Sunday, April 15, 2018

Lourdes Marasigan

The New York State Office of Temporary & Disability Assistance, Division of Disability Determinations (the “State agency) needs to fire Lourdes T. Marasigan. I have spent years having to overturn decisions that denied Social Security Disability (“SSD”) benefits based on irresponsible reports by Marasigan. 

According to both the American Board of Medical Specialties and New York State Department of Health, Marasigan is not board certified in any specialty, went to medical school in the Philippines, and was trained as an anesthesiologist. Nonetheless, the State agency has Marasigan review every type of medical problem under the sun, including hearing loss, lumbar radiculopathy, brain injuries, vision impairments. As a result, in those rare instances where a consultative examination (“CE”) by Industrial Medicine Associates actually supports an SSD claim, Marasigan comes to the opposite conclusion. 

I represent a 53 year old former truck loader who had seven heart attacks, five stent surgeries, a triple cardiac bypass surgery, hyperlipidemia, hypertension, polycythemia, sleep apnea, and diabetes, that caused weakness, fatigue, vertigo, shortness of breath, and a grand mal seizure. The CE noted the claimant even needed to hold onto the table in the exam room. The CE concluded that the claimant was markedly limited in the ability to walk, stand, climb, or lift anything. 

It is very unusual for a CE to assert that a claimant has any marked limitation, which essentially means precluded for that activity. There is no possibly rational way to interpret the CE to conclude the claimant could stand and walk for even 2 out of 8 hours, or lift any weight for up to a third of the day. Nonetheless, Marasigan opined that the claimant could stand and walk for 6 out of 8 hours and could lift and carry 20 pounds for up to a third of the day, and could lift and carry 10 pounds for about 6 hours a day. 

The State agency denied the SSD claim based on Marasigan’s opinion, even though she never examined or even saw the claimant, and even though the claimant’s cardiologist limited the claimant to sitting for 1 out of 8 hours, standing/walking for less than 1 out of 8 hours, and lifting and carrying somewhere between 0 and 5 pounds for up to a third of the day. The claimant’s internist provided similar restrictions. The bad news was that even though every doctor who examined the claimant, included the CE, provided restrictions that precluded the claimant from any full time activity, the State agency denied the claimant SSD benefits. 

The even worse news was that the case was reconsidered by the State agency quality control, which is fairly rare, yet the claim still was denied. The average wait for a hearing is now well over 600 days. The good news is that rather than remaining idle all that time, the hearing office reviewed the claim about a month later, and reversed the decision.

There simply is no excuse to continue to spend the State agency’s limited resources by employing non-examining doctors, with inapt medical qualifications or backgrounds, to review SSD claims. That injudicious expenditure of resources then wastes the hearing office’s resources too.

Saturday, April 14, 2018

Lump Sum Settlements

Disability insurers sometimes will offer a lump sum to a claimant in lieu of continuing to receive a monthly benefit. Insurance companies do so for one reason – to increase their profits. The offers are never in the claimant’s favor because the insurance company is operating in its self-interest, not yours. 

Insurers make unfair offers by misrepresenting that they are offering the present value of the claimant’s future benefits. Present value is the time value of money. If you win a million dollar lottery, the lump sum you can get will be less than a million dollars. The theory is that you can invest the lump sum, which over time would equal a million dollars. 

The lump sum settlement that insurers offer use an interest rate that is too high to represent the present value of the future benefits. The higher the interest rate used, the smaller the lump sum. There is an easy way to prove this if you get a lump sum offer. Ask the insurer what interest they used to calculate the present value of your future benefits. Then tell the insurer that you will accept the lump sum if they purchase an annuity for you at that interest rate. The insurer will tell you that no such annuity is available in the market. 

I represent a claimant who was offered a lump sum in 2014 by CIGNA. Among other things, I advised the claimant that the interest rate used to calculate future benefits was too high. The claimant rejected the offer. 

CIGNA terminated the claimant’s benefits four years later. CIGNA was unable to identify any medical test, exam finding, or symptom that had changed. The case settled for much more than the 2014 offer, even though there was now four fewer years of future benefits. 

If you are currently receiving monthly disability benefits, and the insurance company offers you a lump sum settlement, make sure that you have the offer reviewed by your financial consultant or attorney. Chances are that the settlement is not worth it.

