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Case Summaries

Tenacious Representation Leads to Incredible Success Story Out of Minnesota

Disability appeals have, unfortunately, become standard practice for many claimants. Judges frequently make errors in hearing decisions. OBL partners with many firms who are fierce advocates for their clients, yet come to us with unfavorable decisions due to legal error. Disability Specialists of Minnesota is one company we work with on a regular basis. They recently delivered incredible news related to an appeal Karl Osterhout handled, all because they refused to give up on their client’s case! “This case really demonstrates the value of working with a group like mine, who offers all services related to appeals. In fact, the reality is that we never made a dime on this case, since we offer free of cost Appeals Council briefing to our regular referral sources, among many other services” explains Karl. Our partnerships with groups like Disability Specialists are special to us and we always try to help when I can, but this case really stands out!

Amy Pearson, President of Disability Specialists, describes the history of the case:

We filed her application for benefits in 2014, with an alleged onset date in 1/13, when she stopped working due to her conditions. A hearing was held in April of 2016, with the judge awarding her a partially favorable decision with an onset date of October of 2015- the date her neurologist completed a supportive medical source statement. I sought out the advice of an appeals attorney who reviewed her decision and strongly recommended appealing. After a discussion of the risks/benefit of appeal, the claimant decided to move forward with an appeal. There were several inconsistencies in the judge’s decision and little rationale for why he chose the date of a supportive opinion vs. her longitudinal treatment records supporting the opinion. It was appealed to the Appeals Council.

The AC remanded her case. Instead of being scheduled with the same judge from her prior decision, it was scheduled with a new judge (the prior judge was on military leave). The new judge denied her claim altogether and this resulted in the loss of her monthly benefits as well as an overpayment.  We were crushed.  I had never had this happen before, and we never imagined that this would happen.  I can’t count how many hours of sleep I lost agonizing about the outcome of her case.  My disappointment was nothing compared to the effect it had on her life.  She could no longer afford her apartment, so she and her daughter had to move into subsidized housing.  She went from receiving a substantial check every month to relying on county assistance.  

Clearly, this claimant went through a lot over the course of several years. Disability Specialists reached out to the original attorney who assisted with her federal court appeal but they declined to provide any additional help or guidance in this case. Disability Specialist then turned to Karl who accepted the case after hearing the case and the emotional turmoil it had caused the client. Amy adds, “I didn’t want to give up on this for her. I strongly felt that the judge made the wrong decision and that we could prove it. She was relieved that Karl agreed to appeal the decision to the Appeals Council. The denial was extremely upsetting for her, and she was glad to know that we were not going to give up on the claim- and that we would have Karl on our side.” After reviewing Karl’s appeal, the Appeals Council made a favorable decision and sent the case to an Administrative Law Judge who had never reviewed her case before.

Amy explains the procedural and emotional aspect of the new hearing:

I have been doing hearings for over 8 years, and I don’t think I have ever been as nervous about the outcome of a hearing as I was for hers. There was so much riding on this!  Another denial would be catastrophic for her well-being.  We just HAD to win. Her testimony was very compelling and she was extremely credible. The judge posed a hypothetical to the vocational expert for absenteeism at a rate of one day per week, including the need to leave work early or arrive late, and the expert said she would not be employable with this limitation. She further clarified that employer tolerance for absenteeism was 8-9 days per year. The judge stated that he felt this hypothetical was a true reflection of her limitations, and he would be awarding benefits! My client was relieved beyond measure.  This will improve her quality of life, allowing her to move into better housing and provide financial stability for herself and her child.

“I was really happy to hear from Amy; I ask all my referral sources to let me know how things turned out, and most probably get busy and forget, but it’s really awesome to hear that a case like this ultimately came out right. This is especially true when the claimant’s representative is someone I respect as much as Amy and her group at Disability Specialist. They are so committed to the best outcome for their clients, and consistently develop incredibly good records on their behalf. This makes the job of someone like me, coming along later and trying to demonstrate error in the judge’s decision, so much easier,” explains Karl. Amy adds, “I am extremely grateful for Karl’s assistance in this claim. I don’t know if we would have secured a second AC remand without his help. He knew exactly what issues to present to the AC to strengthen our appeal. I have helped thousands of clients in my 17 years working for Disability Specialists. This case is definitely one that I will carry with me for the rest of my career. I am glad she didn’t give up faith and trusted us to keep fighting for her.”

