New York Social Security Disability Lawyer Blog

Social Security Disability Claims for People Who Suffer from a Combination of Impairments - Henderson v. Commissioner of Social Security Administration

Thu, 10 May 2012 09:20:10 -0500

In order to be eligible for Social Security disability benefits, a claimant must generally prove that he or she either hasn't worked or it is foreseeable that he or she will be unable to work of one year or more due to physical or mental impairment. The claimant's disability need not be based on one single impairment, however. Often, a claimant is rendered disabled by a combination of impairments which - individually - may or may not affect the person's ability to work. In Henderson v. Commissioner of Social Security Administration, the District Court for the Eastern District of Texas explains how the Social Security Administration (SSA), its judges and federal courts should consider a disability claim based on a combination of impairments.

Plaintiff Donna Henderson filed a Social Security disability benefits claim, alleging that she was unable to work due to degenerative disc disease, coronary disease, depression and cognitive problems resulting from a stroke. The SSA denied the claim initially and upon reconsideration. Ms. Henderson requested a hearing and, over time, went through three hearings and at least two successful appeals. After the third administrative hearing, an SSA ALJ determined that Plaintiff was not disabled for benefits purposes because, although the disc disease preventing her from performing any previous jobs, Plaintiff retained the residual functional capacity to perform a reduced range of light work, including jobs such as information clerk, "office helper" and mail room clerk.

After an unsuccessful appeal to the Appeals Council, Ms. Henderson filed suit in Federal Court where her case was turned over to a Magistrate Judge for review and recommendation. In the recommendation, the Magistrate agreed with Plaintiff that an ALJ considering a claim by a person with more than one impairment "is required to consider the combined effects of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." In other words, the ALJ has to look at the effect of the combined impairments, rather than the effect of each impairment individually. In so doing, the ALJ must consider the entire record, the Magistrate added. If the ALJ finds that the claimant suffers from "a medically severe combination of impairments," the ALJ must consider the combination of impairments throughout the decision process.

Notwithstanding that, the Magistrate found that the ALJ properly considered each of Plaintiff's alleged impairments and that the decision that she retained the ability to perform certain work was based on substantial evidence. As a result, the Magistrate recommended that the ALJ's decision be affirmed.

New York Court Rejects Social Security Judge's Decision in Disability Case, Citing Treating Physician Rule - Olenick v. Astrue

Wed, 09 May 2012 14:13:59 -0500

If the Social Security Administration (SSA) were to compile a list of the most important rules for its Administrative Law Judges (ALJs) to follow in considering a disability claim, somewhere near the top would be the treating physician rule, which provides that an opinion by a claimant's treating physician is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in a claimant's record. In Olenick v. Astrue, the District Court for the Eastern District of New York explains that an extension of the rule requires an ALJ who rejects a treating physician's opinion to properly explain the reasoning for this decision.

Plaintiff Karen Olenick filed a claim for Social Security disability benefits, asserting that she's unable to work due to back pain resulting from a 2002 injury sustained while working as a "packager/picker" for a vitamin manufacturer. The SSA denied the claim. Following an administrative hearing, an SSA ALJ found that Plaintiff was not disabled for benefits purposes because, although she could not return to her previous career, she retained the ability to perform a full range of sedentary work.

On appeal, Plaintiff argued that the ALJ improperly discounted the opinion of her treating physician, Dr. Nolan Tzou. An anesthesiologist specializing in pain management, Dr. Tzou began treating Plaintiff one year after she sustained the injury. He diagnosed her with cervicalgia, displacement of a cervical disc, and an intervertebral disc disorder and prescribed pain medication. Although Plaintiff began working as a Target sales clerk in 2003, the following year Dr. Tzou found that she was "totally disabled" as a result of ongoing back pain.

In reversing this decision, the court determined that the ALJ failed to give sufficient reasoning for rejecting Dr. Tzou's opinion. "Where an ALJ declines to accord controlling weight to the medical opinion of a treating physician, he must give good reasons for refusing to do so," the court noted, citing its 2011 opinion in Taub v. Astrue. the court held that where an ALJ rejects or fails to give controlling weight to the opinion, the case must be remanded, even where the ALJ's ultimate decision is supported by substantial evidence. This requirement, according to the court, is at least partially designed "to let claimants understand the disposition of their cases, since a claimant might be especially bewildered when told by an administrative bureaucracy that she is not disabled, unless some reason for the agency's decision is supplied."

