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Covid Long Haulers

As if it wasn’t hard enough to get approved for Social Security Disability (“SSD”), Covid has complicated the matter even more.  Some people who have had Covid have become “long haulers.”  They have experienced lingering medical issues, and new medical issues, which have left them unable to return to work.  While they can apply for SSD, the Social Security Administration (“SSA”) is not prepared for how to treat these cases, and will most likely deny them,erroneously.

How many more of our fellow citizens are going to be subjected to the uneducated decisions of the “analysts” at the State agency who review their claims?  These “analysts” are civil service workers, not doctors or lawyers, who most of the time are ill prepared for what they are doing, and are not really interested in trying.  Under the new acting Commissioner of the SSA, we can only hope that the SSA trains their employees about how to handle long haulers’ claims, and that they do not automatically deny them or make them wait years for a decision.

Remand for Benefits

There are three possible outcomes when appealing a Social Security Disability (“SSD”) case in Federal court:  the appeal can be denied, remanded for further proceedings, or approved and remanded for a calculation of benefits.  The third possibility is the best for a claimant, but is also the rarest, occurring only 2% of the time.

Unfortunately, more claimants are having to litigate in order to receive SSD benefits.  Social Security has precipitously reduced the percentage of cases that it approves and remands at the Appeals Council since 2016.  It seems that Social Security made the cynical decision that it is a win-win for it to reject more cases at the Appeals Council.

Social Security calculated that many claimants will not go to court, and if they do, then the court will decide if a remand is needed.  Basically, Social Security has foisted its obligation to determine if a remand is needed onto the courts.  Social Security anticipates that the courts will respond to the increased SSD caseload by denying more cases in order to discourage appeals.  At worst, a remand significantly delays the time when Social Security has to pay benefits, and Social Security does not pay interest on past due benefits.

We represent a 36 year old catering manager from Mineola with multiple impairments, including pseudotumor cerebri, which causes headaches.  Administrative Law Judge (“ALJ”) Roxanne Fuller denied the case, which the Appeals Council rubber stamped.  U.S. District Court Judge Brian Cogan reversed and remanded the case today for a calculation of benefits.

Judge Cogan rejected the ALJ’s argument that because the claimant’s headaches were not disabling because she did not experience them during all her examinations.  Since the record was sufficiently developed, and no medical opinion contradicted the opinions of the treating physicians who concluded the claimant cannot work on a regular basis, Judge Cogan held that a calculation of benefits was the proper remedy.

Our client cannot express her gratitude enough, for our handling and outcome of her claim.   She had originally applied on her own and realized that filing for SSD was an arduous and complex matter.   She was referred to us by an old client of ours, who highly recommended calling us, based on their own positive experience, knowing that we specialize in disability claims, and are able to litigate claims in Federal court when necessary.  Our office offers free phone consultations and have offices conveniently located on Long Island in Nassau and Suffolk counties.

Prostate Cancer

We represent a claimant with complications from prostate surgery who was approved today for Social Security Disability (“SSD”) benefits without even having to attend a hearing with an administrative law judge (“ALJ”).  The ALJ not only found that urinary impairments and fatigue prevented the claimant from performing his past work, but also any other work as well.

Transferability means applying work skills that the person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semi-skilled jobs.  The ALJ concluded that any skills the claimant acquired from his past work were not transferable to any other jobs; that any other occupation would require too much vocational adjustment in terms of tools, work processes, work settings or the industry in order for any acquired skills to be transferable.

Vocational considerations take on added significance when the impairments at issue are non-exertional.  Therefore, we retained and worked with a vocational expert (“VE”) on this matter.  Without the VE, it is unlikely that the claimant’s SSD application would have been approved without a hearing.

More Good News?

SS Commissioner Fired

COVID Long-Haulers

COVID has affected the lives of millions of people. While some people who have had COVID recover after two weeks, and return to their normal life, there are many people who are left with long lasting, even permanent, medical conditions that they did not have before contracting COVID. These people are referred to as “long-haulers”. One of the many problems these people face is their inability to return to work, for an unknown period of time, or permanently. They face the difficult challenge of applying for disability, whether through Social Security, or from a group or private insurance policy, neither of which is prepared for “long-hauler” claims. But they need to prepare quickly, because there are going to be a lot of people left disabled from this virus, and they will need disability payments to survive.

