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Appeals Council Remands

If an Administrative Law Judge (“ALJ”) denies your case, you can request Appeals Council review in 60 days by completing and submitting form HA-520. You can submit new evidence, and explain the reasons why the ALJ erred. The Appeals Council can approve benefits, which is rare, decide not to review your appeal, or send your claim back to the ALJ for another hearing. What should you do if your claim is remanded to the ALJ?

I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.

I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.

Social Security & The Presidential Election

Raising the retirement age for Social Security has an obvious impact on those seeking disability benefits.

The Republican position is to increase the retirement age. Mitt Romney stated that the retirement age should be “slowly increased to account for increases in longevity,” while Paul Ryan said we should, “Slowly raise the retirement age over time.” Minority Leader, John Boehner said that A Republican-held Congress would look to raise the retirement age to 70, and the Heritage Foundation, a research and educational institution whose mission is to formulate and promote conservative public policies, believes that the retirement ages must be increased. While giving a speech at the American Enterprise Institute, another conservative think tank, Chris Christie said, “You are going to have to raise the retirement age for Social Security! Whoa! I just said it and I am still standing here. I did not vaporize into the carpeting.”

Barack Obama said he is opposed to raising the retirement age. Previously, Barack Obama said he favored applying the Social Security payroll tax to wages above $250,000, which is now limited to wages below $110,100.

Becoming disabled is neither a Democratic or Republican problem, nor a Conservative or Liberal problem. Disability crosses all party lines. Nonetheless, there was little attention paid to the issue during the debates. Regardless of whether you favor raising the retirement age, increasing taxes or cutting benefits in order shore up the Social Security program, insist that candidates explain how they intend to stabilize Social Security to ensure that benefits will be there when you need them.

SSD Claimants Need To Review Their Efolders

I represent a 49 year old nurse, whose Social Security Disability (“SSD”) application was approved today. The good news is that a Senior Staff Attorney at the hearing office approved the OTR that I submitted, so the claimant will receive SSD benefits without having to attend a hearing. The bad news is that the claimant’s application had been denied by the State Agency because it had purged the disability reports of the claimant’s two medical specialists from the file.

The reports of the claimant’s pain management specialist and family doctor each prepared detailed reports explaining why the claimant’s fibromyalgia was disabling. Both reports stated that the claimant met the American College of Rheumatology criteria for fibromyalgia, and identified the clinical signs that support the diagnosis. Both reports provided for a less than sedentary work capacity, and concluded that the claimant could not work because she was completely disabled due to severe pain.

The State agency, as it has done on previous occasions, mysteriously excluded the treating doctors’ reports from the claimant’s file. Curiously, it seems that whenever a submitted document is missing from a claimant’s folder while being reviewed by the State agency, the document is always one that includes a doctor’s opinion that a claimant lacks the functional capacity to work.

Once a State agency denial is appealed to the Social Security Administration (“SSA”) hearing office, I can access the efolder. When I reviewed the nurse’s efolder and learned the disability reports were missing, I immediately resubmitted them, together with the Electronic Records Express receipt for showing that the State agency had received those reports on July 12, 2011 at 3:51 and 3:55 PM EST. Fortunately, the SSA Staff Attorney then approved the SSD application promptly without the need for a hearing, after I supplied him with an updated report that he had requested. Unfortunately, the State agency unnecessarily delayed the approval of the claimant’s benefits for a year.

Firefighter Awarded SSD

I represent a 51 year old firefighter with pulmonary problems whose Social Security Disability (“SSD”) application was approved today. I had submitted the medical report from the New York City Medical Board that concluded the claimant was disabled from working as a firefighter. While not binding, the decision of another agency must be considered and given weight under the Social Security rules.

The Fire Department is obviously better equipped to determine if a firefighter is fit for duty, and its disability determination decision is usually accepted by Social Security Administrative Law Judges (“ALJs”). However, firefighters also have to prove that they cannot perform other work to receive SSD benefits. That is why it may be advisable to submit not only the Fire Department notice approving disability retirement, but also the Medical Board report discussing the medical reasons that support the disability retirement.

In this case, the ALJ cited the Medical Board as evidence supporting the firefighter’s entitlement to SSD benefits. As the claimant was over 50 years of age, based on the applicable medical-vocational rule, the firefighter only needed to show that he could not perform light work, which is more strenuous than sedentary work, to receive SSD benefits.

