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Importance of Diagnostic Testing

I represent a Social Security Disability (“SSD”) applicant who stopped working when he was 39 years old due to orthopedic, neurological, and cardiovascular conditions that limited his ability to use his arms and legs. His SSD application had been denied based upon a consultative examination, so he retained me to handle the appeal.

The claimant’s orthopedist, chiropractor, and neurologist provided reports concluding the claimant could not perform any type of full time work. Administrative law judges (“ALJ”) typically give little weight to treating doctors’ opinion when there are few treatment records in the file. While that was true for the claimant, he had an inordinate number of diagnostic tests, including multiple upper and lower NCV/EMGs, cervical and lumbar MRIs, as well as operative reports.

I contended that the diagnostic test reports amply supported the opinions of the treating specialists. The ALJ agreed and credited their opinions.

SSD Approved In 2 Months

At a time when there are record wait times for processing Social Security Disability (“SSD”) claims , sometimes the State agency quickly approves SSD claims, in much less time than usual .

I represent a 58 year old auto mechanic with spinal problems, whose SSD application was approved in two months. The obvious question is what accounted for the decision? I submitted a strong disability report from the treating spine specialist, but that has failed to suffice to win approval where claimant’s had similar medical problems. The claimant had a protracted work history doing heavy, skilled work, but again, that alone has failed to suffice to win approval where claimant’s had similar work backgrounds.

It appears that when presented with a strong disability report for a claimant with a long history of performing heavy work, then the State agency will approve the claim quickly without mechanically insisting that the agency doctor examine the claimant. Taxpayers would be better served if the State agency would refrain from improperly insisting that the agency doctor examine other claimants.

Unemployment Benefits Do Not Preclude SSD

I represent a 55 year old former steamfitter with spine problems whose Social Security Disability (“SSD”) benefits were approved today in a decision by Administrative Law Judge (“ALJ”) Andrew Weiss. The initial issue the ALJ had to decide was whether the claimant had engaged in substantial gainful activity (“SGA”) .

The claimant had earned around $900 for one quarter, which the ALJ noted was below the SGA threshold, which is about a $1,000 a month. The claimant had also received money from his union’s benefit fund and from unemployment insurance, neither of which the ALJ found were from work activity.

It was nice to have an ALJ acknowledge that unemployment benefits do not bar SSD benefits. In the past, some ALJ’s, notably the Padro ALJs , had used a claimant’s receipt of unemployment benefits as an excuse to deny SSD benefits . Those denials were always overturned on appeal.

ALJ Relies On Disgraced “Medical Expert”

When a Social Security Disability (“SSD”) claimant has a hearing, the administrative law judge (“ALJ”) can schedule a “medical expert” “(ME”) to provide testimony. According to the Social Security Administration’s “Medical Expert Handbook,”

The ALJ will ask you questions before you testify to establish your independence and impartiality, and your medical qualifications and competence to testify. If the ALJ does not already have it, you should provide him or her with a written résumé or curriculum vitae summarizing your experience and background which the ALJ will enter into the case record as evidence. The ALJ will also ask you whether the résumé or curriculum vitae is accurate and up to date, and will likely ask you whether you are familiar with applicable SSA regulations and other rules. The ALJ will also ask the claimant and his or her representative, if any, whether they object to your testifying.

It is imperative that you investigate the background of any ME who is scheduled to testify at your hearing.

I represent a 59 year old former respiratory therapist with cardiovascular problems. ALJ Weiss denied the claimant’s SSD application today based on the opinion of a disgraced ME, Steven L. Shilling, who testified that the claimant could work.

Prior to the hearing, Shilling submitted a resume that only went up to the year 2012. Even though the hearing was taking place in 2016, and the ALJ was obligated to ask Shilling whether his résumé was accurate and up to date, the ALJ conspicuously failed to do so. In light of the glaring gap in Shilling’s resume, I asked him if it was accurate and up to date, to which he said no. At that point, despite ALJ Weiss’s inexplicable recalcitrance, I insisted that I be supplied with a current resume.

It was no accident that Shilling had supplied an out of date resume –it was an attempt to cover up his protracted history of professional misconduct. One can only wonder why ALJ Weiss initially did not want to compel Shilling to provide a current resume as required by the Social Security rules.

After Shilling faxed his current resume for cross examination, I noticed that there was a two year employment gap, and then he claimed that he was simultaneously doing seven (7) jobs since 2014, including serving as an ME for the SSA. After questioning him about those seven jobs, it turns out that he had not actually worked at several of them. It is my understanding that it is illegal to submit documents to a federal agency that contains false information. More importantly, it shows that Shilling is dishonest.

After learning Shilling was dishonest about his work history, I proceeded to ask him if his resume was accurate about where he went to school, where he trained, and that he was triple board certified, all of which he confirmed. Both of his resumes stated that he was board certified in Internal Medicine, Cardiovascular Medicine, and Interventional Cardiology. According to the resume he had submitted, his education was completed in 1994, and from 1994 to 2012 was in private practice with “Cardiac Associates” as a cardiologist. When I asked what month in 2012 he stopped working there he said March, for “a lot of different reasons.” When I asked him what the reasons were, he simply reiterated what he had just said, and refused to give a specific reason.

