New York Social Security Disability Lawyers Blog

In Zingale v. Astrue, the District Court for the Middle District of Florida reviews a battle of medical opinions, explaining that the ultimate decision as to whether a claimant is disabled for Social Security benefits purposes is for the Social Security Administration (SSA), not a medical expert, to decide. The court also notes that a claimant's continued job search may affect his or her disability benefits claim.

Plaintiff Vickie Zingale filed a disability benefits claim with the SSA, alleging that she's unable to work due to post-fusion back syndrome, hypertension, insomnia, headaches and pain disorder. The SSA originally denied the claim and again on reconsideration. Following a hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that Zingale was not disabled because she retained the residual functional capacity (RFC) to perform light work in a stable work environment and, therefore, could perform a significant number of jobs in the national economy.

On appeal, Plaintiff argued that the ALJ failed to give proper weight to the opinion of a Dr. Daitch, who treated Plaintiff for injuries sustained in a car accident and concluded that in his opinion Plaintiff is disabled and incapacitated. The ALJ disregarded Dr. Daitch's opinion that Plaintiff is disabled for because "the determination of disability is an issue reserved for the Commissioner and as such the undersigned is not bound to give any special significance to the source of such an opinion."

Agreeing that this opinion was not entitled to controlling authority, the District Court found that the disability determination "is not a medical opinion under Social Security regulations," but rather "a dispositive finding left to the ALJ." While the Regulations call for the opinion of treating sources to be given extra weight and in some cases "controlling weight"; that is only if there is no significant evidence to the contrary.

In this case the court found that the ALJ had good cause to discount Dr. Daitch's opinion that Plaintiff is incapacitated because it was inconsistent with the bulk of the record. Specifically, Dr. Daitch concluded that Plaintiff "cannot use her feet for repetitive movements as in operating foot controls and cannot bend, squat, crawl, or climb." He also determined that she is unable to reach above shoulder level. This opinion, according to the court, conflicted with medical evidence and opinions of another physician who, after a motor examination showed full strength, concluded that Plaintiff's physical improvement was limited by her lack of effort.

Notably, the court also found that Dr. Daitch's opinion and Plaintiff's own credibility in describing the limiting effects of her impairments was undermined by Plaintiff's continued search for work. In other words, the ALJ found that the job search contradicted the argument that Plaintiff was entirely incapacitated as a result of her impairments. "Although the ALJ may not consider Plaintiff's search for employment as a determining factor of disability, he may consider the search for purposes of assessing credibility," the court noted.

Continue reading "Court Takes on Battle of Medical Opinions and Considers Claimant's Continued Search for Work in Social Security Disability Case - Zingale v. Astrue " »

While an experienced Social Security disability lawyer can provide vital assistance to a person seeking to obtain disability benefits, a judge reviewing a benefits claim will often look to the claimant - and, more importantly, the claimant's daily activities - to determine whether in fact he or she is unable to work due to disability. As a result, a claimant's credibility is a key factor. In Conley v. Astrue, the Ninth Circuit Court of Appeals explains that a Social Security judge may reject a claimant's statements regarding the nature of his or her impairment, so long as the judge provides a good reason for doing so.

The Social Security Administration (SSA) denied Plaintiff Marlene Conley's disability benefits claim, in which Plaintiff asserted that she's unable to work due to lupus and fibromyalgia. After a hearing before an Administrative Law Judge (ALJ), the ALJ found that Plaintiff was not disabled for benefits purposes because she retained the ability to perform at least light work, despite her impairments.

In reaching this decision, the ALJ concluded that Plaintiff's testimony regarding the debilitating nature and extent of her impairments - particularly the pain and discomfort caused by them - was "not entirely credible," a determination that Plaintiff challenged on appeal. In affirming this decision, the District Court noted that an ALJ must base a credibility determination on "clear and convincing reasons," including "inconsistencies between the claimant's testimony and her conduct, daily activities, and work record."

According to the court, the ALJ based the credibility determination on specific evidence indicating that her impairments did not limit Plaintiff's day to day activities as significantly as she indicated. For example, the ALJ found that Plaintiff "was not forthcoming" about the fact that she regularly cared for her three grandchildren, including two toddlers that require significant attention. The judge further noted that Plaintiff is able to take care of herself and a dog, perform household chores, visit with friends daily and swim, among other activities. Thus according to the court, the ALJ "cited to several clear and convincing reasons for finding Conley's testimony not entirely credible," and did not err in discounting her subjective pain complaints.