In this case, the court found that the ALJ failed to give "good reasons" for rejecting Dr. Tzou's opinion. In fact, according to the court, it appears that the ALJ gave no reasons at all for this decision, adding "assuming it was not entirely overlooked." Thus, the court remanded the case back to the ALJ for further proceedings with instructions that the judge consider Dr. Tzou's opinion.

Vocational Experts and Hypothetical Questioning in Social Security Disability Cases - Sherwood v. Astrue

Tue, 08 May 2012 14:30:04 -0500

A Social Security Administration (SSA) Administrative Law Judge (ALJ) reviewing a disability benefits claim will often call on a Vocational Expert (VE), a vocation rehabilitation professional who provides advice to an ALJ regarding a claimant's ability to perform any type of work activity, to testify as to the kind of work - if any - that a hypothetical person with the same limitations as the claimant can do. In Sherwood v. Astrue, the District Court for the Middle District of Florida explains that this hypothetical questioning must accurately reflect the claimant's full range of limitations.

The SSA denied Plaintiff Daniel Sherwood's disability benefits claim, in which he asserted that he's unable to work due to depression and mental illness. A high school graduate who previously worked as a grocery store stock clerk and cashier, Plaintiff was 54 years old at the time of his hearing before an SSA ALJ. The ALJ determined that Sherwood was not disabled because, although he suffers from severe impairments in the form of depression and personality disorder, he retained the residual functional capacity (RFC) to perform previous work as a stock clerk.

The ALJ's decision was based largely on the testimony of a VE who, according to the court, indicated that a "person of Plaintiff's age, education and work history who has no exertional limits, who can follow simple instructions to complete simple tasks that are repetitive, with no more than frequent interaction with coworkers and supervisors; with any interaction with the public being brief, informational, and superficial, involving no decision making or judgment call authority" could perform his previous job. The VE further testified, however, that "if the [hypothetical] individual had difficulty getting along with others...such that his interaction should be limited to less than occasional, there would be no jobs available."

On appeal, the District Court reversed the ALJ's decision, finding that the RFC determination was not supported by substantial evidence. "While the ALJ sought to rely on the testimony of the VE from the hearing, such was offered on a hypothetical that assumed a different set of limitations" than those from applicable to Plaintiff, according to the court. Specifically, the hypothetical questioning that the ALJ posed to the VE assumed that the individual was capable of "frequent" interaction with co-workers and supervisors. Before reaching this questioning, however, the ALJ determined that Plaintiff was capable of only "infrequent" interaction. Accordingly, since the ALJ's decision was based solely on the VE's testimony - which was in turn based on an inaccurate hypothetical - the court found that the decision was not supported by substantial evidence.

The court remanded the case back to the ALJ for further proceedings. Improper hypotheticals to the VE are often part of our own Federal Court arguments. but typically we argue that the ALJ used one set of limitations when another more accurately reflects the claimant's problems. It is rare that the RFC relied upon by the ALJ is as different from what the medical evidence supports as we see here.

New Jersey Court on "Objective Medical Evidence" in Social Security Disability Cases - Bokor v. Commissioner of Social Security

Sun, 06 May 2012 17:21:41 -0500

In discussing the law associated with Social Security disability benefits on this blog, we often refer to evidence: medical records, court documents, witness testimony and all of the other things that a disability claimant can present to the Social Security Administration (SSA) in attempting to prove his or her claim. In Bokor v. Commissioner of Social Security, the U.S. District Court for the District of New Jersey explains that all of this is well and good, but a claimant must present "objective medical evidence" in order to prove that he or she is eligible for benefits.

The SSA denied Plaintiff Linda Bokor's disability benefits claim, in which Bokor asserted that she's unable to work due to multiple disc herniations, fibromyalgia, depression and a left shoulder injury. Following a hearing an SSA Administrative Law Judge (ALJ) found that Plaintiff is not disabled for benefits purposes because her alleged mental impairment is not supported by evidence and she retains the residual functional capacity to perform a full range of sedentary work.

