Thursday, March 31, 2011

Lyme Disease

Lyme Disease is an infection caused by bacteria called Borrelia burgdorferi, which can lead to chronic encephalomyelitis. Symptoms from Lyme Disease can involve cognitive impairment, weakness in the legs, awkward gait, facial palsy, bladder problems, vertigo, and back pain.
A 39 year old woman with Lyme Encephalopathy who worked in accounts payable retained me after her Social Security Disability (“SSD”) application was denied, even though the Social Security doctor who examined the claimant admitted that, among other things, the claimant had a “cognitive disorder secondary to Lyme disease.” The claimant’s neuropsycholgist had diagnosed the claimant with dementia due to medical condition, major depressive disorder, and anxiety disorder.

The claimant’s SSD application was approved less than three months after I was retained, and five days after I submitted a request for a fully favorable decision on-the-record (“OTR”). The rapid approval was based on a functionality report that I asked the treating neuropsychologist to complete, and the results of that doctor’s neuropsychological testing. Among other things, I was able to show how the test results explained the claimant’s cognitive limitations.

Many disability adjudicators are predisposed to reject disability claims based upon Lyme Disease, and frequently even question the validity of the disease itself. When applying for SSD, a claimant with Lyme Disease should focus the application on the effects of Lyme since adjudicators predisposed against Lyme claimants may attribute the functional deficits to another condition.

Sunday, March 20, 2011

ALJ Strauss Reversed Again

This is a follow up to my January 26, 2011 post entitled “Does ALJ Strauss Try To Get Reversed?”. That post discussed how the federal courts are continually reversing the Social Security Disability ("SSD") decisions of Administrative Law Judge ("ALJ") Hazel Strauss. In short, I discussed how the decisions of U.S. district court judges reveal that Strauss has exhibited a practice and pattern of denying SSD claims by failing to comply with applicable rules and regulations.

Not surprisingly, the latest reported decision involving Strauss is yet another reversal. In Pluck v. Astrue, 2011 WL 917654 (E.D.N.Y. Mar. 9, 2011), U.S. District Court Judge Gleeson rejected Strauss’ decision, which followed the same practice and pattern of improperly rejecting and discrediting the opinions of treating physicians and testimony of claimants while improperly relying on medical expert’s testimony. Judge Gleeson ruled that Strauss selectively cherry picked evidence and cited only that evidence that contradicted the claimant’s case; ignored evidence that supported the claimant’s case; and misconstrued ambiguous evidence against the claimant. To make matters even worse, Judge Gleeson also found that Strauss violated the rules and regulations by rejecting the treating physicians’ opinions without contacting them, and relied on isolated events as an excuse to reject the claimant’s credibility. Notably, consistent with Strauss’ practice and pattern of wrongly denying claims, Judge Gleeson ruled that Strauss blindly adopted the testimony of the medical expert without explanation.

Why is it that federal district court judges keep rejecting Strauss decisions? According to Social Security’s latest disposition data, Strauss approved only 6 out of 60 cases. The national approval average for ALJs is in the 60% range, which is 600% higher than Strauss’ approval rate. This statistical data along with the federal court reversals showing that Strauss continues to violate the same rules and regulations is evidence that ALJ Strauss is biased against claimants or lacks a fundamental understanding of the rules and regulations.

In light of the statistics and federal court decisions, why hasn’t Social Security required Strauss to go for special training? How low does an approval rate have to be before action is taken? Does Social Security investigate an ALJ like Strauss when an approval rate is so aberrant, or where federal court decisions show that the ALJ repeatedly violates the same rules and regulations? While it appears that Social Security has not taken any action regarding these questions, it has seen fit to send me a threatening letter merely for raising these issues.

Wednesday, March 16, 2011

Remand To A New ALJ

I took over the Social Security Disability (“SSD”) claim for a 40 year old nurse technician with severe physical and mental impairments. After obtaining a remand, Administrative Law Judge (“ALJ”) Newton Greenberg denied her claim based upon a medical report from Mohammed Khattak, who was the doctor that examined the claimant for the Social Security Administration (“SSA”).

