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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

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.

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.

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.

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.

Chondromalacia

You don’t have to be elderly to have disabling arthritis. Chondromalacia is essentially arthritis of the knee. I represent a 39 year old former press operator whose Social Security Disability (“SSD”) benefits were approved without a hearing.

The claimant retained me after he filed his application for SSD benefits. His application was denied in August on the grounds that the medical evidence failed to show a condition that would prevent him from doing sedentary work. Sedentary work requires lifting 10 pounds, walking and standing about 2 hours a work day, and sitting the remainder of the time.

Last month, I submitted an on-the-record (“OTR”) request for a fully favorable decision. After establishing that chondromalacia is a medially determinable condition, I demonstrated that it reduced the claimant’s functionality to the extent that sedentary work was not possible. The key was securing work assessments from three physicians, two orthopedists and an arthritis specialist, showing that the claimant could not lift 10 pounds, walk and stand for 2 hours a work day, and sit the remainder of the day.

Simply having one physician’s assessment may have sufficed after a hearing to obtain the claimant’s SSD benefits, but probably would not have been enough evidence to succeed via OTR. By successfully using the OTR process, the claimant will not have to wait 18 to 24 months before his hearing would be rescheduled.

Subpoena The SSA Doctor

When you apply for Social Security Disability or Supplemental Security Income benefits, the Social Security Administration (“SSA”) will tell you to see its doctor. The SSA calls its doctor a Consultative Examiner (“CE”).

Most of the time the actual exam by the CE is cursory, contains findings that simply are made up, and indicates the claimant can work. The SSA then ignores what the treating doctor says and relies on the CE report to deny the application for disability benefits.

In New York, after the initial denial, the Administrative Law Judge (“ALJ”) assigned to your case sends you a hearing notice. Among other things, the notice says you have the right to ask the ALJ to issue a subpoena for people or documents. The SSA regulations and case law provide you with the right to cross examine your CE.

Always request that the ALJ subpoena your CE. The CE will not be able to support most of the findings and conclusions in the CE report. Furthermore, if the ALJ refuses to issue the subpoena, then that denial of due process provides automatic grounds for a new hearing if the ALJ denies your claim. I just received a decision from the Appeals Council that rejected an ALJ’s unfavorable decision for that very reason.