Tuesday, May 31, 2011

Acquiring Work Skills

To be eligible for disability benefits, a person must be unable to engage in substantial gainful activity (“SGA”). The monthly SGA amount for 2011 is $1000. Understanding SGA can help expedite an award of disability benefits.

I represent a 50 year old claimant who worked as a girl scout leader on a very limited basis, roughly 3 hours a day, 3 days a week, earning about $200 a month. Her claim for Supplemental Security Income benefits was denied on the grounds that she could perform that past work.

The Dictionary of Occupational Titles (“DOT”) classifies skills that can be acquired for each occupation. The closest analog in the DOT to a girl scout leader is Child Monitor 301.677-010, which only has a Specific Vocational Preparation of 3, which means it can take up to three months to acquire that occupation’s skills. There was no evidence that the claimant worked as a girl scout leader long enough to acquire any skills. Moreover, since the claimant failed to work at SGA levels, it also supported the argument that the claimant had no relevant past work.

Since the claimant was over 50 without any past relevant work, the Medical-Vocational Rules required that she be found disabled even if she had the ability to perform sedentary work. The hearing office approved the claimant’s application on-the-record based on that argument. In the absence of the vocational arguments involving the DOT and SGA the claimant probably would have needed to wait for a hearing to be approved.

Wednesday, May 25, 2011

Court Rejects CIGNA LTD Termination

Life Insurance Company of North America is a CIGNA company. In Jones v. Life Ins. Co. of N. Amer., which was decided last Friday, U.S.D.C. Judge Michael Telesca ordered CIGNA to pay the plaintiff's long term disability ("LTD") benefits that CIGNA terminated.

As has become customary, CIGNA terminated the LTD benefits by ignoring the medical records and reports from the treating physicians, the side effects of the plaintiff's medications, findings and opinion of the plaintiff's vocational expert, and decision approving the plaintiff's Social Security Disability benefits. Instead, as usual, CIGNA relied on the opinion of its doctor, a functional capacity evaluation, and transferable skill analysis, each of which was inconsistent with the medical records.

Judge Telesca found that CIGNA arbitrarily refused to credit the plaintiff's reliable medical evidence. To make matters even worse, Judge Telesca ruled that CIGNA "clearly" "cherry-picked selective items of submitted evidence in order to support its decision that the Plaintiff was not disabled under the Plan."

As exposed on ABC Good Morning America, CIGNA has a history of improperly handling LTD claims. If CIGNA has denied or terminated your LTD benefits, call The Law Offices of Jeffrey Delott for a free consultation.

Friday, May 20, 2011

Disability Benefits & Substance Abuse

In 1996, Newt Gingrich and the Republican’s released the “Contract with America,” which included amendments to the Social Security Act. One change was precluding claimants from being eligible for Social Security Disability (“SSD”) benefits or Supplemental Security Income (“SSI”) benefits if drug or alcohol addiction was a “material factor” preventing the claimant from working. In other words, a claimant was not entitled to disability benefits unless his mental or physical limitations would remain disabling even in the absence of drugs or alcohol.

A woman diagnosed with bipolar disorder retained me after her SSD application was denied. At the 1996 U.S. Psychiatric & Mental Health Congress, Kathleen Brady, M.D., Ph.D., an associate professor of psychiatry at the Medical University of South Carolina, reported that "substance abuse occurs in 30% to 60% of patients with bipolar disorder and is more likely to coexist with bipolar illness than with any other Axis I psychiatric disorder." Some of the claimant’s medical records indicated that she had a history of alcoholism.

I was notified today that the claimant’s application was approved based upon the on the record (“OTR”) request I submitted for a fully favorable decision. As a result, the claimant will not have to wait for a hearing to be scheduled. Along with additional medical records and reports, I obtained a drug and alcohol (“DAA”) statement from the claimant’s psychiatrist, all of which were included with the OTR. The OTR decision highlighted that the DAA statement confirmed that the claimant remained disabled notwithstanding any history of alcoholism.

Whenever any disability involves records reflecting some type of substance abuse, it is advisable to get the treating sources to provide a DAA statement explaining how the substance abuse is not a material factor contributing to the claimant’s disability.

Thursday, May 19, 2011

SSD Approved In 2 Months

I represent a 60 year maintenance technician with orthopedic and heart problems from Pennsylvania whose Social Security Disability ("SSD") application was approved two months after it was filed. I submitted reports from the treating sources indicating that the claimant had, at best, a sedentary work capacity.

