Jul 15, 2017

It's Nearly Certain That He'll Win But He Still Has To Wait And Wait

     From the Riverdale Press:
Ted Grohowski spent five days during a recent week in the hospital suffering from tender, infected ulcers on his feet — his sixth overall visit for the issue. The blisters are so painful, they often make him unable to stand up or walk. 
But for the 64-year-old, it is only one ailment on a laundry list of illness and injury. 
Some 14 years ago, Grohowski had a knee replacement that is now starting to fall apart. Last August, his left kidney was removed because of a cancerous tumor. 
He has a rotary cuff tear in his right shoulder that sometimes makes him unable to lift his head.
So, when Grohowski walked into the Yonkers Social Security office in April to file for disability, he thought it was a no-brainer. Two months later, however, the office sent him a letter rejecting aid, stating he “did not meet our standards.” ...
For most of his adult life, Grohowski sold jewelry in midtown Manhattan. While he enjoyed the work, the days were filled with long hours standing on his feet. After a while, it proved to be too agonizing, and he stopped working altogether more than a year ago.
He plans on appealing the Social Security Administration’s decision, which means he’ll have to go to court and state his case. But according to the disability adjudication and review office, Grohowski could wait as long as two years before he can appear before a judge. ...
One of the reasons there is such a backlog of cases ... is because of the federal government’s continual budget cuts to the Social Security program. President Donald Trump already has proposed another $64 million cut to the disability agency’s $813 billion budget. ...
     Yes, I know, he can get his early retirement benefits while he's waiting but most claimants can't.
     Don't ask how I know he's nearly certain to win. I represent claimants. I have to predict chances of success. It's easy to predict that he'll win. In better times he would be approved shortly after requesting a hearing. If the system were more sensibly and humanely administered, he would never have been denied.

17 comments:

Anonymous said...

That last sentence is an enormous leap to take. First, you have no idea what evidence, if any, he provided with his application. Maybe he, like many claimants, think we should just take their word for what's going on, much like the author of the story and you have done.

Second, let's just assume he provided ample information with his application that shows everything written in this article. This is still a system run by humans that's processing over 700k applications a year. You're labeling the lack of perfection as some sort of inhumane program. That's ludicrous, just like saying the majority of claimants are goldbricking fraudsters just because of that family of four in Arlington that recently got popped would be (and which you bent over backwards to defend or excuse in the post as well).

This is a huge system. There are a number of flaws, and it can be heartbreaking and tragic when people have to wait two years to get a favorable decision and have their benefits started or die during the wait. But SSA employees at the initial level rarely have perfect or anywhere near complete information, and on occasion, they will make obvious mistakes because they are human beings. Indicting their performance or the system based on these singular incidents is weak.

Tim said...

DDS has a culture of denial, unless someone obviously meets a listing. The RFCs look like the were chosen to be barely a denial, based upon the grid.

Anonymous said...

Spoken like the ALJ you obviously are (12:46). The system is set up, and you are trained, to deny. On every point. At every step. There would be no backlog if you got it right at the first step. But no one cares about correct decions, and denials are faster to move. Plus they appease a clueless Congress and a brainwashed populace.

Anonymous said...

Of course the system is set up to "deny". Can you imagine what it would be like if it were the opposite? SSA doesn't do "short term" disability. Do you know how difficult it is to get someone off the roles with all of the appeal options?

If that's the way you want it, Congress will need to make some real substantial changes to both social security and supplemental security income.

Anonymous said...

12:46 here. It's not easier to deny claims at the hearing level than to award benefits. In fact, if I decided to award benefits to every 50+yo regardless of the evidence (which is apparently what 8:05 wants, pay cases no matter what the record shows), then I could easily double my hearing load and knock the backlog down. That's how those judges 7-15 years ago were cranking out 1000+ dispositions per year. If you look at the numbers from the Wild West days, the vast majority, if not all, of the judges clearing 800 dispose per year were awarding benefits in 85 percent or more of their decisions (exclusive of dismissals). It surely wasn't because they were taking the more difficult path to a decision.

They don't train anyone in the agency to deny anything. They teach us to apply the law. The system is set up to deny most claims in the sense that the burden of proof is on the individual applying for most of the process. The records need to support the allegations, and they have to show you're not capable of doing any competitive work in the national economy subject to the grid rules. It's not a low bar based on the Act, Regulations, and SSRs.

Anonymous said...

Spare me the scare the public about the cuts to "SSA Disability Program". The President has promised to protect benefits, not the operating budget which needs to be cut.

Since the implementation of telework for most hearing office employees, offices are virtually empty on many days. You'll find dark, unlit hallways and vacant offices yet the agency pays out millions in unused office. Talk about a tragic waste of taxpayer dollars!

Anonymous said...

I am a manager at ODAR, and I am still blown away that, after years of negotiation office sharing and hoteling in both AFGE and NTEU contracts, letting writers and now all the other staff telework up to three days a week, and facing uncertain, possibly very tight budgets--and being told that all this was to allow us to dramatically cut our office space--that I have not seen or heard of very much space loss. I have seen a few different offices nearby in my region have leases come very recently and they were kept in the same space or moved to a space with the same or only slightly smaller footprint.

Cheese and rice, if most all writers are doing their three days of telework, it seems like it would be extremely easy to cut DW office space by at least 25% right off the bat if not a third or close to half, even.

SSA just doesn't help itself as much as it could. There's no reason SSA should not have already made a big dent in its space usage since most everyone has had three days of telework for a couple years now.

Anonymous said...

@12:46

He is an individual closely approaching retirement age and he has difficulty standing and walking. These two factors greatly support a claim of disability under the medical-vocational guidelines. Although his exertional ability is unknown, light or above requires significant standing/walking, and he grids out at sedentary. Additionally, his work appears unskilled meaning transferability of skills is irrelevant.

