New York Social Security Disability Lawyers Blog

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."

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

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.

Continue reading "Judge Recommends Social Security Disability Benefits for Amputee based on inability to stoop and kneel" »

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."

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

A person whose Social Security disability benefits claim is denied by the Social Security Administration (SSA) typically must appear before an SSA Administrative Law Judge (ALJ) at an administrative hearing in order to continue the claim review process. While an ALJ considering a particular claim is given a substantial amount of discretion in determining whether the claimant is eligible for benefits, the District Court for the District of New Jersey's recent ruling in Young v. Commissioner of Social Security is a reminder that an ALJ must identify a clear set of facts and findings on which the determination is based.

Plaintiff Victoria Young, a 47-year-old with a high school education, filed a Social Security disability benefits claim, asserting that she's unable to work due to hypertension, anemia and orthopedic conditions. The Social Security Administration (SSA) denied the claim and, after an administrative hearing, an ALJ found that Plaintiff is not disabled for benefits purposes. The SSA's Appeals Council declined Plaintiff's request that it review the ALJ's decision, making the decision final.

On appeal, the District Court remanded the matter to the ALJ for clarification. "[A]n ALJ's findings should be as comprehensive and analytical as feasible and should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision," the court stated.

A claimant must show not only that her impairments are "severe" but also that the impairment is so severe that it prevents her from performing any work as performed in the national economy. In this case, the ALJ failed to give any explanation as to why he determined that Plaintiff's obesity and limited motion in her back and shoulders did not constitute disabling impairments. Furthermore, although "the ALJ is required to compare the claimant's medical evidence to a list of impairments presumed severe enough to preclude any gainful work," the ALJ did not include such a comparison in his decision.

While the court noted that the record may ultimately support the ALJ's decision, it remanded the case back to the ALJ with instructions that the judge " provide further explanation of the items in the record that are relied upon for his decision."

Continue reading "New Jersey Court: Social Security Disability Judge Must Provide a Clear Factual Basis of Denying a Benefits Claim - Young v. Commissioner of Social Security" »

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" »

Although a person applying for Social Security disability benefits is not required to obtain the assistance of an experienced disability attorney, there are a number of reasons why he or she would want to do so.

One is that an experienced lawyer, particularly one with litigation training, can represent the claimant in court in the event that an appeal is necessary. Unfortunately, the Social Security Administration (SSA) denies the majority of Social Security disability claims filed. In order to continue to seek to obtain benefits, a person whose claim is initially denied often must appear at an administrative hearing before an SSA Administrative Law Judge (ALJ) and at times will be required to appeal the ALJ's decision in federal court.

Aside from lacking the legal skill that can be helpful in developing a claim along with all of the necessary evidence and in representing a client at an administrative hearing, a non-lawyer representative simply can only take a claimant so far in the claims process.

In Daniels v. Commissioner of Social Security, for example, the Second Circuit Court of Appeal recently upheld a lower court's ruling that although Plaintiff Gloria Daniels served as her husband's representative in his claim for disability benefits - a claim which the SSA denied - she could not prosecute the federal case appealing the SSA's decision on his behalf. In so doing, the court cited its 2002 opinion in Machadio v. Apfel in which it held that an individual who is not a licensed attorney "may not appear on another person's behalf in the other's cause."The decision makes clear one obvious decision between a so-called "claimant representative" and an actual attorney licensed to practice law. On its website, the SSA makes clear that "[a] claimant may appoint a qualified individual to represent him or her in doing business with Social Security." Only a licensed attorney (or the claimant himself) however, can represent the claimant in the event that a federal appeal is necessary; that is, in filing a complaint against the SSA seeking to overturn its decision.

But there are also a number of ways in which an experienced Social Security disability attorney can provide important assistance to a client throughout the claims process. In filing a disability claim on a client's behalf, a local attorney familiar with the SSA staff and judges who review claims in a particular geographical area are often well equipped to present a claim in the most compelling manner because the attorney knows what these people look for in their review.