SDNY Affirms SSD Win

Judge Ronnie Abrams rejected the decision of Administrative Law Judge (“ALJ”) John Carlton that our client from the Bronx with spinal impairments was not disabled. The decision is of significant importance because Judge Abrams clarified that “the law that an ALJ may not substitute his own medical opinion for that of a physician” even after the treating physician rule was decodified. Thus, an ALJ cannot base a residual functional capacity (“RFC”) assessment on his own interpretation of the medical evidence. In order for an RFC to be supported by substantial evidence it must be based on a physician’s opinion.

It is vital to make sure that the disability attorney who will represent you when applying for Social Security Disability will also fight for you in Federal Court if necessary. Not many disability attorneys are qualified and willing to litigate their clients’ claims if they have to go to Federal Court, and they will refer you to a litigation attorney. We can and do litigate our clients claims. 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.

Prudential Approval

We represent a nurse from Manhassett with Lupus and back problems. We originally persuaded Prudential to reverse its decision that the claimant was able to work as a nurse after we filed an action in federal court. However, relatively soon thereafter, Prudential challenged whether the claimant was unable to perform any other occupation.

At the time of the lawsuit, even though the claimant only needed to establish that she was incapable of working as a nurse, we went out of our way to demonstrate how the medical and vocational evidence submitted supported her being incapable of performing any full time occupation. We provided Prudential with information from the claimant’s doctors showing that there had been no change in her medical tests, clinical examination findings, or symptoms.

Prudential notified the claimant today that it determined she is unable to be gainfully employed. If we had not exceeded the evidentiary requirements initially, it is unlikely that Prudential would have concluded that the claimant was disabled from any occupation.

Please take note of how important it is to retain an attorney who specializes in disability claims, if you intend on filing for disability. Our office offers free phone consultations. We have offices located on Long Island, in both Nassau and Suffolk counties.

Rheumatoid Arthritis

Rheumatoid Arthritis or “RA” is an incurable form of inflammatory arthritis and an autoimmune disease.  When applying for Social Security Disability (“SSD”) benefits, the most expeditious way to establish entitlement to benefits is to show that the claimant meets the criteria under “listing” 14.09.

We represent a 47 year old Vice President of Human Resources from Glen Cove, who was approved for SSD benefits in five months, without requiring a hearing.  There was no written decision because the claimant was approved at an early stage.  However, we were able to access the internal documents from the Social Security file, and learned that the claimant met listing  14.09 because of the effect that the RA had on her hands.  We had submitted a report that focused on how the claimant’s use of her hands were limited, and treatment records that reflected the nodules on them.

The SSD claim process is a lengthy one, especially during the COVID era.  Explaining why the medical evidence supported the claimant meeting the listing significantly expedited her receipt of SSD benefits.   This is why it is so important to have a disability attorney representing you for SSD benefits.  If you are planning on applying for SSD, or have already applied on your own, please call my office for a free phone consultation.  Our offices are conveniently located on Long Island in both Nassau and Suffolk counties.

We Take Care of Our Own?

Mystery Solved

Sometimes it is unclear why Social Security approves a claimant. We represent a 32 year old educator from Brooklyn with bipolar disorder, whose supplemental security Income (”SSI”) application was just approved. We submitted very strong medical opinions along with their treatment records, but that does not usually result in an approval prior to a hearing with an administrative law judge.

We received a notice of award (“NOA”) for the claimant. However, a NOA explains the benefits to which a claimant is entitled, but does not explain the basis for the decision. Because Social Security conducts continuing disability reviews (“CDR”), it would help a claimant prepare for that eventuality if the NOA was accompanied with some sort of rationale for the approval. As the client’s attorney, I was able to access his electronic file and review the State agency’s notes. This enabled us to ascertain that the claimant was approved because he met the listing for bipolar disorder, which will prove invaluable when his CDR comes up.

