Maine Social Security Disability Lawyer

Shut Out of Social Security

 
There is a truly excellent online Special Report published today by The News Journal in Delaware, entitled Shut Out of Social Security. The special report tells the story of five disability claimants, and takes the Dover, Delaware Hearing Office to task for having one of the lowest claim approval rates in the country.

A main feature of the special report is five audio slideshows telling the story of each of the five claimants, like Joe Jones, pictured above. Each audio slideshow is under two minutes in length. They are compelling, and I urge you to watch each of them. These are the universal stories of Social Security disability claimants.

Thanks to Delaware disability attorney Steven Butler, who was the first to write about the special report.

The Apologetic RFC

I filed an "on the record" request yesterday for a client with severe Charcot-Marie-Tooth disease. Charcot-Marie-Tooth (named after the three doctors that first identified the disease) is a hereditary neurological disease that affects the peripheral nerves. The resulting peripheral neuropathies cause loss of function and, in the case of my claimant, chronic pain.

The unusual thing about this claim file is the RFC assessment from Disability Determination Services (DDS). Of course, the DDS physical RFC assessment did not consider the primary care doctor's opinion regarding the claimant's functional limitations. That happens all the time. But additionally, the DDS physical RFC also contained this summary:

With medical evidence as above, expectation is for gradual worsening... . However, it is our sense that, at least currently, claimant’s musculoskeletal status has not (as yet) quite reached the point where all work is not possible.

As I worked on the OTR request, I read that summary over and over again. I mean, come on! Naturally, the staff at DDS must ascertain whether or not a claimant has the capacity to work. But this RFC assessment goes too far, and they knew it when they wrote it. I have never read a more apologetic RFC.

The claimant can't work. He states that his life has been ruined by this hereditary disease and the accompanying chronic pain and loss of function. 

The claimant's primary care doctor expressly listed numerous work related activities that the claimant could not perform. Not considered by DDS.

Now that the claim is at the hearing level, we also have a medical source statement from the treating neurologist, setting forth limitations precluding work at step 5 of the sequential evaluation.

There is no contrary evidence in the claim file. The claim should have been granted by DDS. Now, it will hopefully be granted on the record, so that this claimant does not have to wait for a hearing.

{update: this claim was granted on the record on 9/24/2009}

An Outstanding Prior Work Record

 

One of the items an administrative law judge may consider when deciding your disability case is your prior work record. A judge will look to see whether or not you were steadlily employed prior to applying for disability, and how much you were earning. A disability claimant with a twenty year work record with good earnings tends to be looked at more favorably than a person who has been chronically underemployed.

I had a recent Social Security disability hearing in Manchester, NH for a claimant with an outstanding prior work record. 40 years of earnings. 20+ years making over $80,000. I just marvelled at it.

This case had everything that a properly prepared disability claim file should have, including up-to-date medical records and a medical source statement from each of the claimant's medical providers. There was a clear medical diagnosis and unrebutted medical opinion regarding the claimant's resulting functional limitations. Despite all that, it was the claimant's prior work record that provided the most persuasive piece of evidence in the claim file. 

7 Weeks from Denial to Receipt of Benefits

I wrote two weeks ago about the amazing timeline of one of my Social Security disability cases. To recap, because the bank was foreclosing on the claimant's home, both the local Social Security office and the Portland, Maine hearing office expedited the disability appeal. A hearing was scheduled within 5 weeks from the claimant's receipt of the Reconsideration denial notice from DDS. On the day of the hearing, the U.S. Administrative Law Judge extended his hearing schedule to issue a bench decision granting the disability claim.

Well, the amazing timeline continues. The claimant has now been paid her retroactive benefits. The SSA electronically transferred the funds directly to her bank account. The money arrived yesterday. That's 7 weeks to the day from the date of the Reconsideration denial notice. 7 weeks from denial to receipt of benefits! Kudos to the Social Security payment center for acting quickly in this critical case.

