October 2018 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Tuesday, October 30th, 2018

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.

Wednesday, October 17th, 2018

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.

Thursday, October 11th, 2018

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.

Thursday, October 11th, 2018

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.

Wednesday, October 10th, 2018

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.

Friday, October 5th, 2018

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.