New York Social Security Disability Lawyer Blog

In order to prove a claim for Social Security disability benefits, an individual must provide the Social Security Administration (SSA) with clear and convincing medical evidence that details the extent of the claimant's impairment, its onset date and its effect on the claimant's ability to perform work. While the Eastern District of New York recently ruled in Stokes v. Commissioner of Social Security that an SSA Administrative Law Judge (ALJ) considering a claim bears some of the responsibility to clarify the record in certain situations, a claimant is well advised to present as much evidence as possible the first time around.

Plaintiff Elizabeth Stokes filed a disability benefits claim, alleging that she's unable to work due to both a right knee injury and Multiple Sclerosis. The SSA denied the claim. Plaintiff then appeared at an administrative hearing before an SSA ALJ. The ALJ determined that she is not disabled for benefits purposes because, although Plaintiff could not return to her previous job as a police officer, she retained the residual functional capacity (RFC) to perform other jobs available in the national economy.

On appeal, the court found that the ALJ failed to properly clarify the medical evidence presented regarding Plaintiff's knee injury. Plaintiff's treating physician - Dr. Varriale - performed arthroscopic surgery on Plaintiff's right knee in 1991 and in 2003 diagnosed her with arthritis in the same knee. In a 2006 letter explaining the impairment, Dr. Varriale concluded that Plaintiff "is disabled from working."

The court noted that "[t]he record evidence regarding Plaintiff's knee injury was, by the ALJ's own analysis, 'very limited,'" particularly with respect to the onset date of her arthritis. The court ruled that, considering the limited nature of the evidence, the lack of clarity regarding the arthritis onset date and the fact that Dr. Varriale was the only physician to treat Plaintiff for the impairment, the ALJ had an affirmative "duty to recontact Dr. Varriale for clarification."

The court also ruled that, on remand, the ALJ should consult a medical expert. Social Security Regulation 83-20 provides that an ALJ "should call on the services of a medical advisor" when the onset date of a claimant's impairment is unclear. Thus, according to the court, to the extent that the ALJ finds that Plaintiff is disabled as a result of her knee impairment, the judge should consult an expert to determine the onset date. The court ruled that, "Given the 'limited' medical evidence regarding Plaintiff's knee impairment, a medical expert will allow the ALJ to fully develop the record in order to arrive at an accurate determination."

Continue reading "New York Court Requires Social Security Judge to Clarify Medical Record in Disability Benefits Case - Stokes v. Commissioner of Social Security " »

In Social Security disability cases, medical evidence - doctor's opinions, treatment records, objective clinical studies etc. - is the key to winning a claim. That is, a clear and accurate record showing that the claimant suffers from an impairment or combination of impairments affecting his or her ability to work makes it more likely that a claim will ultimately be approved. In Troy v. Commissioner of Social Security, however, the District Court for the District of New Jersey explains that medical evidence is not the only thing that a Social Security judge must consider in reaching a decision on a disability benefits claim.

Plaintiff Candace Troy received Social Security disability benefits from 1976 to 1981. In 2007, she filed a claim for retroactive benefits related to a disability period that began in 1991. Plaintiff asserted that she's been unable to work since that time as a result of depression and personality disorder.

The Social Security Administration (SSA) denied the claim and Plaintiff later appeared before an SSA Administrative Law Judge (ALJ) at an administrative hearing. The ALJ found that Plaintiff was not disabled for benefits purposes because the claim was based on "spotty and general notes" from Plaintiff's doctors that were not sufficient to show that she suffered from a severe impairment.

On appeal, the District Court reversed the ALJ's decision, finding that he failed to consider all of the evidence Plaintiff provided, including Plaintiff's own testimony. In concluding whether a benefits claimant suffers from a severe impairment, the court explained

the ALJ must take into account all of the evidence, including Plaintiff's symptoms, to determine whether the functionally limiting effects of [claimant's] impairments have an effect on their ability to perform basic work activities.

