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The Law Offices of Jeffrey Delott Disability Law Archive

The following content is an archive from my old blog:

Fast SSD Hearing

One of the biggest problems with the Social Security Disability process is the amount of time it takes. The initial determination usually takes about 6 months. The decision is made by a disability analyst who is not a doctor and who ignores what the treating doctor says, so the decision is normally unfavorable. The next step here after a denial is waiting for a hearing before an administrative law judge. Unfortunately, according to government statistics, the wait for a hearing is usually about 1 1/2 to 2 years. Nonetheless, I have been able to take steps to shorten the wait for a hearing

When a client of mine has been scheduled for a hearing, and a request for on the record decision has been rejected, I institute Congressional Inquiries. The grounds for an inquiry vary, but it seems to be the one mechanism that hearing offices recognize for expediting a hearing.

Yesterday, I had a hearing for client who could no longer work because of Chronic Fatigue Syndrome and Fibromyalgia. Because I commenced a Congressional Inquiry, the hearing was scheduled only a couple of months after the initial denial. Moreover, the judge approved the application on the record during the hearing and issued a Bench Decision. Typically, even if a judge tells a claimant that the application will be approved, it may still take months to get a written decision. The Bench Decision avoids that delay.

UNUM Reassessment

I just resolved another reassessment case. I have found that the key to a reassessment case is usually focusing on the Social Security Disability (“SSD”) award. The Regulatory Settlement that covers the reassessment requires that substantial weight be given to the Administration’s decision, the effect of which is to effectively level the playing field. This case was tough because it involved a closed period of time, during which the claimant never applied for SSD benefits. Despite the fact that this case was being reassessed, Unum’s actions seemed just as partial as a typical group disability claim subject to ERISA. After aggressively attacking the inadequacy of the information Unum disclosed regarding its review, and its transparently slanted review of the medical evidence, the matter was transferred to another representative. The new representative promptly and earnestly discussed resolving the claim. It could be that Unum’s strategy is to continue to assume a hard line stance to avoid liability on reassessed claims, until confronted with someone who obviously is familiar with handling Unum or long term disability claims.

I just resolved another reassessment case. I have found that the key to a reassessment case is usually focusing on the Social Security Disability (“SSD”) award. The Regulatory Settlement that governs the reassessment requires that substantial weight be given to the Administration’s decision, the effect of which is effectively to level the playing field. This case was tough because it involved a closed period of time, during which the claimant never applied for SSD benefits. Despite the fact that this case was being reassessed, Unum’s actions seemed just as partial as a typical group disability claim subject to ERISA. After aggressively attacking the inadequacy of the information Unum disclosed regarding its review, and its transparently slanted review of the medical evidence, the matter was transferred to another representative. The new representative promptly and earnestly discussed resolving the claim. It could be that Unum’s strategy is to continue to assume a hard line stance to avoid liability on reassessed claims, until confronted with someone who obviously is familiar with handling Unum or long term disability claims.

Obtaining SSD Benefits Without A Hearing

The government’s own statistics show that the majority of Social Security Disability (“SSD”) claims are denied, and then the claimant has to wait two years before his or her appeal is heard by have to be appealed. The younger the claimant, the more likely the claim will be denied, especially when a person is younger than 50 years old. Also, claims that are based upon medical impairments that cannot be established by a laboratory test, such as Chronic Fatigue Syndrome or emotional conditions, are more likely to be denied.

Based on these statistics, it would seem very unlikely that a 43 year old claimant who stopped working due to anxiety would have his application for SSD benefits approved and receive his first check in only six months. However, that is precisely what happened this week. The claimant’s condition does not require institutionalization. Therefore, the question arises, how did I get his application approved so quickly?

The claimant had difficulty with new supervisors and tasks at work. The stress from deteriorating performance exacerbated his anxiety to the point where he had anxiety attacks that prevented him from going to work, and he became agoraphobic. Since the claimant was only treating with a psychiatrist, I sent him for treatment to clinical psychologist. I then submitted not only a narrative report from the psychologist, but also submitted reports from both the psychiatrist and psychologist evaluating the claimant’s mental functionality. While each of those treating sources concluded the claimant’s condition precluding him from returning to work, those reports primarily indicated that the claimant had moderate limitations. That being the case, how was I able to get this claim approved so quickly?

