Hoppenfeld Fibromyalgia Bias

On April 22, 2011, I discussed the class action lawsuit that accuses Administrative Law Judges (“ALJs”), including Marilyn P. Hoppenfeld, of bias against Social Security disability claimants. The New York Times article about the class action, and a copy of the class action complaint, can be found on my web page’s Resources tab.

Another disability matter that I have involving ALJ Hoppenfeld concerns a claimant whose disability is based upon fibromyalgia. The courts have told ALJs, including Hoppenfeld, that a medical opinion that a claimant is disabled by fibromyalgia cannot be denied for lack of objective evidence, yet that is exactly what Hoppenfeld did.

In addition to the class action bias allegations, the Regional office of Social Security is investigating charges that ALJ Hoppenfeld is biased against claimants whose applications are based upon fibromyalgia. If you or anyone else is aware of such an instance, I would appreciate learning about it. I would be happy to put you in touch with the Labor Relations Specialist at the Regional Office who is conducting the investigation.

On The Record Requests

If an application for Social Security Disability (“SSD”) benefits is denied by the State agency, then you can request a hearing with an administrative law judge. Government statistics show that it takes over a year before you get to have a hearing. That delay can be reduced significantly by submitting a request for a fully favorable decision on the record (“OTR”).

An OTR should summarize the medical and vocation evidence, and demonstrate why the Social Security rules and regulations show that a hearing is not needed. SSD benefits must be granted where a treating doctor’s opinion that a claimant cannot work is given controlling weight. In theory, only one doctor’s supporting opinion is required to get SSD benefits.

I represent a 40 year old former financial strategic planner with cervical radiculopathy and chronic fatigue syndrome (“CFS”), whose OTR was approved today. SSD benefits are frequently denied to applicants who are younger than 50 years old, especially prior to a hearing. One way to increase the chances of having an OTR granted is to submit disability opinions from multiple medical sources.

In this instance, I provided disability opinions from the claimant’s orthopedist, pain management specialist, CFS specialist, and physiatrist. The medical opinions provided corroborative evidence and showed that a contrary State agency opinion was inconsistent with the record as a whole. Without the additional supporting opinions, the OTR probably would have been denied, thereby requiring the claimant to wait for a hearing.

LTD Approved In Two Months

When you apply for group long term disability (“LTD”) at work you are supposed to get a decision in 45 days under a federal law known as ERISA. However, that is not usually the case, and almost invariably, the insurance company that typically acts as the claim administrator asks for additional time to make a decision. Nonetheless, I received an approval today from Prudential 45 days after filing an application for LTD benefits for a 53 year old woman who had worked for New York City.

Like many other LTD applications that I filed, I submitted supportive medical records and reports together with the LTD application forms. What made this application different? The answer appears to be that I submitted the claimant’s Notice of Award for Social Security Disability (“SSD”) benefits.

Most LTD plans deduct SSD and other disability benefits, such as workers compensation, from the LTD benefit. For some people that will completely offset the LTD benefit, and the entire amount of LTD benefits received will have to be repaid. My client’s SSD substantially reduced her monthly LTD benefits. Absent the SSD offset, it is likely that Prudential would have asked for additional time to review the application because its liability would have been significantly greater.

Work History

A claimant’s work history can be just as important as a person’s medical history when applying for Social Security Disability (“SSD”) benefits. Yesterday, I had two SSD applications that were approved without ever having been denied that illustrate this point.

I had submitted medical evidence that supported approving each claimant’s application. One claimant was a 49 year old court reporter, and the other was a 50 year old firefighter. However, I have submitted similar medical evidence for many other SSD applicants, including former firefighters and court reporters, whose SSD applications were denied initially. The two applications approved yesterday involved individuals who each had only one job during the past 15 plus years.

It is important to emphasize that a claimant’s alleged inability to work is supported by a strong work history. The courts, particularly those in the Second Circuit that includes New York, have established that claimants with a good work record, especially those with the same employer, are entitled to substantial credibility when claiming inability to work because of a disability.

