New York Social Security Disability Lawyers Blog

Treating Physican Opinion and the ALJ's Duty to Develop the Record - Funk v. Astrue

Mon, 26 Nov 2012 19:28:31 -0500

In Social Security Disability cases, a treating physician should be the claimant's best friend. Because a person's treating physician has had the opportunity to examine the person over an extended period of time, the physician's opinion is afforded greater weight than that of other sources. In Funk v. Astrue, a New York court ruled that this opinion is so important that a Social Security judge can't properly rule on a benefits claim without it.

Plaintiff Rebecca Funk asserted in her claim for Social Security Disability benefits that she was unable to work due to fibromyalgia, seizure disorder and migraine headaches, among other impairments.

The Social Security Administration (SSA) denied the claim and and held a hearing before an SSA Administrative Law Judge (ALJ). Despite finding that Plaintiff suffered from severe impairments, the ALJ concluded that she was not disabled because there were jobs existing in significant numbers in the national economy that Plaintiff could perform with this RFC.

On appeal, the District Court for the Northern District of New York reversed the ALJ's decision, ruling that that ALJ erred in failing to contact Plaintiff's treating physicians for more information on her ability to work.

"An ALJ has an obligation to develop the administrative record, including, in certain circumstances, recontacting a source of a claimant's medical evidence, sua sponte, to obtain additional information," the Court explained. In the event that the record before an ALJ does not include a Medical Source Statement ("MSS") or RFC Assessment - each of which details a doctor's opinion regarding the claimant's ability to work - from the claimant's treating physician, the Court further explained that the ALJ has a duty to contact the physician in an attempt to obtain this evidence.

Court Again Reminds the ALJ to do His Job Completely - Ashley v. Astrue

Sat, 24 Nov 2012 17:26:31 -0500

In Ashley v. Astrue, the District Court for the Eastern District of Arkansas explains that a person who suffers from COPD may be able to obtain Social Security Disability benefits by showing that he or she meets the Social Security Administration's (SSA's) "listing" for this impairment.

Plaintiff Donald Ashley was 56 years old when he filed a claim for Social Security Disability benefits, asserting that he's unable to work due to emphysema, COPD and neck and spine problems. Ashley previously worked as a carpenter and truck driver and had a ninth grade education.

The SSA denied the claim initially and on reconsideration and Ashley appeared before an SSA Administrative Law Judge (ALJ) at a hearing. The ALJ found that Ashley was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to perform a full range of sedentary work, despite his impairments. While he could not return to his previous jobs, the ALJ found that there were jobs available in the national economy which he could perform.

On appeal, however, the District Court found that the ALJ erred in finding that Plaintiff did not satisfy the SSA's listing for COPD. The Listings describe medical conditions that are so severe that the SSA presumes that any person who satisfies the criteria of a particular listing is unable to perform any gainful activity and is therefore eligible for benefits, regardless of their age, education or past work experience. Only when a claimant's impairment does not satisfy a listing must an ALJ determine separately whether the claimant can perform either previous jobs or other work.

In this case, the Court noted that results of a Dec. 2008 pulmonary function study revealed that Plaintiff had a one-second forced expiratory volume (FEV-1) of less than 1.55, a reading that met the requirements of the COPD Listing. Six weeks later, however, a second study was performed in which Plaintiff's FEV-1 score was much higher, above the listing's range. After comparing the results of the two tests, the technician performing the second test observed that the results of the first test may have been due to "poor initial effort" by Plaintiff. The doctor who perfomed the initial test made no such finding!!

New York Social Security Disability Claimant Shows How Not to Handle an Appeal - Boger v. Astrue

Tue, 20 Nov 2012 08:36:41 -0500

A person whose Social Security Disability benefits claim is denied by the Social Security Administration (SSA) may eventually seek redress from a federal court by filing an appeal. As the District Court for the Northern District of New York explains in Borger v. Astrue, however, simply filing the initial appeal paperwork won't give the claimant much of a chance to get benefits.

