New York Social Security Disability Lawyer Blog

One of a handful of factors that the SSA and reviewing judges consider in determining whether a claimant is eligible for Social Security disability benefits is whether the claimant's impairment(s) is sufficiently severe. In Parker-Grose v. Astrue, the Second Circuit Court of Appeals explains some of the evidence that can be used to meet this requirement.

Plaintiff Mary Jane Parker-Grose filed a claim for Social Security disability benefits, asserting that she's unable to work due to depression. The Social Security Administration (SSA) initially denied the claim and, following an administrative hearing, an SSA Administrative Law Judge (ALJ) found that Plaintiff was not disabled for purposes of obtaining disability benefits. Specifically, the judge determined that Plaintiff's depression is not sufficiently severe.

In order to find a claimant eligible for Social Security benefits, the SSA or a reviewing judge must find that the claimant suffers from one or more severe impairments. An impairment is severe if it "significantly limits the claimant's ability to do basic work activities." The SSA advises claimants "[i]f you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled." An ALJ considering the severity of a claimant's impairment must make this decision based on substantial evidence.

In this case, the Second Circuit - which sits in New York City and whose jurisdiction covers New York state, Connecticut and Vermont - reversed the ALJ's decision and remanded the case for further proceedings, ruling that the ALJ's finding that Plaintiff's depression is "nonsevere" was not supported by substantial evidence. In so doing, the court noted that the severity requirement is a "de minimis" one aimed at weeding out claims in which a claimant suffers from only minimal impairment.

According to the court, two treating psychologists - Dr. Joseph M. Patalano and Dr. Richard Root II - examined Plaintiff and determined that she suffers from depression. Furthermore, Dr. Root estimated Plaintiff's "Global Assessment of Functioning" (GAF) score - an assessment of a patient's overall level of functioning - to be in the range of persons experiencing "moderate symptoms" including "moderate difficulty in school, work, [and] social functioning." These opinions, the court ruled, proved that Plaintiff's depression was sufficiently severe.

Continue reading "Severe Impairment in Social Security Disability Cases - Parker-Grose v. Astrue" »

Thanks to everyone who participated in our drive to raise money for area food pantries! Over the holiday season, we offered to donate $10 for every new "Like" on our Facebook page, and we raised $520. Lew and Gabe will be rounding this up to $600, to be distributed equally between the following food banks:
• Tarrytown Community Opportunity Center Food Pantry
• Dutchess County Community Action Partnership: Beacon Food Pantry
• Center for Food Action (Hackensack)
• Daily Bread Food Pantry (Danbury)

Let's all make an ongoing effort to donate food and other necessities to a food banks serving our local communities!

As experienced Social Security disability attorneys with more than 50 years of combined experience representing clients in New York, New Jersey and Connecticut, we've long known that the outcome of a particular case can depend on which Administrative Law Judge (ALJ) from the Social security Administration (SSA) is assigned to hear it. After a year in which the SSA has taken heat for judges that appear unfairly predisposed to deny claims as well as one allegedly approves claims too frequently, the Administration is taking action.

The Wall Street Journal's Damien Paletta reports that "[t]he Social Security Administration has commissioned an independent review of the federal disability system amid concerns it awards benefits to those who don't deserve them and denies benefits to those who do." The Administrative Conference of the United States, a public-private organization designed to make government more efficient, will review the work of the SSA's more than 1,500 ALJs and release recommendations for improving the claims process in 2012.

Additionally, in an effort to prevent so-called "judge shopping," Paletta reports that the SSA will discontinue its practice of notifying claimants of which ALJ has been assigned to his or her respective claim. It is assumed by SSA that if a Representative doesn't know which ALJ is assigned to the case, there will be less of an inclination to try to get the case reassigned. Although we believe that SSA's action is flawed and is penalizing both the claimant's and the scrupulous attorneys who represent their clients at the hearing regardless of who the assigned ALJ is, we know that this practice is simply a response to a larger problem: the wide disparity among SSA ALJs, whose records vary widely despite the fact that it is their job is to apply laws which are generally clear.

