Social Security Disability Facts Forum

SSDI and SSI Disability Application Process => Appeals Council and Federal Court Appeals => Topic started by: Joshua2001 on September 01, 2020, 03:51:33 pm

Title: Opening brief filed
Post by: Joshua2001 on September 01, 2020, 03:51:33 pm
So just giving an update for those that are interested.  We filed the opening brief for my wife’s claim last week.  I can’t wait to see how they defend it because I have a hard time seeing how they justify some of the stuff in the decision.  Luckily we focused on the three things that remands are most common.  Hopefully the Federal Judge agrees with us. I still have a hard time believing that all of my wife’s treating and examining doctors said she was very severe (needing hospitalization) but the ALJ basically brushed them all aside.

Most of the focus was on the following

Treating Source – Opinion rejected without Adequate Articulation
Inadequate Rationale for symptoms Evaluation Finding
RFC – Mental Limitations Inadequately Evaluated.
Title: Re: Opening brief filed
Post by: anetty1956 on September 01, 2020, 04:07:44 pm
Sounds like a solid case. Why did they deny?  There reasoning?
Title: Re: Opening brief filed
Post by: Joshua2001 on September 01, 2020, 04:47:53 pm
Funny thing is it isn’t really clear in the decision.  The main reason is rejecting my wife’s treating doctor’s opinions.  He had two opinions one which, if credited, would have altered the RFC to include 30 minutes or more a day to use the bathroom at work.  The other would have had her meet the listing.

He rejected the first one by saying it was a vocational matter outside of the doctors expertise and not consistent with “her mostly normal mental status exam notes”.  Both of which are incorrect.  A psychiatrist saying someone will be unable to leave the bathroom because of compulsions is not a vocational matter.

The other one was kind of weird.  The Doctor filed out a Mental RFC form and had several things listed as marked.  It ended up being three areas listed as marked limitation when we only needed two.   He rejected it by cherry picking the evidence (not even accurate), and the mental status notes again. Funnily enough while he was rejecting it he didn’t even mention the sections that were listed as marked.  He gave great weight to the sections that the doctor said were not limited or mildly limited and little weight to those that are moderately or markedly limited but only listed the moderately limited ones.  Completely ignoring the markedly limited sections so I don’t know why or how those were rejected.
Title: Re: Opening brief filed
Post by: anetty1956 on September 01, 2020, 09:19:21 pm
From what I think. They look for severe and marked. More severe. Maybe that would have made a difference

I have heard this happening bf and this is what they did to me after my first hearing. My second was completely opposite

Do u have another hearing coming up?
Title: Re: Opening brief filed
Post by: Katiesdad2019 on September 02, 2020, 06:38:34 am
My alj totally rejected my psych mental rfc-
They want a long, detailed, narratives how the mental,issues affect your ability to work-
Even if the psych puts markedly or extremely limited on the form.