The SSA denied Plaintiff Pamela Boger's Disability benefits claim, in which she asserted she was unable to work due to a number of impairments, including fibromyalgia, osteoarthritis, carpal tunnel syndrome and a right knee injury. Plaintiff later appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ), who determined that Plaintiff was not disabled for benefits purposes.

Plaintiff then sought to appeal the ALJ's decision in federal court. A federal appeal of a decision by the SSA is typically commenced by filing a complaint - a short and plain statement indicating the basis of the court's jurisdiction, the allegations and a demand for legal relief - in a federal district court. Plaintiff filed the complaint, alleging that the ALJ's decision was not supported by substantial evidence. The SSA responded by filing an answer.

The court then instructed Plaintiff to file a longer legal brief, laying out her arguments in detail, within 45 days. Plaintiff, who was not represented by an attorney, did not respond within the deadline. The Court extended the deadline another 30 days, but Plaintiff again failed to file the requisite brief.

In granting the SSA's motion for judgment on the pleadings, the Court noted that Plaintiff's failure to file the brief would have been fatal to her appeal in other districts."While courts in our sister Districts have found failure by a Social Security plaintiff to file a brief on the merits to be sufficient grounds upon which to grant a defendant's motion for judgment on the pleadings, General Order No. 18 instructs against similarly conclusory treatment in this District," the Court explained. Nevertheless, the local court rule provides that a Social Security plaintiff's failure to file a brief means the court will consider an appeal "without the benefit of plaintiff's arguments and may result in a decision heavily influenced by the Commissioner's version of the facts."

Social Security Overpayments-No Good Deed Goes Unpunished - Caravella v. Commissioner of Social Security

Mon, 19 Nov 2012 09:02:19 -0500

Social Security Disability benefits are intended for people who are unable to work for a year or more due to a physical or mental impairment. As the story of New Yorker Vincent Caravella (laid out in Caravella v. Commissioner of Social Security) shows, anyone receiving benefits who wants to return to work should consult an attorney as well as the Social Security Administration (SSA) before proceeding.

In October 2003, SSA approved Caravella's Disability benefits claim, finding that he was unable to work. More than five years later, in July 2008, the SSA determined that Caravella was no longer eligible for benefits, after he completed a nine-month "trial work period."

Social Security Disability beneficiaries who believe they may be able to return to work are allowed a trial work period in which they can work for nine months within a 60-month span without losing benefits. The trial work period automatically begins in any month in which the person's earnings exceed $720 (next year, the amount will rise to $750). Once a person earns over this monthly amount after the trial period expires, his or her benefits are suspended.

Here, the SSA determined that Caravella's eligibility for benefits ended in March 2007, even though he continued to receive benefits until July 2008. As a result, the Administration demanded that Caravella repay more than $16,000 in benefits paid while he was no longer eligible.

The SSA later denied Caravella's request that it waive collection of the overpayment, in which he argued that he was not at fault for the overpayment and did not have the money to repay it. Both of those grounds must be satisfied for an overpayment to be waived. Although Caravella claimed that he did not think he was required to notify SSA about his return to work based on a good faith reading of an SSA pamphlet that explains the rules related to continued receipt of benefits, the SSA found he was not without fault.

Caravella then appeared before an SSA Administrative Law Judge (ALJ) at an administrative hearing, where he was represented by an attorney. The ALJ found that plaintiff failed to provide SSA with timely notice of his work and earnings for 2005, and thus was at fault for the overpayment.

Once Again a Court Reminds the ALJ to Accurately Question the VE - Coleman v. Astrue

Fri, 16 Nov 2012 08:49:49 -0500

In Coleman v. Astrue, the District Court for the District of Nebraska explains that a Social Security judge considering a Disability benefits claim by a person with mental impairments must properly consider how those impairments affect the person's ability to work.

