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Inexcusable SSD Delay

We represent a 55 year old police officer from Spring Gardens with metastatic multiple myeloma.  We immediately submitted proof that the claimant’s medical condition met the listed criteria of 13.07(A), and sought expedited review of the Social Security Disability (“SSD”) application.  Nonetheless, the State agency doctors denied the application twice.

It took nearly two years before the claimant received a hearing.  To matters even worse, Social Security transferred the hearing from Queens to Manhattan.  As a result, the claimant was deprived of an in-person hearing because due to his medical condition he could not travel the distance.

At the hearing, the Administrative Law Judge (“ALJ”) threatened that if the claimant refused to accept an amended onset date (“AOD”), the ALJ would schedule another hearing with a medical expert (“ME”), and the ALJ said it was unlikely that the ME would find the claimant still met a listing.  The ALJ then directed me to discuss the AOD with the claimant in private.

The claimant said he could not afford to wait for another hearing.  When the ALJ returned, I pointed out how the evidence supported the AOD, such as his leg bone snapping in half from simply standing on it.  Nonetheless, the ALJ gave the claimant a take it or leave it ultimatum, which I said the claimant had to accept.

When I proceeded to explain that the ALJ was doing the claimant a disservice, the ALJ insisted that he doubted there was any basis to support the claimant currently being disabled.  The ALJ then proceeded to question the claimant, and was shocked to learn that the claimant’s cancer was not in remission, had metastasized, and had to leave his home in 10 minutes to get chemotherapy.  The ALJ sheepishly expressed his sorrow.

The ALJ approved the claimant’s SSD benefits with the AOD today, close to two years after the application was filed.  There was absolutely no justification for the delay, or the ALJ’s threat to further the delays by scheduling another hearing.

Federal Court Remand Again

In probably the most scathing Social Security decision that I have ever read, U.S. District Court Judge Brown remanded our client’s case, and ordered that it be assigned to a new Administrative Law Judge (“ALJ”).  The full opinion can be downloaded from the Court Decisions drop down menu on my website’s Resources tab.

This is the second time that the claimant’s case has been remanded.  The first time, U.S. District Judge Azrack remanded it.  In that first lawsuit, Judge Brown said that Social Security was “ably represented by an Assistant United States Attorney,” because he conceded that “ALJ Weiss’ decision was indefensible.”

Judge Brown found that ALJ Weiss essentially repeated the same errors of law and added some further problems.  Regarding the vocational evidence, Judge Brown determined that ALJ Weiss: “gravely misstate[d] the record; ”ignored the testimony he elicited and determined—based on illusory findings—that the plaintiff could” work; and “fatuously” added the claimant could climb ladders.

Regarding the medical evidence, Judge Brown stated that “blatant mishandling of vocational expert information pales in comparison to ALJ Weiss’s failure to consider the Court’s directives in connection with medical expert testimony.”  Specifically, Judge Brown stated that, “Undeterred by the concession of error by the Commissioner and Judge Azrack’s express findings, ALJ Weiss, once again, bases his determination in some measure on the non-existent opinion provided by the apparently non-existent (in this case) Dr. Golub.”  Judge Brown added that ALJ Weiss, “through thinly-veiled machinations,” disregarded the claimant’s evidence.

Judge Brown also excoriated the legal representation provided by Social Security’s Office of the General Counsel (the “OGC”):

“The slapdash nature of the review provided by ALJ Weiss—in which he misidentified the purportedly critical medical expert witness and continued to rely on that “opinion” despite Judge Azrack’s rejection of the same—is echoed in the quality of the representation of the Commissioner on this appeal. For example, in its papers, counsel for the Commissioner repeatedly uses the wrong pronouns to refer to the plaintiff. Such scrivener’s errors could be simple mistakes, but may also reflect a careless, cut-and-paste creation of filings.”

Judge Brown then added:

“What’s more troubling, however, is the failure of counsel to exercise reasoned discretion in this case. During the first review of this case before Judge Azrack, the Commissioner was represented by an Assistant U.S. Attorney for this district, who exercised the good sense and judgment to concede error as to ALJ Weiss’s mistakes. Here, the record is inarguably worse, as rather than correct the errors identified by Judge Azrack, ALJ Weiss perpetuated and compounded the mistakes. And yet, substitute counsel for the Commissioner, a cross-designated agency attorney, refused to acknowledge any error.  Instead, in the filings, the Commissioner has the temerity to request that this Court conduct ‘a searching review of the record’ to correct the “the absence of an express discussion by the ALJ” of relevant factors.”

After attacking the particular OGC attorney who defended Social security in this case, Judge Brown criticized the quality of OGC representation in general:

“This Court has observed that, in at least certain instances, cross-designated agency counsel have repeatedly and unapologetically taken indefensible positions in social security disability cases, even in the face of judicial criticism.”

We have been representing the claimant for over a decade, and will continue to do so.   We have maintained from the day that we filed her application that she should be approved for SSD benefits.  We have no doubt that we will be successful.

