Posts By: Website Editor

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The Necessity of a Medical Expert

Younger individual admitted to the hospital status-post fall with lower extremity weakness and paranesthesia. MRI showed significant compression of the spinal cord. Claimant was rushed for emergency decompression surgery. After two months of inpatient rehabilitation, the individual gradually started to regain function of his extremities. The individual continued to seek treatment for complaints of neck pain, lower back pain, and spasticity in his upper and lower extremities.
The medical evidence of record contained conflicting opinions from a Consultative Examiner (Doctor hired by Social Security) and the claimant’s own treating physician. In the case that there are conflicting opinions within the file, an Administrative Law Judge may call on a Medical Expert to testify. The job of Medical Expert is to review the evidence of record and give an opinion regarding the severity of one’s condition and any limitations caused from said conditions. Additionally, the Medical Expert will opine if any conditions meet/equal a SSA Medical Listing. The Medical Expert after cross examination, opined that Claimant met Medical Listing 1.04A, resulting in a Favorable decision for the claimant. Michael Eason represented the claimant at his hearing.


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Don’t Let A Bias ALJ Become Your Reality

No longer able to work because of her multiple sclerosis, a 42-year-old woman was no longer able to support herself, and was stuck living with her abusive boyfriend. An Administrative Law Judge denied her claim because she moved in with another man too quickly after escaping her previous living situation. He reasoned that she was clearly not disabled because she could talk to another man while living with her abuser. Really? Olinsky Law Group took her case to Federal Court. The District Court Judge did not take the ALJ’s statements lightly, and remanded the case to a new administrative law judge. Howard Olinsky and Matthew McGarry represented the claimant.


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Why A Well-Prepared Representative Can Make The Winning Difference

Claimant was denied at her first 2 hearings by the same ALJ, who failed to even read her medical records. Our firm took this case to Federal Court, and eventually attended her 3rd hearing, at which a new ALJ gave fair consideration to the Claimant’s impairments and limitations.
Claimant’s impairments included Ehlers Danlos Syndrome, a connective tissue disorder causing hypermobility, unprovoked dislocations, subluxations and pain. The hearing a Medical Expert was used to give an opinion regarding whether or not the Claimant’s condition was severe prior to her date last insured, 12/31/06. After vigorous cross examination, the medical expert testified that Claimant’s symptoms and disabling limitations were present before the end of 2006. In 2018, Claimant received a Favorable Decision, which awarded her retroactive benefits going back to 2006. Terry Schmidt represented the claimant at her hearing.


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Bad ALJ’s make for bad decisions, fight back with an appeal.

Unable to work due to her neck and back conditions, and despite neck surgery that did not resolve her pain, our client plead her case before an Administrative Law Judge. She described an inability to sit without constant pain and her struggles at home attempting to cook for herself. Sadly, the Judge denied her claim. Olinsky Law Group appealed her case to the United States District Court for the Eastern District of New York and won a remand for a new hearing. Melissa DelGuercio and Howard Olinsky represented the claimant.


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Don’t Let The ALJ Have The Final Say

A 41-year-old woman could no longer work due to depression, anxiety, and arthritis in her back and knees. She filed for disability benefits, but was denied after a hearing with an Administrative Law Judge. She appealed her case, but lost the appeal.
Olinsky Law Group took over the appeal and filed a claim in the United States District Court for the Northern District of New York. The Federal Court found that the ALJ’s decision was so poorly reasoned, it could not stand. It ordered a new hearing. Melissa Palmer represented the claimant.


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Fighting for Those Who Fought for Us

A Veteran in Maryland filed for disability benefits due to epilepsy, degenerative arthritis, and depression. She went to a hearing, but the Administrative Law Judge denied her claim.
Olinsky Law Group filed an appeal in the United States District Court for the District of Maryland. The Federal Court sent the case back for another hearing because the ALJ failed to support his decision with evidence: he had no proof that she could work. Ted Wicklund represented the client with Melissa Palmer assisting on the brief.


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Why You Should Never Give Up

A gentleman became disabled in 2007, and filed for disability benefits in 2008. At a hearing, where he was not represented, an Administrative Law Judge granted benefits for a period of just over a year, but the ALJ decided that his condition had improved to such an extent that he was not entitled to continuing benefits.
He hired Olinsky Law Group to appeal his case. The case was appealed all the way to the United States District Court for the Northern District of New York.
The Federal Court found that the evidence did not show that his condition improved, and it sent the case back for a second hearing. He was represented at the second hearing, but the ALJ again denied the claim. Olinsky Law Group did not hesitate to take the case straight to Federal Court.
The Federal Court once again sent the case back for another hearing, and once again, he was denied benefits. Olinsky Law Group again appealed the case to Federal Court, and asked it to do what should have been done a long time ago.
Finally, in 2018, after ten years of fighting for what he deserved, the Federal Court granted his application for benefits, including tens of thousands of dollars in back pay for the entire time he fought his case. Howard Olinsky represented the client with Melissa Palmer assisting on the Federal Court brief.