Tuesday, April 10, 2018

Partially Favorable Decisions

The State agency regularly issues partially favorable decisions (“PFD”) when making initial determinations on Social Security Disability (“SSD”) applications. A PFD should almost always be appealed as this could result in the receipt of substantial additional benefits.  

The first step in appealing a PFD is to review the documents in the eFolder to see if there is one that explains why a later onset date was chosen. Many times it seems that there is absolutely no reason for the delayed onset date. Sometimes there is no document in the eFolder that provides a reason why the State agency issued the PFD. Sometimes, a specific explanation is provided. 

I represent a former carpenter with hand and knee impairments. The State agency issued a PFD based on the claimant turning 55 under the“Grid” rules, instead of when he alleged he became disabled while he was 54 years old. I appealed. At the claimant’s hearing, I questioned him in detail about the treatment records for the 10 month period prior to the PFD. After about 25 minutes, before I could complete the examination, the ALJ agreed that I had established the claimant was disabled from work during that 10 month period. The result was that the claimant will receive nearly an additional year of SSD benefits.

Wednesday, April 4, 2018

No Help for SSD Backlogs

There is no end in sight for the continued backlog of disability cases at the Social Security Administration. It lacks the funding to hire more ALJ's and staff, and to update their antiquated system. Without the funding, the wait times will continue to grow and cause extreme hardship for the people waiting for decision on their claims.

Monday, March 12, 2018

Fast SSD Approval

We represent a 59 year old carpenter with shoulder and hand problems, whose Social Security Disability (“SSD”) benefits were approved in less than three months. Given the cutbacks to the agencies processing SSD claims, the quick approval was somewhat unusual. 

With the claimant’s help, we were able to obtain and submit treatment records, diagnostic tests, and a narrative report that supported the claimant’s application. The narrative report included restrictions and limitations that described the claimant’s functionality, symptoms, treatment, and supporting objective findings. Consequently, the claimant was not asked to undergo a consultative examination, which frequently is the basis for denying SSD applications.

Vocational Experts

At a Social Security Disability (“SSD”) hearing, an administrative law judge (“ALJ”) can ask a medical expert, vocational expert (“VE”), both, or neither to testify. In some circumstances, it may be advisable for a claimant to retain their own VE

I represent a 37 year old former case manager for the State Court system with migraines, neck and back problems, and mental impairments, whose SSD application was approved today, largely because she had retained a VE. I had advised the claimant to retain a VE for two reasons. First, many ALJs find it difficult to account for migraines. Second, the claimant also filed a NYSLERS claim, and that entity does not use VEs when evaluating claims. 

There are relatively few VEs locally who are familiar with the SSD process, and many of them also work for Social Security Administration (“SSA”), which was true for the VE that the claimant retained. After bringing the VE’s report to the attention of one of the staff attorneys at the SSA hearing office, he advised me that he would recommend an OTR, which the ALJ approved today. 

The ALJ’s decision gave great weight to the opinions of the claimant’s orthopedist and neurologist, who had provided diagnostic tests and treatment records to support their opinions. However, that is not unusual, yet very few cases now get approved OTR. The ALJ’s decision also gave great weight to the VE’s opinion that there was no work that the claimant could perform full time. That distinction indicates that it was the reason why the ALJ found an OTR was justified.

Monday, March 5, 2018

Disability & Medicare

It is important to remember that after you become eligible for Social Security Disability (“SSD”) benefits, you can also receive Medicare. Since many claimants get their health insurance through their employers, which terminates after they stop working, Medicare becomes vitally important. 

The lack of health insurance can also affect your ability to obtain SSD benefits. I represent a 58 year old claimant from Florida for his SSD claim. He had been a carpeting foreman and had developed shoulder and ankle problems. His internist, podiatrist, and orthopedist provided reports to support the SSD application. 

The State agency asked if the claimant was going to have surgery on his shoulder. I advised the State agency that the claimant could not afford to have the surgery because he had no health insurance. Shortly thereafter, the claimant’s SSD benefits were approved. 

When SSD benefits are approved, you are automatically enrolled in Medicare after you get SSD benefits for two years. The two parts of Medicare that you receive are hospital insurance and medical insurance.