The treating pulmonologist concluded that the claimant lacked even a sedentary work capacity. The ALJ accepted the opinion of the treating pulmonologist in large part because it was consistent with the findings of the Fire Department Medical Board. There are circumstances where a City Medical Board report could serve as the basis for an ALJ to deny SSD benefits, so consult an attorney before doing so.

Obesity & Disability

According to the Mayo Clinic, obesity, which is an excessive amount of body fat, increases your risk of diseases and health problems. The National Institutes of Health (“NIH”) established medical guidelines that classify overweight and obesity in adults according to Body Mass Index (“BMI”). A BMI of 30.0 or above is considered obese.

The Social Security Administration (“SSA”) recognizes that obesity is a condition that can contribute to disability. The SSA used to have a listing for obesity, but it was eliminated in 1999. However, the SSA rules still accept that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.

I represent a pizza deliveryman who became unable to work when he was 51 due primarily to knee problems. The claimant’s orthopedist concluded that the knee problems were severe enough to prevent the claimant from working. The Administrative Law Judge (“ALJ”) noted that the claimant’s BMI was 30.4, and determined that he was disabled.

In arriving at his conclusion, the ALJ noted that an obese person with arthritis may have more pain and limitation than if he was not obese. Additionally, the ALJ stated that obesity may limit a person’s ability to sustain activity on a regular and continuing basis on a 8 hour, 5 day week, basis. In short, while the SSA may not find a claimant disabled due solely to obesity, obesity should strengthen many disability claims that are based upon musculoskeletal, respiratory, and cardiovascular impairments.

Videotaping IMA Consultative Examinations

An Administrative Law Judge issued a favorable decision today that approved the Social Security Disability (“SSD”) application of my client, a former firefighter, without requiring a hearing.

The State agency had denied the claimant’s SSD application on the fraudulent grounds that the claimant had failed to be examined by its doctors from Industrial Medicine Associates (“IMA”). That assertion was untrue. The claimant was ready, willing, and able, to be examined by IMA, and appeared at IMA’s office at the designated date and time for his consultative examination (“CE”). However, IMA refused to proceed with the CE because the claimant brought a camera to videotape the CE. In other words, it was IMA, not the claimant, who refused to proceed with the CE.

There is no rule, regulation, statute, guideline, or case law that precludes an SSD claimant from recording his or her CE. There have been countless times where IMA doctors have been banned from performing CE’s, or their opinions have been rejected, after substantial evidence or cross examinations showed they falsified CE findings. If IMA doctors perform CEs in accordance with the regulations, then they should have nothing to hide, and should have no problem with the videotaping. Videotaping an IMA CE is consistent with the SSA recording experts and witnesses at hearings. IMA has a protracted history of acting improperly. Read some of my prior entries on this topic: 11/22/10, 6/6/12, 5/17/12, 10/5/11, 6/29/12, 6/16/12, 3/8/10, 8/31/12, 8/11/08, 4/21/10, 6/4/12, 9/8/10, 8/16/12.

IMA has a contract with New York State to perform CEs, for which it gets paid a ton of taxpayer money. Medical Experts at hearings are videotaped, and IMA has no excuse or legal authority to justify its refusal to have its doctors videotaped while performing a CE ordered and paid for by New York State. Perhaps if IMA refuses to perform a large number of CEs when claimants try to videotape them, the State will terminate or refuse to renew its contract with IMA.

Biased Hoppenfeld Decision Reversed

In my September 23, 2011 blog entry, I discussed how a Social Security Disability (“SSD”) case that I had before Administrative Law Judge (“ALJ”) Marilyn P. Hoppenfeld mirrored the allegations in the Padro v. Astrue class action lawsuit. The Amended Complaint in Padro, which can be downloaded from my web page’s Resources tab, alleges that Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Hoppenfeld, are the ALJs from Queens (the “Queens Five”) who are biased against claimants.

The first two plaintiffs named in the Amended Complaint are my clients. Each had their Social Security Disability (“SSD”) application denied by one of the Queens Five. Each case has now been remanded. Each has now been approved without a hearing.

The claimant filed her SSD application in 2003. Because of ALJ Hoppenfeld’s bias, the claimant had to wait many extra years to get her past due benefits, upon which she will receive no interest. The cost to the Social Security Administration was needlessly excessive as ALJ Hoppenfeld required countless hearings and experts. Hoppenfeld’s actions were a waste of tax dollars.

Hopefully, Padro will result in many claimants whose applications were denied by the Queens Five, including ALJ Hoppenfeld, receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.