New York Social Security Disability Lawyer Blog

In order to be eligible for Social Security disability benefits, a person must generally be unable to work for one year or more due to a physical or mental impairment or a combination thereof. As experienced Social Security disability lawyers representing clients in New York, New Jersey and Connecticut, we understand that it's often not one particular impairment, but the combined debilitating effects of a number of impairments that prevent many people from being able to work. In Black v. Astrue, the Ninth Circuit Court of Appeal explains that a judge considering a benefits claim must take into account each of a claimant's alleged impairments in determining whether the claimant is disabled and therefore eligible for benefits.

The Social Security Administration (SSA) denied Plaintiff Kristina Black's claim for Child's Insurance Benefits and Supplemental Security Income, in which she alleged disability as a result of depressive disorder with psychotic features, substance abuse, obesity, chronic back pain and anxiety disorder. Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined that Plaintiff was not disabled for benefits purposes. Specifically, the ALJ determined that although Plaintiff suffered from severe impairments in the form of major depressive disorder and substance abuse, she nevertheless retained the residual functional capacity (RFC) to perform her previous job as a dishwasher as well as other jobs existing in significant numbers such as night cleaner.

On appeal, however, the Ninth Circuit reversed the ALJ's decision, finding that the judge failed to consider whether Plaintiff's anxiety disorder also constitutes a severe impairment. Although Plaintiff alleged disability based in part on anxiety disorder and her treating physician diagnosed Plaintiff as suffering from this impairment, the ALJ disregarded the diagnosis without sufficient reasoning, according to the court.

"Substantial evidence does not support the ALJ's conclusion that the anxiety disorder is not a severe impairment in the absence of any mention of the disorder," the court ruled. Furthermore, the court concluded that it could not determine whether this error was harmless because the ALJ did not explain the reasoning for rejecting the evidence and therefore the court was unable to determine whether the ALJ would have found Plaintiff to have retained adequate RFC to perform jobs available in the national economy even if the anxiety disorder was taken into account.

As a result, the court reversed the ALJ's decision and remanded the case back to the ALJ, instructing the ALJ to consider all of the relevant evidence.

Continue reading "Court: Judge Reviewing Social Security Disability Benefits Claim Must Consider Each of the Claimant's Alleged Impairments - Black v. Astrue" »

As experienced Social Security disability lawyers, we know that a person seeking disability benefits can go a long way in proving his or her case by presenting the opinion of a treating doctor. In Carter v. Astrue, the District Court for the Western District of Arkansas explains that a Social Security judge reviewing a claim can't simply disregard such evidence without good reason.

The Social Security Administration (SSA) denied Plaintiff Dayna Carter's disability benefits claim, in which Carter asserted that she's unable to work due to the effects of a brain aneurism as well as severe fatigue and depression. In September 2009, Plaintiff appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ). The ALJ found that although Plaintiff suffered from severe impairment resulting from the brain aneurysm, she nevertheless retained the residual functional capacity (RFC) "for a wide range of light work where interpersonal contact is incidental to the work performed, tasks are learned and performed by rote with few variables and little judgment required, and the supervision is simple and direct."

The ALJ further determined that Plaintiff could not return to her previous jobs, but could perform other work existing in significant numbers in the national economy such as jobs as a cashier and machine operator. This decision was based largely on testimony by a vocational expert (VE) - a rehabilitation professional contracted by the SSA to advise an ALJ regarding a disability claimant's ability to perform work - who stated that a hypothetical individual with Plaintiff's limitations could perform the cashier and machine operator jobs.

The District Court reversed the ALJ's decision on appeal, however, finding that it wasn't supported by substantial evidence "because the ALJ failed to properly analyze the opinion of Plaintiff's treating physician." In determining a claimant's RFC, the court noted that "[t]he ALJ should consider all the evidence in the record...including the medical records, observations of treating physicians and others, and an individual's own description of his limitations." Furthermore, according to the court, it is the ALJ's responsibility to ensure that the RFC determination is supported by some medical evidence regarding the claimant's ability to function in a workplace environment.

Dr. Paul Tucker treated Plaintiff for the effects of the aneurism from 2005 to 2008. In a 2008 RFC questionnaire, Dr. Tucker indicated that: 1) Plaintiff's fatigue would frequently interfere with her attention and concentration; 2) she would need to take unscheduled breaks every two hours during the work day; and 3) she would likely miss approximately four days a month as a result of her impairments.

Continue reading "Court: Social Security Disability Judge Can't Reject Treating Physician's Opinion Without Medical Evidence - Carter v. Astrue" »

Surprisingly few people are aware of a Federal program that can provide huge benefits to disabled police, firefighters and other first responders or to their families in case of death. It's called the Public Safety Officers Benefit Act (PSOB), and recently we were successful in obtaining these benefits for one of our clients.

PSOB provides a one-time benefit to eligible public safety officers who were permanently and totally disabled as a result of a catastrophic injury sustained in the line of duty on or after November 29, 1990. Injuries must permanently prevent officers from performing any gainful work in the future.