Social Security presumes that the only reason people with a good work ethic, or who earned a lot of money, stopped working is because they cannot. Emphasizing those positive vocational factors is usually sufficient to alter Social Security’s default position of denial to an approval.

Relocating While Disabled

The loss of income from becoming disabled forces some people to relocate to a place with a lower cost of living. Unfortunately, relocating can result in delaying approval for Social Security Disability (“SSD”) benefits.

I represent a woman who was 48 years old when she had to stop working as an administrative assistant because of her many medical conditions. The claimant’s diagnoses and treatment were well documented, and the treating physician provided a strong disability opinion. However, the claimant moved to the State of Washington while her SSD application was pending.

It appears that the Seattle hearing office repeated the steps that the Jericho hearing did, and by the time the Seattle Administrative Law Judge (the “ALJ”) started reviewing the application, she no longer considered the treating physician’s disability opinion relevant, even though it was well supported by diagnostic and clinical medical findings. It then took the claimant a substantial amount of time before her new treating physician was willing to provide an opinion that the claimant was incapable of working.

Yesterday I received a fully favorable decision from the Seattle ALJ. I have no doubt that if the claimant had remained in New York then her application would have been approved about a year sooner. While cost of living is obviously a consideration when losing work income, potential disability processing delays should also be considered.

Getting Disability Benefits Quickly

When seeking Social Security Disability (“SSD”) benefits, you not only want to win your benefits, but you want to win them quickly. Attorneys usually get paid 25% of the past due benefits when working on SSD cases. Therefore, the faster your SSD application is approved, the smaller your attorney fee. It is best to retain an attorney who has experience litigating SSD cases in federal court as they generally have a better understanding of the entire approval process. On the other hand, you should be wary of companies who call themselves disability advocates, where attorneys may not even work on your case.

An insurance company attorney retained me after his SSD application was denied. His application was approved today without a hearing, even though a doctor from Industrial Medicine Associates (“IMA”) examined the claimant for Social Security, and said that the attorney could work. I was able to get the claimant’s application approved without a hearing by showing the evidence used to support the denial was unreliable, and by supplying reliable evidence that unambiguously supported disability.

The denial had been based on the IMA “orthopedic” consultative examination (“CE”) by Linell Skeene, who indicated the claimant has a sedentary work capacity. The claimant had orthopedic and pulmonary impairments. I notified the hearing office that Dr. Skeene is not an orthopedist, but in fact specializes in emergency medicine, and was unqualified to assess the claimant’s impairments. On the other hand, I provided the hearing office with disability opinions from the claimant’s orthopedist, pulmonologist, and physiatrist, each of which showed the claimant lacked a sedentary work capacity.

I have reviewed thousands of SSD claims prepared by non-attorney representatives, who were frequently satisfied with getting one treating physician’s opinion to support a claim. Having litigated SSD claims in federal court as well as at the administrative level, it is obvious that having multiple supporting opinions is not merely cumulative, or “gilding the lily.” The opinions corroborate one another and show that the CE’s opinion is the aberrant one that is inconsistent with the record as a whole. That is an example of the sort of thing that SSD attorneys understand, but many non-attorney disability advocates do not.

Carpal Tunnel Syndrome

According to the Mayo Clinic, carpal tunnel syndrome ("CTS") is a progressively painful hand and arm condition caused by a pinched nerve in your wrist. CTS can affect a person's ability to work by limiting one's ability to lift, carry, write, etc.

The loss of bilateral manual dexterity ("BMD") is significant in Social Security Disability ("SSD") cases. Social Security rules state that BMD is necessary for the performance of substantially all unskilled sedentary occupations, and will result in a significant erosion of the unskilled sedentary occupational base.

I represent a 57 year old former road crew chief, who could not perform his heavy work because of arthritis, knee, and shoulder problems. The question remained whether he could perform less strenuous sedentary work. However, the claimant had CTS, which the treating orthopedist said prevented the claimant from being able to handle, grasp, turn, or twist objects, or do fine manipulation. Since the CTS resulted in a loss of BMD, it significantly eroded the unskilled sedentary occupational base, resulting in an approval of SSD benefits.