I can't describe the relief I heard from the client when I called to say the claim has been paid. The retroactive benefits are more than enough to get caught up with the bank on the mortgage, and she will have an ongoing disability check to get by.

Anxiety and Social Security Disability

Severe anxiety can certainly provide a basis for Social Security disability. Anxiety is among the SSA's listed impairments - please see listing 12.06.

I had a hearing last week for a claimant suffering from severe anxiety with agoraphobia. This claimant has been basically housebound by anxiety, and leaves the house only for doctor appointments. Her husband does the food shopping. She buys her clothes online. It was quite clear from her hearing testimony that anxiety was severely limiting all aspects of her life, and employment was not a realistic possibility. Further, I was able to obtain a medical source statement from her treating psychiatrist that assessed severe limitations. The judge found that the claimant met listing 12.06, and issued a bench decision granting the disability claim.

For more information about anxiety and social security disability, there is a link on the sidebar of this site (in the Important Topics section) to the Claimants with Mental Impairments page, which discusses the issues involved with Social Security disability claims involving anxiety and other mental health conditions.

If you are wondering if your anxiety or other mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

Amazing Timeline

 

The Social Security Administration can move quickly in certain circumstances. One such circumstance is a dire need case. Dire need is a type of critical case, and these claims are expedited by the SSA.

In this particular case, the claimant received a Reconsideration denial letter on February 27th and contacted me. We had our initial meeting the next day. At that meeting, she told me that her home was under foreclosure. She has been unable to work for well over a year, and had fallen behind on the mortgage payments. I asked her to provide me with documentation regarding the foreclosure action.

I received the documentation on March 3rd, and filed a request for hearing and a dire need request that day. Miss Martin of the Saco Social Security field office processed the request for hearing that very afternoon. The claim also received expedited treatment from the Portland Social Security hearing office, and a hearing was quickly scheduled for today, April 2nd. I attended along with the claimant, who testified.

At the end of the hearing, the judge took the extra time required to prepare a bench decision granting the claim.

Just 5 weeks passed from the day the claimant received the Reconsideration denial to the date of a fully favorable decision. That is an outstanding performance by the local Social Security office and by the Portland, Maine hearing office (particularly the United States Administrative Law Judge who heard the case and issued a bench decision). 

This is just the way the Social Security process should operate.

Lyme Disease and Social Security Disability

Lyme disease can certainly provide the basis for a successful Social Security disability claim. However, it can be a long road.

I saw a recent news story regarding a Connecticut man suffering from chronic Lyme disease, who is also struggling to have his Social Security disability claim granted. His story is all too common.

Chronic lyme disease often involves headaches, chronic fatigue and pain. In addition, for this gentlemenan in Connecticut, bright light hurts his eyes; loud noises bother him; his joints hurt him constantly.

There is no specific Social Security listing for Lyme disease. A Lyme disease disability claim is evaluated under Listing 14.09D Inflammatory Arthritis, which is not a precise fit. That means, as a practical matter, a Lyme disease claim will usually proceed to steps 4 and 5 of Social Security's sequential evaluation process. Further, claims involving chronic pain can be difficult for DDS to evaluate, so this gentlemen may have to wait for a hearing on his disability claim. 

This is the timely topic, because the ticks that carry Lyme disease reappear this time of year. If you have Lyme disease or suspect that you do, you need a Lyme-literate primary care physician, and an infectious disease specialist who handles Lyme cases. Likewise, for your Social Security disability claim, retain a Social Security specialist.

Dire Need Request

I just submitted a critical case request for a Social Security disability claim here in Maine. A critical case request asks Social Security to expedite a particular claim.

There are three situations that constitute critical cases: 1) the claimant's illness is terminal, 2) the claimant is suicidal or homicidal, and 3) dire need.

Dire need is the most frequent basis for a critical claim request. Dire need is when the claimant is without (and is unable to obtain) food, medicine or shelter. Mere hardship is not enough. The situation must be dire.

