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Topic: First post, case remanded from District court  (Read 1018 times)
~ Copper ~

People helped 1
Posts: 13

« on: February 13, 2017, 03:38:56 PM »


I will probably post this in the 'introduce yourself' section as well, since this is my first time posting here.  I am 48 y.o.  I first applied in 2012 for MS, anxiety, depression, scoliosis/back pain and other stuff I can barely remember as it's been so long. 

My case was denied all the way through the hearing (which was in June 2014) and Appeals Council.  My original lawyer retired at the end of 2014, but my case was transferred over to another lawyer in the same firm. 

The new lawyer decided to appeal further because the judge didn't take into account the findings from a neuropsych test I had done that showed I had impaired fine motor skills.  The VE at my hearing had given the judge three jobs I could do-- and they all involved fine motor skills! (semiconductor bonder, circuit board touch-up screener, printed circuit layout taper).

My new lawyer also mentioned that the judge didn't take into account a letter from my neurologist dated 12/27/13 (yes, this is after my DLI) in which my neurologist stated I was totally disabled.  The judge said in his denial letter that "I do find Dr. X's opinion particularly relevant... Dr. X wrote her opinion in the then-present tense, which was almost a year after the claimant's date last insured."

I had been seeing a horrible neurologist for years and stayed with her much longer than I should have. When I initially applied for SSDI, my neurologist wouldn't write a letter for me (she said they only write them if they are asked for one from SSA).   I finally switched to the new one in 2013.  Not writing a letter for me was sort of the final straw, plus we had moved and it was a lot further for me to go to the old neurologist who wouldn't write me a letter.

My new lawyer argued, successfully, that my new neurologist would have had to review all my medical records from 2006 (when I was first diagnosed with MS), so even though she did write about me after my DLI, she would have been able to deduce that I did indeed meet the SSA's definition of disabled when I applied in 2012.

I'm curious if there are any stats on cases being approved at the second time in front of the same judge?  I've read through so many posts here but didn't find anything specifically about this.

The judge spent 50 (yes, FIFTY) minutes asking me about the layout of the house we lived in at the time.  It was a weird split level with about 8 steps to get up into it-- the kitchen and main area were on the main floor.  Three bedrooms and both bathrooms were upstairs.  There was also a small sort of basement (above ground- but partially built into a hill) that had about 7 steps down and the washer and dryer were there.   

We were looking to sell that house, but because we had bought it in 2009 and the market immediately tanked, we would have lost over $30K if we had sold in 2014.  I was so flustered and confused as to why he kept asking me questions about the house-- I mean, I get it-- I said I was disabled, but I was able to keep going up and down the stairs all day (I have MS bladder problems)-- well, I guess he didn't think I was disabled enough.  But what was I supposed to do?  Pee in a bucket on the floor instead of going up to the bathroom?

We did end up selling the next summer in 2015 (still at a loss, but only about $9K instead of $30K, YAY!!!  lol) and moved to a one-story house.

I am nervous because I know my case is supposed to be remanded back to the same judge.  I feel like he didn't already like me.  Now, he's been told by a higher court that he didn't do a good job (my words) on the case.  I feel like why wouldn't he be vindictive and deny me again?

Honestly, if it weren't for the fact that my husband has a good job, we would be fine without this money.  But, it's money I earned, I deserve it and God forbid he were to lose his job, it would be nice to have another income as we have a 9 y.o. child.

I'm so frustrated with the waiting and everything else.  It has been almost 5 years now.  I found out (after I applied) that my scoliosis I had as a teen had progressed to a surgical state.  I need a fusion from T3-L4.  I guess I've just been really good at 'taking the pain' and not complaining about it too much.  I did go to the doctor once when my back 'went out', but the doctor put in the notes that he felt it was muscular, so the judge even had in his denial that my pain wasn't from my scoliosis progressing-- it was muscular! 

In the last year, I've had to go onto Vicodin and had two epidural cortisone shots in my lower back, but as this is now over 4.5 years from my DLI (12/31/12), that medical info can't be submitted, right?

Any doctor reviewing my case who REALLY looked at my records would see that it's obvious my back has gotten worse.  I had MRIs in 2014 that showed DDD, spinal stenosis, etc., but again, that's after my DLI.  But, my scoliosis didn't appear out of a vacuum.  It's slowly been getting worse since I wore a brace for it as a teen.   Plus, I still have MS, which is an incurable, progressive disease.

