Saturday, April 25, 2009

Avoiding SSD Remand Hearing

When the Appeals Council vacates a Social Security claim, the remand order tells the Administrative Law Judge (“ALJ”) what to do, which is almost invariably to reevaluate the evidence and hold a new hearing. I was able to avoid having a 30 year old client attend a second hearing by submitting on-the-record (“OTR”) request that the ALJ granted. The OTR argued that the claimant became disabled before he turned 22, and thus was entitled to disabled child’s benefits.

The Remand Order stated that the ALJ failed to evaluate the testimony of the claimant and his mother adequately. I explained that the claimant and his mother had already testified fully, and there was nothing new to add at a hearing. The ALJ agreed that he simply had to re-evaluate the testimony under the guidelines of the Social Security regulations, case law, and ruling, and that additional testimony was not required.

The Remand Order also stated that the ALJ did not analyze the claimant’s residual functional capacity (“RFC”) properly. In issuing his partially favorable decision after the first hearing, the ALJ determined that the claimant became disabled in 2004, so I maintained that any new medical evidence would be irrelevant. Furthermore, I pointed out that all evidence predating 2004 had already been submitted. The ALJ agreed that he simply had to re-evaluate the claimant’s RFC under the guidelines of the Social Security regulations and rulings.

I had previously secured and submitted a retrospective opinion that the claimant became disabled prior to his 22nd birthday, which was unrebutted. Since there was no evidence that the opinion was based upon any unacceptable clinical diagnostic technique, and there was no overwhelmingly compelling non-medical evidence to the contrary, I argued that there could be no “substantial evidence” to reject the retrospective opinion. The ALJ accepted that argument, and approved the OTR.

Wednesday, April 8, 2009

NYCERS Disability Retirement

A former Assistant Resident Buildings Superintendent who worked for the New York City Housing Authority retained me after NYCERS denied his application for disability retirement benefits under Article 15. NYCERS denied the application even though the claimant submitted reports from several treating doctors that stated he was unable to work. I learned today that NYCERS approved the new application that I put together for the claimant. Why did NYCERS effectively reverse its decision?

The prior application had been summarily denied based upon the conclusion of the NYCERS Medical Board, even though the Board’s examination findings were consistent with the findings of the claimant’s treating doctors. The new application demonstrated how the medical findings and conclusions precluded the claimant from performing his specific work duties and demands, which the Medical Board was unable to rebut.

The application showed how the City’s job description would be classified in the Dictionary of Occupational Titles (the “DOT)”, and that according to the DOT, among other things, a Building Superintendent required lifting up to 20 pounds and standing and walking for at least 6 hours during an 8 hour work day. I then obtained functional assessments from the treating doctors that demonstrated the claimant lacked the capacity to perform the duties and physical demands of a Building Superintendent.

The decisions of the Federal Social Security Administration (the “SSA”) and New York State Workers Compensation Board (the “WC”), which approved the claimant’s applications for benefits, while not binding were certainly persuasive. The WC standard for disability is essentially the same as NYCERS, that is, WC required demonstrating the claimant’s inability to work as a building superintendent. To receive benefits from the SSA, the claimant had to show he was not only unable to work as a building superintendent, but also that he could not even perform sedentary work. Since none of the medical evidence submitted to NYCERS revealed any improvement, I argued it would be incongruous for both the SSA and WC to determine that the claimant is unable to work as an assistant building superintendent, especially since NYCERS had even more supportive medical evidence than either of those other two agencies.

Saturday, April 4, 2009

Submitting Medical Records

Timing can be everything. When applying for Social Security Disability (“SSD”) benefits, it can make a critical difference when medical records and reports are submitted. I represent an electrician whose SSD application illustrates this point.

I obtained reports from the electrician’s orthopedist, physical therapist, and neurosurgeon. The orthopedist and physical therapist treated the claimant more frequently than the neurosurgeon. While the reports of the orthopedist and physical therapist were good, the report of the neurosurgeon was great. Since there was no question regarding the diagnosis, only the severity of the claimant’s condition, I only submitted the neurosurgeon’s report.

The claimant never saw a Social Security Administration (“SSA”) doctor, and his other doctors confirmed that they never provided any records to the SSA. The SSD application was approved yesterday in just two months' times based solely on the records and report from the neurosurgeon.

While the reports and records from the orthopedist and physical therapist were good, had they been submitted they would have watered down the strength of the neurosurgeon’s opinion. Therefore, while I have little doubt that the electrician’s application would have eventually been approved, I suspect that it would have been denied initially if all of the medical evidence would have been submitted simultaneously.

Friday, April 3, 2009

CIGNA Ordered To Pay For Its Actions

I recently blogged about Alfano v. CIGNA, where District Court Judge Gerard Lynch, who President Obama has selected to move up to the Second Circuit, reversed CIGNA’s termination of my client’s long term disability (“LTD”) benefits. The decision required CIGNA to pay $89,837.29 in past due benefits. Today, Judge Lynch ordered CIGNA to pay attorney fees, interest, and costs.

In awarding attorney fees, Judge Lynch said that “there was no sound basis for CIGNA’s termination of [LTD] benefits,” and the award was needed to deter “an incentive for potential defendants to deny even meritorious claims.” Judge Lynch added that the ABC News’ “Good Morning America” News expose, which can be seen on the internet at, is a reminder “that abuse exists and needs to be deterred.” Judge Lynch noted that my client showed “a clear entitlement to long-term disability benefits under the Plan,” and that “CIGNA attempted to defend a denial of benefits that, in the end, simply was not justified.” Consequently, Judge Lynch found that I was entitled to charge $450 an hour for my legal services, for a total of $105, 840.00.

Judge Lynch also awarded interest on the $89,837.29 in past due LTD benefits, holding that it was necessary to compensate the claimant adequately. The decision explained that: "as CIGNA had no sound basis for concluding that plaintiff’s condition – which it once recognized as sufficiently disabling to give rise to long-term disability benefits – had improved. CIGNA’s baseless conclusion
that its termination of plaintiff’s benefits was justified permitted it the unfair use of money that should have been paid to plaintiff long ago." Therefore, Judge Lynch ruled that my client was entitled to 9% interest from October 27, 2005 when CIGNA stopped paying LTD benefits through January 30, 2009, when judgment was entered. The interest amounts to $26,749.05.

Finally, Judge Lynch also awarded costs for service and filing fees, travel, postage and copying disbursements, and deposition costs, for a total of $1,576,76.

The good news from the client's perspective is that after I receive the attorney fee award, the claimant will be reimbursed the contingency legal fee.