Appeals Council to the Rescue

May 1, 2009

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

Although we often accuse the Appeals Council of merely rubberstamping decisions, occasionally this august body comes through in egregious cases and does the right thing. Andrea Sasala of Nassau/Suffolk Law Services sent us an example of such an intervention.

The claimant applied for benefits in December 2001, alleging an onset date of January 2001.  The date last insured (DLI) was December 31, 2002.  The first hearing was held in March 2004.  The claimant was represented by private counsel.  At that time, criminal charges were pending that would likely result in a month or two of jail time for the claimant.  The private attorney advised the claimant to accept a closed period.  A fully favorable decision was issued for a closed period.  The Administrative Law Judge (ALJ) found that there had been medical improvement.

There were two major problems with this scenario.  First, the claimant’s impairments included severe back injuries.  Although the claimant expressed a desire to go back to work, there was no medical evidence to document any change in physical condition that would warrant a realistic possibility of return to work. Second, the claimant did not understand that a closed period determination would result in no continuing benefits should he not be able to return to work, or in this case, when his three month sentence was completed.

The claimant went pro se to the Appeals Council and won a remand in July 2005 on the issue of continuing disability.  Nassau/Suffolk Law Services represented the claimant on the remand case.  A hearing was held on December 7, 2006, before the same ALJ.  The ALJ had a medical expert and vocational expert present as the Appeals Council ordered.  Both experts testified favorably.  The ALJ issued a “Partially Favorable Decision” in February 2007, based on the same closed period of disability!

An Appeals Council request was immediately filed.  After more than two years, the Appeals Council issued a reversal.  Once again, it did not agree with the ALJ’s finding that the claimant medically improved.  The rationale was that in reaching a decision that the claimant could perform light work, the ALJ relied upon the testimony of the medical expert.  However, the medical expert testified that, for the pertinent time period, the claimant’s impairments limited him to sitting for a maximum of two hours in an 8-hour day, standing and walking for a total of one hour in an 8-hour day, lifting 10 pounds frequently and an avoidance of climbing, bending and stooping.  The medical expert further opined that the claimant would miss work more than three times a month and that his condition was permanent. 

The Appeals Council noted that the medical expert's report of ongoing significant limitations was consistent with the opinion of the claimant's treating source from whom the representative has submitted new and material evidence, and that the claimant’s subjective complaints were found to be credible.  The Appeals Council agreed that the claimant was disabled for the closed period, and that the disability continued without medical improvement.  A fully favorable decision was issued with benefits to be processed for payment.

Congratulations to Andrea for refusing to take no for an answer and for renewing our hope in the Appeals Council.