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

Thursday, August 26th, 2010

Headaches

When seeking Social Security Disability (“SSD”) benefits, you don’t have to prove the etiology of your pain with certainty. However, you do need to show that you have a medical condition that could reasonably produce your pain, and that the pain limits your ability to work.

Headaches obviously can cause pain. Frequent and intense headaches could obviously disable you from work. Nonetheless, it is frequently difficult to establish disability because of headaches, due to a lack of evidence.

Evidence that the pain from headaches limits a person’s ability to work can be obtained through functional assessments of the doctors treating the headaches. However, I’ve found that narrative reports from the treating doctors are usually needed to establish the frequency and intensity of the pain to receive SSD benefits, especially prior to a hearing where the claimant would have to testify about the same, which testimony would then be subject to a credibility determination.

I represent a former 58 year old construction supervisor who had to stop working because of headaches. I submitted functional assessments from the treating doctors showing that the claimant lacked the ability to work on a full time basis. However, it was not until I submitted a narrative report from the claimant’s neurologist that SSD benefits were approved. The narrative report described the severity and frequency of the claimant’s headaches, and concluded that they probably had a central nervous system origin.

Without the narrative report, the claimant would have been required to proceed to a hearing, which among other things, would have delayed his benefits for many months. Because the narrative report supplied objective evidence of the frequency and intensity of the claimant’s headaches, his SSD application was approved in four months.

Monday, August 23rd, 2010

Ankle Injuries

Social Security Disability (“SSD”) benefits may be available even if you have little or no trouble lifting, carrying, or sitting. If you have difficulty walking due to an ankle problem, then you may be entitled to SSD benefits.

One way to qualify for SSD benefits is where the ankle meets the “listing” for major joint dysfunction. The listing is met if the ankle problem revealed by an x-ray causes pain and stiffness that makes walking difficult. The listing defines difficulty walking as being unable to walk a block at a reasonable pace on rough or uneven surfaces. Another way to qualify for the SSD benefits is if the ankle impairment prevents you from being able to stand and walk for at least two hours a day at work, as most sedentary jobs require occasional walking and standing.

I represent a 51 year old former refrigeration mechanic whose x-ray revealed permanent ankle deformities after being fractured. I obtained a report from the treating pain management specialist who said the claimant was limited to standing and walking between 0 and 1 hours during an 8 hour day. Because the claimant’s SSD application was approved without explanation it is unclear if it was approved based on the listing or the claimant’s inability to walk and stand for at least two hours. Regardless of the approval’s rationale, the decision shows that ankle injuries are taken seriously.

Saturday, August 21st, 2010

Partially Favorable Decisions

When the Social Security Administration (“SSA”) issues a decision approving Social Security Disability (“SSD”) benefits with an onset date later than the one given by the claimant it is called a partially favorable decision. Many times it seems that there is absolutely no reason for the delayed onset date, and that the SSA is simply trying to avoid having to pay additional benefits.

I represent a former maintenance mechanic who stopped working in April 2009 because of neck, knee and back problems. The SSA initially decided that the claimant became disabled five months later in September 2009. Today, Administrative Law Judge Seymour Rayner agreed that the claimant has been unable to perform any type of work since April 2009. As a result, the claimant should now receive the additional months of SSD benefits.

Claimants should not be satisfied when the State agency or the SSA makes a partially favorable decision. Claimants should promptly appeal such a decision, which might even provide additional benefits, such as child’s benefits, besides the SSD benefits.

Wednesday, August 18th, 2010

Bench Decisions

Since I prepare my Social Security Disability (“SSD”) cases thoroughly, I usually have the evidence that merits submitting an on-the-record (”OTR”) request for a fully favorable decision. If the OTR is approved, then the claimant receives SSD benefits without needing a hearing. However, sometimes it may not be possible to submit an OTR. In those circumstances, requesting a bench decision should be considered.

An Administrative Law Judge (“ALJ”) can orally issue a bench decision, which is always fully favorable, that explains his reasons for granting the application at the hearing. The written decision that is issued a few days later is just a few paragraphs, and typically follows a template set forth in ALJ rules called the HALLEX.

I was retained by a 26 year old former dog groomer just a couple of weeks before her hearing. While there was no opportunity for submitting an OTR, the claimant’s case was well supported, and ALJ Crawley issued a bench decision today on the case. By doing so, ALJ Crawley saved time because he or a staff attorney did not have to spend the extra time it would have taken to prepare a typical fully favorable written decision.

The Social Security Administration is urging greater productivity from ALJs. Therefore, it would seem to make sense for ALJs to use the bench decision procedure more often. If an ALJ is inclined to approve a claim, then simply making the request to an ALJ for a bench decision might persuade him or her to use the procedure particularly if the ALJ’s caseload is overly burdened at the moment.

Friday, August 13th, 2010

Fibromyalgia

State agencies frequently deny fibromyalgia claimants’ initial applications for Social Security Disability (“SSD”) benefits due to a lack of “objective” evidence. However, there is no diagnostic or laboratory test for fibromyalgia, and the law prohibits the Social Security Administration (the “SSA”) from requiring a fibromyalgia claimant to produce objective evidence to establish entitlement to SSD benefits.

I represent a 43 year old former DHL employee who stopped working because of her fibromyalgia. The SSA granted my on-the-record (“OTR”) request today asking that the claimant’s disability application be approved without a hearing. The State agency had denied the application on the grounds that the “only abnormal finding was increased bilateral crepitus. Muscle strength is full and symmetric. Normal muscle tone without any atrophy or abnormal movements.” The State agency did exactly what the law held cannot be done.

New York Courts recognize that physical examinations of fibromyalgia patients “will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. Hence, the absence of swelling joints or other orthopedic and neurologic deficits is no more indicative that the patient’s fibromyalgia is not disabling than the absence of a headache is an indication that a patient’s prostate cancer is not advanced.”

My OTR argued that the State agency improperly denied the claimant’s application for a lack of objective medical abnormalities. I explained that the treating rheumatologist’s disability assessment was based on the claimant’s meeting the American College of Rheumatology’s tender point criteria for fibromyalgia, and the doctor’s opinion regarding the severity of those tender points.

The SSA agreed that the State agency’s basis for rejecting the treating rheumatologist’s disability opinion was unfounded. Consequently, the claimant’s SSD application was approved without needing to await a hearing.