July 2009 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Thursday, July 30th, 2009

Retrospective Medical Opinions

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.

Saturday, July 25th, 2009

Senior Attorney Adjudicators

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.

Thursday, July 23rd, 2009

Medical Improvement

Statistics from the Social Security Administration show that some Administrative Law Judges (“ALJs”) have a significantly lower approval rate than other ALJs. ALJ Seymour Fier only had an approval rate of 33% for 2008, which is less than half that of other ALJs, including those at the same hearing office. Just because ALJ Fier labels his decision “fully favorable,” doesn’t mean that it actually is.

ALJ Fier issued a fully favorable decision to a clothing salesman who was 48 years old when he became disabled due to very severe asthma and cardiovascular disease. At the hearing, the ALJ had the medical expert (“ME”) testify before the claimant, and the ME concluded the claimant could not do sedentary work. When I stated that I only had a few questions for the ME because he could confirm that the claimant met two of the listings for pulmonary impairments, the ALJ stated that it was not necessary in light of the ME’s testimony.

The ALJ’s “fully favorable” decision states that the claimant should be re-evaluated in 24 months because “medical improvement is expected.” None of the medical evidence supports that statement. To the contrary, the treating doctors stated that the claimant’s conditions are permanent and progressive. While there is no doubt that the claimant’s condition will continue to deteriorate, the issue of medical improvement should not have been an issue if the ME had been allowed to testify regarding the claimant meeting a pulmonary listing.

Friday, July 17th, 2009

Fibromyalgia

Disability benefits adjudicators are averse to approving claims based upon fibromyalgia. Fibromyalgia claims are frequently denied for allegedly lacking objective evidence. I represent a 37 year old banker with fibromyalgia whose application for Social Security Disability (“SSD”) benefits was approved in only three months.

To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted functionality assessments from two rheumatologists and an infectious disease specialist. Based upon their examinations and review of the medical records, each specialist concluded the claimant was unable to do sedentary work on a full time basis.

The rheumatologists’ opinions are particularly important because the only accepted standard for diagnosing fibromyalgia is the criteria from the American College of Rheumatology (the “ACR”). The rheumatologists specified that their diagnosis and opinions regarding the severity of the claimant’ fibromyalgia was based on strict adherence to the ACR criteria. All three specialists explained why the claimant’s fibromyalgia was severe enough to preclude her from working, and those opinions were buttressed by a report that a vocational consultant prepared.

Fibromyalgia claims not only need longitudinal treatment records showing complaints and diagnoses of fibromyalgia, but also multiple expert opinions regarding the severity of the claimant’s condition to have any chance of being approved.