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TBI and Vocational Evidence

The focus on disability claims is almost always on medical evidence because claimants seek benefits on the grounds their medical condition prevents them from working. However, situations arise where there is little or no medical evidence. For example, the claimant might be unable to afford medical treatment, or perhaps further medical treatment cannot improve the medical condition. In these types of circumstances the vocational evidence could be helpful.

I represented a 52 year old woman claimant who suffered a traumatic brain injury (“TBI”) and other physical injuries as a result of a car accident while crossing a street in Manhattan. Her physical injuries had heeled. Essentially, her medical treatment was limited to a psychologist, who indicated the claimant’s mental problems had largely resolved except for her cognitive deficits. Nonetheless, I was able to secure her disability benefits in only four months.

Like most cases, the key to obtaining the disability benefits was establishing the credibility of the claimant’s allegations regarding the severity of her limitations. I described the serious nature of the accident, which not only killed her husband, but also required her to have extensive hospitalization. I pointed out that prior to her accident, the claimant was a high functioning executive earning over $90,000 a year. In contrast, while the claimant had made a significant recovery from the year old accident, I emphasized that the claimant resides in an assisted living facility. Those are not medical facts, but they explained why the claimant should be believed when she claimed she could not work.

Failure To Receive Notice

What happens if you don’t receive a copy of an unfavorable decision from the Administrative Law Judge who denied your Social Security Disability (“SSD”) application, and therefore, you don’t appeal on time? What happens if the Appeals Council then refuses to hear your appeal because it’s not filed on time? That sounds unfair, and it is. I took over a case from another attorney who was faced with that very situation.

After the Appeals Council rejects a request for review, the claimant’s final resort is going to federal court. Under the circumstances described above, the only relief that a federal court can provide is a remand for a hearing before the Social Security Administration (the “SSA”) regarding whether the claimant had good cause for requesting review belatedly.

It would have taken months if not years for the SSA to file its administrative record, have the parties brief the matter, and the wait for the district court to issue its decision. To avoid the wait, I supplied an affidavit from the claimant’s prior attorney detailing his normal business practices and the circumstances that led to the late filing. The U.S. Attorney provided the affidavit, and case law directly on point in the claimant’s favor, to counsel for the SSA. The result was that the SSA voluntarily agreed to remand the case without having to litigate the matter.

When litigating SSD claims, it pays to research the case thoroughly before filing. Even if you do not wind up briefing the case, the research can provide the basis for a discussion with the U.S. Attorney who might be persuaded to voluntarily remand the action.
Posted by The Law Offices of Jeffrey Delott at 10:21 AM

Mental Disorders

Many clients tell me that they have been told, even by attorneys who practice Social Security law, that it is very hard to secure social security disability (“SSD”) benefits based upon mental impairments. The truth is that while different standards may be used, obtaining benefits for a mental disorder is no more difficult than obtaining benefits for an equally severe physical condition. The problem may be that most people simply do not know how to establish the severity of a mental condition properly.

A 27 year old claimant came to me after his SSD application was denied on the grounds that his mental disorder was not severe enough to prevent him from working. I did a couple of things to help establish the severity of his condition. First, I had the psychiatrist assess the claimant ability to handle mental tasks. Second, because the assessment was rather severe, I then asked whether the claimant met a listing, which the psychiatrist said the claimant did. When a claimant meets a listing the claimant is presumptively deemed disabled. Third, I advised the claimant to start seeing a psychologist too. The psychiatrist concurred with the findings and conclusions of the psychiatrist. Thus, the claimant now had two very strong treating opinions regarding his limited mental functionality.

Because the findings and conclusions of the psychologist and psychiatrist were so supportive of the claimant’s diminished mental functional capacity, I submitted an request for an on the record (“OTR”) decision. The OTR was approved in less than two months. The end result is that the client avoided having to confront the stress of a hearing. Just as importantly, the claimant did not have to wait two years for a hearing before having his application approved

Inability To Speak English

When applying for social security disability (“SSD”) benefits, it is important to mention a claimant’s inability to communicate in English. A client’s application was approved today which illustrates this point.