I advised ALJ Greenberg that the SSA removed Khattak from the panel of doctors allowed to examine claimants because the SSA determined that his reports were improperly unreliable. I further advised the ALJ that as a result of Khattak being kicked off the panel, federal courts had ruled that his medical reports were entitled to no weight. Nonetheless, ALJ Greenberg relied on Khattak’s report to deny the claimant’s application.

When I appealed to the Appeals Council, among other things, I noted that, consistent with his reliance on Khattak’s report, that according to federal court judges, ALJ Greenberg’s decisions “ignored extremely relevant evidence, misrepresented other evidence, and substituted his own judgment for that of medical experts in an analysis that at times tended toward the bizarre;” and selectively relied on facts, improperly picking and choosing only such evidence to support his determination, without considering evidence supporting the claims. The Appeal Council just rejected ALJ Greenberg’s decision, and ordered that the case be assigned to a new ALJ.

Reassignment to another ALJ was a goal of my appeal, which was filed over two years ago. However, it took so long for the Appeals Council to make a decision that ALJ Greenberg died in the interim, and as such, the reassignment order was moot. Nonetheless, if you believe that an ALJ has failed to review your case fairly, one of your remedies is to argue for reassignment.

Friday, March 11, 2011

“Secret” Child’s Benefits

If you are awarded Social Security Disability (“SSD”) benefits, the Social Security Administration (“SSA”) will send you a Notice of Award that details the past and future SSD benefits to which you are entitled. However, the SSA does not automatically tell you that you may be entitled to receive additional benefits for your children under 19 who are still in school. Nor does the SSA tell you that you cannot receive children’s benefits unless you file a separate application for them.

I represent a 46 year old HVAC mechanic who received his first SSD check today, less than five months after I filed his application. The SSA did not notify him about his right to children’s benefits, nor did they send him an application for those auxiliary benefits. The children’s benefit is usually about half of the SSD benefit.

You cannot rely on the SSA to take steps to help you secure children’s benefits. When applying for SSD benefits it is important to disclose the identities of dependents because the disclosure provides a protective filing date for those benefits.

Thursday, March 10, 2011

Unfair CIGNA Tactics Detailed

On March 7, 2011, a federal appellate court ordered CIGNA to pay a claimant long term disability (“LTD”) benefits because its unfair tactics were found to be arbitrary and capricious.

The tactics of CIGNA that the appellate court described in Salomaa v Honda follow the same pattern and practice that I have argued in my cases against CIGNA. Salomaa discussed in detail how: (1) every doctor who examined the claimant concluded he was disabled; (2) CIGNA demanded objective evidence for a medical condition where no such evidence exists; (3) CIGNA failed to consider that the Social Security Administration found the claimant disabled; (4) CIGNA shifted its reasons for denying benefits each time the claimant refuted them; and (5) CIGNA refused to identity what information it would accept to support the claimant’s claim.

Last week, CIGNA upheld its termination of one of my client’s disability benefits. Not surprisingly, CIGNA followed its usual practice and pattern of reviewing disability claims, and employed each of the five tactics identified in Salomaa. The next appeal will highlight the similarities between Salomaa and my client's claim. Notably, when I litigated Alfano v. CIGNA Life Ins. Co. of New York, 2009 WL 222351 (S.D.N.Y. Jan 30, 2009) a couple of years ago, Judge Gerard Lynch, now on the Second Circuit Court of Appeals, ruled that similar tactics by CIGNA were arbitrary and capricious, and ordered CIGNA to pay my client’s LTD benefits and attorney fees.

If you have had an LTD claim denied or terminated by CIGNA, have an attorney review it to see if CIGNA did so in an unfair manner. It is best to allow the attorney to undertake the review before exhausting your appeals with CIGNA.

