www.iwantmydisability.com

Compassionate Allowance

With an eye toward reducing the number of people who can qualify for Social Security Disability (“SSD”) benefits, in 2017, the Social Security Administration (“SSA”) eliminated the treating physician rule. The Trump Administration has now asked the SSA to eliminate the “GRID rules,”  in order to make it even more difficult for the disabled to obtain SSD benefits. 

People dying from cancer will still obtain SSD benefits. We represent a 45 year old metal worker from Bayville with cancer whose SSD benefits were promptly paid after we highlighted to the claim examiners that the claimant’s application should be treated as a compassionate allowance.  Cynically, the SSA has no qualms paying a compassionate allowance because the benefits will not be paid for long. A person should not have to prove they are terminally ill in order to receive benefits, which seems to be the goal of the SSA as it keeps changing the rules and regulations in order to make it much more difficult to qualify for SSD benefits.

Unum LTD Approval

We were able to secure long term disability (“LTD”) benefits for a 47 year old Vice President of Human Resources from Glen Cove. After we took over the case, we advised Unum about the claimant’s various limitations that we were documenting due to the claimant’s rheumatoid arthritis (“RA”) and vocal cord nodules. Unum was unaware that the claimant was required to elevate her legs due to swelling from the RA, and was restricted in her speaking and needing a quiet environment to be heard due to the nodules. Rapidly developing the evidence regarding those limitations led to a quick approval, which was especially difficult in light of COVID.

Navigating LTD can be very difficult, which is why it is in your best interest to retain an attorney who specializes in disability law. If you find yourself in need of applying for your long term disability, please call my office for a free phone consultation. We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Federal Court Remand

Even though the Social Security Administration (“SSA”) agreed that the decision of administrative law judge (“ALJ”) Andrew Weiss was indefensible, it took over two years for U.S. District Judge Joan Azrack to remand the decision, which the ALJ issued over three years ago.   The complete decision is available on my website.

Form Over Substance

A 54 year old sanitation worker from North Babylon with various orthopedic impairments retained us after his Social Security Disability (“SSD”) application was denied. Nothing unusual about the case except that we filed over 2,000 pages of treatment records, much of which were hospital records.  The substance of the file was not unlike many similar claims that were denied by the State agency.  It may be that regardless of the materiality of the documentation submitted, when a very large volume of paper is filed, the State agency feels more confident about the credibility of the claim.

This is another example of why it is important to retain a disability attorney when you apply for SSD.  Even though it may seem obvious to you that you are disabled, you cannot get approved without support from your doctors.  An attorney who specializes in disability can discern what information is needed from your doctors to get your claim approved.  If you are thinking about applying for SSD, please call my office for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Superior Service at Melville

We have posted blogs about the ineptness of some of the Social Security district offices. But we also like to give credit, where credit is due. I called the Melville district office today regarding a claim that we had recently filed, and was lucky enough to reach Mrs. Craven who works there. Not only did Mrs. Craven fix the mistake that someone else made when processing our client’s claim, but she also went out of her way to correct a mistake that was made by someone at the Patchogue district office, who was incapable of correcting their mistake. This is not the first time that Mrs. Craven has helped me, and I hope it won’t be the last. She is professional, courteous, and most of all, she knows what she’s doing. Problems that pose a particular issue for other representatives she is able to fix in a few minutes. Why can’t we expect every SSA representative to perform as well as she. We greatly appreciate Mrs. Craven’s knowledge and help, and hope that others can follow her example. Thank you Mrs. Craven.

by Susan Golden

Common Sense

According to Webster’s, common sense is a sound and prudent judgment based on a simple perception of the situation or facts. It is astounding how often the State agency exhibits a lack of common sense when evaluating Social Security Disability (“SSD”) applications.

I represent a 59-year-old from Freeport, who suffered spine injuries from a motor vehicle accident (“MVA”) on October 11, 2018. The State agency said an MRI from May 19, 2019, supported the claimant’s SSD application, but only found the claimant disabled as of February 19, 2019. 

