SSDI ALJ Hearing

AvnSgt

PEB Forum Veteran
Registered Member
#1
So, I just recently went to my hearing at our local ODAR office, and had an attorney represent me, as my case is somewhat complex. All went well during the hearing, however, the judge opted not to ask me any questions, and let the representative do all of the questioning. The hearing wrapped up inside of thirty minutes, and I my treating physician at the VA, as well as an IME both say I am not able to work.

Just the other day, my I received the Judge's decision in the mail, and when I read it, he gave me an Unfavorable decision. Reading into the details, it seems that the Social Security Office requested an RFC from a physician that has never seen me before or treated me, with in the VA system, and they used this to great weight in their decision instead of my treating physician. Which, my treating physician would have more experience, and knowledge concerning my disabilities, than a physician that has never treated me before.

I can speak to this, from recent experience, the system is set up in a box, and if your disabilities can not be put into this box, then the SSA feels that the SM is capable of performing work. Even though, a SM like myself, has been rated by the VA, to be unemployable due to my disabilities.
 

TSgt Twitch

PEB Forum Veteran
#2
So, I just recently went to my hearing at our local ODAR office, and had an attorney represent me, as my case is somewhat complex. All went well during the hearing, however, the judge opted not to ask me any questions, and let the representative do all of the questioning. The hearing wrapped up inside of thirty minutes, and I my treating physician at the VA, as well as an IME both say I am not able to work.

Just the other day, my I received the Judge's decision in the mail, and when I read it, he gave me an Unfavorable decision. Reading into the details, it seems that the Social Security Office requested an RFC from a physician that has never seen me before or treated me, with in the VA system, and they used this to great weight in their decision instead of my treating physician. Which, my treating physician would have more experience, and knowledge concerning my disabilities, than a physician that has never treated me before.

I can speak to this, from recent experience, the system is set up in a box, and if your disabilities can not be put into this box, then the SSA feels that the SM is capable of performing work. Even though, a SM like myself, has been rated by the VA, to be unemployable due to my disabilities.
you are correct in the "box" statement, I did not fit the box, and it took my lawyer to "draw" the box around me. I won at ALJ without seeing the judge, but it litterarly was due to the fact I had 3 doctors say disabled for every 1 that said abled, I had 9 total RFC's from various doctors/pcm's etc. The occupational therapist/physical therapist and active duty profiles that spelled out my limitations where all good, but even though the judge said he placed light importance on it, I think my commanders letter that said to the effect " this guy was shit hot, and continues to try, but cannot work, but if he could work he would work" did the final push over the finish line. Even with all of that, the judge still put me in the "review in 2 years" category.

If you are 100% TDIU/IU or 100% schedular, it would do you good to appeal the judges decision, there is justice out there, its just a matter of luck of the draw sometimes. good luck and keep up the fight.
 

AvnSgt

PEB Forum Veteran
Registered Member
#3
you are correct in the "box" statement, I did not fit the box, and it took my lawyer to "draw" the box around me. I won at ALJ without seeing the judge, but it litterarly was due to the fact I had 3 doctors say disabled for every 1 that said abled, I had 9 total RFC's from various doctors/pcm's etc. The occupational therapist/physical therapist and active duty profiles that spelled out my limitations where all good, but even though the judge said he placed light importance on it, I think my commanders letter that said to the effect " this guy was shit hot, and continues to try, but cannot work, but if he could work he would work" did the final push over the finish line. Even with all of that, the judge still put me in the "review in 2 years" category.

If you are 100% TDIU/IU or 100% schedular, it would do you good to appeal the judges decision, there is justice out there, its just a matter of luck of the draw sometimes. good luck and keep up the fight.
So, I am at the appeals council level, and I logged on to the SSA.gov website to ensure my password info didn't need changed, and once I got into the system, on the overview page, I see a new block of info. That blocks title, "Benefits and Payments," and I know it was not there before. Now, I am beginning to wonder what is going on. At this time that block states that I am currently not receiving any SS benefits. But, I assume something is going on behind the scenes.
 

AvnSgt

PEB Forum Veteran
Registered Member
#4
Update - Received letter from the Appeals Council Office today. Contents state, that I have 25 days to ensure all records are up to date, before the appeals council proceeds, to review the ALJ's decision.
 

AvnSgt

PEB Forum Veteran
Registered Member
#5
Update - So, I asked my representatives to inquire if my case was being handled as a critical case. They responded with, Social Security will only tell us the current state your case is in at the Appeals Council level, and that is pending. I made a second inquiry to my representatives, and got a different response, that my case was with a senior advisor being reviewed. Again, side stepping the question I had originally asked. On the third try, they said, they will call me back after the senior advisor finishes the review of the file. Once again, trying to side step the question. So, I asked them, do I need to get involved directly and call the Appeals Council for an answer. To which, they responded with you can call them, but technically we are representing you, so you should go through us.

