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SSD After Returning To Work

It is possible to receive Social Security Disability (“SSD”) benefits even if you have recovered and returned to work. The SSD process is notoriously slow, and it is not unusual for a claimant to undergo a lengthy disability appeal process that has lasted for years. By the time the case has proceeded to a hearing, the claimant may have recovered from their disabling impairments. 

 A “closed period” of SSD eligibility could result. A closed period of disability can occur when a claimant was unable to work for 12 months, the durational requirement, but their medical condition improved and enabling them to resume working. Thus, even if you never applied for SSD benefits, if you were out of work for medical reasons more than a year you should consider proceeding with an SSD claim, even though you no longer qualify for benefits. SSD benefits will not be available during the five month waiting period.

It may be easier for a claimant to receive closed period disability benefits than it is to receive open period disability benefits. If an ALJ approves an open period disability, it will be costly, because it is likely the claimant will continue to receive SSD benefits for many years to come. Approving a closed period claim involves less of a financial risk for the SSA. 

I just received an on-the-record (“OTR”) decision from an ALJ who rarely grants them. The OTR occurred after I notified the ALJ that the claimant would be seeking a closed period. The ALJ approved either because of the lower financial risk, or because the claim seemed more credible because of the additional evidence of a good work ethic.

Unum Avoids Trial

I filed a lawsuit in federal court against Unum for wrongful termination of long term disability (“LTD”) benefits in October 2016. Unum was never able to identify a single medical test, exam finding, or symptom that had changed, let alone improved, since it approved the claimant’s LTD benefits, as well as her short term disability benefits and her individual disability policy benefits. 

Unum filed a motion to dismiss the action, and lost. Then Unum filed a motion for summary judgment, asking the court to remand the case, and they lost again. Since Unum always asks courts to uphold their decision, asking for a remand was an admission that they knew their decision was wrong. Now, just days before pretrial submissions were due for the trial, which is scheduled to begin next month, Unum asked the court to cancel the trial because they are reinstating the claimant’s benefits. 

Unum knew all along that it lacked any legitimate defense for its decision to terminate LTD benefits. When it became obvious that my client would reject their low ball settlement offers, and would proceed to trial, Unum asked to cancel the trial at the eleventh hour. My client refused to waive her right to statutory attorney fees as the prevailing party, interest, and costs.

State Agency Fraud

The Social Security Administration (the “SSA”) is reinstituting the reconsideration stage in New York come January 1, 2019. Close to 90% of claims are denied on reconsideration, so why is it being restored? Given that the SSA has been passing rules to make it more difficult to obtain benefits, such as eliminating the treating physician rule, logic dictates that reinstituting reconsideration is intended to do the same. 

 
Here is a recent example of what can be expected from an extra round of State agency review. I represent a 58 year old claimant who had worked as a school nurse for 27 years. A pain management specialist, internist, and pulmonologist each concluded the claimant had a less than sedentary work capacity. The claimant’s pulmonary function tests each show she met a listing. 

On January 9, 2018, “L. Samuel,” (the State agency doctors are afraid to disclose their first names) a State agency internist, concluded that the claimant was limited to lifting 10 pounds, and was credible. Based on that opinion, the State agency analyst advised approving the claim. However, it was decided that there was a vocational“error” in applying the medical-vocational rules. The State agency then had Samuel redo his report two weeks later. 

 
During the two week interim period, there was absolutely nothing added to the claim file – no medical evidence, no financial evidence, no vocational evidence. Nonetheless, based on the identical information, without any explanation whatsoever, Samuel now concluded that the claimant could lift twice as much, 20 pounds, and for some reason, was no longer credible. 

Subsequently, an internist from the SSA reviewed the medical records, and rejected Samuel’s attempt to “redo” his conclusions. When brought to the attention of the ALJ assigned to case, the claim was approved without a hearing. I suggested that L. Samuel be referred to the Office of the Inspector General to account for his fraud, but I am confidant that nothing will be done. 

The above illustrates what happens when the State agency effectively reconsiders a claim. Although I would not anticipate that each reconsideration will result in fraud, this serves as evidence that State agency doctors are partial, which serves the interest in the SSA reducing the number of approvals, and increasing delays for those who eventually do get approved.

Ulcerative Colitis

According to the Crohn’s & Colitis Foundation, ulcerative colitis is a chronic disease of the large intestine, also known as the colon, in which the lining of the colon becomes inflamed and develops tiny open sores, or ulcers, that produce pus and mucous. The Mayo Clinic lists diarrhea, abdominal pain and cramping, weight loss, fatigue and urgency to defecate as symptoms. 

Many occupations cannot be accommodated for instantaneous and at will bathroom access, which is what ulcerative colitis frequently requires. That is one basis for a finding of disability. Another was discussed in my previous posting – absenteeism. 

