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Increase in Benefits

In a time where everything seems to be going wrong, something actually went right.  This year, people with disabilities who receive benefits from the Social Security Administration (“SSA”), will see a 5.9% increase in their checks, starting this month.  This is the largest annual increase to the cost of living adjustments (“COLA”) since 1982.   Beneficiary’s will receive a letter in the mail from the SSA, and can also check the amount of their increase through their online account at ssa.gov.

Objective Medical Evidence Remains Key

People usually seek disability benefits because their symptoms are too severe for them to work.  As a result, these disability claims require adjudicators to make credibility determinations.  When it comes to Social Security Disability (“SSD”) benefits, an administrative law judge (“ALJ”) frequently has to make that determination.

We represent a 55 year old claimant from St. Albans who worked as a mail processor and home health aide with musculoskeletal impairments.  I supplied the ALJ with legal opinions where the vocational experts testified those occupations provided no transferable skills.  As a result, the Medical-Vocational Rule required finding the claimant disabled if she were limited to sedentary work.

I had previously filed a report from the claimant’s orthopedist, who provided less than sedentary functional assessments.  Moreover, I had filed an EMG report that revealed chronic L5-S1 and C5-C6 radiculopathies, and eight (8) MRI reports revealing serious impairments in the thoracic, cervical and lumbar spine, both shoulders and elbows, and the right knee.  That wealth of objective diagnostic test data is uncommon.

In light of the quantity and quality of the test reports, and the fact that the claimant had a 35 year work history, the case seemed ripe for an on-the-record (“OTR”) decision.  Both of those factors strongly support a claimant’s credibility.  ALJ Crawley agreed, and approved the OTR, which eliminated the claimant’s need to attend a hearing.

Our client originally filed for SSD on her own and retained us after her initial denial.  She told us that she knew she was in good hands when she decided to retain us, and our ability to not only get her approved, but to get her approved without attending a hearing, was proof that her intuition was right.

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

Another Win in Federal Court

U.S.D.C. Judge Gary Brown took the Social Security Administration (“SSA”) to task for denying our client’s claim for years, and ordered the SSA to pay her benefits.

Judge Brown criticized the SSA for its dilatory practices involving Social Security Disability (“SSD”) claims, which includes delaying litigation by moving for extensions of time to file the administrative record (“AR”).  While Judge Brown rejected my opposition to the SSA’s motion to extend the time to file the AR, in today’s decision he indicated that he may deny similar extensions in the future.

Judge Brown also criticized Administrative Law Judge (“ALJ”) Brian Crawley, whose decision Judge Brown called “indefensible,” involved “crucial errors,” and was “rife with error.”  The SSA agreed that it could not defend ALJ Crawley’s decision.  Nonetheless, the SSA told Judge Brown that the case should be remanded so ALJ Crawley could review the case again.  Judge Brown refused to do so.

To avoid “the seemingly interminable review cycle,” the SSA was ordered to pay the claimant SSD benefits.  Judge Brown asked if it was readily apparent to the SSA that the ALJ’s decision was unsupported, then, “why did reaching this fairly obvious decision require so much time, effort and expense?”

The answer to Judge Brown’s question is a cynical policy that the SSA has seemingly taken in recent years.  The denial rate of the State agencies that make the initial benefit decisions has remained steady, but the ALJ denial rate has increased over the years.  More importantly, the SSA has precipitously reduced the percentage of cases that it approves and remands since 2016.  The SSA must believe that many claimants will not go to court, and if they do, then the court will decide if a remand is needed.  The SSA has foisted its obligation to determine if a remand is needed onto the courts.  The SSA probably hopes that the courts will respond by denying more cases in order to discourage appeals, and even if they do not, it significantly delays the time when the SSA has to pay benefits.  The SSA does not pay interest on past due benefits.

This is our second Federal case in recent months that has been approved solely for calculation of benefits.  Our client would have given up a long time ago if she had applied on her own, which is what the SSA hopes.  But we do not give up,  so if you need a disability attorney who will fight for you, then please call our office.  We offer a free phone consultation, and have offices on Long Island in both Nassau and Suffolk counties.

ANS Disorder

The autonomic nervous system (“ANS”) regulates virtually all of our body functions and systems, including blood pressure, pulse, heart rate, body temperature, breathing, sweating, digestion, swallowing, bowel function, sleep patterns, urination, and sexual response.   An ANS disorder can affect all or part of the ANS, which obviously can cause seriously disabling problems. An ANS disorder can be caused by other medical conditions.

