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.
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.
Last month, National Public Radio's (NPR) This American Life and All Things Considered programs ran a story that we feel incorrectly portrayed Social Security Disability as a new American "welfare" program. The story, entitled "Unfit for Work: The Startling Rise of Disability in America," appeared to have a thesis: that the states are trying to improperly move welfare recipients onto the federal disability roles because of budgetary pressures. But when the facts and research did not necessarily line up with that preconceived thesis, the story employed disingenuous logic and dubious use of anecdote over statistics in order to prove that point regardless of the truth. Unfortunately, a number of blogs and forums picked up on the NPR story and made expanded and unwarranted attacks on the disabled and their advocates. In response, eight former Commissioners of the Social Security Administration wrote an Open Letter disputing the story. In that letter, the former Commissioners responded with detailed statistics to many of the spurious allegations raised in the NPR article. The NPR article made it seem like it was reasonably easy to be granted disability, relying upon anecdotal evidence. For instance, the NPR article makes it seem like a certain Dr. Timberlake in Hale County Alabama had the power to issue a binding recommendation that an individual be adjudicated disabled. Of course, a treating physician's opinion is valuable, but the article is misleading in how the Social Security Administration handles treating physician opinions. Also, the NPR article also makes a dramatic point that "nobody" is "defending the government's decision to deny disability." That is clearly false. The Open Letter responds to these dubious allegations in a calculated manner. First, they point out that disabled individuals are very ill, and that about 1 in 6 die within five years of receiving benefits. Without Social Security disability or SSI, most of these individuals would have essentially no option for sustenance and health care. Something that the NPR story failed to appreciate is that many of these individuals will not receive much in terms of Old Age Retirement Social Security benefits because of their medical conditions. Therefore, it is perfectly fair and morally justified to pay out benefits from the Social Security system earlier in their lifetimes. The Open Letter then points out the fundamental flaw in the NPR story: the standards for approval for benefits are very strict. Only about 40 percent of adult Disability and SSI applicants receive benefits after all levels of appeal. Why is that number so low? Because, contrary to the allegation in the NPR piece, there are numerous defenders of the government's decision to deny disability. The local district offices deny the majority of initial applicants, many of whom are ultimately granted disability before an Administrative Law Judge. The Administrative Law Judges themselves frequently err on the side of caution, i.e. not granting benefits, when adjudicating cases, and then the Appeals Council routinely denies appeals without review. When the disability applicant finally appeals to Federal Court, the first time a non-Social Security employee looks at the application, the government does, in fact, hire a lawyer to defend their position. The allegation that there is "nobody" defending the government's decision to deny disability is just false. It is instructive to look at this point from another perspective. The NPR story attacks disability advocates for being part of the "disability industrial complex." However, our job would not exist if the disability process was more permissive and fair to applicants. Disability advocates are almost all paid on a contingency fee arrangement, where the advocate collects the fee only when the disabled individual wins his disability case. A person does not need to hire a disability lawyer until after his initial claim is denied. It then takes over a year to have a hearing before a disability judge. During that time, the disability advocate will develop the individual's case by helping to collect evidence (like medical records, school records, and doctors' opinions) and then will prepare the individual for a hearing before an Administrative Law Judge. Only after getting an expert advocate to help develop their case, many of these individuals who were initially denied are ultimately granted disability. Without the advocate, they would never get the benefits they need to survive. In many cases, these benefits were paid for by the claimant's out of their paychecks, and Social Security disability functions as an insurance system. To attack the advocates is unjust. Finally, the NPR story makes a point about the increase in disability beneficiaries, and attempts to link that increase to unemployment and other economic factors. The Open Letter from the Commissioner points out that this rise in beneficiaries was "predicted by actuaries as early as 1994 and is mostly the result of two factors: baby boomers entering their high-disability years, and women entering the workforce in large numbers in the 1970s and 1980s so that more are now 'insured' for Disability based on their own prior contributions." The Commissioners correctly point out that the NPR story sensationalized the growth of the disability roles, and fails "to tell the whole story" about Social Security disability. With an ageing population and higher percentage of the population working through middle-age, there is bound to be an increase in disability. The article ignores these obvious demographic points in favor of a thesis regarding unemployment and welfare, and it badly misses the mark. We here at O'Malley Tunstall are proud of our work on behalf of disabled individuals. The world has dealt a difficult hand to many of our disabled clients, and every day we fight for their benefits that were wrongfully denied. There will always be challenges with any system of disability adjudication, and there will always be disabled individuals who need expert help managing that system. No matter what, we will stand by the injured, infirm, and the ill to ensure that they get the benefits they deserve. Social Security Disability Specialist -- Susan O\'Malley If you or a loved one has been denied Social Security disability or has questions about the disability process contact us.