Plaintiff Steven Coleman filed a claim for Social Security Disability benefits, asserting that he was unable to work due to a brain injury that he suffered as a child. This injury caused impaired cognitive development, as well as bipolar disorder, anger issues and an inability to deal with stress. Plaintiff asserted, at the time he filed his claim, that he had held about 10 jobs in two years, each of which he lost due to poor performance.

The Social Security Administration (SSA) initially denied the claim. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the judge determined that Coleman was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to perform a full range of work, limited to no interaction with the public and minimal on the job communication, and could therefore still work in a number of jobs available in the national economy.

The ALJ reached this decision based largely on the testimony of a vocational expert (VE), who testified that a hypothetical claimant limited to simple and repetitive tasks with no interaction with the public and limited on the job communication or limited to "one-two step" job duties could find jobs available in the national economy, such as commercial or institutional cleaner, caretaker and agricultural produce packer. The VE further testified that there would be no jobs that the hypothetical claimant could perform if his impairments prevented him from maintaining adequate attendance.

On appeal, the Court found that the ALJ failed to properly take Plaintiff's full range of impairments into account in presenting the hypothetical questions to the VE. Specifically, the questions did not include Coleman's significant mental impairments, nor the effects of the medication he takes to combat these impairments, which make him tired and sleepy.

Judge Recommends Social Security Disability Benefits for Amputee based on inability to stoop and kneel

Thu, 15 Nov 2012 21:40:15 -0500

As experienced Social Security Disability attorneys who have represented thousands of clients in the benefits claim process, we advise our clients that a hearing before a Social Security Administration (SSA) Administrative Law Judge (ALJ) is statistically their best chance to get their claim approved. But if the ALJ gets it wrong and denies a valid claim that does not mean there is nothing more that can be done. A Louisiana Federal Magistrate Judge's ruling in Benjamin v. Commissioner of Social Security is a good example of why a person with a strong case should not give up.

Plaintiff Ann Marie Benjamin suffers from type II diabetes, which resulted in the loss of her right leg below the knee. She filed a claim for Social Security Disability benefits, asserting that she's unable to work due to these impairments. The ALJ denied the claim with a finding she was not eligible for benefits because she retained the residual functional capacity (RFC) to perform sedentary work, with certain restrictions, including that she's unable to stoop, kneel, crouch or crawl.

On appeal in the District Court for the Western District of Louisiana, the magistrate ruled that the ALJ's opinion was not supported by substantial evidence. Specifically, the ALJ failed to include Plaintiff's stooping, kneeling, crouching and crawling limitations in presenting hypothetical questions to a vocational expert(VE).

Generally, a VE's role is to testify as to whether a person with the same impairments, background, age and experience as a claimant would be able to perform jobs available in the national economy. As the magistrate explained, Social Security Ruling 96-9p provides that "[a] complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply..." Although the ALJ found that Plaintiff was completely unable to stoop, given her amputation, he did not include this restriction in the hypothetical questions posed to the VE.

"It is well established that unless the hypothetical question posed to the vocational expert by the ALJ can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ...a determination of non-disability based on such a defective question cannot stand," the magistrate wrote, citing the Fifth District Court of Appeals' 2001 decision in Boyd v. Apfel. As a result, the magistrate recommended that the case be remanded back to the ALJ with instructions that Plaintiff be awarded disability benefits.

Court Reverses Ruling In Social Security Disability Case Falling on Vocational Expert Testimony - Alley v. Astrue

Fri, 17 Aug 2012 22:30:39 -0500

The crux of a Social Security Disability claim is not just the question of whether the claimant can return to his or her previous line of work, but whether the claimant can perform any work at all. Social Security judges often requesting input from a vocational expert (VE), to answer this question. However the answers provided by the VE are only as good as the questions asked- answers to poor or defective questions won't accurately reflect a claimant's abilities In Alley v. Astrue, the District Court for the District of Delaware reminded the ALJ's once again that the hypothetical questions posed to a VE must accurately reflect the claimant's background and impairments.