Common sense dictates that the spine injuries arose from the MVA. Even the administrative law judge was baffled by the State agency’s onset date of February 19, 2019. There was no evidence that the claimant’s condition got worse as of February 19, 2019. There was no medical opinion that could support finding that the claimant was able to work after the MVA. There was no other accident or physically traumatic events between the MVA and onset date.

Navigating Social Security can be very difficult, which is why it is in your best interest to retain an attorney who specializes in disability law.  If you find yourself in need of applying for SSD, please call my office for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Patchogue Ineptness Continues

We represent a veteran, who was approved in February for Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) benefits.  When a person is approved for benefits, it usually takes Social Security (“SS”) a while to process and calculate the retroactive and monthly benefits.  It can take even longer when you are approved for both SSD and SSI. However, it has been eight months since our client was approved, and yet he still has not received his retroactive benefits, which he so desperately needs, and he has just started to receive his monthly benefits. 

It would be a gross understatement to say the handling of our client’s payments by the Patchogue District office has been a comedy of errors.  Our client’s first SSI check was sent to an address where he has not lived for many years, even though SS had the updated address in his file. 

To add insult to injury, our client was supposed to have his first monthly SSD check directly deposited into his bank account on October 3, 2020, but on Friday, we learned from the Patchogue District office that the check had been mailed. We asked Patchogue how this could happen becauase we had confirmed our client’s bank account information with various people at the Patchogue office multiple times.  Patchogue said that they have two different systems for SSI and SSD, and whoever initially took the updated information, only entered it into the SSI system.  Patchogue also said that whoever updated the address into the SSD system, never updated the banking information.  So once again, we confirmed that Patchogue had the correct banking information and address, so that our client’s November check would be direct deposited.  Patchogue told us that our client would receive the check by this past Monday or Tuesday.   

Today is Wednesday.  I received a phone call from my client, who was understandably furious.  Even though we confirmed his address with Patchogue last Friday, they mailed his check to the wrong address again!  It’s like banging your head against the wall.     

Patchogue’s mishandling of this matter is utterly reprehensible, incompetent, and unprofessional.  Are they truly that inept at their jobs, or do they just not care?  I am certain that if their paychecks kept getting mailed to the wrong address, then they would be very angry.   

Sadly, Patchogue’s actions reflect their lack of concern and respect for their constituents, including their Veterans.  Our client became disabled in the line of duty.  Is this really how he should be treated?  I am appalled and disgusted at Patchogue’s misconduct.

By Susan Golden

Common Sense

According to Webster’s, common sense is a sound and prudent judgment based on a simple perception of the situation or facts. It is astounding how often the State agency exhibits a lack of common sense when evaluating Social Security Disability (“SSD”) applications. 

I represent a 59-year-old from Freeport, who suffered spine injuries from a motor vehicle accident (“MVA”) on October 11, 2018. The State agency said an MRI from May 19, 2019, supported the claimant’s SSD application, but only found the claimant disabled as of February 19, 2019. 

Common sense dictates that the spine injuries arose from the MVA. Even the administrative law judge was baffled by the State agency’s onset date of February 19, 2019. There was no evidence that the claimant’s condition got worse as of February 19, 2019. There was no medical opinion that could support finding that the claimant was able to work after the MVA. There was no other accident or physically traumatic events between the MVA and onset date.

Having an experienced, Social Security Disability attorney is vital when applying for SSD benefits.  Please feel free to call my office for a free phone consultation.  My offices are conveniently located in both Nassau and Suffolk counties on Long Island.

Attorney Needed

Sometimes it undeniably makes a difference having an attorney represent you in connection with your Social Security Disability (“SSD”) benefits. The Social Security Administration’s own statistics show that the percentage of claims approved is greater when a claimant is represented by an attorney. I represent a 55 year old from Speonk who worked in computer networking with physical and mental impairments, which shows why an attorney is sometimes is a must. 

After a very heated hearing with a medical and a vocational expert (“VE”), the administrative law judge (“ALJ”) indicated that he would deny the case based on the VE’s testimony. I asked the ALJ if he was relying on the VE’s testimony before or after I pointed out that he originally identified the wrong occupation as the claimant’s past work. The VE admitted that the claimant’s past work was at least a composite occupation comprised of the light one he identified and the physically demanding medium one that I suggested. 

