Social Security Disability Facts Forum

SSDI and SSI Disability Application Process => Appeals Council and Federal Court Appeals => Topic started by: coach745 on November 10, 2020, 07:55:43 am

Title: Coach745 - Update
Post by: coach745 on November 10, 2020, 07:55:43 am
My wife has the opposite problem.  The wife's CE examiner said she didn't feel my wife could work.  Her counselor an LPC filled out an RFC.  We never told her psychiatrist and pain doctor we were even applying.  The psychiatrist just jots down my wife's complaints about panic attacks, hallucinations, and not sleeping then adjusts medication.  The alj said it wasn't anywhere in his notes of being as severe as the ce examiner and the counselor.  We have talked to him now and he is willing to fill out an RFC.  Whenever it's a personal issue the psychiatrist always says talk to the LPC about it.  I'm hoping we can get another remand.   
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 10, 2020, 08:10:17 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 10, 2020, 08:59:11 am
The lawyer isn't submitting the new RFC.  He is submitting the updated adult function report and my 3rd party form.  The paralegal did not submit them before the hearing.  I emailed them to her a month before the hearing.  I have the emails and the dates.  I will wait until I read the AC brief to see if the lawyer admits dropping the ball on that.
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 10, 2020, 09:19:51 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 10, 2020, 09:39:03 am
The claimant updates the records with a lawyer?  Not what this rule says. SSR 17-4P  We are hoping we have enough to get it appealed without those 2 forms though.

https://www.ssa.gov/OP_Home/rulings/PDF/2017-21252.pdf
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 10, 2020, 10:46:20 am
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Title: Coach745 - Update
Post by: coach745 on November 10, 2020, 12:05:38 pm
If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (a)(5) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 404.935, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application. The notice will also advise you that if you file a new application within 6 months after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits under § 404.630. If you file a new application within 6 months of the Appeals Council's notice, we will use the date you requested Appeals Council review as the filing date for your new application.

Now they might not take a look at it because everyone could say they submitted something before the hearing but I have emails and really believed it was being added to the record.  If it's the claimant's responsibility to submit evidence what are we paying the lawyer for?
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 10, 2020, 12:25:32 pm
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Title: Re: Coach745 - Update
Post by: coach745 on November 10, 2020, 12:38:13 pm
Ok. Thanks.  Lockdown2020
Title: Re: Coach745 - Update
Post by: Just Me on November 10, 2020, 04:44:17 pm
Did the LPC fill out a RFC?  The psychiatrist has to go by the medical records he submits to fill out the RFC. Your attorney admitting he dropped the ball does not matter.
Title: Re: Coach745 - Update
Post by: coach745 on November 10, 2020, 06:57:01 pm
The LPC filled out the RFC. The psychiatrist notes really don’t say anything. Just what my wife is telling him. He doesn’t offer any opinions on the panic attacks, hallucinations, or the not sleeping. He just adjusts the medication. He says talk to the LPC(he knows her) the CE examiner had the records from her hospitalization. The alj mentioned she hasn’t been hospitalized in 2 years so she must be fine.
Title: Re: Coach745 - Update
Post by: coach745 on November 10, 2020, 07:13:15 pm
This is a repost from an older post. I think she has enough in the medical records. The notes from both her psychiatrists are handwritten but I think it’s enough in their notes to support her claim. I’m ready to read their ac brief. I told them where I though we could get an appeal but they are the experts.


This is from her SSA mental CE
Ms. ***** observes Ms. ***** to have several
mood changes during the interview and to report a history of child sexual
abuse and unpredictable behavior with hallucinations of past abuse and
mood swings. Ms. **** is “not in any way felt to be stable enough to
work at this time” noting that she “seemed to be bordering on psychotic much of the time” and may be a danger to herself or others in a work situation due to rapid cycling of moods,
delusional thinking, and flashbacks. Ms. ***** records indicate a severe
limitation in interacting with others. Ms. ***** describes becoming violent
and hitting coworkers, difficulty trusting others, and being estranged from
family members.

This is from her hospitalization
Ms. ***** was found not to
be oriented to date, place or situation and to have blunt affect and
inappropriate judgement. Ms. ***** disability level is noted to be severe
and she presented for admission with complaints of increased mania,
depression, anxiety. 

From the counselor
Ms. *** opines that Ms.
**** has marked limitations in her ability to perform activities of daily
living, maintain social functioning, respond appropriately to supervision or
customary work pressures, and in performing simple or repetitive tasks. Id.
Ms. *** opines that Ms. ***** has severe limitations in her ability to:
understand, carry-out or remember instructions; maintain concentration,
persistence, and pace; respond appropriately to coworkers, or perform
complex or detailed tasks. She opines that Ms. ***** would miss work and require breaks in
excess of that allowed in competitive employment.