Similarly, the court found that the ALJ properly discounted statements made by Dr. Van Belois regarding the extent of Plaintiff's impairment because these statements were based heavily on Plaintiff's subjective complaints and were contradicted by her daily activities. "Because the ALJ cited to specific and legitimate reasons for discounting Dr. Van Belois's opinion, he did not commit legal error," the court ruled.

Continue reading "Claimant Credibility in Social Security Disability Cases - Conley v. Astrue" »

More than 1.1 million people in the U.S. live with HIV, according to the Centers for Disease Control. Many affected by the immunodeficiency virus are likely eligible for Social Security disability benefits. In Castillo v. Commissioner of Social Security, the U.S. District Court for the District of New Jersey recently considered a disability claim filed by one Garden State man suffering from the disease.

Plaintiff Jose Castillo filed a claim for disability benefits in 2007, asserting that he was unable to work due to HIV as well as hepatitis B and C. The Social Security Administration (SSA) denied Plaintiff's claim initially and on reconsideration. After a hearing, an SSA Administrative Law Judge (ALJ) found that Plaintiff is not disabled because, despite his impairments, he retains the residual functional capacity (RFC) to perform light work.

Upon appeal, the SSA Appeals Council determined Plaintiff met the requirements for the SSA's HIV wasting impairment beginning on November 8, 2008 and, as a result, was disabled as of that date. In so doing, the Appeals Council adopted the ALJ's findings except that it determined that Plaintiff was no longer able to perform light work beginning on November 8, 2008.

Plaintiff then filed an appeal in district court, seeking a decision finding that he was disabled and eligible for benefits beginning on the date of his original claim for benefits in 2007. In remanding the case back to the ALJ, the court found that the ALJ failed to provide adequate reasoning for her decision to discredit Plaintiff's testimony regarding the intensity, persistence and limiting effects of his impairments. "Since...[A]n ALJ cannot reject evidence for no reason or for the wrong reason, an explanation from the ALJ indicating the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper," the court noted, quoting the Third Circuit Court of Appeals' 1981 decision in Cotter v. Harris. In this case, however, the court found that the ALJ gave no reason for rejecting certain parts of Plaintiff's testimony.

Furthermore, the ALJ failed to explain the basis for her RFC determination, according to the court. "Besides a bare recitation of [Plaintiff's] treatment reports the ALJ failed to explain her rationale in limiting [Plaintiff] to light work." As a result, the court remanded the case back to the ALJ with instructions that the judge further develop the record, consistent with the relevant case law.

Continue reading "New Jersey Court Remands Social Security Judge's Decision in HIV Disability Benefits Case - Castillo v. Commissioner of Social Security " »

A Social Security Administration (SSA) Administrative Law Judge (ALJ) considering a disability benefits claim undertakes a five-step inquiry in order to determine whether the claimant is eligible for benefits. At step three, the judge must determine whether the claimant meets the requirements of any of the SSA's Listing of Medical Impairments, which describe medical conditions that are so severe that the Agency presumes that any person who satisfies the criteria of a particular listing is unable to perform any gainful activity and therefore eligible for disability benefits.

In Risner v. Commissioner of Social Security, the District Court for the Southern District of Ohio explains that an ALJ must provide an adequate explanation of the step three determination in order to allow appellate courts to determine whether it is supported by substantial evidence.

The SSA denied Plaintiff Linda Risner's claim for Social Security disability benefits, in which Plaintiff asserted that she's unable to work based on a combination of physical and mental impairments including coronary artery disease with residuals of bypass surgery, chronic obstructive pulmonary disease, major depressive disorder and anxiety disorder. Following an administrative hearing, an ALJ also determined that Plaintiff is not disabled for benefits purposes. The ALJ found that, despite her impairments, Plaintiff retained the residual functional capacity (RFC) to perform a limited range of light work with certain additional limitations and could therefore perform a significant number of jobs available in the national economy.

On appeal, Plaintiff argued that the ALJ failed to give proper weight to her treating physician's opinion and failed to properly asses Plaintiff's credibility. As a result of these errors, according to Plaintiff, the ALJ wrongly determined that her impairments did satisfy any of the SSA's Listing of Medical Impairments. Finally, Plaintiff claimed that the ALJ also failed to provide a proper basis for reaching this decision.

