How Social Security Disaiblity, SSI Evaluates Pain.
Social Security Disability, SSI Judges must give Plaintiff's treating physicians controlling weight. Board Certified Social Security Disability Attorney Susan O'Malley recently argued a Federal District Court Social Security Disability, SSI case in front of North Carolina Federal District Court Judge Terrence Boyle. Judge Boyle, who has developed an incredible understanding of Social Security Disability law ruled that as Susan's client had additional information from her long term (4 year) treating physician that clearly contradicted the Administrative Law Judge's findings as to the client's ability to work on a regular and continuing basis, the client's case must be remanded for further findings in light of the treating physicians' determination. In Social Security Disability, SSI cases a doctor's opinion based upon a longitudinal history (long term) of treating a patient and who renders an opinion as to the diagnosis and residual functional capacity (ability to perform physical tasks) of a patient must be given great weight by the Judge. The client's doctor found that the she could not lift ten pounds, stand and or walk for 2 hours out of an eight hour work day and as this contradicted the Administrative Law Judge's prior opinion that the client could lift twenty-five pounds, stand or walk six out of an eight hour day the case must be remanded for further findings. Boyd v. Colvin 5:12CV785 EDNC. Practicing Social Security Disability, SSI law our law firm must always look for those cases that should be appealed to Federal Court. When choosing your Disability attorney, make sure that your attorney is capable and willing to appeal your case, if necessary, to the next level. Contact our office if you have any questions about how to appeal your Social Security Disability, SSI case.
- Gather the Names, Addresses and phone number of the doctors that treat you.
- Make a list of all of your medications. Include the name, amount, how often you take it, what you take it for, how long you have taken it and the doctor who prescribes it.
- Make a list of the activities you can no longer do. See Worksheet.
- Make a list of your work history for the last 15 years. Include the years, name of employer and job duties.
- Keep all letters from Social Security.
- If you do not have insurance, apply for Medicaid and look for clinics in your area that will charge based on income or free clinics. List of free clinics by county.
- Follow the doctor's recommendations.
- Make a list of any other benefits you currently receive such as Medicaid or Veteran's benefits.
- Talk to your doctor about disability and whether they would support your application for it.
- Call our office if you have further questions about applying for Social Security, SSI or need assistance filling your application.
Why do you need a trial lawyer for your serious injury case? On September 13, 2013 I was invited to try a mock personal injury trial to a room of approximately 100 personal injury lawyers from all over North Carolina at the North Carolina Advocates for Justice office in Raleigh. During the trial attorneys from all stages of their practice, young and experienced alike, came forward to discuss how to handle issues in their cases. The experience was very uplifting and emotional for me as attorneys whom I have idolized, one I have known and admired since long before I became a lawyer, approached me to ask advice about how to protect their clients. Nothing builds your ego like a college asking your advice. Nothing destroys your ego like not having a good answer for that attorney. This fraternity of attorneys who try their client's cases to juries and invest emotionally and financially in their clients is a rare group. This same group of attorneys shares their collective knowledge on the premise that in helping a college to assist his/her client they raise the tide for all injured persons throughout north Carolina. Why you should hire a trial lawyer. Why hire a "trial" lawyer to assist in your claim? We have earned the title by winning and quite frankly loosing cases on behalf of our injured clients and have learned the true value of cases throughout North Carolina. Often in loosing a case for a deserving client, I have learned how to assist the next client, give better advice about settlement of cases and put my next client in a better position to recover for their injuries. Post settlement the medical bills, liens and costs must be accurately accounted for and properly negotiated to give our clients the best result. Whether you have a social security disability (SSI) claim, workers' compensation injury or a serious injury from an automobile collision - think about hiring a trial lawyer and putting that experience to work for you! Joe Tunstall