After all of that, I just made a simple phone call to the Appeals Council to find out if my case was marked wounded warrior/critical case, as I don't want my shit setting in stasis for 14/20 months rotting. And, the nice lady on the other end of the line gave me a very simple answer, and that was yes, it is marked as a wounded warrior/critical case.

Now, why could the representative not give me this simple answer, after all, they are going to get a piece of the pie. Once we settle all of this crap.
 

AvnSgt

PEB Forum Veteran
Registered Member
#6
Update -

After a bit of research I learn the following: "Because of the similarity between a VA finding of unemployability and what it means to be disabled under the social security disability program, it is the rule in four circuits that such VA disability ratings are entitled to 'great weight.' See McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001);Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); and De Loatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983)."

So, I now know that the ALJ who heard my case was either bias, or blatantly ignored evidence from the VA, PCP, to cause undue stress. As, I live in the 11th Cir. of Federal Appeals, and when a Veteran has an unemployability rating, great weight should be given to VA disability ratings.

Whereas, the ALJ in my case, ignored my VA ratings, and PCP RFCs to further his own ambitions. Which may have been to keep his high case disapproval rating.
 

AvnSgt

PEB Forum Veteran
Registered Member
#8
I just read Chambliss v. Massanari and came away with a very different interpretation.
I think you might be missing the idea. The Court agreed that the VA evidence should be given a certain amount of weight. That weight should be "Great Weight," when the evidence supports it, thorough ones medical record.

A VA rating of total and permanent disability is not legally binding on the Commissioner because the criteria applied by the two agencies is different, but it is evidence that is entitled to a certain amount of weight and must be considered by the ALJ. See Loza v. Apfel, 219 F.3d 378, 394 (5th Cir.2000); Latham v. Shalala, 36 F.3d 482, 483 (5th Cir.1994); Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir.1981). InRodriguez and its progeny, we have sometimes referred to a VA disability determination as being entitled to "great weight." While this is true in most cases, the relative weight to be given this type of evidence will vary depending upon the factual circumstances of each case. Since the regulations for disability status differ between the SSA and the VA, ALJs need not give "great weight" to a VA disability determination if they adequately explain the valid reasons for not doing so.

In the case at bar, the ALJ considered the VA's determination that Chambliss was permanently and totally disabled, but gave it diminished weight. However, the ALJ provided specific reasons for giving

[269 F.3d 523]

the VA determination diminished weight. First, the ALJ noted that the VA disability determination was made only a year after Chambliss' heart surgery. Second, although not entirely clear from the ALJ's decision, the ALJ apparently found that the VA disability determination and the treating physician's opinion that Chambliss could not work were "conclusory" in nature because they did not adequately explain why Chambliss could not engage in light work activity. Furthermore, the ALJ evidently discounted the treating physician's opinion because it was made as part of an application for food stamps (based upon need). Because the ALJ considered the VA disability determination and set forth valid reasons for giving the determination diminished weight, we cannot say that the ALJ erred simply because it did not give "great weight" to the VA disability determination.
However, in this case, it was determined that there was a lack of evidence. Which is entirely possible, because of the way the VA documents things, and how often we are seen by our caring physicians. Also, we should try and be proactive to keep track of these records, so our physicians that can't take advantage of us.

But, in my case, I had a thorough review of my documents before the ALJ hearing, with my lawyer. And, all the supporting evidence was present in my record; from the day of onset, in military service, to the day the VA awarded unemployability, through present day treatment. Complete continuity, to include two RFCs provided by my PCP at the VA. So, I think something is off in my case, as I have a copy of all of the above. And, I read the RFCs provided by my PCP, which clearly state, on both, that I will not be able to return back to work, due to the complexity of my disabilities.
 

chaplaincharlie

PEB Forum Veteran
Registered Member
#9
Understand what our saying. In your previous post you stated, "and when a Veteran has an unemployability rating, great weight should be given to VA disability ratings." which in your case may be true.

Another reading the post may mistakenly conclude that "great weight" is the legal standard. In your more recent post the legal standard is much more clearly stated. Hope your able to get your claim resolved satisfactorily.
 

AvnSgt

PEB Forum Veteran
Registered Member
#10
Understand what our saying. In your previous post you stated, "and when a Veteran has an unemployability rating, great weight should be given to VA disability ratings." which in your case may be true.