After personally interviewing the claimant at length, I learned that he had Crohn’s Disease or ulcerative colitis, which was being aggravated by his emotional condition. I referred the claimant to a rheumatologist because they are the specialists who deal with inflammatory diseases such as Crohn’s Disease. The rheumatologist, who diagnosed the claimant with osteoporosis as well as Crohn’s Disease, concluded that the claimant is limited to sitting for 1 hour, and standing/walking for 0 to 1 hour, in an 8 hour day. Furthermore, Dr. Stein concluded that the claimant is limited to lifting as well as carrying only 5 pounds on an occasional basis.

I have had many other cases with reports of mental impairments that were as severe as this claimant’s, yet benefits were denied. Similarly, I have had many other cases with reports of physical impairments that were as severe as this claimant’s, yet benefits were denied. Thus, it apparently was the combination of the claimant’s mental and physical impairments that was deemed so severe that the application was approved in such a short time. The lesson here is that so long as a case if thoroughly investigated and prepared, even cases that typically seem destined for denial can be approved quickly.

Fast SSD Hearing

One of the biggest problems with the Social Security Disability process is the amount of time it takes. The initial determination usually takes about 6 months. The decision is made by a disability analyst who is not a doctor and who ignores what the treating doctor says, so the decision is normally unfavorable. The next step here after a denial is waiting for a hearing before an administrative law judge. Unfortunately, according to government statistics, the wait for a hearing is usually about 1 1/2 to 2 years. Nonetheless, I have been able to take steps to shorten the wait for a hearing.

When a client of mine has been scheduled for a hearing, and a request for on the record decision has been rejected, I institute Congressional Inquiries. The grounds for an inquiry vary, but it seems to be the one mechanism that hearing offices recognize for expediting a hearing.

Yesterday, I had a hearing for client who could no longer work because of Chronic Fatigue Syndrome and Fibromyalgia.

Because I commenced a Congressional Inquiry, the hearing was scheduled only a couple of months after the initial denial Moreover, the judge approved the application on the record during the hearing and issued a Bench Decision.

Typically, even if a judge tells a claimant that the application will be approved, it may still take months to get a written decision. The Bench Decision avoids that delay

SSD Seminar

I was a keynote speaker at a National Business Institute seminar entitled Handling A Social security Disability Case. My focus was discussing tactics for succeeding at the hearing level and also how to avoid ethical problems in a disability practice. In short, I said that my approach is to handle Social Security matters from the outset as if they are fully litigated federal court actions issues, even though in theory the disability process is supposed to be a non-adversarial and administrative one.

Being thorough and aggressively pushing claims to approval as fast as possible not only is the goal for succeeding at any level of review, but it also helps ensure that claimant’s interests are best served.

A client’s SSD case was approved today on the record, meaning that I won his case without having to wait for a hearing, which would not have taken place for about two years. That achievement was especially fortuitous for the claimant because he first came to see me after his application had already been denied.

The claimant’s situation was a classic one. The claimant, who was an electrician, had knee problems. He submitted his treatment records from his treating orthopedist, yet the claim was denied based upon the strength of the exam by a Social Security doctor and the SSA disability examiner.

I did several things to get the application approved. First, I got the treating doctor to provide a functionality assessment based upon his treatment records, which showed that the claimant lacked the ability to perform even sedentary work. Second, I sent the claimant to a board certified orthopedist for a comprehensive disability evaluation. That examination corroborated the findings of the treating orthopedist. Third, I investigated the qualifications of the Social Security doctor and learned that her field of medicine is emergency medicine, not orthopedics. Finally, my review of the Social Security file revealed that the Social Security disability assessment was completed by a disability analyst, who was not a doctor, in violation of the agency’s own rules.

