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October, 2014: Whether to Proceed Following a Partially Favorable Decision

Sandra and Linda, and their partially successful stories this month, are the focus of this month’s success stories as they provide further example as to how an attorney can make a significant difference at the reconsideration level (a process which carries with it a very high denial rate: see September’s success stories). These cases likewise serve as examples of partially favorable decisions and the manner in which it is advisable to proceed following the receipt of such a decision at reconsideration.

Sandra is a fifty-one (51) year old woman who initially contacted our office in April, 2012 as she had been laid off from her job as a dishwasher and was finding it difficult to function in a job setting given cardiac and seizure difficulties. At that time she had just initiated treatment with a cardiologist following hospitalization and had not seen her neurologist (for her seizure disorder) for 6 months. We advised her at that time to undertake additional treatment with specialists with the hope that this would address her medical conditions such that she could return to gainful work. Sandra contacted our office once again in October, 2013 at a point when she was continuing to have cardiac difficulties, was having seizure difficulties notwithstanding the treatment she was receiving from her neurologist (she had reinitiated treatment with her neurologist at our urging) and likewise had gone through a 6 month period of treatment for breast cancer (for which she remained cancer free at time of her additional contact). We agreed to representation at this time as Sandra had taken our advice about the need to be in zealous medical treatment.

Notwithstanding the medical reports we were able to provide from her primary care physician, neurologist and cardiologist, Sandra was initially denied her claim for benefits (requiring our office to file for a request for reconsideration on her behalf). Fortunately, on reconsideration, we were able to obtain for her a partially favorable decision, convincing the Social Security Administration that she had remained disabled since May, 2013 (which, while not the 2012 date we had alleged, certainly provided her with a significant amount of retroactive benefits along with an ongoing check).

Most clients worry as to whether they should proceed with initiating an appeal at this point (that is, when faced with a partially favorable decision on reconsideration, should they request a hearing before an Administrative Law Judge (ALJ)): will it hold up their ongoing check, will they give up either their right to an ongoing disability check or their retroactive benefits if they choose to appeal? The point of this month’s success stories is that one should always request a hearing in this circumstance, and that there remains no risk of any of the above concerns by filing the appeal. Appealing a partially favorable decision will not delay the processing of one’s retroactive or ongoing checks nor will it in any way impact the receipt of one’s ongoing or retroactive check: each of these processes will move forward in the same manner, whether one chooses to appeal or not. Thus, one should file a request for hearing in this circumstance.

That being said, there is a concern with actually proceeding to the hearing itself (which will ordinarily take place anywhere from 9 months to what can be 12 to 15 months down the road). One does risk a denial of their claim only if it becomes necessary to proceed to the actual hearing: many times this is not required as many times a more favorable decision can be obtained without the need to proceed to hearing. It is advisable that you have an experienced lawyer in this circumstance. My practice is to provide an argument brief to the hearing office well prior to the hearing in every single case: in these circumstances, I do so requesting that an earlier onset date be provided without the need to proceed to hearing. In a great many of these cases, the hearing office will provide an earlier onset date without the need to proceed to hearing (thus avoiding any risk to the client). If not, the client and I have plenty of time to discuss how the case looks from the standpoint of requesting an earlier onset date, who the judge is deciding the case and the risks associated with proceeding to the actual hearing itself. One is always able to withdraw their request for hearing any time prior to the taking of testimony on the day of hearing: should one do so, the partially favorable decision will remain in effect as if one never requested the hearing in the first place (that is to say, all benefits would stay in place as had been previously ordered by the reconsideration decision, as that would be the last decision in the case). Given these facts, there is never a reason not to file a request for hearing when there is a partially favorable decision on reconsideration as there remains no risk unless one proceeds to the actual hearing.

Thus, we have advised Sandra to file a request for hearing so as to provide us with an opportunity to obtain for her additional retroactive benefits: assuming the hearing office is not in agreement with such a request made prior to hearing, Sandra will have the option to withdraw the request prior to undertaking the hearing itself (and will be able to make such a decision following further advice from me).

Linda’s claim serves as yet another instructive example. Linda is a sixty-one (61) year old woman who last worked as an office manager for a physicians’ office when her condition caused her to leave what had been long-term employment for her. Linda had struggled to keep working for many years as a result of multiple orthopedic concerns (she had fractured her ankle years prior and likewise had both hips replaced in the past). Ultimately, she felt she could no longer work full time hours and, as a result of this, she asked her employer to allow a reduction in her schedule (which they were not willing to do). Thus, she was laid off from her employment.

When Linda contacted our office, Linda had been denied on her initial application based on a finding that her condition did not remain severe and disabling despite prescribed treatment. Based on our suggestion that she should be in treatment with a specialist for any condition she believes remains severe and disabling for her, Linda initiated treatment with an orthopedic specialist. At the reconsideration level, we were able to obtain supportive medical questionnaires from her primary care physician and her new orthopedic specialist. Based on the new evidence provided, the Social Security Administration was willing to find that Linda remained disabled at this time (but was not willing to find that she had remained disabled since her alleged onset date).

Consequently, Linda will be receiving an ongoing disability check as we move forward with her hearing request. As we have explained to Linda, she will risk nothing as we proceed with her request for hearing: she will continue to receive her checks in the same manner as if she did not file an appeal. Ultimately, we will be filing an argument brief with the hearing office requesting an earlier onset. If we remain unable to convince the hearing office to provide Linda with an earlier onset date prior to the need to proceed to hearing, Linda will have the opportunity to withdraw her request for hearing prior to proceeding to hearing and will have risked nothing by appealing the partially favorable decision provided to her at reconsideration.