October and November, 2013: Being at Hearing Doesn’t Necessarily Mean You’ll Need to Proceed to Hearing

The theme behind the favorable decisions we've seen over the course of the last couple of months is: having to appeal for a hearing and awaiting a hearing before an administrative law judge does not necessarily mean that you'll actually have to go to hearing. The four cases below are simply examples over the last two months of cases we have personally handled where our client was able to receive a fully favorable decision prior to the need to proceed to hearing (and thus save them the time and anguish involved with the hearing process). The key to success in this regard is thorough preparation, well in advance of the scheduled hearing.

Bob's case is a shining example of how matters should work, assuming the hearing office staff cooperates with the lawyer. Bob is forty-six (46) year old gentleman with a consistent work history who had fallen on some tough times in May, 2010. At that time, Bob was going through a tumultuous period with his family that resulted in his being hospitalized for his mental health. Bob had hoped to return to work in the fall, after taking some time off from work, however he suffered a severe injury to list left leg in October, 2010 that caused him to undergo surgery involving the placement of hardware. Following the surgery, Bob required significant physical therapy to be able to walk without the aid of crutches and a boot on his leg. Unfortunately, while he had made significant progress in physical therapy, he sustained a setback in the spring of 2011 following a seizure. Subsequent diagnostic testing revealed that the hardware was failing and, consequently, Bob was required to undergo a revision surgery in August, 2011. Given complications from the revision surgery, Bob required hospitalization once again in August, and was only able to begin partial weight bearing and physical therapy a couple of months later. Unfortunately, shortly after physical therapy began, Bob felt something snap in his leg and, it turned out, the hardware was rubbing up against a tendon and was risking a rupture of the tendon. Consequently, Bob had to undergo yet another surgery later in October, 2011. Partial weight bearing did begin once again at the end of November and physical therapy began a short time later. While Bob was noted to be doing well in January, 2012 and is no longer in physical therapy at that time, he subsequently experienced yet another setback a couple of weeks later and is referred back for yet additional physical therapy in February, 2012. When Bob is discharged from physical therapy in April, 2012, it is noted that he is continuing to have pain and swelling in his leg that is causing him to elevate his leg throughout the day. His orthopedic specialist diagnosed at that time that he was suffering from an ongoing tendinopathy. He was consequently referred back for yet another round of physical therapy (which therapy continued through the month of July, 2012, at which point he has improved to the point where he is released from physical therapy).

By the time Bob had contacted our office, he had already been denied on his initial application and was facing reconsideration (where there is a very high likelihood of a second denial). Additional evidence obtained from his orthopedic surgeon was utterly ignored on reconsideration by the state agency doctor that reviewed the file. When the case was appealed to the Springfield, Massachusetts Office of Disability Adjudication and Review, we were able to provide significant additional medical documentation evidencing Bob's continuing efforts at recovery, along with additional evidence from his treating surgeon that he had met a medical listing of impairment.

However, given Bob is required to show that he is disabled for a year or longer from a severe impairment that has in fact lasted a year or longer despite prescribed treatment, Bob's application (which he had undertaken prior to our involvement) involved an incorrect onset date (given he suggested his long term disability began in May, 2010). Consequently, at the hearing level, counsel provided an argument brief to the hearing office in April, 2013 amending Bob's alleged onset date to October, 2010 (when he injured his leg). Likewise, given Bob was doing better as of August, 2012 and had returned to work, we requested a closed period of time hoping to avoid Bob's need to attend a hearing. Administrative Law Judges are much more agreeable to providing favorable disability determinations to those who have shown they have found their way back to work. Otherwise, as one can imagine, the fear is that the individual will not have the incentive to return to work at any point in time if provided with an ongoing benefit check.

Unfortunately, no action was taken by the hearing office when the argument brief was originally filed. Counsel attempted to contact the presiding ALJ in advance of hearing but unfortunately the hearing assistant did not leave him any of the 4 messages that counsel had left her (for him), nor would she return any of the 4 phone calls from the attorney. Ultimately, upon attendance at the hearing, the Administrative Law Judge learned for the first time from counsel of his attempts to contact the lawyer and the reason for the calls: the fact that there was not only an amended onset date but a closed period of time being requested (that is to say, that counsel was looking for disability benefits for a very reasonable period of time, as was spelled out in our brief). The presiding Judge, in very short order, indicated that he was sorry this had not been brought to his attention or he would have granted this very reasonable request. I am happy to report that Bob is back to work and is likewise awaiting a retroactive disability check that will help him get back on his feet given the period of time he was unable to work. I remain hopeful that the apology that was subsequently rendered by the assistant to the judge means that she will in fact pass along counsel's messages to the judge in the future (and will return the attorney's phone calls).