Armed with the additional positive evidence I filed papers arguing that it was unnecessary to wait for a hearing before the new evidence required approval of benefits. The treating doctor’s functionality assessment and the other orthopedist’s comprehensive evaluation showed that the claimant could not return to work as an electrician nor perform any other type of work. Since the Social Security doctor lacked the proper qualifications to evaluate the claimant and the disability analysts was not a doctor, there was no evidence to contradict the evidence I submitted. The hearing agreed and the application was approved at least a year and half before a hearing would even have been scheduled.

LTD Approval Without Attorney Fee

Yesterday, I was advised by Hartford that they approved the LTD claim of one of my clients. I invested a substantial amount of time and effort over several months to get her application approved, and was able to do so without having to appeal. Consequently, my client received her LTD benefits just as her salary extension was ending. The result is that there was no retroactive benefit to pay an attorney fee.

Because of the possibility of receiving little or no fee, many attorneys won’t represent a claimant until their claim has been denied, which I feel is ethically questionable. A case should not be rejected for fear of receiving a minimal fee. At worst, a satisfied claimant becomes a referral source for other potential clients.

Be Wary of Alleged Overpayments

Many people become terrified when the Social Security Administration (the “SSA”) tells them that they owe thousands of dollars because they supposedly received disability benefits improperly. Don’t panic. There are many reasons why you may not be responsible for repaying any money.

The SSA may be under the misimpression that certain income that was reported to the IRS reflects your work activity. You may not owe any money because the income at issue may be attributable to another person or family member, or may represent passive income, such as rent or dividends. For example, even Donald Trump would be able to collect disability benefits if he could no longer work.

There are also vocational various concepts, such as trial work periods, unsuccessful work attempts and substantial gainful activity that may bar an overpayment even if you were working. I just received a decision today that illustrates this point.

A claimant came to me after she was accused of receiving an overpayment in excess of $10,000 because around the same time that her application for benefits was approved she resumed working on and off. I was able to show that many of her jobs constituted unsuccessful work attempts, including one that lasted nearly 6 months. Additionally, I convinced the SSA to approve 9 months of trial work period benefits, despite the fact that the claimant resumed working less than one year from the onset date of her application. The end result that the claimant’s overpayment was completely erased AND the SSA found that she was also entitled to some back benefits.

This type of Social Security case requires a thorough understanding of the vocational law so make sure that your attorney has specific experience in this area.

Watch Your Onset Date

The Social Security Administration (the “SSA”) does not like approving claims, as evidenced by the fact that 60-70% of applications are denied initially. As for the other 30-40%, one of the SSA’s favorite ploys is to issue a partially favorable decision that approves benefits, but only as of date after the disability began. Don’t accept a decision that arbitrarily reduces your benefits.

One of my client’s became disabled in February 2004. However, the SSA found him disabled as of July 27, 2005, even though no medical evidence concerned that time period. On the other hand, there were two treating specialists whose medical records showed the client could not even do sedentary work.

I convinced the claimant to appeal the partially favorable decision. On appeal, I submitted reports from the two specialists explaining the reasons for their opinion why the claimant became disabled in February 2004. I emphasized the claimant’s long, 40 year work history to show that the claimant would work if he could. The SSA approved the February 2004 onset date without a hearing based on the claimant’s impressive work history. Do not be afraid to appeal an arbitrary onset date. Make sure you completely understand a decision before you decide to accept it.

Court Remands Case as the SSA Violated Its Own Rules

The final resort for a person whose Social Security Disability (“SSD”) claim has been denied is federal district court. I took over an SSD claim from another attorney when it came time to file a lawsuit in federal court. I persuaded the judge to remand the matter to the Social Security Administration (“SSA”) for further review. A remand is not unusual. However, the particular basis for this remand is noteworthy.

The Administrative Law Judge (“ALJ”) from the SSA had rejected the treating doctor’s opinion. Instead, the ALJ relied on the medical assessment from the state agency that evaluates claimants for the SSA. My investigation revealed that the medical assessment was in fact prepared by a disability analyst, not a physician as required by the SSA’s own rules. The district court agreed that the ALJ’s reliance on the state medical assessment was improper, and today’s remand order advised the ALJ about the error.

While the rules require the state agency assessment to be prepared and signed by a physician, it has become increasingly rare for physicians to do so. Always make sure to review the state agency assessment and every other piece of evidence in the claim file before a hearing as well as when filing papers in federal court.

