July 2010 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Wednesday, July 28th, 2010

Medical Listing Opinions

I began representing a 41 year old former road crew worker, who stopped working due to depression, after Binder & Binder refused to appeal his case to federal court. I got the case remanded in federal court for a second hearing before Administrative Law Judge (“ALJ”) Seymour Raynor, who approved the application yesterday. The major difference between the two hearings was the addition of a medical opinion explaining that the claimant met the listing for depression.

If the criteria of a “listing” are met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits. In fact, the ALJ had a vocational expert (“VE”) ready to testify, but after the medical expert agreed with the treating psychiatrist’s letter explaining that the claimant met the listing, the ALJ promptly ended the hearing without hearing from the VE.

It is one thing for an attorney to make the legal argument as to why the medical evidence shows that a claimant meets a listing. It is another thing for a doctor to explain why the medical evidence meets the listing criteria. The latter constitutes medical evidence itself, which cannot simply be ignored under the regulations.

Monday, July 12th, 2010

Treatment Records

I received a fully favorable decision today from Administrative Law Judge (“ALJ”) Weiss on another federal court remand involving a police officer. The claimant’s doctors concluded that the he lacked the ability to perform sedentary work. The ALJ had Gerald Greenberg testify as a medical expert (“ME”), and he concluded the claimant could do sedentary work.

The cross exam of the ME, who testified the treating doctors’ opinions were inconsistent with their treatment notes, was critical. I was able to get the ME to admit that the treating doctors’ opinions were based on diagnostic testing, and that there were objective clinical signs that supported the diagnoses. More importantly, I got the ME to admit that the purpose of treatment notes is not to provide evidence for a disability matter, which would explain differences between the notes and disability reports. ALJ Weiss accepted the opinions of the treating doctors over ME Greenberg because the former were “consistent with the diagnostic tests, clinical signs and the record as a whole.”

This matter reflects a critical issue when dealing with disability claims. Treatment notes basically serve as a way to remind the physician of things she or he may need to remember at a follow up visit. Many relevant physical exam findings are not included either because, for example, they may have been previously reported and would be redundant, are obvious such as walking with a cane, or are implied, such as trigger points for fibromyalgia. Claims adjudicators frequently try to deny a claim by relying on treatment notes’ omissions as evidence that a person lacks “objective evidence” to support a claim. Therefore, it needs to be pointed out that treatment notes do not serve the same purpose as a narrative or other disability report, which is why they may appear different.

Monday, July 12th, 2010

Avoiding SSD Hearings

It can take years to get a Social Security Disability (“SSD”) application approved. According to the Social Security Administration (the “SSA”), the majority of applications are initially denied. The next step in many locations, including the New York metropolitan area, is to have the claim heard by an Administrative Law Judge (“ALJ”). The waiting time for a hearing according to SSA statistics is well over a year. Hearing offices will often tell claimants to expect an 18 to 24 month for the hearing.

The hearing delay can be avoided by making use of the staff attorneys at hearing offices known as Attorney Advisors. An Attorney Advisor can issue fully favorable on-the-record (“OTR”) decisions, which negates the need for a hearing with an ALJ. The best way to show an Attorney Advisor that a case does not need to be heard by an ALJ is by showing that 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 50 year old former construction laborer. I cited a Medical-Vocational rule that required finding him disabled even he were capable of performing sedentary work. While accepting the evidence that the claimant lacked the ability to perform sedentary work, the Attorney Advisor pointed out that even if the claimant possessed that ability the Medical-Vocational rules would require finding him disabled.

The Medical-Vocational rules bolstered the credibility and reliability of the claimant’s complaints and the treating physician’s opinion. The net result was that instead of waiting well over a year for a hearing, the claimant only waited 11 days for his OTR to be approved.

Saturday, July 10th, 2010

Federal Court Remand

I took over the case of a former dietary aide who needed to file an SSD appeal in federal court. The Appeals Council had agreed with ALJ Weiss that the claimant could perform light work. The court ruled that there were errors when the ALJ made the decision, and remanded the case to ALJ Weiss. After holding a second hearing, ALJ Weiss issued a fully favorable decision today.

