Because you are disabled.

File for disability benefits.

Appeal your case.

How you presented your initial application was the best you could do at that time given what you knew and were told.

But, if you were not successful, appeal (1) because you are disabled and (2) because you can improve on your presentation.

Wednesday, May 7, 2014

Shoulder Injury

The Administrative Law Judge found that the claimant’s severe impairments included: obesity; Type 2 diabetes mellitus; lumbar and cervical degenerative disc disease, with radiculopathy and mild canal encroachment; a history of rotator cuff tears, status post surgical intervention; a history of right ankle ligament tears, status post surgical intervention; hypertension; arthritis of the left AC joint, with a history of tendinitis; a history of drug addiction; a major depressive disorder; and a panic disorder, with agoraphobia.

The claimant’s appeal raised the issue that the ALJ failed to recognize the claimant’s right shoulder impingement and right upper extremity radiculopathy.

The court observed that:  “as the parties here seem to acknowledge, the ALJ appears to have misread the evidence pertaining to [the claimant’s] right shoulder as that concerning her left shoulder. . . . . As such, although the form of the ALJ’s analysis might be acceptable under the analysis set forth above, the content is not, since the reason given is not a “good” reason because it is grounded on a factual mistake about the evidence of record. . . .”

The court’s decision focused on the claimant’s argument that the ALJ’s failed to apply the treating physician rule as required in the Sixth Circuit.  [See the sidebar article on precedents below.]

The district court opinion outlined what the ALJ must do if he discounts the treating source’s opinion.  The court emphasized that two distinct analyses, applying two separate standards, are called for.

“The opinion must receive controlling weight if (1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent with other substantial evidence in the administrative record.  These factors are expressly set out in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). Only if the ALJ decides not to give the treating source’s opinion controlling weight will the analysis proceed to what weight the opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (3)-(6) and §§ 416.927(c)(2)(i)-(ii), (3)-(6).  The treating source’s non-controlling status notwithstanding, ‘there remains a presumption, albeit a rebuttable one, that the treating physician is entitled to great deference’ [footnotes omitted].”

In remanding the case, the district court reasoned: “The failure of an ALJ to follow the procedural rules for assigning weight to the opinions of treating sources and the giving of good reason for the weight assigned denotes a lack of substantial evidence . . . .”

Albelo v. Commissioner of Social Security, Case No. 1:12 CV 2590 (D. N.D. Ohio, E. Div., March 17, 2014).

No comments:

Post a Comment

Thank you for your comment. Comments may be edited. Only general interest comments will be posted. Please do not include personally identifiable information about anyone's actual Social Security case in your comments.