benefits as long as the application is filed seventeen months after the onset of the disability.

For a variety of reasons many people do not file SSD applications immediately after their disability onset. If there is a possibility of filing an application and the 17 month mark is approaching, the safe thing to do is to seek a protective filing date.

A protective filing date is the date a claimant first contacts the Social Security about filing for SSD benefits. The protective filing date can be used to establish an earlier application date than the date when Social Security actually receives the signed application. A protective filing date can be established by calling the Social Security Administration’s toll free number - 800-772-1213, which eventually leads to a live operator who will take the application. The SSA usually follows up with a letter confirming an appointment. Even if the appointment is cancelled, the letters serves as proof for a protective filing date.

It is important to retain the SSA letter. I received a fully favorable on the record decision today that did not provide the protective filing date. I had reminded the claimant of the importance of the letter, but he misplaced the letter, resulting in a loss of a month’s benefits.

2009-11-14T13:12:00.005-05:00

Delays are commonplace when applying for Social Security Disability (“SSD”) benefits. Those delays frequently create “dire need” situations, such as being unable to afford medications, medical treatment, utilities, rent, or mortgage costs. Fortunately, the Social Security Program Operations Manual System permits expediting a claim when dire need circumstances exist.

I advise my clients to write me a letter explaining why their need exceeds that of other claimants, who may be able to pay for their health and housing. I suggest that they provide copies of eviction papers or past dues notices that substantiate their claims. I then provide the letter to the SSA describing how their delays have exacerbated the claimant’s dire need, and cite the relevant rules pertaining to expediting such claims.

I represent a 52 year old teacher who had to apply for food stamps while awaiting a decision on her SSD application. The SSA local office lost the application and demanded a new one. After showing proof that I had submitted the application, I sent a copy of the claimant’s letter stating that she had been approved for food stamps, and asked that the case be expedited as a dire need situation without having to submit a new application. The claimant was approved today for SSD benefits just one month after the dire need letter was submitted.

Reopening Past SSD Denial

2009-11-08T15:33:00.002-05:00

It is common for people to apply for Social Security Disability (“SSD”) benefits more than once. Each new application starts a new date when benefits potentially become payable. What many people don’t realize is that it may be possible to “reopen” a prior application, which can result in the payment of additional benefits.

I represented a 44 year old carpenter who had applied three times, and was proceeding with his third application when he retained me. The oldest application was filed in February 2004, and the latest was filed in July 2007. I requested copies of the prior application files.

After reviewing all of the records, I obtained a report from the claimant’s treating physician that showed the claimant had lacked the ability to work since November 2003. I made a motion to reopen the prior application on the grounds that the report constituted new and material evidence. ALJ Brian Crawley agreed, and issued a fully favorable decision that approved SSD benefits based upon the prior application’s filing date.

The result of the reopening was that the claimant received well over three years of additional SSD benefits. When filing a new application always investigate whether there are grounds for reopening the prior one

ALJ Strauss’ Reliance On ME Cohen’s Testimony Proves She Is Biased

2009-11-06T10:51:00.013-05:00

ALJ Hazel Strauss just issued a decision that proves she is biased against disability claimants. The Appeals Council had reassigned the case to ALJ Strauss from ALJ Seymour Fier on remand. The claimant is a 62 year old Italian woman with a third grade education who had worked as an unskilled sewing machine operator.

ALJ Strauss relied on the testimony of a medical expert (“ME”) from a prior hearing named Theodore Cohen. ME Cohen’s testimony was shown to be so utterly biased against claimants that ALJ Fier ruled that it had to be struck from the record; and therefore, he did not refer to ME Cohen’s anywhere in his 2008 decision. However, without any authority or explanation for doing so, ALJ Strauss based her October 2, 2009 decision on ME Cohen’s testimony.

Since ALJ Strauss knew that she could not use ME Cohen’s testimony because it had been struck from the record, how is it possible to explain her relying upon it? What possible excuse did ALJ Strauss have for using ME Cohen’s testimony, when it was clear from the record's hearing transcript and ALJ Fier’s 2008 decision that it had been struck?

