Monday, December 29, 2008
The Second Circuit ruled that the Supreme Court's decision in Metropolitan Life v. Glenn requires the district courts to apply a new standard of review to long term disability cases. Applying this standard, the Second Circuit found that the errors Unum committed in reviewing claims, and its conflict of interest as as claim administrator and payor, warranted reversal. The court asked rhetorically, what else could have caused Unum's errors other than its conflict of interest.
The Second Circuit rejected Unum's lip service argument that it considered all of the evidence in making its decision. Perhaps more importantly, the Second Circuit ruled that Unum's cherry picking one medical report "to the detriment of a contrary report that favors granting benefits was ... indicative of an abuse of discretion."
The Second Circuit added that "Unum's history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payor in denying McCauley's claim for benefits." McCauley means that any person whose disability claim was terminated or denied by Unum now has a better chance of winning in federal court. The same applies to other insurers with a history of biased claims administration, such as CIGNA, Hartford, and others who have hidden behind the old standard of review that favored them with an unlevel playing field prior to the Glenn decision.
Saturday, December 20, 2008
I represent a 60 year old alarm system installer with back pain, whose application for Social Security Disability (“SSD”) benefits application was approved three months after it was filed. Not only did I submit the treatment from the claimant’s neurologist and neurosurgeon, but I also provided functional assessments from each, together with the diagnostic tests that each relied upon.
According to statistics from the Social Security Administration, over 60% of SSD applications are denied initially. Submitting treatment records, diagnostic tests, and functional assessments will not guarantee approval. However, the SSD applications that I submit are approved more frequently than 40% of the time, which I attribute to, among other things, submitting the three types of medical evidence.
In January, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. Even though it is very difficult for a claimant to establish the onset of a disability when it is many years prior to the filing date, I was able to get the claimant’s SSD application without a hearing.
When I read the fully favorable decision it found that the claimant became disabled December 31, 2001, and approved benefits based on the January 2008 application. However, I advised the SSA that the claimant filed prior application in February 2006 before retaining me, which alleged the same disability onset date. I also provided the SSA with the written request that I had made to reopen the prior application.
Today I received a “Reopened and Revised” Decision that awarded SSD benefits based upon the February 2006 application. The result is that the claimant will receive 23 months, nearly two years, of additional benefits
Tuesday, December 16, 2008
Different disability programs or policies use different definitions of disability. For example, you may need to show you cannot do any type of work for Social Security or Long term Disability; whereas, you may need to show you cannot do your past work for worker's compensation or disability retirement. The claim adjudicator will not assume that the doctor knows the proper definition of disability. Instead, the claim adjudicator will decide if you have the mental and physical ability to do a particular job or category of work.
Applications are frequently denied on the grounds that while a person has a medical problem, there is no evidence that it is severe enough to preclude work. To avoid this, a claimant needs to submit evidence regarding functional limitations, and one way to do is through a disability assessment.
I represent a 61 year old college educated electrician whose only impairment was a bad hip. However, the treating doctor's disability assessment stated that the claimant lacked the functional capacity to stand or walk for more than 1 hour a work day, which precludes any type of work. The claimant's application was approved, not because his doctor stated he was disabled, but because his doctor specified his limited functional ability.
Thursday, December 4, 2008
In cases before the Social Security Administration (“SSA”), as mentioned in my prior blog entry, one way to establish that a condition is severe enough to preclude work is to provide evidence that a condition meets a listing. I represent a 51 year old former real estate representative who retained me after his application for Social Security Disability (“SSD”) benefits was denied by the Stroudsburg, PA district office. Two weeks after I submitted a request for a fully favorable decision on the record (“OTR”), the SSD application was approved by the Wilkes Barre hearing office.
The OTR did not submit new medical records. Instead, I had the treating doctor complete a functional assessment that indicated the claimant met a listing, together with a brief narrative report explicitly stating that the claimant met the listing. The gist of the decision was that the claimant met the listing, and was found presumptively disabled.
Friday, November 28, 2008
overcome those problems.
In pursuing SSD benefits, it is very beneficial to submit the opinion of a treating psychologist or psychiatrist regarding what is known as a “Listing”. If a claimant meets the criteria of a “Listing,” then the claimant is considered presumptively disabled and entitled to receive disability benefits. Even if the SSA rejects the listing opinion, which can provide procedural bases for reversal, the opinion increases the likelihood that the claimant will be found disabled for lacking the mental residual functional capacity (“RFC”) to work.
I represent a 53 year former advertising sales representative afflicted with depression and obsessive compulsion disorder, who applied for SSD benefits over five years ago. The claimant retained me shortly before his hearing. I was able to secure a listing opinion cosigned by the claimant’s psychiatrist and psychologist.
The SSA found claimant disabled based upon his RFC not listing. However, both the hearing and decision were relatively brief, which leads me to believe that the listing opinion served its purpose.
Friday, November 14, 2008
A recent blog entry of mine described the case of a floor trader whose disability claim was based on uveitis. The claimant was treated by Michael Samson, who is widely renowned as one of the leading uveitis specialists in the United States. Unum approved long term disability after recognizing that it could not find a doctor capable of credibly contradicting Dr. Samson’s findings and conclusions.
Your doctor’s credentials can be just as important when seeking Social Security Disability (“SSD”) benefits. I represent a 47 year old school bus driver whose SSD application was approved in only two months. More to the point, the application was approved less than two weeks after submitting a form medical report from the claimant’s treating physician.
I have had many other older and less educated claimants with similar medical findings and conclusions whose applications were not approved until a hearing, or after an initial denial. The difference this time was that the treating physician made his credentials available. While other physicians may have credentials that are just as impressive, those facts are unknown to the analysts making the benefit determination. Therefore, when submitting medical evidence from a treating source, if at all possible, that doctor’s credentials should be provided.