Sorry to tell the alj - most psych do not have the time or willingness or even the ability to write a long narrative story like that- they are disagreeing with the way the form is filled out -
Shouldn’t dismiss the psych opinion because of that .
Title: Re: Opening brief filed
Post by: Joshua2001 on September 02, 2020, 09:16:44 am
Yeah my wife’s ALJ accepted the parts he agreed with and that helped support his determination and rejected everything he didn’t agree with and that supported disability.  Which was pretty much how he treated all the evidence.  This is currently at the Federal level.  I would like to think that with the errors I pointed out that there is no chance this doesn’t at least get remanded but honestly with how this has gone so far I wouldn’t be surprised to lose.
At least I was able to knock out what I think was going to be their primary defense.  He obviously felt my wife was exaggerating her symptoms and he “misread” a document as proof.  He said the document said she was disheveled and used that to reject the recommendations in the document.  This was a recommendation from an OCD treatment center.  He rejected it because all her other treatment records show appropriate grooming and hygiene.  Well that isn’t what the document says.  It has the check mark next to appropriate grooming or hygiene.  I think the plan was to say look she exaggerated there so she must be exaggerating all the time to get disability.  When you take that out its recommendations match recommendation from her other doctors that recommend hospitalization.  Which he conveniently left out of his summary of all the doctors’ notes.
Title: Re: Opening brief filed
Post by: Katiesdad2019 on September 02, 2020, 10:23:25 am
My alj used the fact that I had “adequate grooming and hygiene “ as a mark against me,
But if i show up to the  hearing  Smelling badly and dressing in rags -
I would be faking -
So which is it exactly ? It’s a un winnable catch 22
Title: Re: Opening brief filed
Post by: Joshua2001 on September 02, 2020, 10:56:33 am
Funny enough he did use something like that against my wife.  He used that she generally makes it to appointments on time against her.  Not sure where he got that because most of the records don’t mention that.  The one that does records warnings for missed appointments so not sure there but he said that none the less.  He then went on later and said she doesn’t seek treatment often enough near the end of the record so symptoms must be manageable.  So if she cancels and misses appointments it is held against her and if she shows up to appointments it is held against her…. Not sure how that is supposed to work.  Also none of it was even true.  We just made the mistake of not requesting new records from doctors of the last 6 months before the hearing because they didn’t say anything new.  Didn’t think it would be used against us but it was. 
Title: Re: Opening brief filed
Post by: FormerSSAALJ on September 02, 2020, 11:28:20 am
I'm confused. Are you at the AC or Federal District Ct.?
Title: Re: Opening brief filed
Post by: Joshua2001 on September 02, 2020, 11:30:48 am
Federal District Court.  The AC didn't review the case.  I think most likely because we didn't have a lawyer.  It is sad really.  We pointed out many errors to them but they just rubber stamped the ALJ decision.   
Title: Re: Opening brief filed
Post by: magvertize on September 02, 2020, 05:08:47 pm
Hi Joshua
Best wishes on your federal case! Seems like the Appleals council do a lot of rubber stamping hang in there I’ve had better luck with federal the first time around.
 I’m hoping to hear from federal soon again. I was denied at the hearing because the judge said my complaints of my mental symptoms were subjective even though my doctor spelled out an RFC that reflects unable to work. Judge said I was pleasant to my doctors and dressed according I can watch Tv take my medication and go to my doctor appointments even though we submitted records showing my husband was on family medical leave to take me to my appointments. Oh and let’s not forget I can live with people, my husband. Completely discarded my husband and my complaints and did not follow directions of first federal remand. I feel the whole system is a joke I worked and paid into the system for over 30 years but I ran out of credits and not insured any more so I’m hoping for another remand as this is my last chance. Keep us informed and best wishes
Title: Re: Opening brief filed
Post by: Joshua2001 on September 03, 2020, 10:24:18 am
Thank you

Yeah I am not a fan of how it works.  I personally don't like the ALJ system.  I think in many cases it ends up being adversarial and they decide someone must be faking because their symptoms are just so outlandish.  I mean who would make up that they have to spend hours in the bathroom after taking a poop?  If that person was making it up how could they convince 6 doctors that they really have that problem?  I honestly wonder if it isn't easier for the people that fake to get benefits then it is for people with mental disabilities.

Good luck on your case.  Hopefully you get awarded at federal instead of remanded.  I know it isn't likely but that is what I am hoping for in our case as well.
Title: Re: Opening brief filed
Post by: Joshua2001 on September 16, 2020, 12:33:44 pm
Just got a call from the lawyer working for SSA.  He and the SSA agreed with our brief and agreed with parts of it and is asking for a voluntary remand.  He just left a message so I didn’t get to talk to him but this is the first good thing that has happened in our case.  I am so happy right now.  We will still need to negotiate the terms of the remand but it is good to hear from someone that agrees that mistake were made.  I am not sure if we should take the remand offer or push for a decision from the judge.  I am leaning towards the remand offer and getting a lawyer this time around.  What do you guys think we should do?  It is good knowing that we are at least going to get a second chance.  It also feels really good knowing that our brief was good enough that they don’t think they can win so are offering a deal of some kind.
Title: Re: Opening brief filed
Post by: SFVLance on September 16, 2020, 12:52:39 pm
OUTSTANDING JOB!!!