My client is facing imminent foreclosure. She has been disabled and out of work for almost two years, and her husband was laid off last year. With no income, they have been unable to keep up with their mortgage payments.

Critical cases are governed by HALLEX I-2-1-40. ODAR uses an evaluation sheet to review critical case requests. Documentation of the critical situation is important. 

Medium Exertional Work

A client recently retained me after receiving an inital denial of his Social Security disability claim. He over 55 years old, and can no longer do his past relevant work, partly due to knee and ankle problems resulting from an old injury.

I have reviewed the disability claim file, and he was denied disability because a doctor at DDS reviewed his medical records and assessed an RFC for medium work.

Now, this particular claimant has more functional limitations than just his exertional impairments. But since he is over the age of 55, the quickest route to victory at Reconsideration is to persuade Social Security that a medium exertional RFC is too much for this claimant. At the sedentary or the light exertional level, a claimant over the age of 55 grids "disabled" under medical-vocational rule 201.06 or 202.06.

What does medium work require? Medium work means lifting up to 25 pounds frequently (from 1/3 to 2/3 of the day) and up to 50 pounds occasionally (up to 1/3 of a day). See 20 C.F.R. 404.1567(c). Medium work means being on your feet for most of a workday. Also, the full range of medium work requires both frequent stooping and frequent crouching. See Social Security Ruling 83-14.

My new client cannot do these things. To win at Reconsideration, the medical evidence of record must demonstrate his fuctional limitations.

More on Social Security Denial Explanations

An error in the Explanation of Determination attached to your denial letter can present an opportunity for your Social Security disability attorney to practice some legal jujitsu. The error can be used to support an argument for reversal at the next stage of review. This argument is the most powerful when, but for the error in analysis, the claim should be granted.

For example, I have a new client who recently received his initial denial letter from Social Security. The explanation stated that the claimant cannot do his past work, but concluded that there is other work involving less strenuous lifting that the claimant could perform. That's standard step 5 language.

The problem with that analysis is that this claimant is almost 60 years old. Once you rule out past relevant work, if you limit a 60 year old claimant to jobs with no heavy lifting, that claimant must be found disabled (in the absence of transferable skills or education that leads to direct entry to skilled work) under Social Security's own Medical-Vocational Guidlelines.

This claim should be granted. A 60 year old claimant with an unskilled work background grids "disabled" even at the medium exertional level. {correction: actually, not quite. To grid "disabled" at the medium exertional level, a claimant must have an unskilled work background and a limited education or less. See Rule 203.02}

A recent article by Jericho, NY disability attorney Jeffrey Delott started me thinking more about this issue. Jeff wrote that he always highlights the defects in the explanation when he makes an on the record request at the hearing level.  Jeff's blog is always interesting reading, since most of his articles involve actual case stories. The blog also has a spiffy new design.

Social Security Denial Explanations

When Social Security denies a claim for disability benefits at the initial or reconsideration level, the SSA provides a personalized "Explanation of Determination" on the last page of the denial letter. The denial letter is otherwise a form letter.

The information or analysis in these explanations is often erroneous. As noted by Charles Hall in Social Security News, a recent GAO report found the explanations actually misleading in a significant number of claims.

I've seen hundreds of these explanations. Often, the denial letter is what sparks the search for a Social Security disability attorney, and the denial letter is the first thing I look at when I meet with a new client.

The explanations are occasionally so wrong that it would be funny, if it weren't so sad. Needless to say, these letters cause a fair amount of distress to claimants.

The lesson for claimants is don't get upset by a denial letter, even if the explanation of determination is wrong, or does not reflect the severity of your impairments. Take action instead: make sure you appeal the denial within 60 days. If you don't already have the assistance of a Social Security disability attorney, it's time to talk with one.

Hearing Memorandum in New Hampshire

I had a Social Security disability hearing with an administrative law judge at the Manchester, New Hampshire ODAR recently. I prepared a hearing memorandum for the judge, as is my practice.

