October, 2015: Sharon’s Case: Issues with Proving the Duration Requirement when Proceeding to Hearing at the Boston, MA Office of Disability Adjudication and Review

Sharon contacted our office upon being denied initially and again on reconsideration in the Commonwealth of Massachusetts. Given the fact that Sharon was receiving income in the form of short term disability benefits, and ultimately long term disability benefits, it was not necessary for her to apply within a few months of going out of work. Because the Social Security regulations do require her to prove that she is likely to remain totally disabled from all forms of gainful employment for a year or longer, the early filing served to promoted a prompt denial of her claim and was not in her best interest.

In some circumstances, clients have no choice but to file benefits as early as Sharon did in her case. For example, if she did not have other sources of income through either disability insurance or by way of a spouse who is earning an income that brings her above the poverty line, she would need in that circumstance to apply for transitional assistance in the form of EAEDC and food stamps through her local DTA office in Massachusetts. In that circumstances, she would have no choice but to apply for Social Security disability and SSI at that time as this is required by the transitional assistance rules.

The fact that Sharon applied as early as she did, the state agency office deciding her claim (that is, the Disability Determination Services office through the Massachusetts Rehabilitation Commission) determined that she did in fact meet one of Social Security’s Grid Rules but would not in fact remain so disabled for a year or longer. This decision was the same at both the initial and reconsideration stages of her claim: at the time she reached reconsideration, she had remained disabled only a period of 8+ months. Thus, upon her receipt of a reconsideration denial, we appealed this decision and Sharon’s case was transferred for hearing to the Boston Office of Disability Adjudication and Review.

Sharon was fifty-eight (58) years old at the time she became disabled from working. She has a high school education and 2 years of college. Her past relevant work history, that is, her work history during the 15 years prior to becoming disabled from working, consisted of work as a cashier and as a quality inspector at a factory.

Sharon initially went out of work after having to go to an area hospital in Boston suffering from significant low back pain and leg pain that persisted despite medication management. While the initial visit to the hospital, and that a month later, involved right leg symptoms suggesting a potential disk injury, she was not provided with an MRI until almost 4 months after she went out of work. In the interim, she was continued on pain medication management and physical therapy was attempted. She was not able to get in to see a surgeon until month 5. Surgery was subsequently undertaken in month 6, 2 months after she had to file for benefits. Thus, by the time the initial decision was rendered, she was still in the process of recovering from the surgery and it did not appear clear as to whether she was likely to remain disabled from all forms of gainful employment for a year or longer.

Unfortunately, at the time her claim is being decided on reconsideration, she had just begun treatment with pain management to try and address what is now left lower back and hip problems. What is fortunate, however, is that Sharon followed up aggressively for treatment. She underwent both injection therapy and medication management, which is well-documented by the her pain management provider. When additional MRI studies are subsequently undertaken, it is determined that while the surgery had addressed her disk ruptures, she was continuing to suffer from spinal stenosis, or what is a narrowing of her spinal canal that is pressing on the nerves that run into her legs. She subsequently follows up with her surgeon, who also reviews the MRI and determines that more extensive fusion surgery to help open up the spinal canal may be an option in the future.

Because of her continuing treatment and follow-up with the doctors, both her surgeon and her pain management provider are willing to address the nature and severity her medical conditions by way of questionnaires provided by our office. These documents provide compelling support for the proposition that Sharon has remained significantly impaired from a functional standpoint such that she has remained incapable of undertaking any manner of gainful employment. The fact that she continued to attempt both medication management and additional injection therapy as we approached hearing made the point to the presiding Administrative Law Judge (ALJ) that she was doing everything possible to get better and attempt a return to work .

While we had hoped our argument brief would have been sufficient so as to avoid the need for hearing, it did become necessary to appear at hearing before the ALJ. We are happy to report that Sharon was provided with a fully favorable decision following that hearing.

Should you or someone you care about require the assistance of an experienced Social Security disability lawyer to attend hearing with you, whether in Boston, MA or throughout New England, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 so we can discuss with you how we may able to make the difference for you.

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