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.
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