Witnesses Will Help Your Social Security Disability Case When you go before a disability judge, also known as an Administrative Law Judge or ALJ, you will have the opportunity to tell your story about why you are disabled and cannot work. But it's not just up to you! Of course the experienced disability attorneys at O'Malley Tunstall can help you put on the best case possible and ask all the right questions, but your spouses, friends, family, children, case managers, former employers, and other people who know about your disabling conditions can also testify on your behalf. And it can really help your case! In fact, the disability judge is required by Federal law to listen to your witnesses, and the judge must take their opinions into account when making the decision about your disability. Always continue to treat and follow your doctors advice. Evidence from non-medical sources including "spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy" is explicitly allowed to "show the severity of your impairment(s) and how it affects your ability to work." 20 C.F.R. § 404.1513(d); see also, 20 C.F.R. § 416.913(d). "Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations .... other persons report, which can reasonably be accepted as consistent with the objective medical evidence" must be considered in the ultimate disability conclusion. 20 C.F.R. § 404.1529(c). The ALJ may only reject lay testimony regarding functional limitations "by giving specific reasons germane to each witness." Glover v. Astrue, 835 F.Supp. 1003 (9th Cir. 2011)(quoting, Reginnitter v. Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999)). The sufficiency of the reasons given "will depend on the thoroughness with which the ALJ conducts and discusses his or her evaluation of the evidence." Id. "The rejection of the testimony of the claimant's family members because the claimant's medical records did not corroborate her fatigue and pain violates SSR 88-13, which directs the ALJ to consider the testimony of lay witnesses where the claimant's alleged symptoms are unsupported by her medical records." Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). What this law means is that your disability judge must consider testimony from your lay witnesses. If the witnesses' testimony is consistent with the medical evidence, the disability judge can only reject the testimony if he has good, specific, germane reasons that he explains thoroughly. If you have questions about lay witness testimony in your disability case or have any other questions about disability, call or email our firm. One of our disability lawyers Susan O'Malley, Joseph Tunstall, or Amos Waranch will be in contact with you shortly.
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.
Many of our clients at O'Malley Tunstall who are disabled don't fit any of the boxes set forth by Social Security to determine disability. Instead they simply, due to a series of disabilities, lack the ability to work forty (40) hours per week. A great many of these clients have twenty (20) or more years of work history and although they have tried to work through their disabling medical conditions, simply cannot work enough to keep full time employment. Substantial gainful activity on a regular and continuing basis means eight hours a day, for five days a week. SSR 96-8p "An individual does not have to be totally helpless or bedridden in order to be found disabled under the Social Security Act, otherwise, the ability to perform substantial gainful activity even one day each month or each year would disqualify an individual for benefits." Trotten v. Califano, 624 F.2d 10, 11-12 (4th Cir.1980)(citations omitted). Implicit in a finding that a claimant can perform light work is the conclusion that a claimant can work eight hours a day, five days a week.Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006). You can read about the Hines case in one of our other blogs as this was Susan O'Malley's Case. Therefore, if after years of working full time, medically you are restricted to little if any work, you may be disabled even if you don't meet one of Social Security's boxes. Call our law firm or visit our website to discuss.
THE FEDERAL COURT HAS AUTHORITY TO REVERSE THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION WITHOUT REMANDING FOR A REHEARING. As a procedural matter, when you appeal the decision of the Social Security Administration to Federal Court, the Federal Court has the authority to overturn the decision of the Commissioner and grant benefits without remanding for an additional hearing. Susan O'Malley has had this issue come up as in some cases Federal District Court Judges have been so convinced that her clients should have their benefits; without delay, that remand for additional appeals or evidence has been unnecessary. The Fourth Circuit has held that it is appropriate for a federal court to "reverse without remanding where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for new evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974). A plain language reading of the Social Security Act supports this interpretation: "[t]he [reviewing] court shall have power to enter ...a judgment ... reversing the Commissioner of Social Security, with or without remanding the case for a rehearing." 42 U.S.C. § 405(g)(emphasis supplied). Thus, when the procedural posture dictates, new fact-finding is irrelevant, or another hearing will not change the outcome, at O'Malley Tunstall, our Social Security team will specifically argue that the District Court should overturn the Commissioner's decision, and grant benefits, without remanding. If you have specific questions regarding Social Security Disability or our Social Security team, please visit our website, or ask for Susan, Amos or Joe as all the attorneys in our office handle Social Security Disability at the hearing and appeal level.