According to the CDC, “myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) is a disabling and complex illness.”  Studies have found that ANS dysfunction symptoms were strongly associated with ME/CFS.

We were retained by a 35 year old former attorney from Great Neck after he was denied Social Security Disability (“SSD”) benefits based upon ME/CFS.  We secured various sources of medical records and reports.  SSD benefits were approved on reconsideration, without having to wait for a hearing, after we demonstrated how the claimant’s comorbid ANS disorder and ME/CFS precluded any type of full time activity.

Our claimant is overwhelmed with gratitude over the speed in which we were able to get him approved, and because he won’t have to suffer through a hearing.  Even though he is an attorney, he realized that he needed to retain an attorney who specialized in disability, and that he shouldn’t be handling the claim himself.  He found us on AVVO, and based on the reviews, decided to call us for a free phone consultation, and then retained us.  You can call us for a free phone consultation if you plan on applying for disability.  We have offices on Long Island in both Nassau and Suffolk counties.

Pain Management

We represented two claimants with orthopedic  impairments seeking Social Security Disability (“SSD”) benefits at hearings with administrative law judge (“ALJ”) Patrick Kilgannon today.  One was a 49 year old insurance agent from Syosset, and the other was a 33 year old Day Care Assistant from Baldwin.  What they had in common were extensive pain management records and diagnostic tests.

It is difficult to prove pain.  It is common sense that a pain management specialist is uniquely qualified to determine the extent to which pain affects a claimant’s functionality.  A pain management specialist’s opinion regarding the subjective effect of pain is bolstered when there is “objective” evidence of an impairment that can cause pain.

For each claimant, we submitted a significant quantity of pain management treatment notes, electrodiagnostic test reports, and functional restrictions and limitations from the treating pain management specialists.  As a result, the ALJ made clear that both claimants would be entitled to receive SSD benefits.

Our clients could not be happier with the outcomes of their claims.  One of the claimants retained us after she had applied on her own and was denied.  We appealed her claim and took over from there.   It is always a wise decision to retain an attorney who specializes in disability if you find yourself in a position where you need to apply for disability.  Please feel free to call our office for a free phone consultation.  Our offices are located on Long Island in both Nassau and Suffolk counties.

Alzheimer’s Disease

The CDC determined that Alzheimer’s disease is the most common type of dementia.  This insidious condition is a progressive disease beginning with mild memory loss that can result in the inability to carry on a conversation and respond to the environment as it affects thought, memory, and language.  Alzheimer’s can prevent a person from being able to to carry out daily activities.

We represent a 52 year old from Fresh Meadows afflicted with Alzheimer’s who worked at a senior level for a large international advertising conglomerate.  Because of her medical condition, we had to deal with the claimant’s spouse, who was understandably under a great deal of emotional and financial stress.

By marshaling the requisite medical and vocational information, we were able to obtain both Long Term Disability (“LTD”) and Social Security Disability (“SSD”) benefits quickly.  The LTD and SSD application processes are not simple, and we are happy that at least we were able to help with the financial stress.

Disabling Migraine Headaches

You do not need to have experienced a migraine headache to recognize that they can be utterly disabling.  When seeking Social Security Disability (“SSD”) benefits, the problem is establishing how migraines disable you.

We represent a 49 year old psychologist from Syosset whose migraines gradually compelled her to reduce working from a full time basis to a very limited and irregular part time basis.  Retaining a vocational expert (“VE”) is helpful by explaining how functional limitations resulting from migraines impacts the ability to work.  The question becomes, how do you demonstrate that you have functional limitations due to migraines.

Our client was treated for migraines by a neurologist as well as a migraine specialist.  We obtained protracted treatment records for headaches, and testimony from multiple sources about how the claimant needs to lie down and avoid noise, light, and warmth when having migraines.  We also submitted reports that opined, among other things, how the claimant’s migraines would result in her being off task and absent from work.

The administrative law judge accepted the treating doctors’ limitations, found the claimant was unable to sustain any full time activity, and ruled that she was entitled to SSD benefits.

State Agency Notices

Some things never seem to change.  In 2018, I wrote about a persistent problem that claimants face when applying for Social Security Disability benefits.  In 2019, I wrote how the State agency sends claimants a letter stating that “it is necessary” to be examined by a doctor from IMA Disability Services (“IMA”).  However, these consultative examinations are rarely “necessary.”