ALJ Strauss claimed that she reviewed the entire record, which made it abundantly clear that ME Cohen's testimony had been struck. Therefore, ALJ Strauss cannot cannot claim that it was stupidity or negligence that caused her to rely on ME Cohen’s testimony -- ALJ Strauss knew that she was improperly relying on it. ALJ Strauss purposely relied on ME Cohen’s testimony because her preference for denying disability claims inhibited her impartial judgment, which is the American Heritage Dictionary definition for bias.

ALJ Strauss' will be reversed, although that is little solace to the claimant who now has to wait for the lengthy appeal process.

Multiple Medical Sources

2009-10-24T18:01:00.000-05:00

Disability cases are usually a battle of the medical experts with your doctor saying you cannot work while their doctor saying you can. One of the best ways to ensure that your doctor’s opinion will be accepted over the non-treating doctor’s opinion is to have other doctors corroborate your doctor’s opinion.

I represent a 62 year old former Administrative Assistant with various back and foot problems. Instead of simply relying on the opinion of the claimant’s primary treating source, her neurologist, I secured opinions from the claimant’s rheumatologist, family doctor, orthopedist and chiropractor that concurred with the neurologist. Additionally, some investigation revealed that the non-treating doctor was not even board certified. Not surprisingly, the claimant’s application for disability benefits was approved.

While it may have been possible that the claimant could have received disability benefits without the concurring medical opinions, I prefer to stack the deck in the claimant’s favor, and minimize the chances of having to file an appeal. Since claimants normally need disability benefits as soon as possible to replace their lost income, the relatively small investment in time and money to secure the additional medical support should be well worth it.

Listed Impairments

2009-10-24T15:44:00.000-05:00

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” is met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

I represent a 59 year old, whose past work was primarily in the security field. I sent the claimant for cognitive testing, which revealed a performance IQ between 60 and 70. I obtained a report from an arthritis specialist indicating that the claimant’s low back pain limited his ability to do full time sedentary work. I argued that those medical records showed the claimant met listing 12.05(C).

The SSA apparently agreed that the claimant met the listing because the application was approved in less than four months. Those familiar with the disability process know that approval within a few months is relatively rare. Medical sources should be asked from the outset for evidence to support a claimant’s meeting listing criteria because such claims are frequently screened for quick approval

Attorney Advisors

2009-10-22T05:10:00.004-05:00

In May 2007, the Social Security Administration (the “SSA”) announced plans to eliminate the backlog of hearing requests by providing funding to hire additional staff. According to the SSA’s own statistics, in the New York region, the hearing wait was 547 days in May 2007. As of August 2009, the hearing wait had been reduced to 474 days.

Notwithstanding the SSA’s statistics, it is not unusual for a Social Security Disability claimant to have to wait nearly two years before an Administrative Law Judge (“ALJ”) hears the case. However, that delay can be avoided by making use of the staff attorneys at hearing offices known as Attorney Advisors. The SSA has extended the Attorney Advisor program to August 2011.

The Attorney Advisor program allows the hearing office attorneys to issue fully favorable on-the-record (“OTR”) decisions, which negates the need for a hearing with an ALJ. Allowing the attorneys to approve the more obvious cases not only expedites those claimants’ benefits, but also enables ALJs to focus on the more complex cases. The best way to show an Attorney Advisor that a case does not require an ALJ is by showing the claimant meets a Medical-Vocational rule or listed impairment criteria that requires a finding of disability. I received a fully favorable OTR decision today from an Attorney Advisor that illustrates this point.

I represent a 59 year old former mason tender and currency trader. I cited a Medical-Vocational rule that required finding him disabled even he were capable of performing sedentary work. The Attorney Advisor accepted the evidence and arguments in support of applying that rule, which made it an obvious case for approval. Instead of waiting 474 days for a hearing, the claimant’s OTR was approved in less than 60 days.

Avoiding Consultative Examinations

2009-10-13T14:53:00.003-05:00

When applying for Social Security Disability (“SSD”) benefits, the Social Security Administration (the “SSA”) virtually always sends a notice stating that the claimant has to be examined by one of its doctors for a Consultative Examination (“CE”). Almost without exception, the CE concludes that the claimant is capable of working, and therefore, the SSA denies the SSD application.

