Medical Records and Purported Limitations

As you can see it has been some time since my last blog post. For lack of better reasons, I have spent all of my spare time thinking of things other than Social Security Disability law. After a scathing review from a fellow attorney and self-proclaimed fan of the blawg, I have repented of my ways...

In preparing for a recent appeal to the Appeals Council, I came across a case that caught my attention and when this case was highlighted in the last NOSSCR publication "Social Security Forum" by interest peaked. The question that the case presents and I feel summarily answer is what do we do as attorneys when we read the medical records from a doctor that states something of the following: "patient is responding well to medications", "patient is stable", and/or "patient is doing fairly well in medication and treatment". As many practitioners know, ALJs, although not intentionally, will look at the statements from the doctor and will conclude that the claimant is functioning well and if the patient is functioning well then the cliamant can either resume past work or has the capacity to perform other types of work.

I see this most often when the claimant will have a doctor that is supportive of their claim for disability and provides a report that would preclude work ability. If the ALJ believes that the report is not consistent with the medical treatment notes, then the ALJ will not give the appropriate weight of the assessment and will dismiss the said assessment as not being consistent with the medical record as a whole. The ALJ will then go on in the decision to point out from the treatment notes that the assessment cannot be afforded weight because the notes will reflect the statements as outlined above.

In Wild v. Astrue, 581 F.Supp.2d 1155 (N.D. Ala. 2008), the Federal District Court reversed the ALJ decision and awarded benefits on the basis that the ALJ rejected the opinion from several medical sources. Although I think that the real rationale for reversal and payment of benefits was that the ALJ had a long history of rejecting the statements from every possible treating, examining, and reviewing source, I think the fundamentals are informative. The Federal District Court stated that the ALJ misinterpreted the treating psychiatrist's statement that the plaintiff "has done fairly well on her medications" as meaning that she "functions appropriately." As the NOSSCR summary of the case states, doing fairly well on medications is not the same as functioning appropriately. The Court goes on to say that the ALJ should have recontacted the psyciatris for elaboration or clarification of the opinion under the ALJs dute to develop the record.

I think this case bolsters an argument that the ALJ must give good reasons in rejecting the opinion of a treating source under 20 C.F.R. 404.1527(d)(2) and 416. 927(d)(2) and Wilson v. Commissioner of Social Security, 378 F.3d 541 (CA6, 2004). I do not believe that statements of "doing well" is enough reason to undermine a doctors opinion.

Inflammatory and Antagonistic Language in an ALJ Denial, Part 2

After some initial research, it seems that an appeal based on ALJ language in a decision is adequate and sufficient. In the HALLEX, which is the Social Security Administration Office of Disability Adjudication and Review's Hearings, Appeals and Litigation Law Manual, section I-2-8-25, discusses the format and content of ALJ decisions. For most representative and attorneys, the HALLEX section is pretty mundane. However, the section states that the ALJ "must not use emotionally charged words; e.g., “malingerer,” “hypochondriac,” etc."

Further, section I-2-8-35, states that the ALJ must give the claimant a clear and complete explanation of the reasons for reaching the ultimate conclusion regarding entitlement, the ALJ must write the decision so as to avoid, as much as possible, harming the claimant. For example, when writing the decision, the ALJ must:

1. Avoid using emotionally charged words, pejorative terms, and personal judgments or opinions, even if the harmful language appears in evidence or testimony. If the ALJ wishes to cite such evidence, it should be paraphrased.

2. Exercise discretion in delicate situations. For example, the evidence indicates that the claimant may be suicidal, denies the presence of a mental impairment, or has a terminal illness but has not been informed of that fact.

If there is information in the decision which might be harmful, and the claimant is represented, the ALJ will:

1. send a copy of the decision to the representative only;

2. send an abbreviated/short-form decision to the claimant; and

3. enter the following or similar language on the bottom right side of the form transmitting the decision to the representative:

   I have furnished an abbreviated copy of this decision to the claimant because the complete decision contains information which may be harmful to the claimant's health. Therefore, I suggest that you discuss only the general content of the decision with the claimant.

As for our immediate appeal, the ALJ used language that was provocative in nature and cited part of a treating source's opinion concerning the cliamant's motivation. The end result is, if the ALJ fails to follow the rules and regulations as promulgated, including following the procedures in the HALLEX, then the case must be remanded. In our current case we are asking for a new ALJ, new hearing, and new decision.

Inflammatory and Antagonistic Language in an ALJ Denial

In our local Office of Disability Adjudication & Review, we have a new Judge that has taken the initiative to write part of the ALJ decision. More and more, we come across language in the denial that has no right being there. With permission from the client I write one of many examples, "The claimant is obviously unmotivated. It is readily apparent that the claimant has chosen a lifestyle where we wants governmental entities to pay for his every need. He lives in rent free housing, unduly receives food stamps, and clearly wants the Administration to fill in the gaps."