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So your client received a DENIAL at their social security disability hearing, what’s next? Maybe another Appeal!

Before evaluating whether a case should be taken to the Appeals Council, representatives should know a Request for Review must be filed within 60 days of the date you receive the Administrative Law Judge’s decision. Social Security assumes that you receive the decision within 5 days of the date on the decision, so you have exactly 65 days to file your Request for Review.  The Appeals Council will not accept late filings absent good cause.

Procedural status

The claimants last date insured for disability benefits should always be considered in deciding whether to appeal. Before deciding that a new application is be best course, be sure that the Claimant is eligible to reapply. Specifically, if the claim was Title II Disability Insurance Benefits, eligibility depends on insurance status. Therefore, if the claimant’s insured status expired prior to the ALJ’s hearing decision, the only way to preserve the claim and pursue benefits is with an appeal. If the claimant filed a Title XVI Supplemental Security Income claim and remains financially eligible for benefits, a consideration of other factors may reveal she has a better chance of obtaining disability benefits through a subsequent application rather than an appeal.  Therefore, representatives must carefully review numerous factors including the medical evidence and the type of claim in deciding whether a hearing loss should be appealed.

Medical Evidence

The next step after a hearing denial is often to appeal. This is especially true in cases with a fully-developed medical record containing evidence favorable to a finding of disability, and also true when the ALJ jumped the gun and issued a decision despite outstanding material evidence. The ALJ’s errors in weighing the evidence or deciding the case without a fully developed record are strong arguments that the case should be remanded for further proceedings.

Some errors the ALJ commits are more likely than others to result in remand. For the year 2015, the most common reasons the Appeals Council remanded cases included the following: The ALJ failed to properly evaluate mental limitations; new and material evidence was presented upon appeal; a treating source opinion was not identified or discussed; exertional limitations were inadequately evaluated; the ALJ failed to provide an adequate rationale for the weight accorded to opinions from consultative examiners; the ALJ failed to adequately consider a mental disorder; an opinion from a non-examining source was not identified or discussed, or there was an inadequate explanation for the weight accorded; or, a treating source opinion was rejected without adequate articulation.

The Appeals Council denies a substantial majority of the Requests for Review it receives; in the year 2015, only 13.6% of appeals were remanded to a judge for further review.  During this time, a claimant is prevented from filing a new application for disability benefits, because an individual may only have one claim pending with the Administration at a time. The Appeals Council rarely considers any evidence dated after the ALJ decision, because it is outside the time period relevant to the appeal.  This means that even if a claimant’s medical conditions worsen while the case is pending at the Appeals Council, that evidence will not be considered relevant to the claim. Therefore, in cases where the strongest evidence may be dated after the ALJ decision, a claimant may be better served by filing a new application to consider their more severe medical conditions. The latest statistics released by the Administration state that the average processing time for a Request for Review was 374 days. [1] However, this is an average, and many cases may be pending longer. Given the low percentage of favorable outcomes at the Appeals Council Level, many claimants who develop new medical impairments may find a quicker resolution to their case through a new application.

Conclusion

A claim need not end with an Unfavorable Decision following a hearing, but there are important factors to consider in determining whether a claimant should appeal the hearing denial or file a new application. Often, even the Appeals Council denial may not be the end of the claim, and representatives should seek a Social Security Federal Court Attorney to evaluate the claim for Federal Court.

[1]Appeals Council Request for Review Statistics. https://www.ssa.gov/appeals/appeals_process.html (Last visited August 30, 2016.)


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Continuing Disability Reviews, the Burden of Proof

Congratulations to Paul Eaglin, Esq who has been chosen to present at the NOSSCR Seattle Conference.

Continuing Disability Reviews, the Burden of Proof

Paul Eaglin, Esq.

This is the latest of a series of NOSSCR sessions in recent years relating to CDRs.  It looks at the representative’s role at the agency level as well as advocacy in federal court litigation.  The focus strives to draw closer attention to the burden of proof upon the agency to prove the elements for CDR at each of the steps of the process.