What most applicants don’t realize is that the rules and regulations severely restrict the circumstances where the SSA can require a CE. For example, POMS DI 57540.020 requires the SSA to identify the “essential evidence missing from the file,” and then to request it from the treating source. Similarly, Social Security regulation 20 C.F.R. § 404.1512(f), states that a CE is appropriate only if information the SSA “need(s) is not readily available from the records of your medical treatment source, or we are unable to seek clarification from your medical source;” and 20 C.F.R. § 404.1519a(a)(1) requires the SSA to seek the information from the claimant’s treating source before resorting to a CE. There are many other rules, regulations, and federal court decisions that provide the same.

I always insist that the SSA comply with the rules and regulations regarding CEs. I offer to provide any medical evidence the SSA can specify, and to facilitate a CE by the claimant’s treating doctor. The absence of the CE by the SSA prevents negative evidence from making its way into the file, which delays the application’s approval. I represent a former school superintendent whose SSD application was approved today in only four months. Had I allowed the CE to proceed, then the SSA would have required a hearing to weigh the conflicting opinions.

Atypical Parkinson’s

2009-10-10T14:21:00.004-05:00

Patients with atypical parkinsonism have some features of Parkinson's Disease (“PD”) such as tremors at rest, slowness of movement, stiffness, unsteadiness and freezing while walking). However, symptoms of atypical parkinsonism result not only from loss of cells of the substantia nigra as in classic PD, but also from degeneration of cells in other areas of the nervous system. Older patients are more severely affected by atypical parkinsonism and PD in general.

When applying for Social Security Disability ("SSD") benefits based on atypical parkinsonism, the Medical-Vocational rules should always be reviewed because the claimant is likely to be older than 50. I represent a 59 year old women who taught school for the last 15 years of her career. According to the Dictionary of Occupational Titles, teaching is light work, which means it is done primarily while standing and walking. A person who is at least 50 years old, and has only performed light work during the past 15 years must be found disabled under Medical-Vocational Rule 201.04 in the absence of transferable skills – even if capable of performing full time sedentary work.

I was able to have the claimant’s SSD application approved without a hearing, which likely would have required an additional 1.5 to 2 years, by demonstrating how the claimant met Medical-Vocational Rule 201.04. Arguments supporting disability based on the Medical-Vocational Rules or a listed impairment should always be highlighted as they are often screened for quick approval.

Chondromalacia

2009-10-06T15:16:00.001-05:00

You don’t have to be elderly to have disabling arthritis. Chondromalacia is essentially arthritis of the knee. I represent a 39 year old former press operator whose Social Security Disability (“SSD”) benefits were approved without a hearing.

The claimant retained me after he filed his application for SSD benefits. His application was denied in August on the grounds that the medical evidence failed to show a condition that would prevent him from doing sedentary work. Sedentary work requires lifting 10 pounds, walking and standing about 2 hours a work day, and sitting the remainder of the time.

Last month, I submitted an on-the-record (“OTR”) request for a fully favorable decision. After establishing that chondromalacia is a medially determinable condition, I demonstrated that it reduced the claimant’s functionality to the extent that sedentary work was not possible. The key was securing work assessments from three physicians, two orthopedists and an arthritis specialist, showing that the claimant could not lift 10 pounds, walk and stand for 2 hours a work day, and sit the remainder of the day.

Simply having one physician’s assessment may have sufficed after a hearing to obtain the claimant’s SSD benefits, but probably would not have been enough evidence to succeed via OTR. By successfully using the OTR process, the claimant will not have to wait 18 to 24 months before his hearing would be rescheduled.

Subpoena The SSA Doctor

2009-10-03T05:55:00.006-05:00

When you apply for Social Security Disability or Supplemental Security Income benefits, the Social Security Administration ("SSA") will tell you to see its doctor. The SSA calls its doctor a Consultative Examiner ("CE").

Most of the time the actual exam by the CE is cursory, contains findings that simply are made up, and indicates the claimant can work. The SSA then ignores what the treating doctor says and relies on the CE report to deny the application for disability benefits.