PSOB also provides support for higher education to eligible spouses and children of public safety officers who died in the line of duty or were catastrophically disabled in the line of duty.

The program is administered by the Office of Justice Programs, a branch of the Department of Justice. With a small staff, limited budget and a very detailed application process, decisions may be long in coming. But the benefits are quite substantial: over $300,000 for any death or disability since 2007, with the exact amount depending on the date of death or injury.

30 years ago, when I began advising my Workers' Compensation clients to also file for Social Security Disability a common response was, "I never heard of that." While almost everyone knows about Social Security Disability today, I would be willing to bet that I would get the same response from most people about PSOB.

For more information about PSOB visit the government website by clicking here, and if you know anyone who might be eligible feel free to send them our way!

Lewis B. Insler, Esq.

A person whose Social Security disability benefits claim is denied generally has the right to appeal the decision in a federal court. But what about when the bureaucrats charged with reviewing disability claims drag their feet? Can the claimant sue to force a decision? The Seventh Circuit explains in McDonald v. Astrue.

Plaintiff Michelle McDonald filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits in late 2008. In her claim, Plaintiff asserted that she's unable to work due to back injuries stemming from a medical procedure. After the Social Security Administration (SSA) denied her application initially and on reconsideration, Plaintiff appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ) in September 2010. Following this hearing, the SSA informed Plaintiff that it would hold a supplemental hearing in April 2011, at which time she could present the results of a consultative examination (performed by an independent physician contracted by the SSA) and other medical evidence.

One day before the scheduled hearing, Plaintiff filed a complaint against the SSA in federal district court asking the court to order the SSA to approve her claim and begin paying her disability benefits. On motion by the SSA, the district court dismissed the action, ruling that its power is limited to reviewing final decisions by the SSA and that the ALJ had not yet reached a final decision on Plaintiff's claim. The district court did, however, grant Plaintiff leave to refile once she received the Commissioner's final ruling.

Plaintiff subsequently failed to appear at the supplemental administrative hearing. The ALJ dismissed her request for a third hearing, finding that Plaintiff did not establish good cause for failing to appear at the previous hearing. At this point, Plaintiff filed a motion in district court arguing that the ALJ's dismissal of her third hearing was misconduct and retaliatory. The district court denied this motion.

The Seventh Circuit upheld the district court's dismissal on appeal, rejecting Plaintiff's argument that she has a Constitutional due process right to have her benefits claim adjudicated by the SSA in less than 270 days, the agency's stated benchmark for reaching a decision in a hearing case. In so doing, the court noted that although a plaintiff must exhaust all administrative remedies - in other words receive a final decision from the SSA - before filing an action for benefits in federal court, this requirement is waived "when the claimant presents a colorable constitutional challenge" regarding the SSA's claim review. Citing the Supreme Court's decision in Heckler v. Day, however, the court further ruled it does not have the power to impose mandatory deadlines for processing a Social Security claims. Furthermore, the 270-day period, according to the court, is merely a goal, not a hard deadline. As a result, the court held that Plaintiff does not have a Constitutionally protected tight to have her claim decided on within 270 days.

Continue reading "Suing to Speed Up A Social Security Disability Decision - McDonald v. Astrue" »

As experienced Social Security disability attorneys who have represented thousands of clients in disability claims, we know that there's no such thing as a sure thing when it comes to obtaining disability benefits. As the Eastern District of New York's recent decision in Tirado v. Astrue makes clear, not even getting hit by a subway ensures that a person will ultimately be deemed eligible for benefits. More importantly, perhaps, the court makes clear that an ALJ reviewing this and other claims must consider a fully developed factual record before ruling on the claim.

The Social Security Administration (SSA) initially denied Plaintiff Edwin Tirado's claim for Social Security disability benefits, in which he alleged that he was unable to work due to knee and shoulder injuries sustained when he was hit by a subway in 2002. After a hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that Plaintiff was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to perform a range of light work.

The ALJ's decision was largely based on her conclusions that the Plaintiff worked as a furniture deliveryman for almost two years following the subway accident, that he had no record of treatment for his injuries since 2004 and that he was not taking prescribed medications. She also considered the report of a consultative medical examiner who stated that Plaintiff suffered only mild limitations. The ALJ further ruled that Plaintiff's statements concerning the intensity, persistence and limiting effects of his injuries were not credible to the extent they were inconsistent with the ALJ's RFC assessment.

On appeal, the Eastern District reversed the ALJ's decision, finding that the judge failed to adequately develop the record by failing to contacting Plaintiff's treating physician to obtain information about treatment. In so doing, the court noted that "[t]he ALJ generally has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings," particularly where the record lacks adequate information from the claimant's treating physician. Although Plaintiff visited his primary care physician for chronic back pain and swollen knees in 2006 and 2007 and the doctor prescribed Plaintiff with a cane, brace and pain medication to treat these injuries, the ALJ neglected to solicit an opinion from this doctor regarding the claimant's functional limitations.

