Thursday, December 27, 2012
Wednesday, December 26, 2012
Some people take early retirement because they want to start receiving monthly payments immediately. The article points out that by doing so, you receive 25% less than if you wait until full retirement age, and 75-80% less than if you wait until age 70. The implication is that it usually makes more sense to avoid taking early Social Security retirement.
The decision about whether to accept early retirement is simpler if you are receiving monthly Social Security Disability ("SSD") benefits. The SSD helps stave off having to take early retirement, which eventually leads to larger retirement benefits.
Tuesday, December 11, 2012
I represent a 48 year old former dental hygienist who was scheduled for a hearing after an on-the-record (“OTR”) was denied. The typical wait for a hearing is many months, and can even be over a year. One should never be satisfied with simply waiting for the arrival of the hearing date.
I seek updated medical records and reports for most Administrative Law Judges (“ALJs”) if an OTR is denied. For those ALJs who are well known for taking excessive amounts of time before scheduling a hearing, it makes no sense to request updated records after an OTR denial because by the time the hearing arrives they will claim that the medical records are stale, and need to be updated again.
The dental hygienist had to go live in a nursing home because of her rheumatoid arthritis. After an OTR was rejected, I sought updated medical records from the nursing home. However, the nursing home refused to provide any records. Fortunately, the ALJ granted my request to subpoena the nursing home records, which totaled nearly 700 pages of objective clinical findings and diagnostic tests that support the functional less than sedentary functional assessments of the treating doctors that had been submitted previously.
Among other things, the nursing home records showed that since the claimant had been admitted, via stretcher, she had needed a wheelchair to get around, even needed assistance to use it, could not get in and out of bed without help, was incontinent, totally dependent on others for personal hygiene, including toileting, and could not even feed herself. Based on those records, I suggested that a hearing was not needed. The ALJ agreed.
Friday, December 7, 2012
I was representing a 37 year old former EMT who sustained serious back and knee injuries after a series of motor vehicle accidents. The medical records and the reports of the claimant’s neurologist repeatedly demonstrated that the claimant met the listing criteria for a spinal disorder. However, the medical expert at the hearing questioned whether the listing was met because the report of the one time CE by a non-treating doctor contained some contrary findings.
Aberrant findings from a single CE report, from a doctor who is not a neurologist, should not suffice to contradict the longitudinal and consistent medical findings of a neurologist regarding a neurological disorder. Furthermore, the claimant was prepared to testify that the CE findings were fraudulent in that the CE did not actually test what the report claimed was tested.
Fortunately, the medical expert testified that while the claimant did not meet the spinal disorder listing, he equaled it in severity. However, another medical expert or Administrative Law Judge may have concluded that the CE findings prevented the listing from being met or equaled. According to the regulations, there was no valid ground for the claimant to have been asked to have a CE with a non-treating doctor. Had the claimant refused to attend the CE, there would have been no evidence to contradict the claimant’s meeting a listing, and he could have avoided the need and wait for a hearing.
Thursday, November 22, 2012
Tuesday, November 20, 2012
Monday, November 19, 2012
Tuesday, November 13, 2012
Friday, October 26, 2012
I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.
I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.
Wednesday, October 24, 2012
The Republican position is to increase the retirement age. Mitt Romney stated that the retirement age should be “slowly increased to account for increases in longevity,” while Paul Ryan said we should, “Slowly raise the retirement age over time.” Minority Leader, John Boehner said that A Republican-held Congress would look to raise the retirement age to 70, and the Heritage Foundation, a research and educational institution whose mission is to formulate and promote conservative public policies, believes that the retirement ages must be increased. While giving a speech at the American Enterprise Institute, another conservative think tank, Chris Christie said, “You are going to have to raise the retirement age for Social Security! Whoa! I just said it and I am still standing here. I did not vaporize into the carpeting.”
Barack Obama said he is opposed to raising the retirement age. Previously, Barack Obama said he favored applying the Social Security payroll tax to wages above $250,000, which is now limited to wages below $110,100.
Becoming disabled is neither a Democratic or Republican problem, nor a Conservative or Liberal problem. Disability crosses all party lines. Nonetheless, there was little attention paid to the issue during the debates. Regardless of whether you favor raising the retirement age, increasing taxes or cutting benefits in order shore up the Social Security program, insist that candidates explain how they intend to stabilize Social Security to ensure that benefits will be there when you need them.
Thursday, October 18, 2012
The Fire Department is obviously better equipped to determine if a firefighter is fit for duty, and its disability determination decision is usually accepted by Social Security Administrative Law Judges (“ALJs”). However, firefighters also have to prove that they cannot perform other work to receive SSD benefits. That is why it may be advisable to submit not only the Fire Department notice approving disability retirement, but also the Medical Board report discussing the medical reasons that support the disability retirement.
In this case, the ALJ cited the Medical Board as evidence supporting the firefighter’s entitlement to SSD benefits. As the claimant was over 50 years of age, based on the applicable medical-vocational rule, the firefighter only needed to show that he could not perform light work, which is more strenuous than sedentary work, to receive SSD benefits.