During the hearing, I had the claimant testify about the extent of the treating relationship that he had with his neurologist, orthopedists, and chiropractor. Each concluded that the claimant lacked the ability to perform sedentary work. The ALJ had Gerald Greenberg testify at the second hearing as a medical expert (“ME”), and he concluded the claimant could do sedentary and probably light work. On cross exam, I had the ME admit that the treating doctors were in a better position than he was to evaluate how the claimant’s symptoms affected his ability to work by virtue of their having examined the claimant. At the close of the hearing I pointed out to the ALJ that even if the claimant had a sedentary work ability that he would still have to be found disabled under the medical-vocational rules.

ALJ Weiss accepted the opinions of the treating physicians over the ME because the ME “did not have a treating relationship with the claimant, nor did he have the benefit of examination.” The ALJ also noted that the claimant would have to be found disabled even if he could do sedentary work as the ME had concluded.

The hearing went smoothly because I had assumed that the ME would testify the claimant could do light work, and I had prepared a cross exam to undermine the ME’s conclusions. The ALJ had indicated that he would probably issue a decision again finding that the claimant could do light work, but it appears the cross exam of the ME precluded that.

Saturday, July 3rd, 2010

The MTA & SSD

Understanding the rules for obtaining Social Security Disability (“SSD”) benefits can help secure Disability Retirement benefits from New York State or City.

I represent a Superintendent of Maintenance Operations for Buses who needed to apply for SSD benefits and Disability Retirement with the Manhattan and Bronx Surface Transit Operating Authority (the “MTA”). The job required him to be on his feet for at least 6 hours a day, crouch, kneel, stoop, and climb for at least 3 hours a day, and lift 50 pounds. Those physical demands classified his job as medium work, which requires lifting, carrying, pushing, or pulling 50 pounds, and standing/walking for at least 6 hours.

In order to obtain SSD benefits, the claimant not only had to show that he was incapable of performing his past work, but any other type of work as well, which includes sedentary work. Unlike medium work, sedentary work involves sitting most of the day and lifting no more than 10 pounds. Under the rules for obtaining SSD benefits, the claimant could have secured those benefits even if he were able to perform light work, which requires standing and walking for at least six hours. However, because the claimant was also seeking disability retirement benefits from the MTA, I gathered evidence to show the claimant was unable to do even sedentary work.

Yesterday’s decision from the Social Security Administration (“SSA”) concluded that the claimant was unable to do sedentary work. If the claimant cannot do sedentary work, then it should be clear that he lacks the ability to perform more strenuous light work, and certainly medium work, which is even more physically demanding. While the SSA decision is not binding on the MTA, it certainly is persuasive. This is a tactic that I have used successfully many times before.

Friday, July 2nd, 2010

When Work Doesn’t Count

I filed an application seeking Social Security Disability (“SSD”) benefits for a client who stated that he became disabled in 2005. I received a partially favorable decision today from ALJ Seymour Fier that approved the claimant’s application as of March 2008. This presents a perfect example of the type of partially favorable decision that should be appealed.

As an initial matter, instead of 2005, ALJ Fier erroneously stated that the claimant’s onset date was December 2003. ALJ Fier then concluded that the claimant never performed substantial gainful activity (“SGA”) after December 2003, and that he lacked the ability to perform sedentary work. A person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA.

The claimant testified that he did some very limited work between 2005 and March 2008, and he supplied earnings records showing that the work was not SGA. Nonetheless, even though ALJ Fier admitted that the work was not SGA, he only approved benefits as of March 2008.

ALJ Fier’s decision is clearly wrong. Accepting his findings that the claimant did not engage in SGA after the onset date, and could not do sedentary work, requires reversal. It appears that ALJ Fier hoped that the claimant would be satisfied with a partially favorable decision, and would forfeit his right to SSD benefits prior to March 2008. The reasons behind a partially favorable decision should always be scrutinized.