SSDI ALJ Hearing

chaplaincharlie

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Unfortunately, justice is not blind. All people, including "judges", bring bias to their decisions. Not sure if its possible, but during the appeal I'd ask that the ALJ be recused for twice failing to follow the law.
 

AvnSgt

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Unfortunately, justice is not blind. All people, including "judges", bring bias to their decisions.
I have to agree with you on this, however I try to remain objective to every situation that I encounter. Although, it is a difficult thing to do.

Not sure if its possible, but during the appeal I'd ask that the ALJ be recused for twice failing to follow the law.
As for the ALJ, I believe, if the case is remanded and his decision vacated, for a second time, he will not be allowed to adjudicate the case again. However, I would need to ask my Attorney to confirm this to be true.
 

AvnSgt

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Had a VA Pain Consult today, for my migraines, yet again. Just about ten years in the VA system, and for the first time, I think the physician I seen got it right. Why is this, because the physician actually listened to what I had to say to him, instead of attempting to treat the symptoms with additional medications.

As dictated by the VA Physician into Dragon, sic
Discussion: Fistula and has had chronic migraine for many years and is essentially disabled from it. Additionally he has had all the treatments that I think a reasonable period and so far has had no significant benefit from it therefore in my opinion he remained he is 100% disabled and will remain so until sometime relief can be obtained. At this point I would recommend that he be considered for occipital nerve stimulation but as but to my knowledge that is not available through the VA system. It can be done through the University or Moffit and I would recommend consideration be given for that approach. Alternatively I do not see much point in try other medication since I believe he has been through all the normal medications. I have also suggested that he might be able to get him on a research study showed that the available I am not aware of anything it has been done locally in that regard bu that is something also might be considered. Since I really do not think I have anything to offer this gentleman I am not going to make a specific return appointment at this time.
My only question, is why did it take the VA Hospital 10 years to get to this point? When the VA Regional Office reached this conclusion 2 years after the severe onset of the migraines, which caused me to lose my job.

--edit added-- This is just me being really facetious, as I don't really expect an answer.
 
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AvnSgt

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Next update, and sorry I can't upload the docs. I don't have access to a scanner anymore.
Also, I am gonna leave out the first two paragraphs, as they just cover the remand and vacate decision made by the council.

Part 1

In the initial remand order, the Appeals Council ordered further consideration be given to the established residual functional capacity because a Department of Veterans Affairs Rating Decision (Exhibits 7A and 19E) had not been properly considered in the initial decision. The current decision however, still did not properly consider the Veterans Rating Decision.

Instead, the current decision evaluates the December 2012 Workers' Compensation/Public Benefit Questionnaire, which only indicates the amount and date of the increased VA Benefits (Decision, page 7 and Exhibit 5D). The actual V.A. Rating Decision shows separate ratings increases and the unemployable determination which is stated as 50% for obstructive sleep apnea, 50% for migraine headaches, 30% for cervical degenerative arthritis (also claimed as radiculopathy and degenerative disc disease), and 10% for right carpal tunnel syndrome (dominant) (Exhibit19E).

Program guidance provide policy reminders to adjudicators, including administrative law judges, to help them properly consider evidence from the Department of Veterans Affairs (VA). The VA's disability rating is another governmental agency's adjudicative finding based on its rules and is is not a medical opinion. The VA disability rating, however, is evidence an adjudicator must consider along with the other evidence in the case record.

SSA policy requires adjudicators to consider all evidence received from the VA when assessing VA disability decisions. While disability decisions by other governmental agencies, such as the VA, are not binding on the SSA, they are evidence adjudicators must consider (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Adjudicators are required to explain the consideration they give to evidence in the record of another agency's disability decision (See: SSR 06-03p). They should cite specific facts from the VA evidence when discussing how they considered this evidence (see 20 CFR 404.1520b, 404.1527, 416.920b, 416.927). Adjudicators should explain how the claimant's RFC finding takes into account limitations or restrictions found in VA evidence (see also: PolicyNet Administrative Message, 14009; effective date 02/20/2014).
 

AvnSgt

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Part 2

In the case under review, the VA Rating Decision provides the medical bases for the increased disability benefits and percentage/severity for the medical impairments, which provides further insight regarding the claimant's impairments and resultant limitations. The decision finds migraine headaches and obstructive sleep apnea are non-severe impairments but the evidence from the VA record indicates the impairments cause significant limitations.