I gave the ALJ a copy of the information provided by Healthgrades to mark as an Exhibit. I asked Shilling if the information from Healthgrades about where he went to school, did his residency, and then his fellowship were accurate, he stated that it was. I then stated that according to Healthgrades the State Medical Board found him guilty of professional misconduct on April 12, 2013, and asked if that was also true. He said yes, but claimed that his professional misconduct had nothing to do with his leaving Cardiac Associates after 2012.

Next, I gave the ALJ a copy of some pages from the December 2012 TMB Bulletin, the newsletter of the Texas Medical Board, to mark as an Exhibit. According to the TMB Bulletin, disciplinary action was taken against Shilling on October 9, 2012 because of his use of drugs and alcohol in an intemperate manner that could endanger patients. I asked if that was related to why he stopped working at Cardiac Associate, but Shilling claimed it was not. When I asked Shilling what he recalled about that misconduct, he said something about having a glass of wine with his lunch and then going back to work.

Next, I gave the ALJ a copy of an article from the April 23, 2013 Houston News to mark as an Exhibit. According to that newspaper article, while the Medical Board took action on April 12, 2013 against Shilling, it said that he had surrendered hospital privileges in 2010. When I asked Shilling if he ever got them back, he said no. When I asked him why he surrendered privileges back in 2010, he admitted that it was a prior instance of substance abuse. The Houston News article also stated that Shilling was not practicing medicine, and had no plans to return to practice. When I asked him if that was why he never worked after Cardiac Associates to work, he again denied that there was any connection.

Next, I gave the ALJ a copy of an article from the October 25, 2012 Dallas Morning News to mark as an Exhibit. According to the Dallas Morning News, “The medical board recently asked an administrative law judge to authorize discipline of the doctor.” It said Shilling “admitted to consuming alcohol” before going to the Irving hospital in 2010, “has a history” of drunken driving charges, “has been in treatment for prescription medication abuse” and “continues to drink presently.” Shilling conceded that the 2010 misconduct was independent of the 2012 misconduct.

Next, I gave the ALJ a copy of the printout from a search done on the American Board of Medical Specialties (“ABMS”) website to mark as an Exhibit. I noted that Shilling had testified just a few minutes earlier that he was triple board certified. I asked him what was the American Board of Medical Specialties, and Shilling stated it was the organization that certified physicians. When I asked Shilling if he could explain why, according to the ABMS, he was not board certified in any field, he admitted that he was no longer board certified in Internal Medicine or Interventional Cardiology, but claimed he was board certified in Cardiology. However, he was unable to explain why the ABMS stated that he was not, other than surmising that they Ddid not have his updated paperwork, even though two years had passed.

Finally, I gave the ALJ a copy of the Agreed Order, dated April 12, 2013 signed by Shilling and the Texas Medical Board for the ALJ to enter as an Exhibit. That was the only document from the cross examination that the ALJ marked as an Exhibit. HALLEX I-2—1-20(B)(3) states that when an ALJ issues an unfavorable decision, he is required to provide a finalized exhibit list “to protect the claimant’s due process rights. The claimant is entitled to know the information the ALJ relied on when making the decision.”

ALJ Weiss violated the claimant’s Due Process rights by purposely purging from the exhibits the evidence that I submitted to him, and used during the cross examination of Shilling. The ALJ was obviously trying to mitigate the evidence relating to the reliability of Shilling’s opinion because it served as the sole basis for the ALJ’s denial. The ALJ’s reliance was particularly insidious because federal courts have warned him before that he cannot rely on the opinions of MEs to deny claims.

In sum Shilling and the ALJ wanted me to rely on an outdated resume, which would have failed to reflect a two year gap in Shilling’s work history. That gap, which was readily evident in the current resume, obviously invited questioning for its existence. That questioning inevitably should have led the discovery of Shilling’s history of professional misconduct, and his exaggerating his qualifications to over compensate for his failings. Shilling’s testimony is tainted by financial conflict of interest because he is dependent on making a living as a consultant. The ALJ evidenced complicity in Shilling’s deception by refusing to mark the cross examination evidence as exhibits in order to bolster his decision to deny the claimant benefits based upon Shilling’s opinion. Similarly, the ALJ refused to require Shilling to produce his tax records, which would have established his dependence on income from testifying as an ME.

SSD Approved for Crohn’s Disease

Crohn’s disease is one of the conditions that is known as Inflammatory Bowel Diseases (“IBD”) . Social Security Disability (“SSD”) claimants with Crohn’s and other types of IBD are usually denied initially, and then forced to go to a hearing before an Administrative Law Judge as the next step of the approval process. Unfortunately, the wait for a hearing these days is very long .

I represent a 35 year old former special ed teacher with Crohn’s who was just approved without the need for a hearing. While no express reason was provided for the approval, the relatively rapid approval was apparently because the Crohn’s disease met the listing for IBD.

Medical information supporting the listing elements was submitted, along with a medical report detailing how the Crohn’s reduced the claimant’s ability to function. Recognizing what information needs to be submitted in light of the particular medical condition is essential to securing SSD benefits, especially without having to wait for a hearing.