According to the court, the ALJ's failure to solicit the doctor's opinion was particularly ill-advised in light of the fact that the ALJ noted that the record was lacking in medical evidence covering 2006 and 2007 and took this absence of medical evidence into account in assessing Plaintiff's RFC. The ALJ, therefore, could not have based her RFC decision on adequately substantial evidence, according to the court. "Where there are gaps in the administrative record, or the ALJ has applied an improper legal standard, remand is the appropriate remedy to permit additional consideration," the court ruled, sending the matter back to the ALJ.

Continue reading "New York Court on ALJ's Responsibility to Develop the Record in Social Security Disability Case - Tirado v. Astrue" »

We've mentioned in previous posts that a Social Security Administration (SSA) Administrative Law Judge (ALJ) considering a disability claim is often called upon to weigh the credibility of various parties, including the claimant. In Muniz v. Astrue, the District Court for the Northern District of Ohio joins a growing line of federal courts whose ruling are to remind an ALJ that if the judge discredits all or part of a claimant's testimony, he or she must provide adequate reasoning for doing so.

Plaintiff Jose Muniz, a 56-year-old with a tenth grade education who previously worked as brick layer and cement finisher, filed a claim for Social Security disability benefits, asserting that he's unable to work due physical impairments resulting from diabetes, mellitus, cataracts, hypertension and an affective disorder. The Social Security Administration (SSA) denied the claim.

Plaintiff then appeared before an SSA ALJ at an administrative hearing. According to the court, Plaintiff testified at the administrative hearing that "[h]e does not stand since he became sick (due to diabetes) and, if he stands in place a lot, he has to rub his leg from time to time." He also stated that he cannot hear out of his right ear and can only see shadows out of his left eye. Although Plaintiff could not return to his previous work, the ALJ found that he was nevertheless able to perform "a limited range of medium work" and, therefore, was not disabled because he could perform a significant number of jobs in the national economy. The SSA's Appeals Council denied Plaintiff's request that it review the ALJ's decision.

On appeal, the District Court overturned the ALJ's decision, finding that it was not supported by substantial evidence. The court noted that an ALJ's decisions is "not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion." In this case, however, the court ruled that the ALJ both mischaracterized Plaintiff's hearing testimony and failed to explain why he discredited portions of the testimony concerning Plaintiff's physical limitations.

SSA regulations state that, in order to be capable of performing medium work, a person must be able to frequently ("from one-third to two-thirds of the time") lift or carry objects of up to 25 lbs. in weight. While the ALJ interpreted Plaintiff's testimony as indicating that he can lift 20 lbs. frequently, the court found that this interpretation was not supported by the record. Rather, Plaintiff "unequivocally testified that he thought maybe he could lift twenty pounds for one or two hours, but not six (the amount of time required to qualify as "frequent") because he could not walk for that long," according to the court.

Continue reading "Interpreting and Weighing Claimant Testimony in a Social Security Disability Hearing - Muniz v. Astrue" »

As experienced Social Security disability attorneys who have represented thousands of clients in New York, New Jersey and Connecticut, we do everything within our power to fully and vigorously assist clients in seeking disability benefits. What we will not do, however, is help a client commit fraud. Not only is it illegal and unethical to try to pull one over on the Social Security Administration (SSA), it can also land you in some pretty hot water. One would-be Social Security disability claimant recently learned this the hard way.

Guillermo Hernandez, 50, was recently sentenced to three years in jail for using another man's identity to obtain more than $55,000 in Social Security disability benefits over the course of six years.

Lohud.com's Timothy O'Connor reports that "[t]he scheme was uncovered in late 2005, when [Guillermo] Henriquez Pichardo complained to the Social Security Administration after being informed of the benefits that he had neither sought nor received." The SSA immediately stopped paying the monthly benefits and the agency's Inspector General's office opened an investigation.

It appears that Mr. Hernandez obtained a false Social Security card bearing Mr. Henriquez Pichardo's name and Social Security number, which he used to obtain a New York driver's license. Investigators noticed that the man in the license photo, a copy of which was included in Hernandez's false benefits claim, was not Mr. Henriquez Pichardo. In July, Hernandez plead guilty to mail fraud and aggravated identity theft charges.

Given our decades of experience in the Social Security disability claims process, we are well aware that the SSA often gets it wrong when it comes to reviewing benefits claims. In fact, the SSA initially denies the majority of claims filed, including many with merit. We are also well aware that the SSA doesn't take kindly to getting it wrong the other way - that is, paying benefits to someone who's ineligible - particularly when the mistake is a result of claimant fraud. Last year alone, the SSA's Inspector General's office "received over 103,000 allegations of fraud, effected over 1,300 criminal prosecutions, and obtained a return of over $410 million in investigative accomplishments, comprised of over $81 million in SSA recoveries, restitutions, fines, settlements, and judgments, and over $328 million in projected SSA savings," according to its 2013 budget report.

Continue reading "Tarrytown Man Sentenced in Social Security Disability Scheme" »