Oops, CIGNA’s Done It Again

Yet another court has found that CIGNA’s terminating long term disability (“LTD”) benefits was so patently without merit that interest and attorney’s fees were awarded. CIGNA’s wrongful LTD termination and denials have become so rampant that ABC News’ Good Morning America did an expose on it. http://abcnews.go.com/Video/playerIndex?id=4724275

The facts of Gordon v. Northwest Airlines, Inc. Long-Term Disability Income Plan, which was decided a couple of weeks ago, mirror those of Alfano v. CIGNA Life Ins. Co. of New York, the case that I won a couple of months earlier. Gordon highlighted that this was not the first case where CIGNA mischaracterized medical records and erroneously asserted that a claimant’s doctor supported the claimant’s ability to sedentary work. Gordon is yet another example of CIGNA’s history of biased claims administration that, under the Supreme Court’s Metlife v. Glenn decision, requires ruling in favor of LTD claimants in closer cases.

In both Alfano and Gordon, CIGNA asked the treating doctors to complete a Physical Abilities Assessment (“PAA”), and each doctor concluded the claimant was limited to sitting less than 2.5 hours during an 8 hour day. Gordon declared that CIGNA’s conclusion that the PAA showed Gordon could do sedentary work was “manifestly false” and based “on an obvious misinterpretation,” and “simply mischaracterized” the PAA. Gordon explained that “Common sense dictates that that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary work.”

Similarly, in both Alfano and Gordon, CIGNA terminated LTD benefits based upon transferable skill analysis (“TSA”) that was based on the PAA. Gordon held that “the TSA does not explain how Gordon can do sedentary or light-duty work if he is limited to occasional sitting, standing and walking.”

Gordon ruled the claimant was entitled to interest and attorney fees because CIGNA’s “behavior toward Gordon in this case was not that of a fiduciary acting in his interests and the interests of plan participants. Rather, [CIGNA] acted like a company that first decided to deny Gordon's claim and then went looking for evidence to justify that decision. CIGNA “egregiously mischaracterized the PAA, both internally and to Gordon, to support its conclusion that Gordon could do sedentary work.” Moreover, Gordon found that the CIGNA’s medical review “were so cursory as to amount to mere rubber stamping.” Once again, those are the same allegations that the claimant made in Alfano that the court accepted.

CIGNA was required to pay attorney fees because, “The evidence in the record is overwhelming that Gordon is incapable of earning a living. Rather than view the record through the eyes of a fiduciary, [CIGNA] bent over backwards to find an excuse-any excuse-to deny benefits to Gordon.” Gordon is yet another example that illustrates CIGNA’s practice and pattern of knowingly and wrongfully terminating LTD benefits. The Court awarded attorney's fees because it held that by relying on the PAA and TSA to conclude that Gordon could work, CIGNA “acted not as a fiduciary, but as an adversary.”

Hearing Office Attorneys

It frequently helps to know the staff attorneys at the Social Security hearing offices. They can provide invaluable assistance regarding both procedural and substantive matters. I had a phone call today that illustrates how staff attorneys can help on both matters.

I called a staff attorney at the Jericho hearing office regarding an administrative remand of a Social Security Disability (“SSD”) case that had been returned to the hearing office. I wanted to learn what documentation existed from the State agency’s apparently second unfavorable decision. The staff attorney did not know, but referred me to a senior staff attorney for additional information. However, before transferring me, the staff attorney wanted to discuss a Supplemental Security Income (“SSI”) case.

Last week, an Administrative Law Judge's assistant called me to discuss avoiding a hearing on the SSI case by agreeing to accept a September 2007 onset date, which was when the claimant started treating with a neurologist. I stated that I had requested an on-the-record (“OTR”) request for a March 2007 onset, which was the onset date provided by the claimant’s pain management doctor. The staff attorney stated that when he reviewed the file, he came up with an April 2007 onset, and that the September 2007 onset came from another staff attorney who conducted a quick review prior to next week’s hearing. After a brief discussion, and review of the relevant report, the staff attorney said that he would approve the OTR, and prepare a fully favorable decision with a March 2007 onset date. Therefore, I was able to avoid next week’s hearing.