A Magistrate Judge recommended that the ALJ's decision be affirmed because any possible error regarding the Listing determination was harmless: upon independent review of the record, the Magistrate found that Plaintiff did not satisfy the requirements of any listing. The District Court, however, rejected the Magistrate's recommendation, ruling that the ALJ failed to adequately explain his reasoning for finding that Plaintiff did not satisfy a Listing.

Continue reading "Court Requires Social Security Judge to Explain Medical Listing Determination in Disability Case - Risner v. Commissioner of Social Security " »

In these posts, we often discuss Social Security disability cases that involve a decision as to whether there are a "significant number" of jobs in the national economy which the claimant can perform, despite his or her imitations. But how does the Social Security Administration (SSA) determine which jobs a claimant can perform and whether they exist in a significant number? The Sixth Circuit Court of Appeal pulls back the curtain a bit in Doran v. Commissioner of Social Security.

Plaintiff David Doran, a high school graduate who previously worked in construction and ironworking, filed a claim for Social Security disability benefits, asserting that he is unable to work due to arm and shoulder injuries as well as depression and anxiety. The SSA initially denied the claim.

Following three administrative hearings, an SSA Administrative Law Judge (ALJ) found that Plaintiff is not disabled because he can still perform a significant number of jobs available in the national economy. A federal district court ultimately affirmed the ALJ's decision, finding that it was supported by substantial evidence. On appeal before the Sixth Circuit, Plaintiff argued that the decision should be reversed because, contrary to the ALJ's conclusion, there are not a substantial number of jobs in the economy that he could perform.

The ALJ's decision was based largely on the testimony of a vocational expert (VE) who, according to the Sixth Circuit, "based her opinion on the exhibits in the record showing that [Plaintiff] could lift ten pounds or under, could walk or stand six and one-half to eight hours per day, and could sit five and one-half hours to eight hours per day." The VE also noted that Plaintiff could neither perform high stress work nor that requiring direct public contact. Finally, the VE stated that Plaintiff could perform various tasks at a reasonable pace and could complete a normal workday and workweek without interruptions from psychologically-based symptoms. As a result, the VE concluded that Plaintiff could perform jobs as an office clerk, security guard and parking lot attendant.

The VE's conclusion was also based on the Dictionary of Occupational Titles, a publication produced by the Department of Labor until the early 90s. Although no longer updated, the SSA continues to use the Dictionary - which classifies jobs by their exertional and skill requirements - to determine which jobs a person can perform, accounting for his or her mental and physical limitations.

Continue reading "The Determination of Which and How Many Jobs a Social Security Disability Claimant Can Perform - Doran v. Commissioner of Social Security" »

In Chase v. Astrue, the Seventh Circuit Court of Appeal recently pointed out something that may seem obvious, but is nevertheless important to keep in mind in the Social Security disability claims process: judges are not doctors.

David Chase, a 48-year-old with a seventh grade education who previously worked as a day laborer, filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits, asserting that he's unable to work due to an ulcer on his right big toe. His right foot was crushed in a forklift accident in 1995 and five years later he reinjured that foot by stepping on a sharp object. The Social Security Administration (SSA) initially denied the claim and again on appeal. Following an administrative hearing, an SSA Administrative Law Judge (ALJ) found that Plaintiff is not disabled because he retained the residual functional capacity (RFC) to perform sedentary work.

On appeal, Plaintiff argued that the ALJ improperly determined the level of foot elevation that Plaintiff requires while seated as a result of his impairment. Specifically, the ALJ reached his decision after asking a vocational expert (VE) how many sedentary jobs might be available for someone, like Plaintiff, who needs to keep his foot elevated while seated in order to avoid swelling in his toe. According to the court, the VE stated "10 to 15 to maybe 20 degrees would be still acceptable but that any higher elevation would make it extremely difficult to be able to continue to work."

After the hearing, Plaintiff's lawyer contacted his treating physician to determine just how high Plaintiff needed to keep his foot elevated while seated. In a written statement, the doctor indicated that Plaintiff should elevate his foot "higher than the heart" and "at least 90 degrees." The ALJ, however, rejected this information, noting that it was provided after the hearing and that none of the evidence in the record discussed foot elevation. Instead, the ALJ determined that Plaintiff did not need to elevate his foot higher than 15 to 20 degrees and, based on the VE's testimony, could therefore perform sedentary work.