The claimant, who was born March 20, 1957 and was 49 years old at the onset of his disability, was from El Salvador and could not read, write or speak English. The claimant’s past work was all unskilled, manual labor.

The claimant’s application was approved less than two months after submitting a request for a fully favorable decision on the record (“OTR”), which meant he did not have to wait two years for a hearing. The application was approved based on the “medical-vocational rules” 201.17 and 201.09. Without discussing the medical vocational or “grid rules” in detail, rule 201.17 requires a person between the ages of 45 and 49 with an unskilled work history to be found disabled if unable to communicate in English. In contrast, if the claimant were able to speak English, the grid rules require that the claimant be found not disabled.

This case illustrates how vocational evidence can be just as important as medical evidence.

Discovery In ERISA Cases

An insurance company almost always argues that no discovery should be allowed in a long term disability (“LTD”) case because it realizes that allowing a claimant to investigate the decision making process will show that the denial or termination of benefits was unjustified. Continental Casualty Company and Hartford Life Insurance Company of New York (collectively, the “insurance companies”) made that argument this week to federal Magistrate Judge E. Thomas Boyle, who rejected it.

The parties disagree as to the applicable standard of review, and the insurance companies argued that the standard of review must be established prior to discovery. I argued that even if the applicable standard of review were arbitrary and capricious that discovery must be allowed in order to assist the court in evaluating 1) the nature of the information considered in making the decision; 2) whether the decision maker was competent to evaluate the information; 3) how the decision maker reached its decision; 4) whether the decision maker should have sought outside technical assistance in reaching a “fair and full review” of the claim; and 5) to determine whether a conflict of interest existed.

Magistrate Judge Boyle agreed that the claimant should be allowed discovery immediately, including depositions, regardless of the standard of review. Magistrate Judge Boyle followed the reasoning of District Court Judge Hurley in McGann v. Travelers Property Cas. Corp. Welfare Ben. Plan, 2007 WL 2769500 (E.D.N.Y. Sept. 21, 2007).

‘If the court finds that the administrator was in fact influenced by the conflict of interest, the deference otherwise accorded the administrator’s decision drops away and the court interprets the plan de novo.’. If the plaintiff cannot carry this burden, any conflict the administrator has is simply one more factor to be considered in determining whether the challenged decision was arbitrary and capricious. Therefore, Plaintiff is entitled to conduct discovery in order to show that good cause exists for considering evidence outside the record.

An LTD claimant should always insist on discovery. If insurance companies did not have so much to hide, then they would not vehemently oppose discovery. I always unearth very helpful information through discovery in LTD cases.

Don’t Be Intimidated By DDS

The initial decision in Social Security Disability (“SSD”) cases is made by state agencies referred to as Division of Disability Determination Services (“DDDS”). Almost without exception, the DDDS will insist that a claimant be examined by doctors that it selects. Because the DDDS doctors make a living examining SSD claimants, they rarely conclude that a claimant is disabled. Furthermore, their reports usually contain examination findings that are made up.

If the DDDS truly believes that an examination is needed for additional medical information to evaluate a claim, then the DDDS must ask the treating doctor, as the “preferred source,” to perform the examination. The New Jersey DDDS kept insisting that one of my clients be examined by their doctors. I insisted that any examination would have to be performed by the claimant’s orthopedist, internist or pain management specialist, each of whom had already supplied very supportive and detailed medical evidence.

The debate regarding who should examine the claimant lasted a couple of months, and the claimant’s application was approved yesterday. However, had the claimant been examined by the DDDS doctors, who certainly would have concluded the claimant was capable of working, then the claimant’s application would have been denied, and he would have been compelled to wait close to two years for a hearing

Multiple Sclerosis

Every once in a while the right thing happens when filing a disability claim. I submitted a Social Security Disability (“SSD”) benefits application for a 46 year old, college educated claimant with MS. In addition to providing all of the medical and vocational information on the application forms, all I provided were some preliminary treatment records. While the application and treatment records established the existence of MS, they did not discuss the effects the MS had on functionality.