The SSA found that one of my clients became disabled in 1992. In 2005, the claimant notified the SSA that he was going to work for his wife’s company, and asked the SSA to stop his SSD payments. Proof that no good deed goes unpunished, rather than thanking the claimant for telling the SSA to stop his SSD benefits, the SSA told him that he owed $40,000 in overpaid SSD benefits because he had been working for his wife’s company.
It seems that the SSA has an unwritten presumption that disability claimants work for their self-employed spouses. Based on pure speculation, the SSA asserted that the claimant had been working for his wife’s company. Despite dozens of attempts over two years the SSA never provided any evidence in response to my demand for proof that the claimant had been working for his wife.
The SSA has the burden of proving a claimant received an overpayment based on substantial evidence. Despite that burden and the absence of any evidence to support the overpayment allegation, the claimant was compelled to appear for a hearing. Yesterday, I received the hearing decision that ruled there was no overpayment based on the claimant’s tax returns and testimony.
Before contacting me, the claimant intended to see if he could negotiate a reduced overpayment. Although it took over two years, the claimant was well served contesting the overpayment.
Tuesday, November 4, 2008
The Social Security Administration (“SSA”) describes impairments that are considered severe enough to prevent a person from working. If the claimant has such an impairment, the SSA will consider him or her disabled and entitled to SSD benefits. In other words, the SSA presumes that a claimant who is afflicted with a “listed” impairment is unable to work.
Late last year, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. It is very difficult for a claimant to establish disability six years prior to the filing date. Nonetheless, the claimant’s application was approved without a hearing.
I was able to get the treating psychiatrist to provide reports explaining why the claimant met listing 12.04, which applies to bipolar and major depressive disorder. The SSA approved the SSD application based upon those reports. While the claimant may won benefits without the listing reports after a hearing, it is unlikely that the application would have been approved without the reports.
Monday, November 3, 2008
I explained to my client that there were several grounds for reversing the ALJ’s decision, and that receipt of additional benefits was dependent on just one of those grounds being accepted. Moreover, I advised my client that it was exceedingly rare for the Appeals Council to convert a partially favorable decision into an unfavorable one totally denying benefits.
Once the claimant understood why the ALJ’s decision was faulty, and that his approved benefits were not really at risk, the claimant decided to appeal the decision. Now that the Appeals Council has remanded the matter, there is a very good chance that the claimant will receive additional benefits. A claimant should ask his or her attorney for a detailed explanation if a hearing decision is not fully favorable, and should seek a second opinion if the attorney does not think there are grounds for an appeal.
Thursday, October 30, 2008
I represent a 29 year old who injured his back and left upper extremity in a forklift accident. He applied for Social Security Disability (“SSD”) benefits because his annual earnings statement from the SSA stated that he had enough work credits to receive them. However, the claimant’s SSD application was then denied on the grounds that he lacked sufficient work credits.
The claimant subsequently filed an application for Supplemental Security Income (“SSI”) benefits, which was approved. I successfully argued that the SSI application had to be back dated because the SSA’s earnings statement misled the claimant into filing an application for SSD benefits. I successfully argued that the date of the claimant’s SSD application be used as a protective filing date for his SSI application by citing the SSI regulations, 20 C.F.R. §§416.350, 416.351, and POMS SI 00601.027.
I represent 50 year old woman who stopped working as an accounting payroll clerk because of lumbar disc herniations and shoulder impairments. Her claim had been denied initially because the opinions of her arthritis specialist and physiatrist were rejected. Upon reviewing the file, I learned that each doctor had been asked to complete a form DDD-3883, which is given to treating doctors. A treating doctor’s opinion is supposed to be given controlling weight if it is well supported by clinical and diagnostic evidence.
The DDD-3883 requires, among other things, that the doctor identify the clinical findings and diagnostic tests that support his or her conclusions, which the arthritis specialist and physiatrist did. Moreover, both the arthritis specialist and physiatrist concluded that the claimant lacked the ability to perform the demands of sedentary work.
At the hearing, I argued that if the claim were denied, then it would require a determination that the form DDD-3883 was inadequate despite the fact that it provided the requisite evidence for according the opinions controlling weight. Although not mentioned in the written decision, the ALJ mentioned that it was a good point.
Friday, October 24, 2008
I represent a 55 year old woman who spent the last twenty years working as a customer service representative with a utility, where she earned a substantial salary. She retained me after her Social Security Disability (“SSD”) application was denied. Her benefits were approved yesterday. There were several things that I did to improve her claim on appeal.
I obtained records and functional assessments from the claimant’s family doctor and chiropractor. The SSA had ignored the family doctor and chiropractor because they were not a specialist and medical doctor respectively. However, under the regulations their opinions had to be given weight, and their opinions corroborated the findings and conclusions of the treating doctors. I advised the claimant to see an arthritis specialist, and it turned out that his opinion also corroborated the findings and conclusions of the treating doctors. Thus, there were now six medical opinions that supported the claimant’s inability to perform sedentary work. I also cited the case law and regulations that required special treatment for the claimant in light of her age. During the application process, the claimant turned 55, which placed her in another category from a vocational perspective that made it easier for a finding of disability.
It is highly unlikely that the claimant’s medical and vocational history would have been fully developed if she had represented herself, which would have increased the chances of her application being denied again. It is possible that the claimant’s application may eventually have been remanded and reversed, but that process could have taken years.
Saturday, October 18, 2008
There are many critical issues facing the disabled. The insurance companies have been preventing the New York State Insurance Department from implementing rules that would prevent insurers from issuing policies that provide them with discretionary authority, which authority they have been abusing routinely. The wait for a hearing for a claimant seeking Social Security Disability or Supplemental Security Income benefits is typically one to two years. These and many other issues concerning the disabled are not being discussed even though they cut across party lines. As more disabled people vote, hopefully the candidates will begin to recognize that the interests of the disabled are just as significant as any other bloc of voters.
Friday, October 17, 2008
I represent a former psychiatric nurse with vertigo whose Social Security Disability ("SSD") benefits were approved in less than five months. The key was showing that the claimant met the criteria of what is referred to as a "listed impairment". A listed impairment is a medical condition that is so serious that a person is deemed disabled if the criteria are met. Vertigo can fall under listing 2.07, entitled Disturbance of labyrinthine-vestibular function.
