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State Agency Disability Analysts

I filed an application for Social Security Disability (“SSD”) benefits for a 49 year old former maintenance mechanic. The State Agency Disability Analyst denied the application after completing a form 4734 “Physical Residual Functional Capacity Assessment” that indicated the claimant could do light work. Subsequently, the Administrative Law Judge (“ALJ”) issued a fully favorable decision.

In awarding SSD benefits, the ALJ rejected the Disability Analyst’s opinion because it was not an acceptable medical source and because SSR 96-6p did not apply. The ALJ was correct that SSR 96-9p did not apply to a Disability Analyst’s opinion because the ruling concerns opinions of people who have observed a claimant. The ALJ was also partially correct that a Disability Analyst is not an acceptable medical source. A Disability Analyst does not even qualify as an unacceptable medical source, such as a chiropractor or physical therapist, whose opinions have to be given weight under the rules.

The ALJ neglected to mention the primary reason for rejecting the opinion of the Disability Analyst – the September 14, 2010 Memorandum of Acting Associate Chief Administrative Law Judge John P. Costello to all Regional Chief Administrative Law Judges. That Memorandum specifies that a form 4734 completed by a Disability Analyst cannot be considered on appeal, and the form cannot even be evaluated.

SSD & WC

I represent a 48 year old former fence installer whose application for Social Security Disability (“SSD”) benefits was just approved. The claimant had been receiving regular workers’ compensation benefits until he accepted a lump sum settlement.

Workers’ compensation sometimes provides a lump-sum settlement as a compromise for periodic payments. A lump sum is subject to being offset just as periodic payments are. The lump-sum is prorated to reflect the monthly rate that would have been paid had the lump-sum award not been made. Medical and legal expenses incurred by the worker in connection with the workers’ compensation or public disability benefit claim may be excluded from computing the offset.

Depending on the amount of the lump sum and the claimant’s earning history, the SSD offset can be substantial.

SSA Should Reimburse Travel

I represented a former police officer at a Social Security Disability hearing in New Haven, Connecticut, which was nearly a 100 miles away from my office. The SSA refused to reimburse my travel expenses based on an antiquated rule.

The SSA stopped reimbursing attorneys to prevent situations where an attorney from New York could get reimbursed for travel to a hearing in Hawaii. The rule makes sense in that situation. However, I requested to appear via video conference, which the SSA refused to allow. If the SSA refuses to allow an attorney to appear via video conference, the way they allow experts and claimants, then the SSA should be required to pay the attorney’s travel expenses.

There is no rule requiring an attorney to appear in person, nor should there be because the attorney does not provide sworn testimony. Moreover, refusing to pay travel expenses when an attorney has offered to appear by video is contrary to the SSA’s pushing video appearance for experts in the name of efficiency. The refusal to pay expenses in these circumstances curtails a claimant’s right to counsel of his choice, and favors nationwide companies for whom travel is far less of a burden.

I would love to hear the SSA’s explanation for why an ALJ has the right to insist that an attorney appear in person when the ALJ has no qualms about allowing experts to do so.

Disability Benefits For Carpenter

Disability benefit claims usually result in a battle of the medical experts where your doctor says you cannot work and their doctor says you can. Having other doctors corroborate your doctor’s opinion will help insure that your doctor’s opinion will be accepted over their doctor’s opinion.

When applying for Social Security Disability (“SSD”) benefits you might be able to succeed ultimately with only one supporting treating physician. However, experience has shown that in most cases your claim will be denied initially if you have only one supporting doctor.

I represent a carpenter who became unable to work when he was 49 years old due to neck, back and shoulder problems. His application was approved today without ever being denied. The claimant is being treated by a physiatrist, which is an appropriate specialist for the claimant’s impairments. Instead of simply relying on the opinion of the claimant’s physiatrist, I secured opinions from the claimant’s pain management specialist and chiropractor too.