We commend Disability Specialists and representative Amy Pearson for truly advocating for their clients and we are happy to be a part of this success story!

OBL on FIRE: Three MORE federal court reversals with outright award of benefits!

A few months back my office had a run where we had obtained three federal court decisions which not only overturned a terrible ALJ decision, but also took the rare step of finding the ALJ’s errors so egregious that it ordered Social Security to begin paying our client benefits. Because by far the most typical outcome in a federal court appeal is a remand to Social Security for further proceedings, I remember saying at the time that I might not see another decision like it for a long time.

I’m happy to report that I was wrong; my team has managed to obtain three more reversals with an outright award of benefits just within the last 30 days. In California, our client’s case had been pending for almost 7 years, and she had not worked in over 10 years due to multiple medical conditions including fibromyalgia, diabetes, and degenerative disc disease. Moreover, because of the passage of time her date last insured had expired by the time of the ALJ’s second denial decision. The court awarded benefits, because it agreed that the ALJ had improperly ignored altogether (twice) the uncontroverted evidence demonstrating that she required a cane to walk and had wrongfully given little to no weight to the medical opinions of her rheumatologist, her PCPs (she had two during this very long stretch of time) and her physical therapist. The court awarded benefits outright, because of these errors and because, in its words, to remand for further proceedings would be to give Social Security a “mulligan.”

An Oregon district court considered the claim of our client, whose case has been pending over 6 years, and who is not worked in over 8 years, based on the ALJ’s failure to consider the VA’s finding of unemployability, inadequate analysis of treating source opinion evidence, and finding that her mental impairments were not “severe.” The court found especially compelling that the ALJ had given very cursory (and not even always factually accurate) reasons for rejecting the opinion of the claimant’s treating doctor, who had long familiarity with our client. Therefore, pursuant to the “credit as true” doctrine in the Ninth Circuit, the district court found that the treating physician’s opinion should have been found to be controlling.

Finally, in New York our client’s application was filed approximately 4 years ago, alleging disability based on severe depression and anxiety, in part related to concomitant gender identity disorder. The ALJ, possibly mistakenly, had adopted the RFC consistent with his first hypothetical assumption to the VE, but relied upon the VE’s response to the second hypothetical. At issue was the issue of “missed days”; in the first hypothetical the ALJ asked the VE to assume the claimant would miss work 2 days per month, to which the VE responded that this would eliminate all jobs. In the second hypothetical, the ALJ changed the assumption to missing only 1 day per month, and the VE testified that this would not preclude all work. But the RFC finding is that the claimant would miss 2 days per month. Although not strictly speaking, a federal court decision reversing and awarding benefits, the agency attorney contacted me and offered to remand the case to the Appeals Council, who will issue the favorable decision.

One of the most notable things to me about these decisions is that I personally had little to do with two of the three cases; rather, they were very capably handled by my supervising associate, Hannalore Merritt, in concert with other associates in my appellate department. It’s just literally true to say that we could not be as helpful as we are being (over 280 remands or outright reversals in the last 12 months) to folks in their last chance to obtain a fair decision in their Social Security case without the intelligence, compassion and commitment of our excellent team in the Appellate Department.

If you are a representative and would like to learn more about how we can help you obtain favorable outcomes for your clients, click HERE.

OBL on FIRE: OBL Win Results in Over $300,000 to Claimant

This case falls into the “it never hurts to ask” category. But, before you can ask, you really need to dig into a case, and Lindsay was very persistent with SSA about producing files related to applications for benefits the claimant told her he had filed in the distant past. Because she was so persistent and focused in her strategy for the case, she obtained evidence that SSA had actually found our client disabled in the late 90s (he never actually received any benefits because of excess resources). However, the finding of disability was made by SSA prior to our client’s 22nd birthday, a key date to establish that he was entitled to disability benefits based on his parent’s earnings record. Moreover, it had overlooked this fact when it had previously considered our client’s claim for these benefits in an application he filed many years ago.

