Friday, August 29, 2008

More Is Better

I represent a 49 year old carpet layer whose application for disability benefits was approved without a hearing only a month after I submitted an on-the-record (“OTR”) request for a fully favorable decision. As a result, the claimant’s attorney fee was lower, and he will start receiving his benefits without having to wait two years for a hearing, which was critical because he was in desperate need of money.

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.

Myasthenia Gravis

Myasthenia Gravis (“MG”) is a chronic autoimmune neuromuscular disorder that causes voluntary muscle weakness. Common symptoms include: a drooping eyelid, blurred or double vision, slurred speech, difficulty chewing and swallowing, weakness in the arms and legs, chronic fatigue and difficulty breathing.

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

Disability Benefits & Work

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

Negotiating Disability Benefits

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.

SSA Medical Reports

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

Consultative Examinations

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. 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

Work History

Disability cases are frequently decided based upon the decision maker’s impression of the claimant’s credibility. In this regard the vocational evidence can be just as persuasive as the medical evidence.

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.