The judge acknowledged my hearing memorandum, and said "I wish more of your colleagues would prepare them."

A hearing memorandum is not required at the Manchester ODAR, but you should submit one anyway. It is a real help to the judge, who after all, is the person deciding your disability case. Why wouldn't you want to help the judge grant your case?

If you are representing Social Security disability or SSI claimants in New Hampshire (or elsewhere), write a hearing brief.

Combination of Impairments

Social Security must consider the combination of your impairments when considering your eligibility for benefits. Even non-severe impairments must be considered in combination with your severe impairments. See 20 C.F.R. 404.1523.

This can be very important. Sometimes a seemingly minor impairment can rule out your past relevant work, and move your claim past step 4 of the sequential evaluation process. 

I have had cases where past relevant work was ruled out due to asthma (can't be around fumes), near blindness in one eye (no depth perception for factory work), and moderate anxiety (cannot interact with the general public), when those impairments were combined with the claimant's other impairments. Each of these claims then won at step 5 of the sequential evaluation process, via the medical-vocational guidelines.

Remember, your RFC must include all your impairments, even non-severe ones.

Fully Favorable Decision

I received a fully favorable decision today for one of my clients. It was an unusual case, because I never spoke with the client until just before the hearing.

The client found me in March through my Maine Social Security lawyer website, and emailed me. She has such severe anxiety that she does not use the telephone, and rarely leaves her house. She lives several hours away, so I did not visit her at home. Instead, we communicated by mail and email for several months prior to her hearing. Unusual, but I have to say, it worked pretty well.

We finally met in Bangor on the morning of the hearing. The hearing was conducted by videoconference with a judge in Portland, Maine. The written decision has now followed.

It is important to prepare a client for the Social Security disability hearing. Ideally, that preparation takes place in person. But it can be done quite effectively over the telephone, and in fact, by email.

Winning at Reconsideration

A client of mine just obtained a fully favorable decision at the Reconsideration level. 

In this particular case, Social Security assessed a residual functional capacity at the light exertional level. Since the claimant's past relevant work was also at the light exertional level, the claim was denied at step 4 of the sequential evaluation process. After receiving a denial notice, the claimant retained me. We appealed, and the claim went to Reconsideration.

I asked the claimant's doctor for her opinion on the claimant's limitations. The doctor completed a medical source statement, and assessed a sedentary RFC.

The doctor's medical source statement was adopted by the SSA. That sedentary RFC ruled out the claimant's past work at step 4. And since the claimant is over 50 and does not have transferable skills or education that provides for direct entry into skilled work, he grids "disabled" at step 5, under Rule 201.14 of the Medical-Vocational Guidelines. 

This is a fairly typical case story, and any Social Security disability lawyer worth his salt would obtain a medical source statement from the claimant's treating doctor. But why wait until the hearing? Why not do it soon after you get the case, so that you have a shot at winning at Reconsideration?

I treat Reconsideration like a hearing. I update medical records, get medical source statements when I can, and write a letter to the disability examiner explaining why the claim should be granted.

Critical Case Request

I recently filed a critical case/dire need request for a client's claim. A critical case request asks Social Security to expedite a claim at the hearing level. Critical cases are governed by HALLEX I-2-1-40.

Critical cases get priority because they are the most serious claims. There are three situations that constitute critical cases: 1) the claimant's illness is terminal, 2) there is an indication that the claimant is suicidal or homicidal, and 3) dire need.

Dire need is the most frequent basis for a critical claim request. Dire need is when the claimant is without - and is unable to obtain - food, medicine or shelter. Mere hardship is not enough. The situation must be dire. An imminent eviction, with no financial resources to find new shelter, would certainly qualify.

As shown by critical case request evaluation sheet used by ODAR, documentation of the critical situation is important. I included the claimant's eviction notice with my recent dire need request.