I find this kind of language inflammatory, antagonistic, and uncalled for. I know that appealing the case to the Appeals Council solely on that basis is not enough. Any suggestions?

School Records and Social Security

Recently I was in a casual conversation with a Senior Staff Attorney about using school records as evidence in Social Security cases. His comment to me was that more and more Social Security representatives do not submit school records as evidence of intellectual deficiencies.

As a matter of course, any time I have a client that is alleging a mental disorder of any nature, I always request and submit the school records as evidence. More importantly, if a client is alleging borderline intellectual functioning or even mild retardation, school records become imperative. I feel that the most important aspect of school records, besides the obvious part about grades, are if the claimant repeated certain grades in school, was the claimant in mainstream classed or special education or resource classes, did the claimant graduate from an alternative school because of behavioral problems, and if the claimant left school because of age-related decisions.

A claimants school history can be very important evidence when it comes to his/her residual functional capacity. It becomes especially important when trying to prove 12.05C cases, in particular.

No Insurance, No Money, No Doctor

It seems like more and more I have clients that are not receiving adequate medical treatment despite their severe impairments that prevent them from working. The main reason for not receiving medical care is the dilemma of having no insurance and no extra cash to pay for doctors visits.

First, updated medical treatment is absolutely essential to every Social Security Disability case. If the clients problems are not documented in the medical records, it does not exist in the eyes of Social Security. No matter if the client's back is "messed up", if it is not documented, it will be ignored by the Administration.

Second, any attorney needs to be apprised of any programs offered by the local state agencies. This will include Medicaid, energy assistance, food stamps, etc.

Third, most metropolitan areas may have "free clinics." They are hard to get into and may require some proactivity on the part of your client. If you dig deep enough, the client may be surprised how much is offered in the general public.

Fourth, some hospital will offer some sort of indigent help on medical bills.

Finally, and the one that seems to make sense to clients, is that you are better off spending some cash now in hope for a favorable result down the road. For example, you have a family doctor that wants to charge you $50.00 for every visit. If the client's hearing is not for a year or so, they may spend over $1000 in medical bills with medication. If the client has a PIA of $880, then they may be better off spending the money now to ensure that there are updated medical records for the Judge to make a good decision on the case.

Unless there are extreme circumstances, I will not let a client off the hook just because they have no insurance and no money to see a doctor. Effective attorneys will know of resources that will help a client. It may take some time on the attorney part, but competent and zealous advocacy are part of the trade and the clients will thank you for it.

Unfavorable Decisions

In a recent conversation, I was asked by another attorney, "What do you do when you have a client that is denied at the hearing level by an ALJ?" First, I have to give some perspective to my practice as a Social Security Disability attorney. In our office, we take most (and I do mean most) valid cases. That is to say, they have a pending claim for disability and have received a medical denial. If we can think of a plausible theory for disability, we will take the case.

That said, there are occasions when we will represent a claimant that has very little chance of success but would like to have their "day in court." What can I say, I am a bleeding heart and we are surprised on occasion with a win.

Back to the question. If I feel that the ALJ's decision is inadequate in his/her application of the laws, rulings, and regulations, I will appeal the case to the Appeals Council everytime. However, if the only basis is that the Judge didn't see it my way, an appeal may not be warranted. As a practice policy, I will usually appeal a case to the Appeals Council on most unfavorable decisions. Like it or not, I can usually find an error in the Judge's application of the law. More and more, I am appealing on the issue of the ALJ limiting a claimant to "unskilled, low stress work". This limitation is inadequate and leaves too many inferrences on the part of the Vocational Expert at the hearing. We are getting a lot of these cases remanded from the Appeals Council. Believe it or not, we still have the same ALJ giving this type of hypothetical.

Amending Your Onset Date of Disability

Many times, claimants and their attorneys are confronted with a request from an Administrative Law Judge to amend their onset date of disability. Essentially, when ever a claimant "files" for Social Security Disability (Disability) or Social Security Supplemental Income (SSI), they give the Administration a day in which they became disabled. Usually this day is the day that the claimant left work due to their problems. This date is called the alleged onset date ("AOD"). The name carries a slight negative connotation in the eyes of someone applying for disability. The only reason the term is called alleged is because that issue of onset is to be established by the claimant and their representative.

Often, by the time the claimant's hearing comes to be scheduled, the ALJ will review the file for the first time. During this review, the ALJ will determine if the onset date is established by the medical records. Most factors of a proposal to amend an onset date will be either a specific medical finding that seems to correlate with the claimant's limitations or the claimant has earning posted to their earnings record, including unemployment benefits.

Long story short, if the Judge is asking you to amend the onset date, they essentially are going to award benefits. I always will counsel a client on the consequences, such as Medicare eligibility dates, workers comp offsets, LTD subrogation, etc. Barring some associated issues, amending an onset date entitles a claimant to benefits which means a fully favorable decision is waiting. I almost never see a Judge requesting an amended onset and not pay the claimant. However, always use caution and always know the justification for amending an onset date.