The Seventh Circuit agreed with Plaintiff, ruling that "the ALJ overstepped his role by determining that the degree of foot elevation required by Chase was 15 to 20 degrees." Citing its prior decision in Myles v. Astrue, the court noted that an ALJ "may not 'play doctor' by using his own lay opinions to fill evidentiary gaps in the record." In this case, neither Plaintiff's physician nor two state agency physicians who examined him indicated that Plaintiff could perform sedentary work by keeping his foot elevated 15 to 20 degrees.

Continue reading "Federal Court: Social Security Disability Judges Cannot "Play Doctor" - Chase v. Astrue" »

In Bjornson v. Astrue, the Seventh Circuit recently fired a warning shot at Social Security disability judges, imploring them not to rely on "template" language and scolding one in particular for reaching a decision "in a leisurely, even meandering, fashion."

Plaintiff Christine Bjornson filed a claim for Social Security disability benefits, asserting that she's unable to work due severe back pain and "Chiari malformation" - a structural defect in the cerebellum, the part of the brain that controls balance - which she suffered after a 1999 car accident. The Seventh Circuit described Plaintiff's relevant medical history as follows:

After three operations on her brain and spine in 2002, the vision and speech problems that the Chiari malformation had caused lessened substantially but she developed hydrocephalus - a buildup of cerebrospinal fluid in the brain - that required the installation of a shunt in her brain, to drain the fluid. It took three installations to place the shunt properly, the last in 2003.

The Social Security Administration (SSA), nevertheless, denied Plaintiff's claim. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined that Plaintiff is not disabled for benefits purposes because she is capable of performing sedentary work so long as she's allowed to sit or stand at any time and could therefore return to previous work as a real estate office clerk.

In reversing the ALJ's decision, the Seventh Circuit first scolded the ALJ for relying on boilerplate language in drafting the decision. Particularly, the ALJ stated in the decision "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments would reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." As the Court noted, it has previously criticized this "template" language - provided by the SSA to its judges to insert into their decisions - as "meaningless boilerplate."

The Court further noted that the ALJ had not even made the residual functional capacity assessment to which the statement refers at this point in the decision. More troubling to the Court, however, was that the ALJ generally "failed to build a bridge between the medical evidence and the conclusion that [Plaintiff] is able to work full time in a sedentary occupation." As a result, the Court reversed the ALJ's decision and remanded the case for further proceedings.

Continue reading "Court to Social Security Disability Judges: Cool it with The Boilerplate - Bjornson v. Astrue" »

In addition to providing disability benefits to a person who previously worked, but who has been unable to work, or is expected to be unable to work for a year or more due to a physical or mental impairment, the Social Security Administration (SSA) also provides benefits to a person who is disabled and whose deceased spouse worked before passing away. Generally, a person may be eligible for widow/widower benefits where: a) the widow or widower is between ages 50 and 60; b) the widow or widower meets the definition of disability for adults; and 3) the disability started before or within seven years of the working spouse's death.

In Parker v. Astrue, the District Court for the Southern District of Ohio explains that the SSA and its judges use the same standard for determining a widow's benefits claimant's disability as they do in considering other disability benefits claims.

Plaintiff Elizabeth Parker filed a claim for disabled widow's benefits following the death of her husband, asserting that she is disabled due to herniated discs in her lower back, fibromyalgia, arthritis, plantar fasciitis, pain, anxiety and depression. The SSA denied the claim and Plaintiff subsequently appeared at two administrative hearings before an SSA Administrative Law Judge (ALJ). The ALJ found that Plaintiff is capable of performing a limited range of sedentary work, including jobs existing in significant numbers in the national economy, and therefore not disabled for benefits purposes.

The District Court reversed the ALJ's decision on appeal, finding that the ALJ improperly ignored a consulting physician's conclusion that Plaintiff is unable to perform manual tasks that require the frequent lifting or carrying of materials due to her various physical impairments. Dr. Aivars Vitols, an orthopedic surgeon who examined Plaintiff upon the ALJ's request in 2009, indicated that Plaintiff could occasionally carry up to ten pounds and occasionally lift up to twenty pounds, but that she could not frequently lift or carry any amount of weight. Yet, the court noted, "[t]he ALJ did not explain why he disregarded the 'no frequent lifting' restriction while accepting all the other limitations proposed by Dr. Vitols. This restriction, according to the court, "would have mandated a finding of 'disability.'" As a result, the court remanded the case to the ALJ for rehearing.

