Why is a Medical Expert scheduled to testify at my hearing?
The Listing of Impairments (the listings) describes for each of the major body systems impairments Social Security considers to be severe enough to prevent an individual from doing any gainful activity. The listings are in place to allow Social Security to make disability determinations in cases where certain medical findings are present. In some cases, a medical expert (ME) may be requested to testify at a hearing to help the Administrative Law Judge (ALJ) determine whether a claimant’s conditions meet or equal a listing. If an ME is present, a claimant and their representative have the right to cross-examine this witness.
Recently, our client HH, had a hearing before an ALJ and a ME was present to testify. HH suffers from multiple different conditions including fibromyalgia, depression, anxiety, and irritable bowel syndrome. The ME summarized HH’s conditions and concluded his testimony by stating that HH’s conditions do not meet or equal any listings. Upon cross-examination we first asked the ME if he was familiar with listing 5.08. To meet this listing there must be evidence of weight loss due to any digestive disorder despite continuing treatment. Additionally, there must be evidence of body mass index (BMI) of less than 17.50 calculated on at least two evaluations at least 60 days apart within a consecutive 6-month period.
HH suffered from weight loss and was taking medication to alleviate her irritable bowel symptoms. Upon cross-examination, counsel directed the ME to the medical records that documents HH’s weight loss and BMI findings below 17.50. Her conditions clearly met 5.08. When the ME was asked why he did not conclude that 5.08 was met he first responded, “there isn’t weight loss, the claimant just has low weight.” Counsel pointed out to the ME that the record establishes HH had a 34 lb weight loss over the past 2 years. Second, the ME said that HH was “not being treated for weight loss.” Again, counsel cited the medical records that proved the claimant was prescribed two different medications to control her IBS symptoms. Finally, the ME stated, “well, there isn’t any evidence that the weight loss is caused by the IBS.” Counsel pointed out that the records described HH as having frequent diarrhea, vomiting and loss of appetite.
Despite being presented with evidence the ME did not change his testimony – that HH’s conditions did not meet listing 5.08. Unfortunately, this scenario is not unique to HH. It is very common for a ME to conclude a listing is not met, despite evidence to the contrary. After cross-examination, the ALJ dismissed the ME from the hearing. The ALJ went on to state that he was not bound by the ME’s testimony. Further, he agreed with counsel’s argument that HH’s condition did in fact meet listing 5.08.
It is important that all claimants are given a full and fair hearing and having a representative who is experienced is essential.
Do Not Settle for Less When You Deserve More
Often times an Administrative Law Judge (ALJ) will discuss a possible amendment to the Claimant’s alleged onset date (AOD) with counsel prior to the start of hearing. In other words, in certain situations the ALJ will offer to favorably resolve a case if the Claimant changes, or amends, the date he/she is alleging they became disabled. While this can be beneficial and an expedient manner to resolve a case, it can result in Claimants being cut out of benefits they deserve.
In our client Sheri’s case, prior to her hearing the ALJ offered to issue a favorable decision finding her disabled if she were to change the date she was alleging she became disabled to September 2017. However, Sheri’s attorney was confident that the medical evidence warranted a finding of disability much earlier than 2017. Sheri’s attorney advised her to proceed with the hearing so that further arguments could be made in an attempt to obtain her additional benefits.
Sheri followed her attorney’s advice and went through with her hearing. After considering the arguments made by the attorney and in consideration of the testimony of the Vocational Expert, the ALJ issued a fully favorable decision finding Sheri disabled as of December 2015. This finding resulted in Sheri obtaining several thousand dollars more in past due benefits than if she had settled for the ALJ’s initial offer.
This is just one of many examples of how we at Greeman Toomey do not take the easy route but rather fight for every cent our clients are entitled to. We are not interested in the low hanging fruit, we are interested in getting our clients what they deserve.
