Monthly Archives: November 2013

Remand Ordered for Back Injury Claim (SSDI)

byron david conway florenceRadford v. Colvin, Acting Comm’r of Social Security (Lawyers Weekly No. 001-216-13, 17 pp.) (Davis, J.) No. 13-1021, October 29, 2013; USDC at Raleigh, N.C. (Boyle, J.) 4th Cir.

Holding: A district court did not err in its application of the Social Security Administration’s Listing 1.04A to claimant’s back impairment, but it did abuse its discretion in directing the administrative law judge to award benefits, and the 4th Circuit orders a remand to the agency for further proceedings.

The SSA has promulgated regulations containing “listings of physical and mental impairments” which, if met, are conclusive on the issue of disability. A claimant is entitled to a conclusive presumption that he is impaired if he can show that his condition “meets or equals the listed impairments.

At issue in this case is the listing that covers disorders of the spine: A claimant is entitled to a conclusive presumption that he is disabled if he can show that his disorder results in compromise of a nerve root or the spinal cord. Listing 1.04A further describes the criteria a claimant must meet or equal to merit a conclusive presumption of disability arising out of compromise of a nerve root or the spinal cord.

Claimant worked as tree trimmer and in 2002, when he was 38, he was injured lifting part of a tree at work. Over the next five years, he consulted several doctors who collectively observed – at various points in time – different symptoms of nerve root compression in claimant. An ALJ denied claimant’s 2007 claim for social security benefits, finding that his two severe impairments of lumbar degenerative disc disease and chronic obstructive pulmonary disorder did not qualify as impairments under Listings 1.04A (spine disorders) or 3.02 (chronic pulmonary insufficiency). The ALJ found claimant could not work as a tree trimmer but found he could perform other kinds of work.

The district court concluded that ALJ’s opinion failed to apply the requirements of the listings to the medical record and that the extensive medical record showed that claimant fell within Listing 1.04A because all of the required medical findings were present. The district court reversed the ALJ decision and remanded with instructions to award benefits.

On appeal, the commissioner argues the listed signs and symptoms must be simultaneously present over a period of time sufficient to establish that the impairment has lasted or can be expected to last at listing-level severity for a continuous period of at least 12 months. The commissioner modified that position somewhat at oral argument. We reject the commissioner’s invitation to read an additional proximity-of-findings requirement into Listing 1.04A.

The regulation does not specify when the findings must be present because it does not need to: The regulation already imposes a duration requirement on the claimant.  The critical durational inquiry for purposes of awarding benefits is whether the impairment has lasted or is expected to last for continuous period of at least 12 months. This language mirrors that of the statute.

We hold that Listing 1.04A requires a claimant to show only what it requires him to show: that all of the symptoms are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months. A claimant need not show that each symptom was present at precisely the same time – i.e., simultaneously – in order to establish the chronic nature of his condition. Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity. To require proximity of findings would read a new requirement into the listing that is unsupported by the text, structure, medical practice or common sense, and we decline to do so.

Although we hold the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than “reversing” the ALJ and remanding with instructions to award benefits to claimant, the district court should have vacated and remanded with instructions for the ALJ to clarify why claimant did not satisfy Listing 1.04A. the commissioner correctly notes that there is at least conflicting evidence in the record as to whether claimant satisfied the listing. It is not our province – nor the province of the district court – to engage in these exercises in the first instance.

Vacated and remanded.

When Is the Best Time to Settle a Personal Injury Case?

Is it best to settle an injury case the morning of the trial?   Or is it better to settle right after the lawsuit has been filed?Byron David Conway

The best time to settle may be earlier than you think.

One reason is the expense.

Typically, an enormous investment takes place in a case before it ever comes before a jury.

In other words, if an injured victim can settle a car crash case for $100,000 well before trial, that may be a better result than a $110,000 verdict at trial.  Attorney Byron David notes this is because by the time a case gets to trial, money has been spent for doctors, exhibits, subpoenas for witnesses, and other litigation costs.

The accounting department at The David Law Firm  has seen an increase in the amounts of money charged by treating doctors and surgeons for their testimony, since the practitioners know their testimony is required in nearly every single personal injury case throughout the United States.

Furthermore as the doctors, engineering, and other experts are paid well in advance, these monies are not refundable, and represent the majority of the pretrial expenditures.

Another reason is the time value of money.

A tax-free, lump sum now, is of more value to an injured client, than slightly additional funds a year or more down the road.

Bottom line, it costs thousands of dollars to properly try a permanent injury or long-term disability case in any court on the East Coast.  For that reason, the earlier may be the better when it comes to settling.

“Although we are ready, willing and able to try cases— and  invest money in these trials — it is sometimes in our clients’ best interest to settle before the case is submitted to the jury,” notes David.

If you or someone you care for, have been injured through no fault of your own, and have questions about the right time to settle the claim, please contact The David Law Firm at (843) 488-1415.  There are strict legal time limits for injury and disability cases.  An offer from the insurance company will not stop the clock to give you more time.