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Expediting Disability Benefits

The attorney-advisors who work in the Social Security hearing offices can help you avoid the long wait for a hearing on your Social Security Disability (“SSD”) appeal if they approve your on-the-record (“OTR”) request for a fully favorable decision. I just returned from being out of the country for a week, and found that attorney advisors from Jericho, New York and Topeka, Kansas had approved two OTRs.

Preparing an OTR requires summarizing the medical and vocational evidence, and explaining why the Social Security rules and regulations show that a hearing is not needed to approve disability benefits. The Kansas OTR involved a 48 year old woman who had worked with the mentally disabled, who has cervical radiculopathy. The Jericho OTR concerned a 51 year old former jewelry sales representative with neck and back impairments as well as carpal tunnel syndrome. I have found that since Social Security has started using templates to write their decisions that an OTR request does not need to be long; it just has to focus on the most salient pieces of evidence in the record.

A claimant should want their attorney to submit an OTR whenever possible because it could result in receiving benefits many months, even years, before a hearing would take place. The expedited awarding of disability benefits not only improves the claimant’s cash flow sooner and avoids the stress of a hearing, but may also result in a reduced attorney fee. The SSA regulation authorizing attorney advisor decisions is set to expire August 10, 2011.

Multiple sclerosis

Multiple sclerosis (“MS”) is a chronic, often disabling disease that attacks the brain, spinal cord, and optic nerves. When applying for Social Security Disability (“SSD”) benefits, the best strategy is to provide evidence that shows the claimant meets the MS “listing.” If the criteria of the MS “listing” are met then the applicant is presumed to be disabled, and no further medical or vocational development is required. Since MS is usually treated by a neurologist it would be best to obtain an opinion from a neurologist that the claimant meets the criteria under the 11.09 listing for MS.

I represent a 54 year old former attorney whose SSD application was approved in less than three months, and shortly after I submitted medical evidence from the claimant’s neurologist showing that the 11.09 criteria were met. The claimant was not even asked to be examined by a Social Security doctor.

If a hearing has already been scheduled, showing that a claimant meets a listing is important because it makes it significantly more difficult for an Administrative Law Judge to deny the claim, or for the denial to be sustained on appeal. Moreover, it is also likely that an attorney advisor would approve an on-the-record request for a fully favorable decision if shown that the medical evidence meets a listing.

Date Last Insured

In order to qualify for Social Security Disability (“SSD”) benefits a claimant must have acquired enough work credits, which are earned by paying taxes into the Social Security systems. Work credits expire after a period of time. The Date Last Insured (“DLI”) is the day when the work credits expire. A claimant must establish that he became disabled before the DLI.

Some claimants are under the misperception that they are precluded from obtaining SSD benefits if they fail to apply before the DLI. A claimant can apply well after the DLI, and still be approved for SSD. I filed an SSD application last April for a 55 year old former salesperson whose DLI expired at the end of 1999. I received her SSD approval today.

When the claimant contacted me she had been led to believe that she was not eligible for SSD benefits because her DLI had expired in 1999. The claimant will now start receiving her monthly SSD as well as SSD benefits back to April 2009.

Radiculopathy

Radiculopathy or radiculitis is any disease of the spinal nerve roots or cord, whose typical symptoms include pain, numbness, tingling, and weakness. When the evidence shows that a spinal condition is causing radicular symptoms a disability claim is usually approved.

When applying for Social Security Disability (“SSD”) benefits, if a claimant’s spine condition compromises the nerve roots or spinal cord, resulting in pain, range of motion and motor strength loss, and either reflex or sensory loss, then a claimant should be found presumptively disabled under listing 1.04, making the claimant’s functionality irrelevant. Usually, a treating doctor’s opinion that a claimant meets listing 1.04 is needed to have an SSD application approved at first instance. However, there are exceptions when the evidence is crystal clear.

I represent a 56 year old former appliance repairman whose SSD application was approved shortly after I submitted the claimant’s neck and back MRI reports. I had made sure to submit treatment records that had described various spinal impairments and radicular symptoms that met listing 1.04, yet the claim sat for several months. Then, just a couple of weeks after I submitted the MRI reports, which undeniably revealed spinal conditions that impinged and flattened the nerve roots and spinal cord, the SSD application was approved.

Even though a treating doctor’s listing 1.04 opinion was not submitted, medical records were submitted that clearly evinced all of the criteria of the listing. The claimant was not asked to be examined by a Social Security doctor, which is how Social Security normally assesses a claimant’s functionality. Therefore, it appears that listing 1.04 was found to apply. By understanding what information regarding the claimant’s spine conditions should be submitted it greatly expedited the claimant’s receipt of SSD benefits.