Disability For Postal Worker

Many people forfeit disability benefits either because they are unaware of potential benefits or because they mistakenly believe that they are not entitled to them. I received a decision approving Social Security Disability (“SSD”) benefits yesterday for a postal carrier today that illustrates this point. A 48 year old mail carrier who was injured in a car accident reluctantly came to see me after his personal injury attorney referred him. The mailman was reluctant because he was already receiving disability benefits under the Federal Employee Retirement System also known as FERS. He thought that he was not allowed to receive benefits under both SSD and FERS. The standard for receiving disability retirement benefits under FERS frequently requires proving only that you are disabled from your last position. The standard for receiving SSD benefits usually requires proving that you are disabled any position. While the SSD standard may be tougher than the FERS standard, receipt of one does not bar receipt of the other. A treating physiatrist supported the SSD application by concluding the postal carrier could not work. On my advice, the claimant began treatment with an arthritis specialist, who concurred and concluded the claimant could not perform any type of work. Because the claimant had disability opinions from multiple medical specialists his application was for SSD approved without a hearing. If you cannot work, it makes sense to consult with an attorney about all of your rights. When inquiring about potential disability benefits, make sure the attorney is familiar with the various sources for benefits.

Successful Mental Impairment Claims

Last week I received two SSD approvals without a hearing. What’s interesting about those cases is that they took different paths to approval.

The first case involved a bi-polar disorder. There claimant had been seeing a psychiatrist for medical treatment, but had stopped seeing a therapist. I sent the claimant for a comprehensive psychological evaluation. That status exam disclosed the claimant’s current mental findings. I was able to use the psychologist’s findings and conclusions to show that the claimant lacked the ability to perform the basic mental demands of unskilled work. According to the Social Security Administration’s Program Operations Manual System (“POMS”), if a claimant has a substantial loss of ability to meet any of the basic mental demands specified in the POMS, then it justifies a finding that the claimant is unable to work. The request for a fully favorable on the record decision was approved in two weeks.

The second case involved a schizophrenia disorder. The claimant had been seeing a psychiatrist who submitted a very short note stating that the claimant was unable to work. I asked the psychiatrist to complete a report that would assess the claimant’s mental functionality. Because the psychiatrist’s conclusions indicated that the claimant was very severely affected by the disorder, I asked him to detail whether the claimant met listing 12.03. If a claimant meets the criteria of a ”Listing”, then the claimant is considered presumptively disabled and entitled to receive disability benefits. The psychiatrist confirmed that the claimant did in fact meet the listing, and the request for a fully favorable on the record decision was approved in less than two months.

Many people have the misconception that a person with solely mental impairments will rarely succeed in obtaining benefits. These cases show that misconception wrong. In fact, these cases serve to illustrate that when the claim is properly developed and presented, that a claimant can secure benefits without even having to wait years for a hearing.

Why Good Is Not Good Enough

When applying for SSD benefits, the goal should not simply be obtaining benefits. Rather, the goal should be obtaining benefits as quickly as possible. Since attorneys get paid 25% of the retroactive benefits in an SSD case, the sooner you get your benefits, the less you have to pay your attorney. An application was approved today that illustrates this point.

The claimant suffers from Parkinson’s. Claims involving neurological disorders like Parkinson’s and Multiple Sclerosis are difficult cases to win because claimants go into remission, and diagnoses and treatment frequently are murky. Under the Social Security law, as long as a treating physician’s disability opinion is well supported and uncontradicted, SSD benefits should be approved. Nonetheless, most claims, and Parkinson’s claims in particular, are usually denied initially.

I was able to get a very supportive report from one of the claimant’s treating neurologists. Nonetheless, I did not rest there. The claimant was also treating with a second neurologist, from whom I was also able to obtain a very supportive report. Each report was submitted together with actual treatment records. The claimant’s application was approved in only four months. Based on my conversations with the disability analyst reviewing the claimant’s application, the rapid approval was due to the fact that the claimant submitted not one, but two very good reports from her treating specialists.