One of the first steps in reviewing a disability claim is to determine whether the claimant suffers from a severe impairment. In affirming the ALJ's decision, the District Court stated that "the claimant bears the burden of establishing that she suffers from a severe impairment or combination of impairments." Furthermore, "[a]n impairment is not severe if it does not significantly limit a claimant's physical or mental capacity to perform basic work activities." Severity, according to the court, must be proven with objective medical evidence. Subjective complaints of pain and other symptoms is not sufficient.

In this case, Plaintiff failed to provide objective medical evidence supporting her claim that she suffers from a severe mental impairment. While Plaintiff provided treatment records showing that she complained of difficulty sleeping and anxiety-related symptoms, "there is no record of any diagnosis relating to her mental health," the court noted. In fact, she failed to present any evidence of mental health treatment, despite testifying that she had received such treatment.

The court also affirmed the ALJ's finding that Plaintiff's testimony regarding the intensity, persistence and limiting effects of her impairments was not credible because it was inconsistent with the record. Specifically, the ALJ "pointed to the largely stable clinical findings in the record" as well as the lack of objective medical evidence to the contrary. As a result, the court concluded that the ALJ's decision denying disability benefits to Plaintiff was supported by substantial evidence.

Submitting "New" Evidence on Appeal in Social Security Disability Cases - Hood v. Commissioner of Social Security

Fri, 04 May 2012 17:00:21 -0500

In Hood v. Commissioner of Social Security, the District Court for the Northern District of New York sheds some light on important issues regarding both conflicting medical evidence as well as that submitted late in the Social Security disability claim process.

John Hood filed a claim for Social Security disability benefits, asserting that he was unable to work due to a respiratory impairment. The Social Security Administration (SSA) denied the claim. Following an administrative hearing in Albany, an SSA Administrative Law Judge (ALJ) found that Hood was not disabled because, he retained the residual functional capacity (RFC) to perform light work and, therefore, a number of jobs currently existing in the national economy.

On appeal, Hood argued that the ALJ improperly discredited his testimony regarding the intensity, persistence and limiting effects of the symptoms related to his impairment. "It is the function of the [SSA] Commissioner, not reviewing courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant" the court noted, quoting the Second Circuit Court of Appeal's 1983 ruling in Carroll v. Secretary of Health and Human Services. "If there is substantial evidence in the record to support the Commissioner's findings, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." This, according to the court, is largely because the ALJ has the benefit of directly observing the claimant's demeanor "and other indicia of credibility."

In this case, the court found that the medical evidence contradicted Plaintiff's testimony regarding the debilitating nature of his impairment. This evidence included the opinions of both a consultative examiner and a State Agency consultant, both of whom concluded that Plaintiff's impairment did not reduce his RFC, except that he should avoid irritants like dust and chemical fumes.

Nevertheless, the court remanded the case back to the ALJ for consideration of other medical evidence presented to the SSA's Appeals Council following the ALJ's decision. Specifically, Plaintiff submitted treatment notes and a "medical source statement" from his treating physician indicating that Plaintiff's symptoms were consistent with chronic obstructive pulmonary disease (COPD). As a result of his impairment, the physician concluded that Plaintiff could not stand for more than one hour during an eight hour shift and could not perform daily activities such as shopping, walking on rough surfaces and using public transportation.

The Duration Requirement for Mental Impairments in a Social Security Disability Case - Peterson v. Commissioner of Social Security

Thu, 03 May 2012 17:21:25 -0500

In Peterson v. Commissioner of Social Security, a federal magistrate judge explains that a person suffering from one or more severe mental impairments may be eligible for Social Security disability benefits not only if a single impairment has lasted for at least one year, but also if in combination, his limitations can be expected to last that long at a level that makes him unable to work.

In March 2008, Plaintiff Bennie Peterson filed a claim for Social Security disability benefits, asserting that he was unable to work due to HIV, a back injury and a history of substance abuse as well as bipolar disorder, depression and personality disorder. After the Social Security Administration (SSA) denied his claim, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). The ALJ found that Plaintiff is not disabled for benefits purposes because, although he suffers from severe physical impairments, Plaintiff retained the residual functional capacity (RFC) to perform a wide range of sedentary work. The ALJ additionally determined that Plaintiff's mental impairment had fully resolved by November 2008.