In the absence of evidence regarding functionality, SSD applications are virtually always denied. In fact, even when supportive functionality assessments are submitted, SSD applications are frequently denied. Therefore, it was surprising to learn that the SSD application was approved in less than two months. This aberrant result should not dissuade claimants though from the cost of seeking functionality assessments as soon as practicable.

Avoiding Hearings

Although a Social Security claim should be approved if the treating physician’s opinion is well supported by the medical evidence, most disability applications are denied initially by the state agency. The next step is a hearing before a Social Security administrative law judge (“ALJ”), which is about a two year wait. If the ALJ applied the treating physician rule properly, then the disability application should be approved.

While it may seem unfair to make a claimant wait years to have the treating physician rule applied properly, there is an alternative. A claimant can make an “on-the-record” (“OTR”) request for a fully favorable decision pending the hearing. The OTR basically asks that the application be approved because the medical evidence is so strong that a hearing is unnecessary.

When submitting an OTR, it is important to have a file that clearly shows an entitlement to benefits. Thus, while a single supporting physician should suffice at a hearing, it may not suffice when submitting an OTR. Therefore, furnishing medical evidence from additional treating sources is important.

I represent a 45 year old school crossing guard, whose application was denied even though it was supported by an arthritis specialist who provided a detailed report summarizing the clinical, diagnostic and subjective medical findings, and concluded that the claimant was unable to perform sedentary work. In connection with an OTR, a second report was submitted from the claimant’s treating orthopedist. Like the arthritis specialist, the orthopedist’s report summarized the clinical, diagnostic and subjective medical findings, and concluded that the claimant was unable to perform sedentary work.

The OTR was approved. As a result, the claimant did not have to wait for a hearing, go through the stress of a hearing, and had a smaller attorney fee. While it is possible that the OTR may have been approved without the report from the orthopedist, experience has shown that an OTR is usually denied when based upon medical evidence from a single supporting physician

Working Does Not Preclude Benefits

The Social Security Administration (“SSA”) wants to encourage people to work. Depending on the circumstances, the SSA may allow a person to collect Social Security Disability (“SSD”) benefits during a time period in which they worked. One such circumstance is called an “unsuccessful work attempt (“UWA”)”.

I received an approval in a case today involving an UWA. The SSA originally concluded that the onset of a claimant’s disability was April 26, 2000, which is when she stopped working at a department store. Because the claimant had to prove that she became disabled before December 31, 1999, the SSA denied SSD benefits.

I took over the case when the claimant had to go to federal court. I pointed out that the claimant was injured at work in February 1997, and had not worked since the accident except for March and April 2000 at the department store. I argued that because the department store work lasted less than three months, it was an UWA, and denial of SSD benefits was wrong. The federal court agreed and remanded the case to the SSA for a new hearing.

At the second hearing, the SSA determined that the work at the department store constituted an UWA. Therefore, the SSA concluded that the claimant’s onset date was February 1997, not April 26, 2000. Because the claimant established that her disability began prior to December 31, 1999, the SSA found that she was entitled to retroactive SSD benefits, including benefits for March and April 2000.

Be Wary of Forms

Applying for disability benefits normally means having to complete forms. However, even if forms appear to be clear they may be skewed in a manner that makes it difficult to be approved for disability benefits.

A Social Security Disability (“SSD”) claimant to me after the Social Security Administration (the “SSA”) rejected her application. A review of the claimant’s file indicated that her treating doctor completed an SSA form that seemed to favor her claim. The doctor checked off the most restrictive box that the form had for sitting, which was less than six hours during an eight hour day. The least strenuous type of work is se3dentary, which requires the ability to sit for most of the day. Nonetheless, the claim had been denied because a disability examiner concluded that there were many jobs where the claimant could sit for about five hours a day, and stand and walk for the remainder.

On appeal, I had the same doctor complete one of my own forms to assess the claimant’s ability to sit during an eight hour day. The form gave the doctor nine options to circle; that is, from zero through eight hours. The doctor selected two hours, which eviscerated the argument that the medical evidence supported the claimant’s ability to perform a job where she could sit five hours a day. Accordingly, the claimant’s SSD application was approved.