Simply put, it pays to make sure that your attorney has a record of aggressively securing benefits at the earliest point in time. If the claim had been denied initially, then the claimant would have owed 25% of each month’s benefit as an attorney fee until the application were finally approved.

Retaining A Vocational Expert

Many claimants and their attorneys overlook the importance of vocational evidence, and focus solely on the medical evidence. That can be a critical mistake, as illustrated in a Social Security claim that was approved today.

The claimant 56 years old and had a limited 8th grade education. The only relevant job the claimant had was that of a jewelry polisher, which is a sedentary occupation. His primary problem was his inability to use his hands. Testing revealed chronic and bilateral median neuropathy of the wrists and bilateral ulnar neuropathy of the elbows. The treating doctor said that the claimant’s loss of sensation and pain in both hands would be aggravated if the claimant resumed working, and he concluded that the claimant could not lift or carry more than 5 pounds. The problem was that there was no diagnostic evidence relating to the claimant’s ability to sit.

I directed the claimant to a vocational expert, who submitted a report concluding the claimant could not perform his past relevant work. More importantly, the vocational expert explained that the claimant’s lack of bilateral manual dexterity precluded him from performing any unskilled sedentary work. Consequently, even though there was no diagnostic evidence showing that the claimant had a condition that could limit his ability to sit, he was found totally disabled from any type of substantial gainful activity.

Combined Effect of Ailments

Sometimes people do not consider filing for disability benefits because while they may have many problems, no single one is very serious. That would be a mistake. In fact, even if you applied for benefits, and were denied on the grounds that no one condition is severe enough to be disabling, that still should not deter you from you appealing.

I have a 45 year old, college educated client who had been diagnosed with bronchitis, fibromyalgia, chest pain, bilateral carpal tunnel syndrome, cervical spine radiculopathy and lupus. She applied for Social Security Disability (“SSD”) benefits and benefits under a Disability Insurance Policy (“DI”). While the application for DI benefits is pending on a technical issue, the SSD application had been denied on the grounds that there was no condition that is disabling.

The claimant’s symptoms were insomnia, chronic coughing, dizziness, arthralgias, bilateral arm pain, neck pain, fatigue, stress, left hand numbness, and resultant depressed mood from her various ailments. I conceded that none of the claimant’s problems were individually disabling, but I argued that the combined effect of all of the claimant’s problems eliminated virtually any available job. The judge agreed and the claimant was awarded over two years of retroactive benefits, in addition to monthly benefits going forward.

If you stop working before retirement age for any medical reason, consult with an attorney whose practice is limited to disability law. You may have a right to receive disability benefits without realizing it.

Don’t Be Bullied

Most disability claims are denied initially. Even the statistics from the Social Security Administration (the “SSA”) show that the majority of people who apply for Social Security Disability (“SSD”) are denied initially, and the percentage is significantly higher for claimants who are not represented by an attorney.

An experienced disability attorney knows what type of evidence to submit and arguments to make that increase the chances of an initial approval.

When the SSA is confronted with evidence that overwhelmingly supports a claimant’s application, it frequently approves benefits, but only as of a date later than the claimant requested. The SSA selects an arbitrary onset date in order to reduce the amount of benefits the claimant may receive. When the SSA issues a partially favorable decision, you need to appeal it.

A claimant who just received a partially favorable decision was afraid to appeal the onset date of his disability because the decision indicated that the appealed decision could be unfavorable. That fear is unfounded. While it is possible that an onset appeal could be totally denied at the hearing level, that situation is effectively reserved for situations where evidence of work or fraud comes to light. At the hearing level, the onset date the claimant put in the application is usually approved because greater weight is given to the opinion of the treating doctor, which is normally ignored at the initial level.

Failing to appeal an arbitrary onset date is throwing away money that you are entitled to receive. Before being satisfied with a partially favorable decision, discuss the matter with an attorney who can advise you what is at stake. For example, an earlier onset date could immediately entitle you to Medicare, which you may have to wait for if you received a partially favorable decision.

