Justia Lawyer Rating
Massachussets Bar Association
Maine state Bar

April and May, 2013: A Recipe for Avoiding the Need to Proceed to Hearing

During the last 2 months, I am happy to say that we have been successful in obtaining a number of fully favorable decisions for our clients prior to the need to proceed to hearing. Providing an updated medical record to the presiding Administrative Law Judge (ALJ) sufficiently in advance of the scheduled hearing, along with an argument brief explaining how the additional evidence we've obtained in support of our client's claim now proves their entitlement, will many times avoid the need for a hearing. In other words, doing our homework pays off.

Carolyn is an example of one such story. She is a forty-four (44) year old woman with a lengthy employment history that included running a home daycare business for many years until such time as she became disabled following gall bladder surgery. While the business continued for some time after she became ill, family members took over the majority of the responsibilities as Carolyn was left with abdominal pain following her gall bladder procedure that made it simply too difficult to work. Determining the cause of her abdominal pain proved difficult, and ultimately she was determined by her doctors to have suffered nerve damage (to her intercostal nerve) for which she attempted both injection therapy as well as medication therapy. Ultimately, these treatment protocols did not prove successful in addressing the severe abdominal pain Carolyn was continuing to experience and she ultimately required implantation of a spinal cord and peripheral nerve stimulator. Fortunately for Carolyn, her primary care physician as well as her pain management specialist were more than willing to assist by providing assessments that addressed both the severity of her medical conditions and how her medical conditions were impacting her ability to function. As is ordinarily my practice, I provided the presiding ALJ with an argument brief, along with the additional supportive material we had obtained in support of her claim. I am happy to say that these items served to convince the judge that a fully favorable decision was warranted. Needless to say, Carolyn was quite relieved to learn that she would not have to appear at a hearing to answer questions as to how her chronic pain condition was impacting her ability to function (not to mention her mental health). She was even more relieved to hear that years of retroactive benefits would be coming in the near future to rescue her family from a very difficult set of financial circumstances.

Marcia is a fifty-three (53) year old woman who had worked many years as a dishwasher, cook and deli worker before developing a severe case of Type I Diabetes Mellitus. As a result of her inconsistent sugar levels, her attendance and performance at work likewise became too inconsistent. This in turn resulted in being let go after more than 10 years of employment with her employer. Unfortunately, Marcia was denied on her initial application and again on reconsideration (notwithstanding strong evidence to the effect that despite continued treatment efforts, Marcia simply could not get her sugar levels under sufficient control). While we were able to obtain strong evidence from her primary care physician that addressed the severity of her condition, the hearing office remained unconvinced that she remained totally disabled from gainful employment. I am happy to say that Marcia was very motivated to follow-up for the additional treatment that was being recommended by her primary care physician. Given this, we were able to obtain compelling evidence from her treating endocrinologist (who was working hard to stabilize Marcia's sugar levels). Through additional testing undertaken by her endocrinologist, we were able to show that her sugar levels throughout the day were running at very high and very low extremes on a rather consistent basis (regardless of the insulin efforts being made), thus making Marcia's day an entirely inconsistent one (and causing her to remain totally disabled from maintaining a job). Likewise, the endocrinologist was willing to assist with a Diabetes Mellitus Residual Functional Capacity Questionnaire we provided him, in which he detailed just how fragile her condition remained. In Marcia's circumstance, we provided 2 different briefs to the hearing office requesting a fully favorable decision. While the first one did not succeed, I am thrilled to say that the second did in fact succeed (and Marcia was not required to attend the scheduled hearing). The ALJ was convinced that indeed her condition was so severe that she would not have been capable of going back to any form of gainful employment. I am happy to say that Marcia is now able to focus on addressing her condition without the worry of her financial circumstances.

Jillian's case involves that of a sixty-three (63) year old woman who had worked in the financial services industry for many years, until such time as her office location was closed . While Jillian was provided with the opportunity to move to a different location, she felt unable to do so given the multiple rheumatological concerns she had been struggling with for many years (having been diagnosed with Crohn's, Sjogren's, rheumatoid arthritis and trigeminal neuralgia). However, given she had shown her ability to work through these conditions for many years, Social Security was not willing to assume that she couldn't have returned to her prior manner of employment. Unfortunately, at the time of the prior agency determinations, the Social Security Administration did not appropriately review the additional evidence we were able to obtain from her treating rheumatologist and neurologist. We were able to convince the presiding ALJ that significant weight should have been afforded to the rheumatologist that had been treating her for almost 10 years. We were able to get an updated residual functional capacity assessment from her rheumatologist, which likewise served as new and material evidence which had not been considered previously. I am happy to say that within just a few days of providing the argument brief to the presiding Administrative Law Judge we were able to hear back from him that a fully favorable decision would be forthcoming (and there would be no need for the hearing to go forward). While it may be disconcerting for both our clients and our office to see how difficult the Social Security Administration can make it for what are very deserving individuals, the name of the game is dogged persistence: 1) from our clients in pursuing aggressive treatment (as it's necessary to show that one remains disabled “despite prescribed treatment”) and 2) from our office in terms of obtaining additional supportive evidence from the claimants' treating physicians and providing compelling argument briefs to the judges in support of the claim. This manner of dogged persistence has proven to be a recipe for success.

Kathy's case involves that of a fifty-two (52) year old woman with a long work history as a CNA. Kath's employment came to an end as a result of a fall which caused her to sustain a fractured left wrist. Following surgery, she was diagnosed as suffering from carpal tunnel syndrome and, ultimately a compartment syndrome (which in turn resulted in a significant pain syndrome). She required a carpal tunnel release and subsequent to that a left hand fasciotomy, after which time she was diagnosed as suffering from a complex regional pain syndrome. Additional treatment records provided to the Administrative Law Judge at hearing included evidence of the fact that she had required and was continuing to require ongoing nerve block injections in an attempt to reduce the left arm pain Kathy has been continuing to experience. While were not involved initially with Kathy's claim (which would have allowed us to obtain additional evidence from her treatment from her treatment providers), on appeal we were able to obtain new evidence from her primary care physician and her long term pain management provider which was quite compelling. In turn, I undertook a detailed argument brief explaining how Kathy has remained totally disabled from all forms of gainful employment or, at the very least, given her age, past work experience, educational experience and functional limitations, how she met a grid rule under Social Security's regulations calling for a finding that she has remained disabled under Social Security rules. I am happy to report that the Administrative Law Judge assigned to hear her case has indicated his agreement that a finding of disability is warranted for Kathy and that a fully favorable decision will be coming her way as well.