Friday, January 30, 2009

Court Blasts CIGNA LTD Benefit Termination

A federal district court judge issued a 44 page decision today that condemned CIGNA’s termination of a long term disability (“LTD”) benefit claim, which was consistent with the same type of bad faith claim decisions of CIGNA that were exposed on ABC News’ “Good Morning America.” That ABC News expose can be seen on the internet at CIGNA arrogantly contended that as long as it went through the motions of supposedly considering the evidence that Plaintiff submitted its decision had to be upheld. The Court strongly disagreed for a variety of reasons.

First, the plaintiff’s medical records showed that his condition had not improved between the time that CIGNA approved and then subsequently terminated his LTD benefits. The Court criticized CIGNA’s termination “preceded by no significant change in the claimant’s physical condition”.

Second, the Court rejected CIGNA’s assertion that it could “reject the opinions of treating physicians for any or no reason at all.” To the contrary, the Court ruled that because CIGNA failed to “cite any rational justification for its decision to discredit Alfano’s treating physician evidence, this evidence is entitled to substantial weight.”

Third, the Court ruled that CIGNA “erred in discrediting the SSA decision,” especially since “it accepted the SSA decision awarding Alfano disability benefits without question when it reduced Alfano’s initial LTD benefits award by the amount of his SSD benefits.” To make matters even worse, the Court pointed out that CIGNA forces claimants to apply for SSD benefits; otherwise, CIGNA will reduce their LTD benefits by the estimated SSD benefits. The Court further chastised CIGNA’s disregarding the SSA decision because its definition of disability was basically the same as CIGNA’s; that is, the SSA specifically found that the plaintiff was unable to do his past work or any other work as well. Therefore, the Court found the SSA decision probative of the plaintiff’s claim for LTD benefits, and gave it substantial weight.

Fourth, CIGNA has a habit of intentionally misreading its functional capacity evaluation (“FCE”) reports. Rather than relying on the actual test data, CIGNA blindly accepts the conclusion of the physical therapist who performs the FCE, even when contradicted by the test data, over the opinions of treating physicians. The Court explained that “CIGNA offers no rational reason” for doing so. Therefore, the Court rejected the FCE, and all of the medical and vocational reports by CIGNA’s doctors and vocational consultants who relied on it

Monday, January 19, 2009

Obama and Social Security Benefits

Barack Obama stated that the Social Security approval process had to be streamlined when he was running for the presidency. The Social Security Administration (“SSA”) backlog of disability claims more than doubled under the Bush Administration, and a two to three year wait for a decision is not atypical. Barack Obama stated that it is unacceptable for individuals to lose their homes or declare bankruptcy because the SSA cannot process its claims quickly enough.

Barack Obama said that because the SSA has been consistently under-funded it has resulted in unconscionable delays in initial claims determinations and hearings for individuals applying for the Social Security Disability (“SSD”) and Social Security Supplement Security Income (“SSI”) benefits. Barack Obama pledged to streamline the SSA’s application and appeals procedures by ensuring the SSA has the funding to hire judges and staff and to invest in technology to expedite final decisions.

Barack Obama specifically referred to the interests of the disabled during his pre-inaugural speeches. Let’s hope he remembers this constituency and follows through on his campaign promise for increased funding.

Thursday, January 15, 2009

“Fully Favorable” Decisions

You apply for Social Security Disability (“SSD”) benefits. Two years later, after the Social Security Administration (“SSA”) lost your file and eventually held a hearing, you receive a decision that is entitled “fully favorable”. Unfortunately, that does not necessarily mean that your troubles are over. It is not uncommon for the SSA to make an error regarding the disability onset date or application filing date, which may reduce the amount of your retroactive SSD benefits.

One of my clients received a “fully favorable” decision last April that had the correct onset date, but the wrong application filing date. This error reduced the amount of the claimant’s retroactive SSD benefits. Even though I advised Administrative Law Judge Newton Greenberg about the error at the claimant’s hearing and afterwards in writing he failed to correct it.

To preserve the claimant’s rights I sought review with the Appeals Council. In the interim, because I had so many cases where the SSA was repeatedly ignoring my pleas to pay the correct amount of SSD benefits and fees, I was compelled to file a mandamus action in federal court against the SSA. As a result of that lawsuit, the SSA finally issued a supplemental notice of award today. Although this correction resulted in no additional attorney fees being paid to me, the claimant received an additional $7,149.30.

Tuesday, January 13, 2009

SSD Secret

The Social Security Administration (“the SSA”) leads you to believe that you must be incapable of any level of work in order to receive Social Security Disability (“SSD”) benefits. However, that is not always the case.

