Justia Lawyer Rating
Massachussets Bar Association
Maine state Bar

March and April, 2014: Avoiding the Need to Proceed to Hearing

The last couple of months have been extremely busy with briefs and hearings (and, I'm happy to say, very successful ones). I've chosen 3 examples of cases over the last 2 months that were scheduled for hearing, but which did not need to proceed to hearing as the presiding administrative law judge (ALJ) provided a fully favorable decision as a result of the additional evidence argument brief I filed in their cases.

Marissa is a forty-eight (48) year old woman who had been laid off from her prior position, but who had always worked very difficult jobs over the course of her life (including work s a cleaner, in shrimp production and as a meat packer). Unfortunately, Marissa was diagnosed in 2011 as suffering from breast cancer. Given the nature of her cancer, she opted to undergo a bilateral mastectomy in early 2012 and subsequent to this reconstructive surgery. Unfortunately, while the breast cancer was successfully addressed, Marissa continued to experience difficulties with nerve damage following the surgeries that hindered her ability to use her arms meaningfully for lengths of time. Likewise, she continued to experience fatigue which may or may not have been related to the ongoing medication protocol she was required to undergo for her breast cancer. Marissa, to complicate matters even more for her, suffered from painful gynecological difficulties which left her abdominal and pelvic discomfort which also impacted her ability to function during the day.

Marissa was denied on her initial application and likewise on appeal given the fact that the Social Security Administration determined her breast cancer was in remission and she should be able to return to some manner of employment. This was despite the fact that at the reconsideration level we were able to provide additional medical documentation from her long-term treating oncologist that confirmed her opinion that Marissa had a great number of functional limitations resulting from her ongoing medical condition that hindered any attempt at working. This denial served as yet another example of how the reconsideration process remains a very unfair review process: based on my experience, it is in the majority of circumstances simply a rubber stamp denial of the initial decision. Given Marissa's denial on reconsideration, it became necessary to appeal the decision: that is, request a hearing. Marissa's claim was transferred to the Portland, Maine ODAR (Office of Disability Adjudication and Review), at which level of appeal we provided additional evidence from her treating oncologist, counselor and psychiatrist. In addition, to Marissa's credit, she did attempt a return to part-time work that did not prove successful.

My philosophy is always to address with my clients whether there is a realistic possibility they could be returning to work (and to attempt work if this is the case). An attempt to return to work always turns out to be a win/win for the client: judges find it much easier to provide a favorable decision to someone who has shown that they returned to work when they could (versus providing ongoing benefits to someone such that the individual may never have the incentive to try a return to work given the ongoing check they're receiving). Likewise, if one attempts a return to work, it shows the judge that they were anxious to return work. It is important to recognize that there are a great many protections to disabled individuals who try to return work, in the form of what are called unsuccessful work attempts and trial work periods. These rules allow individuals to try a return to work without the worry of adverse consequences to their claim for benefits. In the event the return to work fails because of one's medical condition, even months into a return to work, it is deemed to be an unsuccessful work attempt and does not impact one's claim for ongoing disability benefits (nor does it impact one's entitlement to a disability check during the period of time you were attempting to work).

I routinely provide my clients with information about unsuccessful work attempts and trial work periods as it is always, as I mentioned before, in the client's best interest to try and return to work. If one succeeds, a judge is usually happy to provide the benefits for the period of time they could not work (of course, this is on a case by case basis). Again, if one fails in their attempt to return to work, the attempt shows the judge that they are doing everything possible to return to work (and that they are not simply sitting at home waiting for a disability check).

In Marissa's case, her attempt at returning to work did not last very long (nor did it amount to gainful employment (which is defined at the ability to earn $1070.00 per month on a regular basis): consequently, her inability to succeed at even less than gainful wages further served to support her claim that she remained disabled.

Upon review of my brief and the additional documentation provided, the presiding ALJ was willing to provide Marissa with a favorable decision in her claim (prior to the need to proceed to a hearing). Needless to say, Marissa is feeling quite relieved that help is on the way.