As for the SSD case, the senior staff attorney explained that the State agency has a fairly high approval rate for the new administrative remand program, and that my case may have been sent back for a hearing because only a partially favorable decision could have been made. The senior staff attorney said that, for example, a partially favorable decision could only be made if there was a request to reopen another application. It just so happens that the State agency commented that it was unable to locate the claimant’s prior application, which I asked be reopened. Thus, it is likely that the State agency sent the case back for a hearing only because it was unable to evaluate the claimant’s request to reopen his prior application, which would explain why I found no adverse review in the file.

Hearing Notice

The rules require an Administrative Law Judge ("ALJ") to schedule a hearing on at least 20 days notice to a Social Security Disability ("SSD") claimant. The purpose of the rule is to ensure that the claimant has time to make final preparations for the hearing.

It is extremely difficult to make final preparations in less than 20 days. ALJ's typically take one to two years to schedule a case for a hearing. If the claimant appears for a hearing and the treating doctors' records and reports are more than a couple of months old, then the ALJ complains that the evidence is stale. Therefore, it makes no sense to make final preparations for a hearing until receiving the hearing notice.

I recently received a call from an ALJ's assistant to schedule a hearing in 17 days. I immediately asked the ALJ to issue subpoenas for medical records that the claimant was unable to secure because he lacked the means to pay for them. After I submitted several letters, the subpoenas were issued just a couple of days before the hearing.

The day before the hearing, the ALJ's assistant confirmed that while no records had been obtained in response to the subpoenas, the ALJ intended to proceed with the hearing. I warned that if the ALJ intended to deny the claim, then I would not waive my objection to the short notice because the denial would be based on an incomplete record. The ALJ said the claimant could return for a second hearing, but I advised that my client only left his home once or twice a month because of his disability. The ALJ then said the additional evidence could be sent to the medical expert after the hearing, but I objected since that would deprive me of the right to cross examine the medical expert. The ALJ adjourned the hearing.

Appeals Council Rebukes ALJ Fier

I took over a Social Security Disability (“SSD”) claim from another attorney when it had to be appealed to federal court. The federal district court judge remanded the case because the Administrative Law Judge (“ALJ”), Seymour Fier, failed to comply with his obligation to weigh the medical evidence properly, which is common practice for him.

At the second hearing, as is his custom, ALJ Fier again ignored the supporting medical evidence. Additionally, ALJ Fier refused to recuse himself even though he was facing bias charges because his mishandling of the claim followed a practice and pattern of disregarding his legal review duties as a means to deny SSD claims. For example, ALJ Fier was required to subpoena the Social Security doctor for my cross examination, but he refused to do so.

The Appeals Council rejected ALJ Fier’s second hearing decision today. The Appeals Council indicated that ALJ Fier’s misconduct, in particular, his failure to explain the basis for failing to recuse himself, warranted assignment to another ALJ.

Unsuccessful Work Attempts

The Appeals Council remanded another decision of Administrative Law Judge (“ALJ”) Nisenewitz from the Queens Social Security hearing office. Besides the ALJ’s usual refusal to follow the treating physician rule, he also decided to ignore the rules that allow claimants to work in certain situations without forfeiting Social Security Disability (“SSD”) benefits.

An unsuccessful work attempt (“UWA”) occurs when a claimant stops working in less than 6 months because of a medical condition. During that UWA, even though the claimant is working and earning money, the claimant’s SSD benefits remain unaffected. This is a well-known concept, which I pointed out to the ALJ before, during, and after the hearing.

After working for as a dispatcher with the Fire Department for 15 years, the claimant had to stop working July 31, 2004, because of her medical conditions. However, because of her past good work record, she was allowed to return to work with special accommodations after November 6, 2006, in order to avoid losing her home and having to apply for welfare. Even with the accommodations, by April 28, 2007 the claimant was forced to stop working again because her medical condition caused her to make errors that led her supervisor to advise her to resign or face termination. Those facts are the very definition of an UWA, yet the ALJ ignored the facts.