I was able to demonstrate that the claimant's vertigo satisfied the criteria of listing 2.07. I supplied clinical records reflecting a history of balance disturbance, lightheadedness, hearing loss, nausea and tinnitis. I also submitted rotational chair balance and platform posturography reports, which are test diagnostic teststhat confirm the vestibular labyrinth dysfunction, together with audiometric evaluation reports that established the degree of hearing loss.
Because the claimant had both clinical and diagnostic evidence to support her condition, she was able to show that she met the listing, which enabled her to receive her SSD benefits relatively quickly. Otherwise, she probably would have needed to wait until a hearing, and that would have delayed her receipt of benefits for over a year at a minimum.
Sunday, October 12, 2008
The claimant, who was referred by a traumatic brain injury (“TBI”) support group, came to me seeking SSD benefits because her TBI caused vertigo. The claimant’s family doctor performed diagnostic tests that confirmed the vertigo. After interviewing the claimant, I learned that she had other problems, including headaches, back problems and depression. I convinced the claimant to secure medical reports from her pain management specialist, neurologist and psychiatrist regarding her other impairments.
One of the records that I submitted was a report from a psychiatrist hired by the claimant’s employer to perform an independent medical examination (“IME”). I argued that the psychiatrist performed the exam at the request of a party with a vested interest in minimizing plaintiff's impairments – the claimant’s former employer's workers' compensation carrier, and therefore, his conclusion that the claimant could not work was highly probative as an admission against interest. Most ALJ’s do not pay much attention to a workers compensation IME conclusion because they say it is based upon a different standard. However, this ALJ had been a workers compensation ALJ, and recognized that IME conclusion do not normally support a claimant’s position.
The ALJ did not find the claimant’s vertigo, headaches, back pain, or depression disabling. However, the ALJ did find that the combined effect of the claimant’s vertigo, headaches, back pain, and so narrowed the range of work available to her that a finding of disabled was appropriate.
Monday, September 29, 2008
The reason for the rapid reversal is two fold. I did not wait to receive copies of the hearing exhibits or a tape of the hearing, which usually takes months or even a year. Second, knowing ALJ Hoppenfeld’s propensity for denying fibromyagia claims, which is detailed in reported case law reversing her adverse fibromyalgia decisions, I made sure to create a well documented medical record. I submitted medical reports from the claimant’s rheumatologists, internist, physical medicine and rehabilitation specialists, and podiatrist. Not surprisingly, ALJ Hoppenfeld failed to state the basis for rejecting the opinions of the claimant’s treating physicians.
ALJ Hoppenfeld had a vocational expert (“VE”) appear at the hearing. On cross examination, I got the VE to testify that, in accordance with the reports of the treating doctors, there were few, if any, occupations that the claimant could perform on a sustained basis. Incredibly, while Hoppendfeld conceded that fact, she denied the case anyway. The Hoppenfeld decision was so obviously defective that the Appeals Council apparently saw the need to reject it with all due haste.
Initially, the client thought that it might not be worthwhile applying for ADC because he would still receive the maximum family benefit between the SSD and child’s benefits. However, I explained to the client why, even if there were no monthly ADC benefits, it would still make sense for him to file for ADC for his older child.
Along with the potential for a monthly ADC benefit, after two years, the adult disabled child can begin receiving Medicare coverage. Anyone pricing health insurance premiums will realize that the approximately $100 a month cost for Medicare is well worth the trouble in applying for ADC.
Monday, September 15, 2008
The claimant retained me after an administrative law judge (“ALJ”) denied her third application claim for Social Security Disability (“SSD”) benefits. I persuaded the Appeals Council to remand the case for another hearing, and I made a motion that reopened the claimant’s prior applications. Today I received a fully favorable decision that found she became disabled because of her fibromyalgia as of 1991.
After the remand, I subpoenaed medical records that showed the claimant had been diagnosed and treated for fibromyalgia as of 1991. However, the ALJ had to be convinced that the claimant’s fibromyalgia was severe enough to prevent her from being able to do even sedentary work all the way back to 1991.
To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted reports from three treating specialists. Based upon their review of the medical records, each specialist specified a retrospective onset date that predated their treatment.
The first doctor was the rheumatologist. The rheumatologist is important because the accepted objective evidence for fibromyalgia is the criteria from the American College of Rheumatology. The second doctor was the internist. ALJ’s usually overlook internists because they are considered more of a generalist. However, their opinions are particularly important when, as here, they have been treating a relatively long time. The third doctor was the neurologist. Her opinion corroborated the other two opinions. The new reports made it easy for the ALJ to conclude that the medical evidence now showed she could not work.
Thursday, September 11, 2008
I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.
I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.
Friday, August 29, 2008
In general, experience has shown that there is a directly proportional relationship between the number of supporting opinions from treating doctors and the chances of succeeding with an OTR. This case was no different.
Besides submitting medical records from seven medical sources that supplied objective clinical findings and diagnostic evidence, I submitted functionality assessments from three different specialists, a physiatrist, arthritis specialist and neurologist. Each physician opined the claimant was unable to do sedentary work. If only one functionality opinion had been submitted it is unlikely that the OTR would have been approved.
A claimant with MG that files for Social Security Disability (“SSD”) benefits needs to be aware that the condition may qualify as a “listed” impairment. A listed impairment is a medical condition that is considered so severe that the claimant is presumptively deemed disabled. I represent a scientist who designed filters whose SSD application was approved in just three months based upon meeting the MG listing.
A claimant with MG can establish that he meets the MG listing by supplying evidence that he has difficulty speaking, swallowing or breathing, or has significant muscle weakness of the arms and leg. Thus, when requesting reports from the treating doctor, the focus should be on how the MG affects the activities mentioned in the listing.
