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Progressive Diseases - How Far Back in Time Should an ALJ Review Medical Records in a Social Security Disability Claim?

Dallas, TX |

If one has a progressive disease, and the pathology of that disease contains medical records spanning years before an alleged onset date and/or the date of application, how far back in time should an ALJ be required to review the medical evidence and allow that evidence to become part of the record? For my claim, the ALJ only gave a medical expert access to the previous 3 years of my medical records, yet my onset date and date last insured were beyond those three years. My current rep doesn't seem to grasp the critical nature of this issue, so he did not bother to argue this matter during a recent ALJ hearing. How can a claimant expect to receive a fair hearing if the ALJ isn't reviewing the proper evidence and worse, isn't allowing the proper access to a ME who was the decider in my claim

By definition of a progressive disease (and SSR 83-20), it appears the rules and regulations of the admissibility of medical records is a little more lenient in regard to how far back in time the medical record should accept evidence. I have read somewhere that the ALJ usually reviews medical records up to 12 months prior to either the application date or the alleged onset date (can't remember right now), but that doesn't seem proper to me. Since a progressive disease is hard to pin point a starting date when it became disabling, shouldn't the ALJ consider ALL medical records pertaining to the pathology of that disease?

Attorney Answers 4

Posted

You really need to work this out with your attorney. If you're not happy with your attorney then you need to get a new one. But you should resist the urge to use this forum as a way to second-guess your attorney.

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Asker

Posted

Then what the hell is this forum for? If I question something from my attorney, then where else can one go to have other attorney's at least opine on if my concerns are valid or not? I'm NOT asking for another lawyer to tell me what THEY would have done or to second-guess my lawyer. I thought this forum was for other lawyers to give general advise about questions posted. There are plenty of general questions I have posted, and I'm sick and tired of everyone telling me the same boilerplate thing "go ask your attorney". Is this forum ONLY for those who don't have an attorney? If that's the case, then why would ANY claimant ever need an attorney if they can come here and get free advise? I'm not asking for "what to do", I'm asking if my concerns are valid. Common sense would surely tell me that if I have issues that are caused by my attorney, then he would be the LAST person that would be able to help me - especially when I've already described matters in which I've stated having issues with him. This forum only allows so many characters, so some questions have to be so abbreviated they don't make sense. The ONLY questions on here that I see that are ever fully answered are elementary questions that are quite redundant. I've seen more lawyer response to idiotic questions like "I hurt my elbow, am I disabled". Those types of questions seem to be what this forum is about because those types of questions get the most response. You could have easily commented on your knowledge or experience about SSR 83-20 and it would have had absolutely NO affect to your concerns about me second-guessing my rep. If my rep doesn't have the answers to these questions, then I'm stuck - I thought that's what this forum was for, but apparently it's just a place for lawyers to bump up their response numbers and gain advertising credits from AVVO. You could also have commented on your knowledge of onset dates and how they are affected by date last insured and/or conflicts of limited access to medical records. Again, I am in a position where I can't just remove my rep because I am at the AC for the second time and my rep has all but overly relied on my evidence and not enough about all the critical errors in my claim. To me, he has checked out already - in the meantime I can't just remove him from a pending decision - it wouldn't look good on anyone, and might affect the decision. While I wait, I am trying to ask questions that would either verify my concerns or for people to tell me "that's the way it is". To have people constantly tell me what I already know does nothing but aggravate an already sensitive time.

Jason Paul Steed

Jason Paul Steed

Posted

This forum (as I see it) is a good place to connect with attorneys so that you can take the discussion 'offline' and talk to 1-2 of them in more detail about your case (directly, by phone or email). It really isn't appropriate to discuss the details of your case publicly, and no lawyer can give you a good answer without lots of details -- so you're really not going to get the answers you're looking for without talking directly to an attorney, privately. Moreover, you're putting other attorneys in an uncomfortable position (professionally and ethically) because you're essentially asking us to comment on whether your current attorney is doing a good job. We can't possibly know enough detail about your case, or about what your attorney has done, to feel capable of (or comfortable with) commenting on your attorney's competence. If you really want a second opinion about your case, you need to contact an attorney (or two) directly and talk to them in more detail, instead of just posting your questions with limited characters and then expecting a detailed response online. I think it sounds like you're voicing some valid concerns -- but again, this isn't really the forum for hashing out all those concerns. You should first try to work it out with your current attorney, and if you feel you need an actual second opinion, you should contact another attorney directly. I'd be happy to talk to you myself -- but I typically handle SS cases only on appeal to federal court, because my area of focus is federal court and the appellate process. I'm sure there are other SS attorneys who practice before the SSA/ALJ who are much more knowledgeable about that part of the process than I am. Good luck!

