May 2014 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Tuesday, May 27th, 2014

SSD For Landscaper

A stroke occurs when a blood clot that is blocking an artery or a blood vessel breaks, thereby interrupting blood flow to an area of the brain, which results in brain damage. A common stroke symptom is weakness to one side of the body.

I represent a 51 year old unskilled landscaper who had to stop working because of a stroke. The claimant’s symptoms included left sided weakness. The claimant’s application for Social Security Disability (“SSD”) benefits was approved without a hearing.

Treatment records established that the claimant had suffered a stroke causing left sided weakness, which prevented him from resuming his strenuous work as a landscaper. Social Security rules state that bilateral manual dexterity (“BMD”) is necessary for the performance of substantially all unskilled sedentary occupations. Presumably, it was obvious that the claimant could not perform his arduous past work, and SSD benefits were approved because his lack of BMD precluded sedentary work as well.

Saturday, May 24th, 2014

Disability Retirement Approved Without A Hearing

I filed application for Article 15 Disability Retirement with New York State for a Motor Equipment Operator, which was approved today without a hearing being required. When seeking disability retirement, I have found that including a vocational assessment (“VA”) and independent medical opinions significantly increases the chances of approval.

The VA uses the U.S. Department of Labor’s Dictionary of Occupational Titles (the “DOT”) to determine the occupation that most closely matches the State’s job description. The DOT then provides physical and mental demands for the occupation. In addition to exam findings, test reports and restrictions and limitations (“R&Ls”) from the treating doctors, I furnish IME and peer reviews that also provide R&Ls. The VA then compares the R&Ls to the occupation’s demands to determine if the claimant has the ability to perform them.

The cost of the VA, IME and peer review can be substantial. Nonetheless, I believe that it is an investment that more than pays off in the long run.

Thursday, May 22nd, 2014

SSD for Cement Truck Driver

I represent a 55 year old cement truck driver with neck and back problems whose application for Social Security Disability (“SSD”) benefits was approved today without a hearing. The interesting thing about this case is that it was approved based largely on the opinion of the claimant’s primary care physician (“PCP”).

In general, the rules provide that the opinion of a generalist is entitled to less weight than a specialist. Many Administrative Law Judges misapply that rule, and reject the opinion of a PCP on the grounds that he or she is not a specialist. However, when a PCP’s opinion is well supported by clinical and diagnostic findings, it may be entitled to significant or even controlling weight.

In this case, the PCP’s opinion was supported by several MRI reports as well as exam findings by numerous other orthopedic and pain management specialists. Accordingly, there was more ample grounds for approving SSD benefits based upon the PCP’s opinion.

There have been many times where clients have neglected to provide their PCP’s information, or were reluctant to ask them to provide reports because they were not the specialist treating the disabling impairment. This case is a perfect example demonstrating why supportive information should not be disregarded just because the source is not a specialist.

Wednesday, May 21st, 2014

USDC Reverses ALJ Wolfe

Administrative Law Judge (“ALJ”) Michelle Wolfe is a bad ALJ. Typical comments from those who appeared before her include: “Judge Wolfe should be ashamed of herself;” and “she denies many cases that should be awarded.” Wolfe only approves 18% of the cases she hears, which is less than half compared to the National average of 44%. In fact, 18% is even lower than the approval rates of the Queens Five before Padro was filed.

I represented a claimant before ALJ Wolfe, who said that she was doing me a favor by approving a partially favorable decision. ALJ Wolfe refused to issue a fully favorable opinion because she argued the claimant lacked credibility. I argued to the Appeals Council that the claimant’s 33 year work history created a strong presumption that the claimant is credible, and that he stopped working for the reasons stated in his submissions to the SSA, which “was not overcome by the ALJ cherry picking a couple of snippets from the record that she believed would help support her decision.”

As the federal court appeal took place in Pennsylvania, I referred the case to local counsel. Today, I received a copy of the U.S. District Court opinion that outright reversed Wolfe’s decision, which is unusual because favorable relief is usually a remand to the same ALJ. District Judge Malachy Mannion wrote, “In sum, the court agrees with plaintiff that the ALJ “cherry picked” medical evidence to support a finding of not disabled, rather than reviewing and evaluating the objective medical evidence.” The federal court adopted my argument to the Appeals Council, which was that the claimant should have been granted full benefits because he met the mental listings.

Friday, May 16th, 2014

Disability Etiology

When seeking Social Security Disability (“SSD”) benefits, establishing the etiology of why you cannot work is not required. What is required is that you show you that the restrictions and limitations caused by the medical problem prevent you from being able to work.

A 31 year old clerk retained me after her SSD application was denied. The State agency had denied the claimant’s benefits on the grounds that the medical reports did not show any conditions of a nature that would prevent her from working.

At the ensuing hearing, the Administration Law Judge (“ALJ”) found it baffling that none of the doctors could determine the cause or a diagnosis of the claimant’s symptoms, which included pain and weakness, and was considering adjourning the hearing so a medical expert could testify. After I pointed out that the claimant’s symptoms were accompanied by objective findings, such as the claimant’s skin turning purple and cold, and joint and muscle swelling, the ALJ took testimony from a vocational expert (“VE”).

The ALJ asked the VE if the claimant could work based on the restrictions and limitations provided by the treating physicians or the consultative examiner, to which the VE said no. Based on the VE’s testimony, the ALJ approved the case. In other words, it was irrelevant that the claimant was unable to establish the cause of why she was unable to work, all that mattered was that as a result of her medical problems she was unable to perform the physical demands of work.

Thursday, May 15th, 2014

Unum Field Visit

I represent an owner of a landscaping business who had purchased a disability insurance policy from New York Life, which was subsequently taken over by Unum. I filed a claim under the policy because the claimant’s diabetes prevented him from working.

During the claim process, Unum made several demands that were outside the terms of the policy. Unum requested tax records, but there was no provision entitling Unum to do so. However, that request was moot as no tax returns were filed during the requested period.

Unum also wanted the claimant to meet with one of its Field Representatives to understand his occupation and duties. I explained that there was no need for a meeting because any questions could be asked in writing, and that since a Field Representative is not a vocational expert the request was illogical. More importantly, I pointed out that the policy does not permit Unum to use a Field Representative to question the claimant, and wrote Unum that it they believed I was wrong, then they should identify the section of the policy that they claimed empowered Unum to do so. Unum never responded.

Unum also asked if the claimant had applied for Social Security Disability (“SSD”) benefits, and for an authorization to obtain his SSD file. I told Unum that the claimant would not comply because there was no offset in the policy for SSD benefits, which rendered the request irrelevant.

I suggested that Unum could make the request relevant by providing a notarized letter stating that Unum would accept the decision of the Social Security Administration as to whether the claimant was disabled under the policy. Once again, Unum never responded. I was advised today that Unum is approving the claim.