New York Social Security Disability Lawyers Blog

"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" »

Another day, another federal court chiding the Social Security Administration (SSA) for failing to properly take into account the medical opinions of doctors treating a Social Security disability benefits claimant. As experienced disability lawyers who have represented Social Security claimants for decades, we've long touted treating physician opinion as one of the most important types of evidence in proving a claim for benefits. In Cero v. Commissioner of Social Security, the Ninth Circuit Court of Appeals once again explains that the SSA cannot reject a treating physician's opinion without "clear and convincing" reasons.

The SSA denied Plaintiff Dean Cero's claim for Social Security disability benefits, in which he asserted that he's unable to work due to Parkinson's disease. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that Plaintiff is not disabled for benefits purposes because he retains the ability to perform previous jobs despite any impairments.

On appeal, however, the Ninth Circuit reversed the ALJ's decision, ruling that the judge failed to provide "clear and convincing" reasoning for rejecting the opinions of two of Plaintiff's treating physicians. These opinions, according to the court, "indicate that Cero began suffering from some symptoms of Parkinson's disease in 2001 and 2002."
The ALJ declined to even discuss the first of these opinions, by Dr. Charles Bernick. "By disregarding this opinion and making contrary findings, he effectively rejected it," the court ruled, quoting its prior decision in Smolen v. Chater. Meanwhile, the ALJ dismissed the opinion of Dr. Albert Michelbach as "vague" and "pure patient advocacy," but failed to cite evidence supporting these conclusions, according to the court.

Under the "treating physician" rule, the medical opinions of a disability claimant's treating physician (or psychologist) are given controlling weight where the opinions are well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the other substantial evidence. Furthermore, according to the court, an ALJ must provide clear and convincing reasons for rejecting a treating physician's opinion.

"Because the ALJ failed to provide legally sufficient reasons for rejecting the opinions of Cero's treating physicians, we credit the evidence as true," the court ruled. Since the opinions did not clearly prove that Plaintiff is unable to work due to disability, however, the court remanded the case back to the ALJ to make this determination, calling on a medical adviser if necessary and obtaining all other available medical evidence.

Continue reading "The Power of Treating Physician Opinion in Social Security Disability Cases - Cero v. Commissioner of Social Security" »

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

In order to be eligible for Social Security disability benefits, a person must be unable to work for at least one year due to a physical or mental impairment (or combination thereof). In Thompson v. Astrue, the District Court for the Western District of Arkansas once again reminded Social Security that the explains that the ALJ hearing a benefits claim must evaluate any impairment, that has more than a minimal effect on a claimant's ability to work the definition of what Social Security calls a "severe" impairment).

Plaintiff Gloria Thompson filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits, asserting that she's unable to work due to bipolar disorder, anxiety, depression, seizures and allergies. The Social Security Administration (SSA) initially denied the claim and again on reconsideration.

Plaintiff then appeared at a hearing before an SSA Administrative Law Judge (ALJ) at which she was represented by an attorney. The ALJ found that although Plaintiff suffered from a variety of severe impairments, she retained the residual functional capacity (RFC) to "perform work in which interpersonal contact is incidental to the work performed, complexity of tasks is learned and perform by rote, with few variables and little judgment, and the supervision required is simple, direct and concrete." Plaintiff could no longer perform previous jobs, but could perform other jobs available in significant numbers in the national economy including maid and assembly worker, according to the ALJ. As a result, the ALJ found that Plaintiff was not disabled for benefits purposes.

On appeal, the District Court reversed the ALJ's decision, finding that the judge failed to take various skin conditions into account in considering Plaintiff's impairments and ability to work. "The record is replete with references to Plaintiff's continual complaints of skin rashes, eczema, and hives," the court noted, adding that Plaintiff's medical history showed that she suffered from "severe allergies resulting in multiple hospital visits and treatment with steroid shots, topical and oral steroids and antibiotics, which provided minimal relief."

The court further ruled that, while Plaintiff's skin conditions may not in and of themselves be disabling, the history of Plaintiff's treatment for these conditions indicates that they may have "more than a minimal effect" on her ability to work. thus they to would be considered "severe" and must be evaluated by the ALJ. Since the ALJ did not discuss the skin conditions in deciding on the claim, the court was unable to discern whether the ALJ considered the conditions' effect on Plaintiff's RFC. As a result, the court reversed the ALJ's decision and remanded the case for further record development.

Continue reading "Court reminds ALJ to consider all "Severe" Impairments in Social Security Disability - Thompson v. Astrue" »

I Social Security disability cases, are won by obtaining and submitting medical evidence at the time that a case is being decided, not after the decision is made. In any Social Security claim: the claimant must provide sufficient medical records and other information to show that he or she is unable to work due to an impairment. While evidence is often hard to obtain from doctors and hospitals, the sooner it is submitted, the better.The general rule is that new evidence cannot be submitted once a claim reaches the Federal Court level. In Reynolds v. Commissioner of Social Security, the Eleventh Circuit Court of Appeals explains how a court will consider "new" evidence presented later in the claims process.

Plaintiff Latashar Reynolds filed a Federal appeal after the Social Security Administration (SSA) denied her claim for disability benefits, in which she asserted that she is unable to work due to scoliosis and depression. After the SSA initially denied the claim, an SSA Administrative Law Judge (ALJ) found that Plaintiff's impairments were not sufficiently severe and that she was therefore not eligible for benefits.Although it is not clear, it appears that Reynolds was not represented at any point in her claim.

She definitely was not represented by an attorney in her appeal before the Federal District Court and later the Eleventh Circuit. In the latter appeal, she argued that the ALJ applied the wrong standard in considering the severity of her impairments. She also argued that the district court should have remanded the case to the ALJ based on new evidence - medical records regarding a pregnancy and miscarriage - presented following the ALJ's decision.

The Eleventh Circuit, however, upheld the SSA's benefits denial, finding that the new evidence provided did not require the district court to remand the case to the SSA. 42 U.S.C. § 405(g) allows a district court to remand a case back to the SSA in order to consider new evidence that was not previously available. Citing its prior decision in Caulder v. Bowen, the Court explained that a claimant seeking remand based on new evidence "must establish that: (1) there is new, non-cumulative evidence; (2) the evidence is material, that is, relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for the failure to submit the evidence at the administrative level."

In this case, the Court ruled that while the pregnancy and miscarriage records are non-cumulative - that is, not simply a summary of evidence previously submitted - they are nevertheless immaterial. Specifically, the Court found that the records "are not probative because they do not contain any information relating to [Plaintiff's] alleged impairments and do not relate to the time period on or before the ALJ's decision." As a result, the district court did not err in failing to remand the case to the SSA.

Continue reading ""New" Evidence in Social Security Disability Cases - Reynolds v. Commissioner of Social Security" »