Michelle's case involves that of a fifty (56) year old woman, with a high school education and a consistent work history that consisted of employment as a secretary and a toll booth attendant, who was claiming disability as of May, 2011 given longstanding difficulties with back pain, PTSD and depression. Michelle was not represented by counsel at the time of her initial application and, only after denial retained our office to appeal her denial and request a hearing to the Manchester Office of Disability Adjudication and Review. Michelle had undergone a series of back surgeries that ultimately resulted in a low back fusion in 2006. As part of our representation, we were able to obtain additional medical documentation in support of her claim that included old records evidencing not only the prior surgeries but also the pain management treatment Michelle had undergone to try and remain functional (and remain at work). The additional treatment records likewise included a formal functional capacity assessment, a Physical Residual Functional Capacity Questionnaire from her treating nurse and physical therapist, a Mental Impairment Questionnaire from her treating nurse and counselor along with a Physical Residual Functional Capacity Questionnaire from her long term pain management provider. Counsel provided a brief to the presiding Administrative Law Judge addressing the history of Michelle's condition as well as the struggle she had undergone so as to maintain her employment. I am happy to report that the presiding Judge was willing to take a hard look at the letter and has issued a fully favorable on the record decision more than three (3) months prior to when her hearing was scheduled for: a huge relief to Michelle (and just in time for the holidays).

Marcia's claim proved a very difficult one given the fact that it was very difficult to spell out what exactly has been causing Marcia's symptomatology. Marcia is a fifty-three (53) year old woman with a lengthy work history as an emergency room nurse who began experiencing problems involving her balance and gait, along with a chronic pain syndrome, towards the end of 2010. Unfortunately, over the course of 3 years, the doctors were not finding answers to her condition, both in terms of a diagnosis and in terms of a cure. She was continuing to decline during this period, however, without a specific diagnosis and without any statements as to her residual functional capacity, the Social Security Administration was continuing to deny her. Our involvement began at the hearing level, at which time it was explained to Marcia how important it was to get some answers. To Marcia's credit, she continued to follow-up with all of her treatment providers (including referral after referral with the hope of getting an answer as to what was causing her symptoms). Along the way, her medical providers were documenting objective findings that were making it possible for the Social Security Administration to find that she was suffering from a “medically determinable severe impairment.” Likewise, several of Marcia's providers were willing to address questionnaires on Marcia's behalf that addressed in some detail their objective findings as well as their opinion as to her residual functional capacity. This additional information served to provide the presiding ALJ with the information necessary for them to render a fully favorable decision prior to Marcia's need to attend a hearing. In fact, we were able to obtain a fully favorable decision for Marcia 6 months prior to when her hearing would have been held. I am happy to report that Marcia's holidays will be much more comfortable in light of the decision we were able to obtain.

Jenise's claim involves that of a forty-one (41) year old woman with a consistent work history as a fire fighter/EMT, secretary and animal control officer who became disabled as of May, 2012 as a result of back difficulties that had been impacting her ability to function for many years (and had likewise caused her to turn to part-time employment). Jenise had undergone a lumbar fusion in the past and had likewise, years prior, undergone an ankle fusion. She was continuing to experience difficulties following these procedures that were only worsening over the years such that she was now experiencing a significant chronic pain syndrome. Jenise did not retain our services until such time as she had faced an initial denial letter. Given Jenise's claim was out of New Hampshire, we filed Jenise's request for hearing (as there is no reconsideration process out of New Hampshire). Jenise's claim was subsequently transferred to the Lawrence, Massachusetts Office of Disability Adjudication and Review.

Upon our involvement, it became clear that Jenise's claim was missing medical documentation that would adequately support her claim. Additional treatment records that went backwards in time to 2010 was obtained (including additional records from 7 different providers). Likewise, at the time of her prior determination, no treatment provider had addressed the severity of Jenise's condition nor the extent to which it impacted her residual functional capacity (that is to say, her ability to function in a work setting). We were able to recommend that she get referred for a formal functional capacity assessment that in turn allowed her long-term pain management providers to address functional capacity questionnaires in support of her claim. We were likewise able to obtain a Listing 1.04 form that addressed the extent to which Jenise's back problems were serious enough to meet this particular listing of impairment.

As is our normal practice, we undertook an argument brief asking for a fully favorable on the record decision (that is, asking that she be provided with a favorable decision without the need to go to hearing). I am happy to report that Jenise's claim has been approved in time to provide her family with some financial assistance prior to the need to proceed to hearing (which remained 2 months away).

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