As advocates are all too aware, Appeals Council reversals and remands are rare. In fact, the Social Security Administration’s (SSA’s) most recent “Waterfall Chart” confirms only ten percent of appeals were remanded in 2018. But the effort it takes to win those remands can pay off in the long run, as evidenced by two recent favorable ALJ decisions.
Advocates at the Bath office of Legal Assistance of Western New York (LawNY) took over representation at the Appeals Council of a veteran who had appeared pro se before the ALJ. He had applied for Supplement Security Income (SSI) benefits primarily due to the loss of his voice box to larynx cancer. Supervising Attorney Ellen Heidrick submitted new and material evidence to the Appeals Council, including medical source statements from the claimant’s treating sources. The treating source opinions confirmed the claimant could not perform his past work as a dishwasher due to the time he would be off task attending to cleaning his electrolarynx device. Ellen astutely set forth, pursuant to 20 C.F.R. § 416.1470, good cause for submitting the evidence “late” and argued that the new evidence was likely to change the outcome. She secured a remand for a new hearing.
Attorney Danielle Bernard represented the claimant on remand. Between the two hearings, the claimant had a second bout of cancer and stopped using his digital voice box. She informed the ALJ her client could no longer speak and only write out his answers. In response, the ALJ requested the direct testimony be submitted in writing prior to the hearing. The ALJ only took the VE testimony at the hearing. The direct testimony included the claimant’s descriptions about how often he had to clean his airway during the day, the complications he had with storing his digital voice box, and how often he interacted with peers and supervisors.
The ALJ issued a fully favorable decision, detailing the complicated routine the claimant had to follow to clean his mechanical larynx device. She concluded it would cause him to be off task far in excess of the 10% employer limit to which the VE testified. The ALJ gave great weight to the treating source opinion that Ellen had obtained. And Danielle successfully persuaded the ALJ that the claimant’s ongoing abuse of alcohol and marijuana was not material. (See Social Security Ruling (SSR) 13-2p, Evaluating Cases Involving Drug Addiction and Alcoholism.) The claimant was awarded benefits retroactive to November 2014, the date of his application.
Congratulations to Ellen and Danielle for their great advocacy.
And Attorney Mike Telfer of the Legal Aid Society of Northeastern NY (LASNNY) in Albany finally obtained a favorable decision for a claimant whose case had been remanded to U.S. District Court, but denied again at the second ALJ hearing. Mike’s next successful trip to the Appeals Council was chronicled in July 2019 edition of this newsletter. On the remand hearing, he convinced the ALJ his client met Listings 12.03 and 12.04, which is no easy feat. Kudos to Mike and his colleagues at LASNNY for standing by their client.
Of note, Mike had asked the Appeals Council to remand this case in light of the Lucia SSR (Social Security Ruling 19-1p). See the April 2019 edition of this newsletter for a discussion of SSR 19-1 and the Supreme Court decision in Lucia v. SEC, 138 S.Ct. 2044 (2018). Advocates should consider seeking remand under the SSR in any cases pending at the Appeals Council in which the hearing was held prior to July 16, 2018.