Monday, August 18, 2008
Many people are under the misimpression that they cannot receive Social Security Disability (“SSD”) benefits during a period of time when they worked. I have a client whose application for SSD benefits was approved today, which included a fourteen month period of time during which he earned around $35,000 from four employers. There were different reasons why he remained eligible for SSD benefits.
One of the four employers was actually my client’s relative, who required little if any work from my client. I convinced the SSA that no money was received from earned income, and even if that were not the case, the income would have resulted from a sheltered work environment with little actual value.
The claimant worked for two of the employers for less than three months, which constituted unsuccessful work attempts, which do not conflict with the right to receive SSD payments. While the claimant worked for the last employer for a little over three months, the SSA was persuaded that the claimant was forced to stop working because his impairments resulted in substandard work, and thus also qualified as an unsuccessful work attempt.
When applying for SSD benefits the onset date of a disability does not necessarily equate with the last date that a person worked. There are many work situations, such as those mentioned above, where the last date worked and onset date should differ. It is essential to consider these vocational issues when filing an SSD application in order to avoid forfeiting benefits.
Friday, August 15, 2008
While there is far more latitude for structuring settlements in connection with claims under individual and group disability insurance policies and plans, disability benefits can also be negotiated where Social Security Disability are at issue.
I represent 56 year old claimant who received a partially favorable initial decision. She alleged that she became disabled on March 14, 2005, but the State agency said the evidence supported an onset date of May 1, 2007. Therefore, the only issue on appeal was when the claimant became disabled.
In order to avoid a hearing, I submitted comments and medical records in support of the claimant’s request for a fully favorable decision on the record (“OTR”). I called the staff attorney assigned to prepare the case for hearing to discuss the medical evidence and the OTR. I persuaded the staff attorney that the medical records showed that the claimant had been disabled since at least March 2006.
My discussions allowed me to present my client with two choices. The claimant could wait for a hearing where the judge could assess her testimony to determine if the subjective evidence justified the March 2005 onset date. Alternatively, the claimant could avoid the two year wait for a hearing by amending the onset date to March 2006, and immediately be approved OTR. My client chose the OTR.
The Social Security Administration (the “SSA”) sometimes asks treating medical sources to complete form DDD-3883. Since the SSA is normally required to accord treating medical sources extra weight, the DDD-3883 responses should be given more weight than the opinions of non-treating doctors. I represent a 49 year old nurse whose benefits were approved at the initial level, even though the SSA doctor concluded the claimant had the functional capacity to work, due to the way the DDD-3883 was handled.
There are three things you should do about form DDD-3883 when applying for disability that can expedite a favorable decision. First, tell your doctor to notify you if the SSA sends a DDD-3883 (or any other information request). Second, ask your doctor to send the DDD-3883 to you or your attorney, not the SSA after it is completed. Third, discuss with your doctor the type of responses that could help or hurt your claim.
The SSA sent my client’s treating doctor the DDD-3883 to complete. The doctor completed the form while the claimant waited, who then sent it to me. I asked the doctor to clarify a response. The DDD-3883 only let the doctor answer that the claimant was unable to sit for 6 hours a work day. I had the doctor specify that the claimant was actually limited to sitting for only 2 hours a work day. The SSA may have argued that it appeared my client could do sedentary work by sitting 5 hours and standing 3 hours. The treating doctor’s clarification made it clear that sedentary work was not possible.
Monday, August 11, 2008
People filing applications for Social Security Disability (“SSD”) benefits in the metropolitan area are led to believe that they must be examined by a doctor from IMA Disability Services. The Social Security Administration (the “SSA”) call that a Consultative Examination (“CE”). The truth is that CEs are permitted only in very limited situations.
There are many SSA regulations that govern CEs. The regulations specify the circumstances when a CE is permitted. The regulations also provide that the preferred source for a CE is the treating physician. I usually advise my clients not to attend a CE unless the SSA agrees to have the treating physician perform it. When the claimant refuses to go to the CE, the SSA usually threatens to deny the application for lack of cooperation.
One of two things can happen if the claimant does not go to IMA. One possibility is that the application gets denied on the ground of lack of cooperation. However, that argument always gets reversed on appeal because I document the fact that the claimant is ready, willing and able to attend a CE, as long as it complies with the SSA’s own regulations.
The other possibility is that the claim will still be approved. I represent a baker’s assistant whose SSD claim was approved in four months even though he did not attend the CE. Had he allowed IMA to examine him, his claim probably would have been denied because IMA never finds anyone disabled.
Friday, August 8, 2008
CIGNA routinely denies or terminates long term disability ("LTD") claims without any legitimate basis for doing so. The situation has become so epidemic that ABC News' "Good Morning America" just did an expose on CIGNA's unethical tactics. http://abcnews.go.com/GMA/story?id=5257491&page=1. I am currently litigating an LTD case with CIGNA in federal court that is a perfect example of CIGNA's bad faith tactics.
I deposed the CIGNA claims manager who terminated my client's LTD claim. She testified that her role as claims manager was to compare a claimant's functional limitations with the physical demands of the U.S. Department of Labor's Dictionary of Occupational Titles (the "DOT"). She then testified that she had been doing so for over a decade and has reviewed thousands of claims for CIGNA. However, she then admitted that she did not know what the physical demands are for sedentary work.
My client's doctors completed CIGNA's forms for assessing a claimant's functionality. The doctors stated that my client could not do the DOT's physical demands of sedentary work. CIGNA then decided to disregard the doctors' reports, and insisted that my client attend a Functional Capacity Evaluation ("FCE"). The FCE test data showed my client could not do the physical demands of sedentary work. I n fact, I got CIGNA's claims manager to admit under oath that she was unable to identify a single test finding from the 23 pages of FCE test data that supposedly showed my client could do sedentary work.
The case is currently being briefed on summary judgment. Not surprisingly, CIGNA is arguing that the court should not be allowed to consider the deposition testimony of its claims manager because it is not part of the administrative record. If CIGNA has denied your LTD claim be sure to retain an attorney promptly with experience in the area, who can ensure that the administrative record contains all the necessary evidence when your case proceeds to litigation.