Sorry to be all over this place.  Just wanted to introduce myself and see if anyone has any stats for the possibility of a win this time when I go in front of a judge (and who knows when that will be!).

Thanks for reading if you made if this far!

DLI 12/31/12
Initial app denied
Reconsideration denial 4/5/13
ALJ hearing denial 7/24/14
Appeals Council denial 12/22/15
District Court states my case should be remanded 8/30/16
Order of Remand 9/22/16
Notice from ODAR about eventually getting a new hearing 11/23/16

~ Copper ~

People helped 1
Posts: 13

« Reply #1 on: February 13, 2017, 03:55:03 PM »

Sorry-- didn't proof this well enough before I posted.  It should read that the judge said "I do NOT find Dr. X's opinion particularly relevant..."
Just Me
~ Platinum ~

People helped 600
Gender: Female
Posts: 9474

Nice Administrator

« Reply #2 on: February 13, 2017, 05:08:05 PM »

Anything a doctor puts in a letter or on forms needs to be backed up with their medical records. The ALJ was interested in your ability to do activities of daily living. Do you grocery shop ? Does someone have to help you prepare meals, do light housekeeping, laundry, etc ? Were those details in your medical records and on the forms you filled out ? It takes much more than a diagnosis to be approved.

Due to being under 50, you must prove you can't perform SGA working jobs in the national economy.

Hope the size of a mustard seed can produce Faith that can move mountains.
Age at Application: 50
Disability: DDD, nerve damage upper & lower extremities, RA
Date Applied: First Applied Feb 2002, Denied May 2003. Applied again Oct 2003, Approved June 2004

« Last Edit: February 13, 2017, 05:13:32 PM by Just Me »
Lit Love
~ Platinum ~

People helped 258
Posts: 3177

« Reply #3 on: February 13, 2017, 05:31:31 PM »

There's no need to post the same thread twice.

I find your attorney's argument odd as you describe it regarding the letter.  If she wasn't treating you prior to your DLI, and simply using your medical records to base her findings, she wouldn't have been considered a Treating Source.  https://www.ssa.gov/disability/professionals/bluebook/evidentiary.htm  

Also, it is never a doctor's role to determine if a claimant qualifies for SSI/SSDI because the process is a complex medical/legal evaluation, so stating her belief that you should be approved generally won't make much of a difference in a claim.

The ALJ was trying to determine the severity of your impairment with his questions about your home.  While it maybe was not ideal to have stairs, you could at the point of your Alleged Onset Date still navigate them.  If your condition was severe enough that you couldn't manage the stairs, other accommodations would have had to have been made--such as a power chair on the stairs, or even selling your home at a loss.  And yes, people sometimes do have to use portable toilets or adult diapers when their impairments make ambulating impossible.

It's appropriate to explain how you struggled using the stairs, which eventually led to your purchasing a single story home, just understand why such questions are asked.  I was frankly surprised when I first read SS's rather extreme definition of the loss of function in regards to ambulating (1.00B2b): https://www.ssa.gov/disability/professionals/bluebook/1.00-Musculoskeletal-Adult.htm  

ALJs are certainly used to dealing with remands and while the odd kook might hold a grudge, you shouldn't have a problem.  If he denies you, and you win the appeal, then the case is 2nd remand must go to a new ALJ.

Just because the VE listed jobs that required fine motor skills, there are some jobs listed in the DOT that don't (at least as written, not necessarily in reality).  Surveillance System Monitor is an example of one that is often used: http://www.occupationalinfo.org/37/379367010.html

Even if you need spinal surgery now, or even prior to your DLI, the expectation would be that it would improve your impairment, unless the surgeon has noted otherwise. Needing Vicodine and the occasional cortisone shot years after your DLI is unlikely to help prove your claim.  While your back has gotten worse with age, the question is was it severe enough at your Alleged Onset Date (or even as late as your DLI) to meet or equal a Listing (with your other impairments) or to make it impossible for you manage a sedentary job at the SGA level eligible?

Go back and read your original application.  In fact, request a copy of your entire file on CD to review prior to your hearing.

~ Copper ~

People helped 1
Posts: 13

« Reply #4 on: February 14, 2017, 11:32:53 AM »

Thanks for your input, Lit Love and Just Me.  Regarding my neurologist not being the treating neurologist prior to my DLI-- the Ninth Circuit has specifically held that medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the preexpiration condition.  My neurologist specifically stated that her statement was based upon a longitudinal review of my condition, symptoms and brain MRI results from 2006 through 2013.