During the period at issue, the claimant underwent ongoing treatment for migraine headaches. Treatment included ESI (electro-shock), occipital nerve block injections, and various medication adjustments (Exhibits 2F-5F, 8F, 18F and 34F, pages 27,28). New and material evidence submitted with the request for review, shows continuing medical treatment for migraines. The claimant reported nine debilitating headaches a month, and chronic daily headaches.

Records also indicate treatment for obstructive sleep apnea, where he reported syncopal episodes, daytime sleepiness, difficulty initiation of sleep, snoring and sleep restlessness ( Exhibits 18F, 20F, 23F, and 35F). A November 2013 polysomnogram did not show sleep apnea; however, the study revealed upper airway resistance and significant nocturnal hypoxemia, and sleep efficacy of 67.28%(Exhibit 20F).

Based on all of the above, further evaluation of the claimant's impairments and VA Rating Decision remains necessary (20 CFR 404.1520 and SSR 06-3p).

The rest of the letter contains special instructions for the ALJ.
 

Kazhmone

PEB Forum Veteran
Registered Member
Hello AvnSgt,
I thank you for sharing your SSDI journey with all of us. This means a lot for the rest of us just starting down this path. You offered so much valuable information. Please keep us posted. I am wishing you the best of luck :) Do not give up the fight.
 

franky

PEB Forum Veteran
Thank you for the information. I recently had my ALJ hearing and as I expected, my Attorney said that it went well and that I should be good. As I read several posts regarding ALJ hearings and what Attorney's state, it seems as though this is only a statement of encouragement, not an actual sign of things to come. As I remain optimistic, I will continue to research other possible outcomes and courses of action.

As mentioned before, never stop fighting, always assist others, and good luck! I will post when I know what my outcome is.
 

AvnSgt

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Registered Member
Thank you for the information. I recently had my ALJ hearing and as I expected, my Attorney said that it went well and that I should be good. As I read several posts regarding ALJ hearings and what Attorney's state, it seems as though this is only a statement of encouragement, not an actual sign of things to come. As I remain optimistic, I will continue to research other possible outcomes and courses of action.

As mentioned before, never stop fighting, always assist others, and good luck! I will post when I know what my outcome is.
Franky, I wish that you will have a favorable outcome, from your hearing!

So, just a quick update on where I stand. Currently, I am just over a week away from appearing for my third time in front of the ALJ. The process is emotionally draining on myself, and my family, not to mention the physical stress that it causes, as no one I know, wants to be involved with any type of court hearing, even if it could be beneficial to them. However, if I don't fight for myself, no one else will, and this would be detrimental to my loved ones.

I will continue to share what I have learned through this process, and hopefully this arduous journey will end in just a few short weeks, with a positive outcome.
 

franky

PEB Forum Veteran
Franky, I wish that you will have a favorable outcome, from your hearing!

So, just a quick update on where I stand. Currently, I am just over a week away from appearing for my third time in front of the ALJ. The process is emotionally draining on myself, and my family, not to mention the physical stress that it causes, as no one I know, wants to be involved with any type of court hearing, even if it could be beneficial to them. However, if I don't fight for myself, no one else will, and this would be detrimental to my loved ones.

I will continue to share what I have learned through this process, and hopefully this arduous journey will end in just a few short weeks, with a positive outcome.
Okay Bro!

I am sorry that this process has been so drawn out for you. What is killing me inside is that when we were asked to give, we did so without hesitation. Now that we ask for help because of the injuries or illnesses that we sustained, we encounter resistance. I truly pray that you get a favorable decision on your ALJ hearing. Never stop fighting and good luck!

NSDQ!
 

gtpatt

Registered Member
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.
My lawyer gave me the social security form to hand carry to my doctor. He answered the questions on the form . Now I receive SSDI.
 

AvnSgt

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My lawyer gave me the social security form to hand carry to my doctor. He answered the questions on the form . Now I receive SSDI.
@gtpatt Congrats. That is a good tactic to use, if your doctors will accept the paperwork, without going through ROI.
 

Kazhmone

PEB Forum Veteran
Registered Member
Franky, I wish that you will have a favorable outcome, from your hearing!

So, just a quick update on where I stand. Currently, I am just over a week away from appearing for my third time in front of the ALJ. The process is emotionally draining on myself, and my family, not to mention the physical stress that it causes, as no one I know, wants to be involved with any type of court hearing, even if it could be beneficial to them. However, if I don't fight for myself, no one else will, and this would be detrimental to my loved ones.