IMA

The Social Security regulations identify the limited circumstances when a person seeking Social Security Disability (“SSD”) benefits should be sent for a consultative examination (“CE”).  However, upon receiving an SSD application, the knee jerk reaction of our State agency is to tell a claimant they must go to Industrial Medicine Associates (“IMA”) for a CE by an unnamed person, for an unspecified reason.

One of our former clients, an insurance representative from Brookhaven, came back to us after a continuing disability review (“CDR”) resulted in her SSD benefits being terminated.  When we appealed, the State agency sent the usual demand for a CE by IMA.  We explained why the CE would be inappropriate, and the State agency specified what additional medical information was needed, which we supplied from the claimant’s specialists.  Shortly thereafter, the claimant’s SSD benefits were reinstated.

Even though our client had not needed our services for over 10 years, she knew she could contact us to help her again, and was confident that we could get her benefits reinstated.    Needless to say, she is very happy and grateful that we were able to help her again.

Unconscionable DDS Delays

by Susan Golden

There used to be a time, years ago, when it seemed like the State agency representatives actually did their jobs.  Now those representatives, including supervisors, are far and few between.

We represent a 59 year old videographer from Floral Park, who suffers from severe arthritis in both of his hips, as well as severe anxiety and depression. We filed his application for Social Security Disability (“SSD”) benefits in October of 2022.  In January of 2023, we alerted Social Security that our claimant was in dire financial need, and was in danger of losing his home.  If someone is at risk of being homeless, or having their utilities turned off, Social Security is supposed to expedite the claim.  When the application is dire need, instead of the usual 6-7 months to make a decision, Social Security is obligated to prioritize the claim, and make a decision as quickly as possible.

It took more than a year before our claimant’s SSD application was finally approved.  It is absolutely horrific that a claim that was supposed to be expedited, was not a priority to anyone at the Stage agency; not to the analyst handling the claim, not to the analyst’s supervisor, not to the supervisor’s supervisor.  We did our job by providing the State agency with all of the medical and vocational evidence necessary to make a quick decision.  They simply did not do their job.

We have access to the claimant’s efile, just as the analysts at the State agency do.  We upload the evidence electronically into the efile, and can view that evidence just as the analyst and supervisor’s handling the claim can.  However, the State agency analysts let cases sit in limbo for months, and then claim that the medical evidence we submitted, which was timely when we submitted it, is “stale” or “not current enough.”   The State agency told us that they consider any records more than three months old to be “stale.”   However, they fail to return our calls.  When they finally do call us, they claim they cannot see the evidence we submitted, even though we can see it in the same efile.  Alternatively, they purposely delay returning our calls, and/or responding to our letters, for over three months so they can claim the evidence is too old.  It is a vicious cycle, with no consequences or repercussion for their intentional mishandling of disability claims.

In this case, we submitted a letter four times from the claimant’s landlord that the claimant was in danger of being evicted for not paying his rent.  The first letter was submitted in January of 2023, a year ago.  We submitted letters from the claimant’s utility companies that his water and electricity were being turned off.  We repeatedly escalated the matter, calling supervisor after supervisor, going up the ladder, trying to find someone who would do something!  Even after we reached a supervisor who seemed willing to help, it still took another month for our claimant’s SSD benefits to be approved.

Our claimant is very appreciative that we fought for him and were successful in obtaining his SSD benefits.  We will continue to fight for our clients, and hope that we can put pressure on Social Security to change their broken, outdated system, and hire people who actually care about doing their job.

Transferable Skills

There are two parts to every disability benefit claim – the medical evidence and the vocational evidence. It literally can pay to know the vocational rules when seeking Social Security Disability (“SSD”) benefits.

We represent a 55 year old automobile mechanic from Centerport, who had a stroke.  The Social Security rules classify a 55 year old as a person of advanced age.  The vocational rules were outcome determinative in his case because the claimant lacked transferable skills.

Transferability refers to acquired work skills, not to aptitudes and attributes that are more properly characterized as qualities necessary and useful in nearly all jobs.  An automobile mechanic is classified as skilled medium work.  The case law has repeatedly reported testimony from vocational experts that an automobile mechanic does not have any transferable skills.

The claimant was a high school graduate.  Under the Grid Rules, a person of advanced age, who is a high school graduate, with no transferable skills, must be found disabled even if capable of performing the physical demands of light work.

The treating neurologist limited the claimant to sitting for 8 hours, and standing/walking for 4 hours, in an 8 hour day, and occasionally lifting up to 9 pounds.  As that opinion was supported with a brain MRI that confirmed chronic infarcts with multiple intercranial stenosis, the Administrative Law Judge accepted the opinion.  Since the claimant could not lift 20 pounds, not stand and walk for 6 out of 8 hours, he could not perform light work.   Therefore, he was found disabled under the Grid rules.

It is important to retain an experienced, disability attorney who has extensive knowledge about Social Security’s rules, both medical and vocational.   If you or someone you know is considering applying for SSD benefits, please call our office for a free phone consultation.  Our offices are located on Long Island in both Nassau and Suffolk counties.