Linda is a thirty-nine (39) year old woman with an extensive work history in retail (last working as a store manager in November, 2011, at which time she had to take time off from work given family concerns that were unrelated to any medical condition). Linda filed a claim for disability benefits based on significant long-term back problems that became much more severe in the summer of 2012, at which time she felt she became disabled from attempting a return to work. At that time, she is noted to have a significant disc rupture that is affecting the nerve root that runs to her right leg. Given epidural steroid injections do not prove helpful, she opts to undergo surgery a few months later. Unfortunately, following surgery Linda continued to experience significant low back and right leg pain. Notwithstanding the fact that her surgeon supported her claim by noting that she remained significantly impacted by her continued low back and right leg pain, she still was denied on her initial application and on reconsideration. It became necessary for our office to appeal the reconsideration denial for her and to request a hearing. Linda's claim was transferred to the Boston Office of Disability Adjudication and Review.

Fortunately for Linda and Linda's claim, she was very aggressive with her treatment follow-up. She underwent additional MRI studies and subsequent evaluation with both her treating surgeon and, ultimately, a second surgeon. We were able to obtain from her operating surgeon a residual functional capacity assessment that detailed the extent to which Linda continued to remain functionally limited. The hearing office was able to see as well that additional surgery was being recommended for Linda, although the surgeons had different ideas how to address her continuing back problems through surgical intervention. In addition, we were able to obtain medical questionnaires from Linda's long-term primary care physician that addressed the extent to which she continued to remain functionally disabled since her alleged onset.

As we do for every client we represent at hearing (and not all lawyers undertake pre-hearing briefs), we provided the presiding ALJ with an argument brief well in advance of the hearing so as to avoid, potentially, the need to go to hearing. I am happy to report that Linda will be seeing financial assistance in the very near future given she has received her fully favorable on the record decision.

Stephen is a forty-eight (48) year old gentleman with a lengthy work history as a pipe fitter, who injured himself back in 2011 when he sustained an injury to the top of his head and his neck from a work-related accident. Following the accident, Stephen made every effort to return to work in a timely fashion, and when this proved too much, he was provided with accommodations in terms of his duties along with a reduced work schedule: nonetheless, Stephen's condition continued to deteriorate.

While he continued to suffer pain and discomfort in his back and neck, there remained no indication that he had sustained damage to either his vertebral bodies or his disks: his problems continued to remain what appeared to be more muscular in nature. Ultimately, the doctors did determine through MRI studies that he has degenerative changes in his neck that could be causing an impact on the nerves that run through his spinal canal. Treatment efforts included narcotic and muscle relaxant medications, physical therapy, a TENS unit, steroids, injection therapy (both epidural steroids and nerve blocks), osteopathic manipulation and acupuncture. In addition to treatment through a physiatrist's office, Stephen sought out multiple neurosurgical opinions.

While the adjuster for the workers' compensation claim saw fit to provide Stephen with total workers' compensation benefits (agreeing that Stephen remained totally disabled from working), the Social Security Administration proceeded to deny Stephen's initial claim. This was despite the very telling medical documentation we provided on his behalf (a residual functional capacity questionnaire from his long-term treating physiatrist). After being denied at the initial determination and on reconsideration, we advised Stephen to return to the doctor who had evaluated him for his workers' compensation claim. This physician, upon additional examination, was willing to address a detailed assessment of Stephen's functional limitations.

As has been mentioned in many of the success stories previously posted, in order to prove disability in a Social Security disability claim it is necessary to show that one remains totally disabled from all forms of gainful employment "despite prescribed treatment." This means that the Social Security Administration expects to see that the claimant is doing everything possible to try and get better and return to work. Clearly, with Stephen (as was the case with both Marissa and Linda) this had been the case: in fact, Stephen continued to remain in consistent treatment even though his doctors were telling him that there wasn't anything more they could do for him other than provide ongoing medication management.

I am happy to confirm that following submission of an argument brief to the presiding ALJ well prior to the scheduled hearing a fully favorable decision was provided to Stephen.