I will continue to share what I have learned through this process, and hopefully this arduous journey will end in just a few short weeks, with a positive outcome.
Hello AvnSgt please keep us posted of your outcome this does help us with having hope and to know what's going on with the system. Keep the faith and do not give up!:)
 

gtpatt

Registered Member
@gtpatt Congrats. That is a good tactic to use, if your doctors will accept the paperwork, without going through ROI.
The VA just a few months ago allow the service members to choose another doctor. The doctor did not have to be in the VA network a card was issued. The forms I believe accepts a Nurse (NP). The judge also accept the written ratings form the VA. IF I did not believe that the at VA or anyone was not taking care of me I professionally change doctors several times over the years.
 

AvnSgt

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The VA just a few months ago allow the service members to choose another doctor. The doctor did not have to be in the VA network a card was issued. The forms I believe accepts a Nurse (NP). The judge also accept the written ratings form the VA. IF I did not believe that the at VA or anyone was not taking care of me I professionally change doctors several times over the years.
I understand what you are saying, but this is something I don't want to get into, and for a couple of reason.

1.) VA's differ region to region, on how they honor the Choice Card, and who may use a physician outside the VA, and still get reimburse for the cost of treatment.
2.) VA's differ on local policies, for legal reasoning, as to if a physician, has any legal obligation to complete paperwork, that was submitted from an outside source.

There are other things I have learned over my time, however, I can simply say that there is really no rhyme or reason for this, or why one Veteran is able to breeze through a process, but another, will have stumbling block after stumbling block. It happens.

Hopefully, I will have a final answer from the ALJ, as I just recently had my third SSDI hearing. However, I have lost much of my confidence in the system, since the ALJ from the last two hearings completely ignored much of the evidence, and the Appeals Councils special instructions.
 

franky

PEB Forum Veteran
I just received my "Notice of Decision - Unfavorable" and it hurts! I had my ALJ hearing on the 6th of October and during my hearing, I explained myself and injuries, my representative spoke on my behalf, and there were no jobs that I would be able to do, with my disabilities. My representative said "it went well." Well, I did look up the judge after the hearing and to my surprise, he only grants 24% of the time. I'm not sure what I am going to do at this point.
 

Kazhmone

PEB Forum Veteran
Registered Member
Hey AvnSgt, I hear you and I know after going through what you are and have experienced with the SSDI ALJ hearings has got to be tough. I can only imagine because I'm just starting my 1st appeal and just completed the appeal form with my Attorney. Due to the SS Grid table standards it makes it hard for any of us even in a protected work class under 50 or 60. This includes considering what medical evidence we may have. The fight for some is hard while others it's easy. I guess it just depends on who the Judges are also
 

Kazhmone

PEB Forum Veteran
Registered Member
I just received my "Notice of Decision - Unfavorable" and it hurts! I had my ALJ hearing on the 6th of October and during my hearing, I explained myself and injuries, my representative spoke on my behalf, and there were no jobs that I would be able to do, with my disabilities. My representative said "it went well." Well, I did look up the judge after the hearing and to my surprise, he only grants 24% of the time. I'm not sure what I am going to do at this point.
Hello Franky, what you are going to do is keep trying and appeal! This is what the system wants for us to do. I just wrote above to AvnSgt that it depends on the judge you have and you posted this. Do not give up. I do understand what you meant by saying you don't know what you are going to do, but it's the doing what has to be done now!
DO NOT STOP at this point.
 

AvnSgt

PEB Forum Veteran
Registered Member
Hey AvnSgt, I hear you and I know after going through what you are and have experienced with the SSDI ALJ hearings has got to be tough. I can only imagine because I'm just starting my 1st appeal and just completed the appeal form with my Attorney. Due to the SS Grid table standards it makes it hard for any of us even in a protected work class under 50 or 60. This includes considering what medical evidence we may have. The fight for some is hard while others it's easy. I guess it just depends on who the Judges are also
I would agree with this for the most part, but I recently had an appointment with a private practice physician, who is working with the VA part time, and he has explained to me that the ALJs, in the state of Florida, have taken a negative stance against migraines. It is extremely difficult to get cases through the SSDI process, for migraine sufferers, and has been for the past 4 to 5 years.

That said, SMs, like myself are now caught up in this mess, as my service connections are my direct reason for my inability to work, or maintain SGA, or SGE. So, while the VA recognizes this, and has compensated me appropriately, getting the Office of Disability to acknowledge that this is a real issue, has been hell.
 
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