Specifically, the ALJ determined that Plaintiff failed to establish that he suffered from a severe mental impairment for 12 continuous months. On appeal, however, the Magistrate Judge found that the ALJ applied the incorrect standard. Although the Eleventh Circuit has not weighed in on the issue, the Magistrate noted that "a plaintiff need not show 12 months of impairment without any periods of remission" in order to prove a mental impairment. Rather, "[t]he duration requirement is satisfied when the disability . . . can be expected to last for a continuous period of not less than 12 months."

This is a very clear portion of the law and the surprise here is that the Appeals Council did not remand the case (before it went to federal Court) on this issue. If the "expected to last" phrase was not part of the law, no one could ever be approved until they were out of work for at least twelve months!! But many cases are decided long before that because the condition or conditions are expected to last 12 months or more.

The court additionally found that the ALJ inappropriately limited his analysis to Plaintiff's bipolar disorder. Dr. Iraj Lou noted that Plaintiff suffered from a possible bipolar disorder in April 2008 and later officially made this diagnosis in September 2008. In July 2008, another doctor - Dr. Orr - diagnosed Plaintiff with "dependent personality traits," which he treated with medication. A third doctor - Dr. Harrell - diagnosed Plaintiff with moderate depressive disorder and a moderate personality disorder also in 2008. The court noted that "[w]hile Dr. Lou determined that the bipolar disorder had resolved as of December 2008, there is no indication in the record that the depressive disorder and personality disorder resolved as of that date." Furthermore, Plaintiff was still taking medication for his mental impairments at the time of the administrative hearing.

According to the court, the ALJ failed to determine whether Plaintiff's depressive and personality disorders continued or were expected to continue for at least one year. As a result, the Magistrate recommended that the case be remanded for further proceedings.

Court Explains How A Person's Age and Previous Claims May Effect His or Her Social Security Disability Claim - Oberg v. Astrue

Mon, 30 Apr 2012 08:57:06 -0500

In Social Security claims, age most often comes into play in determining a person's eligibility for retirement benefits. But age can also be an important factor in determining whether a person is eligible for Social Security disability benefits. In Oberg v. Astrue, the Ninth Circuit Court of Appeals explains how those who review disability claims should account for both a claimant's age and any previous disability benefits claims.

The Social Security Administration (SSA) denied Plaintiff Deborah Oberg's Social Security disability claim for the period ending on July 31, 2003. Plaintiff then filed another claim, asserting disability for the period covering May 23, 2003 to June 30, 2005. The SSA also denied this claim. Following a hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined that Ogden is not disabled for benefits purposes.

On appeal, the Ninth Circuit explained that the SSA's decision on Plaintiff's first claim "is res judicata and creates a presumption that she was not disabled for the present period." Although this presumption does not apply where an ALJ reopens a decision on a prior period of disability, the Court found that this exception was not warranted in the present matter because the ALJ "made it clear that he was not reopening the prior decision when he plainly stated that the presumption would apply and also pointed out that nothing had changed since the prior adjudication." That the ALJ considered the record of the prior decision did not mean that he reopened the prior disability period, according to the Court.

Nevertheless, the Court found that the ALJ erred in failing to note that Plaintiff changed age categories after the first decision. The SSA sorts disability benefits claimants into specific age categories which it then uses to determine the claimant's ability to perform work in spite of any physical or mental limitations. A claimant under 50, for example, is considered a "younger person." Between 50 and 54, a claimant is a "person closely approaching advanced age" and even if the medical condition remains the same the Medical -Vocational Guidelines (usually referred to as the "Grids") may direct a finding of disabled in the oldre age category and not the younger.

In this case, Plaintiff went from being classified as a "younger person" to a "person closely approaching advanced age" during the time between her first and second claims. "A change in age category is material for the purposes of determining a person's ability to do other work in the economy," the Court held, adding that the age category change could have altered various aspects of the ALJ's decision including the residual functional capacity determination and vocational expert testimony.

Indeed, SSA regulations provide "[i]f you are closely approaching advanced age (age 50-54), we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to adjust to other work." As a result, the Court remanded the case to the ALJ for further proceedings, taking the claimant's age category into account.