For example, it is well known to local practitioners that SSA's Jamaica, Queens office, has long had a reputation as being predisposed to deny the majority of Disability claims. Last year, several Social Security claimants filed a class-action lawsuit alleging that the ALJs in the Queens office are biased against applicants, with several judges who have systematically denied benefits by making legal and factual errors. Three of the Queens ALJs named in the suit rejected more than 60% of the Social Security claims they reviewed over five months in late 2010 and early 2011, while another rejected an astounding 81% of claims reviewed during the same time. In 2007, the Queens office had the fifth highest percentage nationwide of decisions sent back for rehearing upon further appeal.

On the other side of the spectrum is David B. Daugherty, an ALJ who retired over the summer amid an investigation into his record. At hearings held out of the Office of Hearings and Appeals in Huntington, W.Va., Daugherty approved benefits in 99.7% of his decisions in Fiscal Year 2010, including all 729 cases that he decided in the first six months of the year.

Continue reading "Social Security Judges to be Reviewed" »

In March v. Commissioner of Social Security, the Ninth Circuit Court of Appeal explains that, in determining whether a disability benefits claimant retains the ability to perform work, a judge must take into account all of the Plaintiff's physical and mental limitations.

The Social Security Administration (SSA) denied Plaintiff Vickie March's initial claim for Social Security disability benefits, in which March had claimed that she's unable to work due to various physical and mental impairments. March appealed the decision and, following a hearing before an SSA Administrative Law Judge (ALJ), the judge also found that she was not disabled. Specifically, the ALJ determined that March retained the residual functional capacity (RFC) - the ability to perform basic functions necessary for work related activities despite any impairments - to perform certain jobs available in the national economy.

Upon exhaustion of her administrative appeal rights, March appealed the aDministration's decision in Federal Court. At that point, Ninth Circuit found that the ALJ's RFC determination was flawed because it "did not adequately account for certain limitations." Although the ALJ found that Plaintiff's impairments caused "moderate difficulties maintaining concentration, persistence or pace and a reduced capacity to concentrate owing to pain and stress," he failed to take these limitations into account when determining Plaintiff's RFC.

Similarly, the ALJ noted that a physician's report finding that Plaintiff's physical impairments caused "restrictions on bending, twisting and repetitive upper extremity hand controls," but the ALJ did not account for these limitations in determining Plaintiff's RFC. According to the court, the ALJ was not required to discuss every piece of evidence presented in developing the record, but nevertheless was obligated to explain his rejection of significant probative evidence, such as the physician's report. As a result, the court remanded the case for further proceedings.

In reaching its decision, the court also made two important points that Social Security disability claimants should keep in mind in gathering the evidence necessary to support a claim. First, the court found that the ALJ properly discredited testimony by Plaintiff and a neighbor regarding the severity of her symptoms because this testimony conflicted with both evidence that Plaintiff provided about her daily activities and various doctors' reports. Second, the court ruled that the ALJ also properly rejected a treating physician's opinion - even though such an opinion is ordinarily entitled to great weight - because it was contained in a "conclusory check-the-box questionnaire [that] described no bases for his diagnoses..." In so doing, the court held that a physician's opinion must be supported by clinical findings in order to be sufficient to support a claim.

Continue reading "Social Security Judges Must Take All of a Claimant's Limitations into Account - March v. Commissioner of Social Security" »

An article about Social Security disability appeared a few days ago in the Wall Street Journal, focusing on Senatorial calls for review of Binder & Binder cases. (A second article on the topic ran today; if you can't access the WSJ online, you can read the first article here.)

While some of the practices reported as being done by that company, if true, are disturbing and warrant review, what was more striking to me in reading the article and online comments by readers was the rampant ignorance of the system revealed by those posters in their comments.

