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Osterhout Berger Disability Law Files Brief Before the Supreme Court

In Biestek v. Berryhill the Supreme Court will consider whether a Social Security judge erred when she failed to require the vocational expert to produce evidence that, in part, formed the basis for her testimony that there were a significant number of jobs the claimant could perform despite his limitations. Specifically, when asked on cross-examination by the claimant’s representative (we did not represent this claimant at his hearing) to explain the basis for her opinion that there were a significant number of jobs the claimant could perform, the vocational expert explained that she based her opinion on a combination of sources, one of which was a study she had personally done of the local job market. When asked to produce this study, the vocational expert stated that it was confidential (even though it could have been easily redacted) and the Social Security judge denied the claimant’s request that the vocational expert be ordered to produce it. She then issued her decision denying the claimant’s claim for benefits altogether.

The district court in Michigan and the Sixth Circuit Court of Appeals held that the Social Security judge did not err in failing to require the vocational expert to produce this evidence, which set up a “Circuit split” between the Sixth Circuit’s decision and the Seventh Circuit’s decision 15 years ago in McKinnie v. Commissioner, Social Security. McKinnie held that any data, information, or study, relied upon by the vocational expert to support his/her testimony must be made “available on demand.” As some readers may know, one of the reasons the Supreme Court will take a case (it only takes about 100 cases per year) is when the circuit courts disagree about an issue that the Supreme Court believes is an important one for there to be uniformity among all the circuits.

As mentioned above, OBL did not represent the claimant at his hearing and, technically speaking, still does not represent him. Rather, Karl Osterhout was asked by the National Association of Disability Representatives (NADR) to assist it in filing an “amicus brief,” (a “friend of the court” brief), a brief to the Supreme Court in which an individual or organization with a vested interest in the outcome of the case can submit a brief in support of its position on how the case should be decided. NADR is a professional organization of Social Security representatives which sponsors several events per year geared toward networking and continuing legal education and easily qualified as an organization with a vested interest in the outcome of this case, since Biestek has numerous possible ramifications for how vocational expert testimony is used in Social Security cases, particularly how it is used when the claimant’s claim is denied.

Mr. Osterhout had the distinct privilege of working closely with Wilkinson Walsh + Eskovitz, a Washington DC boutique firm specializing in high-stakes litigation, including Supreme Court appeals. Moreover, WWE graciously agreed to assist in the brief writing without charging its usual fee for doing so. The position taken in the NADR brief is one, we hope, that will be appealing to the Court in that it suggests that there is a very narrow way to decide the case without getting into the significant complexities of vocational expert testimony in Social Security disability claims.

Oral argument is scheduled in Biestek on December 4; at that point, it is anybody’s guess when the Court’s decision will be released, but it should be issued before the Court convenes for the summer in early June 2019.

Cigna Awards Benefits after Osterhout Berger Disability Law File a Lawsuit in Federal Court

Our client, a Patient Services Representative, was forced to stop working in 2016 because of medical conditions to include fibromyalgia, chronic fatigue syndrome, neuropathy, lumbar radiculopathy, and rheumatoid arthritis. She filed a claim with Cigna for Long Term disability benefits and was denied these benefits in early 2017.

The former Patient Services Representative then hired Osterhout Berger Disability Law and following a review of Cigna’s claim file, Attorney Berger obtained medical treatment records and medical opinions from our client’s treating doctors revealing the severity of her impairments.

Attorney Berger filed an appeal but Cigna failed to issue a decision in a timely manner. He then filed a complaint in Federal District Court, which led to Cigna, in short fashion, recognizing that it failed to address her appeal. Cigna immediately initiated a review of our client’s appeal and determined that she was entitled to Long Term disability benefits back to 2016.

If your application for Long Term disability benefits or your appeal of a decision denying or terminating has been denied do not hesitate to contact Osterhout Berger Disability Law for a free consultation.

Software Engineer’s Long Term Disability Benefits Reinstated by The Standard

Our client, a Software Engineer, began receiving long term disability benefits in 2015 because of difficulties with his back. In October 2017 his long term benefits were terminated after The Standard determined that he could return to his own occupation.

The former Software Engineer immediately contacted Osterhout Berger Disability Law. Following a review of the claim file Attorney Berger noted that The Standard failed to adequately evaluate all of our client’s physical and mental difficulties and obtained detailed statements from his treating physicians as to the severity of his medical problems and the limitations they caused.

Following the submission of an appeal, The Standard reversed its termination of benefits and informed our client that the information we submitted in support of his appeal revealed that he could not perform either his own occupation or any occupation. Our client was awarded a substantial amount of past due benefits and his monthly benefits will be reinstated. It was also determined that he remained eligible for a Waiver of Premium of his Group Life Insurance policy.

Please do not hesitate to contact our office to speak with Attorney Berger if you need assistance with your claim for long term disability benefits.

Paralegal whose LTD claim was denied by Hartford gets Approved after Appeal filed by Osterhout and Berger

A paralegal was forced to stop working in June 2016 as a result of a traumatic brain injury, cognitive impairments, and neck, hip and knee pain. She applied for Long Term disability benefits from Hartford but was denied because it was determined that she was never disabled and could perform her own occupation.

The former paralegal retained Osterhout Berger and we agreed to represent her on a contingent basis. We immediately order the claim file and after a review noted that it failed to contain evidence from numerous physicians and an inadequate evaluation of our client’s functional limitations. We obtained medical treatment records from approximately seven different physicians, spoke with her treating doctors and had our client independently examined by a psychologist. We also obtained an evaluation from a vocational expert.

Our reviewing our appeal, Hartford overturned its prior decision and noted that “based upon our review that included additional information received and generated on appeal, it was determined that the information in your client’s file supports her claim for Disability.” In light of this decision, our client received a large amount of past due benefits and she continues to receive benefits.

If you have had a similar situation and Hartford (or any insurance company) has denied your claim, please do not hesitate to contact Osterhout Berger Disability Law for a free consultation.