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Maine state Bar

July, 2013: 3 Difficult, yet Successful, Hearings at the Boston Office of Disability Adjudication and Review

This month's success stories involve 3 women we've been representing who were required to proceed to hearing at the Boston Office of Disability Adjudication and Review this month. The cases were in front of 2 of the most difficult administrative law judges and serve as reminders to me (and as examples to those reading my success stories) that proper presentation of a claim (with all records presented for the judge's review well in advance, a detailed argument brief and supporting questionnaires from the various treating physicians) can make all of the difference.

Frequently, I will appear at the Boston Office of Disability Adjudication and Review and hear attorneys preparing their clients the morning of the hearing. Many times during the preparation, I have heard the attorney learn of treatment for the first time that morning and then suggest to the client that they will ask the judge to keep the record open so as to obtain the additional medical documentation. Nothing peeves an Administrative Law Judge (ALJ) more than an attorney who has come ill-prepared (and nothing pleases an ALJ more than a well-prepared attorney).

In Cassie's circumstance, she presented to our office just 3 months prior to the hearing (having continued her hearing with the ALJ so that she could obtain an attorney for her claim). Cassie had 2 different attorneys who had represented her previously and had withdrawn from representation prior to our involvement. For some reason, these attorneys must have felt that Cassie's diagnosis of Fibromyalgia may have been problematic (or maybe they were concerned about her young age: Cassie is in her early 30's and is requesting long term disability benefits, that is, Social Security disability income benefits). Cassie's story was an unusually sad one: that of a single mother who had pushed herself through schooling while living in a shelter with her children. She not only obtained her associate's degree (for nursing), but succeeded in going back to school to obtain her bachelor's degree and an RN certification. She was working 80 hours per week (2 full time jobs), as a single mother, when she passed out from fatigue and fell down a flight of stairs (fracturing her larynx). Following a number of procedures, Cassie remained barely able to speak. However, she found a way to make it back to work (returning sooner than doctor's orders) as her client was willing to accommodate her condition. Unfortunately, shortly after returning to work once again, she was the victim of an automobile accident which has served to turn Cassie's life upside down. Following the accident, she has continued to experience significant pain and mental health difficulties given her inability to return to work and care for her family. She has continued to treat with a panoply of medical providers: a counselor, pain management psychologist, orthopedic specialist, primary care physician, rheumatologist, physical therapist, etc. Cassie was clearly doing everything she could do to try and get back to work and support her children (and ensure she did not lose the house she had been able to buy for them). We were able to work with her in a very short period of time to obtain supportive questionnaires from her orthopedic specialist, primary care physician and psychologist, each of which explained the nature and severity of her problems and how they were impacting her. Nothing was able to explain her story more than Cassie herself, sitting in front of the judge and explaining how she had succeeded through hard work and determination out of the shelter as a successful professional who had been working to provide a better life for her family (without the need for welfare assistance). We were able to prepare Cassie for this process and then carefully elicit her story for the judge to hear her heartwarming story of success (at least, up until the time of her fall and then her car accident). Cassie's story, which did not seem to touch those attorneys with whom she had worked with previously, certainly touched my heart. I am happy to note that her story resonated quite clearly with the judge who was hearing her case: his understanding of her struggle was obvious in his eyes and by way of his understanding questions and manner with her. I am thrilled to report that Cassie and her family are about to receive significant assistance by way of her retroactive Social Security disability benefits that will allow Cassie and her family to get back on their feet.