Is the claimant had not retained us, or another disability attorney, he would never have known the basis for his approval. This is why it is so important to hire a disability attorney if you are thinking of applying for disability. We have offices conveniently located on Long Island, in both Nassau and Suffolk counties. Please call our office for a free phone consultation.

More State Agency Deceit

We filed a reconsideration appeal on May 3, 2021.  Just three weeks later, the State agency denied the claim without requesting any additional information. The State agency claimed that we refused to allow our client to attend a Consultative Exam (“CE”) because of “a medical condition.”  That claim was deceptive at best.

The State agency concealed that the claimant’s “medical condition” was his cardiovascular heart disease, which resulted in two heart surgeries in February, and two more surgeries in March, when COVID was still raging.  In his condition, the claimant could not risk being exposed to COVID.  To minimize the risk, we offered to have one of his cardiologists perform the CE, who also happen to be the preferred source under the regulations.  His doctors were perfectly willing to perform the CE, but the State agency ignored that offer.

The medical section of our client’s Social Security claim file contains 2,421 pages of records that support his disability from work.  The State agency denied this claim because the claimant did not attend a CE.  We have seen quality control memos rejecting such denials, and reminding the State agency to make a decision on the other evidence in the file.  The State agency failed to do that here.

There were thousands of pages of medical records.  The State agency refused to identify any medical documentation that was purportedly missing.  There was a great deal of documentation regarding our client’s medical conditions, including diagnoses, objective diagnostic test data, operative reports, supportive letters and reports from multiple treating doctors.  There was no need for our client to attend a CE.

Logic dictates that the State agency was too lazy to review the 2,421 pages of medical records. This claim should have been approved.  It is a travesty that it was denied.

We will continue to fight for our client and are confident that the hearing office will give this claim the proper consideration and review.  If you find yourself in need of assistance applying for disability, please contact my office for a free phone consultation.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

Responsiveness Counts

Social Security Disability (“SSD”) claimants frequently ask, “How long does it take to get a decision?”  That general question cannot really be answered because it depends on countless variables.  However, the process can be hastened if your doctors and other sources supporting your claim respond promptly and fully.

We represent a former salesperson from Lynbrook who suffers from anxiety and PTSD whose SSD application was approved without a hearing.  We were able to obtain reports from the claimant’s psychiatric nurse practitioners, one of whom also provided thorough and complete answers to a questionnaire from Social Security, and psychotherapist.  As everything Social Security requested was expeditiously submitted, a consultative examination was not requested.

The claimant may not have had the same outcome if she had filed on her own.  This is why it is so important to retain an attorney who specializes in disability if you plan on applying for SSD.  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 Nassau and Suffolk counties.

ALJ Gets It Right

Administrative Law Judge (“ALJ”) decisions frequently state that whether a Social Security Disability (“SSD”) claimant is disabled “is an issue reserved for the Commissioner.”  While that may be a correct recitation of the law, most ALJs apply it incorrectly.

Many ALJs invoke language that the legal determination of disability is reserved exclusively to the Commissioner when they try to circumvent the law that requires an ALJ to choose between medical opinions.  In doing so, the ALJ conflates a determination of disability, which is a legal opinion, with a claimant’s functional limitations, which is a medical opinion.  The courts have consistently held that while a doctor’s statement that a claimant is disabled is not a medical opinion regarding functional limitations, and is not an opinion on the ultimate issue of legal disability, but rather on the nature and severity of the plaintiff’s impairments.

I represent a 36 year old from Holbrook with severe spine, shoulder and elbow problems that worked as a carpenter, whose SSD application was approved today by ALJ Berkowitz.  One of the claimant’s doctors stated that the claimant was disabled, and provided functional limitations that precluded full time work.  The ALJ distinguished between the two, and noted that while the disability statement was an issue reserved to the Commissioner, the doctor’s less than sedentary functional assessment was not.

If you are thinking about applying for disability, you should retain an attorney who specialized in disability.  I have over 25 years of disability experience.  Please call my office for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Berkowitz Reversed A Second Time

We represent a 32 year old bipolar disorder from Deer Park who worked in real estate.  We filed the claimant’s Social Security Disability (“SSD”) application in 2016, which administrative law judge (“ALJ”) Alan Berkowitz denied.  After the Appeals Council denied review, we appealed to federal court, where we got the ALJ’s decision reversed for a second hearing.  The ALJ partially denied the SSD application at the new hearing by repeating the same mistakes that he made at the first hearing.  The Appeals Council reversed the ALJ, and ordered that the case be reassigned to another ALJ.  This should all sound familiar to regular readers of this blog.

