September 2020 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Wednesday, September 30th, 2020

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.

Sunday, September 27th, 2020

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.

Sunday, September 20th, 2020

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.

Wednesday, September 9th, 2020

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.