According to Merriam Webster, “necessary” means required.  However, under the regulations, the State agency rarely meets the criteria for a claimant to submit to a consultative examination by IMA.  For years I have been asking for an investigation into the IMA boondoggle, but that request has fallen on deaf ears.

We represent a 56 year old from Great Neck with orthopedic problems and prostate cancer, who had worked as a security supervisor.  He received six (6) letters from the State agency insisting that

“IT WILL BE NECESSARY FOR YOU TO BE EXAMINED BY THE SPECIALIST NAMED BELOW,” which was IMA.  The claimant was approved today without having needed to attend a hearing, and without having been examined by IMA.  These misleading State Agency letters should stop.

If our client had not retained us, he would presumably have attended those examinations, and wouldn’t have known that he wasn’t required to go to them, and the outcome could have been very different.   You should plan on retaining a disability attorney if you are thinking about applying for SSD.  Your attorney has your best interests at heart; Social Security does not.  Please call one of our Long Offices for a free phone consultation.  We have offices located in both Nassau and Suffolk counties.

Rheumatoid Arthritis

We represent a 51 year old warehouse manager from Plainview with Rheumatoid Arthritis. Like most listings the Social Security Administration (“SSA”) has made the listing for Rheumatoid Arthritis more difficult to meet. Nonetheless, we were still able to get the claimant’s application for Social Security Disability (“SSD”) benefits approved without having to wait for a hearing.

The SSA has determined that most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. As the Mayo Clinic has noted, “rheumatoid arthritis tends to affect your smaller joints first — particularly the joints that attach your fingers to your hands.”

We submitted the relevant diagnostic and clinical medical evidence showing that rheumatoid arthritis had attacked the claimant’s hands. We also submitted medical evaluations from the claimant’s treating specialists explaining how the rheumatoid arthritis limited the claimant’s ability to use his hands. Apparently, because the claimant lacked bilateral manual dexterity, he was found disabled under the “Grid” rules.

Don’t Give Up

We represent a 32 year old with bipolar disorder from Deer Park who worked in real estate.  We filed the claimant’s Social Security Disability (“SSD”) application in 2016.  We succeeded in getting the case remanded from federal court, and after it was denied a second time by the administrative law judge, we succeeded in getting the claim reversed by the Appeals Council.  Finally, after more than a five year war, we won the final battle, and obtained a fully favorable decision for the claimant.

We represent disabled claimants, including those seeking SSD benefits, at all levels of the application and appeal process.  If you are contemplating seeking or appealing a claim for disability benefits, please call us for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

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.

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.

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.

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.

State Agency Doctors

During the first two levels of review for a Social Security Disability (“SSD”) application, the State agency basically has its doctors deciding the claim.  The State agency doctors frequently lack the credentials or qualifications to evaluate a claimant’s impairments.  Therefore, Social Security attempts to insulate the opinions of State agency doctors by refusing to disclose their full names.

Although federal courts rarely accept the opinions of the State agency medical consultants, administrative law judges (“ALJs”) frequently rely on those opinions to deny SSD benefits.  Fortunately, ALJ Crawley is not one of them.

We represent a 54 year old financial analyst from North Babylon with severe back and knee impairments.  His SSD application was at the first two levels of review based upon the opinions of the State agency doctors, who asserted the claimant could perform light work.  ALJ Crawley rejected those opinions in favor of the claimant’s physiatrist for two reasons.  First, the opinions of State agency doctors were unpersuasive because they were based on a review of the record, and not a direct examination of the claimant.  Second, those opinions were obtained before significant evidence was available for review, which rendered them less relevant in assessing the claimant’s functioning.

If you are considering applying for disability benefits, it is in your best interest to retain an attorney who specializes in disability.  You can call our office for a free phone consultation.  Our offices are conveniently located on Long Island in both Nassau and Suffolk counties.

Lung Cancer Approval

We represent a service manager from Shirley, who unfortunately has Stage 4 lung cancer.  By promptly alerting the right representatives at Social Security, and submitting the medical information to qualify for expedited processing, we succeeded in getting benefits approved in 2.5 months.

Delays in processing Social Security applications are well documented.  Knowing how, and being willing, to navigate the Social Security application process from inception is important to ensuring that late stage cancer claims get expedited.

DDS Inconsistency

The State agency makes the initial decision on Social Security Disability (“SSD”) applications.  When we advised the State agency that our 24 year old claimant from Uniondale with back problems would not attend a consultative examination (“CE”) due to the COVID-19 pandemic, the State agency agreed that the treating spine specialist could do the CE.  The specialist provided the very information that the State agency requested, yet it denied the claimant’s SSD application anyway.