Social Security Disability Funds to Run Out in Four Years

Tue, 24 Apr 2012 14:02:38 -0500

A new government report released yesterday estimates that the Social Security Disability trust fund will exhaust its reserves in just four years, two years earlier than previously projected. Obviously, this is a disaster for the millions of disabled Americans who apply for disability benefits each year.

I have been saying for years that there are three options to deal with this: raise taxes, raise the entitlement age (for retirement), and means testing. The corollary to means testing for Social Security Disability is to raise the age brackets in the Grids, the Vocational-Educational guidelines under which many cases are decided. That is, what used to lead to a finding of disabled say at age 50 or above would now not be disabling until 54 or 55.

In 2011, the payroll tax was lowered in order to spur economic growth. Unfortunately, cutting the payroll tax, while palatable to working Americans, is clearly part of why the date for "exhausting" the trust funds keeps getting closer. It really is time for the government to face up to this and I believe that they are going to do a little bit of all three potential fixes, though the one that "works" best is not only reinstating but further raising the payroll tax, because it guarantees more money is paid into the system. The age and means testing save money but the amount that is actually saved is never certain.

Although today's news today is grim, I see this as nothing new. The time for change was about ten years ago but perhaps this current scare will finally force some long overdue action on the part of the politicians.

Lew Insler, Esq.

Court: Judge Reviewing Social Security Disability Benefits Claim Must Consider Each of the Claimant's Alleged Impairments - Black v. Astrue

Thu, 29 Mar 2012 20:52:22 -0500

In order to be eligible for Social Security disability benefits, a person must generally be unable to work for one year or more due to a physical or mental impairment or a combination thereof. As experienced Social Security disability lawyers representing clients in New York, New Jersey and Connecticut, we understand that it's often not one particular impairment, but the combined debilitating effects of a number of impairments that prevent many people from being able to work. In Black v. Astrue, the Ninth Circuit Court of Appeal explains that a judge considering a benefits claim must take into account each of a claimant's alleged impairments in determining whether the claimant is disabled and therefore eligible for benefits.

The Social Security Administration (SSA) denied Plaintiff Kristina Black's claim for Child's Insurance Benefits and Supplemental Security Income, in which she alleged disability as a result of depressive disorder with psychotic features, substance abuse, obesity, chronic back pain and anxiety disorder. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined that Plaintiff was not disabled for benefits purposes. Specifically, the ALJ determined that although Plaintiff suffered from severe impairments in the form of major depressive disorder and substance abuse, she nevertheless retained the residual functional capacity (RFC) to perform her previous job as a dishwasher as well as other jobs existing in significant numbers such as night cleaner.

On appeal, however, the Ninth Circuit reversed the ALJ's decision, finding that the judge failed to consider whether Plaintiff's anxiety disorder also constitutes a severe impairment. Although Plaintiff alleged disability based in part on anxiety disorder and her treating physician diagnosed Plaintiff as suffering from this impairment, the ALJ disregarded the diagnosis without sufficient reasoning, according to the court.

"Substantial evidence does not support the ALJ's conclusion that the anxiety disorder is not a severe impairment in the absence of any mention of the disorder," the court ruled. Furthermore, the court concluded that it could not determine whether this error was harmless because the ALJ did not explain the reasoning for rejecting the evidence and therefore the court was unable to determine whether the ALJ would have found Plaintiff to have retained adequate RFC to perform jobs available in the national economy even if the anxiety disorder was taken into account.

As a result, the court reversed the ALJ's decision and remanded the case back to the ALJ, instructing the ALJ to consider all of the relevant evidence.

Court: Social Security Disability Judge Can't Reject Treating Physician's Opinion Without Medical Evidence - Carter v. Astrue

Mon, 19 Mar 2012 22:33:38 -0500

As experienced Social Security disability lawyers, we know that a person seeking disability benefits can go a long way in proving his or her case by presenting the opinion of a treating doctor. In Carter v. Astrue, the District Court for the Western District of Arkansas explains that a Social Security judge reviewing a claim can't simply disregard such evidence without good reason.