There was nothing incorrect with the SSA form. However, the SSA form is designed to make some functional assessments appear less severe and possibly capable of gainful activity. When applying for disability it is important to recognize how form questions can be misleading

Exam Secrets

The Social Security Administration (the “SSA”) has many regulations and secrets concerning a consultative examination (“CE”). A CE is when a doctor selected by the SSA examines a claimant.

One secret is that even though the SSA has claimants sign authorizations so they can receive copies of CE reports, the SSA never provides them. The SSA also does not tell claimants that it pays the same doctors to examine thousands of claimants, and these CE doctors rarely conclude that claimants cannot work.

Being familiar with CE secrets and regulations can be critical to obtaining benefits. I just succeeded in having a 43 year old client’s disability application approved without a hearing based on such knowledge.

As usual, Disability Determination Services “DDS” represented that the claimant had to attend a CE. I advised the DDS it is not allowed to order a CE simply for a “second opinion”. However, I told the DDS that if it contended a CE was needed to provide additional information, then the regulations required that the CE be performed by the “preferred source,” which is the treating physician. The DDS agreed and the treating physician’s CE report completely supported the client’s inability to work. Nonetheless, the DDS still denied the disability application despite lacking any grounds whatsoever for doing so.
The good news is that the DDS’s conduct was so patently wrong that the SSA approved the client’s disability application less than a month after it was submitted. Had I permitted the claimant to attend a CE by the SSA’s non-preferred source, it is very unlikely that the disability application would have been approved without a hearing.

SSD for Firefighter

The fact that a firefighter was found disabled by the fire department does not mean that he must be found disabled by Social Security because the two agencies have different standards. A disability pension from the fire department requires proving the inability to work as a fire fighter while disability benefits from the Social Security Administration (the “SSA”) requires proving the inability to do any type of work in most circumstances. Nonetheless, it is important to inform the SSA if a fire fighter has received a disability pension.

There are five steps to the SSA hearing process. The fourth step is can the claimant perform past work, and the fifth is can the claimant perform any other work. While the claimant has the burden of proof at the fourth step the SSA has the burden of proof at the fifth step. Since the fire department is in a better position than the SSA to determine that a claimant cannot continue to work as a fire fighter, it would be nearly impossible for the SSA to issue a contrary ruling. Therefore, the fire department’s ruling effectively shifts the burden of proof to the SSA.

The burden of proof shift is very important. I represent a firefighter who came to me after his application was denied based on the report from the SSA doctor. I obtained reports from the claimant’s doctors that contradicted the SSA doctor. Even if there were a stalemate between the doctors, the claimant would be entitled to benefits because the SSA had the burden of proof. As a result, the SSA approved the fire fighter’s benefits.

Consultative Examinations

Social Security Disability claims are usually denied based on the reports of consultative examinations (“CEs”). I advise my clients not to attend CEs because the regulations provide that the preferred source for performing a CE is the treating physician, and not a doctor selected by the state agency processing the initial application. There are three possible outcomes where a claimant does not attend a CE by a state agency consultant.

The first possibility is that the medical evidence supplied by the claimant and obtained by the state agency is so strong that the application gets approved despite refusal to attend the CE.

The second possibility is that the application will be denied on the grounds of non-cooperation. However, if the state agency is advised how the regulations would be violated if the CE is not performed by the treating physician, and the claimant offers to supply whatever specific medical information the state agency contends is needed to adjudicate the claim, then there is no valid basis for asserting non-cooperation. If then application is denied, the non-cooperation argument does not stand up on appeal.

The third possibility is that the state agency will agree to have the treating physician perform the CE. This is rarely the case, but when it happens, it virtually guarantees that the application will be approved on appeal if the state agency denies the application. I just had a lightning fast approval of such a case.

I represented a client whose application was denied despite the fact that I persuaded the state agency to have the treating orthopedist perform the CE, who concluded that the claimant was totally disabled and could not do any type of work. The day the claim file was transferred to the hearing office I submitted a request asking that the claimant’s application be approved based upon the evidence currently in the file. I argued that all the medical evidence, including the CE paid for by the state agency, showed the claimant was entitled to disability benefits. I received a telephone call in less than a week advising me that the application would be approved, and a written decision was received a couple of weeks later.