Asker

Posted

I think the problem begins with the misconception of the purpose of this forum. I (as a claimant) view this forum as a place where one can benefit from the knowledge of lawyers who know the law of social security, and in the event a claimant (who isn't currently represented) comes across a lawyer who seems interested and willing to help, then the goal is made. I certainly don't see this website primarily as a stalking ground for lawyers to be willing to assist only those who may prove to be financially beneficial in the end. This place has always been advertised as a FREE service for those in need of such a complicated system of rules and regulations, and I think some lawyers have mistakenly used this forum as a corral to fish for new business. I have seen too many lawyers' responses in terms of "well if I can't financially profit from answering you, then I'm just going to tell you to look elsewhere." I see that a LOT in other peoples' posts, and their questions are so generic, I could have better answered their question by simply pointing them to online resources. People click on the button "Ask A Lawyer", not "Potentially Obtain A Lawyer", so I would imagine most everyone that comes to this forum is under the impression that their questions will be answered without a lawyer trying to reel them in as a new client. This tactic creates a situation where I believe some lawyers will only answer the question just enough to make the claimant have more questions. There are many times I'm simply asked for a lawyer to verify the meaning to a particular ruling, and I get the same response as you gave me "go speak to your lawyer about this". I think lawyers on here don't separate themselves as lawyers and imagine being in the shoes of a claimant. Not all claimants find themselves with competent lawyers, and the situation of obtaining another lawyer when one isn't happy isn't just a snap of the fingers. You mention something about me contacting another attorney if I'm wanting a second opinion. I've asked in several different posts if anyone knew of a service out there or even if they would be interested in giving me a second opinion (even if it was fee-based). I'm always met with the same response as you gave "if you aren't happy with your lawyer, then release him and find another." That's jumping the gun. I ask some of the questions I do trying to get an idea if my lawyer read the rules properly, but everyone converts this as me asking people to second-guess my lawyer. It's maddening; I come here to ask if anyone can give me a second opinion, but people respond that I need to search and look online for a lawyer to give me a second opinion - uh, I thought that's what I was doing. I just feel that too many lawyers on this website don't fully read half the questions they respond to. In many of my questions I have asked general questions that have absolutely nothing directly related to my claim yet they still respond with the same answer, "you need to ask your lawyer about this". The problem is, my lawyer basically stopped responding to me which lead me to getting online asking questions about his tactics and are they appropriate. When people started answering with "ask your lawyer", then it made me realize people are not reading my question all the way. How can I ask my lawyer why he's not responding to me when - he's not responding to me? My claim has been tossed around by lawyers who are in it for the quick win, and then when they realize there is just a little fighting that needs to happen, they withdraw - this creates the spiraling cycle where I am now.

Jason Paul Steed

Jason Paul Steed

Posted

I can't speak for anyone else, but my experience is that there are two types of "questions" on this site: (1) those that are pretty simplistic and can be answered easily and (2) those that can't possibly be answered without a more detailed discussion. There aren't too many in between. If I can answer the question I will. But when I tell someone they need to talk to a lawyer, I mean they need to go 'offline' and talk to a lawyer by phone or email, because what they're asking is too complicated to be discussed on this forum. And, as I mentioned, it's sometimes just not appropriate (or wise) to talk in detail about your case in a public forum. I'm sorry you're having troubles, and hope you're able to work it out. Again, if you get to the point that you need help with an appeal to federal court, I'd be happy to discuss your case in more detail.

Asker

Posted

Thank you. I didn't mean to go off on a rant. Once I get started, it's hard for me to stop. It's like a situation where one is beaten up but no one believes them (even though they can see all the bruises). I will make note of your name in the event I have to take my claim to the next step. My current rep certainly isn't qualified to go that far (I question his experience even at the hearing level). Thanks agin

Posted

Though I understand your concerns about adequately presenting your case, There is regrettably no way that you could sufficiently provide this forum with the information needed to make even an educated guess. Sa suggested, speak to your attorney. If you do not like the response, talk to another but do not sit on your hands.