Videoconference Hearings

he Social Security Administration allows attorneys and experts to appear at hearings via teleconference or telephone in order to reduce costs and increase scheduling flexibility. Teleconferencing is also used to redistribute workloads so that while a claimant may attend a hearing at the local hearing office, the Administrative Law Judge (“ALJ”) may appear via video from another hearing office.

Many claimants have relied on Nationwide Social Security Disability (“SSD”) practices to represent them because they cannot find local representation. Those Nationwide practices sometimes send disability representatives to hearings who are not attorneys. Moreover, those Nationwide practices have claimants deal with non-attorneys throughout most of the process, and a great many claimants never see or speak with an attorney until a hearing.

Telecommunication appearances eliminate the need to rely on Nationwide disability practices. I had SSD hearings this week in Washington State and Wisconsin. For the Wisconsin hearing, the claimant went to the Madison, Wisconsin office, the ALJ appeared from Milwaukee, Wisconsin office, and I appeared at the Queens, New York office. I had previously obtained SSD benefits for the claimant’s uncle, who was also from Wisconsin, without ever having to make an appearance there. Both claimants were able to communicate with me directly without having to rely on non-attorneys

Expediting Disability Benefits

When a person becomes disabled and can no longer work the loss of income can result in severe financial hardship. For many claimants, it is critical not only to obtain disability benefits, but to do so quickly. When seeking Social Security Disability (“SSD”) benefits, having a thorough understanding of the medical and vocational evidence, and their interplay with the rules and regulations, can lead to an expedited approval.

I represent a 51 year old former jewelry sales representative who was approved for SSD today without a hearing after I submitted an on-the-record (“OTR”) request for a fully favorable decision. An Attorney Advisor can approve an OTR when the evidence in the file shows that a hearing is unnecessary. While the clerks at the State agency who make the initial disability decisions may not fully comprehend the applicable rules and regulations, Attorney Advisors do.

The claimant’s primary problem was neck and back spine problems. The evidence I submitted to the State agency included MRIs and EMGs with positive findings, and a report from the claimant’s neurologist that specified why the claimant could not perform sedentary work. No new evidence was submitted to the hearing office, where the OTR was reviewed by the Attorney Advisor.

Under applicable rules, when a claimant’s relevant past work is non-sedentary, and the claimant is over 50 years old, that person must be found disabled even if capable of sedentary work if there are no transferable work skills. Although I did not proffer a report from a vocational expert, I was able to aver in the OTR that no reported case had ever found that a jewelry sales representative has transferable skills. Therefore, I argued that a regulation known as Medical-Vocational Rule 201.14 required finding the claimant disabled. The Attorney Advisor assigned to the OTR agreed, and the claimant’s SSD application was approved.

The argument for applying Rule 201.14 was probably critical. Without the argument, it is likely that the Attorney Advisor could have decided that whether the medical evidence supported the inability to perform sedentary work was a close question, which an Administrative Law Judge would need to resolve.

Patchogue Incompetence

Claimants frequently wonder why it takes so long to have their Social Security Disability (“SSD”) applications processed. One reason is that many of the people working at the District Offices simply are incompetent. The worst in the area seems to be Patchogue where even the District Manager is worthless.

I filed a claimant’s application on May 14, 2010 by certified mail. I now use certified mail because too often the District Offices had claimed that they never received documents I sent via first class mail. On July 8, 2010, I filed an appeal on line, for which I received electronic written confirmation of the filing. It took my office four calls and two faxes before we were finally told on October 6, 2010 that the file had not been transferred to the hearing office because Patchogue claimed it never received my client’s application. I immediately faxed Patchogue copies of the letters that they had sent me, including one confirming receipt of the application.

After leaving messages on October 7 and 8, 2010 that went unreturned, on October 12, 2010, a Ms. Greco said they now had not received the July 8, 2010 appeal. Therefore, my office immediately faxed the appeal to a Ms. Shami, and requested a call confirming that she had received it. In typical fashion, there was no return call. On October 18, 2010, two more messages were left for Patchogue, where after being left on hold for 15 minutes, the call was disconnected. A third call and fax to Ms. Fusilli were needed, and the appeal was now sent for the third time. After another call, Ms. Shami asked for some of the same application forms that had been sent via certified mail on May 14, 2010.

The requested application forms were faxed yet again on October 19, 2010, and requested confirmation that they were received, which of course did not happen. The next day, another message was left for Ms. Shami, who again failed to confirm receipt of the prior day’s fax.