Continue reading "The Difference Between an Experienced Social Security Disability Lawyer and a Representative - Daniels v. Commissioner of Social Security " »

For newcomers to the Social Security disability claims process, it's easy to get lost in the mountains of paperwork, medical records and acronyms that the process often entails. In Bridges v. Astrue, the District Court for the Eastern District of Arkansas reminds us that the goal is to gain a complete and accurate picture of a claimant's conditions and limitations and their effect on his or her ability to work.

Plaintiff Anthony Bridges filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits, asserting that he's unable to work due to kidney and liver problems, diabetes, spinal arthritis, high cholesterol, high blood pressure and right leg problems. The Social Security Administration (SSA) initially denied the claim and again on reconsideration.

Following an Administrative Hearing before an SSA Administrative Law Judge (ALJ), the judge found that Plaintiff is not disabled and therefore not eligible for benefits. Although Plaintiff's obesity and back problems constitute severe impairments, the ALJ determined that Plaintiff "retained the residual functional capacity (RFC) to perform a reduced range of sedentary work activity, with only occasional climbing, stooping, kneeling, crouching and crawling." As a result, Plaintiff could not return to previous jobs in the trucking industry, but according to the ALJ, could perform jobs as "an assembly worker or inspector." The SSA's Appeals Council denied Plaintiff's request that it review the ALJ's decision.

Following further appeal, the Eastern District remanded the case to the ALJ, ruling that the ALJ failed to consider certain factors in determining Plaintiff's RFC. First, the ALJ failed to indicate whether or not he found Plaintiff's diabetes and peripheral neuropathy (a nerve problem associated with diabetes) to be severe. Thus, it is not clear whether the ALJ took these conditions into account when determining Plaintiff's RFC.

Additionally, the ALJ did not provide sufficient reasoning for discrediting the opinion of Dr. Vandenburg, Plaintiff's treating physician. While "[i]t is the ALJ's function to resolve conflicts among the various treating and examining physicians," an ALJ must nevertheless provide adequate reasoning for the decision to discredit a physician's opinion. The court noted that there may in fact be good reason for discrediting Dr. Vandenburg's opinion, but that it could not make this determination based on the record.

Continue reading "Social Security Claims Process is About the Big Picture - Bridges v. Astrue" »

In considering whether a claimant is eligible for Social Security disability benefits, the Social Security Administration (SSA) generally determines whether the person is unable to work for a year or more due to a physical or mental impairment or a combination thereof. If yes, than the claimant is generally eligible for benefits. But the analysis doesn't end there. As the Seventh Circuit Court of Appeal's opinion in Blevins v. Astrue illustrates, the SSA continues to monitor claimants who are awarded benefits to ensure that they remain eligible to continue receiving assistance. And as the Plaintiff in this case learned too late, an experienced disability attorney can provide vital assistance to clients when the SSA reviews their continuing eligibility for benefits.

The SSA approved Plaintiff Scott Blevins' Social Security Disability Insurance (SSDI) benefits claim in 2002, finding that he was unable to work for at least a year due to a variety of mental impairments, including depression, attention deficit disorder, learning disorder and post traumatic stress disorder. In 2007, the agency re-evaluated Blevins' claim as part of its "continuing disability review" program, through which the SSA periodically considers whether a claimant's impairments have improved to such an extent that he or she is capable of working. The SSA determined that Plaintiff's mental impairments had improved and, as a result, he was no longer disabled.

Following a hearing before an SSA Administrative Law Judge (ALJ), the judge upheld the SSA's decision, finding that Plaintiff could now perform some of his past work as well as other jobs existing in the national economy. The decision was based largely on the opinion of a psychologist who determined that Plaintiff's "Global Assessment of Functioning" (GAF) score - an assessment of the patient's overall level of functioning - had improved and was no longer in the "serious impairment in social, occupational or school functioning" range.

On further appeal, the Seventh Circuit affirmed the ALJ's decision, finding that it was supported by substantial evidence. It also refused to consider Plaintiff's claim that "he was not informed of his options for obtaining appointed counsel at his hearing before the ALJ, either by the ALJ at the hearing's outset or previously by the SSA through written notice." The court found that this argument was waived because Plaintiff didn't raise it earlier in the appeal process.