The ALJ then said that it made no difference because the VE identified unskilled occupations that the claimant could perform. I pointed out that the medical-vocational rules would require a finding of disabled. I explained that there was no difference between being limited to unskilled work, and lacking any transferable skills. The ALJ said that if he accepted that argument, then he would approve the claim, but if he did not, then he would require additional information from the treating sources and a supplemental hearing to cross examine the VE. 

The ALJ approved the case yesterday. If I had not accessed vocational databases during the hearing to show the discrepancy in the VE’s testimony, and if I had not pointed out how there was no actual difference between being limited to unskilled work, and lacking any transferable skills, then the ALJ would have denied the case.

Having an experienced, Social Security Disability attorney is vital when applying for SSD benefits.  Please feel free to call my office for a free phone consultation.  My offices are conveniently located in both Nassau and Suffolk counties on Long Island.

The Right Decision

Most people know what strokes are, and how devastating the symptoms can be.  Due to the severe consequences of a stroke, claimants frequently get approved for Social Security Disability (“SSD”) benefits faster compared to other impairments. What do you think would happen to you if you had seven strokes?

A truck driver from Howard Beach retained me when he was denied SSD benefits after his sixth stroke. Both the claimant’s neurologist and his stroke specialist provided reports detailing how the claimant was incapable of any type of full-time work.  While waiting for his hearing, the claimant suffered a seventh stroke last December, which left him institutionalized without any ability to care for himself.

Last December, Gloria Pellegrino, the administrative law judge (“ALJ”) that was assigned to the case refused to approve an OTR.  Because the claimant lost the ability to speak, or use his arms or legs, the claimant’s partner had to testify at a hearing in April, and she described in horrifying detail the extraordinarily limited mental and physical abilities the claimant had even after his sixth stroke. 

The ALJ terminated the hearing when the vocational expert (“VE”) started providing testimony that supported the claimant’s position regarding how certain occupations from the Department of Labor (“DOL”) Dictionary of Occupational Titles (“DOT”) were currently performed according to the latest DOL information from O*Net.

Despite the overwhelmingly supportive objective medical evidence and opinions from the claimant’s specialists, the ALJ refused to approve the claimant’s SSD benefits and scheduled a second hearing.

The second hearing took place July 13th, and this time a different VE testified.  The VE also identified certain occupations from the DOT in response to a hypothetical question from the ALJ.  When I insisted that the VE describe how he calculated the number of jobs he said existed for those occupations, he said they were from Job Browser.  When I said that told me the source of his numbers, but not how that magic box derived those numbers, the VE could not answer. 

Next, I had the VE testify that the occupational descriptions from the DOT that he identified were 40 years old.  After I started questioning the new VE about how those occupations were currently performed according to the latest DOL information from O*Net, the ALJ once again suddenly terminated the hearing.  The VE testified that the O*Net was reliable and current.  The ALJ still refused to approve the claimant’s SSD benefits and directed me to submit a brief regarding my vocational contentions.

On July 16^th, I submitted a nine-page brief that detailed the legal and vocational reasons why the ALJ’s reliance on the VE’s testimony was unreliable.  The two primary reasons were the current DOL information showed the occupations the VE identified were no longer performed as unskilled work, and that the VE failed to explain how he calculated his job numbers.  The ALJ still refused to approve the claimant’s SSD benefits.

A month ago, I submitted another brief based on Brace v. Saul, 2020 WL 4727345 (7th Cir. 08/14/2020), which held that an ALJ could not accept VE testimony that failed to explain the methodology for job numbers.

Today, ALJ Pellegrino approved the claimant’s SSD benefits and claimed that she rejected all of the arguments in my briefs because the treating specialist stated that the claimant would be off-task more than 10% of the time.  If that were true, then the ALJ would have and should have, approved the OTR last December.

Having an experienced, Social Security Disability attorney is vital when applying for SSD benefits.  Please feel free to call my office for a free phone consultation.  My offices are conveniently located in both Nassau and Suffolk counties on Long Island.

Coincidence or Trend?