The administrative law judge (“ALJ”) found the evidence regarding the claimant’s spine impairments compelling, and promptly approved SSD benefits.  The State agency received the exact information that it had requested, and it all supported the claimant’s SSD application. One can only surmise that the State agency gave no regard to the medical evidence because it had predetermined to reject the claim of a 24 year old.

If you are thinking about applying for SSD benefits, it’s in your best interest to retain an attorney who specializes in disability.  For more information, please call my office for a free phone consultation.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

ALJ Schriver Reversed

We received a federal court decision today that reversed the denial of Social Security disability (“SSD”) benefits by administrative law judge (“ALJ”) Robert Schriver.

We represent a 50 year old title reader from Bellerose Manor with fibromyalgia.  The ALJ rejected the opinion of the treating rheumatologist that the claimant lacked a sedentary residual functional capacity (“RFC”) because of the fibromyalgia.  We argued that the ALJ impermissibly relied upon his own lay judgment in lieu of medical opinions when concluding the claimant had the RFC for full time work.  The federal district court agreed.

The judge ruled that because the ALJ is a layperson, not a doctor, he is not permitted to interpret raw medical information into an RFC without the assistance of a medical professional’s insight.  The court added that, “Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.”

The most noteworthy part of the decision was that the judge highlighted the importance of the treating physician’s opinion even after the repeal of the treating physician rule.

It’s important to note, that when you hire an attorney to represent you with a Social Security Disability claim,  you should confirm that he/she has the credentials to take your case to Federal Court, if the need should arise.  Please contact our office for a free phone consultation if you are considering filing for disability.  Our offices are conveniently located on Long Island in both Nassau and Suffolk counties.

The Wait is Over

We filed a Social Security Disability (“SSD”) for a claimant from Brooklyn with depression over 5.5 years ago.  After administrative denials, we appealed in federal court, and succeeded in obtaining a reversal.  On remand, the administrative law judge (“ALJ”) asked a medical expert (“ME”) and a vocational expert (“VE”) to testify.

At the hearing, after the ME testified that the claimant met a listing, the ALJ ended the hearing without any testimony from the VE, which means SSD benefits will be approved.  Today we received the Fully Favorable Decision; however, the notice of award (“NOA”) that details the benefits that are due and the lump sum past due benefits can take many months to get, especially when the claim involves a federal court remand.

Our claimant is ecstatic that he was approved, and grateful that we fought so hard for him.  If you are thinking about applying for disability, please call my office for a free phone consultation.  Our offices are conveniently located on Long Island in Nassau and Suffolk counties.

LTD Buy Outs

A long term disability (“LTD”) benefit “buyout” is where the insurance company pays a lump sum instead of continuing to make monthly payments in the future.  Should you accept a buy out?  A buy out will always be less than the possible total amount of future benefits remaining, for which there are valid reasons.

The insurer will continue to reassess the claim.  The insurer may believe that it is possible for your condition to improve, at which point your benefits will be terminated.  That is why insurers do surveillance, and pay “IME” doctors thousands of dollars to opine that the claimant has improved.  The insurer will also want a discount to reflect the chance that you might die from some unrelated cause.

I typically advise my clients that their only concern should be if the buy out makes financial sense – could they invest the lump sum to earn approximately what the monthly payouts would equal. To determine if a buy out makes sense, you should always discuss it with your financial advisor, who can evaluate the present value formula that the insurer is using.  To oversimplify, if you win a lottery, you can choose a lump sum or annual installment payments.  The former is always smaller than the total amount of the jackpot.

The key to analyzing the present value is the “discount rate,” which is an interest rate.  A lottery uses a discount rate to reflect the annual rate of growth of the invested lump sum for a typical individual, which is what the present value of a lump sum is supposed to do.  Disability insurers knowingly misuse the term present value.  Instead of using an interest rate that reflects the expected rate of investment growth, the disability insurer uses the corporate bond rate because that supposedly reflects the cost to them of borrowing to pay for the lump sum.  However, that has nothing to do with the present value of a lump sum to you; only the cost of the lump sum to them.

Most of the time, we advise claimants that buy outs are offering far too little relative to the overall claim.  We negotiated a buy out for a Unum client today.  The claimant understood that there was a significant discount for Unum.  However, the claimant already had to relocate from Queens to Upstate New York where the cost of living is lower.  After discussing the buy out with financial advisors, despite the discount, the claimant felt she had to accept the buy out due to financial stress.