Justia Lawyer Rating
Massachussets Bar Association
Maine state Bar

May, 2017: Getting Roger an Earlier Onset Favorable Social Security Decision out of Hyannis, MA and Boston, MA ODAR

It is not unusual for a Social Security disability claimant to be faced with what is termed a partially favorable decision. Whether one should appeal that determination is a decision that should not be made without the advice of an attorney as there is a vast difference between appealing a partially favorable decision on either an initial Massachusetts or Maine Social Security disability claim disability claim versus a New Hampshire Social Security claim. Likewise, the advice may very well be different depending on whether the claim is an initial claim versus a decision on reconsideration. Roger’s circumstances is an example of just such a scenario.

Roger is a gentleman in his late 50’s out of Hyannis, MA who contacted our office in need of Social Security benefits. He had already been found 100% disabled by the Department of Veteran’s Affairs with a service connected disability once he discontinued his attempt at self-employed work. Unfortunately, while Roger had been a successful in his profession for many years, orthopedic problems with his knees and hips had made it increasingly difficult to fight through the pain and dysfunction associated with his condition. Surgeries, versus injections, were now being recommended. The last several years of his self-employed business showed little income, and certainly not at a level of substantial gainful activity. We were able to show through the filing of a Self-Employed Work Activity Report that the work Roger was performing was not substantial and, two, did not cause him to be earning wages at what would be a gainful level of activity. The treatment records reflected the fact that Roger was requiring knee replacements for both knees. Notwithstanding this fact, his claim was denied, and it became necessary to file a Request for Reconsideration.

At the reconsideration level, we were able to provide documentation from his treating surgeon that satisfied the Social Security administration (SSA) that he had met Social Security’s rules for being found “disabled” at the point that he had stopped working and had undergone surgery. However, it was clear to our office that Roger had remained disabled a good nine (9) months earlier than that.

Thus, the question arose as to whether Roger should appeal the decision as he remained concerned that he would be lose the benefits that had been granted and would be waiting for longer than a year to reach a hearing through the Boston Office of Disability Adjudication and Review.

For one, we were able to assure Roger that his benefits would continue pending an appeal and two, we explained to Roger that as long as we were able to convince the hearing office (and the presiding Administrative Law Judge (ALJ) prior to the taking of testimony and issuance of a decision that he was entitled to an earlier onset date, he would not risk losing any of the past benefits awarded (or, for that matter, his ongoing check). We explained further that at the hearing stage, the presiding ALJ would be looking to see not only that he had remained disabled from the point in time we were contending (a full 9 months earlier than what had been granted), but that he continued to remain “disabled” under Social Security’s rules at the time a decision was rendered. We assured Roger that unless we were able to get an earlier, agreed upon favorable decision (prior to the need to go to hearing), we would not proceed to hearing and risk his benefits. If we were to proceed to hearing and continue on to a decision, we explained to Roger that we would be risking all of his benefits as the ALJ would be making a “de novo,” or an “as of new” decision following the hearing.

The consideration whether to appeal is different, however, should one receive a partially favorable decision on their initial claim filing out of Maine and Massachusetts. In these states, a request for reconsideration appeal process needs to take place prior to being able to file a request for hearing before an administrative law judge. Any decision to appeal at the reconsideration level, however, runs the serious risk that Disability Determination Services will make a new decision that finds the initial, partially favorable decision was entirely in error and correspondingly find that one is not disabled under Social Security’s rules after all. Thus, at reconsideration, you would be proceeding at your own peril. Thus, it is strongly advisable that you consider this possibility and seek the advice of an experienced attorney before choosing to file an appeal at this level.

In Roger’s circumstances, we were able to provide a legal brief to the ALJ to whom the case was assigned and explain how the evidence provided made clear that Roger had met a Vocational Medical Guideline rule (otherwise known as a Grid Rule) since the earlier onset date we had been requesting. We were subsequently notified, upon the judge’s review of the brief, that he did agree with a grid rule finding and thus a fully favorable on the record decision was rendered, providing Roger with the additional 9 months of benefits he was seeking (and without the need to ever risk the loss of his retroactive or his ongoing check) .

If you are someone you know is having to deal with the complex set of rules and regulations associated with Social Security disability claims, have them contact an expert who, for 34 years, has been assisting Maine, Massachusetts and New Hampshire’s disabled. Contact the Law Offices of Russell J. Goldsmith at (800) 773-8622.