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

Monday, October 27th, 2014

Pseudarthrosis

Pseudarthrosis, which is commonly referred to as a nonunion or false joint, is a bone fracture that will not mend because the body perceives bone fragments as separate bones and does not attempt to unite them. Pseudarthrosis occurs from inadequate healing after the fracture, and can result from a failed attempt of spinal fusion. Pain recurs in a very similar location to that before surgery.

I represent a 42 year old grocery store manager with back problems. The State agency denied his Social Security Disability (“SSD”) application even though diagnostic testing revealed lumbar radiculopathy. However, weeks after I submitted a report from the treating spine specialist diagnosing the claimant with pseudarthrosis, his SSD benefits were approved.

Saturday, October 25th, 2014

Proper Hearing Notice

A colleague stated that, for the second time in two weeks, the Jericho Social Security hearing office added an expert witness just one week before the hearing. He wanted to know if there was a basis for objecting to the short notice. The answer is yes.

Under the Social Security regulations, 20 CFR § 404.938, a hearing notice must be sent at least 20 days before the hearing, and must state if the appearance of any witness is scheduled to be made in person, by video teleconferencing, or by telephone. Furthermore, HALLEX I-2-3-15D requires the notice to include the proper names of expert witnesses.

A hearing notice is defective if it failed to identify the name of a medical or vocational expert at least 20 days before the hearing. The notice would be defective even if it indicated that an expert would appear, but failed to identify the proper name of the expert. For example, a notice that states that the hearing will include testimony from the name of a company that provides vocational services without specifying the individual from that company is defective.

There are two choices when the hearing notice is defective. You can waive the right to receive a proper notice of hearing at least 20 days before the hearing. Alternatively, you can insist that an amended notice of hearing be mailed to include the proper name of the expert, and that notice must be provide at least 20 days notice.

Friday, October 24th, 2014

Video Taping Consultative Examination

For virtually every Social Security Disability (“SSD”) claim, the State Agency sends letters to claimants telling them that they have to attend a consultative examination (“CE”). In New York, the State Agency contracted with Industrial Medicine Associates (“IMA”) to perform the CEs.

There is no Social Security ruling, regulation, statute, guideline, POMS, HALLEX, or case law that precludes an SSD claimant from video recording his or her CE. To the contrary, video taping an IMA CE is consistent with the SSA tape recording experts and witnesses at hearings. Notably, section 137 of the Workers’ Compensation law specifies that a claimant has the “right to video tape or otherwise record” an examination.

One of my clients appeared at IMA for his CE. However, the IMA office manager refused to allow the CE to proceed because the claimant wanted to video tape it. The IMA office manager stated that they had the “discretion” to refuse to be video taped. When the claimant asserted his right to videotape the CE, the office manager told him to leave.

Because the claimant video taped the IMA office manager saying that they had the “discretion” to refuse to be video taped, and telling him to leave, it is undeniable that IMA, not my client, refused to proceed with the CE. That videotape will prove that any assertion by the State agency that the claimant “failed to cooperate” is a lie, as he was ready, willing, and able to examined.

Thursday, October 16th, 2014

Antiphospholipid Syndrome

I have recently taken on several disability clients afflicted with Antiphospholipid Syndrome. According to the Mayo Clinic, Antiphospholipid Syndrome is an incurable condition that occurs when your immune system mistakenly attacks some of the normal proteins in your blood, which can cause blood clots, stroke, headaches, rashes, cardiovascular disease, and memory loss.

I represent a 62 year old bookkeeper with Antiphospholipid Syndrome, whose Social Security Disability (“SSD”) application was approved today after just three months. Having obtained the documentation establishing the diagnosis of Antiphospholipid Syndrome, it was not difficult showing the claimant’s entitlement to SSD benefits, even though her past work sedentary.

In order to reduce the claimant’s risk of a clot in her legs, her doctor advised her to elevate them frequently above the height of her heart. As sedentary work cannot be performed properly with elevated legs, whether lying down or reclining in a chair, the claimant had to be found disabled.

Thursday, October 2nd, 2014

Non-Hodgkin’s Lymphoma

Non-Hodgkin’s Lymphoma is cancer that originates in your lymphatic system, which is the disease-fighting network that is spread throughout your body. According to the National Cancer Institute, there are over 70,000 new cases of Non-Hodgkin’s Lymphoma each year in the U.S. Typical symptoms include: swollen lymph nodes; abdominal pain or swelling; chest pain, coughing, or trouble breathing; fatigue; fever; night sweats; and weight loss.

Like any medical condition, a person with Non-Hodgkin’s Lymphoma can establish disability by showing that it, or its treatment, prevents then from having the functional capacity to work. A person with Non-Hodgkin’s Lymphoma can also establish disability by showing that a listing is met.

I represent a 46 year old teacher with Non-Hodgkin’s Lymphoma whose Social Security Disability application was approved in two months. The only explanation for the rapid approval is that Social Security determined the claimant met the applicable listing, 13.05.