James Alley filed for SSDI in November 2006, because he suffered from low back and left leg pain. The Social Security Administration (SSA) denied the claim and Plaintiff appeared at a hearing in 2009. The Administrative Law Judge (ALJ) determined that Alley was not disabled for benefits purposes because, although he could not return to maintenance work, he had the residual functional capacity (RFC) to perform "light work" (which has a specific definition in Social Security cases) with certain limitations. "Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform," the ALJ concluded.

On appeal, the District Court reversed the ALJ's decision and remanded the case for further proceedings. The court specifically took issue with the hypothetical questions that the ALJ posed to a VE regarding whether a person with similar physical limitations and background could perform jobs available in the national economy. According to the VE, this hypothetical individual could find light work with the stated limitations - including limited ability to sit or stand for long periods of time - as a cashier, copier operator and a non-postal mail sorter.

"A hypothetical question must reflect all of a claimant's impairments that are supported by the record; otherwise the question is deficient and the expert's answer to it cannot be considered substantial evidence," the court noted, citing the Third Circuit's 1987 decision in Chrupcala v. Heckler. This requirement is so clear that it is hard to understand why the ALJ's continue to violate it and the Appeals Council continues to allow them to when the first appeal is filed.

In this case, the ALJ found that Plaintiff could not stand or walk for more than two hours nor sit for more than 6 hours in an eight hour day. In the questioning posed to the VE, however, the ALJ referred to a hypothetical individual able to stand and walk up to six hours a day.

"[I]t is evident to the court that the ALJ did not include in this hypothetical question the limitations imposed by the ALJ's own findings," the court concluded. As a result, the court reversed the ALJ's decision.

Court Reverses Social Security Disability Decision for Improperly Discrediting Claimant Testimony - Shauger v. Astrue

Thu, 16 Aug 2012 13:06:19 -0500

No one understands just how debilitating a severe physical or mental impairment can be more than the person suffering from it. Thus, claimant testimony is often an important part of proving a claim for Social Security Disability benefits, particularly when the claimant describes the length and severity of the impairments effects as well as the result on his or her ability to perform work. In Shauger v. Astrue, the Seventh Circuit Court of Appeals explains that the such testimony should be considered before determining whether the claimant can still work. The Court also has some harsh words for one Social Security judge who seems to have reversed the order.

Plaintiff Virgil Shauger is a 50-year-old former welder who filed a claim for Social Security disability (SSDI) , asserting that he is unable to work due to a nerve disorder causing severe headaches and impairing his vision. The Social Security Administration (SSA) denied the claim initially and on reconsideration. Plaintiff then appeared before an SSA Administrative Law Judge (ALJ) at a July 2009 administrative hearing. The ALJ found that Shauger was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to transition into other work that was not related to welding.

Although Plaintiff testified at the hearing that he suffers two or three severe headaches each day, lasting 30 to 45 minutes each, requiring him to lay down and apply a cool compress, the ALJ found that the headaches were "non-severe." Specifically, the ALJ concluded that because Shauger was not using prescription drugs to combat the headaches, that he had never sought medical care for them. According to the 7th Circuit, "the ALJ did not acknowledge Shauger's testimony about the severity and frequency of his headaches, his response to those headaches, or the effect the headaches have on his daily activities."

On appeal, the court reversed the ALJ's decision and remanded the case for further proceedings, finding that the ALJ improperly discredited Plaintiff's testimony. Calling the ALJ's stated reason for rejecting Plaintiff's testimony "unhelpful," and the kind of "meaningless boilerplate seen frequently in decisions from ALJs," the Court said the ALJ implied that she determined Plaintiff's RFC first, then compared the determination to his testimony to see if it was consistent with the ALJ's decision. "Credibility findings must have support in the record, and hackneyed language seen universally in ALJ decisions adds nothing," the court ruled.

