October 2021 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Friday, October 29th, 2021

EAJA Fees Approved

When we succeed in getting an unfavorable Social Security Disability (“SSD”) decision reversed in Federal Court, we apply for attorney fees under the Equal Access to Justice Act (“EAJA”), which are for the work done at the federal court level. After we receive attorney fees for work at the administrative level, the EAJA fees go to the client. Therefore, we frequently reject the low ball offers that the Social Security Administration (“SSA”) offers for EAJA fees because we recognize that those fees will eventually go to the client.

When applying for EAJA fees, we have to submit a memorandum of law explaining why we are entitled to the amount we are requesting, and a Declaration substantiating the time expended. The hourly statutory rate for EAJA fees is less than a third of the hourly market rate for attorney fees. Nonetheless, the SSA opposes our requests for EAJA fees.

Judge Cogan recently ordered the SSA to pay SSD benefits to one of our claimants. The SSA opposed our request for EAJA fees, which will be going to the claimant because payment of the SSD benefits has already been ordered. Judge Cogan stated the following about our request for EAJA fees:

“Nevertheless, there is one other point that guides the exercise of my discretion on this issue: plaintiff’s submissions were much better than the average submissions I get in social security review proceedings. Plaintiff’s submissions were more thorough, better organized, and more persuasive. It is not all that often that the Commissioner meets her match in written advocacy skill. Rather, too often in these cases, I receive little help from the plaintiff’s attorney, and must develop arguments myself that are merely mentioned. That includes having to hunt through the record to get a true sense of the longitudinal nature of the plaintiff’s treatment, which was an important issue in this case (as it is in many cases). I would rather have a plaintiff’s attorney spend an extra 10 or 15 hours preparing papers of the quality I received here than having to spend an extra 10 or 15 hours myself trying to figure out whether there is a basis for a conclusory assertion in the plaintiff’s brief.”

As a result, the claimant will be receiving thousands of dollars more than the SSA offered.

Tuesday, October 26th, 2021

Typical DDS Waste

I have been writing about how the State agency known as Disability Determination Services (“DDS”) has been wasting taxpayer time and money for years. Today gave rise to another perfect example of where the DDS decision made absolutely no sense.

We represent a 44 year old from Whitestone with heart problems who worked in maintenance for a school. The claimant had a slew of hospitalizations due to his cardiac problems, which included a heart attack. Moreover, the claimant developed severe psychological problems as a result of his cardiac related limitations. Additionally, the claimant earned over a $100,000 a year, so commonsense should have told DDS that the claimant would have continued working rather than receive less than a quarter of that amount in SSD benefits.

We obtained opinions from three of the claimant’s specialists that strongly support an inability to work on a full time basis. Each of those opinions was validated by thousands of pages of medical records. Nonetheless, DDS denied Social Security Disability (“SSD”) benefits because its doctor, Sovan Powell, said there was “insufficient information.”

It is stupefying to assert that multiple medical opinions with thousands of contemporaneous medical records could possibly constitute “insufficient information.” Not surprisingly, DDS refused to identify what information they claimed was missing to enable them to determine whether the claimant was disabled and entitled to receive SSD benefits.

Thankfully, administrative law judge (“ALJ”) Margaret Pecoraro reversed the DDS travesty. After the case was assigned to the ALJ, we asked that the claimant’s file be considered for an OTR. The ALJ determined that a hearing was not necessary, and approved the claimant’s SSD benefits.

Our client is ecstatic that he was approved without a hearing and is happy that he made the decision to retain us when he first decided to apply for SSD benefits. If you are thinking about applying for SSD, call our office for a free phone consultation. Our offices are located on Long Island in Nassau and Suffolk counties.

Sunday, October 24th, 2021

Catatonic Schizophrenia

According to the American Psychological Association, catatonic schizophrenia is a relatively rare subtype of schizophrenia that is characterized by abnormal motor activity, specifically, motor immobility. WebMD includes not moving or talking, and staring at and ignoring others, as the typical symptoms. It should be obvious that a person afflicted with catatonic schizophrenia cannot work in any type of full time capacity.

We represent a 54 year old healthcare aide from Smithtown with catatonic schizophrenia. We provided the State agency with reports from three mental health providers who diagnosed the claimant with catatonic schizophrenia, and described why her condition precluded any type of sustainable employment. At the State agency’s request, we even provided a consultative examination from the claimant’s psychiatric nurse practitioner. Nonetheless, it still took over a year for the State agency to approve the claimant’s Social Security Disability (“SSD”) application.

While we applaud the SSD approval, we are disappointed that it took so long for the claimant to receive benefits with all of our prodding. Without our prodding, who knows how long our claimant’s case would have sat at the State agency. No doubt, the State agency will attribute the delay to the COVID pandemic.

Please don’t hesitate to call our office for a free phone consultation if you are thinking about applying for disability. We have offices located on Long Island in both Nassau and Suffolk counties.

Monday, October 4th, 2021

Support Letters

When the Social Security Administration (“SSA”) decodified the treating physician rule, the new regulations called for greatest emphasis for supportability and consistency. The more a medical opinion is consistent with other evidence, the more persuasive it will be found.

Evidence includes statements from anyone who has observed a claimant. We represent a 53 year old clerk from Ronkonkoma with neck and head injuries from a motor vehicle accident. We supplied disability opinions and a great deal of objective diagnostic evidence of musculoskeletal injuries. Nonetheless, it was not until we submitted support letters from friends and relatives that the SSA approved disability benefits.

Support letters are evidence from non-medical sources that the SSA must consider. They corroborate the opinions of the treating medical sources. Consequently, the support letters make the opinions of the treating medical sources more consistent with the evidence compared to the opinions of the non-treating medical sources.

Our client was ecstatic to learn that she had been approved, and said she was so impressed with our handling of her claim and our knowledge of what was needed to get her a favorable decision. She said she would highly recommend our services to anyone she knows, who might need to apply for disability.

Please feel free to call our office for a free phone consultation if you are considering applying for disability . We have offices on Long Island conveniently located in both Nassau and Suffolk counties.