Monday, August 4, 2008
Today I received an approval on an application for Social Security Disability benefits that I just filed two months ago. The medical evidence that I submitted was supportive, but was far from overwhelming. However, the claimant’s work history was impressive. The claimant had worked as a bus driver for the same employer for twenty-seven years.
The relevant case law provides that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. When a claimant has a long work history the court’s hold that it justifies the inference that when the claimant stopped working he or she did so for the reasons provided. The case laws holds that this is particularly true if the claimant has a long history of continuous work at the same employer. I included what the case law mentioned about work history in the claimant’s application, which is the ostensible reason for the rapid approval.
Thursday, July 24, 2008
Receiving a decision approving your Social Security Disability (“SSD”) application, or receiving your first check for SSD benefits, does not always mean that you received all of the benefits to which you are entitled.
I filed an application on April 29, 2008 for a 35 year old woman who stopped working in 1998 because of Multiple Sclerosis. On July 16, 2008, I received a letter indicating that the claimant’s application would be approved, but that letter did not mean that my work was completed because it made no reference to the application filing date.
A claimant can receive SSD benefits retroactive for only 12 months prior to the filing of an application. Therefore, the earliest date when the claimant could receive benefits was as of April 2007, assuming that she established the onset of her disability more than five months before that date. That is because there is a full five month waiting period before SSD benefits are available. I was able to establish that the claimant became disabled in May 2003.
The SSA frequently notes the wrong date in the claimant’s files for applications. Recognizing that problem, I filed the application via certified mail containing the following statement: “Note the certified mail date when inputting the application date.” Additionally, upon receipt of the July 16, 2008 letter, I faxed another letter to the SSA with delivery confirmation reiterating that I filed the claimant’s application via certified mail on April 29, 2008 under cover letter stating “Note the certified mail date when inputting the application date.”
Despite the steps taken above, I learned via telephone that the SSA did not issue the claimant’s benefits in full because it used an application date of May 2008. The result is the loss of one month’s benefits. Fortunately, I notified the SSA of the error, which it stated will be corrected. The moral is that even if the SSA issues a check or a decision that purports to be fully favorable you still need to check that the amount of the check or decision is correct.
Monday, July 21, 2008
The Supreme Court’s decision in Metropolitan Life Ins. Co. v. Glenn should result in more favorable rulings for long term disability (“LTD”) benefits. Insurance companies have routinely denied or terminated LTD benefits despite strong and even overwhelming evidence that the claimant is unable to work because of a federal law called Employee Retirement Income Security Act (“ERISA”).
Under ERISA, courts reviewing LTD claims would usually apply an “arbitrary and capricious” standard of review. Under that standard, even if the court believed the insurance company made the wrong decision in finding the claimant unable to work the court could rule in favor of the insurance company. The Supreme Court’s decision in Glenn should be interpreted as abandoning the arbitrary and capricious standard of review in favor of an “abuse of discretion” standard of review. This change in the standard of review should level the playing field to a significant extent.
Most LTD Plans are administered by insurance companies that decide if the claimant gets paid benefits, which it then has to pay. A court must now weight that conflict of interest when deciding whether the decision to deny or terminate LTD benefits was proper. The court’s evaluation should result in additional discovery, which the insurance companies have vigorously opposed because discovery usually sheds light on the impropriety of their decisions.
Significantly, the Supreme Court held that compelling the claimant apply for Social Security Disability benefits, let alone offsetting those benefits from LTD benefits, while denying or terminating LTD benefits is evidence of conflicted decision making. The insurance companies’ acceptance of the opinions of industry medical reviewers like University Disability Consortium and MES etc., and disregard of treating physician opinion, should also provide evidence of a conflicted decision making process.
Monday, July 7, 2008
While statistics show that most applications for Social Security Disability (“SSD”) benefits are denied initially, about half of my clients’ applications are approved initially. A major reason for the success can be attributed to supplying medical evidence from more than one treating doctor, which is why two heads are better than one. I represent a 55 year old truck driver, whose application was approved today only three months after I submitted his application, and less than two months after I submitted records from several of his doctors.
First, to ensure that the claim could not be rejected for a lack of “objective” evidence, I submitted a lumbar MRI that revealed herniated and bulging discs impinging the thecal sac and L4 and S1 nerve roots. The second report was a consultative narrative report from a spine specialist that detailed the claimant’s positive clinical findings, such as tenderness, muscle spasms, restricted ranges of motion, and abnormal sensation. The third report was a detailed narrative from the claimant’s pain management doctor, which detailed clinical exam findings and concluded that. “THE PATIENT IS TOTALLY DISABLED”. The last document was an EMG that revealed a chronic right L5 radiculopathy.
Submitting a combination of medical records that detail the positive clinical exam and diagnostic test findings, together with functionality opinions, maximizes the chances of securing SSD benefits without having to await a hearing.
It takes a relatively long time before a decision is made on application for Social Security Disability benefits. In the mean time, because the claimant cannot work and has no income, savings become depleted quickly, oftentimes with dire results. There may be a silver lining under such circumstances.
The Social Security Administration (the “SSA”) is supposed to give priority to certain types of claims. For example, claimants with a terminal illness are supposed to be given top priority. Also, what are referred to as “dire need” cases are also supposed to receive immediate attention.
I represent a claimant whose financial circumstances became so poor that foreclosure papers were filed against him. On June 16, 2008, I provided a copy of the foreclosure papers to the SSA. Two weeks later I received a telephone call advising me that the claimant’s application had been approved, and one week after that I received the benefit check.
There are other circumstances that can qualify for expediting claim processing. If your situation becomes perilous, the SSA should disclose if it qualifies for expedited treatment.
Wednesday, July 2, 2008
I represent a 48 years old word processor who had to show that she became disabled by her cervical and lumbar radiculopathy before 2006 in order to receive Social Security Disability benefits. The claimant’s family doctor and rheumatologist both concluded that the claimant had a less than sedentary work capacity. Their opinions were supported by their clinical records and cervical and lumbar MRIs. However, their opinions were ignored because they began treating the claimant after the onset of her disability, and her application was denied.