Continue reading "Social Security Continuing Disability Reviews - Blevins v. Astrue" »

In Kiely v. Astrue, the district court for the District of Connecticut explains that a judge who discredits a Social Security disability benefits applicant's testimony should have a clear reason for doing it and that reason must be supported by the evidentiary record.

Plaintiff Paula Kiely filed an application for Social Security disability benefits, asserting that she is unable to work due to Chron's disease, diverticulosis and irritable bowel syndrome. The Social Security Administration (SSA) denied the application, and an SSA Administrative Law Judge (ALJ) upheld the decision on appeal. The ALJ found that there "was no medical basis" for Plaintiff's alleged Chron's disease. The ALJ further determined that, although Plaintiff suffers from diverticulosis and irritable bowel syndrome, "neither of these would cause disabling symptoms." The ALJ posed hypothetical questions to a Vocational Expert (VE) to determine whether someone suffering from Plaintiff's limitations - as viewed by the ALJ - could perform jobs existing in the national economy. The VE answered affirmatively.

On appeal, the District Court reversed the ALJ's decision and remanded the case. The court found that the ALJ's credibility determination - ruling that Plaintiff's testimony regarding the intensity, persistence and limiting effects of her gastrointestinal problems was not based on evidence and therefore not credible - was itself not supported by substantial evidence. It appears, according to the court, that the ALJ discounted Plaintiff's testimony simply because the ALJ disagreed with Plaintiff's assertion that she suffers from Chron's disease. "[I]t is not clear how this bears on Ms. Kiely's credibility, as Ms. Kiely certainly had reason to believe she had Crohn's disease after she was diagnosed with it," according to the court. "Furthermore, the mountain of doctor's reports recording Ms. Kiely's consistent complaints of gastrointestinal problems evidence that Ms. Kiely was suffering from significant limitations due to some such disease."

The court also noted that, to the extent that the ALJ discounted Plaintiff's testimony because it was inconsistent with the Vocational Expert's testimony, the decision is not supported by the record. "Citing specific reasons for conclusions will not save such conclusions when the reasons are not firmly based in the record," the court ruled. The hypothetical questions posed to the VE by the ALJ did not take into account the full extent of Plaintiff's limitations because at that point the ALJ had already determined that Plaintiff's impairments are not disabling. Plaintiff's lawyer, however, did pose certain hypothetical questions to the VE about a person with Plaintiff's actual limitations, which would require her to take one sick day a month and to use the bathroom five to eight times per day. In this hypothetical, the VE said that the person suffering from these limitations would not be able to find a job existing in large numbers in the national economy.

As a result, the court reversed the ALJ's decision and remanded the case back to the ALJ solely to determine that amount of Plaintiff's disability benefits.

Continue reading "Weighing a Claimant's Testimony in a Social Security Disability Case - Kiely v. Astrue" »

In Mantovani v. Astrue, the Eastern District of New York once again warns that an Administrative Law Judge (ALJ) reviewing a Social Security disability benefits claim is responsible for developing a full and accurate administrative record before ruling on the claim. While the legal holding is a powerful tool for beneficiary claimants, they are advised not to rely too heavily on it.

Plaintiff Gary T. Mantovani is a 57-year-old who formerly worked as both a supermarket stock clerk and lot worker. He suffers from asthma, emphysema, poor memory and "borderline intelligence." Plaintiff filed a claim for Social Security disability benefits in 2002, asserting that he is unable to work due to these impairments. The Social Security Administration (SSA) denied Plaintiff's claim and an SSA ALJ upheld this decision following a hearing on the matter, finding that while Plaintiff's various impairments prevented him from performing previous jobs, he could nevertheless perform jobs available in the national economy that require only "simple, sedentary work." The SSA's Appeals Council, which reviews written requests that an ALJ's decision be overturned, declined to review Plaintiff's claim.

