July, 2011: A Story in Perseverance - Part 2

Gerry's case is one of those terribly unusual circumstances that demonstrates to me that success in life (and in my profession) is many times dependant on one's willingness to persevere through difficult and trying times in order to ensure that the right thing takes place. I believe this case is an example of just that.

The trouble with Gerry's case revolved around what is called his DLI or date last insured. In order to apply for and receive Social Security disability insurance benefits, one needs to be insured for benefits. When one pays Social Security payroll taxes, a portion of those taxes goes towards coverage under the disability insurance program. For every so much in Social Security taxed earnings earned, one receives a quarter of coverage (in 2011, $1120.00 in Social Security taxed earnings provides 1 quarter of coverage): assuming one earns $4480.00 in Social Security taxed earnings in 2011, one would earn all 4 quarters of coverage for the year 2011. Ordinarily (and there are exceptions), one needs to earn 20 out of 40 quarters of coverage in order to be insured at a particular point in time for disability insurance benefits (and thereby be qualified to receive disability insurance benefits if they are indeed found disabled at a point in time when they are in fact “insured” for benefits).

In Gerry's case, the Social Security Administration had made a determination from the very outset of his claim that he was insured for benefits through December 31, 2002. Given one may only receive disability insurance benefits going back 1 year prior to the date of their filing (assuming they have been disabled for a period of five full months prior to this: so as to meet the 5 full month waiting period requirement), it was assumed that there would be no need to use an onset date prior to August 1, 2002. Ultimately, at hearing, the medical expert testified that he was indeed disabled prior to August 1, 2002 and potentially earlier. It was explained to the ALJ at hearing that we did not feel the need to go back any earlier as it would not entitle Gerry to any additional benefits by doing so (and he had been found disabled while still insured for disability benefits, by going back prior to his dated last insured of December 31, 2002). The ALJ accordingly agreed to provide a fully favorable decision for Gerry at that time.

Unfortunately, two events occurred following the issuance of the favorable decision: 1) Gerry passed away within days of the judge's decision and 2) the Social Security Administration contacted my office to notify me that they had made a mistake (and indicated that they calculated his insured status wrong: he was missing 1 quarter of coverage to be insured in 2002, and had only 19 instead of 20 quarters of coverage). In calculating his date last insured before 2002, they determined that he was now last insured as of September 30, 1997. Unfortunately, benefits were not payable given the judge's favorable decision that he was disabled only as of August 1, 2002.

Rather quickly following the news from the local Social Security office, I contacted the hearing judge by way of a brief, asking that she allow a new hearing on the issue of whether Gerry had been disabled at this earlier point in time given the local Social Security office's error. Given the prior notices during the 2 year period we had been involved in his case indicated the date last insured of 2002, it never occurred to me that we would need to worry about his condition (and whether and the extent to which he had been disabled since the 1990's). However, I didn't see this as a time to give up: rather, it was a time to move on to the new issues which had been presented before me. When the Administrative Law Judge refused to provide a new hearing in the matter notwithstanding Social Security's error, I appealed the decision to the Appeals Council (arguing that it was Social Security's improper reporting of his date last insured that caused Gerry's counsel, that is myself, to agree to the 2002 onset date). The appeals council agreed with my argument and returned the case for a new hearing. In the meantime, since there needed to be a substitute party entered into the case given Gerry's passing, I went about getting Gerry's daughter involved as the substitute party (and she hired me to carry on with the claim). When the case was returned for rehearing, we were faced with the case being transferred to Washington, DC (when it was clear from the order that attempts should be made to bring the matter to the attention of the same presiding judge, and if possible, the same medical expert). While the ALJ was still around, unfortunately, the helpful medical expert had retired and was no longer available.

Fortunately, once again, perseverance paid off. While it took about 9 months to succeed, I was able to convince the Washington, DC office to return the file to Portland, Maine for additional hearing. Once I was able to succeed in getting the case reassigned to the same presiding judge, I was able to locate additional treatment records from the early 1990's that were in archives. Since there was no estate set up in Probate Court by Gerry's surviving family, it became necessary that I request that the Administrative Law Judge issue a subpoena for those records to be provided by the hospital and medical group at issue. It was my opinion that these earlier records might help support the notion that indeed Gerry's condition was quite severe even then (going back to the mid 1990's). Receipt and review of these records proved this to be the case. A new medical expert testified that he was in agreement that Gerry likely met a medical listing of impairment going back to 1997. Likewise, given there had been some work by Gerry between 1997 and 2002 at a factory which had since gone out of business (the factory had actually burned down and no wage records were available), there remained a question of whether his work was performed in a manner which would indicate it was both “substantial” and “gainful.” We were able to obtain an affidavit from Gerry's father indicating that during this time he was living with his parents, and that the employer understood Gerry's medical concerns (that is to say, if he was unable to come in that day, they would simply check back the next day or the day after that and see if he felt up to coming in and undertaking some work). Given this evidence, the ALJ ruled that this work was not substantial and gainful, and therefore confirmed that a fully favorable decision, finding Gerry disabled prior to his new date last insured of September 30, 1997 was appropriate.

I am happy to say that as a result of this perseverance (which included approximately 10 argument briefs spanning a number of years) Gerry's daughter and granddaughter will be the recipients of approximately Fifty Thousand Dollars ($50,000.00) that will serve as his legacy to them.