In 2008, more than 230,000 disabled widows and widowers received Social Security disability benefits. The spouse and children of a living, disabled worker may also be eligible for benefits. In order to obtain disability benefits, a person must submit a claim to the SSA, starting what is often a long and complicated claims process. The SSA initially denies roughly 65 percent of claims filed, including many with merit.

Continue reading "Social Security Disability Benefits for Spouses - Parker v. Astrue" »

For many Social Security disability benefits claimants, the claim process is a long and complicated affair. In Aruanno v. Commissioner of Social Security, however, the Third Circuit Court of Appeal explains that a claimant must follow through with this process before seeking relief in federal court.

The Social Security Administration (SSA) awarded Plaintiff Joseph Aruanno Social Security Disability Insurance (SSDI) benefits in July 1995. Almost a year and a half later, Plaintiff was convicted in a New Jersey state court of second-degree sexual assault and incarcerated. Because of his incarceration, SSA suspended Plaintiff's disability benefits. In 2004, Plaintiff was transferred from prison to civil detention unit where he still resided at the time of the court's opinion.

After the transfer, Plaintiff requested by letter to SSA that his SSDI benefits be restored. The SSA rejected this request and did not respond to a subsequent 2007 letter in which Plaintiff again requested that his benefits be restored. Plaintiff then filed the instant action in U.S. District Court for the District of New Jersey, asking the court to compel the SSA to restore his benefits. The court dismissed the action for lack of subject matter jurisdiction.

On appeal, the Third Circuit upheld the District Court's ruling, agreeing that it lacked subject matter jurisdiction over the matter because the SSA had not reached a 'final decision' on Plaintiff's request that his benefits be restored.

42 U.S.C. § 405(g) sets a federal district court's jurisdiction over Social Security disability appeals as follows

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party...may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides.

The court explained that "an individual claiming entitlement to benefits first receives an initial determination." The claimant can then seek reconsideration of this determination if he or she is not satisfied. Following reconsideration, the claimant can request an administrative hearing before an SSA Administrative Law Judge (ALJ). If dissatisfied with the ALJ's decision, the claimant can ask the SSA's Appeals Council to review the decision. The Appeals Council may decline the request or review the ALJ's decision and then issue a decision of its own. The Appeal's Council's action according to the court, constitutes the Commissioner's final decision, which the claimant can then appeal in federal court.

Continue reading "Court: SSA Must Reach 'Final Decision' Before Social Security Disability Claimant Can Appeal in Federal Court - Aruanno v. Commissioner of Social Security" »

In Penrod v. Astrue, the District Court for the Middle District of Florida is the latest to tackle the question of a Social Security judge's responsibility to fully develop the factual record in considering a disability benefits claim.

Plaintiff Eric Penrod - a former welder/fabricator and mechanic with a high school education - filed a Social Security disability benefits claim, asserting that he's unable to work due to leg and ankle injuries, bilateral carpal tunnel syndrome and shoulder arthritis as well as depression and anxiety. The ankle and leg injuries are the result of two car accidents. He has suffered from arthritis for 10-15 years and underwent surgery for the carpal tunnel in the 90s.

The Social Security Administration (SSA) initially denied the claim and again on reconsideration. At an administrative hearing before an SSA Administrative Law Judge (ALJ), Penrod testified that he can barely walk on the right leg because it constantly feels like it is asleep and that he typically keeps the leg elevated to avoid swelling. He also indicated that his hands occasionally go numb as a result of the carpal tunnel. An SSA 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, testified that a hypothetical person of Penrod's age, experience and physical and mental limitations would be able to do manual assembly and production inspection jobs which are available in the national and local economy.

At the close of the hearing, the ALJ indicated that the record should be updated by scheduling Penrod for orthopedic and psychological consultative examinations to determine the current extent of his impairments. He indicated that the SSA would schedule these exams and that a letter notifying Penrod of the time and date of the exams would be mailed to Penrod's mother's residence (Penrod was homeless at the time of the hearing). These exams never took place. According to Penrod, he was out of state during the time for which the exams were originally scheduled and he never heard from his attorney, who told Penrod that he would request to schedule the exams at a later date. The ALJ issued a decision six weeks after the hearing in which he found that Penrod is not disabled for benefits purposes because he is capable of performing the jobs identified by the VE.