The case law provides that even if a retrospective opinion refers to an onset several years prior to the commencement of the treating relationship it must be given significant weight as long as it is predicated upon a medically acceptable clinical diagnostic technique. On appeal, I persuaded the Administrative Law Judge (“ALJ”) that the clinical records and diagnostic evidence showed the claimant was disabled as of her onset date, which was prior to the date when her current doctors began treating her. The ALJ then applied treating physician retrospectively, accepted their opinions regarding the onset of the claimant's inability to work, and approved her benefits.
When litigation ensues involving a claim under a group long term disability (“LTD”) plan courts are frequently reluctant to allow the claimant to introduce evidence that was not previously submitted to the insurance company that denied or terminated the benefits. Therefore, it is critical to ensure that all necessary medical and vocational evidence is supplied before the insurance company renders its final decision.
As long as the insurance company can perceive any arguable deficiency in the evidence it will resort to its default position, which is to avoid paying benefits. If there is no perceivable deficiency, then the insurance company will probably try to concoct a reason to deny or terminate LTD benefits by relying on its staff doctors or repeatedly used outside doctors to write a review rejecting the treating doctors’ opinions.
Even if a claimant furnishes evidence that reveals the insurer’s utter failure to review the evidence objectively and fairly, the insurer often ignores the obvious to deny or terminate benefits in order to require the claimant to proceed to litigation. The insurer’s goal is to reduce its liability through a lump sum “buy out” of the claimant’s claim for a percentage of its present value. That tactic is sometimes called “post-claim underwriting.”
I just had two LTD claims, one with
Since insurance companies are not going to end the practice of post claim underwriting, it is critical to ensure that the claim file includes all the necessary evidence before the insurer makes its final decision. Many attorneys will not even consider litigating a case when they have not had the opportunity to submit evidence prior to litigation.
Wednesday, June 25, 2008
Disability Insurance companies always insist on receiving extraneous information when evaluating an application for disability benefits. Sometimes they insist on tax and financial records even if the benefit is a fixed amount, completely independent of income. The insurance companies frequently demand monthly statements and certifications from the applicant’s doctors even if the doctors have made it clear that the medical condition at issue is permanent and progressive. The insurance companies cite to sections of the disability insurance policy in support of their right to compel applicants to complying with the information demands, even when admitting that the right to information does not mean that they should ask for the information.
The terms and conditions of a disability insurance policy provide a two-way street. When a disability insurer makes requests for information beyond completing the application forms, check to see that the request is encompassed by the policy. MetLife has been demanding monthly attending physician statements and financial statement from one of my clients. MetLife was unable to explain why they needed the information, but cited the policy sections that provided it with the right to the information and insisted on compliance with those terms. Additionally, MetLife requested that I allow one of its field investigators to interview my client. When I asked MetLife to cite the section of the policy that entitled it to a field interview, MetLife responded that field interviews were part of its standard practice and procedure.
My client suffers from bipolar disorder and anxiety. The thought of a field interview unnerved him greatly. Since MetLife had cited sections of the policy to demand compliance with their irrelevant financial and medical information requests, I cited the absence of a section of the policy permitting a filed interview to deny that request. MetLife has approved the claimant’s benefits, but it is possible that it would have arrived at a different conclusion if its field investigator had been allowed an interview.
I represent a claimant who worked at the World Trade Complex and suffers from anxiety and post traumatic stress disorder, which commenced after the events of 9/11. The claimant’s mental impairments progressed to the point that he stopped working in January 2005, although he was unable to perform his duties for about a year before that date.
The claimant originally thought he had a neurologic as opposed to a psychological problem. Diagnostic testing was negative and a neurologist concluded the claimant had agoraphobia in 2004. In the interim, the claimant obtained anti-anxiety medication from his internist, but did not treat with a mental health professional until 2007.
There is a Social Security ruling that addresses the onset of a disability that is nontraumatic in origin. The Ruling provides that in disabilities of nontraumatic origin, the determination of onset involves consideration of the applicant's allegations, work history, if any, and the medical and other evidence concerning impairment severity. The weight to be given any of the relevant evidence depends on the individual case. By establishing the claimant’s good work history, credibility, and retrospective medical opinion, the claimant was able to show that he was entitled to benefits before he started regular treatment with a psychologist.
Thursday, June 19, 2008
Attorneys in Social Security Disability (“SSD”) cases can get paid either by fee agreement with a $5,300 cap, or by fee petition. Many attorneys opt for the fee agreement process because it is faster, even though it may mean receiving a smaller fee. If a claimant has been represented by more than one attorney, then each must submit a fee petition, unless one of the attorneys is not seeking a fee.
I took over another attorney’s SSD case when had to be taken to federal court. I succeeded is getting the case remanded, and then won the case it was heard by the Administrative Law Judge (“ALJ”) a second time. Before the hearing the ALJ asked if the prior attorney retained an interest in the case, and I told the ALJ that he did not, and that I had submitted a letter from the prior attorney confirming that. At the outset of the hearing, I then restated on the record that the prior attorney no longer represented the claimant and was not seeking a fee. Nonetheless, the ALJ approved the prior attorney’s fee agreement, which will probably result in a delay before the SSA releases the claimant’s benefits.
To avoid potential delays, even if the record also contains a letter from the withdrawing attorney, and even if the hearing transcript contains a representation that the withdrawing attorney is not seeking a fee, it cannot hurt to submit a new letter from the withdrawing attorney reiterating his intention to waive any request for legal fees.
Wednesday, June 18, 2008
A key issue in disability benefit determinations is a claimant’s credibility. Claims adjudicators are frequently skeptical about a claimant’s credibility is he or she was self employed. The claim adjudicator assumes that the applicant may be working off the books in some capacity.