The treating pulmonologist concluded that the claimant lacked even a sedentary work capacity. The ALJ accepted the opinion of the treating pulmonologist in large part because it was consistent with the findings of the Fire Department Medical Board. There are circumstances where a City Medical Board report could serve as the basis for an ALJ to deny SSD benefits, so consult an attorney before doing so.
The reports of the claimant’s pain management specialist and family doctor each prepared detailed reports explaining why the claimant’s fibromyalgia was disabling. Both reports stated that the claimant met the American College of Rheumatology criteria for fibromyalgia, and identified the clinical signs that support the diagnosis. Both reports provided for a less than sedentary work capacity, and concluded that the claimant could not work because she was completely disabled due to severe pain.
The State agency, as it has done on previous occasions, mysteriously excluded the treating doctors’ reports from the claimant’s file. Curiously, it seems that whenever a submitted document is missing from a claimant’s folder while being reviewed by the State agency, the document is always one that includes a doctor’s opinion that a claimant lacks the functional capacity to work.
Once a State agency denial is appealed to the Social Security Administration (“SSA”) hearing office, I can access the efolder. When I reviewed the nurse’s efolder and learned the disability reports were missing, I immediately resubmitted them, together with the Electronic Records Express receipt for showing that the State agency had received those reports on July 12, 2011 at 3:51 and 3:55 PM EST. Fortunately, the SSA Staff Attorney then approved the SSD application promptly without the need for a hearing, after I supplied him with an updated report that he had requested. Unfortunately, the State agency unnecessarily delayed the approval of the claimant’s benefits for a year.
Tuesday, October 16, 2012
The Social Security Administration (“SSA”) recognizes that obesity is a condition that can contribute to disability. The SSA used to have a listing for obesity, but it was eliminated in 1999. However, the SSA rules still accept that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.
I represent a pizza deliveryman who became unable to work when he was 51 due primarily to knee problems. The claimant’s orthopedist concluded that the knee problems were severe enough to prevent the claimant from working. The Administrative Law Judge (“ALJ”) noted that the claimant’s BMI was 30.4, and determined that he was disabled.
In arriving at his conclusion, the ALJ noted that an obese person with arthritis may have more pain and limitation than if he was not obese. Additionally, the ALJ stated that obesity may limit a person’s ability to sustain activity on a regular and continuing basis on a 8 hour, 5 day week, basis. In short, while the SSA may not find a claimant disabled due solely to obesity, obesity should strengthen many disability claims that are based upon musculoskeletal, respiratory, and cardiovascular impairments.
Friday, October 5, 2012
The State agency had denied the claimant’s SSD application on the fraudulent grounds that the claimant had failed to be examined by its doctors from Industrial Medicine Associates (“IMA”). That assertion was untrue. The claimant was ready, willing, and able, to be examined by IMA, and appeared at IMA’s office at the designated date and time for his consultative examination (“CE”). However, IMA refused to proceed with the CE because the claimant brought a camera to videotape the CE. In other words, it was IMA, not the claimant, who refused to proceed with the CE.
There is no rule, regulation, statute, guideline, or case law that precludes an SSD claimant from recording his or her CE. There have been countless times where IMA doctors have been banned from performing CE’s, or their opinions have been rejected, after substantial evidence or cross examinations showed they falsified CE findings. If IMA doctors perform CEs in accordance with the regulations, then they should have nothing to hide, and should have no problem with the videotaping. Videotaping an IMA CE is consistent with the SSA recording experts and witnesses at hearings. IMA has a protracted history of acting improperly. Read some of my prior entries on this topic: 11/22/10, 6/6/12, 5/17/12, 10/5/11, 6/29/12, 6/16/12, 3/8/10, 8/31/12, 8/11/08, 4/21/10, 6/4/12, 9/8/10, 8/16/12.
IMA has a contract with New York State to perform CEs, for which it gets paid a ton of taxpayer money. Medical Experts at hearings are videotaped, and IMA has no excuse or legal authority to justify its refusal to have its doctors videotaped while performing a CE ordered and paid for by New York State. Perhaps if IMA refuses to perform a large number of CEs when claimants try to videotape them, the State will terminate or refuse to renew its contract with IMA.
Monday, October 1, 2012
The first two plaintiffs named in the Amended Complaint are my clients. Each had their Social Security Disability (“SSD”) application denied by one of the Queens Five. Each case has now been remanded. Each has now been approved without a hearing.
The claimant filed her SSD application in 2003. Because of ALJ Hoppenfeld’s bias, the claimant had to wait many extra years to get her past due benefits, upon which she will receive no interest. The cost to the Social Security Administration was needlessly excessive as ALJ Hoppenfeld required countless hearings and experts. Hoppenfeld’s actions were a waste of tax dollars.
Hopefully, Padro will result in many claimants whose applications were denied by the Queens Five, including ALJ Hoppenfeld, receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.