Monday, March 7, 2011

LTD Policy Offsets

Most group long term disability (“LTD”) policies reduce your benefit if you receive money from other sources of disability income, such as workers compensation and Social Security Disability (“SSD”). If you are paying for group LTD disability coverage, then you should have it reviewed by an attorney to ensure it is worthwhile.

Most group LTD policies provide for a benefit equal to 50-67% of your salary. If your salary is $80,000 a year, a 60% LTD benefit would be $48,000 or $4,000 a month. If you have a child, the maximum SSD benefit could equal about $4,000 a month. Therefore, it is possible that your LTD benefit would be totally offset by your SSD benefit, and it makes no sense to pay for LTD coverage. In other words, group disability policies really misrepresent the disability benefit they provide due to offsets. Your annual Social Security earnings statement estimates your potential SSD and family benefits.

I represent a claimant with two group LTD policies. One is through her employer, and the other is through a professional associational, AICPA. The employer’s group disability policy offsets any benefit from any other group insurance coverage. This requires considering whether it makes sense to pay for both policies. For example, it could make sense if there is the belief that the AICPA is more likely to pay a benefit, or if there is a likelihood or going to work for another employer, whose LTD policy may not have such an offset. If the claimant were already disabled, then the issue would be whether an application should be filed under each policy, which might depend on whether they offer the same benefit.

It also makes sense to ask an attorney to review your group disability policy if you are leaving your current employer. Many group LTD plans allow employees to convert their LTD coverage to an individual LTD policy, and you can negotiate to exclude offsets, such as SSD, from the converted policy.

Thursday, March 3, 2011

Partially Favorable Decisions

A federal court remanded the decision of Administrative Law Judge (“ALJ”) Andrew Weiss for failing to apply Social Security Ruling (“SSR”) 83-20 properly. The ALJ found that the claimant became disabled due to his mental disorders in March 2007 because that is when he started seeing a psychologist. However, I argued that there was no evidence showing that the claimant’s condition became worse in March 2007, and there was evidence showing the claimant was disabled by January 2005.

On remand, without a hearing, ALJ Frederick Timm found the claimant became disabled as of January 31, 2005. By refusing to accept a partially favorable decision and prosecuting the case in federal court the claimant wound up receiving many additional months of Social Security Disability (“SSD”) benefits that amounted to a large five figure sum.

I received another partially favorable decision today, from ALJ Arthur Schneider. The ALJ selected a disability onset date that was based upon a report by a treating internist, even though the ALJ admitted that the internist concluded the claimant became disabled earlier at her alleged onset date. There were several other medical specialists who concluded that the claimant became disabled at her alleged onset date, including a neurologist who explained that the claimant’s condition was so severe that she met a listing 1.04 as of the alleged onset date. This claimant is also prepared to litigate in federal court in order to receive the additional SSD benefits to which she is entitled.

Tuesday, March 1, 2011

SSD While Working

Many claimants are unaware that there are circumstances where a person has the right to collect Social Security Disability (“SSD”) benefits while working. I received a decision today that illustrates this point.

I represent a 41 year old with cerebral palsy, who applied for SSD benefits at his local Social Security office on September 25, 2009. Social Security assigned the claimant a disability onset date of August 27, 2009, which is when he stopped working.

The claimant retained me when his case was scheduled for a hearing. Although he had worked for many years, his cerebral palsy had progressed, which resulted in his working only part time starting in December 2007. At the hearing, I asked Administrative Law Judge (“ALJ”) Joseph Faraguna to consider amending the claimant’s onset date to December 2007 because he had been earning less than $700 a month, which I contended was not substantial gainful activity (“SGA”). As of January 2010, SGA requires earning more than $1,000 per month, which generally precludes being found disabled.

ALJ Faraguna accepted the amended onset date, and found that the claimant became disabled in December 2007, instead of September 2009. By alerting the ALJ to the disability onset date error made by the Social Security employee, the claimant will receive more than a year and a half in additional SSD benefits.