I represent a 50-year-old computer programmer from Fairlawn NJ with neuropathy in his extremities in connection with his claim for Social Security Disability (“SSD”) benefits. The State agency applied the grid rules to issue a partially favorable decision because a transferable skill analysis did not find three jobs to which the claimant’s skills could transfer. Yesterday, the Administrative Law Judge agreed that the claimant was entitled to the remainder of the SSD benefits OTR.

Under the grid rules, a claimant is disabled if they cannot perform a significant range of work. Last week, the Ninth Circuit reversed a denial of SSD benefits when it ruled that two occupations do not
constitute a “significant range of work.”

It is unclear if the two approvals represent a haphazard convergence of favorable outcomes or an increased focus on that particular vocational factor. 

Please feel free to contact my office for free phone consultation if you are looking for an attorney who specializes in disability.  We have offices on Long Island conveniently located in both Nassau and Suffolk counties.

Federal Court Win

Yesterday, District Court Judge Ann Donnelly rejected the decision of administrative law judge (“ALJ”) Sommattie Ramrup, who had denied Social Security Disability (“SSD”) benefits to my client, who was a petition clerk from Brooklyn, and who suffers from depression. 

Judge Donnelly concluded that ALJ Ramrup had cherry-picked medical findings as an excuse to substitute her judgment for the opinions of the claimant’s psychiatrists. Judge Donnelly indicated that the claimant met listing12.04, but remanded the case anyway so the ALJ can “re-evaluate” the treating psychiatrists’ opinions. Judge Donnelly also indicated that if ALJ Ramrup does not find that the claimant meets listing 12.04, then she must ensure that the hypothetical question she poses to a vocational expert reflects the claimant’s actual limitations. 

Whether you are thinking of applying for SSD or have applied on your own and realize you need an attorney who specializes in disability, please feel free to call my office for a free telephone consultation.  We are conveniently located on Long Island in both Nassau and Suffolk counties. 

Waiting for SSD

It seems to be common knowledge that applying for Social Security Disability (“SSD”), and then waiting for a decision, is a very slow process. On a daily basis, clients ask us how are they supposed to support themselves and pay their bills while waiting for a decision from Social Security? Unfortunately, there is no good answer. The more you work, the more Social Security (“SS”) will argue that you are not disabled. But even more heart wrenching, and less commonly known, is the amount of people that pass away while awaiting a decision from SSD. Over the years, we have had clients pass away while waiting for their hearing or decision. As we work very closely with our clients, and develop a relationship with them and some of their family members, it is very difficult and frustrating for us when a client passes away. 

The system is broken in so many ways, and has only gotten worse over the last several years. We have no choice, but to continue to wait and hope that SS gets the help and funding it needs, so people’s lives are not ruined while they wait for a decision from SS.

State Agency Employee Fraud

HALLEX I-1-3-9 requires an Administrative Law Judge (“ALJ”) to refer a State agency adjudicator suspected of fraud to refer the matter to the Office of Inspector General (“OIG”).

We represent a Social Security Disability (“SSD”) claimant from East Meadow with spine problems. Reports from adjudicators named M. Jackson and M. Censor said the treating physicians were not allowed to do the claimant’s consultative examination (“CE”) because “Prior experience raises a question as to the objectivity, accuracy, or validity of the evidence from the source(s).” 

The adjudicators conspicuously failed to identify the actual name of the medical source or sources whose prior experience was questioned. We contacted the claimant’s medical sources about their prior experience with the State agency, and none of them stated that they have had any prior experience with it. 

Knowingly making a false boilerplate assertion in order to prevent a treating doctor from performing a CE is a fraud. I asked the ALJ to issue a subpoena for the attendance of the adjudicator at the claimant’s hearing for cross-examination. Additionally, I asked the ALJ to notify the OIG about the potential misconduct, especially since was no reason to suspect that it had been limited to this one case. 

The ALJ did not make the adjudicator available for cross-examination, and it is unclear if the ALJ referred the matter to the OIG. If anyone waiting for a hearing has a file with similar boilerplate language from an adjudicator, then request that the matter be referred to OIG. Such misconduct should not be overlooked or condoned. 

