NHBA
Massachussets Bar Association
Maine state Bar
NOSSCR

May, 2018: Belinda’s Fully Favorable Decision out of Keene, NH and the Manchester, NH OHO

Belinda is a kind and hardworking woman in her 50’s in the Keene, NH area who came to our office looking for a New Hampshire Social Security disability lawyer to assist her after having been denied on her initial claim, giving up, and then choosing to refile on her own just shy of a year later. Belinda had always worked very difficult, physically demanding jobs, each of which required her to be on her feet throughout the majority of the day and involving a significant amount of lifting. 

While Belinda had been suffering from neck pain for a number of months that was troubling her, Belinda’s condition took a turn for the worse when, while shopping for holiday items, she hit her head in the store on a heavy board. Following this incident, her difficulties with neck pain and headaches increased to the point where she had to discontinue working. Subsequently, x-rays and MRI studies are undertaken reflecting severe multi-level degenerative disk disease and her condition progressed to the point where she is suffering from paresthesias into both of her arms. When attempts at cervical epidural steroid injections, occipital nerve blocks and physical therapy do not provide her with any relief, she was referred for a neurosurgical evaluation at which time a multi-level discectomy and fusion was recommended.

Belinda left work following her head injury and for a period of months while she was attempting the above-referenced treatment, and, while awaiting approval for her surgery, Belinda attempted to return to work once again. Unfortunately, given the worsening of her condition, Belinda had to leave work once again within 5 months of returning to work (during which time she was missing a considerable number of days). 

That being said, as would be expected given she is not a lawyer, Belinda was not aware of the various Social Security regulations having to do with unsuccessful work attempt (UWA) rules or her ability to argue for a reopening of her prior Social Security disability (SSDI) and SSI applications (which would entitle her to additional retroactive benefits). The UWA rules would allow her to maintain as her alleged onset date the date that she had initially gone out of work. Unfortunately, she had incorrectly noted on her second application as an alleged onset date the date following her failed attempt to return to work. The Social Security regulations regarding an UWA provide that if one has gone out of work for a period longer than 30 days, a period of disability is established for Social Security disability entitlement (which rules likewise require that ultimately she prove that she has remained or will remain out of work for longer than 1 year). That being said, an attempt to return to work that lasts for a period of less than 6 months, and which ends as a result of one’s disabling condition, is determined to be an unsuccessful return to work and does not interrupt a period of disability that had otherwise been established. Thus, we did succeed with amending her alleged onset date to the date she had initially gone out of work as a result of her neck and headache difficulties. 

On a separate note, understanding that she had reapplied for Social Security disability (and SSI benefits) within a year of her initial denial on her first application, the reopening rules provide that Belinda would be entitled to seek benefits based on the date that she had initially applied for Social Security disability benefits. Thus, we likewise argued successfully at hearing that her initial application should be reopened, with benefits provided based on that initial application (and her amended alleged onset date). 

Finally, and not of the least importance, given Brenda’s age, education and past work experience, her claim was entitled to be evaluated under the medical vocational guidelines, which would dictate that she should not be expected to find a sit down or sedentary type position given such jobs do not exist in significant numbers for someone with her vocational profile. Given this, the additional treatment records we were able to provide at the hearing level (including a medical questionnaire from her primary care physician and the results of a functional capacity questionnaire that was set up to determine the extent of her ongoing functional limitations) and the argument brief drafted on her behalf, we were able to prevail upon the presiding Administrative Law Judge out of the Manchester, NH hearing office to provide her with a fully favorable decision providing her with benefits that accepted our requested alleged onset date and honored our request for reopening of her initial claim.

Needless to say, the Social Security rules and regulations are complex. Attempting to wind one’s way through the maze of regulations is something best left to an experienced Social Security disability lawyer. If you or someone you love is in need of going through the Social Security disability process, or has given up out of sheer frustration, do them the favor of suggesting they call the Law Offices of Russell J. Goldsmith at (800) 773-8622 for the advice they need to help turn things around.