Purpose of SSD Hearing

It is a relatively rare situation where the Social Security Administration (the “SSA”) contests a claimant’s alleged medical impairments. While the diagnoses are not at issue, the severity of the claimant’s medical condition is the primary issue at the vast majority of Social Security Disability (“SSD”) hearings.

When preparing for a hearing, it is critical to focus on the real purpose for holding a hearing. A hearing is required when the SSA has determined that the objective medical evidence in the file does not suffice to establish the claimant’s entitlement to SSD benefits. Therefore, a hearing is held to see if the subjective medical evidence, the claimant’s sworn testimony, is enough to establish the claimant’s entitlement to SSD benefits when added to the objective medical evidence.

Since the purpose of the hearing is to assess whether the claimant’s subjective complaints are credible, evidence establishing credibility in general should be provided. I received a fully favorable decision today that illustrates this point.

The claimant was under 50 years of age, had a high school education, and a skilled sedentary job, which qualified her as a young, skilled, well educated person. An application by such a claimant is subject to the strictest standard for entitlement to SSD benefits. While an older, less skilled or less educated person with the same medical records may have been entitled to SSD benefits, my client had to rely on her subjective complaints to augment her claim.

I did two things to bolster the claimant’s credibility. First, I conducted a direct examination eliciting the claimant’s entire work history based on her SSA earnings record, which extended 31 years including the last 13 years with the same employer. I advised the ALJ on the record that the federal courts hold that where a claimant has a long work history of continuous work at the same employer, her testimony as to her capabilities is entitled to substantial credibility, and, that a claimant’s long and honorable work history justifies the inference that when she stopped working she did so for the reasons testified to. I then pointed out that the claimant’s SSD benefits would not come close to the income of her well paying job, and that commonsense dictated that she would have continued working if able to do so.

The other tactic that I intended to use to bolster the claimant’s testimony was to have the claimant’s mother testify as a witness, but the ALJ stated that would not be necessary. That indicated the ALJ accepted the claimant’s credibility and would approve SSD benefits because failing to develop the administrative hearing record by precluding witness testimony would have been reversible error

Why Wait?

Some disability attorneys do not submit medical records in support of Social Security Disability (“SSD”) claims until after the application has been denied. The rationale is that the State agency that makes the initial determination will disapprove the claim regardless of what medical evidence is submitted. Therefore, medical records are submitted only after the claim file is transferred from the State agency to the Social Security Administration (“SSA”) for further processing. I disagree with that approach.

Government statistics indicate that about 30% of SSD claims are approved by the State agency. While the percentage of claims approved by the SSA at the hearing level is higher, it still makes sense to present the strongest case possible at the initial level. I aggressively secure medical evidence and submit it as soon as possible to the State agency, even though it might require me to resubmit it to the SSA if an appeal is required.

I had a client’s SSD application approved today after only two and a half months. The client is thrilled because she gets her benefits sooner than expected, which also means that her attorney will be smaller. While aggressively prosecuting claims does not usually result in claims being approved this quickly, not submitting medical evidence until SSA takes over responsibility for the file all but forecloses the possibility of a rapid approval.

Insurance Department Complaint

Insurance companies constantly deny and terminate Long Term Disability (“LTD”) claims without any legitimate basis because their decisions are usually subject to deferential review. Even if the basis for the denial or termination is wrong, a reviewing court will not overturn the decision unless it is patently arbitrary. Therefore, rather than paying disability benefits, insurance wrongfully deny and terminate claims because they hope a court will uphold the decision even if it is wrong.

One way to combat an insurer’s improper claims decision is by filing a complaint with the State insurance regulatory agency. Such a complaint must be filed prior to litigation, while the claim is still subject to administrative review by the insurer. I have a client from Ohio whose claim was approved by Aetna yesterday, not coincidentally after a complaint was filed with the Ohio Insurance Department.