According to the court, the ALJ must specifically consider Plaintiff's testimony regarding her symptoms and compare it to objective medical evidence. In so doing, the ALJ must make findings that are sufficiently clear to allow a subsequent reviewer to determine the weight afforded to the Plaintiff's testimony.

Continue reading "New Jersey Court Reverses Disability Benefits Denial for Failure to Consider Claimant Testimony - Troy v. Commissioner of Social Security" »

The "treating physician" rule - providing that the opinion of a Social Security disability claimant's treating physician is entitled to substantial weight, unless contradicted by other substantial evidence - is an important tool in many disability benefits cases and one that is often the subject of posts on this blog. In Ash v. Commissioner of Social Security, a Magistrate in the District Court for the Southern District of Ohio explains how to determine whether a particular doctor qualifies as a "treating physician."

In 2006, Plaintiff Christopher Ash filed a claim for Social Security disability benefits, asserting that he's been unable to work since May 2003 due to obesity, arthritis of the feet, knees and spine, depression and a variety of personality disorders. The Social Security Administration (SSA) denied the claim.

Following an administrative hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined in a June 2009 decision that Plaintiff was not disabled for the time period between May 2003 and November 2008, during which Plaintiff's age category was a "younger person." The SSA sorts disability benefits claimants into specific age categories which it then uses to determine the claimant's ability to work in spite of any impairments. During this time, the ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform sedentary work. However, the ALJ granted benefits from November 2008 forward, when Plaintiff turned 50 and his age category became "closely approaching advanced age."

On appeal, the Magistrate found that the ALJ failed to take into account the opinion of Dr. Borders, a psychiatrist who diagnosed Plaintiff with major depression and intermittent explosive disorder and determined that he was disabled as a result. While a treating physician's conclusion that a claimant is disabled "is not determinative of the ultimate issue," according to the court, it must be taken into consideration. The Magistrate noted that "The weight given such a statement depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record,"

The judge rejected the SSA's argument that Dr. Borders should not be considered Plaintiff's treating physician. The Social Security regulation codified at 20 C.F.R. § 404.1502 explains to claimants that a "treating" source is "your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you."

Continue reading "Doctor Opinions in Social Security Disability Cases: Which Ones are Treating Physicians? Ash v. Commissioner of Social Security " »

In order to be eligible for Social Security disability benefits, a claimant must generally prove that he or she either hasn't worked or it is foreseeable that he or she will be unable to work of one year or more due to physical or mental impairment. The claimant's disability need not be based on one single impairment, however. Often, a claimant is rendered disabled by a combination of impairments which - individually - may or may not affect the person's ability to work. In Henderson v. Commissioner of Social Security Administration, the District Court for the Eastern District of Texas explains how the Social Security Administration (SSA), its judges and federal courts should consider a disability claim based on a combination of impairments.

Plaintiff Donna Henderson filed a Social Security disability benefits claim, alleging that she was unable to work due to degenerative disc disease, coronary disease, depression and cognitive problems resulting from a stroke. The SSA denied the claim initially and upon reconsideration. Ms. Henderson requested a hearing and, over time, went through three hearings and at least two successful appeals. After the third administrative hearing, an SSA ALJ determined that Plaintiff was not disabled for benefits purposes because, although the disc disease preventing her from performing any previous jobs, Plaintiff retained the residual functional capacity to perform a reduced range of light work, including jobs such as information clerk, "office helper" and mail room clerk.

After an unsuccessful appeal to the Appeals Council, Ms. Henderson filed suit in Federal Court where her case was turned over to a Magistrate Judge for review and recommendation. In the recommendation, the Magistrate agreed with Plaintiff that an ALJ considering a claim by a person with more than one impairment "is required to consider the combined effects of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." In other words, the ALJ has to look at the effect of the combined impairments, rather than the effect of each impairment individually. In so doing, the ALJ must consider the entire record, the Magistrate added. If the ALJ finds that the claimant suffers from "a medically severe combination of impairments," the ALJ must consider the combination of impairments throughout the decision process.

Notwithstanding that, the Magistrate found that the ALJ properly considered each of Plaintiff's alleged impairments and that the decision that she retained the ability to perform certain work was based on substantial evidence. As a result, the Magistrate recommended that the ALJ's decision be affirmed.

