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Partially Favorable Decision Issued by Appeals Council

December 17, 2010

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

After shepherding her client’s case through a long and tortuous history, Doris Cortes, a senior paralegal at the Empire Justice Center in Rochester, finally prevailed at the Appeals Council.  Doris’s client had first filed a concurrent claim in 2003, which wended its way to U.S. District Court, resulting in a voluntary remand in April of 2007.  In the meantime, the client’s subsequent applications had “inadvertently” been dismissed as duplicate applications.  (A duplicate application is an “unnecessary” application for the same benefits or same period of disability for which a previous claim has already been filed. See POMS GN 00204.028.A; HALLEX I-5-3-17.I.A.) 

Subsequent to the court remand, the ALJ issued another unfavorable decision in October 2007, denying the claim under the Medical-Vocational Guidelines based on a residual functional capacity (RFC) of “light.” The ALJ also found that DA&A (drug and alcohol addiction) was material to the claim.  While that claim was pending at the Appeals Council, the claimant filed two more Title II applications that were dismissed on res judicata and DLI (date last insured) grounds. The client was ultimately granted SSI in 2008, based on a determination that by 2007, his condition had deteriorated to the point where he could only do sedentary work, and was thus disabled under the grid since he was over 50.

The Appeals Council considered all of these issues in reaching its partially favorable decision.  It ruled that the ALJ should have found the claimant disabled as of the day before his fiftieth birthday in August 2005.  It determined that the ALJ erred in concluding that the claimant was literate or able to communicate in English, and thus relied on the wrong grid rule to deny his claim.  Rather, the Appeals Council noted that the claimant had struggled to communicate in English at the hearing, and had to rely on an interpreter.  Reports from medical providers also indicated that he was unable to communicate in English.  Additionally, all the reports completed in connection with his applications were filled out by third parties. The Appeals Council thus held that the claimant should have been found disabled as of age 50 under the “light” grid at Rule 202.09.  Since he could found disabled based on his exertional limitations, his substance abuse was not material.

Thanks to Doris’s perseverance, her client will be able to collect Tile II benefits as well as SSI, and was awarded five years of retroactive benefits.


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