NHBA
Massachussets Bar Association
Maine state Bar
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June, 2018: Thomas’s Fully Favorable Decision out of Saco, ME and the Portland, ME OHO

Thomas is a disabled gentleman in his mid 30’s who resides with his family in western York County, Maine, with his case handled out of the Saco, Maine Social Security office. Thomas contacted our office in search of a Maine Social Security lawyer following receipt of his denial of his Social Security disability claim. Thomas had been working for a number of years at a chain retail store in what was a very physical position, and had worked his way up to management at the facility when he became disabled from working as a result of a diagnosis of Chronic Myeloid Leukemia.

That being said, one would think that Thomas’s case might be straightforward as a result of the diagnosis alone. Given the Social Security Administration’s (SSA’s) rules and the facts of Thomas’s case, it was not so clear to SSA. Thomas had been hospitalized for severe symptomatology involving chills, nausea, vomiting and fatigue, and following hospitalization and referral to oncology for treatment (oral chemotherapy), the condition was brought into what was technically hematologic or what would be blood test remission, and thus he was not deemed to meet the requirements for Social Security Listing of Impairment 13.06 (Leukemia). Following chemotherapy, Thomas did attempt a return to work at what were reduced hours (35 hours per week versus the 55 hours he was previously required to work at a minimum previously) and reduced duties, however he was struggling even with major accommodations that were being made for him by his employer given significant persistent symptoms. Ultimately, his employer pushed him for a return to both his full-time hours and duties, but Thomas was in no position to do so. Consequently, Thomas went back out of work on short-term disability benefits, continuing to receive his full salary from his employer in the interim.

Given SSA’s rules requiring one to show in Thomas’s circumstances that he was incapable of working any job for which he was reasonably suited by age, education and experience, SSA was not willing to conclude he was “disabled” under their rules given what they deemed to be an ability to return to work for 35 hours per week, and the fact that his employment terminated once again only when his hours were being returned to his norm. Likewise, making matters difficult were reports from his oncologist’s office stating that while Thomas was limited from performing more exertional employment, they did not find him incapable of sedentary or light exertional level employment. Thus, SSA denied Thomas’s claim.

Upon listening to Thomas’s story, we determined that SSA had not determined the true circumstances of Thomas’s return to work. They had failed to obtain a Work Activity Report which would have made clear to them that Thomas was working under a number of accommodations. Thomas was allowed to take off hours and days as need be, based on his condition, work fewer hours than other employees, have less duties, responsibilities and production requirements than other employees, and was given rest periods as need be throughout the day. The fact that these accommodations were being taken away from him was the reason he was no longer able to work, and what became clear to SSA as well, is that the ongoing wages Thomas was continuing to receive constituted short term disability benefits and not wages. And, thus, under SSA’s rules, the return to work for a 3 month period did indeed constitute an unsuccessful work attempt.

In addition, from working with Thomas’s oncologist’s office, we were able to obtain helpful medical questionnaires that spelled out a number of more specific limitations that served to counter SSA’s conclusion that Thomas could work a certain level of exertion manner of work. By having the oncologist address what would be inconsistent attendance, not to mention an inconsistent ability to attend to tasks throughout the day, we were able to make clear to the presiding Administrative Law Judge (ALJ) that indeed Thomas’s condition would hinder him from being able to perform any manner of gainful employment .

While many cases are able to be resolved short of the need for hearing by way of an argument brief, unfortunately, given the nature of Thomas’s ongoing symptoms were associated with lab tests that were in fact consistent with remission of the condition and were thus were solely subjective (that is coming from him) and not objectively confirmed through ongoing laboratory testing, the ALJ did want to hear from Thomas in person. Given Thomas’s strong work ethic, as further evidenced by his willingness to attempt such an accommodative work return, the ALJ was quite taken by Thomas’s wish to work and the severity of his condition and provided him with a fully favorable decision following hearing.

We were happy to see that through significant efforts on Thomas’s behalf our hard work for him did pay off. This story should likewise makes clear that SSA’s rules are complex and may not bring about the desired result without the assistance of an expert to help explain how indeed your case calls for a favorable decision and an aware of benefits. Call someone who has dedicated their career to assisting with such claims for more than 31 years: the Law Offices of Russell J. Goldsmith at (800) 773-8622 and see how we can make the difference in your case.