Claimant Finally Prevails at Third Hearing

March 1, 2008

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

We have previously reported on these pages that the third time is the charm.  Unfortunately for the claimants who are subjected to that many hearings - and the years of waiting in between - that is too often true.  Kate Callery of the Empire Justice Center in Rochester reports a recent victory in a case that began in 1999, and went to the Appeals Council two times before the claimant was finally found disabled.  But Kate is happy to report that the claimant was not only found disabled for SSI benefits as of the date of her application; she was also found disabled as of her 22nd birthday in 1982, and thus eligible for Child Disability Benefits (CDB – formerly known as DAC, or Disabled Adult Child benefits).  And the third ALJ had the decency to grant the claim on the record!

The claimant had previously received SSI benefits based on her seizure disorder.   She had not appealed her continuing disability review, but had instead reapplied in 1999.  At the time of first two hearings, her seizures were under control.  She was of borderline intelligence and was treated for depression. None of these impairments alone, however, were convincingly disabling.  She was also volunteering one day a week at a nursing home. Despite significant accommodations to maintain even that position, the first ALJ made much of her so-called work-activity.

Kate obtained evidence from the claimant’s supervisors at her volunteer “job” about her need for support, as well as her emotional lability and unusual affect.  She was frequently tearful and displayed dramatic mood swings.  Kate also sought corroborating evidence from the claimant’s case manager.  Finally, she obtained evaluations from the claimant’s long-time therapist, co-signed by the treating psychiatrist – a  challenge even more daunting than usual as he had just left the mental health agency!

Most significantly, Kate persuaded the therapist and psychiatrist to submit a report opining that the claimant’s long-term epilepsy had affected her emotional control, citing journal articles confirming this association between epilepsy and cognitive, emotional and behavioral changes.  They noted that the claimant had been and continued to be very labile, in ways that seriously interfere with her ability to function.  In their opinion, her emotional lability clearly would prevent her from engaging in competitive work.

That report undoubtedly convinced the ALJ that the claimant’s impairments were real.  He found her disabled based on her nonexertional limitations.  Kate reports that the time and effort spent on this unusual case were well worth the effort, as the claimant will be eligible for significant retroactive SSI benefits, as well as Title II benefits under her deceased father’s account.