Continue reading "Social Security Disability Claims for People Who Suffer from a Combination of Impairments - Henderson v. Commissioner of Social Security Administration" »

If the Social Security Administration (SSA) were to compile a list of the most important rules for its Administrative Law Judges (ALJs) to follow in considering a disability claim, somewhere near the top would be the treating physician rule, which provides that an opinion by a claimant's treating physician 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. In Olenick v. Astrue, the District Court for the Eastern District of New York explains that an extension of the rule requires an ALJ who rejects a treating physician's opinion to properly explain the reasoning for this decision.

Plaintiff Karen Olenick filed a claim for Social Security disability benefits, asserting that she's unable to work due to back pain resulting from a 2002 injury sustained while working as a "packager/picker" for a vitamin manufacturer. The SSA denied the claim. Following an administrative hearing, an SSA ALJ found that Plaintiff was not disabled for benefits purposes because, although she could not return to her previous career, she retained the ability to perform a full range of sedentary work.

On appeal, Plaintiff argued that the ALJ improperly discounted the opinion of her treating physician, Dr. Nolan Tzou. An anesthesiologist specializing in pain management, Dr. Tzou began treating Plaintiff one year after she sustained the injury. He diagnosed her with cervicalgia, displacement of a cervical disc, and an intervertebral disc disorder and prescribed pain medication. Although Plaintiff began working as a Target sales clerk in 2003, the following year Dr. Tzou found that she was "totally disabled" as a result of ongoing back pain.

In reversing this decision, the court determined that the ALJ failed to give sufficient reasoning for rejecting Dr. Tzou's opinion. "Where an ALJ declines to accord controlling weight to the medical opinion of a treating physician, he must give good reasons for refusing to do so," the court noted, citing its 2011 opinion in Taub v. Astrue. the court held that where an ALJ rejects or fails to give controlling weight to the opinion, the case must be remanded, even where the ALJ's ultimate decision is supported by substantial evidence. This requirement, according to the court, is at least partially designed "to let claimants understand the disposition of their cases, since a claimant might be especially bewildered when told by an administrative bureaucracy that she is not disabled, unless some reason for the agency's decision is supplied."

In this case, the court found that the ALJ failed to give "good reasons" for rejecting Dr. Tzou's opinion. In fact, according to the court, it appears that the ALJ gave no reasons at all for this decision, adding "assuming it was not entirely overlooked." Thus, the court remanded the case back to the ALJ for further proceedings with instructions that the judge consider Dr. Tzou's opinion.

Continue reading "New York Court Rejects Social Security Judge's Decision in Disability Case, Citing Treating Physician Rule - Olenick v. Astrue" »

A Social Security Administration (SSA) Administrative Law Judge (ALJ) reviewing a disability benefits claim will often call on a 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, to testify as to the kind of work - if any - that a hypothetical person with the same limitations as the claimant can do. In Sherwood v. Astrue, the District Court for the Middle District of Florida explains that this hypothetical questioning must accurately reflect the claimant's full range of limitations.

The SSA denied Plaintiff Daniel Sherwood's disability benefits claim, in which he asserted that he's unable to work due to depression and mental illness. A high school graduate who previously worked as a grocery store stock clerk and cashier, Plaintiff was 54 years old at the time of his hearing before an SSA ALJ. The ALJ determined that Sherwood was not disabled because, although he suffers from severe impairments in the form of depression and personality disorder, he retained the residual functional capacity (RFC) to perform previous work as a stock clerk.

The ALJ's decision was based largely on the testimony of a VE who, according to the court, indicated that a "person of Plaintiff's age, education and work history who has no exertional limits, who can follow simple instructions to complete simple tasks that are repetitive, with no more than frequent interaction with coworkers and supervisors; with any interaction with the public being brief, informational, and superficial, involving no decision making or judgment call authority" could perform his previous job. The VE further testified, however, that "if the [hypothetical] individual had difficulty getting along with others...such that his interaction should be limited to less than occasional, there would be no jobs available."

