September, 2015: Richard’s Case: The Difference a Massachusetts Social Security Lawyer Can Make at Hearing

Richard’s case is a classic example of the difference an experienced Social Security disability lawyer can make in one’s case. Having our office involved from the very beginning could have saved Richard quite a bit of needless worry and financial distress.

Richard was a fifty-three (53) year old gentleman at the time of his initial Social Security disability application, who had last worked for a period of 12 years in sales and production until such time as the company closed. Richard was on unemployment, looking for additional employment, when he began having difficulties with his hip. Unfortunately, Richard did not have health insurance which would allow him to seek treatment for his hip. While still attempting to find work, he then suffered the additional misfortune of having a heart attack which required stent placement. Once the heart attack occurred, it placed Richard’s plans for a return to work on hold. Given the heart attack, however, Richard was able to obtain Masshealth insurance coverage through the State of Massachusetts: this allowed him payment for the treatment he required in terms of his heart condition, and then allowed him to get the treatment he required for his hip. It was discovered early on with his hip treatment that Richard would require a hip replacement. Richard had a relatively quick recovery with respect to his heart, and then with respect to the hip replacement surgery, which was a number of months later.

Unfortunately, Richard continued to break down. During the course of his recovery from hip surgery, which was noted to be going well, he was noted to be suffering from increasing low back problems. X-rays provided evidence of low back degenerative disk disease. When physical therapy did not prove helpful, MRI testing was undertaken and made clear that Richard was experiencing chronic nerve irritation which then required him to undergo lumbar facet blocks and additional injection therapy, ultimately including nerve ablation. When injection therapy did not sufficiently address his condition, it was recommended that Richard undergo multilevel lumbar fusion surgery. In the interim, he was noted to be suffering from failure of his hip replacement surgery, and discussion took place at that time regarding the possibility of revision hip surgery following the recovery from his back fusion surgery.

Without the benefit of an attorney to advise him, Richard decided to apply for Social Security disability benefits shortly after suffering his heart attack, claiming disability using as his onset date of disability the date he discontinued working. What was clear at the time he discontinued working, however, was that Richard had not become disabled from working at the time he stopped working, even though he may have been having hip problems at that time. He was laid off from his last place of employment, and did not leave as a result of medical concerns. The fact that he started collecting unemployment benefits, and continued to do so, sent a statement not only to the Department of Labor, but also to the Social Security Administration, that he was available for gainful employment and was looking for at least 3 jobs per week. This ran counter to the argument that he was disabled during that time. Likewise, Richard did not understand that because his heart problems did not turn out to be long term disabling (that is to say, they were not expected to disable him from working for a year or longer), it would not be considered a qualifying condition given it did not remain severe and disabling for a year longer.

Richard was not aware that because he was filing within the initial stages of his treatment for his hip and back conditions, it would not be clear to the Social Security Administration (SSA) that either of those conditions would become severe and disabling. Thus, by the time Richard had contacted our office, he had been denied by SSA on his initial application.

Upon getting involved, we worked with Richard to see about obtaining helpful medical questionnaires from both his primary care physician and his back and hip specialists. While all 3 doctors were ultimately willing to assist with medical questionnaires that addressed both the medical listings of impairments and his residual functional capacity, these reports were not received in time for submission prior to his denial on reconsideration. Ultimately, at the hearing level, we were able to show through the additional treatment he had been receiving that he had remained disabled from working, despite the physical therapy, injection therapy and surgical intervention as a result of his orthopedic conditions. We provided an argument brief to the Administrative Law Judge assigned to hear Richard’s claim at the Boston Office of Disability Adjudication and Review, explaining that he was amending his alleged onset date beyond the date he collected unemployment, and likewise beyond the date of his heart attack: it became necessary that we amend the onset date to the point in time that Richard had initiated treatment for his hip. It was necessary that we focus on the point in time that Richard’s orthopedic problems had become severe and disabling: that is to say, the point in time that his hip condition required replacement, as it was all downhill from there. With all of these ducks placed in a row for the judge assigned to hear the case, we were able to persuade the ALJ to provide Richard with a fully favorable on the record decision.

What becomes clear through Richard’s story is that having the advice of a skilled Social Security disability lawyer right up front can help avoid pitfalls, such as applying too early and using the wrong onset date. Assuming such advice was available from the beginning, Richard might have been able to avoid what turned out to be a 2 year claim and appeals process.

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