I succeeded in obtaining disability benefits for a self employed claimant in only three months by submitting evidence from third parties to substantiate the claimant’s credibility. My client was a construction contractor who had operated his own business installing doors. I submitted letters from material suppliers and subcontractors attesting to the fact that they no longer engaged in business with my client.
Even in cases where the medical evidence is strong, applications of self employment are usually denied because testimony is deemed necessary to evaluate the contention that the claimant is no longer working. However, the letters supplied by the client’s former business contacts supplanted the need for live testimony, which saved the claimant months, if not years, of waiting time.
Tuesday, June 17, 2008
If a claimant seeking Social Security Disability (“SSD”) benefits is unable to past work, then the Social Security Administration (“SSA”) has the burden of proving the claimant can do other work. The burden of proof shift can be critical to the outcome of an SSD claim.
I represent a claimant whose past occupation was working at the Postal Service under a handicapped program. Under that program, the claimant did not perform his occupation as it is normally done in the national economy. To the contrary, the claimant worked with special accommodations and extra supervision. The SSA agreed that the claimant was unable to do his pat work as it is normally done in the national economy, and therefore, had to prove that the claimant could do other work.
The claimant’s treating pulmonologist, arthritis specialist, and chiropractor opined that the claimant lacked the ability to perform sedentary work. Their opinions were supported by EMG and MRIs. The claimant’s psychologist concluded the claimant lacked the ability to perform simple work on a sustained basis, which was based on a battery of psychological testing. On the other hand, the government’s evidence consisted of a review of only some of the claimant’s medical records. The Administrative Law Judge (“ALJ”) concluded that SSA’s medical review was insufficient to prove the claimant could do other work in light of the other medical evidence, and approved SSD benefits.
If the claimant’s past work did not involve special accommodations, then the ALJ would have needed to determine if the claimant were able to do his past work. In making that determination, the ALJ could have concluded that the claimant’s medical evidence was not sufficient to support his burden of proving that he was unable to do his past work.
Friday, June 13, 2008
It is not uncommon for a person to be entitled to more than one type of disability benefit. Facts can be established in one context that can have important ramifications in connection with related disability claims. A perfect example involves a client who has claims under a group long term disability (“LTD”) plan and New York State Disability Law (“DBL”).
Four months after the claimant stopped working on the Stock Exchange because of his medical condition, he made an attempt to return to work that lasted eight days. The LTD carrier, Unum, argued that it was entitled to withhold four months of benefits on the grounds that the claimant supposedly resumed working for more than 30 days. Unum insisted that the claimant worked for more than 30 days even after being provided with a letter from the Stock Exchange proving that the claimant only accessed the building for eight days.
Unum was also the insurance company that was responsible for paying the claimant’s DBL benefits. In connection with the DBL claim, another department at Unum admitted that the claimant had only resumed working for 8 days. Confronted with its own company’s admission Unum’s LTD department was forced to concede that the claimant did not resume working for over 30 days, and finally agreed not to withhold the extra four months of benefits.
Saturday, June 7, 2008
A common basis for denying disability claims is a purported lack of objective medical evidence. The trouble is that claims adjudicators simply disregard how policies, plans or regulations define objective evidence.
I represent a 43 year old insurance claims representative who was initially denied her Social Security Disability (“SSD”) benefits on the grounds that she failed to produce medical evidence to substantiate her claim. However, nothing could have been further from the truth.
The claimant had a serious back injury, and treated with, among other physicians, a spine specialist, who finally determined that absent surgery he could not help her any further. The disability examined who denied the claim asserted that while the diagnostic testing supported the claimant’s SSD application, the spine specialist’s opinion was based on the claimant’s subjective medical complaints.
As an initial matter, the diagnostic evidence should have sufficed. MRI reports revealed a herniated disc at the L5-S1 level causing a mass effect on the S1 nerve root, and a herniated disc at the C5-6 level flattening the spinal cord, and an EMG/NCV was consistent with L5 radiculopathy. Perhaps more importantly, there were significant objective clinical findings that were overlooked. Specifically, the spine specialist’s report identified the objective clinical examination findings of decreased range of motion, paraspinous tenderness and muscle spasm, and sensory loss at the L4-5 level. I cited case law that held that the aforementioned findings constituted “objective medical findings”.
Treating doctors are in the best position to evaluate a claimant’s functional limitations because of their first hand longitudinal treatment history. Nonetheless, claims adjudicators frequently reject the opinions of the treating doctors because they purportedly base their opinions on their patients’ subjective complaints. Therefore, it is necessary to point out of all of the objective clinical findings and not only the test data when arguing that a treating doctor’s opinion should be credited.
Thursday, May 22, 2008
A Long Term Disability (“LTD”) claims administrator is usually the insurance company that issues the policy that is liable for paying disability benefits under an LTD Plan. Since approving a claim means the insurer has to pay for it, the insurer goes out of its way to deny claims. Securing LTD benefits usually entails fighting to make sure the insurance company fulfills its fiduciary obligation to pay LTD benefits when a claimant is disabled.
I represent a claimant who worked on the floor of the New York Stock Exchange (the “NYSE”). After a year long battle with Unum I had the claimant’s doctors and vocational expert rebut all of the findings and conclusions of Unum’s in house and outside medical and vocational reviews. Incredibly, after Unum approved the claim in writing and via telephone, it then contended that it had not approved the claim, and would now require IMEs and their doctors contacting the treating doctors.
I told Unum that any IME or contact with the treating doctors would have to take place with my presence or another person of my choosing. Unum then decided to forego the IME, and after I arranged and participated in the first “peer to peer” phone call, Unum stated that the claimant’s application had been approved. But, once again, Unum decided to play games.
Relying on verbal evidence from an H.R. person who did not even work while the claimant was employed at his former company, Unum asserted that the claimant worked for more than 30 continuous days in 2007, ending in April 2007. That conclusion meant that LTD benefits would be denied from December 2006 through May 2007. I filed a second appeal to insist that benefits commence as of December 2006.