On appeal, the District Court reversed the ALJ's decision, finding that the RFC determination was not supported by substantial evidence. "While the ALJ sought to rely on the testimony of the VE from the hearing, such was offered on a hypothetical that assumed a different set of limitations" than those from applicable to Plaintiff, according to the court. Specifically, the hypothetical questioning that the ALJ posed to the VE assumed that the individual was capable of "frequent" interaction with co-workers and supervisors. Before reaching this questioning, however, the ALJ determined that Plaintiff was capable of only "infrequent" interaction. Accordingly, since the ALJ's decision was based solely on the VE's testimony - which was in turn based on an inaccurate hypothetical - the court found that the decision was not supported by substantial evidence.

The court remanded the case back to the ALJ for further proceedings. Improper hypotheticals to the VE are often part of our own Federal Court arguments. but typically we argue that the ALJ used one set of limitations when another more accurately reflects the claimant's problems. It is rare that the RFC relied upon by the ALJ is as different from what the medical evidence supports as we see here.

Continue reading "Vocational Experts and Hypothetical Questioning in Social Security Disability Cases - Sherwood v. Astrue" »

In discussing the law associated with Social Security disability benefits on this blog, we often refer to evidence: medical records, court documents, witness testimony and all of the other things that a disability claimant can present to the Social Security Administration (SSA) in attempting to prove his or her claim. In a recent case discussing objective evidence, the U.S. District Court for the District of New Jersey explains that all of this is well and good, but a claimant must present "objective medical evidence" in order to prove that he or she is eligible for benefits.

The SSA denied the Plaintiff's disability benefits claim, in which she asserted that she's unable to work due to multiple disc herniations, fibromyalgia, depression and a left shoulder injury. Following a hearing an SSA Administrative Law Judge (ALJ) found that Plaintiff is not disabled for benefits purposes because her alleged mental impairment is not supported by evidence and she retains the residual functional capacity to perform a full range of sedentary work.

One of the first steps in reviewing a disability claim is to determine whether the claimant suffers from a severe impairment. In affirming the ALJ's decision, the District Court stated that "the claimant bears the burden of establishing that she suffers from a severe impairment or combination of impairments." Furthermore, "[a]n impairment is not severe if it does not significantly limit a claimant's physical or mental capacity to perform basic work activities." Severity, according to the court, must be proven with objective medical evidence. Subjective complaints of pain and other symptoms is not sufficient.

In this case, Plaintiff failed to provide objective medical evidence supporting her claim that she suffers from a severe mental impairment. While Plaintiff provided treatment records showing that she complained of difficulty sleeping and anxiety-related symptoms, "there is no record of any diagnosis relating to her mental health," the court noted. In fact, she failed to present any evidence of mental health treatment, despite testifying that she had received such treatment.

The court also affirmed the ALJ's finding that Plaintiff's testimony regarding the intensity, persistence and limiting effects of her impairments was not credible because it was inconsistent with the record. Specifically, the ALJ "pointed to the largely stable clinical findings in the record" as well as the lack of objective medical evidence to the contrary. As a result, the court concluded that the ALJ's decision denying disability benefits to Plaintiff was supported by substantial evidence.

Continue reading "New Jersey Court on "Objective Medical Evidence" in Social Security Disability Cases " »

In Hood v. Commissioner of Social Security, the District Court for the Northern District of New York sheds some light on important issues regarding both conflicting medical evidence as well as that submitted late in the Social Security disability claim process.

John Hood filed a claim for Social Security disability benefits, asserting that he was unable to work due to a respiratory impairment. The Social Security Administration (SSA) denied the claim. Following an administrative hearing in Albany, an SSA Administrative Law Judge (ALJ) found that Hood was not disabled because, he retained the residual functional capacity (RFC) to perform light work and, therefore, a number of jobs currently existing in the national economy.

