June, 2011: The Importance of Showing One’s Disabled Despite Prescribed Treatment

Bert's claim was one of the more concerning cases I've had in recent times given Bert was not one to follow through with aggressive treatment for his conditions. The importance of following through with the doctor's recommendations (and with the doctor's themselves so that there is not only documentation of the problems one is experiencing, but also so that one can show they are doing everything possible to get better). It is important to remember (and I know I have pointed this out previously in a number of other success stories) that the regulations require one to prove that they are disabled despite prescribed treatment. Bert is one of those individuals who hates going to doctors and is more apt to assume there is nothing more then doctors can do for him.

At the time Bert alleges he became disabled, he was 55 years old (and, thus, under Social Security's regulations, considered of advanced age). He had been suffering from chest pain and shortness of breath that appeared to his doctors as potentially related to a moderate heart defect. What remained problematic, however, is that an angiogram of his heart had not been undertaken at the time of the hearing (and was finally going to take place the month following the hearing). The question at hearing became whether there was sufficient evidence of a heart condition that would hinder him from performing any of his past relevant work and likewise keep him from what is defined under the Social Security regulations as light work. The additional concern raised by the Administrative Law Judge at hearing was whether he needed to consider these issues again as Bert had applied previously and was denied (and didn't appeal): thus, the Judge was concerned whether the concept of Res Judicata applied, which means the matter has already been decided once before. There was thus the need to show that there were new issues and/or new evidence provided (not only so that the judge would consider once again whether Bert had remained disabled from gainful employment and entitled to disability benefits at all, but also so that the judge would consider whether there was a basis for reopening his past claim, which would serve to provide him with benefits going back up to 1 year prior to his initial application. The Social Security regulations provide that one is only able to receive retroactive disability income benefits going 1 year prior to the date of a claim filing: a reopening of an earlier claim in this instance likewise required a showing of new and material evidence relating back to the time of his initial application.

As part of our work on Bert's claim, we were able to uncover that his primary care physician had undertaken a residual functional capacity assessment so that Bert could obtain city assistance with his rent. The city officials were able to go into their archives and find the prior assessment (which the doctor did not keep a copy of at the time) so that we in turn could provide this for the judge's consideration. This document served to provide compelling additional evidence that went backwards in time prior to Bert's date last insured. Likewise, at hearing, we were fortunate that the Administrative Law Judge had requested a medical expert to testify at the hearing. While the Judge did not seek to ask questions of the medical expert, I was allowed to inquire of the medical expert and in this way was able to obtain additional evidence from him that was supportive of the notion that Bert did have a serious medical condition that was physically hindering his ability to work. The medical expert testified that, in his opinion, Bert did have a less than light work capacity. Given the fact that there was medical testimony at hearing that was supportive of Bert's claim, this alone would constitute new and material evidence which would allow reopening of Bert's prior claim (and likewise served to address the judge's concern of Res Judicata). I am happy to report that this decision will provide Bert with significant retroactive benefits so that he will no longer require city assistance, and will have sufficient funds to live in a more suitable living arrangement than the one he was forced to live in while going through these denial processes.

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