I represent a 57 year old medical technician with ulcerative colitis, whose disability benefits were approved yesterday. The claimant was found to be able to perform sedentary work. However, because it was also found that the claimant would miss two days of work a month, the claimant was found disabled.

How Absenteeism Affects Disability

There are two parts to disability benefit cases – the vocational issues and the medical issues – with the former frequently being overlooked. The task of the person deciding if a claimant is disabled is to ascertain the claimant’s physical and mental restrictions and limitations (R&Ls), and then to compare them with the relevant occupational demands. 

Regardless of whether the claim is being considered by an insurance company, governmental agency, or some other entity, it is usually the claimant’s responsibility to provide the reviewer with support for the claim, which should include R&Ls from the treating sources. The R&Ls should include opinions regarding both exertional and nonexertional abilities, which can be determinative sometimes. 

I represent a 44 year old former hospital admissions clerk with mental impairments, whose Social Security Disability (“SSD”) benefits were approved today. The treating psychiatrist provided supporting narrative reports, progress notes, and impairment assessments. Ultimately, the ALJ rested his decision approving the SSD application on the psychiatrist’s opinion that the claimant’s medical condition would cause him to miss work at least three days a month. It is generally accepted that an employee cannot miss three days of work a month, and still maintain employment, which the vocational expert at the hearing confirmed. 

When pursuing a claim for any type of disability benefits, it is important to have the treating sources opine about any R&L that could potentially adversely impact the claimant’s ability to work.

Do You Need A Lawyer To Get SSD?

The answer to the question is….maybe. The medical and vocational facts are different in every case so there is no definitive answer. I have heard countless times that representatives at the district Social Security offices discourage claimants from using attorneys, even though the Social Security Administration’s (“SSA”) statistics always show that claimants who are represented by attorneys have higher approval rates. 

I represent a 48 year old former cable television technician, which was strenuous work, with severe neck and back problems. She retained us after her SSD application was denied. After reviewing her file, we secured a great deal of medical records and disability reports from her pain management specialist, chiropractor, internist, and neurosurgeon. It was obvious at the hearing that the judge would find that the claimant was entitled to SSD benefits. 

Did the claimant have to have an attorney? No. Did it help the claimant to have an attorney at the hearing? Obviously. Would the judge have approved the claimant’s SSD benefits without a benefit? Possibly, but the SSA’s statistics say her chances of winning were better with an attorney. Would the claimant’s SSD application have been approved initially had an attorney represented her? Possibly. There certainly is nothing to lose by consulting with disability attorney before filing an SSD application.

Advanced Practice Registered Nurses

As of March 27, 2017, the Social Security Administration (“SSA”) considers an Advanced Practice Registered Nurse (“APRN”) to be an acceptable medical source (“AMS”). That means when you apply for Social Security Disability (“SSD”) benefits, information from an APRN can establish that you have a medically determinable impairment, and even meet a listing. 

I represent a 37 year old claimant from Texas with mental impairments whose SSD application was approved in three months. A psychiatrist, APRN, and Social Worker all treat the claimant. What makes the relatively rapid approval significant is that the opinion regarding the claimant’s mental restrictions and limitations was provided by an ANPR. If this claimant had submitted her SSD application before March 27, 2017, then it would not have been approved. 

Notably, the rule seems to have been overlooked at some SSA District Offices. Applicants have retained us after they were denied, who advised that representatives from their District Office said that the medical evidence and opinions should come from medical doctors. Anyone seeking SSD benefits should treat APRNs just as they would treat a medical doctor or doctor of osteopathy.

Bipolar Disorder

According to the National Institute of Mental Health, bipolar disorder, also known as manic-depressive illness, is a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. According to the National Institute of Mental Illness, nearly 83% of people diagnosed with bipolar disorder are classified as severe. And according to the Mayo Clinic, physical health problems that frequently occur with bipolar disorder are heart disease, thyroid problems, headaches, or obesity.

I represent a woman with bipolar disorder who became disabled when she was 34 years old. Her comorbid conditions included heart disease, thyroid problems, headaches, and obesity. ALJ Weiss found that she met the bipolar listing  today, which means that he will be approving her application for Social Security Disability benefits.

The ALJ seemed persuaded by two factors. First, even though the claimant was relatively young, she had worked every year of her life since she was only 14 years old, and had continued to work through numerous hospitalizations. Second, the hospitalization records included the medical findings that supported the listing criteria. Frequently, ALJs are reluctant to find that a claimant meets the criteria of a mental listing when they come from progress notes of treating sources. 

Even if bountiful and supportive reports and records are submitted from treating mental health providers, records from hospitalizations should always be sought for filing too. Hospital records usually do not include any information regarding functional limitations resulting from bipolar disorder. However, when hospital personnel make the same findings that treating providers observed, many ALJ’s consider the former’s medical information to be more objective.