The claimant filed her LTD application by providing all of the information required by Aetna’s application forms, including medical reports from her three treating doctors. Nonetheless, Aetna denied her application. I filed a complaint with the Insurance Department because, among other things, Aetna refused to provide a copy of the claimant’s file other than her medical records. Even though the claimant’s appeal relied on the same medical records from the same treating doctors, the application was approved after the Insurance Department complaint was filed.

If a case proceeds to federal court, in most cases the only risk for the insurer is the possibility of paying the claimant’s attorneys fees. Filing a complaint with the insurance department can result in other types of penalties and the filing itself is a blot on the insurer’s record. Furthermore, filing the insurance department complaint sends a signal to the insurer that the claimant is serious about obtaining disability benefits and most likely will litigate if necessary.

As noted above, insurers frequently risk going to court rather than paying disability benefits because they hope a court will uphold the decision even if it is wrong. Nonetheless, insurers often try to increase their chances succeeding in court by avoiding terminating or denying a claim with well developed evidentiary support. Claims that are prepared in anticipation of litigation, which includes filing insurance department complaints, vigorously rebutting all of the insurer’s arguments, and submitting both medical and vocational evidence in support of the claim, will increase the chances of securing benefits prior to having to proceed to court.

Overreach For Disability Retirement

In order to obtain disability pension benefits under the New York State Retirement System, a claimant needs to show the inability to continuing working at his or her job. I have succeeded in securing benefits each time I submitted applications by providing evidence that the claimant is incapable of performing ANY work, let alone the claimant’s prior position.

A claim was approved yesterday that illustrates the above strategy. The starting point, which is frequently overlooked, is establishing the vocational demands of the claimant’s job. Obviously, the most physically and mentally strenuous, the easier it is to argue the job’s demands can no longer be met. The claimant worked in law enforcement, which clearly was not a sedentary position. The next step is showing how the medical evidence shows that claimant cannot perform the past work. However, rather than simply obtaining medical records and opinions demonstrating that the claimant could no longer perform her job in law enforcement, I showed how the medical evidence demonstrated the claimant could not perform the demands of any type of work on a full time basis, even sedentary desk work.

While many of my colleagues believe my tactics are excessive, I succeed at the initial application stage. Unlike some other sources of disability benefits, the chances of securing disability pension benefits do not increase at subsequent appeal stages. Additionally, from the client’s perspective, avoiding the time it takes to appeal an initial denial reduces attorney fees, which are typically at least partially contingent.
Posted by The Law Offices of Jeffrey Delott at 9:17 AM No comments:
Insurance Department Complaint

Insurance companies constantly deny and terminate Long Term Disability (“LTD”) claims without any legitimate basis because their decisions are usually subject to deferential review. Even if the basis for the denial or termination is wrong, a reviewing court will not overturn the decision unless it is patently arbitrary. Therefore, rather than paying disability benefits, insurance wrongfully deny and terminate claims because they hope a court will uphold the decision even if it is wrong.

One way to combat an insurer’s improper claims decision is by filing a complaint with the State insurance regulatory agency. Such a complaint must be filed prior to litigation, while the claim is still subject to administrative review by the insurer. I have a client from Ohio whose claim was approved by Aetna yesterday, not coincidentally after a complaint was filed with the Ohio Insurance Department.

The claimant filed her LTD application by providing all of the information required by Aetna’s application forms, including medical reports from her three treating doctors. Nonetheless, Aetna denied her application. I filed a complaint with the Insurance Department because, among other things, Aetna refused to provide a copy of the claimant’s file other than her medical records. Even though the claimant’s appeal relied on the same medical records from the same treating doctors, the application was approved after the Insurance Department complaint was filed.

If a case proceeds to federal court, in most cases the only risk for the insurer is the possibility of paying the claimant’s attorneys fees. Filing a complaint with the insurance department can result in other types of penalties and the filing itself is a blot on the insurer’s record. Furthermore, filing the insurance department complaint sends a signal to the insurer that the claimant is serious about obtaining disability benefits and most likely will litigate if necessary.