On October 27, 2010, my office faxed another application form to Ms. Shami, and asked for a confirmatory call. The next day, Ms. Shami actually left a message that she had received the form 4184. When nothing was heard on the claim, on November 4, 2010, Shami was called about the form 4184, and because she was not available, another one was faxed twice, even though she had previously confirmed its receipt on October 28, 2010.

On November 5, 2010, Ms. Shami now claimed that Patchogue never had received the application or appeal, so it was now faxed for the fifth time. Later that day, Ms. Shami confirmed that she had now received everything that she needed to process the application.

On November 12, 2010, two messages were left for a Mrs. Ross because we were told that Ms. Shami no longer worked there. On November 16, 2010, a Mrs. Scott said that she had to speak with Mrs. Fusilli. The next day a message was left for Ms. Scott because no answer was received. On November 19, 2010, Ms. Fusilli transferred my office’s call to a Mrs. Turner, who said she was working on the file, that everything seemed to be there, and she would call the next day.

On December 17, 2010, another message was left for Ms. Turner, which was followed up with a fax. It took three calls on December 22, 2010 to get through to Ms. Turner, including being put on hold for 15 minutes and then getting disconnected. Later that day, Ms. Turner said that the claim had to be appealed again.

On January 4, 2011, a Mrs. Peterson asked for a fax of the appeal, and she confirmed receiving it. The following day, another message was left for Ms. Peterson to make sure the file was being transferred to the hearing office. On January 18, 2011, the hearing office had not received the file, and another message was left with Ms. Turner at Patchogue. When that call was not returned another message was left with her on January 24, 2011, and then again on January 27, 2011.

On January 28, 2011, after sending another fax to Patchogue about transferring the file, my office was told the appeal had been sent to Jericho on January 4, 2011. However, when Jericho was called, they said they had received nothing from Patchogue. On February 1, 2011, Jericho still had received nothing from Patchogue, so another message was left with Ms. Turner at Patchogue, but not before the first call required being placed on hold for 15 minutes and then getting disconnected.

On February 7, 2011, my office spoke with a Mrs. Heeber, who stated that there was nothing in the file. A call was then placed to District Manager Grabiner. My assistant stated that we had sent all the documents multiple times, to which Grabiner said “Jeff Delott always says that”. Of course I say that because I send everything to the SSA with fax confirmation, certified mail confirmation, and electronic confirmation from the SSA because of their history of claiming they don’t receive documents. Grabiner then said that we had been lying because we had not sent his office any documents. When asked why her calls were never returned, Grabiner told my assistant that it wasn’t his job to know.

In short, rather rectifying the countless errors by those under his charge, Grabiner claimed that no errors had ever occurred because no documents had ever been sent to his office. Moronically, Grabiner said that certified mail, fax, and SSA electronic receipt confirmations did not prove anything. It is hard to imagine a more egregious instance of complete incompetence, negligence, and arrogance by a civil servant. It is people like Grabiner, and his utter failure to supervise those under his charge properly, that results in claimants having to wait needlessly long periods of time before receiving their SSD benefits.

Federal Court Decision

National Organization of Social Security Claimants’ Representatives (“NOSSCR”) is an association of attorneys who represent Social Security Disability and Supplemental Security Income claimants. The latest edition of NOSSCR’s Social Security Forum, chose my decision in Sergenton v. Astrue, 714 F.Supp.2d 412 (E.D.N.Y. 2010) for publication in its “Selected Cases” section.

Sergenton held that the Social Security Administration had to pay attorney fees because ALJ Rothman acted unreasonably. After losing the report of the claimant’s doctor, which was the basis for the federal court remanding the case, ALJ Rothman refused to contact the doctor or consider the replacement report I submitted from the doctor.

Union Disability Approved

I represent an electrician whose pension claim with the Joint Industry Board of the Electrical Industry (the “Board”) was denied because “he was not found to be disabled by the Social Security Administration.” The SSA actually ruled that the claimant was disabled from his job as an electrician, but not from sedentary work. Because the Board refused to find the claimant disabled, I filed an action in federal court.

Shortly after filing the complaint in federal court, the Board asked me to dismiss the lawsuit, and to allow it to reconsider the claim again. I agreed to the reconsideration, but only to staying the lawsuit, not dismissing it. After the Board reconsidered the same arguments that I submitted before the lawsuit, it approved the application for disability retirement.

It is unclear why the Board changed its decision to deny the claimant’s application. What is clear is that absent the lawsuit, the claimant’s application would not have been approved.