SS Benefits Increase

People receiving Social Security benefits will be receiving their biggest increase in seven years, even though the increase will not match the rate of inflation in certain portions of the country.

Dysautonomia

According to Dysautonomia International, dysautonomia is when your autonomic nervous system (“ANS”) malfunctions. The ANS controls heart rate, blood pressure, digestion, pupil dilation and constriction, kidney function, and body temperature. A malfunctioning ANS can result in many problems, including double vision, incontinence, dizziness, chronic fatigue, cognitive impairment, syncope, vertigo, orthostatic hypotension, and weakness. ANS is usually incurable.

I represent a 57 year old former customer service representative with ANS. Despite providing treatment records, narrative reports and impairment questionnaires, the State agency denied my client’s application for Social Security Disability (“SSD”) benefits. However, shortly after submitting a functional capacity examination (“FCE”) report, the claimant’s SSD application was approved by the Social Security hearing office.

An FCE provides objective evidence to corroborate the opinions of doctors who provide physical restrictions and limitations. While the cost of an FCE can be substantial, it is recommended.

Young Person Granted OTR

Awards of Social Security Disability (“SSD”) have decreased the past few years. SSD awards to claimants under 45 years of age have always been more difficult to obtain. On-the record (“OTR”) decisions have become rare in recent years. Today, I received an OTR for a 42 year old claimant with neck and back problems. 

What does it take to obtain SSD benefits, without a hearing, for a younger person these days? The answer in this case was slews of abnormal diagnostic tests, multiple surgeries, and several supporting medical opinions. We submitted MRI and CT scan tests; pain management records, including epidural and other injection records and ablations; lumbar and cervical operative reports; pharmacy reports enumerating many potent narcotic pain killers, NSAIDS, and muscle relaxants; progress notes; and disability opinions from orthopedists, pain management specialists, physiatrist, and internist. 

Despite the above, the State agency still managed to deny the SSD application. Fortunately, the ALJ assigned the case recognized the overwhelming amount of evidence supporting the claimant’s application, and approved the SSD benefits OTR, thereby saving the claimant the time, stress and trouble associated with a hearing.

Earnings After Onset

When applying for Social Security Disability (“SSD”) benefits, the State agency usually investigates income that a claimant received after the alleged onset date (“AOD”) to determine if there was an unsuccessful work attempt, if the AOD needs to be amended to a later date, or if it was passive income. 

Passive income includes money that you receive from accrued sick and personal days and other types of disability benefits, such as workers compensation and long term disability benefits. Passive income frequently delays having SSD benefits approved, even when the State agency explicitly concludes that earnings after the AOD are not an issue. 

I had two ALJs approve SSD claims this week, where the sole issue was post-AOD earnings. In the first case, the earnings were other disability benefits, and today the earnings were from accrued leave. While it is understandable that an ALJ wants the claimant’s testimony regarding post-AOD earnings to be sworn under oath, why can’t the issue be resolved via sworn affidavit? That would save the ALJ from having to schedule and hold a hearing, and would result in the claimant receiving SSD benefits much sooner.

On a related note, I have had many cases where a claimant seeking SSD benefits was receiving a salary, usually by a relative, to enable the claimant to maintain health insurance, even though the claimant did not actually work.  The ALJs have accepted the claimants’ testimony at hearings that the claimants were disabled during that time.  Last week, an ALJ agreed that one of my clients was disabled during the time his wife’s company paid him, based on averring in a Work Activity Report that he did not work, but was on payroll solely to be covered by the company’s medical insurance.

Unum Motion To Remand Denied

I have a case pending in federal court against Unum for wrongful termination of long term disability (“LTD”) benefits. Besides previously approving the LTD benefits, Unum had also approved my client’s benefits under a short term disability plan, as well as under an Individual Disability Insurance policy. 

After the court denied Unum’s motion to dismiss, Unum filed a summary judgment motion that asked the court to remand the case to Unum. There are hundreds of reported cases where Unum files motions to affirm its decision to deny or terminate disability benefits. Unum’s seeking a remand is an admission that it knows its decision to terminate my client’s LTD benefits cannot be sustained. 

Friday, the court denied Unum’s motion to remand, and ruled that a bench trial with medical witnesses will be scheduled in early January. The court also actually stated on the record that my client will likely prevail at the trial. Norman Bress and Peter Kouros will probably be Unum’s witnesses, and possibly Gary Greenhood too. If anyone has information about any of those Unum doctors that they are willing to share, please contact my office.

SSA Misinformation

There are a variety of benefits that may be available if you become entitled to receive Social Security Disability (“SSD”) benefits. The Social Security Administration (“SSA”) does not provide those benefits automatically, but requires applications to be filed to receive them. Moreover, either intentionally or unintentionally, the SSA frequently provides misinformation about the availability of these additional benefits. 