Paula likewise was represented by a prior attorney before obtaining representation with our office. By the time Paula contacted our office, she had already faced a denial and it was clear that she would consequently need to proceed to a hearing. While she had worked administrative assistant type positions in the past, she had been out of work for some time prior to becoming disabled. Unfortunately, a number of unfortunate factors came into play that served to hurt Paula's initial claim: 1) the treatment records from her long-term treating psychiatrist had not been obtained and provided prior to the initial determination of her claim, 2) Paula's long-term pain management provider's records had not been obtained by the Social Security Administration prior to the initial determination and no questionnaires had been obtained from her treatment providers that addressed the extent of her residual functional capacity. Paula's story could in no way be told in any convincing fashion without these records. Making matters worse was the fact that Paula's prior attorney did not ensure that the correct onset date was being used. Paula was very clear when telling me her story that she had been attempting to return to school, notwithstanding her long-term psychiatric and orthopedic difficulties, when she was in a serious car accident that served (much like in Cassie's circumstances) as the straw that broke the camel's back. Instead, the attorney was attempting to argue that she was disabled even prior to the car accident (during a point in time that Paula was collecting unemployment and taking courses to return to work). Upon getting involved, we ensured that all of the past treatment records were available for the judge's review well in advance of the hearing (along with an argument brief that explained to the judge why we were looking for benefits, and an amended alleged onset date which properly reflected when Paula became disabled).

It is always satisfying when the ALJ (administrative law judge) presiding over the case requests I make an opening statement, which in turn allows me to tell my client's story. In this case, the judge was very appreciative of the hard work that we undertook in the case, noting at the end of the hearing her thanks for my “thorough preparation,” and then adding further: “it has been a pleasure.” Needless to say, comments from a judge such as this not only provide me with a great deal of satisfaction (knowing that we have made the judge's job easy and had provided a complete and compelling claim for disability benefits on behalf of our client), but also provide me with the good reputation I'm looking for as an attorney who is in front of these ALJ's: it is reassuring to me that I am reinforcing my reputation as an attorney who is well-prepared with what is a very strong claim for benefits. I'm happy to report in Paula's case that we were able to assist her in obtaining a fully favorable decision.

Betty's claim involves that of a 62 year old woman who had been let go from employment in the mid 2000's, but had become disabled over the years since that time from a variety of ailments that had combined to create a storm of medical problems which had hindered her ability to return to work: pulmonary, orthopedic (most significantly her back), mental health, cardiac and with her weight. She had waited a number of years to apply for disability: approximately 5 years after she had stopped working (and, thus, she had applied just after her date last insured had run out). This can be a recipe for disaster. As with the other cases mentioned above, the first step in trying to assist a disabled individual is to try and understand their story. In Betty's case, I had to understand why she had waited so long to apply for disability. In fact, Betty had hoped to return to work and initially was making every effort to do so. However, as the years went by, the treatment with various medical providers increased for her: referrals to an orthopedic specialist, multiple pulmonary specialists, physical therapists, cardiologists, etc. She had become so entrenched in her treatment and with the depression and anxiety that resulted from her medical conditions and her inability to return to work that she could not get herself to move forward with a claim. Thus, once she had gotten around to accepting her disabilities and had made the decision to file a claim, it was after her date last insured had run out. What was clear is that we needed to go backwards in time and obtain the old medical records from all of her providers going back to the 1990's so as to show the ALJ how Betty had struggle through her medical conditions for a number of years before they simply became too much for her to consider working anymore. By providing the longitudinal history of her treatment, we were able to show the progression of her illnesses (in terms of her back, pulmonary, cardiac and mental health) and how they had ultimately morphed in a perfect storm, making it impossible to consider returning to work Betty's long-term primary care provider (who had been treating her since the 1990's) was kind enough to address a very detailed set of medical questionnaires, explaining the nature of her disabling conditions and how they have impacted her ability to function. Likewise, Betty was a very helpful client in that she was always ready to follow through with any of the treatment recommendations being made by her medical providers. After providing all of the additional medical documentation and an argument letter on her behalf, we had set the stage for Betty's testimony at hearing. There is no substitute for good preparation, and it's clear from the favorable decision that Betty received this same month, that the ALJ was convinced of her claim for disability. I am happy to report that Betty will soon be receiving both retroactive and ongoing disability checks that will serve to turn her life around for the better.