March 2016 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Thursday, March 24th, 2016

Vocational Expert

A vocational expert (“VE”) at a Social Security Disability (“SSD”) hearing is supposed to testify about the functional demands of occupations, the number of various occupations, and transferability of work skills. Administrative Law Judges (“ALJs”) frequently use VEs to create evidence to deny SSD claims .

I represent a former sewer supervisor in connection with his NYSLERS and SSD claims. I had arranged for him to obtain a comprehensive vocational evaluation for his NYSLERS claim , which I also submitted for his SSD claim. The VE happens to be certified as an expert by the Social Security Administration.

The ALJ scheduled a VE to testify at the claimant’s SSD hearing. I submitted a brief that objected to a VE testifying because the ALJ already had detailed report from a VE certified by the SSA as an expert, and that any question the ALJ had could be addressed to the VE. I maintained that scheduling another VE to testify was patently unnecessary, and gave the appearance of expert shopping.

The hearing was held without a VE, and the case was approved.

Friday, March 11th, 2016

Easy Case For ALJ

I recently wrote about the effect that increased work loads had on an Administrative Law Judge (“ALJ”). One wonders what an ALJ thinks when having to adjudicate a Social Security Disability (“SSD”) claim that the State agency denied .

I represent a 39 year old sanitation worker with a severe hip problem that requires him to use a cane permanently, and prevents him from prolonged sitting. The State agency said the claimant was credible, did not need a consultative examination , but did not have a medical opinion about his restrictions and limitations.

Contrary to the State agency’s explanation for denying the claimant’s SSD application, the claimant submitted a report from his surgeon and treating orthopedist that did in fact provide restrictions and limitations. In light of that transparent error, there was no medical issue for ALJ Faraguna to evaluate, and the hearing was short as the ALJ simply focused on the testimony of a vocational expert , which readily found the claimant disabled.

Thursday, March 10th, 2016

SSD Approved in 2.5 Months

Ironically, while the State agency has been taking longer to approve compassionate allowance Social Security Disability (“SSD”) claims and SSD claims that meet listings , the agency has been taking less time to approve SSD claims of older workers, especially when their occupation was not sedentary.

I represent a client with back, neck and hip problems who had worked as a real estate agent and machine supervisor. The medical problems did not meet a listing, nor did they constitute a compassionate allowance, but he did have strong supporting reports from his treating specialists. The claimant’s past work was not sedentary, and he was 60 years old when he became disabled. The SSD application was approved today in a couple days short of 2.5 months.

Social Security has always stated that transferability of skills to sedentary work for individuals who are 55 and over requires little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry. Perhaps Social Security recognizes that the aforementioned rule is even truer today than ever as our constantly evolving workforce requires greater skills now to be employable. That would explain quicker SSD approvals for older workers with protracted non-sedentary work histories.

Saturday, March 5th, 2016

ALJ Quotas

Last year, a federal appellate court rejected a lawsuit by Social Security Administration (“SSA”) Administrative Law Judges (“ALJ’s”) that had challenged the SSA’s requiring ALJs to decide between 500 and 700 cases annually. The court said that while some ALJs might dismiss more cases than they would have preferred to do, the increased caseload did not interfere with decisional independence.

Last year, ALJ Weiss dismissed an SSD case that did not even address the findings and opinions from the primary treating physician, a psychiatrist. The decision was so contrary to the ALJ’s typically cogent decisions that my appeal comments stated:

“Presumably, the ALJ had a quota to meet, and had somebody else write the Decision for him, which he never bothered to review.”

It appears that my supposition was correct. The Appeals Council remanded the claim for reconsideration of the psychiatrist’s opinion. The ALJ approved the claim today without an additional hearing based on the psychiatrist’s findings and conclusions, which shows the ALJ would have approved the claim initially had he been able to spend more time on it.

Friday, March 4th, 2016

NYSLERS

I just had two applications for ordinary disability retirement approved by NYSLERS. The claims involved claimants with completely different medical conditions and occupations, but in each case I required the claimant’s to undergo comprehensive vocational evaluations.

Over the years, I noticed that when NYSLERS rejected Article 15 Disability Retirement applications there was no nexus between the supporting medical evidence that I submitted and the physical and mental occupational demands of the claimant’s job. The general purpose of a vocational evaluation is to assess the employment capabilities of an individual using skill, situational, standardized and functional assessments. When filing Article 15 Disability Retirement application, the vocational evaluation enhances NYSLERS’ ability to understand how a claimant’s medical condition affects their ability to perform the material and substantial duties of their job.

In short, the vocational evaluation seems to mitigate much of the guessing game that can take place when the focus is only the medical evidence.