@12:04

I've dealt with a few CDR cases. I see no significant distinction in difficulty in terminating benefits as opposed to obtaining benefits. Hire a CE, the CE says they are fine, and benefits are terminated.

Dan Smith said...

CODE: 279.357-058
TITLE(s): SALESPERSON, JEWELRY (retail trade)
STRENGTH: L GED: R4 M3 L4 SVP: 5 DLU: 77

Vocational experts come up with some pretty wacky transferable skills sometimes. But Charles is probably right.

The rep here should order records early and request an OTR

Anonymous said...

@12:46

Interesting, I figured salesperson was unskilled. In any event, given his age, under 201.00(f) and 202.00(f), transferability is limited in terms of tools, work processes, work settings, or the industry.

Anonymous said...

I have seen cases like this where the DDD physician has found a Medium RFC. Sometimes the RFC findings are of convenience and not of substance. As far as an On the Record decision, Good luck. I have handled 5,800 disability cases. At one time, On the Record and Senior Attorney Advisor Decisions were normal. Since the Conn--fraud case the ODARs I work with are not likely to make an On the Record Decision even in a "slam dunk" case like this. In the past 5 years I have only received two On the Record Decisions (out of hundreds of cases in that time). On of the decisions involved a mentally ill claimant who was banned from all Social Security facilities. ODAR tried to do a hearing with the client and I by phone from my office. The problem was that ODAR's phone system could not handle the two expert witnesses and a third line for my client and I. The case was then transferred to a retiring ALJ who made an On the Record decision. The other case involved a claimant who filed for benefits in 2005. She had four hearings with two different ALJs. When the case was re-scheduled with the second ALJ for the third time I objected. Several months later I received an On the Record decision from an ALJ whose name I had never heard of.

Anonymous said...

If the medical evidence is there, that sounds like one you should be able to get on the record. And don't take no for an answer. I had a severely ill client, and I asked for an expedited decision. Initially, I was denied but I persisted and asked the same ALJ who denied my request for help getting the records from where he was in the hospital again, and he approved the claimant. It did cut off a year of wait time.
Whether it's at DDS or ODAR, stay on their case and keep faxing records. If you don't have the records, you will have to wait.

Dan Smith said...

@3:42

That's been my experience too. I'm definitely not trying to waste ODAR's time with repetitive OTR requests but sometimes when the Listing/Grid is clearly satisfied it's
better to be persistent.

OTRs might not be as prevalent as they apparently were before Conn/Daugherty but they're still worth the effort IMO.

Anonymous said...

As the OG 12:46, I want to point out a couple of things. First, if everything in here is true and the records support it, it will almost assuredly be a FREV under the grids. I'm not arguing that at all. There would have to be transferable skills with minimal vocational adjustment to get there (and this is assuming that s/w isn't reduced below even sedentary levels), and I believe the only sedentary jobs in the jewelry business are of a higher skill level than the jewelry salesperson, so obviously that is almost certainly not going to be an issue.

But my point remains, while reading this article makes for a good story, nothing in it suggests that the information was provided to DDS was in any way complete or supported this. What if the painful sores on his feet that have occurred six times only occur once every 2-3 years, meaning this happened while he was working without any substantial worsening? What if he just provided DDS with his primary care records? What if he failed to return any paperwork to DDS to further evaluate his claim, and it was a technical denial? This is the problem with the article and making massive leaps to classify the system and its personnel as not sensible or inhumane. No one here has any idea of what happened to cause the denial.

Is 3:26 right in that there are times DDS will put someone with medical evidence like is suggested in the article at medium? Of course, and it makes for a very easy decision to make on our end. Have I seen them deny a person that can have no more than occasional social contact with others, including the general public, by finding jobs of usher, restaurant hostess, and childcare provider? Yes. But again, unless you have a copy of his DDE and are aware of what records were available at the time the decision(s) were made, then you don't really have a basis to say this is some sort of travesty based on what the reporter was told.

With regard to OTRs, most of the requests I see are poorly written and poorly supported in cases where there are no updated records over the previous 12 months (likely because the request is made before it's even assigned to me), a listing is argued where the records in no way support it, or a grid rule is argued for a person with light or sedentary PRW without any explanation for why it can't be done. The same arguments get made during the hearing as well, but most of my OTR requests are "Please pay this case because the person is over 55." I have done OTR decisions, and if the record supports it and there are no potential issues with PRW, I will do them again. If not, I won't.

Anonymous said...

Like Dan Smith, I'm very reserved about when I request an OTR. The only 2 requests that were denied were won at the hearing.
DDS usually has claimants doing a full range of light work which opens the possibilities for all sorts of things. As creative as they can be, if you work with the claims person and give them the medical records, you can get someone approved at that level.

Anonymous said...

OTR requests are very much still worth doing frequently (if the evidence is there, of course) under the following conditions:

1) The office involved has to still feed OTR requests to senior attorneys

2) Those senior attorneys (or at least some of them) have to be good and trusted by the ALJs.

If your office has 1) and 2), you can still get a lot of OTRs. I was a SAA until recently in a hearings office and me and my other SAAs were given each and every OTR request for cases not assigned to an ALJ yet, and a fair number of those that were already assigned because some of our ALJs didn't like to waste their time and used us as gatekeepers. But the two of us that were good--let's just say I never once had an ALJ disagree with my recommendation to do an OTR.

Anonymous said...

One other point not addressed is he could have been put at Sedentary but filled out his work history form in a way that made his job appear Sedentary as performed. I see this all the time at Hearings when representing claimants. They don't really understand Step 4 and fill out forms in a way that is to their detriment.