While the claimant may have been able to receive SSD benefits without the concurring medical opinions, stacking the deck in the claimant’s favor minimized the chances of his having to file an appeal. While the chiropractor is not a medical doctor, the frequency and extended duration of his treatment rendered his opinion regarding the severity of the claimant’s condition important. By presenting three medical opinions to support the claimant’s application, it took far less time than usual for the claimant to start receiving SSD benefits, which gave him critical cash flow now that he lost his working income.

Carpal Tunnel Syndrome

Carpal Tunnel Syndrome (“CTS”) is the name given to the nerve damage from entrapment of the median nerve. CTS causes paresthesia, pain, numbness, and other symptoms in the distribution of the median nerve, which includes the fingers. According to the National Institute of Health (“NIH”), CTS is common in people who perform repetitive motions of the hand and wrist, most commonly, typing on a computer keyboard. Other causes include: sewing, driving, assembly line work, painting, writing, use of tools, sports such as racquetball or handball, and playing some musical instruments. The NIH says that CTS is a costly and disabling occupational illness.

I represent a claimant who was just approved for long term disability (“LTD”) benefits under a group disability policy issued and administered by Liberty Mutual. In the approval letter, Liberty said that LTD benefits were approved because the claimant was unable to do his own occupation, and that the claimant was required to apply for Social Security Disability (“SSD”) benefits.

Most group LTD policies require filing for SSD, and then will reduce the LTD benefit by the amount of the SSD. Moreover, the failure to apply for SSD will result in the insurance company deducting the estimated amount of the SSD from the LTD benefit. Many insurance companies refer claimants to their SSD company, which is a bad idea. Because SSD companies get their clients from the LTD carriers, they perceive the insurance company as their real client.

In some circumstances, it may be possible to get SSD benefits while conceding the functional ability to sedentary or light work, or even medium work in rarer circumstances. However, most group LTD policies require claimants to prove they cannot do any occupation after 2 years. Since the SSD company is beholden to the referring insurance company, the SSD company does not bother to argue that the claimant cannot do sedentary or light work, and while enabling the claimant to get SSD benefits, sets the claimant up to have his or her LTD benefits terminated.

SSD Approved in Two Months

I represent a 55 year old former truck driver with a bad back whose application for Social Security Disability (“SSD”) benefits was approved after two months. The severity of his back condition was bad, but no more so than many other claimants with failed back surgery who seek SSD benefits. It was the presentation of the vocational evidence that made the difference.

If a claimant is unable to “communicate in English,” then special rules apply that make it easier to obtain SSD benefits. The question is what does communicating in English mean? Even if a person has a limited ability to speak and understand English, if also unable to read and write English, then that person could qualify for SSD benefits under special rules that would preclude benefits for a person with the same medical circumstances who were literate.

In light of the above, it is important to make sure that a claimant is able to read and write in English. If not, it should be made clear to the state agency when initially applying that the claimant lacks the ability to do so, and to spell out the implications of being unable to read and write when submitting medical evidence. The result should be a quicker approval than usual.

Reflex Sympathetic Dystrophy

Yesterday’s Newsday had an article about a person’s ordeal with Reflex Sympathetic Dystrophy (“RSD”), also known as Complex Regional Pain Syndrome (CRPS). According to the National Institute of Neurological Disorders and Stroke, symptoms include crippling pain, burning sensation, skin color, temperature, and sensitivity changes, sweating and swelling. And according to the International Research Foundation for RSD/CPRS, the incurable condition affects over a million Americans.

Because RSD/CRPS affects so many people, the Social Security Administration (the “SSA”) promulgated a special rule for it. The rule notes that conflicting evidence is not unusual in cases of RSD/CRPS, and that its chronic pain and medications can affect an individual’s ability to maintain attention and concentration, which obviously can interfere with one’s ability to work. The rule also discusses how third-party information, including Information from nonmedical sources such as neighbors, friends, relatives, clergy, past employers, rehabilitation counselors, or teachers is important.

When applying for disability benefits it is important to understand the nature of RSD/CRPS in order to present a case that properly explains how it limits the ability to work. When applying for disability benefits from the SSA make sure that your attorney is aware of the special rules that apply for RSD/CRPS.