The Social Security Administration (SSA) denied Plaintiff Dayna Carter's disability benefits claim, in which Carter asserted that she's unable to work due to the effects of a brain aneurism as well as severe fatigue and depression. In September 2009, Plaintiff appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ). The ALJ found that although Plaintiff suffered from severe impairment resulting from the brain aneurysm, she nevertheless retained the residual functional capacity (RFC) "for a wide range of light work where interpersonal contact is incidental to the work performed, tasks are learned and performed by rote with few variables and little judgment required, and the supervision is simple and direct."

The ALJ further determined that Plaintiff could not return to her previous jobs, but could perform other work existing in significant numbers in the national economy such as jobs as a cashier and machine operator. This decision was based largely on testimony by a vocational expert (VE) - a rehabilitation professional contracted by the SSA to advise an ALJ regarding a disability claimant's ability to perform work - who stated that a hypothetical individual with Plaintiff's limitations could perform the cashier and machine operator jobs.

The District Court reversed the ALJ's decision on appeal, however, finding that it wasn't supported by substantial evidence "because the ALJ failed to properly analyze the opinion of Plaintiff's treating physician." In determining a claimant's RFC, the court noted that "[t]he ALJ should consider all the evidence in the record...including the medical records, observations of treating physicians and others, and an individual's own description of his limitations." Furthermore, according to the court, it is the ALJ's responsibility to ensure that the RFC determination is supported by some medical evidence regarding the claimant's ability to function in a workplace environment.

Dr. Paul Tucker treated Plaintiff for the effects of the aneurism from 2005 to 2008. In a 2008 RFC questionnaire, Dr. Tucker indicated that: 1) Plaintiff's fatigue would frequently interfere with her attention and concentration; 2) she would need to take unscheduled breaks every two hours during the work day; and 3) she would likely miss approximately four days a month as a result of her impairments.

Benefits from the Federal Public Safety Officers Benefit Act (PSOB) Helps Disabled Firefighters, Police, and First Responders

Mon, 12 Mar 2012 14:47:19 -0500

Surprisingly few people are aware of a Federal program that can provide huge benefits to disabled police, firefighters and other first responders or to their families in case of death. It's called the Public Safety Officers Benefit Act (PSOB), and recently we were successful in obtaining these benefits for one of our clients.

PSOB provides a one-time benefit to eligible public safety officers who were permanently and totally disabled as a result of a catastrophic injury sustained in the line of duty on or after November 29, 1990. Injuries must permanently prevent officers from performing any gainful work in the future.

PSOB also provides support for higher education to eligible spouses and children of public safety officers who died in the line of duty or were catastrophically disabled in the line of duty.

The program is administered by the Office of Justice Programs, a branch of the Department of Justice. With a small staff, limited budget and a very detailed application process, decisions may be long in coming. But the benefits are quite substantial: over $300,000 for any death or disability since 2007, with the exact amount depending on the date of death or injury.

30 years ago, when I began advising my Workers' Compensation clients to also file for Social Security Disability a common response was, "I never heard of that." While almost everyone knows about Social Security Disability today, I would be willing to bet that I would get the same response from most people about PSOB.

For more information about PSOB visit the government website by clicking here, and if you know anyone who might be eligible feel free to send them our way!

Lewis B. Insler, Esq.

Suing to Speed Up A Social Security Disability Decision - McDonald v. Astrue

Tue, 06 Mar 2012 22:28:13 -0500

A person whose Social Security disability benefits claim is denied generally has the right to appeal the decision in a federal court. But what about when the bureaucrats charged with reviewing disability claims drag their feet? Can the claimant sue to force a decision? The Seventh Circuit explains in McDonald v. Astrue.

Plaintiff Michelle McDonald filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits in late 2008. In her claim, Plaintiff asserted that she's unable to work due to back injuries stemming from a medical procedure. After the Social Security Administration (SSA) denied her application initially and on reconsideration, Plaintiff appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ) in September 2010. Following this hearing, the SSA informed Plaintiff that it would hold a supplemental hearing in April 2011, at which time she could present the results of a consultative examination (performed by an independent physician contracted by the SSA) and other medical evidence.

