September 2007 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Wednesday, September 19th, 2007

Always Review Your File

If your Social Security Disability claim has been denied, you do not have to wait for a hearing, which typically takes close to two years to schedule. You can make an “on the record” (“OTR”) request that your claim be approved based on the information already contained in the file. The OTR summarizes the medical and vocational evidence and then asserts the legal arguments why the application should be approved.

As you may suspect, OTR’s are normally approved only where there is little doubt that the State agency, which makes the initial disability decision, erroneously denied the application. Most of the time, the denial is erroneous for refusing to give adequate weight to evidence from treating sources or for ignoring favorable vocational factors. However, the State agency also makes obvious errors, such as completely overlooking certain evidence or losing evidence, with surprising regularity. Alerting the hearing office to those errors in an OTR is likely to result in the claim being approved.

I received an OTR today that illustrates how a careful review of a file led to a rapid approval. The claimant’s medical evidence was not that strong. In fact, her long time treating doctors refused to complete reports to support the claimant’s application because, like many doctors, they don’t want to get involved in the disability process. The State agency had denied the application based on the report from the “Consultative Examiner (“CE”),” who is essentially the doctor from Social Security. An exacting review of the file however revealed a note from the State agency disability analyst, which to my shock and glee actually stated in writing that the CE report had to rejected because its conclusions were too vague.

The claimant did have one doctor who recently began treating her who supported her claims. Because the disability analyst rejected the CE report, there was no medical evidence to contradict the treating doctor’s opinion. Consequently, although the claimant is only 45 years old, and only has one relatively new treating doctor to support her claim, the claimant’s OTR was approved in two weeks

Monday, September 17th, 2007

Vocational Evidence & Credibility

Evidence is divided into objective and subjective evidence. Examples of objective medical evidence are clinical observations and diagnostic tests, while symptoms are subjective. Disability claims are frequently rejected for lack of “objective” medical evidence, or are denied on the grounds that the claimant’s subjective complaints are exaggerated or lack credibility.
Just as it is important to emphasize the objective medical evidence that supports a claim, the objective vocational evidence that supports a claim should also be highlighted. Most claimants overlook how vocational evidence can support their credibility, making it more difficult for their claim to be denied for lack of objective evidence.
One of my client’s disability applications was just approved without ever having been denied. While the claimant had medical evidence supporting his claim, there was no diagnostic testing to support his claims, just clinical records and reports. Nonetheless, the claimant’s application was approved quickly because of the emphasis placed on the vocational evidence.
It is well established in the courts that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant stopped working she did so for the reasons testified to. The presumption of credibility is even stronger where a claimant has a long work history of continuous work at the same employer.
My client’s disability application only wanted the claimant’s work history for the last 15 years. However, I stressed the claimant’s extraordinarily strong, continuous (40) forty year work history. I explained how the claimant’s work history provided objective evidence that rendered his subjective complaints credible. Considering the majority of disability claims are denied initially, and my client did not have unusually strong supporting medical evidence, the emphasis on his vocational evidence was critical to his obtaining benefits quickly
Posted by The Law Offices of Jeffrey Delott at 1:28 PM

Sunday, September 9th, 2007

The More The Merrier

The saying, “The More The Merrier,” is particularly apt when applying for disability benefits. Most disability applications do not require more than one treating source as a prerequisite to receiving benefits. However, as the number of supporting sources increases, so too do the chances of securing disability benefits sooner.

I had a perfect application of the more the merrier saying to a disability claim last Friday. I represent a 46 year old health care attendant with her Social Security Disability (“SSD”) and her Disability Pension Retirement (“DPR”) claims. It took only a few months for her SSD claim to be approved, which should increase the chances of her DPR claim, which was just filed, also being approved. An SSD claim typically takes much longer than just a few months to be approved, particularly for a claimant less than 50 years of age.

My client’s claim was approved quickly because supporting reports from three treating sources were submitted. While the claim could have been approved eventually by relying solely on one of the physicians’ reports, it is highly unlikely that the approval would have occurred after only a few months.

When filing a disability application it is critical to ask as many treating sources as possible to prepare supportive reports, even if the doctors or other health care providers are not treating the primary medical condition. If treating sources will not complete paperwork, which happens fairly frequently for a variety of reasons, then start treating with other health care professionals who will. The sooner multiple treating reports are submitting to support a claim, the sooner the claim is likely to be approved.