Ginsberg Law Offices

Hearing Delays Result in Increased Danger to Judges

Jonathan
November 21, 2010
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Recently, I represented a claimant afflicted with cancer who clearly met Social Security’s definition of disability – she had a medically determinable condition that precluded substantial gainful activity and her condition had lasted 12 consecutive months and was longstanding in nature. The judge assigned to this case is a no-nonsense person who took no more than 5 minutes to conclude the hearing.

In the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.” This time, however, he closed the case without saying anything. After the recording equipment was turned off, he asked my client to leave the room but asked me to stay. He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case. I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”

Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings. The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch. As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.

In state and federal courts, you find baliffs and court personnel who provide security to judges. In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room. Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability. What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled. Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work. This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date? Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record. For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date. Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →

Sample On-the-Record Argument Available for Your Review

Jonathan
February 24, 2009
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The first few weeks of 2009 have been extremely busy for me. I have been appearing at 5 or more hearings just about every week this year. I am trying to manage my caseload by submitting on-the-record requests in as many cases as I can.

My on-the-record request also serve as a pre-hearing brief for case that is on my calendar. However, if I can convince the judge to approve my case without requiring me to drive or take the train downtown, my client can avoid the stress of appearing at a hearing and I can save myself several hours of time.

Recently I was schedule to try a case involving a 63 year old woman with documented back issues, diabetes and a neuromuscular disease similar to multiple sclerosis. She was already receiving early retirement benefits, so the only issue was whether she was entitled to past due benefits from age 59, when she stopped working through age 62, when she began receiving early retirement benefits.

In my view this was a fairly clear cut case and there were several arguments to support our claim. I set out my arguments in an on-the-record decision and emailed it to the judge, who I knew to be a fair and reasonable person. A few days after I submitted my request I received an email back advising me that the judge was prepared to grant this claim.

The judge agreed to let me appear telephonically so on the morning of the hearing, the hearing assistant called me and we recorded a 5 minute hearing in which the judge announced his favorable bench decision. Since I was at home that morning, I “appeared” by telephone while I was sitting in a comfortable chair in my t-shirt and gym shorts.

I redacted the personal information from the case, and published my on-the-record request on one of my Georgia Social Security disability web sites. Click the link to read my argument.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing? Is that good news or bad news? A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled? my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing. Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation. Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office. The judge, who may be located hundreds or thousands of miles away, appears by video camera. The hearing reporter and expert witnesses may be local or they may be with the judge. You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia. I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices. For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried. At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person. However, that has not been a problem. I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.

Perceptive Judge Overcomes Poorly Prepared Vocational Witness

Jonathan
March 27, 2007

Yesterday, I appeared with a client at a video hearing with a judge from West Virginia. This was actually our second hearing – the first hearing was held in August, 2006. My client applied for benefits in July, 2003, which means that his case has been pending over 3 1/2 years. During that time, my client and his wife had to file bankruptcy and he has exhausted all of his pension and 401(k) money.

My client worked for a large airline for almost 20 years and back in 2001, he began experiencing severe pain (neuropathy) in his feet and legs. He subsequently fell and broke his left hip and he currently needs a knee replacement. He is also severely depressed and basically spends his days trying to find a comfortable position.

At the initial hearing, the judge was not convinced that my client’s physical condition was severe enough to justify benefits and he was concerned that there was not enough documentation about my client’s mental health condition. Therefore, following the hearing, the judge referred my client out for a psychological evaluation.

My client attended the psychological evaluation and in early December, the judge sent me a copy of the psychologist’s report. As discussed extensively on this blog, the main issue in any Social Security case relates to a claimaint’s capacity to perform work. The assessment completed by the consultative psychologist proved to be very relevant evidence.

At this, the second hearing, the judge took no testimony from my client, but he did ask several questions of the vocational expert witness (VE). The first question – if the claimant’s psychological profile is as set out in the psychologist’s report, could he perform any type of work. Let me interject here to say that 99% of vocational witnesses would answer “no,” because (1) the “poor” in “dealing with work stresses” and the cumulative effect of four “fairs” in other vocationally significant categories would make any kind of vocational adjustment pretty much impossible.