One day before the scheduled hearing, Plaintiff filed a complaint against the SSA in federal district court asking the court to order the SSA to approve her claim and begin paying her disability benefits. On motion by the SSA, the district court dismissed the action, ruling that its power is limited to reviewing final decisions by the SSA and that the ALJ had not yet reached a final decision on Plaintiff's claim. The district court did, however, grant Plaintiff leave to refile once she received the Commissioner's final ruling.

Plaintiff subsequently failed to appear at the supplemental administrative hearing. The ALJ dismissed her request for a third hearing, finding that Plaintiff did not establish good cause for failing to appear at the previous hearing. At this point, Plaintiff filed a motion in district court arguing that the ALJ's dismissal of her third hearing was misconduct and retaliatory. The district court denied this motion.

The Seventh Circuit upheld the district court's dismissal on appeal, rejecting Plaintiff's argument that she has a Constitutional due process right to have her benefits claim adjudicated by the SSA in less than 270 days, the agency's stated benchmark for reaching a decision in a hearing case. In so doing, the court noted that although a plaintiff must exhaust all administrative remedies - in other words receive a final decision from the SSA - before filing an action for benefits in federal court, this requirement is waived "when the claimant presents a colorable constitutional challenge" regarding the SSA's claim review. Citing the Supreme Court's decision in Heckler v. Day, however, the court further ruled it does not have the power to impose mandatory deadlines for processing a Social Security claims. Furthermore, the 270-day period, according to the court, is merely a goal, not a hard deadline. As a result, the court held that Plaintiff does not have a Constitutionally protected tight to have her claim decided on within 270 days.

New York Court on ALJ's Responsibility to Develop the Record in Social Security Disability Case - Tirado v. Astrue

Tue, 06 Mar 2012 13:50:11 -0500

As experienced Social Security disability attorneys who have represented thousands of clients in disability claims, we know that there's no such thing as a sure thing when it comes to obtaining disability benefits. As the Eastern District of New York's recent decision in Tirado v. Astrue makes clear, not even getting hit by a subway ensures that a person will ultimately be deemed eligible for benefits. More importantly, perhaps, the court makes clear that an ALJ reviewing this and other claims must consider a fully developed factual record before ruling on the claim.

The Social Security Administration (SSA) initially denied Plaintiff Edwin Tirado's claim for Social Security disability benefits, in which he alleged that he was unable to work due to knee and shoulder injuries sustained when he was hit by a subway in 2002. After a hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that Plaintiff was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to perform a range of light work.

The ALJ's decision was largely based on her conclusions that the Plaintiff worked as a furniture deliveryman for almost two years following the subway accident, that he had no record of treatment for his injuries since 2004 and that he was not taking prescribed medications. She also considered the report of a consultative medical examiner who stated that Plaintiff suffered only mild limitations. The ALJ further ruled that Plaintiff's statements concerning the intensity, persistence and limiting effects of his injuries were not credible to the extent they were inconsistent with the ALJ's RFC assessment.

On appeal, the Eastern District reversed the ALJ's decision, finding that the judge failed to adequately develop the record by failing to contacting Plaintiff's treating physician to obtain information about treatment. In so doing, the court noted that "[t]he ALJ generally has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings," particularly where the record lacks adequate information from the claimant's treating physician. Although Plaintiff visited his primary care physician for chronic back pain and swollen knees in 2006 and 2007 and the doctor prescribed Plaintiff with a cane, brace and pain medication to treat these injuries, the ALJ neglected to solicit an opinion from this doctor regarding the claimant's functional limitations.

According to the court, the ALJ's failure to solicit the doctor's opinion was particularly ill-advised in light of the fact that the ALJ noted that the record was lacking in medical evidence covering 2006 and 2007 and took this absence of medical evidence into account in assessing Plaintiff's RFC. The ALJ, therefore, could not have based her RFC decision on adequately substantial evidence, according to the court. "Where there are gaps in the administrative record, or the ALJ has applied an improper legal standard, remand is the appropriate remedy to permit additional consideration," the court ruled, sending the matter back to the ALJ.