Working on the NYSE requires a security card. On the appeal, I submitted a statement from the General Counsel of the NYSE averring that the claimant only worked in 2007 for an 8 day period. Faced with that undeniable evidence, Unum finally agreed to pay the claimant his full entitlement to LTD benefits.
Friday, May 16, 2008
Vocational evidence is just as important as medical evidence when applying for disability benefits. I just received an approval on an application for Social Security Disability (“SSD”) benefits after three months. The medical evidence was similar to that many other SSD applications that take several times as long to get approved. The difference was emphasizing the vocational evidence.
The claimant was 61 years old. I highlighted that when a person is over 60 years of age the regulations require “very little, if any, vocational adjustment” to another occupation. In other words, it is very hard to argue that an older person can work at a new occupation.
The claimant’s past work was medium to heavy. That was another critical piece of vocational evidence because of its application to the Social Security medical-vocational rules. Those rules provide that even if the medical evidence shows that the claimant could do sedentary work, he must be found disabled.
Lastly, the claimant had a nearly 45 year work history. The case law makes clear that a claimant with a long work history should be found credible. Essentially, the courts are saying that the good work ethic shows that the claimant would continue to work if able to do so. It was important to stress what the courts say about a lengthy work history because the regulations only focus on the last 15 years of a person’s work history.
Other claimants with medical evidence similar to that of this client have taken longer to get approved, and some were even denied initially. Letting Social Security know that you are aware of the significance of the vocational evidence reduces the chances that it will deny your application.
Tuesday, May 13, 2008
Credit Disability Insurance (“CDI”) pays a monthly benefit to a lender equal to the amount of a loan’s monthly payment if you become disabled. Like other types of disability insurance, there may be a waiting period before a benefit is paid and many of negotiable terms and conditions. CDI can apply to almost any type of loan, such as loans to cover the purchase of appliances, motor vehicles and farm equipment, as well as educational, credit card, home equity and mortgage loans.
If your CDI is denied or terminated, you can contest the decision. I represent a former firefighter whose CDI was terminated after two years on the grounds that, while he could not work as a firefighter, he could do other types of work. Since I had won the claimant’s Social Security Disability case, which required showing that he was unable to do any other type of work, I strongly advised him to appeal the decision.
Wednesday, April 30, 2008
Just because a Social Security Disability hearing decision is entitled “fully favorable” does not mean that the claimant will receive all the benefits to which he or she is entitled. Not infrequently, there is an error regarding the disability onset date or application filing date that reduces the amount of the claimant’s retroactive benefit.
I represent a 60 year old court reporter who received a “fully favorable” decision today that in fact, is not fully favorable. While the ALJ issued the decision with the correct onset date, he neglected to cite the correct application filing date. This has the effect of reducing her retroactive benefit.
At the hearing, I pointed out that April 27, 2007 was the wrong application date because I had filed it via certified mail on February 19, 2007. Not only did the receipt show that date, but an administrative exhibit confirmed that the application was submitted on February 19, 2007. Moreover, I gave the ALJ a blank application claim form sent by a person from the district office, with that person’s initials and date of July 27, 2006 handwritten on the form.
The claimant stopped working in June 2005. Therefore, regardless of whether the actual February 19, 2007 filing date, or July 27, 2006 protective filing date, is used, the claimant is entitled to additional benefits. These circumstances require a letter to the ALJ to revise the decision; otherwise, an appeal needs to be filed.
Friday, April 25, 2008
When applying for Social Security Disability (“SSD”) benefits you should identify all of your treating doctors, even those who are not treating your primary impairment. I represent a 49 year old whose biggest problem is lymphoma, but she also suffers from autoimmune disease and chronic fatigue syndrome. I was able to obtain her SSD benefits in less than two months, which I attribute to identifying all of her treating sources.
The claimant has been treating with three oncologists for her lymphoma. It is not uncommon for the Social Security Administration (the “SSA”) to deny application of claimants who have been diagnosed with lymphoma or breast cancer for example. What differed here was the claimant’s additional treatment for autoimmune disease and chronic fatigue. In addition to the oncologists, I provided the SSA with the treating source information for the three internists, five gastroenterologists, four rheumatologists, and three other doctors that the claimant has been seeing for her medical conditions.
A cynic might conclude that the disability examiner assigned to the claimant’s case simply wanted to avoid all the work required to develop the claimant’s application. However, since an approval in less than two months is relatively rare, as is a claimant who is treating with nearly 20 doctors, logic dictates that recognizing the scope of the claimant’s treatment was the reason for rapid approval. While this may be an extreme example, it remains advisable to identify every medical source who treats a condition that can impact one’s ability to work.
Wednesday, April 23, 2008
I represent a 56 year claimant whose application for Social Security Disability (“SSD”) benefits was denied even though her internist of 20 years, physiatrist, psychologist and chiropractor, all provided a very restricted residual physical and mental functional capacity. Therefore, I submitted a on-the-record (“OTR”) request for a fully favorable decision.
The hearing office said that a report from the claimant’s cardiologist indicated the claimant was able to exercise, which was deemed to be inconsistent with the claimant’s orthopedic injuries. Therefore, the hearing office said that a hearing was needed so the Administrative Law Judge could evaluate the claimant’s credibility. As a result, the OTR had not been approved, and the claimant would have to await a hearing. The current hearing back log is 18-24 months.
I asked to speak with the staff attorney reviewing the case. I pointed out that the claimant was over 55 years of age, and had a 30 year work history. I explained that the case law provides that a claimant with a long work history is entitled to an inference that when she stopped working she did so for the reasons testified to. I added that for the last 15 years of her career, the claimant was employed at a variety of occupations that were all of light work, and those jobs averaged well over $100,000 a year. By 2003, when the claimant’s medical conditions made her stop working, she was earning close to $300,000 annually. Therefore, the vocational evidence was objective proof that the claimant was credible, and thus, no hearing was needed.
The OTR was approved today. The result is that the claimant will receive her SSD benefits close to 2 years earlier than would have otherwise been the case. This is one of the many reasons why it is important to establish a rapport with the hearing office staff attorneys.