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Federal Court Decision

A claimant retained me to file an action in federal court seeking Social Security Disability (“SSD”) benefits. Magistrate Judge (“MJ”) Ronald Ellis recommended that the ALJ’s decision be reversed, and remanded solely for a calculation of SSD benefits, which was unusual since most SSD cases are denied or remanded for another hearing.

MJ Ellis had ruled that “it is well-settled that rejecting the opinion of a treating physician solely based on internal inconsistencies is error,” and that the Administrative Law Judge denied the claim by substituting her opinion for that of competent medical evidence. Today, U.S. District Court Judge Paul A. Crotty adopted Magistrate Judge Ellis’ reasoning, which constitutes a complete victory for the claimant.

When seeking an attorney to handle your SSD claim you should ask about their experience litigating SSD cases. Lacking a thorough understanding of the issues that are relevant in federal court at the administrative level can lead to waiving those issues if the claim needs to be appealed to federal court.

Social Security Depravity

I represent a claimant who was just diagnosed with amyotrophic lateral sclerosis (“ALS”), and was given only a few years to live. Because the Social Security Administration (“SSA”) recognizes the terribly debilitating nature of ALS, the Commissioner requires that ALS disability claims be given expedited processing as a “compassionate allowance.”

I immediately notified the claimant’s local SSA office in West Babylon about the claimant’s ALS diagnosis, and asked that her application for Social Security Disability (“SSD”) benefits be expedited. Instead of expediting the application’s processing, a woman named Ms. McKeon who said she is the office supervisor demanded that an application with an original signature be filed.

Ms. McKeon was told that because of the claimant’s ALS, it was too difficult for her to come to my office to sign the application, so a relative faxed the signed application to me. Ms. McKeon was also advised that other applications that I have submitted by mail without original signatures have been processed. Ms. McKeon was reminded that the SSA cannot require original signatures for the hundreds of thousands of disability applications that are filed on line, and was asked that she cite the law that precludes her from processing the ALS application.

Ms. McKeon has failed to identify what law prevents her from processing the claimant’s SSD application. Ms. McKeon failed to explain why she failed to notify anybody that a faxed application signature would not suffice until I requested expedited processing as a compassionate allowance case. Ms. McKeon failed to explain why the hundreds of thousands of SSD on line applications can be processed without an original signature. To delay the processing of this case, especially after being notified the claimant has ALS, is morally corrupt.

Apparently, the Commissioner’s office needs to make clear that its policy of expediting compassionate allowance cases takes precedence over any law requiring original signatures, even assuming that such a law exists.

Depression and Anxiety

The Social Security Administration (“SSA”) denies hundreds of thousands of claims for disability benefits each year. The SSA denies about two out of every three people. Claims that are based primarily on symptoms such as mental disorders, fibromyalgia, chronic fatigue etc. are more readily denied because the disability examiners reject them for lack of objective evidence.

It takes the SSA about half a year to make its initial decision, and then more than a year before the claimant can get a hearing. One way to mitigate the wait and backlog is by building a case that the disability meets a listed impairment. If your medical condition meets or equals a listed impairment, then you are considered presumptively disabled, and do not have to prove that you are unable to do your past or any other work.

I represent a college professor who became unable to work after 20 years due to depression and anxiety. Her SSD application was approved yesterday without a hearing. As noted above, it is difficult to get any SSD claim approved before a hearing, let alone one that is primarily based on symptoms. However, in this case, I was able to secure evidence that showed the professor met the listings for both depression and anxiety.

When you work, the SSA gets 7.65% of your paycheck for Federal Insurance Contributions Act taxes. If you paid into FICA, then you are entitled to SSD benefits if you can no longer work. If your disability application has been denied, then see if you can expedite your approval by garnering evidence that you meet a listed impairment. Do not accept rejection simply because you lack objective evidence to support your claim

Fully Favorable Appeals Council Order

After an Administrative Law Judge (“ALJ”) denies a Social Security Disability (“SSD”) application, a claimant can appeal to the Appeals Council (“AC”). The vast majority of the time, the AC either agrees with the ALJ’s denial, or remands the case to the ALJ for another hearing. Today I received a rare decision from the AC that accepted my appeal arguments, and ruled that my client, a 47 year old former pharmaceutical sales representative, is entitled to nearly seven years of SSD benefits, beginning as of July 23, 2004.

The AC originally agreed that the claimant was not disabled. At that point, I took over the case from another attorney, and filed a complaint in federal court. The United States Attorney who was representing Social Security believed that the decision of the ALJ was so legally untenable that it voluntarily asked the claimant to agree to have the case remanded. Because the claimant relocated, the claim was reassigned on remand to ALJ Sy Raynor, who then also denied the claim.

