Thursday, July 26, 2007

Discovery in LTD Cases

When a group long term disability (“LTD”) claim is litigated, insurance companies argue that no discovery should be allowed because the court’s decision has to be based on the administrative record, that is, the claim file, that the insurer used. The insurance companies oppose discovery because they know it will reveal evidence that they improperly decided to deny or terminate a claim.

Last week, I received a decision that rejected the insurance company’s argument that no discovery should be allowed in an LTD case, even though the magistrate judge who issued the decision had previously ruled against discovery in a similar situation. The court ruled that while no evidence had been presented to admit additional evidence outside of the administrative record, the claimant was entitled to determine who the decision makers were, why certain pieces of evidence were deemed more credible than others, and whether the administrative record was complete.

Obtaining the type of discovery approved by the court is critical for two reasons. First, the discovery helps show why the insurer’s decision was unreasonable. Second, because of what discovery is likely to reveal, it frequently pressures the insurer into settling the litigation.

Tuesday, July 10, 2007

Constant Vigilance

It typically takes about six months to get a decision from the Social Security Administration (the “SSA”) when filing an application for disability benefits. If a decision has not been received by that time, it frequently means that something has gone wrong.

Regardless of whether I submit records by certified mail, fax with confirmed receipt, by hand with time stamped copy, and even when submitted electronically using the SSA’s secured website with confirmation receipt, the SSA loses submissions. When the SSA loses evidence, it tends simply to sit on the claim.

I received a fully favorable decision today on an application that should have been decided several months earlier, but was delayed because the SSA lost evidence and sat on the application. The claim had very strong medical and vocational support. When there was no decision on the initial application after six months, I sent letters and made phone calls to learn why the claim had not been approved. About three months later, I finally received a letter from the SSA claiming that it had no record of my client’s application, so I would have to file a new application all over again.

I advised the local SSA representative that I would not begin the application all over again. I added that the fact that he had sent me a notice of disapproved claim shows that he had the file at some point, and that because he had received the certified mail request for a hearing he was required to transfer the file to the hearing office.

When two weeks went by and the file was not transferred, I notified the SSA representative that I intended to hold him personally responsible, and would commence a Congressional inquiry into his losing the application and directing that a new application be filed. I warned that if he failed to drop his demand for a new application and failed to transfer the claim for a hearing immediately, I would have the claimant’s Congressman contact the representative’s District Manager to explain how he denied the claim, but now claimed that he never had it. The file was transferred within a few days.

Once the file was transferred, I filed a request for a fully favorable decision on the record, which was granted. The claimant did not have to attend a hearing, which meant he avoided the two year delay in obtaining benefits. However, because of the local office’s actions, the claimant’s benefits were delayed several months.

Monday, July 2, 2007

Judges Are Fallible

I received a partially favorable decision from a Social Security Administrative Law Judge (the “ALJ”) today, which provided the claimant with 80% of the benefits sought. When the client called to pick up the file, I asked why. The answer, “Because the Judge said I wasn’t entitled to anything more.” The claimant was also concerned about the decision being reversed if appealed.

I explained that there were four different grounds for reversing the ALJ’s decision. The ALJ failed to follow the rules for: (1) assessing testimony, (2) determining if the claimant was presumptively disabled under a “listed” impairment, (3) evaluating medical evidence under the “treating physician rule,” and (4) using a medical expert to determine the disability onset date. I explained that additional benefits were dependent on just one of those grounds being accepted. After the claimant understood why the ALJ’s decision was faulty, and that ALJ decisions are rejected on appeal a substantial percentage of the time, the claimant decided to appeal the decision.

A claimant should insist on a detailed explanation if their hearing decision is not fully favorable. If the attorney does not think there are grounds for an appeal, get a second opinion.