Social Security Disability Claim – Success after Multiple Denials
May 19, 2007
I defended a hospital in this medical malpractice claim. The claimant lost oxygen for about eight minutes during a routine outpatient procedure. His attorney claimed that he needed 24-hour nursing care for the rest of his life. He was in his 50s and expected to live another 30+ years, resulting in potential damages in the millions of dollars range. We focused the defense on minimizing the damages and my mission became to prove that he did not need 24-hour nursing care and that he could still do some work in the national economy. He had filed for Social Security Disability Insurance on the basis that he could no longer do his previous job. He did not have an attorney or other representative assist him in his initial application and reconsideration. His Social Security Disability records became the mainstay of the defense. Both he and his wife, and his sister, completed activities of daily living questionnaires for the Social Security Disability examiner reviewing his claim for Social Security Disability Insurance benefits. This was part of the initial application process and everyone indicated that he spent the majority of the day by himself and could care for himself by cooking and cleaning and bathing. He could even hook up a computer, assist in paying the bills, and drive. His Social Security Disability claim was denied.
When they were filling out that application and questionnaire, you can bet none of them were anticipating that those records could be used against them in his medical malpractice civil case. This is something that claimants should be cautious about. Once we started pointing out the inconsistencies in what he and his wife were claiming in the malpractice case and what he was claiming to the Social Security Administration, the medical malpractice damages claims shrunk from $2.5 million to well below $1 million.
What is more interesting though is that after he was denied, a request for reconsideration was made on his behalf, but this only affirmed the denial. He then came up with a strategy and changed physicians beginning to regularly see a physiatrist and retaining an expert representative to assist him in his Social Security Disability Insurance benefits appeal. The physiatrist was connected to the sister somehow and understood that she was to assist him in his claim for disability benefits as she noted this in the medical chart. Thus, the foundation was begun to be laid for the claim that he could not perform any work in the economy. It took over a year to get a hearing date for the appeal of the decision. Finally, his application was granted and more than two years after his initial application was filed, he was awarded a retroactive check in the area of $80,000 and monthly disability in the area of $1700.00. My impression was that he could work, but he was morbidly obese and why would he work when he could sit back and collect those checks. He had his Social Security Disability insurance income, his medical malpractice case settlement income, and would never need to work again.