While my appeals comments contained many legal and factual arguments, they essentially boiled down to a single logical contention. The United States Attorney believed that the 2006 Decision was so legally untenable that it asked the claimant to agree to remand the case. The additional medical evidence I submitted at the second hearing with ALJ Raynor, which even more strongly supported the claimant’s allegations, showed that ALJ Raynor’s decision was even less legally tenable.

I showed how the medical evidence provided persuasive proof that the claimant lacked the ability to perform sedentary work, and that there was no basis to assume that further developing the record would unearth a contrary opinion from a doctor who examined the claimant. Since two ALJs had two separate chances to review the records and request medical evidence, yet failed to carry their burden of proving that the claimant could do sedentary work, and more than five years had passed since the claimant applied for SSD benefits, I argued that the case should be remanded solely for the calculation of benefits.

The AC agreed that the claim should be approved without further proceedings. The lesson from this case is that you should not give up on your valid SSD claim regardless of how many times it has been denied.

Erythema Multiform Major

Erythema Multiforme Major (“EMM”) is an acute, self-limited, and sometimes recurring skin condition considered to be a reaction associated with certain infections, medications, and other various triggers. EMM is a severe, potentially life-threatening disorder.

I represent a former business owner in Florida with EMM whose application for Social Security Disability (“SSD”) benefits had been denied twice. Today, his on-the-record (“OTR”) request for SSD benefits was approved, which avoided the need for a hearing.

The claimant’s application had been denied apparently because the people reviewing the claim failed to understand it. I obtained a report from the claimant’s physician, which explained that the EMM was triggered by Herpes Simplex infections, for which he takes Acyclovir and Prednisone. Unfortunately, the Prednisone caused reactions that were almost as bad as the EMM. The report also included a functionality assessment that was supported with objective clinical findings.

In connection with the OTR, I then secured a report from a new doctor that is treating the claimant, which corroborated the findings and conclusions of the claimant’s prior physician. Additionally, the claimant’s EMM became so severe during certain flare ups that he was sent to the hospital, and those records, which further corroborated the severity of the claimant’s EMM, were also submitted with the OTR.

The main difference between the medical evidence submitted at the initial levels and OTR was the addition of corroborative evidence. While it is possible that the claimant’s SSD application would have been approved after a hearing without the additional records, the corroborative evidence helped expedite the approval and avoided the angst of a hearing.

SSD in Three Months

Due to heavy caseloads, initial Social Security Disability (“SSD”) decisions in the New York metropolitan area usually take longer than most other places. I represent a 53 year old former truck driver for DHL whose SSD application was approved today just three months after it was filed. The rapid approval shows that it must have been obvious to the State agency, which makes the initial SSD decision, that the claimant was clearly disabled.

Despite the fact that the claimant obviously had a strong SSD claim, the State agency had sent him a letter stating that it was “necessary” that he have a consultative examination (“CE”)with IMA Disability Services. The claimant was led to believe that his SSD application would be denied if he chose not to attend the CE, even though the Social Security regulations only provide for limited circumstances when a CE is appropriate.

The fact that the claimant’s SSD application was approved in only three months contradicts the State agency’s assertion that it was “necessary” for the claimant to have a CE with IMA. Before attending a CE you should make sure that the State agency’s request complies with the Social Security regulations that govern CEs.

Lincoln Life Pays LTD Benefits

I represent a 57 year old claimant with an 8th grade education who earned $170,000 a year working as a Director of Construction. The claimant had to stop working as a result of a stroke. The Social Security Administration concluded the claimant was unable to do any type of work.

Lincoln Life denied the claimant’s long term disability (“LTD”) benefits because it claimed he could still work at his old job. However, after the claimant sued Lincoln, Lincoln agreed to pay the LTD benefits. Issues regarding interest on the past due benefits, attorney fees and costs still remain unresolved.

Lincoln has notified the claimant that benefits may be discontinued when the definition of disability under the policy changes from being unable to do one’s past work, to any work. However, Lincoln knows that the Complaint filed in the lawsuit, as well as the previous appeal letters, shows that the claimant is not only incapable of performing his past work, but any other full time work as well, which is why Lincoln wanted to buy out the claim.

Lincoln has stated that it will require additional information to continue paying LTD benefits, even though the claimant’s condition is permanent and will not improve. It is possible that Lincoln’s assertion is simply boilerplate language included in an approval letter. However, any additional documentation would be cumulative and duplicative as it already shows the claimant cannot do any other full time work. It frequently makes sense to continue to retain an attorney under these circumstances to avoid being harassed by insurance companies, and ensure that they do not repeat the same type of tactics and mistakes that led to the original denial of benefits.