Furthermore, Shauger's sporadic treatment for his headaches was not sufficient to discredit his testimony, according to the court. This was particularly true because the nature of Plaintiff's impairment is that the effects come and go. Indeed, Shauger continued to attempt to work for a few years in spite of his impairment.

Court to Social Security Disability Judge: Listen Up! - Clavette v. Astrue

Wed, 15 Aug 2012 22:26:37 -0500

As experienced Social Security disability attorneys who have represented thousands of clients in claims for Social Security Disability benefits, we know that medical evidence, including the opinions of doctors and other health professionals, can go a long way in winning a case. All the opinions in the world are worth very little, however, when the decisionmaker doesn't actually listen to them. In Clavette v. Astrue, a federal magistrate judge in New Hampshire reviewed the decision of a Social Security judge who denied a benefits claim based on the opinion of two health professionals. The only problem is, they didn't actually say what the SSA Administrative Law Judge (ALJ) thought they said.

Plaintiff Diane Clavette filed a Social Security Disability benefits claim, asserting that she was unable to work due to a number of impairments, including degenerative disc disease, atrial fibrillation, breast cancer, hepatitis C and fibromyalgia. The Social Security Administration (SSA) denied her claim. Plaintiff then appeared before an ALJ at an administrative hearing. The ALJ found that, although she suffered from severe impairments, Clavette retained the residual functional capacity (RFC) to perform light work, including past relevant work as a mental health counselor.

On appeal, the magistrate recommended that the ALJ's decision be reversed because the judge erred in assessing Clavette's RFC. Specifically, the ALJ misinterpreted the opinions of state examiner Joan Hobbs and physical therapist Ellen Duquette. The ALJ stated in his decision that Hobbs had indicated that Plaintiff was capable of performing light work. Yet, according to the magistrate, Hobbs's actual conclusion was that he found Clavette's statement that she was "too weak to work," was fully credible.

Moreover, the ALJ erroneously concluded that it was Duquette's opinion that Plaintiff could return to her previous job. In fact, the magistrate ruled, Duquette actually said that Clavette could return to work only once her emotional issues were addressed and her physical pain controlled. Duquette also recommended that Plaintiff gradually return to part-time work.

"Accordingly, it is inaccurate to say that either Dr. Hobbs or Duquette opined that Clavette had the present capacity to perform her past relevant work at the time of their evaluations," the magistrate found. Because this was the only evidence relied on by the ALJ in reaching the RFC decision, the magistrate ruled that the decision was not supported by substantial evidence and should be overturned.

Court: RFC Decision in Social Security Disability Case Must be Supported by Evidence in the Record - Fernald v. Social Security Administration Commissioner

Tue, 14 Aug 2012 19:51:23 -0500

A Social Security Disability case often boils down to one question: can the person seeking benefits still work? In Fernald v. Social Security Administration Commissioner, a magistrate judge in the District Court for the District of Maine explains that a judge answering this question must base the decision on evidence in the record.

Plaintiff Phillip Fernald filed a Social Security Disability benefits claim asserting that he's unable to work as a result of degenerative disk disease, depression and anxiety, as well as a history of alcohol and drug addiction. The Social Security Administration (SSA) denied the claim. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that although Plaintiff suffered from a number of severe impairments, he nevertheless retained the residual functional capacity (RFC) to perform a range of light work. The ALJ further determined that while Plaintiff could not return to previous work in general labor, lawn maintenance and sales, he could perform other jobs available in the national economy, including "addresser," routing clerk, bakery worker and conveyor line worker.

On appeal, the magistrate recommended that the case be remanded back to the ALJ for further proceedings. "The ALJ's use of the expert opinion evidence related to Fernald's physical RFC was erroneous and requires further proceedings," the judge stated.