The Middle District rejected Penrod's request to overturn the ALJ's decision because it was not based on a complete record. The court noted that its role is simply to determine whether the ALJ's decision is supported by substantial evidence. In so doing, the court explained that an ALJ "has a basic duty to develop a full and fair record," but that the claimant ultimately bears the burden of proving his or her claim.

Continue reading "Florida Court Weighs in on ALJ's Duty to Develop the Record in Social Security Disability Cases - Penrod v. Astrue" »

"Don't let Washington decide the future of Medicare and Social Security without you."

That's the message that AARP, the non-profit organization representing people 50 and older, is sending to its roughly 37 million members in a new program aimed at fighting potential cuts in both Social Security benefits and Medicare.

Titled "You've Earned a Say," the nationwide program includes town hall meetings from state to state, online member surveys and national advertising. The goal is not only to mobilize AARP members, but also to develop a record of public opinion regarding possible cuts.

According to U.S. News & World Report's Philip Moeller, "Cuts to both [Social Security and Medicare] have been called for in a series of budget deficit proposals, including the bipartisan National Commission on Fiscal Responsibility and Reform. Since its report more than a year ago, several other sets of proposals have been introduced but sidetracked by the increasingly partisan political divide in Congress."

The AARP program comes less than a year after the organization took heat from members for indicating that it would no longer oppose all future Social Security benefits cuts. In July, the group clarified its position, stating "AARP is as committed as we've ever been to fighting to protect Social Security for today's seniors and strengthening it for future generations."

Continue reading "AARP Rallies on Social Security, Medicare Cuts" »

The Social Security Administration (SSA) provides disability benefits to persons who are unable to work due to disability. But sometimes the question of whether a particular claimant is disabled isn't so easy to answer. In Gordon v. Commissioner of Social Security, the District Court for the District of New York explains how the SSA weighs a person's history of substance abuse in determining whether he or she is eligible for benefits.

Plaintiff Thomas Gordon filed a claim for Social Security disability benefits, asserting that he's unable to work due to a schizoaffective disorder. The SSA denied his claim. Following an administrative hearing before an SSA Administrative Law Judge (ALJ) in Binghamton, NY, the ALJ found that Plaintiff is not disabled for Social Security benefits purposes. Specifically, according to the Court "[t]he ALJ concluded that if [Plaintiff] stopped substance use, he would be able to perform past relevant work as an HVAC laborer and therefore was not disabled within the meaning of the Social Security Act."

On appeal, the District Court upheld the ALJ's decision, finding that it was supported by substantial evidence. Generally, a person who is unable to work for one year or more due to a physical or mental impairment is eligible for Social Security disability benefits. In 1996, however, the Social Security Act was amended to provide that "an individual shall not be considered to be disabled...if alcoholism or drug addiction would...be a contributing factor material to the Commissioner's determination that the individual is disabled." Citing the Eastern District of New York's ruling in Hernandez v. Astrue, the Court explained that "[i]n determining whether alcohol or substance abuse is material to the determination of disability, the key factor is whether the Commissioner would still find the claimant disabled if he stopped using the alcohol or substance."

In this case, the ALJ found that Plaintiff would continue to suffer from mild schizoaffective disorder if he stopped substance abuse and that this impairment could be treated and controlled with medication. Furthermore, the ALJ determined that Plaintiff would retain the RFC to perform a full range of jobs available in the national economy, including his previous job as an HVAC technician. This conclusion, according to the Court, was supported by various medical records indicating that Plaintiff's substance abuse contributed to his disability, including one doctor's finding that Plaintiff's "psychosis is substance induced." Despite the fact that the Department of Veterans Affairs (VA) had previously determined that Plaintiff is fully disabled as a result of his mental impairment, the Court noted that the VA's disability criteria differs from that employed by the SSA. As a result, the Court affirmed the ALJ's decision.

As Social Security disability attorneys with decades of experience representing clients in New York, New Jersey and Connecticut, we understand that substance abuse can be a result, rather than the cause, of disabling impairments. By gathering the necessary statements and supporting documentation from the treating sources and presenting it to the SSA and its judges in a compelling manner, an experienced Social Security lawyer can assist a client in showing that the alcohol or substance abuse is not a material cause of the disability and that any impairment in the ability to work is not due to the substance abuse.