In New York, after the initial denial, the Administrative Law Judge ("ALJ") assigned to your case sends you a hearing notice. Among other things, the notice says you have the right to ask the ALJ to issue a subpoena for people or documents. The SSA regulations and case law provide you with the right to cross examine your CE.

Always request that the ALJ subpoena your CE. The CE will not be able to support most of the findings and conclusions in the CE report. Furthermore, if the ALJ refuses to issue the subpoena, then that denial of due process provides automatic grounds for a new hearing if the ALJ denies your claim. I just received a decision from the Appeals Council that rejected an ALJ's unfavorable decision for that very reason.

ALJ Nisenewitz: Stupid or Biased?

2009-09-25T13:43:00.001-05:00

Administrative Law Judge David Nisnewitz (“ALJ”) denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected the ALJ’s denial because there was no medical evidence contradicting the opinion of the treating rheumatologist. This time, the ALJ relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though a federal court previously told the ALJ that the testimony of an ME, the lone dissenting physician, “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.

The ALJ knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion. Therefore, how is it possible to explain the ALJ’s repeating the same mistake? What possible excuse did the ALJ have for repeating his error, especially since he was reminded in, not one, not two, but three letters that he had been admonished previously for improperly rejecting the opinion of the treating physician in favor of the ME?

The American Heritage Dictionary defines “stupid” as slow to apprehend or dumb, and “bias” as a preference that inhibits impartial judgment. Did the ALJ fail to realize that he was repeating his mistake, despite being reminded in the three letters that elevating an ME’s opinion over a treating physician’s opinion was improper? If so, then it would seem that the ALJ was slow to apprehend the issue, which is the American Heritage Dictionary definition for “stupid”.

Alternatively, the ALJ could have realized that he was repeating his mistake. If so, then it would seem that his preference for denying disability claims inhibited his impartial judgment, which is the American Heritage Dictionary definition for bias. Notably, in a recent Michigan case, another ALJ was accused of bias because his approval rate for disability cases was 41% and 28% in 2005 and 2006. In contrast, it appears that ALJ Nisnewitz’s approval rate was 35% for 2005 and 25% for 2006. The Michigan court also noted there was no evidence of inappropriate comments or animus by the ALJ. On the other hand, Judge Irizarry found ALJ Nisnewitz has displayed both.

It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility. Despite a court stating that investigating ALJ bias allegations would be appropriate on remand in another case, the SSA has refused to fulfill its duty to investigate the allegations. Instead, the SSA speciously claims that the court directed it to comply with a FOIA request, which simply was not the case.

Prudential Reverses Fibromyalgia STD & LTD Denial

2009-09-25T13:16:00.001-05:00

I represent a former banker afflicted with fibromyalgia whose short term disability (“STD”) and long term disability (“LTD”) claims had been denied by Prudential Insurance Company of America. Prudential had based its decision to terminate STD benefits and deny LTD benefits on a so-called independent medical examination (“IME”) by a rheumatologist who does not regularly treat fibromyalgia.

The IME admitted the claimant has fibromyalgia; admitted that fibromyalgia is a pain syndrome, admitted that no objective testing exists for fibromyalgia; admitted that the claimant has a global pain syndrome; admitted that the pain is difficult to measure; and admitted that the claimant’s treatment is appropriate. The only difference between the opinions of Dr. Jason Faller, the claimant’s treating rheumatologist, and the IME, was that the IME stated that because the claimant’s pain was difficult to measure, she had no functional limitation. While the IME may have had difficulty measuring the claimant’s pain, Dr. Faller, as the claimant’s long time treating doctor, did not.

Prudential said that the only evidence of functional impairment was the claimant’s self-reported statements, but failed to identify what else could possibly exist other than Dr. Faller’s finding of severe trigger points. The IME had asserted that the claimant’s complaints were inconsistent with range of motion findings, and that absent atrophy, neurological abnormalities and decreased range of motion, the claimant could not be functionally impaired.

