November 2008 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Friday, November 28th, 2008

Depression & OCD

Many people with mental impairments do not seek Social Security Disability (“SSD”) benefits because they have been told that it is too hard to show that their condition renders them unable to work. It is true that there are few diagnostic tests to establish the severity of a mental impairment, and it is also true that the Social Security Administration (“SSA”) is more reluctant to approve claims that based upon subjective evidence. However, obtaining a “listing” opinion can help
overcome those problems.

In pursuing SSD benefits, it is very beneficial to submit the opinion of a treating psychologist or psychiatrist regarding what is known as a “Listing”. If a claimant meets the criteria of a “Listing,” then the claimant is considered presumptively disabled and entitled to receive disability benefits. Even if the SSA rejects the listing opinion, which can provide procedural bases for reversal, the opinion increases the likelihood that the claimant will be found disabled for lacking the mental residual functional capacity (“RFC”) to work.

I represent a 53 year former advertising sales representative afflicted with depression and obsessive compulsion disorder, who applied for SSD benefits over five years ago. The claimant retained me shortly before his hearing. I was able to secure a listing opinion cosigned by the claimant’s psychiatrist and psychologist.
The SSA found claimant disabled based upon his RFC not listing. However, both the hearing and decision were relatively brief, which leads me to believe that the listing opinion served its purpose.

Friday, November 14th, 2008

Overpayment

When the Social Security Administration (the “SSA”) accuses people of improperly receiving benefits it is called an overpayment. Recently, I have been increasingly representing claimants that the SSA accuses of working for their self-employed spouses, which results in an overpayment of Social Security Disability (“SSD”) benefits.

The SSA found that one of my clients became disabled in 1992. In 2005, the claimant notified the SSA that he was going to work for his wife’s company, and asked the SSA to stop his SSD payments. Proof that no good deed goes unpunished, rather than thanking the claimant for telling the SSA to stop his SSD benefits, the SSA told him that he owed $40,000 in overpaid SSD benefits because he had been working for his wife’s company.

It seems that the SSA has an unwritten presumption that disability claimants work for their self-employed spouses. Based on pure speculation, the SSA asserted that the claimant had been working for his wife’s company. Despite dozens of attempts over two years the SSA never provided any evidence in response to my demand for proof that the claimant had been working for his wife.

The SSA has the burden of proving a claimant received an overpayment based on substantial evidence. Despite that burden and the absence of any evidence to support the overpayment allegation, the claimant was compelled to appear for a hearing. Yesterday, I received the hearing decision that ruled there was no overpayment based on the claimant’s tax returns and testimony.

Before contacting me, the claimant intended to see if he could negotiate a reduced overpayment. Although it took over two years, the claimant was well served contesting the overpayment.

Friday, November 14th, 2008

Medical Specialists

Disability claims usually come down to a battle between your doctors and the those representing the insurance company or agency responsible for paying the disability benefits. Therefore, the more highly credentialed your doctors are, the less likely the chances are that your claim will be denied

A recent blog entry of mine described the case of a floor trader whose disability claim was based on uveitis. The claimant was treated by Michael Samson, who is widely renowned as one of the leading uveitis specialists in the United States. Unum approved long term disability after recognizing that it could not find a doctor capable of credibly contradicting Dr. Samson’s findings and conclusions.

Your doctor’s credentials can be just as important when seeking Social Security Disability (“SSD”) benefits. I represent a 47 year old school bus driver whose SSD application was approved in only two months. More to the point, the application was approved less than two weeks after submitting a form medical report from the claimant’s treating physician.

I have had many other older and less educated claimants with similar medical findings and conclusions whose applications were not approved until a hearing, or after an initial denial. The difference this time was that the treating physician made his credentials available. While other physicians may have credentials that are just as impressive, those facts are unknown to the analysts making the benefit determination. Therefore, when submitting medical evidence from a treating source, if at all possible, that doctor’s credentials should be provided.
Posted by The Law Offices of Jeffrey Delott at 7:09 PM

Tuesday, November 4th, 2008

Best Medical Evidence

The surest way to secure Social Security Disability (“SSD”) benefits and to avoid a hearing is to have a treating physician provide a report that explains why a claimant meets a “listed impairment”.

The Social Security Administration (“SSA”) describes impairments that are considered severe enough to prevent a person from working. If the claimant has such an impairment, the SSA will consider him or her disabled and entitled to SSD benefits. In other words, the SSA presumes that a claimant who is afflicted with a “listed” impairment is unable to work.

Late last year, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. It is very difficult for a claimant to establish disability six years prior to the filing date. Nonetheless, the claimant’s application was approved without a hearing.

I was able to get the treating psychiatrist to provide reports explaining why the claimant met listing 12.04, which applies to bipolar and major depressive disorder. The SSA approved the SSD application based upon those reports. While the claimant may won benefits without the listing reports after a hearing, it is unlikely that the application would have been approved without the reports.

Monday, November 3rd, 2008

Appeals Council Remand

I received an order today from the Social Security Administration Appeals Council today remanding a partially favorable decision from an Administrative Law Judge (the “ALJ”). My client was reluctant to appeal because he was also concerned about the decision being reversed and because the ALJ said my client was not entitled to any more benefits.

I explained to my client that there were several grounds for reversing the ALJ’s decision, and that receipt of additional benefits was dependent on just one of those grounds being accepted. Moreover, I advised my client that it was exceedingly rare for the Appeals Council to convert a partially favorable decision into an unfavorable one totally denying benefits.

Once the claimant understood why the ALJ’s decision was faulty, and that his approved benefits were not really at risk, the claimant decided to appeal the decision. Now that the Appeals Council has remanded the matter, there is a very good chance that the claimant will receive additional benefits. A claimant should ask his or her attorney for a detailed explanation if a hearing decision is not fully favorable, and should seek a second opinion if the attorney does not think there are grounds for an appeal.