I realize that her stating I'm disabled is a completely different beast than the SSA finding me disabled, though! 

I addressed my ADLs in my application and during my testimony before the judge.   I guess my confusion now lies in whether one is trying to prove being unable to perform SGA or ADLs.  I realize that what one does at home may be translated to on-the-job work, but due to my fatigue, difficulty concentrating in noisy situations, cog fog (I get 'overwhelmed'), etc.  the jobs that the VE came up with completely contradicted my testimony-- and the findings in my medical records--- I have difficulty manipulating small things such as zippers, buttons, picking up small items like paper clips, etc.  It just seemed so bizarre that he grilled me so long on the house and then ultimately I was told I could do jobs that deal with little tiny things!

I have been going back over my entire application, including reading all the decisions along the way.  It's amazing the things the reviewers based their decisions upon.  At one point, they remarked upon the fact that we went to England for two weeks and said "she is capable of performing at this level'-- well, my husband is English and we go every other year so that our son can see their grandson.  It's such a long trip and so expensive that it doesn't make sense to go for much less than 10 days, plus you end up fighting jet lag both ways on top of my normal MS fatigue.  The SSA doesn't know that we stay at their house and aren't off sight-seeing every day.  I often end up sleeping through meals because I'm so tired.  The trips are really hard on me physically and there will be a point where I will probably have to stay behind entirely.

Sigh.  And yet, I live to fight another day!

Thanks again for your thoughtful input.
~ Platinum ~

People helped 387
Gender: Male
Posts: 2487

Mean Administrator

« Reply #5 on: February 14, 2017, 12:26:04 PM »

Remanded hearings are held by the same ALJ, unless bias is proven (rare) or the initial ALJ retires.

I had a hanging ALJ who denied me in a 15 minute hearing.  My claims was remanded on seven issues, I had 5 Residual Functioning Capacity forms from my treating psychiatrist, two outside opinions, and two consultative examiners that were supportive of my claim.  My second hearing was held, and I was awarded benefits by the ALJ I thought was going to deny me again.

It must be remembered that you have to prove you are disabled, and have the medical evidence supporting your claim.

"If one of these engines fails, how far will the other one take us?"
"All the way to the scene of the crash!" - Ron White
Name: Bonzai
Location: TN
Age at Application: 47
Disability: BP 1, OSA, HTN, DM II, Arthritis Knee
Date Applied: Feb 08
First Approval/Denial Date: Denied Dec 08
Reconsideration Approval/Denial Date: Denied Mar 09
Hearing Date: second hearing June 2012
ALJ Approval/Denial Date: Approval - Aug 2012
Date Award Letter Received: Oct 2012
Date Back Pay Received: Late Sept 2012
Additional Info: remanded
Lit Love
~ Platinum ~

People helped 258
Posts: 3177

« Reply #6 on: February 14, 2017, 01:47:27 PM »

Just understand that the court saying your doc's evaluation of the records should have been considered does not give it the same weight as if a Treating Source had provided the original documentation. 

Are you familiar with how the 5 Step Sequential Evaluation process works?  This is an excellent resource to help understand how the process works, IMO: https://www.ssa.gov/oidap/Documents/Social%20Security%20Administration.%20%20SSAs%20Sequential%20Evaluation.pdf
~ Copper ~

People helped 1
Posts: 13

« Reply #7 on: February 15, 2017, 01:58:35 PM »

Bonzai, what's a 'hanging' judge?  Wasn't sure if that was a typo or just your way of saying the judge was less than nice!

That PP presentation was very good.  Thanks for posting the link to it, Lit Love.   I've read through the denial letter several times and it all seems to hinge upon a few things related to the work they say I can do, given my limitations with fine motor movements.  The judge didn't give reasons for not accepting the results from the neuropsych testing (there's something about it's not for the court to intuit what the adjudicator may have been thinking').

In addition, it says he generally accepted my testimony, but then declined to give specific reasons to reject my testimony concerning my upper extremity impairments.

Finally, I didn't have an exam with an SSA doctor, but the paperwork states that a treating physician's opinion may be rejected only for 'clear and convincing reasons'.  The ALJ chose to use SSA's doctor (who looked at my paperwork) when making his decision and rejected my neurologist's findings, but didn't say why. My neurologist *is* referred to as my treating physician in the letter from the District Court. 

It seems like it was a lot of 'lack of documenting the reasons why' from the ALJ.  My interpretation, at least.

I wonder how long I'll have to wait for my hearing date. 
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