There appear to be two possible reasons for the rapid approval. First, even if the claimant had a sedentary work capacity, based upon the claimant's adverse vocational factors he would have to be found disabled under the "medical-vocational rules." Second, I made it clear to the disability analyst that before I would permit the claimant to attend a consultative examination by their doctor, which is the usual basis for denying an SSD claim, they would first have to seek the medical information they claim was lacking from a treating source.


Endometriosis is a condition in which bits of tissue from the lining of the uterus grow outside the uterus. It causes swelling and inflammation, cramps, fatigue, chronic pelvic or back pain, and the formation of scar tissue.

A 41 year old former police officer with endometriosis, who applied for Social Security Disability ("SSD")in 2009, asked me to represent her after her claim was scheduled for a hearing. Since an SSD application based on endometriosis is relatively unusual, I secured a narrative report from the claimant's gynecologist that established a 20 year treatment relationship that included a dozen surgeries for the endometriosis. Additionally, the gynecologist stated that the claimant's condition was debilitating.

The endometriosis diagnosis was indisputable. The only issue was whether the condition was severe enough to prevent the claimant from working. By establishing that he had a 20 year treatment relationship with the claimant that included 12 surgeries, the gynecologist's opinion that the claimant could not work due to debilitating pain was given controlling weight. It is possible that had the claimant understood the need for submitting the type of report that I obtained from her gynecologist, she may have been able to avoid the hearing, which took place nearly a year and a half after she filed her SSD application.

Tuesday, May 17, 2011

Raising The Retirement Age

In 1983, Congress justified raising the retirement age from 65 up to 67 years on improvements in healthcare and increases in longevity. At that time, the average life expectancy in the United States was 74.5 years. A quarter of a century later, in 2009, the average life expectancy here increased by four years to 78.7. Last Friday, we learned that the funds for Social Security and Medicare will run out sooner than expected. The combination of continued increases in longevity and decreases in trust funds will likely result in Congress raising the retirement age again, just as it did in 1983.

How would an increase in the retirement age affect Social Security Disability (“SSD”) benefits? For those over 50, it is frequently easier to secure SSD benefits for those who do not have sedentary jobs. Essentially, those with desk jobs will subsidize to some extent those people who have more physically intensive occupations.

Regardless of the nature of one’s occupation, there is increasing uncertainty about the availability of funds to pay SSD benefits, and amount of SSD benefits to which a person may be entitled. There may even be needs testing to receive SSD benefits in the future just as there currently is needs testing to receive Supplemental Security Income benefits.

One way to mitigate the effects from the potential unavailability of SSD benefits is to purchase an insurance policy. Just as you can purchase life, health, or car insurance, you can also purchase disability insurance. Even if you are covered by a group disability policy or pension fund through work it is a good idea to purchase an individual disability insurance policy. If you are considering buying disability insurance, then make sure that you have the policy reviewed by an attorney who has experience litigating them before you make the purchase.

Tuesday, May 3, 2011

No More Paper Checks

The Treasury Department is replacing paper checks with direct electronic transfers effective May 1, 2011 for new applicants of Social Security, Veterans Affairs or other federal benefits. New applicants for federal benefits need to provide their bank’s routing number and account number, which should be located on the bottom of a personal check. People currently receiving federal benefits by paper check must make the switch to direct deposit by March 1, 2013.

Electronic money transfers are supposed to save the government money, and be safer and more convenient than the paper checks. Last year at least 540,000 Social Security and Supplemental Security Income paper checks were reported lost or stolen and required replacement. For more information, visit www.GoDirect.com.

Monday, May 2, 2011

Treating Doctors

The Social Security regulations require a treating doctor’s opinion that a patient cannot work to be given controlling weight if it is supported by clinical and test findings, and is consistent with the record as a whole. When such a treating opinion exists Social Security is supposed to approve an application for Social Security Disability (“SSD”) benefits. However, especially prior to a hearing, having another treating doctor to corroborate the disability opinion is frequently needed.

I represent a 58 year old former security manager with rheumatoid and osteoarthritis whose SSD application was approved today without a hearing. After the claimant’s application was denied, but before a hearing was scheduled, I submitted a report from the claimant’s orthopedist that corroborated the disability opinion of the claimant’s rheumatologist.

The State agency had denied the SSD application on the grounds that a consultative examination ("CE") was needed because there supposedly was insufficient evidence to support the claimant’s disability. However, the attorney advisor found that it was unnecessary for a CE.

It is not unusual for the State agency, attorney advisors, or Administrative Law Judges to reject an SSD application when there is only one treating opinion. However, when there are two treating opinions that conclude the claimant cannot work it is much more difficult to conclude the disability opinions are not consistent with the record as a whole.