NHBA
Massachussets Bar Association
Maine state Bar
NOSSCR

June, 2018: Andrew's Fully Favorable Decision out of Portland, ME and the Portland, ME OHO

Andrew is a hardworking gentleman in his 50’s out of Gray, Maine who contacted our office looking for a Maine Social Security disability lawyer after having been denied both at the initial level and on reconsideration after having undertaken the process through a disability advocacy service that had been suggested by his long term disability (LTD) carrier. At the point in time Andrew contacted our office he was awaiting hearing at the Portland, Maine Office of Hearing Operations. 

What Andrew did not realize is that these advocacy services do not provide a lawyer and many times provides an individual with very little training in Social Security disability law and who has little knowledge of the judges out of the Portland, Maine hearing office. With regard to this particular service out of Illinois, counsel was informed by one of the judges out of Portland that his experience was so bad with representatives from that company that on one occasion he had to send the individual back to the company with a warning that the individual not come back until they’ve read up on the Social Security disability process as they had been provided no training and had only recently been hired by the company. What Andrew also didn’t realize is that hiring a disability lawyer to handle his claim was not going to cost him any money given the retroactive benefits recovered were going to pay back the LTD carrier for that which they have paid out, and that the LTD carrier was required to reduce the amount they pay out by the amount of any approved attorney’s fees. 

Upon getting involved in Andrew’s claim, it became apparent that the prior individual representing Andrew had undertaken little work determining what records were missing, obtaining medical questionnaires/reports from the providers in support of Andrew’s claim, or, for that matter, even providing a copy of the company’s LTD file. 

Andrew was suffering from a number of disabling conditions, each of which was severely impacting his ability to function consistently in a work setting. His diagnoses include that of cervical degenerative disk disease requiring multiple surgeries including a multi-level cervical fusion with hardware, with associated nerve pain going down his arm, vertigo resulting from benign paroxysmal positional vertigo (BPPV) of his left ear with associated difficulties affecting his gait, along with bowel issues associated with Crohn’s disease.

Ordinarily, it is anticipated that one’s treatment providers, especially their specialists, would be willing to complete medical questionnaires in support of their disabling conditions. Interestingly enough, while both his physiatrist and his neurosurgeon were of the opinion that he was not able to return to work, they were not willing to address the severity of his condition and the extent of his functional limitations (which is what the Social Security Administration (SSA) is looking to see: and not conclusions as to whether he can work). The Social Security disability regulations, in fact, specifically provide that SSA must ignore conclusions as to whether a disability claimant remains able to work or not as this is a conclusion that must be left to vocational experts. And medical doctors are not considered to be vocational experts: as their expertise lies with treating disabled claimants and evaluating the extent to which their condition(s) impact their ability to function in a work setting. 

That being said, given it is never clear what the presiding Administrative Law Judge ALI) is going to focus on at hearing, it remains good practice (and our practice) to address each condition that is deemed severe by obtaining helpful medical questionnaires from the claimant’s medical providers in support of their claim for disability benefits. And so we sought medical questionnaires from each of his specialists and his primary care physician, addressing each of his disabling conditions. And this turned out quite fortunate for Andrew, as when we went to the hearing and the presiding ALJ addressed the vocational expert as to what jobs would be available for him in the national economy based on a set of functional limitations, we were able to question the vocational expert as to how each medical condition would impact his potential attendance both on a particular day, and throughout a day based on the findings of the various doctors/practitioners who had addressed helpful questionnaires. Ultimately, the ALJ did find that Andrew would remain incapable of maintaining gainful employment, both from day to day and throughout a day and found him “disabled” under Social Security’s rules. However, instead of focusing on his neck issues (for which had undergone multiple procedures including a fusion), the presiding ALJ focused on the findings of his physical therapist with respect to his benign positional vertigo and the findings of his primary care physician with regard to his bowel difficulties (addressed in a Bowel RFC Questionnaire), determining that Andrew had remained disabled from gainful employment pursuant to Social Security Ruling 96-8P given the interruptions to his day and days from both his vertigo issues and his bowel issues requiring unscheduled visits to the bathroom. 

Upon being provided a fully favorable decision, Andrew was provided with the comfort of knowing that the LTD carrier would no longer be relied upon for paying the majority of his monthly benefits and thus much less likely to deny his claim in the future: understanding 1) there was an attorney involved in his case and 2) the SSA had found him disabled from all forms of gainful employment). 

Should you find that you are fighting with either an LTD carrier or the SSA for your long term disability benefts, there is no reason for you to go it alone. Call the Law Offices of Russell J. Goldsmith at (800) 773-8622 and see how we can assist you with your disability claim.