Despite the fact that the Journal article gave a brief synopsis of the Social Security Disability process and the fact that Disability can be due to physical or mental problems, a surprising number of posts blamed the disabled for their conditions. There were too many references to how being obese is the fault of the person, and questioning how people can be disabled when work-place safety is at an all time high. Of course, there were the typical offensive rants about how everyone in the inner cities have learned to play the system and it is for that reason that the Government is bankrupt.

Seriously, all that those posts reveal is a disturbing ignorance about the Social Security Disability process.

The people who call for abolishing Social Security and returning old-age financial planning to the citizens fails to consider that not everyone is as financially set as they themselves might be. Those who blame the victims and reference job safety as a reason to abolish the system similarly just don't understand. Those who lump together all minorities and residents of the inner cities clearly have issues that do not warrant further comment in this venue.

While it is true that there are abuses in the system, in my experience, the majority of people who come to us for help do so because they have run out of choices. More often than not, they have run through their savings, been forced to stop working despite decades of steady work, or come to us after multiple hospitalizations and extensive failed medical treatments.

Most people who become disabled, whether due to a car accident, assault, cancer or a mental disorder have no control over what happened to them. The vast majority of my clients would much prefer to be working instead of collecting the $900 national average monthly benefits that are sent by SSA; they just can't.

It is my hope that the Senators and Representatives who will now focus greater scrutiny on the Social Security Disability system will remember that most of the beneficiaries of the program are legitimately disabled and only looking for the benefits that they earned after many years of paying into the Social Security system. They should also remember that most Disability beneficiaries vote.

Gabe Hermann

The Fourth Circuit Court of Appeal's recent ruling in Smith v. Astrue is an excellent example of how a seasoned Social Security disability lawyer can assist a claimant seeking disability benefits.

Plaintiff Evangeline Smith filed a claim for Social Security Disability (SSDI) and Supplemental Security Income (SSI) benefits, due to a painful joint condition. The claim was denied initially and following a hearing where the SSA Administrative Law Judgefound that although Plaintiff suffered from a joint problem, it did not prevent her from working.

On appeal, the Fourth Circuit noted the standard of proof- that it will overturn an ALJ's decision on a Social Security disability claim only where the decision is not supported by "substantial evidence." According to the court, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In this case, the court ruled, Plaintiff failed to show that the ALJ's decision was not supported by substantial evidence. It also appears that Plaintiff missed an opportunity to present substantial evidence that she is disabled and unable to work.

As the court explains,

The determination of whether a person is disabled by pain or other symptoms is a two-step process. First, the claimant must produce objective medical evidence showing the existence of a medical impairment which could reasonably be expected to produce the pain alleged....Second, the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.

With respect to the second factor, Smith based her appeal largely on her own personal statements regarding the pain and its effect on her ability to work. The court noted, however, that in considering this factor an ALJ should take into account all of the available evidence, including doctor's records, lab results and overall medical history.

Smith argued that the ALJ improperly failed to obtain her treating physician's opinion as to whether she met the requirements of an SSA listing. A Listing is a regulation that describes a medical condition that is so severe that the SSA presumes that any person who satisfies the criteria of a particular listing is unable to perform any gainful activity and therefore eligible for benefits.

Smith could have avoided this problem altogether by simply getting the doctor's opinion into the record. Although some doctors are not willing to complete the forms that satisfy the Regulations to show that a LIsting is met; we spend a great deal of effort trying to get these opinions in our cases.The ALJ's are required to give well supported treating source opinion significant weight and, very often, "controlling" weight in reaching their decision.

Continue reading "A Good Social Security Lawyer Doesn't Allow Reasonable Minds to Differ - Smith v. Astrue" »

Wishing you and yours Happy Holidays, from all of us at Insler & Hermann.

Check out another recent Social Security disability success story just posted to our website. Our client had been fighting to receive disability payments on her own and with another attorney since 2006, but had made no progress. We are so happy we could help her! Click here to read more!

We are proud to announce that Insler & Hermann, LLP has been selected for the 2011 Best of Danbury Award in the Miscellaneous Business Legal Services category by the U.S. Commerce Association (USCA).