On further appeal, however, the Eastern District remanded the case to the ALJ for further proceedings. The court noted that the "Treating Physician Rule" requires that the medical opinions of a disability claimant's treating physician be 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. Where a treating physician's opinion is not afforded controlling weight, the ALJ must "provide good reasons for the weight given to the treating sources opinion." Furthermore, "an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record."

In this case, the ALJ gave "limited" weight to the opinion of Dr. Ralph Iorio, Plaintiff's internal medicine specialist since March 1997, because his diagnosis was "not supported by objective diagnostic tests, clinical signs or treatment received during the relevant time," according to the ALJ. Citing the Second Circuit Court of Appeal's decision in Cedeno v. Comm'r of Soc. Sec., 315 Fed. App'x 352, 353, however, the court ruled that the ALJ was required to request "additional evidence or clarification" from Dr. Iorio before reaching this conclusion. Since the ALJ failed to re-contact Dr. Iorio for an explanation of his opinion or to request additional evidence, the ALJ did not meet its duty to adequately develop the administrative record. As a result, the court remanded the case for further proceedings.

As we have previously advised, a Social Security disability benefits claimant should not rely on the SSA or an ALJ to adequately develop an administrative record before reaching a decision on the claim. Not only does this often not happen, but when the SSA or an ALJ is court ordered to do so, it is often the result of a long and drawn out process during which the claimant is unable to collect monthly disability benefits payments. An experienced Social Security disability lawyer can assist a client in gathering the necessary records and other evidence to prove the claim, filing it on the client's behalf and representing the client on appeal, if necessary.

Related blog posts:

Connecticut Court Explains Impairment and Severity Analysis for Social Security Disability Claims - Juarbe v. Astrue

New York Court: Social Security Judges Must Help Disability Claimants Get Necessary Medical Records - Bernacet v. Commissioner of Social Security

Predicting the Future of Social Security

In recent posts, we've explained some of the various legal issues that can arise in a Social Security disability benefits claim as well as an appeal of a denial of a Social Security Disability claim. However, for many applicants, there is a long, tough road to hoe before even getting to these issues.

In a recent article, the St. Augustine Record's Jennifer Edwards tells the story of Kim Paul Carter, a 54-year-old carpenter currently undergoing a second bout of cancer, which, thus far, has cost him his job and his home. The SSA denied Carter's initial application for disability benefits and he is currently awaiting an appeal hearing. Meanwhile, he undergoes radiation treatment three times a week, but can't afford the stem cell transplant that doctors say could help treat the condition.

According to Edwards, Carter is one of a growing number of Social Security disability benefits applicants coping with being (at least temporarily) shut out of the system. "The annual number of applications for the program has increased more than 28 percent over five years, going from about 2.5 million to about 3.2 million," she reports. Paralleling the jump in applications is a drop in the number of those that are actually approved. The SSA approval rate dipped from 35 percent to 33 percent from 2005 to 2010. Moreover, the number of claims pending a decision continues to grow. Applicants whose claims are initially rejected can be expected to wait almost a year or more for an appellate hearing (which, based on our experience representing thousands of applicants, is the best opportunity to prove a claim).

The process may be about to get slower. The National Council of Social Security Administration Field Operations Locals, the union that represents SSA employees, predicts that if the agency's 2012 budget remains at 2011 levels, the SSA would review 400,000 fewer disability claims, raising the agency's backlog of claims to 1.2 million and extending the time for an average claim to be reviewed and decided on to more than four months. If the budget were actually reduced, it could lead to a further slow down.

If eventually approved for benefits, Carter will be eligible for retroactive payments covering the current waiting period. For now, he's living in a trailer parked behind his foreclosed home.

A person seeking Social Security disability benefits must submit an application or claim, which can be done by telephone, mail or online. In addition to other background information, the applicant is asked to describe the impairment and any treatment of it. This is the most difficult and confusing part of the process and the point at which a Social Security disability attorney's help can be invaluable. An experienced lawyer knows what information must be included in the initial application, and an excellent lawyer - not a "claim advocate" - will not only guide his or her client through the process but file the application for the client as well. Furthermore, the SSA has implemented a number of programs aimed at fast tracking certain claims and the lawyer can assist the client in efforts to speed up the decision process. Finally, a disability lawyer can also represent the applicant before SSA and federal judges on appeal, if necessary.

