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

Thursday, September 30th, 2010

Income Doesn’t Bar Disability Benefits

Receiving an income does not automatically preclude receiving Social Security Disability (“SSD”) benefits. The test is whether you are engaging in work that involves significant physical or mental activity for pay or hopefully for profit, which excludes any type of passive investment income.

Since entitlement to SSD benefits does not include a financial need requirement, receiving loans or gifts of money from friends or relative is not an issue. There may be circumstances where a claimant receives money through a family run business while alleging that he or she was not working at the business. In these situations the Social Security Administration presumes that the claimant is working rather than receiving a gift.

On numerous occasions I have represented a claimant who continued to receive money through a family run business after the time when the claimant alleged that he or she stopped working there. The question is how do you prove that the money the claimant received from the family business was not for engaging in work that involved significant physical or mental activity.

I represent a 39 year old woman who worked at her father’s company as a secretary because she was unable to work elsewhere due to her reflex sympathetic dystrophy (“RSD”). Her RSD eventually became so severe that she was unable even to work with all of the accommodations at her father’s business. However, in order to maintain her health insurance, the claimant’s father continued to keep her on the payroll.

I submitted third party evidence to substantiate the fact that the claimant had not been working. Today, I received a fully favorable decision from Administrative Law Judge Ronald Waldman who concluded that the claimant’s 2008 and 2009 income was not substantial because she had not actually worked.

Thursday, September 30th, 2010

Celiac Disease

Bloomberg News just reported that environmental influences have apparently caused a fivefold rise in Celiac disease during the last 30 years. People with Celiac disease have a problem digesting gluten, which is a protein in staple foods like bread, crackers, and pasta. Fatigue is a common symptom of Celiac disease.

The fatigue from Celiac disease can become severe enough to prevent you from working a complete day. If so, you could be eligible for disability benefits the same way that being afflicted with Chronic Fatigue Syndrome or any other disease resulting in fatigue could render you eligible.

Celiac disease is frequently associated with other autoimmune disorders that also contribute to one’s inability to work. Therefore, even subsisting on a gluten-free diet may not improve one’s functionality sufficient to work a complete day at work. One of my clients was approved for disability benefits due to fatigue and weakness from Celiac disease and myasthenia gravis.

Friday, September 10th, 2010

Proving Disabling Pain

Disability adjudicators accept that applicants can become disabled if their pain is bad enough to reduce their ability to perform the physical demands of working. The problem for claimants is usually how to prove that their condition is severe enough that they can no longer work. The claimant’s task basically is trying to provide objective proof to support the subjective claim of pain.

I represent a 57 year old former airline passenger service agent whose radiating neck pain forced him to stop working. His disability benefits were approved today four months after his application was filed without requiring any type of appeal or hearing.

Among other things, the claimant had a cervical MRI that showed discs contacting the spinal cord. His pharmacy list of pain medications and patches, and operative reports of pain injections, were lengthy. As the default position of disability adjudicators is that a claimant’s pain is overstated, simply providing a supportive MRI would be deemed insufficient because while it confirms a diagnosis it fails to establish severe pain. Similarly, just providing pharmacy records would be deemed insufficient because it could be evidence of an addiction or overreaction to a condition. However, supplying both types of medical records provided objective evidence not only that the claimant had a medical condition that was capable of causing severe pain, but also that the condition was being treated as causing severe pain. That objective evidence rendered the pain management physician’s opinion, that the claimant’s condition prevented him from being able to work due to his pain, readily credible.

Some of my colleagues believe that I “gild the lily” by securing and submitting as much evidence as I do, which does make for extra work. However, the end result speaks for itself.

Thursday, September 9th, 2010

EAJA Fees

A federal court judge ruled today that the Social Security Administration (the “SSA”) should pay my client’s legal fees under the Equal Access to Justice Act (“EAJA”) for pursuing an appeal even after the SSA offered to remand the case for another hearing before the SSA Administrative Law Judge (“ALJ”). I received a similar decision in another case about three months ago.

U.S. District Judge Hurley remanded the case for another hearing before the same ALJ, and then referred my motion for EAJA fees to U.S. Magistrate Judge William Wall. Today, Magistrate Judge Wall ruled that it was reasonable to award attorney fees for time I spent working on the claimant’s appeal after I refused to accept the SSA’s offer to remand the case. The EAJA award will reduce the claimant’s legal fees if, as anticipated, Social Security Disability (“SSD”) benefits are approved on remand.

Magistrate Judge Wall’s decision is significant because there are relatively few reported decisions where a plaintiff’s attorney has been awarded EAJA fees for time spent after the SSA offered a remand. The decision was also significant because it ruled that I was entitled to be reimbursed for Westlaw research costs.

Wednesday, September 8th, 2010

IMA Disability Services

The Office of Temporary & Disability Assistance (the “State agency”) is responsible for making the initial decision on Social Security Disability (“SSD”) claims in New York. The State agency sends letters to SSD applicants stating that he or she “must” be examined by a “Specialist” from “IMA Disability Services” (“IMA”). The letter is frequently followed by phone calls warning that the application will be denied if the claimant fails to appear for the appointment. These letters are misleading.

The use of the word “must” is misleading because most claimants do not need to be seen by a doctor from IMA. I represent a former cosmetology account manager whose SSD application was approved a few weeks after being told that she “must” attend an exam by an unnamed “specialist” IMA, which exam she refused to attend. Among other things, the SSA cannot require a claimant to attend a consultative examination (“CE”), such as the IMA exam, without first asking the treating physician to perform it.

There are countless other reasons why most demands for a claimant to attend a CE violate the rules. Not surprisingly, since IMA makes enormous amounts of money from performing thousands of CEs, they try to make claimants believe that they have no right to refuse to attend a CE. Therefore, a claimant should send written objections to the State agency specifying the factual and legal reasons why the CE would violate the rules and regulations.

Friday, September 3rd, 2010

Self Employment

Most Social Security Disability (“SSD”) applicants who were self employed are initially denied benefits. It seems that the Social Security Administration (the “SSA”) is suspicious that such individuals have not really stopped working. Consequently, because the self employed applicant’s credibility is at issue, a hearing is usually required. The waiting time for a hearing is typically 18-24 months after a claim has been denied.

I represent a former self employed sales representative whose SSD application was approved today only a few months after it was filed. I submitted a letter from the claimant’s accountant stating that the claimant’s business had been inactive and no income had been received for any services rendered as of the disability onset date. SSD benefits were awarded shortly after the accountant’s letter was submitted.

There was strong evidence that the claimant had a severe case of Lupus. Nonetheless, I suspect that the SSA would have denied the application in the absence of the accountant’s letter. The accountant provided third party evidence to substantiate the claimant’s contention that she had stopped working. Because the claimant’s credibility was not at issue to prove that she was no longer working, there was no need to hear her testimony at a hearing.