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Borderline Age

When seeking Social Security Disability (“SSD”) benefits, the Social Security Administration (“SSA”) applies different rules depending upon the age of the claimant. The SSA Rulings state that, “The chronological ages, 45, 50, 55, and 60 may be critical to a decision.” The SSA’s regulations, HALLEX and POMS provide that the SSA “will not apply the age categories mechanically in a borderline age situation.” A “borderline situation” exists where the claimant is within a few days to a few months of reaching an older age category. 

I represent a nurse with gastroenterologic impairments, whose SSD application was approved today. The claimant was 49 years and 10 months old on the onset date of her disability. In approving the application, the administrative law judge (“ALJ”) concluded that “Applying the age categories non-mechanically, and considering the additional vocational adversities in this case, the claimant was an individual closely approaching advanced age on the established disability onset date.” 

A person who is under 50 falls into the category of a “younger individual.” A person who is 50 to 54 falls into the category of an individual “closely approaching advanced age.” As a 49 year old, the SSA rules for the nurse indicated that she should have been found not disabled, while as a 50 year old, the converse is true. However, the ALJ decided to treat the nurse’s application as a borderline situation, and applied the age categories non-mechanically, to find the nurse disabled as of her onset date. The result is that the claimant will receive two additional months of SSD benefits, which equals several thousand dollars.

The Wait Is Killing Them

Sadly, yet again, one of our clients passed away while waiting for his Social Security Disability (“SSD”) hearing to be scheduled. This case is more egregious than usual because we submitted his claim on a “dire need” basis on December 21, 2017. We provided supporting documentation, including a letter from the claimant’s landlord that verified the claimant was five months behind on his rent, and in danger of being evicted. 

The Social Security Administration (“SSA”) has certain regulations that it must follow when a case meets the criteria for dire need.  This case met that criteria, and the SSA even flagged it as dire need. 

On April 13, 2018, the State agency denied the claim. We appealed it the same day, and confirmed with the Bronx Office of Hearings Operations (“OHO) that it was still flagged as dire need, and should be expedited. 

On December 21, 2018, the case was assigned to a judge to be scheduled for a hearing. It is not uncommon for a case to sit in this status for months before the hearing is actually scheduled, and then at least another 75 days until the date of the hearing. Being aware of the standard procedures, we called the Bronx OHO to expedite the hearing. The Bronx OHO said it could not be done, even though the status in the electronic file clearly said “ready to schedule.” We explained the situation to the representative, who said the case was being expedited, and to call back in a few weeks. Because we were dissatisfied with the treatment of this expedited case, we called Bronx again on January 4, 2019, but received the same response. 

Last Friday, the claimant’s elderly mother called to say that he had passed away overnight. We immediately called the hearing office to advise them about the claimant, and to advise them that the claimant’s wife would take his place at his hearing. We were matter of factly told what form needed to be filled out, and that we had to produce a copy of the death certificate. No emotion, no caring, nothing. It seems that so may claimants die while waiting for their hearing that it has become a common occurrence. 

We called the Bronx OHO today to advise them that we had submitted the required documentation. The rep asked why we were calling. In other words, the rep’s attitude was the guy is dead, so what’s the rush. We explained that we wanted to be sure they received the documentation, and that we wanted the hearing to be scheduled promptly so the claimant’s wife and children did not wind up homeless. The rep reiterated that if we submitted what he asked for, then there was no reason for us to call, and that they would get back to us when they were ready to schedule. Wrong. The Bronx OHO’s failure to perform its duties on a timely basis possibly lead or contributed to the claimant’s death, and his family’s imminent homelessness. 

Experience has proven that even when we have submitted something, especially something important, that if we do not call the SSA to highlight the submission, they mysteriously claim that they do not have it. The OHO rep was rude, uncaring, and unhelpful, which is not unusual, and will not deter us. This is how we fight for each and every one of our clients, and we will continue to do so.

IMA

In New York, the State agency uses IMA Disability Services (“IMA”) to perform consultative examinations (“CEs”).  I represent a 57 year old probation officer with a bad back and ocular albinism, who received four letters from the State agency stating that it was “necessary for you to be examined by” IMA. The letter emphasized that the claimant “must keep this appointment at the time and date indicated above.” 

Despite the mandatory language in the CE letters, the CE was not imperative. Sometimes the State agency representative is amenable to cancelling a CE if they receive certain medical information. That was the case with this claimant, whose Social Security Disability application was approved today, after we negotiated providing the State agency with medical information in response to a particularized request.

Erythromelalgia

According to The Erythromelalgia Association , “Erythromelalgia (EM) is a rare neurovascular condition that most commonly affects the feet, but may also occur in the hands, face, or other parts of the body.” Erythromelalgia is a condition characterized by episodes of pain, redness, and swelling in various parts of the body, particularly the hands and feet. Its hallmark is the triggering or worsening of symptoms with exposure to heat (heat intolerance) or exercise and relief with cooling. 

The Merck Manual notes that erythromelalgia can progressively become incapacitating. The Merck Manual states that treatment includes avoiding exposure to heat, resting, elevating the legs or arms, and applying cold packs to the legs or arms or immersing them in cold water. The American Chronic Pain Association (“ACPA”), notes that erythromelalgia progresses as a person gets older, and the pain “can be so debilitating that it impedes everyday activities,” and can “prevent an affected person from regularly going to school or work.” 