This is a little bit from my wife's brief.  I took out the court cases they cited but basically I agree.  The alj had to work way harder to deny her than approve her claim if you have to find a way to make both arguments. It's over 20 more quotes like those above in her medical records.


ALJ is also not to pick and choose among the evidence. In dismissing the
medical evidence throughout the record which directly supports Ms. *****
complaints and medical opinion evidence, the ALJ has not properly
considered the subjective complaints and medical evidence.
“Social Security proceedings are inquisitorial rather than adversarial” and
that the ALJ has the duty “to investigate the facts and develop the
arguments both for and against granting benefits.”
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 10, 2020, 08:34:55 pm
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Title: Re: Coach745 - Update
Post by: WiltingRose on November 10, 2020, 09:02:29 pm
I just had my remanded hearing in Sept. and I was allowed to submit 2 documents from different doctors that I had seen before my first hearing.  Like you, I gave the info to my lawyer who, for whatever reason, did not submit them.  In my AC brief I just stated they were sent to my lawyer and they somehow forgot to submit them.  The AC allowed them to be in my remanded hearing, as I showed just cause and the dates reflected my plea. Hope this helps.  Will send out some prayers for a remand for her <3
Title: Re: Coach745 - Update
Post by: newdawn on November 10, 2020, 10:03:34 pm
I just had my remanded hearing in Sept. and I was allowed to submit 2 documents from different doctors that I had seen before my first hearing.  Like you, I gave the info to my lawyer who, for whatever reason, did not submit them.  In my AC brief I just stated they were sent to my lawyer and they somehow forgot to submit them.  The AC allowed them to be in my remanded hearing, as I showed just cause and the dates reflected my plea. Hope this helps.  Will send out some prayers for a remand for her <3

Thanks WiltingRose for sharing your experience! I thought we had had some members in the past that were able to previously left out medical records accepted.
Title: Re: Coach745 - Update
Post by: coach745 on November 10, 2020, 10:44:10 pm
The first alj gave the ce examiner a lot of weight and didn’t give the counselor any weight. The 2nd alj did not give the ce   Examiner any weight and gave counselor soso weight. The counselor wrote a narrative about metal functions. That isn’t the whole RFC cut into that little bit I copied and pasted. That is from the form the lawyer gave her to fill out. The alj was going by her first function report submitted 2 and a half years ago. Her daily activities have changed quite a bit since that function report. I think it changes the way the alj looks at her back pain and mental function. Basically I think the alj was saying her mental and physical impairments can’t  be as bad if she can still do xyz. Well she can no longer do xyz. An inpatient hospitalization shouldn’t be the standard. She has mentioned to the psychiatrist she thought she needed to go but hasn’t went back. A few months ago we had to call to go in but the mental hospital did not have any rooms. I and her counselor was able to get her calmed down enough not to have to go the next day. I know the counselor isn’t a medical source but she knows her the best and sees her twice a week. She’s seen my wife on her worst days more often than anyone besides me.
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 10, 2020, 11:47:44 pm
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Title: Re: Coach745 - Update
Post by: coach745 on November 11, 2020, 12:07:19 am
That’s not the our main remand argument. I identified 2 I wanted attack. I don’t know if the lawyer will use them though. 
Treating Source - Opinion Not identified or Discussed &
Consultative Examiner - Inadequate Support/Rationale for Weight Given Opinion.

I don’t want to reopen a case. This is a regular Appeals Council remand. We filed the appeal within 60 days of her hearing denial.
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 11, 2020, 12:36:20 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 11, 2020, 01:01:50 am
I was aware but I was just throwing ideas to my lawyer. The following paragraph I wrote to my lawyer.

The ALJ improperly assigned somewhat persuasive and noted the LPC was not an acceptable medical source, although she is a treating source with a longitudinal knowledge of the claimant’s impairments.  ALJ considered statements 8F(somewhat persuasive) & 17F(unpersuasive) from the LPC. ALJ did not consider 17F because it was not function by function limitations. The LPC  submitted 10F which was a mental RFC that was function by function and not considered. 17F should be more than unpersuasive. 10F was also mentioned in the remand order and not discussed in the decision. 10F stated Mrs. ***** would miss more than 2 days a month.

Now I know under the new rules they don’t have to consider her statements. In the alj decision it mentioned she is considering them because the remand order mentioned it. Well if you’re going to consider it. Consider it all...
 