The SSA approved today an on-the-record (“OTR”) request that I submitted for a 60 year old client who worked as a sales person for a carting company and car dealership during the last 15 years. Those jobs required him to be on feet most of the day, which classified it as “light” work. Because the OTR was approved, he will receive SSD benefits even though in this particular instance the SSA did not conclude that he was incapable of any type of work.

I argued that under the regulations the claimant had to be found disabled if he had no transferable skills, and that to find that he had transferable skills to sedentary work, “there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.” Because the SSA found the claimant could not do his past light work and had no transferable skills it agreed and concluded the claimant was disabled, without determining if he was capable of doing sedentary work.

There are a special set of guidelines called the “Grid Rules” that are a subpart appendix to the regulations. Familiarity with those guidelines is just one of the many reasons why it pays to retain an attorney experienced in this area of law when seeking your SSD benefits

Monday, January 12, 2009

Notice of Dismissal

The Social Security Administration (the “SSA”) issues a Notice of Dismissal when an Administrative Law Judge cancels a claimant’s request for a hearing (“Notice”). I frequently receive telephone calls from anxious clients after they receive a Notice. Although the Notice sounds ominous it is not necessarily a bad thing.

I submit on-the-record requests for fully favorable decisions after a claim is transferred to a hearing office (“OTR”). An OTR is a mechanism for getting disability benefits approved without having to wait for a hearing. If the OTR is grants the disability application it renders the need for a hearing meaningless. The SSA cleans its calendar by issuing a Notice.

Under the above circumstances, a Notice is a clerical mechanism to maintain record integrity, and is no reason to panic. However, if a claimant has not received an OTR approval, then a Notice is a cause for concern, and it needs to be addressed with the hearing office immediately.

Thursday, January 8, 2009

Initial SSA Decisions

The Social Security Administration delegates the responsibility for making the initial decisions on applications for Social Security Disability (“SSD”) benefits to state agencies. A decision that denies SSD benefits is called a Notice of Disapproved Claim (“Notice”). The Notice normally contains a half page explanation to justify the denial. It is more the rule than the exception that the explanation contains patently false information.

I have learned not to ignore the obvious when submitting an On-The-Record request for a fully favorable decision (“OTR”) that seeks to reverse a Notice. I find that an OTR is more likely to be approved when the defects in a Notice’s explanation are highlighted. A recent OTR approval illustrates this point.

One of my clients is a 41 year old custodian. The Notice’s explanation in his case falsely claimed that the state agency reviewed all the medical evidence submitted. However, the Notice showed that the state agency failed to review the reports and functionality assessments of the claimant’s treating doctors as well as his lumbar MRI. The conspicuous absence of the MRI was striking.

The MRI showed that every single disc is desiccated. Moreover, the MRI revealed a herniated disc at the L4-5 level indenting the L5 nerve root, a bulging disc at the L5-S1 level impinging the L5 nerve root with a superimposed disc herniation impinging the S1 nerve root. I argued that based on the state agency’s failure to consider the MRI the denial of SSD benefits had to be reversed because the MRI obviously supported the treating doctors’ opinion that the claimant could not do sedentary work.

It is impossible to know the exact reason why an OTR is approved. Nonetheless, a greater percentage of my OTRs have been approved since I started to attack the defects in the Notices. It appears that explicitly attacking the Notice’s explanation makes it easier for the hearing offices to justify approving an OTR.

Friday, January 2, 2009

Appeals Council Scolds ALJ

When the Appeals Council (the “AC”) remands a claim for Social Security Disability (“SSD”) benefits to an administrative law judge (“ALJ”), the decision is usually very terse, rarely more than a page or two. Today I received a five page remand order for one of my clients who is a former teacher.

I was retained after a federal court remanded this SSD case to ALJ Iris Rothman. The claimant’s prior attorney was ambivalent about representing the claimant because ALJ Rothman inexplicably refused to review the case objectively. Sure enough, ALJ Rothman denied the claim a second time despite overwhelming medical and vocational evidence.

Reading between the lines the AC made it clear that ALJ Rothman’s latest decision was devoid of any merit. First, unaware that ALJ Rothman has retired, the AC ordered that the matter be assigned to another ALJ. Second, the AC repeatedly remarked what the new ALJ would need to do IF the evidence that the claimant met three visual listings was rejected. In other words, the AC was indicating that the claimant met at least one of the listings. If a listing is met, then the claimant is deemed disabled without any further evaluation. Third, even if the claimant did not meet a listing, the AC noted that ALJ Rothman’s decision contradicted “grid rule” 202.06, which required that the claimant be found disabled.

Regardless of whether your hearing is before a good or bad ALJ, if you believe the denial of your SSD benefits was wrong seek a second legal opinion. While the legal process for reversing an erroneous benefits decision may take some time, benefits should be approved as long as there is supporting medical and vocational evidence