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

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Posted

You mention that you have a rep but not necessarily if the rep was an attorney. If you have already been denied after your hearing and you are not satisfied with your representation you may switch representatives. Your next step would be the appeals council. This gives you another bite at the apple. You may wish to address your dissatisfaction with your rep to see if the problem can be corrected. If you lose in the appeals council, then the next step is federal court. Here you must have an attorney represent you and not a layperson rep.

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Asker

Posted

Yes, I have an attorney (who dabbles in disability law). He certainly doesn't specialize in it, so I think he's missed many critical avenues of the rules and regulations. My first disability attorney royally screwed up and had the nerve to withdraw from me after my first denial. I wrote the request for review on my own and won a remand with instructions for the ALJ to correct several errors. When the second ALJ hearing date was scheduled, I was finally able to obtain a new disability attorney. In hindsight, I've just had the bad luck of finding those lawyers who will accept almost everything, give very little effort to representation, then either walk away when it's not going well or just all but wash their hands of me. After my second ALJ hearing denial, I was able to show my lawyer where he missed arguing certain records. Apparently this lawyer is one who doesn't think a claimant has enough intelligence to have any relevant points, so everything I said went out the window. Long story short, my current lawyer made mention that my claim is very strong - so strong that I don't think my lawyer put enough effort into arguments and basically rolled over on his back when there were conflicts in my record. The conflicts came from the local SSA people entering my alleged onset date incorrectly (wrong by 8 years), and for 3 years I could never get them to correct it (even though the AC instructed the ALJ to correct this before the second hearing - which he never corrected). Even with my current lawyer failing to argue appropriately, I was able to convince him to write the appeal to the AC (this would now be the second appeal sent to the AC - I wrote the first one). My lawyer basically used a few emails of mine that I sent him after the hearing where I was complaining up and down about all the errors in my claim and I went on to describe where the ALJ went wrong, etc). I assume my lawyer agreed with all I said because why else would he use MY words as the basis of the appeal and not his own? So, my current lawyer went ahead and wrote the AC appeal, and it's been like 7 months since then. All the waiting time is maddening. Being proactive, I'm thinking ahead in the event I have to take this to the federal level. I certainly won't be letting him represent me any further, but since I am in the middle of an AC review (considering they actually review my appeal), then I don't think I can just fire my rep (even though I should because I still feel he left out critical details in his appeal). I feel as if everyone around me is making so many mistakes and I am the one who will suffer for them. What I really need is to be able to have a lawyer take a second look at EVERYTHING and let me know if I need to release the lawyer and/or report his inability to properly represent me. This is where a second opinion would really assist me. Do you know of services that would be able to take a look at my claim and let me know if my current rep is making matters worse?

Posted

Medical records that pertain to your alleged disability and pre-date a Date Last Insured (DLI) are critical records in a social security disability hearing. It is not clear to me from your post whether your attorney secured those records. Your statement that the ALJ restricted the ME's "access" to medical records does not make sense; if medical records are in the SSA file the ME is expected to address them, and your attorney should do so if the ALJ does not. It is not clear to me whether your attorney didn't do a good job, or whether you are just grousing because you got the sense that the claim was going to be denied. You need to have a frank conversation with your attorney and resolve your concerns.

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Posted

As touched on by a previous post, the ME was restricted to only 3 years of my records because of an ongoing incorrect AOD issue. My current representative failed to address ANYTHING along these errors at the second ALJ, and my emails to him asking why he didn't bring up this and that have gone unanswered. All the necessary records are in my claim, it's just the ALJ limited the ME's testimony to only cover a date range of the last 3 years (which translates to the day of my application to present). If I was only claiming SSI, I would understand maybe, but my SSDI claim should have been decided upon by ALL records in my file. I have records dating back to 1989, x-rays, etc (that ALL were skipped over from the ME's testimony). I must have that one in a million case where everything that could have gone wrong HAS gone wrong. All I want is to be able to sit with another lawyer, explain my situation, show him the evidence I have and be told whether I need to report my current lawyer, release him, or both.

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