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Massachussets Bar Association
Maine state Bar

January and February, 2014: An Aggressive Attorney Making a Difference

Over the past two (2) months, we've been incredibly busy. I'm happy to present 4 cases that prove the value of moving forward with an aggressive attorney who specializes in Social Security disability claims.

Rachel's case involves that of a 40 year old woman who came to our office after being denied her claim based on problems that involved longstanding issues with Fibromyalgia and mental health difficulties. Given the conditions involved and Rachel's age, the case would not prove to be an easy one. However, whenever someone comes to our office with as stellar a work history as Rachel's (she had consistently worked in the daycare field, initially as a daycare worker and later as an administrator), her case rings true when she lets us know her symptoms have progressed to the point where she could no longer work. Given Rachel's case was out of New Hampshire, there is no reconsideration process and it was necessary that we proceed with a hearing request (and case was subsequently transferred to the Manchester, NH Office of Disability Adjudication and Review).

In reviewing Rachel's case, it was obvious that there were severe mental health difficulties associated with her condition that were additionally impacting her Fibromyalgia. While she was in treatment with her rheumatologist and primary care physician so as to try and address these issues as well, our advice for Rachel was for her to get into additional mental health treatment (with both a counselor and a psychiatrist) to address these conditions. Given the severity of her physical and emotional problems, however, it was very difficult for Rachel to follow through with much of anything for some time (and this did prove to be a complicating factor later on for her claim). To Rachel's credit, she had been treating with a specialist (a rheumatologist) for a number of years who could not only speak to meeting the American College of Rheumatology criteria for Fibromyalgia, but could also speak to how her condition had progressed. Given the extent of her continuing problems, she likewise followed through with a referral for a second opinion with a rheumatologist.

At the hearing level, we were able to provide opinions from the treating primary care physician and the treating rheumatologist that spoke to the objective findings on examination and to the extent to which she was experiencing functional limitations. Likewise, we provided historical records concerning Rachel's condition that were not previously available for review. Not surprisingly, given Rachel's age and the nature of her conditions, we did proceed to a hearing before an Administrative Law Judge (ALJ) where I am happy to say that she received a fully favorable decision in her case. I am happy to report that Ruth is now able to focus her energy on her treatment and her medical well being without the additional stress associated with being unable to contribute financially to her family's needs.

James's story is that of a 58 year old gentleman with an extensive and consistent work history that went back to the early 1970's. He had worked positions that were very physical in the past (in a manufacturing type setting) and in law enforcement. Ultimately, he was no longer able to continue working as a result of problems with abdominal and groin pain that were difficult to diagnose. James's initial application was denied and, because he resided in New Hampshire, it was necessary to request a hearing before an Administrative Law Judge (which was assigned to the Manchester Office of Disability Adjudication and Review).

What was not clear at the time of his initial claim (and which became more apparent after obtaining the past medical record history) is that James's difficulties had been coming on for a number of years and he had pushed himself to work through these problems. He had undergone exploratory surgery a number of years earlier to try and address what was causing this discomfort. Ultimately, it was determined that the cause of his problems were related to a hernia repair and mesh that had been placed as part of the repair. To his credit, James continued to look for answers to his condition and this is considered very important to one considering an application for Social Security disability benefits: one needs to show they are disabled “despite prescribed treatment.” With that in mind, James continued to see different specialists and it was ultimately determined that his problems were likely related to a neuropathy (or a nerve disorder). Following these additional findings, James is referred for additional treatment options for pain management (including injection therapy and medication therapy).

These additional treatment records, along with a very telling questionnaire from his primary care physician, made clear that James's condition was continuing to cause him functional limitations to the point where he could not be expected to pursue any manner of employment (despite all of the various treatment modalities that had been attempted).

Given James's age, educational and work history and functional limitations, the Administrative Law Judge presiding over the claim was convinced by way of my argument brief that James should be found disabled since his alleged onset date without the need to proceed to hearing.

Donna's case involves that of a 54 year old woman with a consistent 30+ year work history that includes work as a mental health counselor. Unfortunately, without knowing the laws associated with Social Security disability, Donna applied for benefits shortly after going out of work as a result of severe mental health difficulties she was experiencing. If she had contacted our office, we would have advised her to wait (given the need to show she's likely to remain totally disabled from all forms of gainful employment for a year or longer).

Since Donna lives in the Boston area, it was necessary that we file a request for reconsideration on her behalf. Given the very high denial rate on reconsideration (and given the fact that she was nowhere near a year out of work), we explained to Donna that she should expect an additional denial (which she did indeed receive within a few months). We subsequently filed a request for hearing on her behalf and her case was assigned to the Boston Office of Disability Adjudication and Review. In the interim, Donna made a concerted effort with counseling and psychiatric care with the hope that she would be able to return to some manner of gainful employment.

To Donna's credit, she did attempt to return to some manner of employment (working less than 10 hours per week in a retail store environment). This effort on her part to return to work has only strengthened her claim: showing to the presiding Administrative Law Judge that she is willing to work to the extent possible, but simply is not capable of sustaining "gainful" employment: that is consistent work that would earn her at least $1,070.00 per month.

As her case proceeded to hearing, we were able to provide supportive mental impairment questionnaires that were not available for review at the time of the prior agency determinations from her treating psychiatrists over the past year. These questionnaires, along with the additional treatment records (along with our argument brief), convinced the presiding Administrative Law Judge to grant the request for a fully favorable on the record decision prior to the need to proceed to hearing.

Barry's case involves that of a 43 year old gentleman with a college education and a strong work history as a sales representative whose difficulties with substance abuse only complicated matters for his claim. When Barry's claim was brought to the attention of our office, it was necessary to appeal his claim to the hearing level (where it was assigned to the Lawrence Office of Disability Adjudication and Review).

Upon review of Barry's claim file at the hearing level, it became clear to me that inappropriate consideration had been given to the report undertaken by one of Social Security's examining psychologist. In fact, the psychologist asked to meet with Barry determined that there were a number of barriers to employment which were not cited by the Social Security Administration when denying his claim. This is not to mention the fact that Barry's treating psychiatrist had not been asked to address a Mental Impairment Questionnaire, addressing whether Barry met a medical listing of impairment, the extent of his residual functional capacity and the extent to which substance abuse might be contributing to his disabling condition.

Upon our involvement, we were able to prevail upon the treating psychiatrist to address a Mental Impairment Questionnaire which addressed all of the relevant issues to Barry's claim (see above). Remaining issues complicating Barry's claim were the fact that Barry had attempted to undertake a home business which would accommodate his condition (and, two, the fact that there had been a number of substance abuse relapses that remained of concern to the presiding judge). From an initial standpoint, the presiding ALJ needs to determine at what point Barry was no longer earning gainful wages: step 1 of the sequential evaluation process with a Social Security disability claim is whether the claimant is earning gainful wages. Likewise, the presiding ALJ needed to determine whether substance abuse was substantially contributing to his disabling conditions.

Barry, as with all of our clients, was very prepared for the hearing before the ALJ, knowing that issues involving his work and his substance abuse would be concerns she would want addressed at the hearing. I am happy to report that the presiding ALJ was convinced at hearing that Barry was longer complicating his mental health picture (having maintained sobriety for a lengthy period of time prior to hearing) and that this was therefore not material to a determination that he was disabled (that is to say, that substance abuse was not substantially contributing to his disabling condition). Likewise, his work activity and earnings were clarified for the ALJ such that she felt comfortable providing a fully favorable decision to Barry (providing him benefits from the date he had requested). Needless to say, Barry is breathing a lot easier knowing that financial assistance is on the way.