Don’t Believe Everything You’re Told

Just because judges have denied your applications for Social Security disability benefits doesn’t prove that you are not entitled to receive them. I received a decision approving a client’s application yesterday even though her applications had already been denied twice before she retained me. This time, the judge approved her application without even a hearing. The difference this time was that the claimant did not rely on the Social Security Administration (the “SSA”) to collect the medical evidence for her. I had the claimant get medical reports assessing her to work ability from three doctors, including the pain management specialist who had been treating her for only a year. I was able to get that doctor to give an opinion that the claimant lacked the ability to work even before he started treating the claimant. That retrospective opinion was critical to the claimant obtaining her benefits.

The SSA had not requested any medical evidence from the pain management specialist even though the SSA knew about the treatment. The claimant had been told that the pain management doctor was unimportant because he began treating well after the date the claimant asserted she became disabled. Before you consider giving up potential disability benefits make sure you understand all the facts, and don’t accept what the SSA tells you.

NYCERS and SSD

The key to establishing a claimant’s inability to work and entitlement to benefits is usually demonstrating the severity of the medical conditions at issue. One of the keys to establishing the severity of a medical condition is obtaining opinions from the treating doctors regarding the claimant’s functional capacity. Showing that a claimant lacks the functional capacity to perform relevant work is at the core of most disability claims.

I represent a claimant seeking disability benefits from the New York City Employees’ Retirement System (“NYCERS”) and the Social Security Administration (“SSA”). The disability programs may have different standards, but each still shares the fundamental requirement of medical proof regarding the inability to work.

I secured functional capacity assessments from four of the claimant’s treating physicians for submission to the SSA. NYCERS provided a form for the claimant to have one of her doctors complete. However, after submitting that form, NYCERS informally advised the claimant that her application would be denied. Before receiving an official denial of her NYCERS claim, I submitted the functional capacity assessments from the claimant’s four treating physicians. NYCERS officially approved the claimant’s application today.

It makes sense to consider all medical in connection with a disability claim regardless of what may be minimally required. If you have disability claims with different attorneys, such as a workers compensation attorney and a long term disability attorney, make sure each receives the medical records in the other’s possession. Similarly, if you also have a personal injury claim, make sure your disability attorney has all the medical records that your personal injury attorney has.

Tough Cases Can Be Won

Many of my clients have been told by other people not to bother applying for Social Security Disability (“SSD”) benefits before they turn 50 or 55. While it may be difficult to get SSD benefits approved if you are a younger person, or a person who has a college education, that does not mean that you should wait to file for them.

A college education engineer in his early 40s came to me after his SSD application was denied. He had been told that because he was considered young his chances of getting SSD were little to none. The claimant was surprised because he had submitted medical records evidencing his spine surgery and impaired immune system. I submitted opinion evidence from several treating sources regarding the severity of those impairments. The claimant’s application was approved on the record, without having to wait for a hearing.

If a case is prepared properly, a younger person can obtain SSD benefits, and may be able to do so even without needing to attend a hearing. When it comes to your claim do not rely on generalities; rather, consult with an experienced disability attorney.

Appealing A Partially Favorable Decision

When faced the State Agency handling claims for the Social Security Administration (the “SSA”) is faced with such overwhelming medical evidence that it simply cannot deny an application, it frequently issues a “partially favorable decision” a (“PFD”). A PFD approves benefits, but only after the date the claimant alleges disability, which reduces the amount of benefits awarded.

Claimants frequently are afraid to appeal a PFD because they fear the SSA will decide that no benefits at all should be awarded. Under normal circumstances, a PFD is not overturned in favor of a complete denial of benefits. To the contrary, my appeals of PFDs have resulted in the SSA awarding fully favorable decisions.

I was finally able to convince a client to pursue an onset appeal. A substantial five figure sum was at stake. The client’s internist deferred to the claimant’s arthritis specialist for assessing the claimant’s functionality, who had only been treating the claimant for about a year. The specialist concluded that the claimant had a less than sedentary work capacity. Because the arthritic conditions are progressive in nature, the specialist was able to extrapolate an onset date well before his started treating the claimant.

The SSA accepted the specialist’s opinion, and I received the fully favorable decision today. If you become disabled and the medical evidence supports your onset date, don’t compromise your benefits for fear of the SSA issuing an unfavorable decision.