In a very abbreviated nutshell, I pointed out that Social Security Disability cases held that “decreased range of motion and/or sensory impairments are not symptoms of fibromyalgia, and the absence of these non-symptoms thus does not reflect on the presence or severity of fibromyalgia.” Prudential implicitly conceded that while no diagnostic test is applicable for fibromyalgia, making it difficult to measure pain in these individuals, the person in the best position to measure the claimant’s pain was Dr. Faller who had examined her many times over many years. Accordingly, Prudential approved both STD and LTD benefits for the claimant

LTD & Health Insurance

2009-09-09T14:50:00.002-05:00

Some companies provide their employees with group disability and health coverage. Frequently, the long term disability (“LTD”) and the health insurance plans are linked so that if you become disabled under the LTD plan your premium is waived under the health plan. Thus, your health insurance continues while you are disabled. A problem arises when the LTD insurance company wrongfully terminates or denies LTD benefits, which results in a loss of health care coverage.

When you eventually succeed in securing your LTD benefits, you should not forget to seek reimbursement for your health care expenses. Any money paid toward COBRA or for other health insurance premiums should be sought. Similarly, if health insurance lapsed because the premium could not be afforded, your out of pocket costs should be sought. You should not have to pay any more than you would have if your health insurance was not wrongfully terminated or denied.

Sometimes other employee benefits are also linked to your LTD plan. When seeking LTD benefits always make sure that you have copies of a Summary Plan Description for each group benefit plan that covered you while working.

Teacher Finally Receives SSD Benefits

2009-08-29T12:10:00.004-05:00

I was retained after a federal court remanded this case to ALJ Iris Rothman. The claimant’s prior attorney was ambivalent about representing the claimant because ALJ Rothman inexplicably refused to review the case objectively. Sure enough, ALJ Rothman denied the claim a second time despite overwhelming medical and vocational evidence.

Rather than the usual terse one or two page or two decision, the Appeals Council (the “AC”) remanded this claim a second time in a detailed five page remand order. The AC not only made it clear that ALJ Rothman’s second decision was utterly devoid of any merit, but strongly and repeatedly indicated that the claim met at least one of three listed impairments. If a listing is met, then the claimant is deemed disabled without any further evaluation.

The new ALJ assigned to the case issued a fully favorable decision on the grounds that the claimant’s macular degeneration equaled listing 2.04 as of her February 1, 2005 onset date. If you believe the denial of your SSD benefits was wrong seek a second legal opinion. While the legal process for reversing an erroneous benefits decision may take some time, SSD benefits should be approved as long as there is supporting medical and vocational evidence.

SSA Consultative Examiners

2009-08-21T13:30:00.003-05:00

The reason that Administrative Law Judges give the vast majority of the time to deny applications for Social Security Disability (“SSD”) benefits is that the opinions of the state agency consultative examiners (“CEs”) show the claimant can work. Once again, a federal district court has ruled that it was improper for an ALJ to do so.

I was retained to appeal an SSD case to the Eastern District of New York, which was assigned to Judge Nicholas Garaufis. My primary argument was that the ALJ gave more weight to the opinions of the CEs than to the claimant’s treating doctors, and in doing so, failed to apply the treating physician rule properly. In the New York metro area, CEs are usually performed by Industrial Medicine Associates.

The claimant’s treating doctor provided a detailed residual functional capacity (“RFC”) assessment demonstrating the claimant lacked the ability to perform the physical demands of sedentary work. However, the ALJ interpreted the CEs’ vague conclusions as providing for a sedentary RFC, and relied on those opinions to deny the claimant’s SSD application. Judge Garaufis ruled that:

"As Plaintiff correctly notes, the ALJ cannot rely on those RFCs as evidence contradicting the Treating Physician RFC. This is because an inconsistency with a consultative examiner is not sufficient, on its own, to reject the opinion of the treating physician."

It seems that most ALJ SSD denials are based upon the opinions of the CEs, and most of the time the ALJ provides little or no reason for elevating the CEs’ opinion over that of the treating physician. Whether appealing to the Appeals Council or federal court, it is essential to point out the absence of a legitimate or logical basis for the ALJ’s rejecting the treating physician’s opinion.