On appeal, Hood argued that the ALJ improperly discredited his testimony regarding the intensity, persistence and limiting effects of the symptoms related to his impairment. "It is the function of the [SSA] Commissioner, not reviewing courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant" the court noted, quoting the Second Circuit Court of Appeal's 1983 ruling in Carroll v. Secretary of Health and Human Services. "If there is substantial evidence in the record to support the Commissioner's findings, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." This, according to the court, is largely because the ALJ has the benefit of directly observing the claimant's demeanor "and other indicia of credibility."

In this case, the court found that the medical evidence contradicted Plaintiff's testimony regarding the debilitating nature of his impairment. This evidence included the opinions of both a consultative examiner and a State Agency consultant, both of whom concluded that Plaintiff's impairment did not reduce his RFC, except that he should avoid irritants like dust and chemical fumes.

Nevertheless, the court remanded the case back to the ALJ for consideration of other medical evidence presented to the SSA's Appeals Council following the ALJ's decision. Specifically, Plaintiff submitted treatment notes and a "medical source statement" from his treating physician indicating that Plaintiff's symptoms were consistent with chronic obstructive pulmonary disease (COPD). As a result of his impairment, the physician concluded that Plaintiff could not stand for more than one hour during an eight hour shift and could not perform daily activities such as shopping, walking on rough surfaces and using public transportation.

Continue reading "Submitting "New" Evidence on Appeal in Social Security Disability Cases - Hood v. Commissioner of Social Security" »

In Peterson v. Commissioner of Social Security, a federal magistrate judge explains that a person suffering from one or more severe mental impairments may be eligible for Social Security disability benefits not only if a single impairment has lasted for at least one year, but also if in combination, his limitations can be expected to last that long at a level that makes him unable to work.

In March 2008, Plaintiff Bennie Peterson filed a claim for Social Security disability benefits, asserting that he was unable to work due to HIV, a back injury and a history of substance abuse as well as bipolar disorder, depression and personality disorder. After the Social Security Administration (SSA) denied his claim, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). The ALJ found that Plaintiff is not disabled for benefits purposes because, although he suffers from severe physical impairments, Plaintiff retained the residual functional capacity (RFC) to perform a wide range of sedentary work. The ALJ additionally determined that Plaintiff's mental impairment had fully resolved by November 2008.

Specifically, the ALJ determined that Plaintiff failed to establish that he suffered from a severe mental impairment for 12 continuous months. On appeal, however, the Magistrate Judge found that the ALJ applied the incorrect standard. Although the Eleventh Circuit has not weighed in on the issue, the Magistrate noted that "a plaintiff need not show 12 months of impairment without any periods of remission" in order to prove a mental impairment. Rather, "[t]he duration requirement is satisfied when the disability . . . can be expected to last for a continuous period of not less than 12 months."

This is a very clear portion of the law and the surprise here is that the Appeals Council did not remand the case (before it went to federal Court) on this issue. If the "expected to last" phrase was not part of the law, no one could ever be approved until they were out of work for at least twelve months!! But many cases are decided long before that because the condition or conditions are expected to last 12 months or more.

The court additionally found that the ALJ inappropriately limited his analysis to Plaintiff's bipolar disorder. Dr. Iraj Lou noted that Plaintiff suffered from a possible bipolar disorder in April 2008 and later officially made this diagnosis in September 2008. In July 2008, another doctor - Dr. Orr - diagnosed Plaintiff with "dependent personality traits," which he treated with medication. A third doctor - Dr. Harrell - diagnosed Plaintiff with moderate depressive disorder and a moderate personality disorder also in 2008. The court noted that "[w]hile Dr. Lou determined that the bipolar disorder had resolved as of December 2008, there is no indication in the record that the depressive disorder and personality disorder resolved as of that date." Furthermore, Plaintiff was still taking medication for his mental impairments at the time of the administrative hearing.

According to the court, the ALJ failed to determine whether Plaintiff's depressive and personality disorders continued or were expected to continue for at least one year. As a result, the Magistrate recommended that the case be remanded for further proceedings.

Continue reading "The Duration Requirement for Mental Impairments in a Social Security Disability Case - Peterson v. Commissioner of Social Security" »