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
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.
WHAT ARE THE DIFFERENT KINDS OF DISABILITY?
Dickens v. Astrue, 5:10-CV-535-BO O'Malley Tunstall, PLLC appealed the denial of benefits by the Social Security Administration to Federal District Court. Plaintiff had the severe impairments of hypertension, dilated cardiomyopathy, obesity, sleep apnea, depression, and lumbar osteoarthritis. The Court held that that the record does not provide substantial evidence for the finding that Plaintiff can perform sedentary work. The Court also finds that the Administrative Law Judge did not properly evaluate Plaintiffs credibility and noncompliance with her doctor's instructions. Thus, the Government has not carried its burden showing that Plaintiff can perform work available in the national economy. The case was remanded to the Administrative Law Judge who granted benefits. To learn more about our practice please visit our web page O'Malley Tunstall
William v. Astrue, 4:11-cv-89 The firm appealed the denial of disability benefits by the Social Security Administration to Federal District Court. Federal District Court is limited in its review of Social Security disability determinations. Federal District Court reviews whether there was substantial evidence to support Social Security's decision and whether the correct law was applied. Richardson v. Perales, 402 U.S. 389, 402 (1971). Social Security found that the Plaintiff could perform work at all exertional levels. The court found that the Plaintiff met the requirements of listing §11.02 for seizure disorder. Listing §11.02 requires that a person experience more than one seizure a month despite at least three month of prescribed treatment with residuals from the seizures that interfere with activities of daily living. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §11.02. The Plaintiff experienced more than one seizure a month despite three months of prescribed treatment. The seizure left the Plaintiff tired and disoriented. The Plaintiff's doctor found that the Plaintiff would continue to have seizures despite medication. The court found that the evidence "compels a conclusion" that the Plaintiff meets listing §11.02 and qualifies for benefits. The denial of benefits was overturned. The court ordered the award of benefits. To learn more about our Social Security practice visit our web page O'Malley Tunstall