Articles Posted in Social Security Disability

Many people are surprised to learn that after an Appeals Council remand, the ALJ who will hear the case will be the same ALJ who originally heard the case. ( Hallex I-2-155). There are certain exceptions to the same ALJ rule. These exceptions include a specific direction from the court or the Appeals Council that a new ALJ be assigned; a finding the the claimant did not receive a fair hearing; the case has already been remanded from an appeal; or scheduling problems.

It is unusual for the Appeals Council to order the a new ALJ be appointed on the first remand. As far a court order directing that a new ALJ be appointed, common law has evolved sufficiently to establish a set of criteria for such an order. The criteria centers around those situations which compromise the integrity of the disability review process. “Specifically, when the conduct of an ALJ gives rise to serious concerns about the fundamental fairness of the disability review process, remand to a new ALJ is appropriate. Factors for consideration in this determination include: (1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party.” Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004)

Social Security Disability process is heavily dependent upon medical records. Those who decide disability case are trained to review, analyze and understand the medical records of a Social Security claimant. Once the records are fully understood, the claim person then makes a determination whether those records prove that the claimant has a medical problem that is expected to make the person unable to work.

Unfortunately, all medical records are not “created equal”. Some are too brief. Others are difficult to read. Many do not incorporate all of which the patient had told the health care provider. A journal or diary will not take the place of medical records. It can, however, contain very useful information that would otherwise be lost to the memory of the disabled worker by the time a disability hearing occurs.

The journal or diary need be in any particular form, on special paper or be written, printed or typed in a specific way. An inexpensive spiral notebook is great. Each entry should contain the date and the name of the person making the entry. The entry does not need to be very long. Instead, it need only contain the essential points that the claimant wishes to recall later. For example, if part of the basis for the disability claim is a seizure disorder, then writing down the fact that a seizure occurred and some brief detail about the experience is enough. If part of the disability claim is based on headaches, depression, incontinence (bowel or bladder) or pain, then a brief note of the experience is that is needed. It is best to make the entries at or around the time of the occurrence. Before the hearing, the journal should be given to your attorney for use in preparing you for the hearing.

As any one knows who has filed a claim for disability benefits, the wait time for a disability hearing can be very long. SSA recognizes that some of its 142 hearing offices across the nation are busier than others. For that reason, it has begun to reassign cases from the very busy hearing offices to less busy hearing offices. Those administrative law judges to whom cases are assigned from distant hearing office must not only review and prepare the cases but also hear those cases.

Since travel time by the newly assigned administrative law judges takes more time, SSA has set up hearing rooms equipped with video systems that allow a judge to see and hear the claimant in a hearing office close to the claimant’s home while the judge is at her hearing office in another state. Witnesses called by the administrative law judge appear in the same room with the claimant, or in the hearing room where the administrative law judge is located or by telephone from a third location.

SSA does not force a disability claimant to choose a video hearing. In fact, all video hearing notices come with a notice informing the claimant that he has the right to have an “in person” hearing with the administrative law judge. Does the outcome of the disability hearing change because it was a video hearing? In my experience, the fact that a social security disability hearing is conducted by video rather than in person has no bearing on the ultimate outcome of the case. The only thing that a video hearing does is provide a way to make the case go more quickly. While other attorneys opinions may differ, I encourage my clients to allow their hearing by video when that option is offered.

Over the last few years, the time for the ODAR (Office of Disability Adjudication and Review) Indianapolis Office to process requests for hearings has been around 2 years. That means that from the time a disabled worker files a request for hearing until the time a decision was made and mailed, it would take about 2 years. This time calculation does not take into account the the many months it took to wait for the denials at the initial and reconsideration stage.

The Social Security Administration has taken steps to improve the disability claims backlog by hiring additional administrative law judges and more support staff. As part of its effort to reduce the wait time, SSA has also introduced video hearing equipment. This equipment allows administrative law judges from around the county at less busy ODAR offices to step in and hear disability cases without the time consuming task of traveling to Indianapolis.

Finally, SSA has expanded the role of senior attorneys by allowing them to screen and allow fully favorable cases “on the record” without then need for a hearing.

The National Ranking Report run for the period ending March 8, 2009 showed that out of the 149 Social Security hearing offices in the United States, the Indianapolis hearing office ranked 146 for processing time. The average number of days it took the Indianapolis hearings office to process a request for hearing was 734 days which is just at 2 years! The Fort Wayne hearings office ranked 138 for processing time for the same period. Fort Wayne’s average time to process a request for hearing was 666 days or 1.8 years.

The same report for the period ending December 2008 ranked the Indianapolis hearing office 145 out of 147 office in the United States. The average number of days it took the Indianapolis hearings office to process a case was 721 days. In December 2008, the Fort Wayne hearings office ranked 114 in the nation, taking an average of 564 days to process a hearing request.

On March 24, 2009, the Commissioner of Social Security testified before the subcommittee of Congress which has oversight of the Social Security program. Commissioner Astrue projected that SSA will receive more than 2.9 million disability claims in 2009, an increase of 300,000 cases over last year. The Commissioner hopes that hiring more staff and judges will deal with both the backlog and the increase of new cases.

In October 2008, Michael J. Astrue, Commissioner of Social Security announced the beginning of a new program named “Compassionate Allowances.” This program is designed to give very quick (in some instances six to eight days) awards of social security disability for claimants whose medical conditions are so severe that their conditions obviously meet the Social Security disability standards. This fast track approach deals, at least at this point, with people who have cancers and rare diseases.

