July, 2017: Emily’s Favorable Decision following Hearing out of Portsmouth, NH and the Manchester, NH ODAR

Emily contacted our office as many of our clients do: following a denial of her claim after filing her Social Security disability claim without the benefit of having a Social Security lawyer. She had been out of work for a number of months, having first collected short term disability benefits through her employer, and then having been placed on long term disability (LTD). It was at this point in time that she was forced by the LTD carrier to apply for Social Security disability benefits given the provisions in the policy that 1) required her to apply and 2) provided the LTD with an offset, dollar for dollar, for any Social Security disability benefits she received in a given month to the extent the LTD carrier had paid out to her.

Many times, the LTD carrier will push upon their insured a representative or what are called advocates, who are not in fact Social Security disability lawyers (and will do so very early on in the process). Given the fact that one needs to show that they will remain totally disabled for what will be a year or longer, we find that many such individuals are in fact pressured into applying too soon, promoting an initial denial of their claim. Unfortunately, the LTD carriers fail to understand that their policies typically involve an easier standard to meet, at least initially: for one, they typically provide that one is entitled to benefits should they be found disabled from performing the usually and customary duties of their ordinary occupation (versus Social Security’s more difficult standard, requiring that one prove that they remain disabled from all forms of gainful employment and 2) there is no requirement that the duration of their disability be for a year or longer (rather, one must merely show that they remain disabled from working at the point in time they are putting in their application for LTD, assuming they have in fact exhausted the required waiting period, which has many times been covered by short term disability (STD) benefits).

And so, Emily’s claim had been filed out of the Portsmouth, NH Social Security Administration (SSA) office just 6 months after she had gone out of work. She was in her early 50’s, with a high school education and additional training involving food safety: she had always worked very difficult jobs involving food preparation and food service which required her to be on her feet throughout the day, and which required lifting upwards of 20 lbs, many times 50 lbs. or more. She had been suffering from rheumatologic problems that included diagnoses of Sjogren’s syndrome, Fibromyalgia and associated sleep disorder (including sleep apnea) and chronic pain issues.

Because Emily had been denied at the initial level in the state of New Hampshire, she required assistance with the filing of an appeal for a hearing before an Administrative Law Judge (ALJ). Given where she lived, and the fact that we had objected to her proceeding by way of Video Teleconference (which is our regular practice), her case was assigned to the Manchester, NH Office of Disability Adjudication and Review. At the time of the prior agency determination, no medical reports from her own treating physicians had been provided which addressed the nature and severity of her medical conditions and the extent to which it was impacting her ability to function in any work environment.

We were able to provide reports from Emily’s treating rheumatologist that addressed her diagnoses, prognosis, symptoms, objective findings along with the extent to which these medical problems were hindering her ability to undertake such activities as sitting, standing, walking, lifting, carrying, using her hands for activities, etc. by way of a detailed medical questionnaire. This report, along with providing an extensive treatment history that had been missed at the time the case was initially review, provided a much different picture to the presiding ALJ that was assigned to hear her case. As we always do, when it becomes necessary to appear at hearing, we spent considerable time with Emily ensuring she was aware of what to expect so that she would feel comfortable. As was anticipated would be the case for Emily, her case went quite smoothly and she was awarded benefits for the period of time she had been out of work based on our showing she had met what is called a Grid rule.

Given the fact that she was collecting LTD benefits, these benefits were paid back to the LTD carrier as part of the agreement contained in the LTD policy. Going forward, this likewise meant that Emily would receive a LTD check that would be reduced each month by the amount she was receiving in Social Security disability benefits. Emily likewise received the benefit of knowing that 1) should the LTD carrier attempt to discontinue her benefits they would first look at the fact that they were paying a very small sum given the offset that resulted from her receiving SSDI benefits each month and, likewise, look at the fact that the SSA had found her disabled and 2) she would receive Medicare health insurance, just as senior citizens do.

If you are in need of applying for Social Security disability benefits, either because your LTD carrier is requiring you to do so, or you simply have remained out of work long term because of a disabling illness or injury, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 so as to find out your rights and how we might assist you with getting back on your feet financially.

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