Specifically, the magistrate found that there was no evidence to support the difference between the ALJ's RFC physical determination and Plaintiff's physical limits as determined by Dr. Mark Sutherland. Dr. Sutherland diagnosed Plaintiff with fibromyalgia/chronic pain disorder and concluded that he could sit or stand for less than two hours at a time. Despite stating that Dr. Sutherland's opinion was entitled to "significant weight," the ALJ found that Plaintiff could sit or stand for two hours at a time, according to the judge. Furthermore, the magistrate ruled that the ALJ misstated Plaintiff's upper extremity limitations, as determined by Dr. Sutherland.

"There is no substantial evidentiary support for these deviations," the magistrate wrote in his report and recommendation. The only other physical RFC determination in the record was that of Dr. Donald Trumbull, whose opinion the ALJ chose not to rely on. Nothing record refers to the RFC limits imposed by the ALJ, according to the magistrate. "Here, the ALJ did not discuss why he deviated from Dr. Sutherland's RFC assessment and he did not have a function-specific expert opinion to provide substantial evidence in support of his actual finding," the judge stated.

Bridging the Evidentiary Gap in Social Security Claims - Ivey v. Astrue

Sun, 12 Aug 2012 21:45:20 -0500

In Ivey v. Astrue, the U.S. District Court for the Southern District of Indiana explains that, in reaching a decision on a Social Security disability claimant's ability to work despite any impairments, a judge must "bridge the gap" between the evidence in the record and the ultimate decision.

Plaintiff Carol Ivey filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits, asserting that she's unable to work due to degenerative disc disease, hypertension, chronic obstructive pulmonary disease, mild osteoarthritis of the left hip and obesity. The Social Security Administration (SSA) denied the claim and Plaintiff later appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ). The ALJ found that Plaintiff was not eligible for Social Security disability benefits because, although she suffered from severe impairments, she retained the residual functional capacity (RFC) to perform light work, including her previous job as a lock repairer.

On appeal, the District Court remanded the case for further proceedings, finding that "the ALJ's RFC determination lacks the requisite evidentiary support in order to build a logical bridge from the evidence to his assessment of the work-related activities that Ivey is able to perform..." Specifically, the ALJ's determination that the opinion of non-examining physician Dr. Richard Wenzler was entitled to "significant weight" was not supported by the evidence.

Dr. Wenzler reviewed Plaintiff's medical record and concluded that she was able to perform light work, despite her impairments. According to the Court, however, Wenzler did not have Plaintiff's complete medical record before him when he proffered this opinion. Because the doctor was unaware that Plaintiff had undergone back surgery at the time of his review, the Court found that his opinion regarding her back impairment was only partially credible. Furthermore, Dr. Wenzler was unaware of Plaintiff's physical therapy treatment as well as resulting medical records showing that she could only sit or stand for less than 15 minutes and walk less than one block at a time.

Citing the Southern District of Indiana's 2011 opinion in Staggs v. Astrue, the Court ruled that "the ALJ's decision to give Dr. Wenzler's opinion significant weight in determining Ivey's residual functional capacity is a decision that cannot stand where it lacks evidentiary support and is based on an inadequate review of Ivey's subsequent medical record." Although the ALJ acknowledged that the medical record before Dr. Wenzler was not complete, the judge did not explain why the physician's opinion was nevertheless given significant weight.

Court Says Claimant's Pastoral Duties Not 'Work' in Social Security Disability Context - Dunagan v. Astrue

Sat, 04 Aug 2012 11:27:08 -0500

The key question in a Social Security Disability case is: can the person seeking benefits work? In Dunagan v. Astrue, the District Court for the District of South Carolina explains what "work" means in a Social Security Disability case.

Plaintiff Wayne Dunagan filed a claim for disability benefits, asserting that he's unable to work due to osteoarthritis, headaches, depression and gastrointestinal problems. The Social Security Administration (SSA) denied the claim initially and upon reconsideration. After an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined that the plaintiff was not disabled for benefits purposes because, although he suffered from a severe impairment in the form of osteoarthritis, Dungan retained the residual functional capacity (RFC) to perform a full range of medium work, including his most recent job as a pastor.