Child’s Benefits

2009-08-07T19:43:00.000-05:00

If you succeed in winning Social Security Disability (“SSD”) benefits, then you may also be entitled to receive additional benefits for your children under 18 years of age. The child’s benefit is usually about half of the SSD benefit. You cannot rely on the Social Security Administration (the “SSA”) to take steps to help you secure the child’s benefits.

I represent a 53 year old press operator whose SSD application was approved after 4 months. The SSA did not notify him about his right to child’s benefits. The claimant did not think he was entitled to child benefits because his son had already graduated from high school. However, the claimant’s SSD benefit onset date was several months before the son graduated. As a result, the claimant will be entitled to receive several additional thousand dollars worth of benefits.

When applying for SSD benefits, always disclose the identities of dependents. The disclosure provides a protective filing date for child’s benefits.

UPS

2009-08-07T18:54:00.006-05:00

Aetna administers the United Parcel Service (UPS) long term disability (“LTD”) plan. Fortunately, UPS maintains the right to reverse Aetna’s decisions.

A UPS package supervisor retained me after Aetna terminated his LTD benefits on the grounds that he could do sedentary work based upon an functional capacity examination (“FCE”). In my 74 page appeal to Aetna, which included 46 pages of new medical records, I explained how the FCE actually showed that the claimant could not do sedentary work. Aetna denied the appeal based upon a peer review that rejected the FCE, and conclusorily stated that there was no clinical support showing the claimant was unable to do sedentary work.

Aetna’s final decision was hypocritical. Aetna relied upon the FCE to terminate LTD benefits, but Aetna refused to allow the claimant to rely upon the FCE after admitting that it showed the claimant could not do sedentary work. In other words, Aetna accepts evidence when it thinks the evidence will support its decision, but rejects the identical evidence when it thinks the evidence will not support its decision.

As for the peer review, Aetna provided absolutely no reason why it accepted the opinion of the peer review doctor it paid to review the claimant’s medical records, over the opinions of the claimant’s treating orthopedist, pain management specialist, internist, rheumatologist, physiatrist, and physical therapist, each of whom explained why the claimant could not do sedentary work. I pointed out these and other critical flaws to UPS, which reversed Aetna’s decision.

The claimant went without LTD benefits for nearly a year because of Aetna’s actions. To compound matters, the claimant’s other benefits, such as medical insurance, were terminated when the LTD benefits were terminated. The claimant had to spend thousands of dollars for medical testing, reports, and attorney’s fees to get his benefits reinstated. If UPS employees have any influence at work they should consider persuading management to replace Aetna.

Retrospective Medical Opinions

2009-07-30T18:24:00.003-05:00

In Scandura v. Astrue, 2009 WL 648611 (E.D.N.Y. Mar 10, 2009), the Chief Judge of the Eastern District of New York rejected the opinion of Administrative Law Judge (“ALJ”) Hazel Strauss because, among other things, the ALJ failed to acknowledge the validity of a retrospective medical opinion. Similarly, in Vicari v. Astrue, 2009 WL 331242 (E.D.N.Y. Feb 10, 2009), the court rejected the ALJ’s decision because it erroneously asserted that “a retrospective opinion is not acceptable dispite [sic] the attorneys [sic] allegations to the contrary.”

In other words, even if a physician first examines a Social Security Disability (“SSD”) claimant after the date last insured (“DLI”), the retrospective opinion still must be examined under the treating physician rule. In order to receive SSD benefits, a claimant must establish disability prior to the DLI.

I represent a 45 year old former carpenter who minimized his medical treatment after losing his health insurance. As a result, there was no doctor who treated the claimant prior to DLI to give an opinion regarding the claimant’s functional capacity. However, I submitted a functional assessment from the claimant’s current doctor, who gave a retrospective disability onset date. ALJ Crawley gave significant weight to the opinion, and approved the claimant’s SSD application.

The law is clear and well-established. As long as the retrospective opinion is well supported, such as when the doctor bases his opinion in part on reviewing pre-DLI medical records, it must be analyzed like any other medical opinion.

Senior Attorney Adjudicators

2009-07-25T22:09:00.001-05:00

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.