We are a full service SSD office, and represent claimants at all levels of the application and appeal process.  If you find yourself unable Please call us for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

SSD Inside Attack

Anyone who has worked hard should expect to be approved for Social Security Disability (“SSD”) benefits when they become unable to work due to the physical and mental toll their jobs have taken on them.  As long as your doctors confirm that your condition prevents you from working on a full time basis, you should expect to be approved, and rightfully so.

Many of our citizens work in physically demanding jobs, such as construction workers, factory workers, cleaning services, etc., which frequently result in physical impairment.   We could not survive without these essential workers, but they are not being rewarded for their service.

Former President Trump appointed Andrew Saul as the Commissioner of Social Security.  Saul continues to enact new rules that make it even more difficult to get approved for SSD benefits due to physical impairments, especially musculoskeletal problems.  We need to get the Saul rule overturned, and remove him as Commissioner.  You pay his salary, yet he does not have your best interests at heart.   We need a Commissioner with empathy and compassion for the most vulnerable members of society.  You funded Social Security; you worked for it; you need to fight for it.

Applying for SSD

Applying for Social Security Disability (“SSD”) or Supplemental Income (“SSI”) can be an overwhelming, anxiety provoking task, especially if you apply on your own. Retaining an attorney who specializes in disability can make the process a lot less intimidating and overwhelming. And recent studies have shown that you are 3x more likely to be approved for SSD or SSI if you are represented by an attorney. If you are thinking about applying for SSD or an SSI appeal, my office offers free phone consultations. If we take your case, we handle everything for you, from filing your application to representing you in court, if it comes to that. We speak to Social Security on your behalf, making the process a lot less overwhelming for you. We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Help for SSD?

In the last few weeks of the Trump presidency, he and his administration passed a number of rules that would make it even more difficult than it already is to be approved for Social Security Disability or Supplemental Security Income. We have to hope that the Biden administration will be able to reverse those rules, and sooner rather than later.

Credibility Approval

We represent a 50 year old former general clerk from Florida with physical and mental impairments seeking Social Security Disability (“SSD”) benefits.  At the claimant’s hearing, the administrative law judge (“ALJ”) noted that the claimant had no medical treatment the past year.  Typically, an ALJ will deny SSD benefits under those circumstances on the assumption that if a claimant stops treating, then it shows they got better.  Alternatively, some ALJs will deny SSD benefits on the grounds that the claimant failed to supply the requisite contemporaneous evidence to support their claims.

We explained to the ALJ that the case law in New York provides that a claimant cannot be penalized for failing to seek medical treatment if they cannot afford it or lack health insurance.  The claimant, who was homeless, credibly testified that both of those circumstances applied in her case.  The ALJ accepted that testimony, and approved the claimant’s SSD application.

Please call me office for a free phone consultation if you are interested in applying for disability.  We have offices located in Nassau and Suffolk counties on Long Island.

MS Victory

We represent a 38 year old former pharmacy technician from Ozone Park with multiple sclerosis (“MS”).  We filed her application for Social Security Disability (“SSD”) benefits six years ago.  We continued to fight for SSD benefits at all levels of adjudication.  The first administrative law judge (“ALJ”) on the case was Jay Cohen.  Cohen’s decision denying SSD benefits was so transparently defective that when we appealed to federal court, the attorneys representing Social Security immediately asked us to agree to remand the case.

The good news is that the case was finally approved today by a new ALJ.  The bad news is that it took the claimant six years to get approved.  Moreover, as is typical in cases that last this long, it will take many months for her to get paid.  Having said that, the claimant is grateful that we “stuck with her” and finally got her approved.

If you need assistance applying for disability, or help with a claim that you already filed, please feel free to call my office for a free phone consultation.  We have offices conveniently located in Nassau and Suffolk counties on Long Island.