This VE, however, testified that 20% of sedentary jobs would remain available. Before I had a chance to cross-examine (I would have asked him about the cumulative effect of the “fairs” and about his understanding of the word “poor”), the judge gave two more hypothetical questions, each with significant limitations. It was fairly clear that the judge saw this as a case he was going to pay, but he needed acceptable vocational testimony.

The judge eventually got the testimony he wanted and he will pay this case. This is a good example of how a knowledgeable judge was able to get past the inexperience of a new or overly conservative vocational witness. This case also demonstrates how much authority a Social Security judge has in deciding which way he will take a case.

How I Won a Disability Hearing for a Deceased Claimant

Jonathan
February 28, 2007

With delays in the Social Security disability adjudication process taking as long as three years, it is inevitable that a claimant will pass away while waiting for a hearing. Today, I tried a disability case for one of those individuals.

My client initially met with me in June of 2004 and he passed away in January of 2006 at age 60. The hearing held today, therefore, covered a closed period of disability from his onset date (September, 2000) through the date of his death in January, 2006. Although my client passed away, his claim for disability benefits remained active, with his wife being substituted as the claimant.

My client died of a heart attack, although cardiac problems were not the basis of his disability claim. Instead, his claim for disability arose from mental health issues – severe depression, anxiety, panic disorder and bi-polar condition. My client was a highly educated individual – and he had graduated from college and law school (although he never practiced law). His past work was in the banking industry where he worked at a very high level position and was responsible for millions of dollars.

When I originally met with this gentleman he told me that he had been fighting symptoms of depression and panic for several years, but that by September, 2000, he had reached the point where he was unable to function. After being fired from his last banking job, he had worked part time managing investments for a few relatives and close friends.

The medical record from the treating psychiatrist was fairly solid, and it showed regular, on-going treatment and high levels of powerful psychotropic medications. The record also hinted at the occasional overuse of alcohol, although in my view the mental health problems existed independently of any alcohol issues. As you may know a claimant is prohibited from collecting disability benefits if the judge finds that alcohol abuse is a “material contributing factor” to a his disability.

I met with my client’s widow a little over a week prior to the hearing and we practiced the questions she was likely to face. I expected that the issue of alcohol use would be a primary focus of the judge. The judge in this case, by the way, was a new judge so I was unable to describe in much detail exactly how the hearing would be conducted.

When we got to the hearing, I learned that the judge had requested a medical expert – in this case a psychiatrist – to appear and testify. My experience with medical experts has generally been good although adverse testimony from a medical expert will pretty much spell doom for any case.

The judge started the hearing by questioning my client’s widow about her observations regarding her husband’s behavior. I felt that as a witness, my client’s widow was nervous and she almost seemed reluctant to speak badly of her late husband. Although she hinted at several significant behaviorial problems, I felt like we needed to get some of those issues more clearly on the record.

Because she and I had spoken at length about specific incidents where my client had acted inappropriately or in a bizarre manner, I asked a few questions that were probably leading in nature. Fortunately, my client’s widow saw where I was headed with this and she clearly related several stories describing behavior that indicated a severe underlying mental health problem.

The medical expert testified that the psychiatric record was very comprehensive and entirely consistent with my client’s testimony. He also pointed out that the large number of medications my client was consuming would have significant work limitations. He concluded by stating that he felt my client met the listing at 12.04 for bi-polar disorder.

The medical expert also took notice of my client’s educational achievements and his work history. In my mind the implication was clear – a highly educated and well compensated professional would not give up his career with the hope that he would recover Social Security benefits.s

The judge accepted the medical expert’s testimony and issued a bench decision approving the claim.

I think that the factors that were extremely persuasive here included:

my client’s work and education background – helped establish credibility
the medication list
the record of consistent treatment – monthly visits to the psychiatrist since the onset date
the witness’ testimony regarding incidents of behavior inconsistent with competitive work