I think taking the remand and getting a lawyer would be a better path, but I don't know the details that you know...so what would be the benefit of pushing for magistrate judge's decision?
Title: Re: Opening brief filed
Post by: Joshua2001 on September 16, 2020, 01:57:12 pm
I don’t really know many details yet.  I guess it would depend on the terms of the remand that they offer.   I want them to be required to give my wife’s doctors controlling weight and add bathroom time to the RFC.  I’m not sure they will want to do that since it would result in them awarding benefits.  We will see but I think this is a great sign that things are moving in the right direction.  I hope it isn’t only because of the ALJ wasn’t appointment properly part.  It could be that and that wouldn’t be ideal.  If they don’t at least offer one of the first two I think I would want to get the judge’s decision instead. 
Title: Re: Opening brief filed
Post by: magvertize on September 16, 2020, 02:02:37 pm
Joshua
That is awesome! So happy for you! Best wishes going forward
Title: Re: Opening brief filed
Post by: Joshua2001 on October 02, 2020, 09:54:25 am
Well it has been a few weeks so I thought I would give an update.  It turned out like I feared and the only reason they want it remanded on is that the ALJ wasn't appointed properly.  We tried to negotiate like they implied and they immediately asked the court for a voluntary remand.  I guess they really didn't want to negotiate.  This is very frustrating.  I will probably object to the voluntary remand as I don't trust the SSA to change anything about the decision except the name signed to it.  Hopefully this doesn't end up as a 2 year loop right back to district court.
Title: Re: Opening brief filed
Post by: magvertize on October 02, 2020, 11:59:58 am
Oh wow that stinks!
Did your remand order mention a new hearing with a new judge?
Title: Re: Opening brief filed
Post by: Joshua2001 on October 02, 2020, 12:28:59 pm
It hasn't been remanded yet.  It just a request made by SSA.  I haven't seen the final draft of the order but in the initial draft they sent me while were supposed to be negotiating.  They said it would go back to the appeals council and they would either make a ruling or send down to a lower judge.  Given that they weren't willing to concede anything in negotiations it looks very unlikely they would change anything with the ruling.  Negotiations is a very generous word on my part since right after my first email asking for concessions they said no and filed the request to the court.  I was expecting them to counter and even gave them something they should have had no problem agreeing to but they didn't want to even engage.
Title: Re: Opening brief filed
Post by: magvertize on October 02, 2020, 05:35:54 pm
Wonder if you can agree with stipulation of agreement if goes to new judge you want a new hearing. I’m not familiar with your process and commend you on dealing with this without a lawyer congrats to you
Title: Re: Opening brief filed
Post by: Just Me on October 03, 2020, 03:08:03 pm
Claimants have no say in the ALJ. It is up to the AC what the ALJ can address in another hearing or if the hearing has to be like a new hearing. Another hearing like the first one never happened is called De Novo. If the AC does not want a De Novo hearing. the remand letter will tell the ALJ what needs to be gone over in a remand hearing.
Title: Re: Opening brief filed
Post by: Joshua2001 on October 13, 2020, 08:22:09 am
So another update.  It took a while to get a copy of their request for remand and it is very aggravating.  They are basically accusing my wife of faking again and saying those issues need resolved.  What is with SSA and cherry picking out of the record?  We opposed the motion as it seems pretty clear what the SSA plans on doing on remand.  I hope the judge decides to let the case proceed instead of remanding it.  I am pretty sure we will win at least some concessions if it is argued on the merits.
Title: Re: Opening brief filed
Post by: Joshua2001 on April 09, 2021, 08:37:20 pm
Wow that took a while for a ruling.  Well they remanded based solely off the fact the ALJ hadn't been appointed properly.  We were really hoping it would go to trial so they would be forced to look at things differently but I knew this was the most likely outcome.  Hopefully we get a fair judge this time on remand. 
Title: Re: Opening brief filed
Post by: newdawn on April 10, 2021, 12:15:25 am
Wow that took a while for a ruling.  Well they remanded based solely off the fact the ALJ hadn't been appointed properly.  We were really hoping it would go to trial so they would be forced to look at things differently but I knew this was the most likely outcome.  Hopefully we get a fair judge this time on remand.

Congrats on the remand! Please let us know when your remand hearing is scheduled. Will it be a phone or video hearing do you think?
Title: Re: Opening brief filed
Post by: Joshua2001 on April 11, 2021, 04:35:34 pm
Thank you.  Not really sure.  It may not be either.  According to the SSR it could just be the appeals council issuing a ruling. I honestly don't have a lot of confidence in the SSA anymore.  It's already been over 5 years since we applied and it seems pretty likely we will end up with a recycled ruling.  Unless of course we get a fair judge but at this point I don't have a lot of optimism.