The USCA "Best of Local Business" Award Program recognizes outstanding local businesses throughout the country. Each year, the USCA identifies companies that they believe have achieved exceptional marketing success in their local community and business category. These are local companies that enhance the positive image of small business through service to their customers and community.

Various sources of information were gathered and analyzed to choose the winners in each category. The 2011 USCA Award Program focuses on quality, not quantity. Winners are determined based on the information gathered both internally by the USCA and data provided by third parties.

For many claimants, the road to Social Security disability benefits includes a pit stop at a hearing before a Social Security judge. As experienced disability attorneys who have represented thousands of Social Security claimants, our view is that this is a claimant's best opportunity to win his or her case. At hearing, the claimant has the opportunity to present a wide array of records and other evidence in support of the claim, including the opinions of physicians who have examined and treated the claimant. While this evidence can go a long way in proving disability, the Third Circuit Court of Appeal's recent ruling in Chandler v. Commissioner of Social Security makes clear that the ultimate decision on the issue of Disability belongs to the ALJ.

"The ALJ--not treating or examining physicians or State agency consultants-- must make the ultimate disability and RFC determinations," the court ruled, referring to residual functional capacity, a claimant's ability to perform work despite any physical or mental impairments.

Plaintiff Kacee Chandler filed a claim for Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) benefits asserting that she is no longer able to work as a bookkeeper, receptionist and housekeeper due to reflexive sympathetic dystrophy (RSD). RSD is a nerve disorder characterized by chronic severe burning pain, pathological changes in bone and skin, excessive sweating, tissue swelling and extreme sensitivity to touch. The Social Security Administration (SSA) denied Plaintiff's claim and, following an appellate hearing, an SSA Administrative Law Judge (ALJ) upheld the denial, finding that Plaintiff retained the RFC to perform sedentary work with certain limitations and that jobs meeting those criteria were available in the national economy.

On further review, the District Court reversed the ALJ's decision, ruling that the ALJ's RFC determination was not supported by substantial evidence. The Third Circuit subsequently reversed the District Court and affirmed the Administrations final decision, ruling that the District Court overstepped its bounds and that the ALJ's decision was based on ample support. Specifically, the court found that the ALJ was justified in relying on the opinion of one Dr. Popat, a state agency medical consultant who, on review of some medical records and without a physical examination, determined that, despite her impairment, Plaintiff retained the ability to occasionally lift or carry ten pounds, climb stairs, balance, stoop, kneel, crouch and crawl, and that she had no manipulative, visual, communicative or environmental limitations.

The court disagreed with the district court's finding that the ALJ should not have relied on Dr. Popat's opinion because it did not take into account medical records developed after the opinion was given and contradicted the opinion of Plaintiff's treating physician. "Although treating and examining physician opinions often deserve more weight than the opinions of doctors who review records...the law is clear . . . that the opinion of a treating physician does not bind the ALJ on the issue of functional capacity,'" the court ruled, quoting its opinion earlier this year in Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011). In this case, Dr. Popat's opinion was supported by other evidence in the record and, according to the court, the ALJ did not err in relying on it.

Continue reading "Court: Social Security Administrative Law Judge, Not Doctors and Experts, Has Final Say as to Whether A Claimant is Disabled - Chandler v. Commissioner of Social Security" »

A person seeking Social Security disability benefits is not required to be represented by an attorney. However, as the Second Circuit Court of Appeal's ruling in Giunta v. Commissioner of Social Security makes clear, there are many reasons why a claimant may want legal counsel.

Plaintiff Joseph Giunta, a Flushing, New York resident, filed a claim for Social Security disability benefits, asserting that he's unable to work due to a physical injury. Giunta's claim was denied on Initial Application. Giunta appeared before an SSA Administrative Law Judge (ALJ) for a hearing at which he testified and presented evidence from a treating doctor.