I represent a claimant who received SSD benefits starting in March 2008, but whose children’s benefits did not start until 2013. The claimant never received a letter from the SSA advising him to file an application for children’s benefits when he was approved for SSD benefits, and proved that he had problems receiving mail at that time. The claimant was also told by the local Social Security that there were no other benefits available for him besides his SSD. 

After I obtained a remand from the Appeals Council, I persuaded the ALJ to reverse his original decision. As a result, the ALJ ruled that the claimant was entitled to receive an additional five years of children’s benefits. As the claimant is now gravely ill from his disability, hopefully the decision will provide some solace.

SS Retirement Benefits

This article gives great advice regarding getting when and how to get the most out of Social Security retirement benefits.

Pain Management Support

I represent a 58 year old former security officer with hip, shoulder and back impairments, whose Social Security Disability (“SSD”) application was approved without a hearing. What distinguished this case from the countless other SSD applications based on orthopedic impairments is the support from pain management physicians. 

The claimant had seen more than one pain management specialist, whose treatment records were provided. Just as importantly, we submitted reports detailing the claimant’s functionality. Those records and reports objectified the effects of the claimant’s pain. 

The Social Security Administration (“SSA”) views the opinions of treating physicians with skeptically, which is why the SSA withdrew the rule that gave the opinions of treating physicians greater weight than the SSA doctors. I had numerous Administrative Law Judges (“ALJ’s”) and SSA medical experts tell me that they do not care what treating doctors say because they will say anything to help their patients. ALJ’s reject SSD applications by asserting claimant’s complaints of pain lack credibility and are inconsistent with the objective medical record. 

No medical specialist is in a better position to opine about the effects of a claimant’s subjective complaints of pain than a pain management specialist, which makes it more difficult for the SSA to deny a claim. Moreover, logic dictates that the SSA will find complaints of pain more credible when a claimant sees the need to treat with a pain management specialist.

Social Security Scam

More Trouble for SSD

The denial rates for Social Security Disability (“SSD”) benefits have been increasing for several years now. Nonetheless, in order to invigorate that trend, the Trump Administration has changed the rules governing the hiring of Administrative Law Judges (“ALJ’s”). Instead of going through a competitive interviewing process based on experience, the new executive order makes it easier for Presidential appointed Agency Heads to hire new ALJ’s directly. This fosters the selection of ALJs who are predisposed to deny SSD benefits, which is a goal of the Administration.  More denials means more appeals, choking the already backlogged system with more claims, and increasing even further the amount of time that people will have to wait for a favorable decision.

Recording A CE

Regardless of what the medical records reveal, the State agency tells a Social Security Disability (“SSD”) claimant to go for consultative examinations (“CE”). CEs almost invariably contain fraudulent findings. For example, the CE report will say that the claimant had no trouble getting on and off the exam table, when the claimant only sat in a chair. This has been happening for many years.

To guard against fraudulent findings, I advise my clients to video record the CE, which are performed by ­IMA. Because there is no law, rule, or regulation that prohibits a SSD claimant from recording the CE, IMA claims that it is against their policy. However, in IMA offices, they have signs stating that claimants can record their exams, so their “policy” is specious at best. 

I represent a 52 year old former teacher for the deaf whose SSD application was approved by an ALJ today. The State agency had denied the claim on the grounds that the claimant refused to attend the CE. The claimant testified that when the IMA doctor saw the claimant’s spouse recording the exam, the doctor threw a fit, left the exam room, and refused to return. The claimant further testified that she never refused to answer any question or submit to an exam by IMA. If the reports of IMA doctors actually reflected what transpired during their exams, then there would be no reason for IMA’s “policy.”

COPD

Chronic obstructive pulmonary disease (“COPD”) is a progressive disease that makes it hard to breathe. COPD symptoms include breathing difficulty, cough, mucus (sputum) production and wheezing. The symptoms of COPD are progressively worsening and persistent breathlessness on exertion, eventually leading to breathlessness at rest.

Because a claimant is initially symptomatic upon exertion, the more strenuous a claimant’s job is, the sooner that person is likely to become unable to perform it. Thus, a laborer in the construction industry is much more likely to be found disabled soon after the onset of COPD, compared to a receptionist who spends most of the day sitting. 

I represent a 55 year old floor tiler whose Social Security Disability (“SSD”) claim was approved today. His job required him to carry 100 pound boxes of tiles and sacks of grout. The administrative law judge (“ALJ”) found it credible that the level of exertion to perform the tiling work was precluded by the COPD. Had the claimant’s work required mostly sitting, then the ALJ would not have found the COPD to be disabling until it had progressed to the point where little exertion resulted in symptoms.