Social Media after a Car Accident or Personal Injury?? Our clients rarely ask whether they should post to their social media (Facebook, twitter, Instagram, etc) after a car accident or injury case -- they just do. Our society is obsessed with instantly sharing what we are doing, what is happening to us and how we are reacting to our own lives. In the past year, our attorneys have seen a significant increase in requests in discovery (written requests called interrogatories, request for the production of documents and verbal requests at depositions) for logon information for our clients Social Media and requests that they produce the history of their account. Why would the insurance defense attorney (attorney hired by the defendant's insurance company to defend them) care if I have 500 friends on Facebook or 1,000 Twitter followers? They don't. What they are counting on is that many of us share a lot about our lives, but rarely do we share the really ugly parts of our own pain and the shame of having pain and problems following injuries from a collision or injury. Often the best advice is what my grandmother told me many times -- don't put anything in writing you don't want to explain to your grandmother. That is especially true of pictures. Joe Tunstall, why use a trial lawyer After a car accident our clients may post a picture of their vehicle, but rarely do they feel compelled to place a picture of themselves with no shower, hair messy from lack of sleep due to pain, stressed and frustrated for all their friends, co-workers and family to see. Instead they may post a picture of their next GOOD hair day. Although there is nothing WRONG at all with wanting to show your good day, your best days, to family and friends -- the insurance company lawyers know that if a jury sees your smiling face at a birthday party two weeks after the car crash, despite the fact you were in pain when you went, left early after taking a pain pill and didn't sleep that night -- the picture of your smiling face is enough to expose to the jury that you are exaggerating. When you have to explain all the good looking pictures, the only ones you would want to post, even when your in pain and having a tough time, it erodes the juries confidence in your complaints of pain. In Virginia an attorney who was past President of the Virginia Trial Lawyers Association was sanctioned for advising a client to remove damaging photos from his Facebook page after receiving a request from the insurance defense attorney to produce the same. article. An attorney cannot assist a client in removing or erasing discoverable material. A client must have the good sense not to post pictures of themselves they would not want to discuss with a judge, jury or their own grandmother. They must also understand that if they tell a jury about all the pain they had for six months in 2011 and the only pictures are of them smiling with their children at the park (good days) and not of them on the couch afterwards sleeping from the pain their credibility will be attacked. If you have questions regarding this post visit us at our own social media where we still only post the good days. @ncpilawyer on twitter and O'Malley Tunstall Facebook on Facebook. Raleigh office of O'Malley Tunstall, PLLC
Recently Joe Tunstall successfully argued a Social Security case that had been worked on by Susan O'Malley and Amos Waranch in front of Federal District Court Judge Terrence Boyle who found that an Administrative Law Judge (ALJ) hearing Social Security Disability cases must look at whether a claimant can perform a full range of work; which includes the ability to walk 6 hours out of an 8 hour day for light work. Lyons v. Colvin 4:12 CV 210. Susan and Maisey at Wags 4 Tags Judge Boyle determined that the ALJ erred when he failed to give any consideration for the lack of ability to walk for any considerable distance. In fact, the fact that the claimant could only walk for six minutes without getting short of breath was not considered relevant by the ALJ. Clearly this "walking test" given by the treating physician was relevant to the client being able to walk for 6 hours per day. Judge Boyle found that as the claimant could not perform light work, then under the law the claimant was disabled and ordered benefits. Susan and Amos have many hours trying, appealing and briefing the issues for this client. This case is ongoing and could, like Hines v. Barnhart, be appealed by the Government.