Related blog posts:

Fast-Track Social Security Disability Claims to be Sped Up

Social Security Disability Hearings: What to Expect

SSA Turns to Electronic Processing of Medical Records for Social Security Disability Claims

The Social Security disability claims process is a world of acronyms: SSA; ALJ; SGA; SSI; SSDI; the list goes on and on. In Caldwell v. Astrue, the federal court for the Western District of Arkansas explains the interaction of two acronyms that can make or break a Social Security disability case: RFC and VE.

Plaintiff Cynthia Caldwell filed an application for Social Security disability benefits in March 2007, asserting that she is unable to work due to carpal tunnel syndrome, osteoarthritis and tendonitis. The Social Security Administration (SSA) denied the claim and, following a hearing on the matter, an SSA Administrative Law Judge (ALJ) upheld the decision. Specifically, the ALJ determined that although Plaintiff suffered from severe impairments, she retained the residual functional capacity (RFC) to perform "light" and "unskilled work," and therefore was not disabled for the purposes of disability benefits.

In reaching the decision, the ALJ considered Plaintiff's age (52) and education (high school graduate) as well as her prior work as a painting contractor's helper. The ALJ also relied on the testimony of a vocational expert (VE), a vocation rehabilitation professional that provides advice to an ALJ regarding a claimant's ability to perform any type of work activity. In response to a hypothetical question from the ALJ, the VE testified that an individual with Plaintiff's limitations retained the ability to perform jobs such as a "fast food worker," "production worker in assembly" and "cleaner" or "maid."

On further appeal, however, the Western District overturned the ALJ's decision, finding that it was not supported by substantial evidence. In considering a disability claimant's RFC, the court held, an ALJ "bears the primary responsibility for making the RFC determination and for ensuring that there is 'some medical evidence' regarding the claimant's 'ability to function in the workplace' that supports its RFC determination." In the present action, the ALJ failed to take Plaintiff's physical limitations due to carpal tunnel syndrome into account in both posing hypothetical questions to the VE and ultimately determining Plaintiff's RFC. As a result, the court reversed the decision and remanded the case to the ALJ, concluding that it is impossible to tell whether the jobs identified by the VE as ones that Plaintiff could still perform would be precluded because of these limitations.

Although the SSA initially denies the majority of Social Security disability claims, including many with merit, the good news is that the appellate hearing before an ALJ is the best opportunity for a claimant to prove and win his or her case. An experienced Social Security disability attorney can provide vital assistance to a claimant in an appellate hearing, including those in which the ALJ calls on a VE to testify. The disability lawyer can gauge the VE's impartiality, expertise and professional qualifications, question the VE fully on any pertinent matter within the VE's area of expertise and object to the VE's testimony - based on bias, lack of expertise or other valid grounds - if necessary.

Related blog posts:

The Role of a Vocational Expert in the Social Security Disability Hearing

Social Security Disability Hearings: What to Expect

In Order to Get Social Security Benefits, Your Impairment Must be "Severe" - Harris v. Astrue

For disabled Americans across the country who rely on Social Security Disability Insurance, the process of obtaining these benefits is hard enough. The Ninth Circuit Court of Appeals' recent ruling in Carillo-Yeras v. Astrue ensures that once a person successfully navigates the disability claims process and begins receiving benefits, the Feds can't take those benefits away without a comprehensive and quick investigation.

In May 2000, Plaintiff Cynthia Carillo-Yeras filed a claim for Social Security disability benefits, asserting that she is unable to work due to back problems that began in July 1999 following a tailbone injury and two corrective surgeries. The Social Security Administration (SSA) denied the claim originally and on reconsideration and an SSA Administrative Law Judge (ALJ) upheld the ruling on appeal. In a March 2003 ruling, the ALJ found that Plaintiff retained the residual functional capacity (RFC) to perform previous work as a medical receptionist or hospital admitting clerk.