As noted above, insurers frequently risk going to court rather than paying disability benefits because they hope a court will uphold the decision even if it is wrong. Nonetheless, insurers often try to increase their chances succeeding in court by avoiding terminating or denying a claim with well developed evidentiary support. Claims that are prepared in anticipation of litigation, which includes filing insurance department complaints, vigorously rebutting all of the insurer’s arguments, and submitting both medical and vocational evidence in support of the claim, will increase the chances of securing benefits prior to having to proceed to court.

Vertigo

Yesterday, Janet Jackson resumed her concert tour after canceling two weeks of shows due to vertigo. Besides being the name of a famous Alfred Hitchcock movie, vertigo is the sensation that you are dizzily turning around or things are dizzily turning about you. Vertigo is usually associated with an inner ear or vestibular disorder. When severe, vertigo can be disabling.
I represent a former psychiatric nurse with vertigo whose Social Security Disability (“SSD”) benefits were approved in less than five months. The key was showing that the claimant met the criteria of what is referred to as a “listed impairment”. A listed impairment is a medical condition that is so serious that a person is deemed disabled if the criteria are met. Vertigo can fall under listing 2.07, entitled Disturbance of labyrinthine-vestibular function.

I was able to demonstrate that the claimant’s vertigo satisfied the criteria of listing 2.07. I supplied clinical records reflecting a history of balance disturbance, lightheadedness, hearing loss, nausea and tinnitis. I also submitted rotational chair balance and platform posturography reports, which are test diagnostic teststhat confirm the vestibular labyrinth dysfunction, together with audiometric evaluation reports that established the degree of hearing loss.

Because the claimant had both clinical and diagnostic evidence to support her condition, she was able to show that she met the listing, which enabled her to receive her SSD benefits relatively quickly. Otherwise, she probably would have needed to wait until a hearing, and that would have delayed her receipt of benefits for over a year at a minimum.

No Objective Testing Required for Chronic Fatigue

I took over a Social Security Disability (“SSD”) case from another attorney when the claimant had to go to federal court. The claimant was diagnosed with vestibular disorder and then Chronic Fatigue Syndrome (“CFS”). I succeeded in having the court order another hearing before an administrative law judge (“ALJ”).

The case had been denied for lack of objective evidence. Regarding the vestibular disorder, I pointed out that while the ALJ had cited a normal diagnostic test, he had overlooked five other abnormal tests that substantiated the disorder. Nonetheless, the focus became CFS because the claimant’s infectious disease specialist and family doctor believed the vestibular disorder was symptomatic of the overall CFS.

The treating doctors summarized their clinical findings and conclusions. Their reports also provided detailed functional capacity assessments that precluded sedentary work. However, neither physician cited any diagnostic test data to support their opinions. To the contrary, each stated that there is no diagnostic testing associated with CFS, and that diagnoses, treatment and their disability o pinions were based on their clinical treatment history.

Disability claims are routinely denied or terminated for lack of “objective” evidence. In submitting a case, it is important to note whether there is any diagnostic testing that could possibly be submitted. It is equally important to highlight that physical examination findings are objective medical according to any medical dictionary or treatis

Non-binding Disability Decision

Many claimants submit applications for more than one type of disability benefit. A reviewing agency or insurance company will always point out that being approved by another agency or insurer for disability benefits is not binding upon it. Nonetheless, a favorable decision should always be supplied because it is still persuasive evidence that must be considered.

Courts repeatedly state that although a Social Security Disability (“SSD”) decision is not binding upon an insurance company in the group long term disability context, it is arbitrary for an insurer to refuse to explain why the favorable SSD decision was wrong. I received a favorable SSD decision that also illustrates an approval should always be brought to the attention of another disability decision maker.

I represent a client whose SSD claim was pending for a year at the initial level. The Social Security Administration (the “SSA) kept raising excuses for refusing to decide the matter. In the interim, I obtained an approval for the claimant’s New York State Disability Retirement Pension. Shortly after I submitted the NYS decision to the SSA, the claimant’s SSD application was approved without explanation, despite threats to deny the SSD claim because the claimant refused to attend a consultative examination. Those threats make it unlikely that it was simply a coincidence that the SSD claim was approved right after the NYS decision was submit