September 26, 2016

How I Won a Disability Hearing for a Deceased Claimant

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
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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 29 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.