Plaintiff sought further review by the SSA Appeals Council, which reviews written requests that an ALJ's decision be overturned. While this request for review was pending, Plaintiff filed a second claim for disability benefits in June 2003, this time asserting that she has been disabled since March 2003 (the day after the prior ALJ decision) due to back injuries as well as arachnoiditis. SSA granted this claim at the initial application level and began paying Plaintiff monthly disability benefits.

In June 2004, the Appeals Council granted Carillo-Yeras' request for review of the denial of her first application and reopened the determination on her second application. The Appeals Council then consolidated the two matters for one hearing. Following the hearing, an ALJ issued a new decision denying both of Plaintiff's applications for benefits.

Undeterred, Plaintiff then filed the instant action. The Ninth Circuit ruled that the SSA failed to "diligently pursue" its investigation of whether the second benefits claim should be revised after re-opening the matter. According to the court, applicable regulations "prohibit the SSA from revising a determination in a manner unfavorable to the claimant after the expiration of...time limits...if the agency 'ha[s] not diligently pursued the investigation to its conclusion.'" The court concluded that the 23 month lag between the time that the Appeals Council re-opened its review of the claim and the date on which it denied the claim was unacceptable and did not constitute diligence. As a result, the ALJ lacked the authority to re-consider the approval of Plaintiff's second application for benefits. The court reversed and remanded the ALJ's decision, instructing the SSA to reinstate Plaintiff's benefits.

Continue reading "Court Limits SSA's Ability to Reverse Social Security Disability Claim Approvals - Carillo-Yeras v. Astrue " »

In previous posts, we've described the various efforts - including the further development of the compassionate allowances program and increased electronic medical record transfer capacities - which the Social Security Administration (SSA) has undertaken to try to speed up its Social Security disability benefits claims review process. By most accounts, the agency is doing everything it can to try and make the process a well oiled machine. Except, according to a recent report, when employee bonuses are at stake.

The Wall Street Journal's Damian Paletta reports that top SSA officials directed Social Security judges and employees to slow down their review of disability benefits claims and set certain cases aside in late September in order to boost review numbers for the new fiscal year, which began on Oct. 1.

"Top officials, in a bid to meet goals to win promotions or thousands of dollars in bonuses, directed many employees to refrain from issuing decisions on cases until next week," Paletta wrote in a Sept. 30 Journal article. Although the federal fiscal year is 52 weeks long, the annual calendar year is one day longer. Every handful of years, as a result, there is a week that falls into a twilight zone between federal fiscal years. For the SSA, cases closed during this lost week - the most recent of which occurred at the end of September - do not count for either fiscal year and therefore are not included when the agency reviews the productivity for which employee bonuses and promotions are awarded. So some officials allegedly decided to pump the brakes for a week.

On Monday Sept. 26, for example, the SSA's Office of Disability Adjudication and Review decided 230 claims nationwide, as opposed to the roughly 3,000 cases that the office closes out on a typical day, according to the Journal. Paletta estimates that the slowdown will likely "delay benefits paid to thousands of Americans with pending applications, many of whom are financially needy and have waited for a government decision for more than a year." Congress' Ways and Means Committee has called on the SSA's Inspector General, Patrick P. O'Carroll, to investigate the matter.

Even without the alleged slowdown, the Social Security disability claims process is often long and painstaking. The majority of claims, including many that are viable, are initially denied, requiring the claimant to appeal in order to get to benefits. The current wait time for a decision on appeal is more than 450 days.

An experienced Social Security attorney can help an applicant prepare a claim and supporting information to ensure that it is reviewed by the SSA in the most efficient possible manner. The disability lawyer will not only file a claim on behalf of a disabled client, but also follow up throughout the claims process to ensure that the SSA has all of the necessary information and documentation. If a hearing is necessary, disability attorneys who have received advocacy training are much more likely to persuade judges who might be on the fence over how to interpret certain evidence in the claims record.

Related blog posts:

An Overview of How Long Each Stage of Your Disability Claim Will Take

Social Security Disability Appeals Office Hailed for Efforts to Reduce Backlog

Fast-Track Social Security Disability Claims to be Sped Up