The ALJ issued an Unfavorable Determination, finding that Giunta could return to work as a "light duty" computer technician, despite his injuries. On appeal, the Federal District Court and the Second Circuit affirmed the ALJ's decision, ruling that the decision was supported by substantial evidence.

In reaching its decision, the court noted that "a claimant's subjective report of the effects of his impairment is not controlling and the opinion of a treating physician is not controlling if it conflicts with other substantial evidence in the record." In this case, Giunta's testimony and that of his treating physician regarding the debilitating effects of his injuries was contradicted by objective medical evidence - the opinion of examining doctors - and, even worse, by Giunta's own actions.

Giunta returned to work as a computer technician following his injury and testified that, after he was laid off, he was unable to find another job because of the poor economy, rather than due to any disability.

While attorney representation doesn't guarantee success in a Social Security disability claim, an experienced disability lawyer can provide vital assistance and expertise that can mean the difference between approval and denial of a claim and in some cases speed up the claims process. In this case an experienced Social Security disability attorney would have evaluated the claim and determined what, if any, viable argument was available to persuade the decision-makers to grant his claim for Disability.

Continue reading "New York Social Security Disability Case Shows the Importance of Having a Good Lawyer - Giunta v. Commissioner of Social Security" »

Between now and New Years, for every new "Like" we get on Facebook, we will donate $10 to the following food pantries (up to $1000, to be distributed equally):

• Tarrytown Community Opportunity Center Food Pantry
• Dutchess County Community Action Partnership: Beacon Food Pantry
• Center for Food Action (Hackensack)
• Daily Bread Food Pantry (Danbury)

Tell your friends!

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The Social Security Administration (SSA) initially denies roughly 65 percent of all Social Security disability benefits claims nationwide. For those applicants who don't give up - the most important step is a hearing before an SSA Administrative Law Judge (ALJ). The medical evidence provided to show that the claimant is fact disabled is a major factor in determining whether someone is disabled. A judge reviewing this evidence retains a fair amount of discretion in weighing the opinions of various medical professionals. Yet, as the Ninth Circuit Court of Appeal explains in Morinskey v. Astrue, a judge that disregards or simply ignores an opinion must provide an explanation for doing so.

Social Secuirty denied Plaintiff Donald H. Morinskey's application for Social Security disability benefits - asserting that he's unable to work due to bi-polar disorder - and an SSA ALJ upheld this decision after a hearing. The ALJ found that, despite certain limitations related to his mental impairment,Morinskey retained the ability to work in certain "low stress" jobs available in the national economy. A federal district court also upheld the denial.

On further appeal, however, the Ninth Circuit reversed the ALJ's decision and remanded the case to the ALJ to order the payment of benefits. The court found that the ALJ's decision was not supported by substantial evidence. Specifically, according to the court, the ALJ failed to properly explain his decision to disregard the medical opinion of an examining consultant. "An ALJ is required to state 'specific and legitimate' reasons to explain why his conclusions outweigh the doctor's opinion," the court stated. Yet while the ALJ gave great weight to certain portions of the opinion proffered by Dr. McNairn, an examining consultant hired by the SSA, it disregarded a crucial part of the opinion without analysis or discussion: McNairn's finding that Plaintiff's "abilities to maintain regular attendance, to sustain an ordinary routine, and to complete a normal work day or week without interruption from his bi-polar disorder were moderately impaired."

Not only did the ALJ fail to properly explain the decision to ignore this part of McNairn's opinion, but it also appears that the decision was erroneous. The court noted that McNairn's findings were consistent with the "overwhelming evidence" from Plaintiff's various treating physicians. There are even Social Security Rulings that direct how the ALJ is supposed to evaluate these opinions from their own doctors.

Thus, rather than remanding the case to the ALJ in order to properly explain the decision to ignore McNairn's opinion, the court instead directed the ALJ to approve Plaintiff's Social Security disability claim and award benefits.

Continue reading "Medical Opinions in Social Security Disability Cases - Morinskey v. Astrue" »