Schizoaffective Disorder
Arlowe suffered from severe schizoaffective disorder but was previously denied Social Security Disability. While his medical records showed multiple hospitalizations and extended treatments for mental health, he was repeated denied benefits because of his chronic substance abuse. In his previous applications, Arlowe did not seek the assistance of an attorney. He had difficulty keeping track of the required paperwork and appointments necessary to continue his claim because of homelessness and symptoms of his mental illness. After working with Greeman Toomey attorneys and case managers, Arlowe no longer had to worry about missing deadlines or attending appointments.
In July 2015, Arlowe’s case was heard by an Administrative Law Judge. He was nervous because of his history of substance abuse, but having a capable attorney made the difference. Arlowe’s attorney was able to separate the substance abuse from the symptoms of his schizoaffective disorder. Arlowe received a favorable decision less than a month after his hearing date.
Breast Cancer
Pamela was diagnosed with breast cancer in December 2006 and underwent a mastectomy in January 2007. Unfortunately, she experienced complications due to the procedure and eventually required reconstructive surgery in February 2010. This second surgery led to further complications, including a persistent MRSA infection. The pain and drainage resulting from the infection forced her to leave her job in July 2012 and led to her filing a claim for Social Security disability with our firm in March 2013. As the claim was pending, she was hospitalized for complications with her diabetes and reported chest pain to her doctors in October 2013.
An Administrative Law Judge (ALJ) reviewed Pamela’s claim in November 2013 and denied the claim in December of 2013. Our firm appealed the denial to the Appeals Council, which affirmed the denial in March 2014. We filed a new claim with Pamela in May 2014, which proceeded at a much slower rate than her original claim. In early 2015, she reported continued chest pain to her doctors and a subsequent biopsy in May 2015 confirmed the return of her breast cancer.
Our firm pressed for an expedited resolution of Pamela’s claim in July 2015 and the Office of Disability Adjudication and Review (ODAR) discussed possibly issuing a favorable decision without a hearing in August 2015. As our firm discussed an appropriate onset date with ODAR, the ALJ assigned to Pamela’s case submitted the medical record to a medical doctor to provide an expert opinion as to when the Pamela’s cancer returned under Social Security’s rules in September 2015. In his response, the doctor opined Pamela’s cancer returned in October 2013 based upon her reported chest pain and she met Social Security’s disability rules at that time.
Instead of issuing a favorable decision, the assigned ALJ scheduled a hearing with Pamela in February 2016. Our firm represented Pamela again at her second hearing and provided evidence and arguments in support of the doctor’s opinion, but the assigned ALJ again rejected the expert opinion and issued a decision in May 2016 approving Pamela’s claim as of her biopsy in May 2015. We appealed this decision as well to the Appeals Council in March 2016 and the Appeals Council promptly approved our appeal, agreeing the claimant was disabled as of October 2013 (two months prior to her first ALJ denial), resulting in 18 more months of accumulated back pay.
Trigeminal Neuralgia
Crystal was a young woman suffering from a rare, extremely painful condition known as trigeminal neuralgia. Individuals who suffer from trigeminal neuralgia experience severe pain from everyday activities including brushing their teeth, putting on makeup, and exposing their skin to cold or warm temperatures. Because of the rarity of the condition, and the general lack of knowledge most medical practitioners have with trigeminal neuralgia, Social Security denied Crystal multiple times, and at multiple levels.
Our firm never gave up on working with Crystal, and eventually her case came up for a hearing before an Administrative Law Judge. Prior to the hearing, I did independent research on her condition – combing through medical journals and sifting through forums for individuals suffering from trigeminal neuralgia – to make sure I could effectively and empathetically argue on Crystal’s behalf. In the end Crystal won her case, and although it couldn’t take away the pain she had lived with up to that point, it did give her the resources and medical coverage that she would need to treat, and hopefully someday cure, the condition that made her life so difficult up to that point.
