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
Sunday, November 8, 2009
Friday, November 6, 2009
ALJ Strauss’ Reliance On ME Cohen’s Testimony Proves She Is Biased
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.
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.
Saturday, October 24, 2009
Multiple Medical Sources
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.
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
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
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
Thursday, October 22, 2009
Attorney Advisors
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.
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.
Tuesday, October 13, 2009
Avoiding Consultative Examinations
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.
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.
Saturday, October 10, 2009
Atypical Parkinson’s
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.
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.
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