Thus, Lindsay was able to convince the ALJ not only that our client was disabled on or before his 22nd birthday, but also that the previous application for benefits should be reopened because of the mistake made by SSA in failing to acknowledge and rely upon its own previous finding that he was disabled. As a result, he was awarded benefits based upon the much earlier application date and his past-due benefits are the largest amount OBL has ever obtained (or even heard of). Best wishes to our client, and big-time congratulations to Lindsay!

Following an appeal by Osterhout Berger Disability Law The Hartford overturns its denial of Own Occupation benefits to a highly-skilled Project Director.

Our client, a professional in the construction field, was awarded benefits in 2016 due to severe and constant back pain. Despite very little change in his condition The Hartford terminated his benefits in April 2018 after determining that he could return to his own occupation.

The claimant retained Osterhout Berger and we agreed to represent him on a contingent basis, accepting a fee only if we were successful in having his benefits reinstated. We immediately ordered the claim file and obtained an Independent Medical Examination from a well-qualified physician. We also updated medical opinion evidence from our client’s treating physician. Our review of the claim file also revealed an inadequate evaluation by The Hartford of our client’s own occupation, thus we obtained an independent vocational evaluation.

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 his claim for Disability.” As a result, our client received a large amount of past due benefits and a resumption of monthly 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.

Arizona District Court Reverses ALJ

April 11, 2017.  The ALJ denied benefits to a claimant with arthritis, among other impairments, finding she could perform “light” work, yet neglecting to include her need for a cane in his RFC finding or hypothetical question to the vocational expert at the hearing.  The district court reversed, finding that we “convincingly” argued that the definition of light work assumes the ability to use both hands and would be significantly diminished for an individual who required the use of a cane, which the ALJ omitted from his analysis.

Georgia District Court Remands

March 31, 2017.  After the ALJ denied benefits, the claimant submitted additional evidence to the Appeals Council regarding his gastrointestinal impairment and diabetes (including a medical source statement from the claimant’s treating provider), however, the Appeals Council found that this evidence was not reasonably likely to change the ALJ’s decision and declined to vacate the ALJ’s decision.  The district court found that this was error; the evidence submitted to the Appeals Council was new, material, and chronologically relevant and the Appeals Council erred by simply acknowledging it but making no further mention of it in is review.  The case was revered and remanded for further proceedings.

Minnesota District Court reverses ALJ

March 29, 2017.  The ALJ denied benefits on the basis that the claimant could perform other work in the national economy, relying on vocational expert testimony that there were jobs available that accommodated for the claimant’s limitation to “simple, routine, 1-2 step tasks”.  We successfully argued that the jobs provided by the vocational expert were inconsistent with the descriptions in the DOT, as the jobs required a higher reasoning level than the ALJ’s RFC provided.  The district court reversed, finding that there was a conflict in the vocational expert’s testimony that was not resolved and therefore, the ALJ’s step 5 finding was not supported by substantial evidence.

Indiana District Court Remands

March 27, 2017.  In this case, the claimant objected to vocational expert testimony, but the ALJ failed to address these objections at all, one of which dealt with the fact that the vocational expert’s testimony was not consistent with more up-to-date information.  The district court found that thiss was error, holding that the ALJ has an obligation to address all objections, and remanded for further proceedings.

Arizona District Court reverses ALJ

March 24, 2017.  Here, the claimant complained of extreme pain that prevented her from working, yet the objective medical evidence did not show pain to this extent.  The ALJ, discrediting the claimant’s subjective complaints of pain, denied benefits.  We successfully argued that there was no evidence to suggest the claimant was malingering, and that an ALJ cannot reject subjective complaints of pain solely on the basis of objective medical evidence.  The district court held that the ALJ’s credibility finding was not based on substantial evidence, and remanded for further proceedings.