SSD Approved in 3 Months

Somewhat along the lines of my previous blog entry, yesterday I received a fairly rapid approval on an application for Social Security Disability (“SSD”) benefits. The claimant was a 58 year old former CEO of a nonprofit.

In a relatively short period of time, I was able to submit narrative, functional, and progress reports from two orthopedists and a physiatrist that detailed the claimant's medical condition. This was another claimant who followed our advice regarding ways to work with doctors to get favorable evidence quickly. The medical records provided ample support for the doctors' opinion that the claimant lacked a sedentary work capacity, and those opinions were obviously accepted in approving SSD benefits.

Claims processing is usually a little slower during the summer months. Nonetheless, obtaining and submitting the necessary medical evidence expeditiously can still facilitate a relatively prompt decision.

SSD Approved In Two Months

It is common knowledge that it usually takes a long time to get an application for Social Security Disability (“SSD”) processed. I represent a 53 year old former Director of Field Operations for New York City whose SSD application was approved today in only two months. What made this case different?

The claimant was very organized. The claimant already had her medical records before meeting me, which saved a substantial amount of time. Perhaps more importantly, the claimant quickly obtained the reports from her two orthopedists and physiatrist that I had requested, each of whom identified the clinical and diagnostic findings to support their opinion that the claimant lacked the ability to perform sedentary work.

It is no guarantee that submitting supportive medical records and reports with an application for SSD benefits will result in an award in only two months. However, securing the evidence promptly can shave many months off the review process, which is beneficial regardless of whether or not the decision is favorable.

SSD & WC Offset

I represent a 49 year former deliveryman for DHL, whose Social Security Disability (“SSD”) benefits were approved without a hearing yesterday. The decision approving his benefits ended with the statement: “There may be an offset against Social Security disability insurance benefits due to the receipt of Workers’ Compensation.”

If you are entitled to periodic benefits under a workers' compensation (“WC”) law or plan, or to certain public disability benefits, then the Social Security Administration (“SSA”) is generally required to reduce your SSD benefits. The total monthly amount of your benefits cannot exceed 80 percent of your average current earnings before you become disabled. The SSD benefits that you and your family receive will be reduced if the combined total amount, plus your WC payment, plus any public disability benefit payment you receive, exceeds 80 percent of your average pre-injury/illness earnings. The larger your predisability income, the less likely it is that your benefits will be offset.

The offset needs to be considered if you are offered a WC lump sum buyout. If your periodic SSD and WC benefits exceed 80%, then the terms of a WC buyout could reduce the effective rate of your periodic WC payments, thereby reducing the SSD offset.

Disability Analysts

The initial medical determinations in Social Security Disability (“SSD”) applications in the New York region are usually made by Disability Analysts, not doctors. If an SSD application is denied, both the Social Security Administration (“SSA”) and case law have stated that a Disability Analyst’s assessment of a claimant’s work ability’s is entitled to no weight.

I represent a 43 year old woman with back injuries who had worked with the learning disabled. The claimant had a hearing before Administrative Law Judge (“ALJ”) David Nisnewitz, during which the Medical Expert (“ME”) said the claimant’s back condition was severe enough to meet or equal Listing 1.04A. The claimant’s treating neurologist provided extensive records and opinions that the claimant could not work, but ALJ Nisnewitz disregarded that opinion. Instead, he approved the claimant’s case because the ME’s opinion was more consistent with the record than the “State agency medical consultant.”

Before the hearing started, I advised ALJ Nisnewitz that the State agency’s opinion was from a Disability Analyst, not a physician, and as such could not be considered at all. Despite agreeing on the record not to give any consideration to the Disability Analyst’s opinion, the ALJ did consider it, and he gave it some weight. Moreover, a ME’s opinion is entitled to little if any weight since he never examines the claimant.

The outcome was fortunate for the claimant as the ME testified favorably; however, the ALJ’s decision failed to follow the law regarding the treating physician rule. If the treating physician rule had been followed, then the decision should have concluded that the claimant was disabled based on the findings and conclusions of the treating neurologist.