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 11, 2020, 12:29:09 pm
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Title: Re: Coach745 - Update
Post by: coach745 on November 11, 2020, 12:48:19 pm
The alj considered the following severe impairments degenerative disc disease, obesity, affective disorder and ptsd.  The alj said the ce examiner had more severe limitations than my wife's doctor and didn't point to any examples.  I can point out at least 5 things that show the same limitations.  The alj said over 2 years of treatment notes her mood and symptoms waxed and waned.  That's pretty much all the alj said about it because the notes were hard to read.  I really wish the lawyer would have done a prehearing brief for the remand hearing.
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 11, 2020, 02:36:44 pm
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Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 12, 2020, 03:37:56 pm
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Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 12, 2020, 04:54:49 pm
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Title: Re: Coach745 - Update
Post by: anetty1956 on November 12, 2020, 06:17:55 pm
What’s the treating source rule exactly?
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 12, 2020, 10:10:56 pm
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Title: Re: Coach745 - Update
Post by: coach745 on November 12, 2020, 11:05:09 pm
I got the 2 remand reasons from the SSA website. Hoping my lawyer can come up with something better than I can.

https://www.ssa.gov/appeals/DataSets/AC08_Top_10_CR.html
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 12, 2020, 11:51:08 pm
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Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 13, 2020, 12:05:01 am
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Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 13, 2020, 12:26:30 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 13, 2020, 04:26:58 am
The medical opinion not being discussed & CE - Inadequate Support/Rationale for Weight Given Opinion.
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 13, 2020, 10:57:57 am
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Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 13, 2020, 11:12:28 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 13, 2020, 12:43:31 pm
I didn't know her psychiatrist could have done the mental ce exam at the time. My wife had only seen her psychiatrist  3-4 months when she had the ce exam. That was a long 29 months ago. 
Title: Re: Coach745 - Update
Post by: Just Me on November 13, 2020, 05:31:32 pm
Most doctors will not perform CE for their patients. The reason is because SSA does not pay much for the exam. The doctor must go by SSA rules if they perform the exam.
Title: Re: Coach745 - Update
Post by: coach745 on November 13, 2020, 07:13:49 pm
I read the ac brief today. Lawyer went in a totally different direction  but it might work. That’s why they’re the experts. He’s going to argue the alj decision isn’t supported by substantial evidence. Alj said my wife could do unskilled work with simple, routine instructions and tasks; make simple work related decisions. The alj has a duty to identify and resolve conflicts between dot data and ve testimony. Ve recommended 6 jobs. 1 job has a reasoning level of 3, 4 jobs have a reasoning level of 2, the last job with a reasoning level of 1 only has 4,000 jobs in the United States. So that job does not have a sufficient job numbers. Lawyer has all the case references from past decisions he’s using to make his points. The brief is 4 pages but I tried to sum it up as quickly as possible.
Title: Re: Coach745 - Update
Post by: Just Me on November 13, 2020, 09:42:08 pm
Where did you get the 4,000 number? Perhaps that information is located in another reference.

https://www.ssa.gov/OP_Home/cfr20/404/404-1566.htm
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 13, 2020, 11:03:44 pm
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Title: Re: Coach745 - Update
Post by: coach745 on November 13, 2020, 11:15:14 pm
The ve stated that the level 1 job had 4200 jobs in the United States. The lawyer referenced another decision that stated anything less than 10,000 jobs was to few.  The lawyer basically said the RFC the alj gave my wife she could only handle a job with a level 1 reasoning. The lawyer referenced other cases to knock out the other 5 jobs which were level 2 reasoning or higher.

As the apparent conflict between Claimant’s residual functional capacity and the demands of the stated jobs was not resolved, the ve testimony cannot be considered as substantial evidence.

VE testimony cannot be considered substantial evidence as there are not significant job numbers that exist in the national economy.

Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 13, 2020, 11:59:58 pm
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Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 14, 2020, 12:13:59 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 14, 2020, 12:26:27 am
The ve testimony during the hearing was 4200 jobs. It’s also in the alj decision. 20 CFR § 416.966. Isolated jobs that exist in very limited numbers in relatively few locations outside the region the claimant resides is not considered work which exists in the national economy. We are in Louisiana I’m sure there are not many of that job down here.
Title: Re: Coach745 - Update
Post by: Lockdown2020 on November 14, 2020, 12:32:32 am
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Title: Re: Coach745 - Update
Post by: coach745 on November 14, 2020, 11:02:48 pm
The ALJ went with reasoning level 1 for my wife’s RFC. The ve only named one level 1 job. That job only has 4200 jobs in the whole United States. That’s not a sufficient number of jobs in the national economy. Hopefully this is enough for a remand. Something I never thought of while looking at her case. Hope it can help someone else get a remand in with the same circumstances.

Below are the text of the bottom 3 reasoning levels in DOT:
1-Apply common sense understanding to carry out simple 1 or 2 step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.
2-Apply common sense understanding to carry out DETAILED but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.
3-Apply commonsense understanding to carry out instructions furnished in written, oral or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.