If you are looking for an attorney on Long Island who specializes in disability claims, please call my office for a free phone consultation.

Judging Disabilities

It is not uncommon for a potential client to say to me, “there’s nothing wrong with my neighbor and he’s getting disability,” or “I know so many people who look fine, and are getting disability.” Many people are disabled from diseases that are invisible to others, like mental health disorders, autoimmune diseases, and even certain types of cancers. Social Security (“SS”) has a strict definition of disability. Typically, for SS to find you disabled, your doctors need to support that you are unable to work for 8 hours a day at any job, not just your own job. SS decides if you cannot adjust to other work because of your medical conditions, and if your disability has lasted or is expected to last for at least one year or to result in death. To compound matters, their determination is not only based on information that they receive from your treating doctors regarding your limitations and restrictions resulting from your illness, but also from their doctors, who usually default to finding an ability to work. 

You also must have enough work credits to apply for Social Security Disability (“SSD”) benefits. If you do not, then you may qualify for Supplemental Security Income (“SSI”), which follows the same medical requirements as SSD, but requires you to meet certain financial criteria to be eligible. 

The bottom line is, just because a person does not look like what you think a disabled person should look like, does not mean that they are not disabled under SS’s definition. It is not easy to get approved for SSD or SSI. That is why it is highly recommended that you retain an attorney who specializes in disability and has experience with SS, and statistics show legal representation results in a significantly higher approval rate. Our office offers free phone consultations, and we have offices on Long Island in Nassau and Suffolk counties.

By Susan Golden

Updating Records

Claims for Social Security Disability (“SSD”) benefits have always proceeded slowly, and the pandemic has only compounded matters further. As a result, an SSD claimant can wait close to two years for a hearing. Consequently, medical reports and records can become stale by the time the hearing arrives. 

We represent a 50 year old truck driver from Plainview with knee, back and shoulder problems whose SSD application was filed in 2018. His hearing was transferred to another hearing office, which then rescheduled the date of the hearing. 

The medical evidence that had been submitted would be a year old by the new hearing date. Although complicated by the pandemic, we were able to obtain and submit updated reports. Shortly afterwards, we were notified that the claimant’s SSD application would be approved on the record, and therefore, there was no need for a hearing.

OTRs

The Social Security Administration (“SSA”) began implementing changes in 2009 with administrative law judge (“ALJ”) training, claims assignment, and monitoring, which were designed to reduce the disability allowance rate. Those changes reduced the ALJ and appellate allowance rates. The SSA has continued to change the rules to make approvals more difficult, most notably, by eliminating the treating physician rule. The on-the-record (“OTR”) allowance rate has correspondingly decreased. An OTR allowance can occur when a review indicates that a case can be allowed without a hearing.

Now may be the time to request an OTR. Because of the coronavirus, hearings are being held by telephone. While a claimant can reject a telephone hearing in favor of an adjournment, many of my clients have chosen to proceed with the telephone hearing, rather than wait when an in person hearing can be scheduled.

The logistics of a telephone hearing are problematical. I am located at my home office, the claimant is located their home, the claimant’s witness is located at their home, the ALJ is located at their home, medical and vocational witnesses are located at their homes, and the hearing assistant is located at the hearing office. The potential for chaos and technical issues in obtaining an adequate recording is substantial. That potentiality might be avoided if an OTR is approved.

I have received more OTRs since the start of COVID19 restrictions than I have the last few years. I represent a 21 year old with Autism, whose OTR was approved last Friday, for a telephone hearing that was scheduled today. The evidence was strong, even the State agency psychologists’ opinions were somewhat supportive, even though they had yet to see the extremely supportive reports and records of the treating mental health providers. Nonetheless, absent current circumstances, the ALJ probably would have gone through the motions of holding the hearing, even though he most likely was already persuaded that the medical evidence established the claimant’s entitlement to benefits.

A sheet metal worker from Bethpage, secretary from Farmingdale, and network engineer from Islip Terrace, were also just approved OTR. Absent current circumstances, the ALJs probably would have held the hearings for those claimants too.

If you are thinking about applying for SSD benefits, it is in your best interest to hire an attorney who specializes in disability law.  My office offers free phone consultations.   We have offices on Long Island in both Nassau and Suffolk counties.