Related blog posts:

Evaluating Mental Health in a Social Security Disability Case - Jefferson v. Astrue

Weighing a Treating Physician's Opinion in Social Security Disability Cases - Mathews v. Astrue

Social Security Disability Claimants: Help Us Help You - Irizarry v. Astrue

In many Social Security disability cases, the decision as to whether the claimant is eligible for benefits comes down to his or her ability to do lighter work than they had done previously. Although a claimant may suffer from legitimate physical and/or mental impairments that limit his day to day activities - perhaps to the extent that the claimant can no longer perform his previous jobs - he will nevertheless be determined ineligible for disability benefits if the SSA or a reviewing court concludes that he can perform other types of jobs. This analysis is based the claimant's residual functional capacity (RFC) - what the claimant can do despite any impairments - in light of the type of jobs available in the national economy for someone with the claimant's age, education and experience.

The RFC determination is crucial to a winning (or losing) case. In Siverio v. Commissioner of Social Security, the Eleventh Circuit Court of Appeal explains that this determination - like the overall disability decision - must be supported by substantial evidence.

The Social Security Administration (SSA) and the ALJ denied Plaintiff Ricardo Siverio's disability benefits claim, finding that although he is unable to return to previous work, Siverio retains the residual functional capacity (RFC) to perform other work that exists in the national economy.

The Eleventh Circuit reversed the ALJ's decision on appeal, taking direct aim at the RFC determination. "RFC is an assessment of a claimant's remaining ability to do work despite his impairments," the court noted, further explaining that "[t]he ALJ must consider any statements by medical sources about what the claimant can still do and whether those statements are based on formal medical examinations."

In this case, the court found that the ALJ's RFC determination was not supported by substantial evidence because it was based on an RFC determination by a "single decision maker": an SSA employee who, according to the court, is "assigned to make the initial disability determination after appropriate consultation with a medical or psychological consultant."

Since a single decision maker does not have medical credentials, the court ruled that such a determination is not an acceptable medical source on which an ALJ may base an RFC determination.

Continue reading ""Single Decision makers not "Acceptable Medical Sources" in a Social Security Disability Case - Siverio v. Commissioner of Social Security" »

In addition to an experienced disability attorney, a Social Security disability benefits claimant's most compelling advocate is often his or her doctor. Under the "treating physician" rule, the Social Security Administration (SSA) and courts reviewing a benefits claim are typically required to give great weight to the opinion of a claimant's treating doctor. The Western District of Arkansas' recent ruling in Mathews v. Astrue is the latest example of the rule's significance in the outcome of a claim.

The SSA denied Plaintiff Sheryl Mathews' claim for Social Security Disability Insurance and Supplemental Security Income, in which Plaintiff asserted that she's unable to work due to diabetes mellitus, hypertension, back, knee and neck pain, mood problems, chronic obstructive pulmonary disease and depression. Forty five years old with a tenth grade education at the time she filed the claim, Plaintiff had previously worked on the cleaning staff at a hospital. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that Plaintiff is not disabled because, although she suffers from severe impairments which prevent her from returning to her previous job, Plaintiff retains the ability to perform other jobs.

The Federal Court overturned the ALJ's decision, finding that it was not supported by substantial evidence. The court took issue in particular with the ALJ's decision to discredit the testimony of Dr. Joe Dunaway, who treated Plaintiff for her various physical impairments. In two Medical Source Statements (MSSs) - reports concerning a claimant's impairments and their impact on his or her ability to perform work-related activities - Dr. Dunaway stated that Plaintiff could occasionally lift or carry ten pounds, frequently lift or carry less than ten pounds and stand or walk for at least two hours in an eight-hour workday. He also indicated that Plaintiff must periodically alternate sitting and standing and could sit and stand for a combined total of less than six hours in an eight-hour workday.

Noting that "[a] treating physician's opinion 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," the court held that the ALJ improperly discredited the MSSs in reaching the decision. The fact that Dr. Dunaway had treated Plaintiff throughout the relevant time period indicated that he was highly familiar with Plaintiff's symptoms, according to the court. Furthermore, since "Dr. Dunaway was the only treating physician to report on Plaintiff's impairments, disregarding his opinion left no medical evidence in the record on the issue." As a result, the court ruled that the ALJ's decision was not based on substantial evidence and therefore remanded the case for further consideration.