Plaintiff appealed the ALJ's decision by filing suit in federal court. The matter was referred to a U.S. magistrate judge, who recommended that the ALJ's decision be reversed and the case remanded for further proceedings. Adopting the magistrate's recommendation, the District Court found that the ALJ's decision was not supported by sufficient evidence.

The SSA and its judges use a five-step analysis to determine whether a claimant is eligible for benefits. Step four is determining whether the claimant can return to "past relevant work" despite any impairments. That includes "work that you have done within the past 15 years, that was substantial gainful activity (SGA), and that lasted long enough for you to learn to do it." Currently, the threshold income at which the SSA will find that a person is engaged in SGA is $1,010 per month for non-blind individuals and $1,690 per month for blind individuals.

The ALJ's decision was unclear as to whether plaintiff's pastoral work qualified as SGA. Although the ALJ found that Dungan had not engaged in SGA since 2003 and concluded specifically that plaintiff did not earn enough money as a pastor for the work to qualify as SGA, he later determined that plaintiff was not disabled because he could still work as a pastor.

Establishing Pain in Social Security Disability Cases - Tealer v. Astrue

Thu, 02 Aug 2012 19:41:21 -0500

As experienced Social Security Disability lawyers who have represented thousands of claimants, we understand that many people seeking benefits are greatly impaired by the physical pain caused as a result of a injury or illness. In Tealer v. Astrue, the District Court for the Northern District of Texas pointed out how a claimant suffering from such pain must prove in order to obtain benefits.

Plaintiff Geneva Tealer's claim for Social Security Disability benefits - in which she asserted that she's unable to work due to diabetes, hypertension, peripheral artery disease, stomach problems and arthritis - was denied by the Social Security Administration (SSA). and an SSA Administrative Law Judge (ALJ), twho found that Plaintiff was not disabled for disability benefits purposes because she retained the residual functional capacity (RFC) to perform limited sedentary work. The SSA's Appeals Council declined Plaintiff's request for review of the ALJ's decision.

The court affirmed the decision, finding that it was supported by substantial evidence. In so doing, the court rejected Plaintiff's argument that the ALJ failed to properly consider the limitations caused to her by pain from her impairments. "[T]he mere existence of pain does not establish disability," the court ruled. It may, however, be considered a limiting factor in determining the type and extent of work that a claimant can perform.

In other words, "although an ALJ may find that pain does not preclude a claimant from working, the ALJ must consider the claimant's complaints of pain as a factor that would limit the types of work the claimant can perform."

In this case, Plaintiff testified at the hearing that she experienced pain in her ankles, knees and legs. She did not report any problems with her arms, shoulders and hands. During a physical examination, she exhibited ordinary strength in her shoulders, hands and hips. By limiting Plaintiff to sedentary work, involving sitting and occasional walking and standing and lifting no more than ten pounds at a time, the ALJ accounted for both her lower extremity pain and her abilities in spite of her impairments, according to the court.

The court further found that the ALJ's alleged failure to consider evidence submitted to the ALJ by Plaintiff's lawyer on the day of the hearing did not require that the case be remanded back to the ALJ for further proceedings. "Remand for the purpose of requiring the Commissioner to consider evidence is not justified unless the plaintiff shows good cause for failing to incorporate it into a prior proceeding," the court stated. Because Plaintiff did not present this "new" evidence, in her appeal before the SSA Appeals Council and did not provide this court with the records she claims the ALJ failed to consider, the court found that Plaintiff did not establish good cause for remand.

Court Reverses Rejection of Social Security Benefits for Woman with Blood Clots and Breathing Disorder - Mashburn v. Astrue

Wed, 01 Aug 2012 23:17:08 -0500

In Mashburn v. Astrue, the U.S. District Court for the District of Arizona once again reminds the Social Security Administration that a Social Security judge reviewing a disability benefits claim cannot reject the opinion of the claimant's doctor, nor the plaintiff's own testimony, without good reasons.