Interpreting and Weighing Claimant Testimony in a Social Security Disability Hearing - Muniz v. Astrue

Tue, 06 Mar 2012 12:43:38 -0500

We've mentioned in previous posts that a Social Security Administration (SSA) Administrative Law Judge (ALJ) considering a disability claim is often called upon to weigh the credibility of various parties, including the claimant. In Muniz v. Astrue, the District Court for the Northern District of Ohio joins a growing line of federal courts whose ruling are to remind an ALJ that if the judge discredits all or part of a claimant's testimony, he or she must provide adequate reasoning for doing so.

Plaintiff Jose Muniz, a 56-year-old with a tenth grade education who previously worked as brick layer and cement finisher, filed a claim for Social Security disability benefits, asserting that he's unable to work due physical impairments resulting from diabetes, mellitus, cataracts, hypertension and an affective disorder. The Social Security Administration (SSA) denied the claim.

Plaintiff then appeared before an SSA ALJ at an administrative hearing. According to the court, Plaintiff testified at the administrative hearing that "[h]e does not stand since he became sick (due to diabetes) and, if he stands in place a lot, he has to rub his leg from time to time." He also stated that he cannot hear out of his right ear and can only see shadows out of his left eye. Although Plaintiff could not return to his previous work, the ALJ found that he was nevertheless able to perform "a limited range of medium work" and, therefore, was not disabled because he could perform a significant number of jobs in the national economy. The SSA's Appeals Council denied Plaintiff's request that it review the ALJ's decision.

On appeal, the District Court overturned the ALJ's decision, finding that it was not supported by substantial evidence. The court noted that an ALJ's decisions is "not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion." In this case, however, the court ruled that the ALJ both mischaracterized Plaintiff's hearing testimony and failed to explain why he discredited portions of the testimony concerning Plaintiff's physical limitations.

SSA regulations state that, in order to be capable of performing medium work, a person must be able to frequently ("from one-third to two-thirds of the time") lift or carry objects of up to 25 lbs. in weight. While the ALJ interpreted Plaintiff's testimony as indicating that he can lift 20 lbs. frequently, the court found that this interpretation was not supported by the record. Rather, Plaintiff "unequivocally testified that he thought maybe he could lift twenty pounds for one or two hours, but not six (the amount of time required to qualify as "frequent") because he could not walk for that long," according to the court.

Tarrytown Man Sentenced in Social Security Disability Scheme

Thu, 01 Mar 2012 23:26:27 -0500

As experienced Social Security disability attorneys who have represented thousands of clients in New York, New Jersey and Connecticut, we do everything within our power to fully and vigorously assist clients in seeking disability benefits. What we will not do, however, is help a client commit fraud. Not only is it illegal and unethical to try to pull one over on the Social Security Administration (SSA), it can also land you in some pretty hot water. One would-be Social Security disability claimant recently learned this the hard way.

Guillermo Hernandez, 50, was recently sentenced to three years in jail for using another man's identity to obtain more than $55,000 in Social Security disability benefits over the course of six years.

Lohud.com's Timothy O'Connor reports that "[t]he scheme was uncovered in late 2005, when [Guillermo] Henriquez Pichardo complained to the Social Security Administration after being informed of the benefits that he had neither sought nor received." The SSA immediately stopped paying the monthly benefits and the agency's Inspector General's office opened an investigation.

It appears that Mr. Hernandez obtained a false Social Security card bearing Mr. Henriquez Pichardo's name and Social Security number, which he used to obtain a New York driver's license. Investigators noticed that the man in the license photo, a copy of which was included in Hernandez's false benefits claim, was not Mr. Henriquez Pichardo. In July, Hernandez plead guilty to mail fraud and aggravated identity theft charges.

Given our decades of experience in the Social Security disability claims process, we are well aware that the SSA often gets it wrong when it comes to reviewing benefits claims. In fact, the SSA initially denies the majority of claims filed, including many with merit. We are also well aware that the SSA doesn't take kindly to getting it wrong the other way - that is, paying benefits to someone who's ineligible - particularly when the mistake is a result of claimant fraud. Last year alone, the SSA's Inspector General's office "received over 103,000 allegations of fraud, effected over 1,300 criminal prosecutions, and obtained a return of over $410 million in investigative accomplishments, comprised of over $81 million in SSA recoveries, restitutions, fines, settlements, and judgments, and over $328 million in projected SSA savings," according to its 2013 budget report.