An experienced Social Security disability attorney can provide invaluable assistance to a claimant - especially in a disability case involving medical opinions by treating and other physicians - by presenting the claim in a clear and concise manner and pointing out and explaining any inconsistencies in the record, rather than relying on the SSA or an ALJ to sift through the evidence.

However we see cases like this over and over again where the ALJ rejects the only probative evidence because of what can only be described as a preconceived notion that the claimant is not disabled. Only an experienced, dedicated and principled disability attorney, a would be able to pursue this matter to Federal Court and obtain the "right" decision such as was done here. There is far less chance that an unrepresented claimant would be able to prevail in the face of an ALJ like this!

The Treating Physician Rule in Social Security Disability Cases - Davis v. Commissioner of Social Security

Social Security Disability Benefits for Mental Impairments that Have Not Been Formally Treated - Boulis-Gasche v. Commissioner of Social Security

Social Security Disability Hearings: What to Expect

In Jefferson v. Astrue, the District Court for the Northern District of Florida provides some insight into how a court reviews a Social Security disability judge's decision to discredit a doctor's opinion in considering a disability benefits claim.

Plaintiff Alleachi Mae Jefferson asserted in her benefits claim that she has been unable to work since January 2007 due to back pain and depression. The Social Security Administration (SSA) initially denied the claim and, following an administrative hearing, an SSA Administrative Law Judge (ALJ) found that Plaintiff is not disabled for benefits purposes. Specifically, the ALJ determined that although Plaintiff suffers from severe physical and mental impairments which prevent her from performing her previous job as a school bus driver, she nevertheless retains the residual functional capacity to do a limited range of light work and can therefore perform other jobs available in the national economy, such as "ticket taker, gate guard, parking lot cashier, shipping and receiving clerk and companion." Plaintiff then appealed this decision to the SSA's Appeals Council, which agreed with the ALJ's decision.

On further appeal, Plaintiff argued that the Appeals Council improperly discounted a mental health assessment prepared her treating psychiatrist - which was presented to the SSA after the hearing - in reviewing the ALJ's decision. In 2009, psychiatrist Dr. Judy Ognibene prepared a physician's report based on two examinations of Plaintiff in 2008 for the Florida Retirement System. In order to be eligible for disability benefits under the state system, a person must meet the statutory definition for "total and permanent disability," which requires the state to find that "he or she is prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee." In completing the report, Dr. Ognibene checked a box indicating that Plaintiff has "severe limitation of functional capacity" and is "permanently incapable of any kind of work; totally and permanently incapable of any kind of work; totally and permanently disabled from gainful employment."

The District Court, however, found that the Appeals Council properly declined to rely on Dr. Ognibene's report because she had only seen Plaintiff twice before preparing the report and, according to the court, "seemed to base her assessment upon Plaintiff's subjective statements without any explanation or clinical findings to substantiate her opinion." As a result, the court affirmed the SSA's decision denying Plaintiff's benefits claim.

The opinion of a "treating physician" is entitled to additional weight in comparison to doctors who have seen a claimant on very few occasions It would appear that while the District Court was correct in finding that the doctor does not qualify for "treating physician" status and upholding the Appeals Council; the problem was real ly the failure to get this report before the ALJ. At the hearing a claimant has his or her best opportunity at winning the claim. It is the only time that a claimant and the decision maker are ever face to face. While a report like this cannot be given "controlling weight", it is far more likely that an ALJ would give it"substantial" weight when taken together with the claimant's testimony and the rest of the medical evidence than would the Appeals Council, as we see.

There are of course many reasons why such a report might not have been available prior to the hearing and I am not criticizing the plaintiff's representative. However there are two points to take from this case- as we have said frequently in these postings, obtain and submit evidence early; and as we noted above, not all medical reports are entitled to the same weight.

An experienced Social Security disability attorney can assist a client in the claim process by helping to gather the necessary evidence, filing the claim on the client's behalf and following up with local SSA staff to ensure that it has the information it needs to decide on the claim. A disability lawyer can also represent the client at an administrative hearing or on federal appeal, if necessary.

Related blog posts:

Connecticut Court on Mental Retardation, Listing of Impairments and Social Security Disability Benefits - Duncan v. Astrue

Quantifying Pain in Social Security Disability Cases - Felton-Miller v. Astrue

Social Security Claims and Residual Functional Capacity: How Much Evidence is Enough? Tunink v. Astrue