Recently Joe Tunstall successfully argued a Social Security case that had been worked on by Susan O'Malley and Amos Waranch in front of Federal District Court Judge Terrence Boyle who found that an Administrative Law Judge (ALJ) hearing Social Security Disability cases must take into account witness statements and medication side effects when deciding permanent restrictions. Boddie v. Colvin 4:12 CV 221 Judge Boyle determined that the ALJ erred when failing to even discuss the testimony of third parties and explain why the testimony was or was not given weight. Judge Boyle used a case that Susan O'Malley had argued before him in 2005 called Hines v. Barnhart (upheld by the 4th Circuit) to determine that the vocational expert must be given a hypothetical that clearly sets out all the claimant's impairments and cannot merely "pick and choose" the what information will be asked of the expert. This case is ongoing and could, like Hines v. Barnhart, be appealed by the Government. Injury Lawyer -- Joe Tunstall
Non-treating non-examining physician opinions are not good evidence in a social security disability claim. Social Security Disability Specialist -- Susan O\'Malley In most Social Security disability cases, the Social Security Administration uses medical consultants to review the record and issue opinions about a claimant's functioning at the initial and reconsideration levels of review. These physicians typically do not examine or treat the claimants, and base their opinions upon a review of medical records only. Social Security Disability application is stronger with a good letter from your doctor Federal Courts have ruled that "the opinion of a non-treating, non-examining physician based upon only a review of the record cannot constitute substantial evidence to support a finding of non-disability." Smith v. Schweiker, 795 F.2d 343, 348 (4th Cir. 1986). A determination by a state agency non-treating non-examining physician can be substantial evidence, but only when it is "consistent with the record." Smith, 795 F.2d at 345 (citing, Kyle v. Cohen, 449 F.2d 489, 492 (4th Cir. 1971)). More recently, the Eastern District of North Carolina affirmed those rules of law in Mathis by Mathis v. Shalala, 800 F.Supp. 461, 463 (E.D.N.C. 1995). In general, greater weight is accorded to the opinion of an examining physician than a non-examining physician. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997); Ortega v. Chater, 933 F.Supp. 1071, 1074 (S.D. Fla. 1996)(citing Lamb v. Bowen, 847 F.2d 698 (11th Cir. 1998)); see also, SSR 96-6p. These laws can be important to your disability case because a non-examining non-treating physician will not know as much about your condition as your doctors. You do not get to discuss your condition with these doctors and they do not get to see how credible your pain or disability is for themselves. In almost every disability case, these medical consultants review your records and issue opinions. Often, these opinions are the only items of opinion evidence available in a case, and they frequently underestimate the functional effects of a claimant's impairments and symptoms. The Federal Court opinions regarding how much weight a non-treating non-examining physician should be given reaffirm the value of a treating physician opinion to your disability case. When you have applied or are thinking about applying for disability, it is very helpful to talk to your treating doctors, psychiatrists, and other providers about whether they will support your disability application. By getting your treating physician to detail why you are disabled, you provide the judge with opinion evidence that is often contrary to the opinions of the medical consultants. As explained in the law cited above, when there is an opinion that is contrary to the medical consultants opinion, the medical consultants opinion cannot be used as substantial evidence to support a finding of non-disability. If you have any questions about treating source opinions, medical consultant opinions, or anything else regarding Social Security disability, please contact us.
Sequestration's mandatory budget cuts are scheduled to take effect on Friday, March 1, 2013. The sequestration cuts are not supposed to effect those already receiving Social Security Disability payments. Those persons that are still in the application and hearing stages may be affected depending on the length of time of the sequester. Sequestration could result in the loss of over 5,000 more Social Security Administration employees. This reduction in the number of SSA employees will be felt at the field and hearing offices. Field office operations may eventually be impacted resulting in longer waits to be seen by staff to handle applications and less total applications taken on any given day. A delay in initial decision of applications may also result due to the lack of staff to review applications and make recommendations. Finally as staff is reduced, hearings may be delayed resulting in additional time waiting for a hearing decision due to lack of staff to process the decision, man the hearings and write the decision. We certainly hope that the Federal Government will address these issues quickly, but the projection above could result in delays for those most in need of assistance.
What are the standards used to evaluate drug and alcohol abuse in a Social Security or SSI disability setting? If an ALJ (Administrative Law Judge) determines a claimant is not disabled based upon drug and alcohol abuse ("DAA"), the ALJ must go through the normal five-step sequential evaluation process, find them either disabled or not disabled, and then make a specific finding that drug abuse or alcoholism is material to the claimant's disability. Susan O'Malley discusses substance abuse and its effect upon your disability application The standard for materiality is whether the claimant would still be disabled if s/he did not abuse drugs or alcohol. If the ALJ finds that the claimant's DAA is material to her disability, then he goes through the five-step sequential evaluation process again to determine what her RFC would be without the DAA. If, after going through the sequential evaluation process without the functional impairments caused by the DAA, the ALJ finds that the claimant would not be disabled, then they are not disabled. Put differently, if the ALJ finds that but for the claimant's DAA, they would not be disabled, they are not disabled under the below cited law. Basically if the ALJ makes a finding that the DAA is material to the claimant's disability more likely than not there will be a decision of no disability a loss unless you have very compelling evidence that she would be disabled regardless of the DAA.