The “50” conditions are: acute leukemia; adrenal cancer; Alexander Disease; amyotrophic lateral sclerosis; anaplastic adrenal cancer; astroycytoma; bladder cancer; bone cancer; breast cancer; canavan disease; cerebro oculo facio skeletal syndrome; chronic myelogenous leukemia; creutzfeldt-jakob disease; ependymoblastoma; esophageal cancer; Farber’s diesease; Friedreichs Ataxia; Frontotemporal Dementia; gallbladder cancer; Gaucher disease; glioblastoma multiforme; head and neck cancers; infantile neuroaxonal dystrophy; inflammatory breast cancer; kidney cancer; krabble disease; large intestine cancer; Lesch-Nyhan syndrome; liver cancer; mantle cell lymphoma; metachromatic leukodystrophy; Niemann-Pick disease; non-small cell lung cancer; ornithine transcarbamylase deficiency; osteogensis imperfecta; ovarian cancer; pancreatic cancer; peritoneal mesothelioma; pleural mesothelioma; pompe disease; Rett Syndrome; Sandhoff Disease; small cell cancer; small cell lung cancer; small intestine cancer; spinal muscular atrophy; stomach cancer; thyroid cancer and ureter cancer.

According to the POMS, while the medical documentation may be “minimal” it must be “sufficient” and “objective”.

In a recent case decided by the U.S. District Court for the Southern District of Indiana, the judge held that the “law of the case” doctrine applies in Social Security Disability cases. The law of the case doctrine provides that , in a trial following a reversal and remand, if the evidence is substantially the same as the facts upon which the reviewing court based its decision, matters decided on appeal become the law of the case to be followed in all subsequent proceedings in the trial court and, on second appeal, in the appellate court, unless there is plain error of law in the original decision. Kaku v. Nagano v. Brownell, 212 F. 2d 262, 263 (7th Cir. 1954). See also, Vidimos v. Wysong, 179 F.3d 1063, 1064 (7th Cir. 1999).

As a consequence, the law of the case doctrine compels an ALJ on remand of a case from the district court, and the district court, on a second appeal, to accept the findings of the judge of the district court who first decided the case as established and not subject to further review or renewed appeal.

In the particular case in which the applicability of the doctrine was announced, a fibromyalgia victim had appealed an adverse decision of an ALJ to the district court. The district judge (in district court case No. 1), while remanding the case for further proceedings, made findings favorable to the claimant. At the second administrative hearing, the evidence of record was either cumulative or showed the claimant was even more in pain. Even so, the ALJ at the second administrative hearing made findings that were opposite to that which the district judge found in district court case No. 1. The second administrative hearing resulted in an denial of disability benefits. On appeal again to the district court (district court case No. 2) the district court held that the law of the case doctrine applied to the findings in district case No. 1. Based on this application, the ALJ at the second hearing erred when he made findings regarding the medical evidence that were directly opposite the findings of district court No. 1. District Court case No. 2 resulted in a reversal and award of disability benefits for the claimant based on her fibromylagia.

NO! Many disabled workers confuse the 12 month durational requirement with a 12 month wait to file a disability claim. These two concepts are very different. One of the requirements for qualifying for Social Security disability is called the durational requirement. This means that a disability must last 12 months or longer in order to qualify for Social Security disability. The point is that short term medical problems (that is, medical issues lasting less than 12 months) are not accepted under the program.

The durational requirement does not mean, however, that a disabled worker must wait for 12 months before he or she files for Social Security disability. Nor does it mean that the worker must be off work for 12 months before filing a claim. As long as the worker can prove that his or her disability can be expected to last longer than 12 months at the time of filing for a claim then that is all that is required to satisfy the durational requirement.

If a disabled worker has received a denial, Social Security will note on the last page of the denial whether its examiners have determined that the medical problems are not expected to last longer than 12 months. Often the medical examiners have find that the durational requirement has not been met in situations where an operation has occurred (such as an operation to repair a fracture or a back operation). Sometimes these medical problems continue to cause the worker to be disabled even with the best medical care. If these medical probles are expected to last 12 months or longer then they should satisfy the durational requirement.

Indiana has two statutes which may diminish or reduce subrogation liens. The first is I.C. 34-53-1-2. This statutes deals with the reduction of a subrogation lien by the pro-rata share of attorney fees and costs of litigation. The second is I.C. 34-51-2-19. This statute mandates the reduction of a subrogation lien due to the comparative fault of the insured or by reason of uncollectability. These two statutes are used often by Indiana attorneys to help maximize the recovery for their clients in personal injury cases. If the case was resolved by settlement rather than by a jury trial and the fault allocation or damage amount is in dispute, the injured party may file a declaratory judgment action against the lien holder in order to have the court make a judicial determination of the fault or amount of damages.

The Indiana Supreme Court held in Department of Pub. Welfare v. Couch, 605 N.E.2d 165, (Ind. 1992) that I.C. 34-53-1-2 applied to cases in which the Welfare Department was asserting a lien. This concept was reaffirmed by the Indiana Court of Appeals in Pedraza by Pedraza v. Grande 712 N.E.2d 1007 (Ind.Ct. App. 1999).

The conclusion by a Social Security Administrative Law Judge that fibromyalgia must not be a debilitating impairment when “practically all tests have been normal” is not an uncommon error. As Judge Chief Judge Posner wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996), fibromyalgia is a:

“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are “pain all over,” fatigue, disturbed sleep, stiffness, and–the only symptom that discriminates between it and other diseases of a rheumatic character–multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner also noted that the Administrative Law Judge in Sarchet exhibited a “pervasive misunderstanding of the disease” by “depreciate[ing] the gravity of Sarchet’s fibromyalgia because of the lack of any evidence of objectively discernible symptoms, such as swelling of the joints.”