Bipolar Disorder
Our client, Amanda, provided services for disabled adults for several years before her bipolar disorder prevented her from continuing to work. She underwent several years of treatment with multiple psychiatrists, psychologists, and therapists, but her condition continued to worsen. She filed a claim for disability benefits from the Social Security Administration based on the wages she earned, but was denied by an Administrative Law Judge (ALJ) on the basis of her history of alcoholism. She appealed the decision, and we represented her after the Appeals Council (AC) remanded her case to the ALJ to fix the mistakes in his initial decision denying Amanda her benefits.
Several of her doctors opined her alcoholism was a result of her self-medicating her mental illness and that her bipolar disorder alone would prevent her from being able to work even if she was sober from alcohol. Our firm highlighted these opinions and Social Security’s rules supporting Amanda’s claim in those circumstances, but the same ALJ again denied her case because he erroneously concluded Amanda’s alcohol abuse prevented her from working and not her bipolar disorder. We appealed Amanda’s case and we drafted a concise but detailed argument for the AC, highlighting opinions of seven separate doctors who all agreed she was disabled. The AC subsequently reversed the ALJ’s denial and approved her claim with over four years of back pay.
[Amanda’s story shows the benefit of a claimant’s perseverance and the real value and necessity of legal representation that understands the law, how the law applies to the facts of each case, and has the persistence to see a case through to the end]
Autism Spectrum Disorder
Chad suffered from several undiagnosed or misdiagnosed mental health conditions. As a young adult he was in special education throughout high school due to social limitations. He completed high school at the age of 20 through a special education program despite having a high average IQ. After high school Chad suffered from untreated depression and some physicians suggested he may also suffer from an autism spectrum disorder or personality disorder. Chad’s father passed when he was 12 years old and he still suffers from significant depression from this event. Individuals with Chad’s background sometimes have a difficult time establishing disability through Social Security. One factor that weights against their claims is the fact that they are intellectually very smart. They are sometimes labeled as simply unmotivated or lazy and their parents are accused of being overprotective.
Raised by a working single mother and loving grandparents Chad was able to finish high school but lacked a clear plan after this. He attempted a few jobs that did not last long. His mother filed for Social Security disability for Chad and contacted our office to assist him. He was denied twice and then appeared before an Administrative Law Judge (ALJ) for a hearing. The ALJ denied his claim because he had limited treatment and discrepancies from different psychologist regarding his proper diagnosis.
We appealed this decision and successfully got his case remanded back to the same ALJ for another hearing on this matter. At this hearing we requested the ALJ send the Chad out for a consultative examination to hopefully resolve the discrepancies in his diagnosis. The ALJ agreed and our office encouraged Chad and his mother to find a new psychologist who can perform a battery of testing to help get a proper diagnosis. Approximately 6 months later we were back before the same ALJ for the 3rd hearing. At that time Chad had recently seen a psychologist and had completed one third of a three part series of tests. Obviously without the full test results we had the same problem as before, limited insight into the proper diagnosis. To further complicate things the consultative examination that the ALJ ordered came back equivocal, stating he could have an autism spectrum disorder but it is unclear.
The ALJ continued the hearing so that we could get the results of the full battery of tests he was currently going through. At this point Chad still had not established care with a physician to get started on medication for his depression, nor had he found a therapist who could possibly help. We expressed to Chad and his mother that this treatment was extremely important for not only his disability case but to help Chad manage his depressive symptoms. Approximately 6 months later we had the 4th hearing. At that point Chad had been on antidepressant medications and started therapy. He also had objective testing that clearly diagnosed him with an autism spectrum disorder along with several other conditions. The ALJ granted his case and found that he has been disabled going back approximately 5 years.
The determination that he had been disabled going back 5 years was a very important factor as this allowed Chad to collect disabled adult child benefits based on his late father’s earnings record. Essentially, his monthly benefit amount doubled. After 4 hearings Chad finally was awarded the benefits he was entitled to and most importantly had the proper treatment in place to help manage his symptoms so he can lead a more enjoyable life.