I represent a 39 year old claimant with erythromelalgia, who worked in data entry. The erythromelalgia has been spreading. The claimant’s left upper extremity is where the erythromelalgia started, and it now affects both hands. The claimant’s doctors concurred that the he would be off task over 20% of the time because of his impairments. The ALJ agreed, and found the claimant was disabled. 

Limbic Encephalitis

Limbic Encephalitis (“LE”) is a type of encephalitis caused by an autoimmune disorder. The primary symptom of LE is short term memory (“STM”) loss. Other common symptoms are drowsiness, fatigue, confusion, seizures, headaches, hallucinations, anxiety and depression. 

I represent a 37 year old office manager with LE, whose Social Security Disability (“SSD”) benefits were approved today. The claimant’s medical records documented all of the common LE symptoms. Although the LE was controlled, the claimant’s residual brain damage caused STM loss and confusion, which resulted in her forgetting where she was, and what she was doing. 

Based upon the objective medical condition, the LE, the Administrative Law Judge (“ALJ”) accepted the opinion of the treating neurologist that the claimant would be off task more than 15% of the time, would be unable to concentrate 90% of the time, and would be unable to maintain a regular schedule. After the vocational expert testified that those limitation precluded work, the ALJ ruled that the claimant was entitled to SSD benefits.

Government Shutdown & SS

The government shutdown is affecting a lot of federal workers, and Americans. Luckily, the Social Security Administration has not been affected. Claims for Social Security Disability will continue to be reviewed and processed. Both Retirement and Disability beneficiaries will continue to receive their checks.

Consussions

A concussion is a traumatic brain injury that affects your brain function. According to the CDC: physical symptoms include headaches, dizziness, and fatigue; cognitive symptoms include poor concentration, focus and memory; and emotional symptoms include irritability, depression and anxiety.

A neurologist usually treats the physical and cognitive symptoms from a concussion, while a mental health provider treats the emotional symptoms. When seeking disability based upon post-concussion syndrome, it is best to support the claim with the medical records from both professionals. 

I represent a 58 year old teacher’s aide whose Social Security Disability (“SSD”) disability claim was approved today based upon a combination of all her symptoms. Great weight was given to the treating neurologist’s opinion regarding the claimant’s physical and cognitive symptoms, and great weight was given to the claimant’s psychologist regarding the claimant’s emotional symptoms. Notably, less weight was given to the opinions of the claimant’s other treating specialists and examining physicians.

Migraines

According to the Mayo Clinic, “Migraine attacks can cause significant pain for hours to days and can be so severe that the pain is disabling.” Nonetheless, proving that migraines are disabling enough to collect Social Security Disability (“SSD”) benefits is difficult. Many administrative law judges (“ALJs”) dislike finding migraines disabling because they are hard to establish objectively. 

I represent a 37 year old woman, who was able to establish the chronicity of her migraine headaches through her treatment with a neurologist that specialized in headaches. Just as importantly, the claimant was able to establish the severity of her headaches by submitting records from two-dozen emergency room visits when her ongoing treatment with her headache specialist and pain management specialist was unavailing. 

The claimant’s doctors stated that the headaches would result in the claimant missing more than 3 days of work a month, and being off task more 10% of the time. A vocational expert said those limitations would preclude full time work. Accordingly, the ALJ found the claimant’s migraines were disabling, and entitled to SSD benefits.

Physician Assistants

According to the American Academy of PAs, PAs are medical professionals who diagnose illness, develop and manage treatment plans, prescribe medications, and often serve as a patient’s principal healthcare provider. For the longest period of time, the Social Security Administration (“SSA”) did not consider a PAs to be acceptable medical sources (“AMS”).

SSA regulations provide that only the opinions of AMS can be given controlling weight, and can establish medically determinable impairments. I represent a welfare examiner whose SSD benefits were approved today, but whose PA’s opinion was given no weight because he was not an AMS. 

The claimant filed her SSD application on October 23, 2016. However, for claims filed after March 27, 2017, PAs are now AMS. There were several reasons why the SSA committed legal error by giving the PA’s opinion no weight. However, those errors were moot since SSD benefits were approved. Nonetheless, for claims filed after March 27, 2017, a PA’s opinion can no longer be disregarded simply because they are not a physician.

SSA Stay Denied

I represent a plaintiff seeking Social Security Disability (“SSD”) benefits in federal court. Because of the partial government shutdown, the Social Security Administration (“SSA”) asked the court to stay oral argument scheduled for next Monday indefinitely. 

I opposed the stay on the grounds that the SSA attorney is unaffected by the shutdown because the SSA remains fully funded. The SSD hearings that have been scheduled for my clients in the next two weeks have not been stayed. Each day since the shutdown began, my office has conducted business with half a dozen of the SSA’s district offices. The SSA’s Appeals Council has also worked on my clients’ cases since the shutdown began. 

I argued that since SSD hearings are proceeding, and every type of administrative business continues, there is no excuse to delay oral argument any further. The court agreed and denied the stay.