Developing The Record

In Social Security Disability (“SSD”) cases, a failure to develop the record is considered to be a lack of a fair hearing. Therefore, to avoid having a decision rejected, an administrative law judge (“ALJ”) is required to develop the record. As a result, many ALJ’s go to extremes to ensure that every possible medical record, regardless of relevance, is part of the file.

It takes a long time to get a hearing. Consequently, the medical records may no longer be current when the hearing takes place. There is a sound way to avoid needlessly protracting the hearing process by insisting that any possible medical evidence be obtained.

A medical expert (“ME”) or a treating physician can opine that updated medical records would be cumulative or unnecessary. We represent a 39 year old with cervical radiculopathy who worked as a massage therapist. By the time the hearing arrived, the records from the claimant’s orthopedist were over a year old.

After the ME testified that the claimant met a listing 1.04, the ALJ asked if the claimant’s condition could have improved subsequent to the orthopedist’s latest records in the file. Since the ME testified that the condition would most likely stabilize or get worse, the ALJ determined that the updated records were superfluous.

If you are thinking about applying for SSD, please call my office for a free phone consultation.  We would be happy to answer any questions you might have.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

WC IME

A fairly regular question is how much weight should Social Security give to the opinion of a workers compensation (“WC”) doctor. Federal courts usually hold that reports from WC doctors are not substantial evidence because their conflict of interest may have dictated their contents. 

We represent a 49 year old security guard from Levittown with back and cardiovascular vascular problems whose Social Security Disability (“SSD”) application was approved today despite an adverse report from a WC doctor. While we pointed out how federal courts treat WC medical opinions, the administrative law judge (”ALJ”) rejected the WC report on different grounds. The ALJ found that the opinion of the WC doctor was rendered solely for the purpose of determining disability under WC, which used standards and criteria that are different than Social Security. 

It is imperative to address any negative evidence in the file at an SSD hearing, if not sooner. The ALJ might have relied on the WC medical opinion if we had not done so.  

This is another example of why it is so important to retain an attorney who specializes in Social Security Disability when applying for SSD benefits.  If you are considering applying for SSD, please call my office for a free phone consultation.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

What Was DDS Thinking

Sometimes the decision of the State agency adjudicator makes absolutely no sense. I represent a 54 year old school aide from East Meadow who suffered broken legs, neck, shoulder, ribs, arm, and multiple vertebrae with a TBI in a car vehicle accident on August 6, 2016, which was the alleged onset date (“AOD”). A State agency adjudicator named K. Vollmer said the claimant did not become disabled until February 7, 2018, which was the established onset date (“EOD”). 

There was absolutely no evidence that the claimant’s medical condition got worse between the AOD and EOD. Common sense and logic dictate that the claimant’s condition would be worse immediately after the car accident, not two years later. If you ask a Kindergartner if a person would feel better right after a car accident, or two years later, I would bet everything I had that they would correctly answer the latter. 

To make matters even worse, J. Diaz, a second State agency adjudicator, “thoroughly reviewed” the claimant’s file, and nonetheless, concluded that Vollmer was correct. It would seem highly unlikely that two people could independently arrive at the same moronic conclusion. It is more likely that Diaz blindly rubberstamped Vollmer’s decision. 

Thankfully, administrative law judge (“ALJ”) Andrew Weiss ended the travesty. Upon reviewing the file, the ALJ determined that a hearing was not necessary, and approved the claimant’s Social Security Disability benefits. Unfortunately, the claimant had to wait over a year before the ALJ could correct the State agency’s obvious error. 

My client initially applied on her own, believing that she would be approved easily, but was denied almost immediately. She was referred to me by her husband, a former client for whom we obtained SSD benefits. They are both very appreciative because they were unaware that they could appeal the onset date. This is another example of why it is important to retain a disability attorney if you plan on applying for SSD benefits. Please feel free to call my office for a free phone consultation. The office is currently closed due to the pandemic, but we are still able to take phone calls and work remotely. Our offices are conveniently located in both Nassau and Suffolk counties on Long Island.