Plaintiff Sandi Leigh Mashburn filed a Social Security Disability benefits claim, asserting that she was unable to work due to blood clots and a resulting breathing disorder which requires her to use bottled oxygen. The Social Security Administration (SSA) denied the claim. and after an administrative hearing the Administrative Law Judge (ALJ), found that mASHBURN was not disabled for benefits purposes because she retained residual functional capacity (RFC) to perform sedentary work and certain light work that exists in significant numbers in the national economy.

On appeal, the court reversed the ALJ's decision, finding that the ALJ improperly weighed medical opinions and Plaintiff's testimony. Dr. Richard Rosenberg, a hematology and oncology physician who treated Plaintiff since 2006, and Karen LaMaster, his medical assistant, both rendered opinions finding that Plaintiff's impairments left her completely disabled. The ALJ, however, afforded little or no weight to these medical opinions. Instead, the ALJ gave controlling weight to the opinion of Dr. Jeri Hassman, a state-agency physician who examined Plaintiff once and determined that she could perform sedentary work with restrictions.

"The ALJ summarizes certain medical records, but does not explain, and it otherwise is not clear to the court, how those records support Dr. Hassman's opinion," the court ruled. In particular, the court found no evidence in the record showing that Plaintiff was capable of working.

Furthermore, as Plaintiff's treating physician, Dr. Rosenberg's opinion was entitled to "special weight," ,based on various Social Secuirty Rulings (SSR's), according to the court. "[I]f the ALJ chooses to disregard the opinion, he must set forth specific, legitimate reasons for doing so, and this decision itself must be supported by substantial evidence," the court ruled, quoting the 9th Circuit Court of Appeals' 1998 decision in Embrey v. Bowen.

In this case, the ALJ failed to provide adequate reasoning for rejecting Dr. Rosenberg's opinion.

Seeking an Extension for A Social Security Disability Benefits Claim Appeal - Nunn v. Commissioner of Social Security

Mon, 02 Jul 2012 10:28:37 -0500

In Nunn v. Commissioner of Social Security, the District Court for the District of Oregon explains that, in certain limited circumstances, a disability benefits claimant who misses the deadline to file an appeal can still seek judicial review.

Plaintiff Christy May Nunn filed a claim for Social Security Disability benefits asserting that she's unable to work due to anxiety and depression. The Social Security Administration (SSA) denied her claim. A person whose claim is initially denied generally has 60 days to request an appeal, which typically involves an administrative hearing before an SSA Administrative Law Judge (ALJ). After failing to seek an appeal within the 60-day limit, Plaintiff requested an extension on the appeal deadline, explaining to the agency that she had believed that a counselor at the mental health facility where she was receiving treatment had already filed the appeal on her behalf. An SSA ALJ denied the extension request. Plaintiff then filed suit in the District Court, seeking judicial review of the SSA's initial decision on her claim.

The SSA filed a motion to dismiss the claim, arguing that Plaintiff was required to exhaust the administrative remedies available through the SSA's claims process before filing suit in federal court.

Because judicial review of an SSA decision on a disability benefits claim is generally limited to review of a final decision made after a hearing, the court explained that "a decision not to reopen a prior, final benefits decision is discretionary and ordinarily does not constitute a final decision and, therefore, is not subject to judicial review." Nevertheless, the Supreme Court identified an exception to this rule in Califano v. Sanders for "any colorable constitutional claim of a due process violation that implicates the right to a meaningful opportunity to be heard."

Here, the court found that Plaintiff's suit implicated her constitutional due process right to be heard before her claim was denied. The court cited Social Security regulations providing that the agency will toll the appeal deadline for any claimant whose mental incapacity prevented her from making a timely request for appeal. In implementing the regulation, the SSA is to consider whether the claimant "lacked the mental capacity to understand the procedures for requesting review."