NHBA
Massachussets Bar Association
Maine state Bar
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July, 2018: Wayne’s Fully Favorable Decision out of Manchester, NH

Wayne is a 57 year old gentleman who had recently moved from California to Manchester, NH, who came to our office looking for a NH Social Security disability lawyer after being denied both at the initial and reconsideration levels. Wayne had a disability lawyer out in California, however, now that he had moved from California and was at the hearing level, it was suggested to Wayne that he find a lawyer in his new area. Wayne had become disabled from working as a result of degenerative disk disease, having previously undergone a neurosurgical procedure called a spinal fusion of his low back (at L5-S1). He had continued to try and work what was previously a very physical position as a windshield installer that required him to be bending over vehicles all day, lifting heavy windshields and did not require that Wayne had even a high school education: in fact Wayne was limited to a 9th grade education.

What was clear from a review of the file is that Wayne’s past lawyer had not taken a very good look at the file, or, perhaps, did not have a very good understanding of Social Security’s rules. For those individuals over the age of 50 and who have only worked more physical positions (that is, whose past relevant work, or work performed during the 15 years prior to becoming disabled was of a more physical nature), a separate set of rules to evaluate one’s entitlement to Social Security disability applies called the Medical Vocational Guidelines, otherwise known as the Grid Rules. These rules require that SSA take a look at the level of physical work performed previously, the functional limitations associated with their severe medically determinable impairments, along with how far they have gone in school and whether there are skills acquired from the past work that might transfer to other positions. Whereas, if one were under the age of 50 the Social Security Administration (SSA) would look to see if a disability claimant was capable of returning to any manner of unskilled sedentary exertional employment that exists in significant numbers in either one’s region of the country or generally in the nationally economy, in Wayne’s case the Grid rules apply. A quick analysis of Wayne’s past education level (9th grade), his past relevant work (which was all performed at the heavy exertional level with no transferable skills), and his age of 55 or greater which placed him in what is deemed to be the category for advanced age, his grid rule is deemed to be 201.02. That being said, the Grid rules dictate that someone who falls into this grid rule who is limited to either sedentary (sit down) or light exertional work must be found “disabled” under Social Security’s rules and entitled to disability benefits.

Upon review of the prior decision, what became clear is that SSA had sent Wayne to one of their own doctors for what is called a Consultative Examination as they did not feel they had sufficient evidence to determine the severity of his condition, and thus the corresponding functional limitations that should apply. A review of the file likewise made clear that the consultative examiner was in fact a certified orthopedic surgeon, and as such, her opinion should have been deemed entitled to great weight. That being said, the orthopedic surgeon found during the course of his examination that Wayne would be limited to light exertional work, which should have dictated a finding of “disabled.” And yet, the state agency adjudicator decided to base their denial on a doctor who undertook only a paper review of the file, was a general surgeon, who decided that the orthopedic surgeon’s findings were not supported by their examination and that Wayne should have a medium exertional capacity which would mean he could lift up to 50 lbs. occasionally and 25 lbs. frequently. Moreover, such findings were made prior to receipt of an MRI undertaken of Wayne’s back which arrived into the file shortly thereafter: with the MRI undertaken 4 months prior to the decision, but the adjudicator did not care to ensure that such a report was available for review by either the state agency’s doctor.

After all of the above was made clear to the presiding Administrative Law Judge (ALJ) by way of an argument brief, along with a substantial number of records which had remained missing and unaccounted for by both SSA and the prior attorney handling the claim, along with a Physical Residual Functional Capacity Questionnaire undertaken by the claimant’s pain management provider, the presiding ALJ saw fit to order a fully favorable on the record decision for Wayne. Thus, Wayne did not have to go through the stress associated with attending a hearing before an administrative law judge to tell his story.

All of this could have easily been addressed by Wayne’s prior lawyer, prior to the need to obtain other counsel, if they cared enough to look into, or perhaps knew enough to look into these matters. And so, before you hire a lawyer for your Social Security disability claim, ensure they 1) have the extensive experience and knowledge necessary to effectively represent you in your case and 2) will work hard to ensure you get the benefits you deserve. The Law Offices of Russell J. Goldsmith has more than 32 years fighting for the rights of the injured and disabled. Call now at (800) 773-8622 so we can begin fighting for you.