Before making several errors at work, the claimant’s supervisor wrote a letter to the ALJ in support of the claimant’s application for disability benefits. The ALJ kept refusing to admit the evidence because he said it was irrelevant. The purpose of the letter was to show that the claimant could not perform her job in the absence of special accommodations that her supervisor had informally allowed. The claimant testified that she was unable to perform her work as well as she had before her 2004 accident. The supervisor’s letter concluded that, “If not for her excellent prior work performance I would recommend that she be removed from the platform and employment.”

The Appeals Council vacated the ALJ’s decision for failing to apply the treating physician rule. Moreover, the Appeals Council ruled the ALJ failed to determine if the claimant was entitled to an UWA, or at least SSD benefits from July 31, 2004 through November 6, 2006.

Medical Assessments

I represent a 41 year old bank operations manager whose application for Social Security Disability (“SSD”) benefits was approved today without a hearing even though she had filed another application on her own less than a year earlier that was denied. What changed?

Although it took half a dozen written requests, I finally obtained a copy of the claimant’s prior SSD file. The file failed to contain any records from one of the claimant’s two treating specialists. The file was also missing some key diagnostic tests, even though others from the same source were included. I submitted the missing records. Additionally, I obtained disability assessments from the treating specialists. It is uncertain whether it was the submission of the missing records, the medical source statements, or both that resulted in the application being approved.

Reviewing the claim file and ensuring that the proper medical records and reports get submitted not only increase the chances that an SSD application will be approved, but also increase the chances that it will be approved at an earlier stage of the disability process. The claimant had received a notice indicating that her application was being approved with a belated onset date. Another reason to retain an attorney familiar with the disability process is to ensure that the claimant does not unknowingly waive entitlement to additional SSD benefits once a Notice of Award is received.

Obama Disability Benefit

The American Recovery and Reinvestment Act (the “ARRA”) has been all over the news since President Obama signed it into law on February 17, 2009. The ARRA has a provision that is of particular import to those people who are currently receiving Social Security Disability (“SSD”) or Supplemental Security Income (“SSI”) benefits. By June 2009, the 60 million SSD and SSI beneficiaries should receive a one-time payment of $250.

Consultative Examinations

When the Social Security Administration (the “SSA”) tells a claimant to be examined by one of its doctors it is called a consultative examination (“CE”). The Social Security regulations provide very limited circumstances when the SSA can require a claimant to attend a CE. Nonetheless, the SSA directs virtually every claimant to attend a CE.

Anyone familiar with the SSA doctors knows to expect a report indicating that there is little to nothing wrong with the claimant. If a claimant fails to attend a CE, the SSA frequently denies the application on the grounds that the claimant refused to cooperate.

I regularly advise my clients not to attend CEs. I provide a detailed explanation to the SSA citing the legal reasons why a CE would be inappropriate under the circumstances. Additionally, I offer to provide whatever medical information the SSA specifies, and to facilitate a CE with a treating physician. When the SSA refuses to identify any particular medical information, and ignores my offer to arrange a CE with a treating physician, I can show that it was the SSA, not my client, who failed to cooperate.

I represent 45 year old nurse whose Social Security Disability (“SSD”) application was approved today despite two demands that she attend a CE. I strongly doubt that the claimant’s SSD application would have been approved if file contained the typical adverse CE report from an SSA doctor.

Disability & Downsizing

Just as most larger companies provide health insurance for their employees, they also provide coverage under a group long term disability ("LTD") plan . When a person leaves a company, for example when lay offs occur in our downsizing economy, coverage under the employer's group LTD plan ends.

There is no COBRA equivalent for continuing coverage under an employer's LTD plan. However, most LTD plans provide a participant with the opportunity to convert to coverage under an individual policy upon leaving the company. The ability to obtain a converted policy is frequently easier than applying for an individual policy in the open market.

An individual policy is usually superior to coverage under an employer's LTD plan. Unlike a group LTD plan, an individual policy is not subject to ERISA. ERISA is a federal law that precludes jury trials and imposes other litigation restrictions that make it more difficult for a claimant to obtain LTD benefits. Therefore, unless the prospects for future employment are exceedingly dismal, conversion rights should be exercised upon leaving a company.