Another reading the post may mistakenly conclude that "great weight" is the legal standard. In your more recent post the legal standard is much more clearly stated. Hope your able to get your claim resolved satisfactorily.
I hope that some one reading this understands, that "great weight," is not necessarily the legal standard. However, it should be applied when the evidence is there to support the disabilities. And, in this case it varies from each District of Federal Cir. Court of Appeals. In my case, should the Appeals Council fail me, which I doubt it will, but should it, I would file my next appeal in the 11th District, for the Federal Cir. Court of Appeals.
 

AvnSgt

PEB Forum Veteran
Registered Member
#11
Received a package from the Appeals Council today. There was a few tense moments, as I began to open it. But, turns out for once, there was a bit a positive news. My case has been remanded, and the ALJ decision vacated. A small victory, but I still have a major battle, as I have another hearing to attend.
 

nwlivewire

PEB Forum Veteran
#12
Received a package from the Appeals Council today. There was a few tense moments, as I began to open it. But, turns out for once, there was a bit a positive news. My case has been remanded, and the ALJ decision vacated. A small victory, but I still have a major battle, as I have another hearing to attend.

This is great news! No small thing to get a decision vacated at that level.

MAN! I really hope you get that "turn of a friendly card" - and soon!

So, what happens next? Of all the cases I've read on this site for SSDI, yours is the first one I've read where a decision was vacated.

Do you know what the next step is? Or when? Or what/who handles this next step?

V/R,
nwlivewire
 

AvnSgt

PEB Forum Veteran
Registered Member
#13
This is great news! No small thing to get a decision vacated at that level.

MAN! I really hope you get that "turn of a friendly card" - and soon!

So, what happens next? Of all the cases I've read on this site for SSDI, yours is the first one I've read where a decision was vacated.

Do you know what the next step is? Or when? Or what/who handles this next step?

V/R,
nwlivewire
My case was sent back to the local ODAR office with special instructions for the ALJ. From what I understand, I will have another hearing. However, what is not clear in the letter I received, is whether it will be with the same ALJ or a new ALJ, as the wording is a bit unclear. I will post a redacted copy of this letter, as I suspect it may contact information that could help other SMs that are going through similar issues.
 

AvnSgt

PEB Forum Veteran
Registered Member
#15
Just up loaded a copy of the legal argument that was used for my appeal to the council, and AC remand. I don't want to type the special instructions, as they are quite lengthy, and reference several SSRs that the ALJ ignored. However, I have redacted the attached PDF, which will help provide the insight you want.
 

Attachments

nwlivewire

PEB Forum Veteran
#16
My case was sent back to the local ODAR office with special instructions for the ALJ. From what I understand, I will have another hearing. However, what is not clear in the letter I received, is whether it will be with the same ALJ or a new ALJ, as the wording is a bit unclear. I will post a redacted copy of this letter, as I suspect it may contact information that could help other SMs that are going through similar issues.

Thank-you for all this information.

I'm sure this WILL help others who are having to navigate the SSDI system.

Keep posting as you go.

And I hope you're near the end of this trail and receive a favorable outcome soon!

V/R,
nwlivewire
 

chaplaincharlie

PEB Forum Veteran
Registered Member
#17
Avn Sgt

Thank you for sharing. Hopefully, the instructions to ALJ will get his/her attention. It appears the ALJ made numerous errors in his/her fining. Best wishes for a better outcome.
 

AvnSgt

PEB Forum Veteran
Registered Member
#18
Avn Sgt

Thank you for sharing. Hopefully, the instructions to ALJ will get his/her attention. It appears the ALJ made numerous errors in his/her fining. Best wishes for a better outcome.
Your Welcome,

The one thing that eats away at me is, this kinda of thing happens many SMs, and they get discouraged, give up, and lose large parts of their lives over what should be a simple fix. Alas, our beloved country we so vehemently defend, is willing to let down those that gave all. I only hope that the information I leave here may be help to someone else dealing with similar issues, as no two issues are exactly alike.
 

chaplaincharlie

PEB Forum Veteran
Registered Member
#19
AvnSgt

The number of people that have fallen through the cracks is way too high. Thanks to you, and others like you, there is a place to get advice and enjoy what I know I will miss in a few months - the camaraderie of the profession of arms.
 

nwlivewire

PEB Forum Veteran
#20
AvnSgt

The number of people that have fallen through the cracks is way too high. Thanks to you, and others like you, there is a place to get advice and enjoy what I know I will miss in a few months - the camaraderie of the profession of arms.

Dear Chaplain:

At times, I think I've moved from the camaraderie of the profession of arms to the camaraderie of the profession of harms.

nwlivewire
 
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