Monday, September 25, 2017

Free Medical Records for New Yorkers

On September 13, 2017, Governor Andrew Cuomo signed a bill which allows New Yorkers to obtain their medical records without having to pay a fee if they are needed for the support of an application, claim or appeal for any government benefit program. In the past, claimants applying for Social Security Disability ("SSD"), or Supplemental Income ("SSI") could be charged up to $.75 a page for their medical records by their doctors. This bill will take that financial burden off of the claimant's applying for SSD or SSI, who are usually in financial distress.

Saturday, September 23, 2017

Mental Health Parity Laws

New York and Montana both have mental health parity (“MHP”) laws. The purpose of MHP laws is to ensure that people with mental health problems are treated the same as people with physical problems. Surprisingly, Montana MHP laws provide greater protection for those afflicted with mental health issues than New York does. 

A few days ago, a federal judge in Montana ruled that Montana’s MHP law requires group disability plans to provide claimants with the same benefits for a mental illness as it would if the disability were due to a physical impairment. While New York’s MHP requires group health plans to provide equal coverage regardless of whether the impairment being treated is mental or physical, New York’s MHP does not require group disability plans to provide equal coverage. 

The difference in the States’ MHP is significant because the overwhelming vast majority of group disability plans limit benefits for 12-24 months for mental impairments. In Montana, Sand-Smith v. Liberty Life ruled that group disability insurers cannot enforce plan provisions that limit benefits if the claimant’s impairment is mental. New Yorkers currently lack the same protection. 

New Yorkers should contact Attorney General Schneiderman’s office and the State’s Department of Financial Services to advocate for expansion of the MHP law to apply to disability plans in addition to health plans.

Wednesday, September 20, 2017

OTRs to Reduce Backlog

Yesterday, The Denver Post published an editorial entitled Social Security’s lag time in disability assistance is unconscionable. The editorial noted that thousands of people die waiting for hearings. A couple of days ago, AP News published stating that, “More than 1 million Americans await a hearing to see whether they qualify for disability benefits from Social Security, with the average wait nearly two years — longer than some of them will live.

In the recent past, OTR decisions have been helpful in reducing the hearing backlog in the past. As recently as Fiscal Year 2010, senior attorneys issued more than 54,000 on-the record decisions, and OTRs were not uncommon. However, last year just over 1,000 were issued, with this year following suit. 

Senior attorney or attorney advisor’s would approve OTRs when medical-vocational rules directed awarding benefits, or when a listing was met. I had a hearing today, where the medical expert said the claimant met a listing, and the ALJ indicated that he was accepting that opinion. This case would have been approved by a staff attorney OTR several years ago, and resuming the program to allow them to issue OTRs would be an effective start to help alleviate the backlog.

Tuesday, August 22, 2017

SSD Hearing Delays

by Susan Golden

At the beginning of this year, the total wait time for a Social Security Disability ("SSD”) hearing was at an all time high of 511 days. [Link it] Fast forward to today, and that wait has increase by another 84 days, bringing the total wait time to an average of 595 days. 

As I discussed in a previous blog, due to the federal government hiring freeze and budget cuts in federal spending, SSD is backlogged with cases. There are not enough administrative law judges, attorneys or staff to handle these claims in a timely manner. 

If you are in dire need, and cannot wait two years for a hearing, then we recommend calling your Congressman or Senator to lobby on your behalf. You can also try calling your local TV news stations, like "7 On Your Side." The public needs to know how disabled people are being treated. These people worked their entire lives, and would give anything to be able to continue to do so. Nobody wants to get SSD instead of working since SSD only provides a fraction of what they were earning. No one should have to live for 2+ years without any income, and in danger of losing everything, because of bureaucratic delays.

Thursday, August 17, 2017

SSA Medical Experts

When an Administrative Law Judge (“ALJ”) schedules a hearing for a Social Security Disability (“SSD”) claimant, a medical expert (“ME”) may be asked to testify. 

According to the case law, an ME’s job is “to explain complex medical problems in terms understandable to lay examiners, not to assess plaintiff's impairments.” Nonetheless, ALJ’s almost always ask the ME for an assessment of the claimant’s restrictions and limitations, which more often than not, support the ability to work on a full time basis. Consequently, the credentials of the assigned ME should be investigated promptly in order to prepare for the ME’s cross-examination. 

I represent a 49 year old former nurse with fibromyalgia and arthritis, whose SSD application was remanded by the Appeals Council for a new hearing for a vocational expert (“VE”). On remand, the ALJ held a hearing with a VE. Afterwards, the ALJ submitted interrogatories to an ME, named Gerald Galst. I advised the ALJ that unless he was prepared to issue a fully favorable decision, then I wanted a supplemental hearing to cross examine the ME. 

I investigated ME Galst’s background, and submitted information from about ten websites where he was referred to as a cardiologist, which I used for the cross examination. After using a few of the exhibits, and Galst admitting that he was a cardiologist, that he didn’t treat fibromyalgia or arthritis, the ALJ went off the record and stated that he agreed the claimant should be found disabled. 

By making it clear that the ME was a cardiologist, and did not practice as an internist, it would have been extremely difficult for the ALJ to accept the ME’s opinion over the opinion of the treating rheumatologist.

Unum Loses

I represent a plaintiff who sued Unum after it terminated her long term disability (“LTD”) benefits. ERISA required Unum to render a decision in 45 days. Unum said that it could wait indefinitely beyond the 45 days because it was waiting for information from one of the claimant’s doctors. Rather than waiting, my client sued Unum. Unum then moved to dismiss the case, arguing that Plaintiff had to wait for Unum to make a decision. 

In McFarlane v. Unum, U.S. District Court Judge Abrams rejected Unum’s argument, and denied its motion to dismiss. That decision can found on my website in the Resources tab drop down menu for Court Decisions. The bottom line is that disability insurers cannot claim that they are waiting for information as an excuse to act in a dilatory manner. Also as a result of the decision, Judge Abrams will review Unum’s decision de novo, meaning it will not be given any deference.

Monday, July 24, 2017

Fast SSD Approvals

I represent a former road technician from Florida, and a former electrician from New York, who were approved today for Social Security Disability benefits in less than three months and less than fours months respectively. The primary complaint of both claimants was back pain, they were both over 55 years old, and neither performed sedentary work.

As usual, Social Security directed that their doctors examine the claimant, and those examinations were avoided. The treating specialists were cooperative, and promptly provided supporting reports and records. It is unclear if the approvals are indicative of a directive for approving “GRID” cases, or merely a coincidence.