Winning Your Social Security Case- some “hidden” factors

Winning. It’s the focus of professional athletes, and lawyers, too. Winning the case is paramount. So what goes into winning a Social Security Disability (SSD) case? After all, the Government can deny your case, and you could end up with nothing. My experience is that, especially when you get to the “hearing level” which means in front of a SSD Judge, there are several, sort of “hidden” (not obvious) factors that can enter into a Judge’s thinking that you as the claimant may not immediately think about. But a Judge will look at these things:

1. Is there a long , solid work history? Yes, believe it or not, judges look at how long the person has worked before they became disabled. If the work record is spotty—some years of work, some years of not much or no work—a Judge may feel the disabled worker is not a motivated individual, and hold it against them.

2. Is there regular treatment? If a disabled individual hasn’t seen their doctors on a regular basis or stopped going, causing large gaps in the medical records, that’s a bad thing. A judge may assume their medical conditions really aren’t as severe as they allege.

3. Is the claimant seeing the right kind of doctors? Treating with MD’s who specialize in the condition that they are suffering from- good. Only seeing physician’s assistants or family doctors—bad.

4. Is the claimant honest?  Claimants who exaggerate their symptoms or try to “guild the lily” can be punished by receiving a denial. Credibility is key. The reason there is a Judge making a decision is because a Judge can look at and listen to the claimant and assess whether he/she is being truthful or not.

Judges almost always look at these “hidden” factors when deciding a SSDB case. Like the commercial says, “The More You Know……”

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30 years and counting

On August 15, 1983, I started as a young associate attorney with a Brooklyn law firm named Pasternack Popish and Burton. I had just left my first law job at a general practice firm, with the solid conviction that learning and juggling many different kinds of cases in different areas of the law wasn’t for me. Although going in I had almost no idea what practicing Workers’ Compensation or Social Security Disability law was about, specializing in just one or two areas seemed, to me, to be a better fit.

Well, I must have been right, because here I am still representing injured and disabled workers in 2013. Today marks 30 years since I started as a Workers’ Comp/SSD lawyer, and I have seen almost everything in those 30 years. One constant, however, has been my endless joy and satisfaction at what I do. I feel very blessed to have found something that has paid the bills while at the same time challenged me intellectually and allowed me to truly help those who need help. I was brought up in a home where the underdog was always exalted, and certainly in my line of work I fight for the underdog—the injured and disabled worker—every day.

Today I cross-examined a City of New York psychiatrist (read: hired gun) who examined my client exactly once and decided that although he didn’t perform any tests of any kind, he just KNOWS that my client has no psychiatric disability. This scenario could well have been in 1983 (God knows, I think this quack was doing the same thing when I started) so it just shows that although many things have changed in 30 years, many remain the same. We still in 2013 have multiple doctors who can examine the same injured worker and come to completely opposite conclusions regarding that worker’s “degree of disability”, and we still have Judges who then must decide whether that injured worker gets a lot of money, a little, or nothing at all.

It’s been a pleasure being a Workers’ Compensation and Social Security Disability lawyer for the past 30 years. I sincerely hope that I can keep fighting for the injured and disabled for many, many more.

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“Independent” Medical Examiners Chastised for Lying

In Workers’ Comp, personal injury, and other legal forums, insurance companies routinely hire “independent medical examiners” (IME’s) to defend the insurance company from the medical part of a claim. As you should know, IME’s are NOT independent. They are “hired guns” paid with insurance company money.

Recently, a Supreme Court Judge blasted the conduct of two well- known IME’s, Dr. Michael J. Katz and Dr. Robert Israel. I am motivated to write this article because I just noticed that an insurance carrier is trying to cut off the benefits of one of my Workers’ Comp clients because Dr. Michael J. Katz wrote that my client is exaggerating her symptoms.

The problem the insurance company will have when we go to the hearing at the Workers’ Compensation Board is that I will show the Judge exactly who Dr. Michael J. Katz is. And it is not a pretty picture. Just take a look at the case of Bermejo vs. Amsterdam.

In the transcripts of Bermejo v. Amsterdam, plaintiff Manuel Bermejo fell from a Baker Scaffold and suffered a severe ankle fracture that resulted in a fusion of the joint as well as a shoulder injury that required surgery. The court indicated that there was a potential verdict of “several million dollars” based upon Bermejo’s injuries. Dr. Katz, the insurance company’s IME, testified that he likely spent 10-20 minutes on his examination of the plaintiff, but a video revealed that he spent only one minute and 56 seconds examining the plaintiff and could not have made all the findings he testified about within that short amount of time. Justice Hart was concerned with the fact that not only was Dr. Katz dishonest about the amount of time he spent on his examination but also lied as to his findings.

Fact of the matter is, this alert and upstanding Judge caught onto Dr. Katz’ complete dishonesty and found that he had perjured himself in court.

Incredibly, Dr. Katz continued on performing IME exams in other cases—including the one on my client— after the Supreme Court Judge found he had lied! Judge Hart, in Bermejo, in fact, said that “It is like a wound that is festering…when is it going to stop? He is making seven figures doing IME’s. Then he comes to my (courtroom) and lies…”

Interestingly, as a result of Dr. Katz’s perjury, a mistrial was declared in the Bermejo case and the defense firms were sanctioned $10,000.00 each.

In my client’s case, I am ready to show the Workers’ Comp Judge just who Dr. Katz is. And as I said, it’s not a pretty picture. For ANYONE out there who has been examined by Dr. Katz or Dr. Israel as an IME, you should alert your lawyer ASAP so that appropriate action can be taken in your case.

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