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Will I Win if the Judge Does Not Use a Vocational Witness or Medical Expert?

what are your chances of winning a case at a hearing when there is no voc rehab guy or medical specialist to assist the alj in a decision.
–Lamont

My response: Lamont, I think that yes you can win if the judge does not use a VE or an ME.   Here is how I would analyze:

First, what is the custom in your hearing office?  In Atlanta, where I practice, all but one or two judges regularly use vocational expert witnesses.  There are a couple of judges who almost never use them.   If a judge who always uses a VE hears a case without VE testimony, it most likely means that the issue is fairly clear cut one way or the other.

In the Atlanta hearing offices, judges rarely use medical experts – in my practice I would estimate that ME’s appear about 15% of the time.  The absence of an ME would be of less concern to me here in Atlanta. Continue reading →

How Poorly Presented Testimony Can Result in an Unfavorable Decision

Although I generally write about successful cases, I think that you can also learn from cases that don’t go so well.  I tried a case recently that turned out to be snakebit.  Just about everything that could have gone wrong did go wrong and this is one of the few cases where a judge announced in open court that he did not find my client believeable or credible at all.

Interestingly, my client does have significant medical problems and a long and solid work history of over 20 years with the same employer.  He is also well educated with a college degree and he earned a very good living in the accounting field.  After he stopped working, he made at least three attempts to return to work but was unable to do so because of significant pain.  He has a clear diagnosis of an orthopedic problem and his treating doctor is recommending multiple joint replacements.  All in all, this gentleman meets the profile of what I would consider to be a viable case.  What, then, went wrong?

Firstly, my client did not present himself as a person who was searching for relief.  He last worked in 2005 and thereafter he had only two visits to an orthopedic surgeon.  Although his doctor stated during both of these visits that surgery was needed, my client did not pursue treatment.  Instead, he stayed at home and sought to control his pain with over the counter medications.

I think that the judge questioned my client’s allegations of pain – there was no attempt to pursue physical therapy, there was no course of pain management, and my client was very vague about what he did during the many months that he was at home.  I believe that the judge saw my client as a man who sat at home watching TV, making no effort to explore options that might improve his condition.

When the question was asked why he had not had his surgery, my client responded that he was “waiting for the result of this hearing” before having surgery.  This was clearly not a good answer.  The implication of this answer is that my client could have had the surgery and pursued a recovery but instead, he decided to wait at home and collect Social Security.  This demonstrates the wrong attitude.

Although I tried to rehabilitate my client by getting him to testify about his fear of surgery and possible complications, the judge remained focused on my client’s linkage of his disability hearing to his surgical options.  Social Security judges cannot hold it against a claimant for refusing to undergo invasive surgery but a judge can hold it against a claimant whose decision not to pursue surgery was motivated by a desire to collect from SSA.

My client tried to raise the issue of money – that surgery was expensive, but the judge shot that down by pointing out that my client had very good insurance coverage through his wife and that his out of pocket cost for surgery was nominal.

The judge did not even raise an issue that I saw in the record – namely that my client smokes 3 packs of cigarettes a day, which means that (1) he spends money on a harmful habit that could otherwise be applied to his out of pocket medical costs; (2) he lowers his chances at a successful surgical outcome as smokers frequently experience longer recovery times and less favorable results; and (3) there was no suggestion in the record that my client is trying to stop smoking.

The judge’s disgust with my client was very evident, and the judge did not even go through the exercise of asking any questions of the vocational witness.  I expect that the decision will be an unfavorable decision based on a finding that my client lacked credibility.

What could my client have done differently?

First and foremost, he should have made some good faith effort to seek relief from his symptoms.  If he was not ready for surgery – and most judges understand if you hold off on major surgery that does not guarantee results – he should have sought pain management treatment or physical therapy to strengthen himself.

My client could have used his condition as a diabetic and as a smoker to improve his chances.  Diabetics often have trouble recovering from surgery and he could have referenced his diabetes as a reason for not wanting surgery.   Had there been evidence that he was trying to stop smoking he could have referenced his difficulty in quitting despite a sincere effort as another reason to delay surgery.

Finally, my client should have presented himself as a person who was applying for disability because he was not able to work despite a true desire to support himself and his family.  Workers do not leave high paying jobs with pensions and benefits to sit at home and collect Social Security.  He should have made it clear that Social Security was his last resort and that he would return to work immediately if his condition warrented.

Alas, even cases with potential do not go as planned.  I think that my client is an example of a person who very well might be unable to work, but he presented himself so unconvincingly that he will not receive benefits.

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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