Thursday, September 27, 2012
I have a client whose ileocolic resection left her with chronic diarrhea that would occur without warning. As a result, the claimant said she needed constant bathroom access, which her gastroenterologist confirmed. Furthermore, her gastroenterologist stated that the claimant would need half hour bathroom breaks multiple times a day at work, and that her condition would cause her to miss more than three days of work each month.
The claimant’s application for Social Security Disability (“SSD”) benefits was approved today without a hearing. It is somewhat unusual for a claimant with a “non-exertional” impairment to have an SSD application approved without a hearing. A non-exertional impairment is one that does not affect the person’s ability to sit, stand, walk, lift, carry, push, or pull.
A case involving a non-exertional impairment is more difficult to establish than an exertional impairment that affects a person’s strength, that is, the person’s ability to sit, stand, walk, lift, carry, push, or pull. Sometimes it may be necessary to obtain a vocational assessment to establish disability based upon a non-exertional impairment.
If you are unable to work due to a medical condition, even though you have no problem sitting, standing, walking, lifting, carrying, pushing, or pulling, then you would be well advised to consult with an attorney experienced in handling disability matters.
Wednesday, September 19, 2012
One of plaintiffs named in the Padro Amended Complaint is my client. She applied for Social Security Disability (“SSD”) benefits in April 2006. ALJ Nisnewitz denied the application in July 2007, but the Appeals Council remanded the case back to him in February 2009. In September 2009, ALJ Nisnewitz denied the application again, and the Appeals Council refused to review the claim, so I appealed to federal court.
The federal district court judge, Dora Irizarry, rejected Nisnewitz’s decision for many of the reasons asserted against him in the Padro bias class action. In fact, Judge Irizarry complained about Nisnewitz’s “contentiousness,” and ordered that the case be heard by a different ALJ.
The claim that Nisnewitz denied twice was approved today by another ALJ - without a hearing. However, because of ALJ Nisnewitz’s bias, the claimant had to wait three times as long as it should have taken the claimant to get her past due benefits. In the interim, she received no interest, and the cost to the SSA was needlessly excessive, as ALJ Nisnewitz required extra hearings and experts. Nisnewitz’s actions were a waste of tax dollars.
Padro is in the process of being settled. The settlement should result in many claimants whose applications were denied by the Queens Five receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.
Thursday, September 6, 2012
After ODAR receives an appeal, it sends the claimant an introductory letter that discusses the procedures at the hearing level. One of the things that the introductory letter advises the claimant is that additional evidence should be provided. Typically, the letter will state, “Giving us evidence early can often help us review your case sooner.”
I represent a 48 year old truck driver whose SSD application was denied by the State agency, and I requested a hearing on July 23, 2012. On August 25, 2012, I submitted a new report from the claimant’s orthopedist, which contained information similar to a report that I had previously submitted from the orthopedist. A week later, a decision was made to approve the claim.
It is possible that the claimant’s SSD application eventually would have been approved even if the second report from the orthopedist had not been submitted. However, submitting the new report acted as a trigger for the claim file to be reviewed, which resulted in an approval without a hearing. Even if additional medical evidence appears cumulative, it should be provided to the ODAR.
Sunday, September 2, 2012
If you are found disabled, your SSD benefits should be paid at the higher "full retirement age" rate, instead of the discounted "early retirement" rate. I have found that when people pursue SSD and early retirement, the SSD application tends to be denied, which is why I usually advice against seeking the latter. Moreover, when both benefits are sought, the applications take much longer than usual to get processed.
Friday, August 31, 2012
I represent a 50 year old nurse whose SSD application was approved today, even though she had previously received a letter from OTDA telling her that it was “necessary” for IMA to examine her, and that she “must” attend the appointment. Why are claimants told to to go the IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for exams? Why are claimants told they have to go to IMA exams in virtually every case when it is not true? The answer may have nothing to do with a claimant’s medical evidence.
The OTDA pays IMA a great deal of money for examining claimants, which money comes from our taxes. The fact that the OTDA automatically pays for IMA exams that are not necessary means that tax revenues are being wasted. Even if an exam were actually necessary, the why doesn’t the OTDA ask the claimants’ doctors to do the exam, especially since many would do so without requiring payment from the OTDA; that is, without cost to the taxpayer? How much do taxpayers pay IMA annually for unnecessary exams?
Tuesday, August 28, 2012
The claimant was 49 years and 10 months old at the time he became disabled. A "borderline" situation exists where the claimant is "within a few days to a few months of reaching an older age category. The claimant would have reached an older age category in two months when he became 50 years old. Under similar “borderline” circumstances, the courts have refused to apply the medical-vocational rules mechanically, and have applied the older age bracket. For example, in Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N.Y. (1995), the Court ruled that the claimant, who was three months shy of his 50 birthday, should have been treated as if he were in the 50 year old category.
If the claimant had been treated as a 50 year old, then even if he had a sedentary work capacity, the medical-vocational rules would have required that he be found disabled. The claimant’s arthritis specialist and his neurologist both said the claimant lacked a full time sedentary work capacity. While the Administrative Law Judge (“ALJ”) determined that the claimant had a full time sedentary work capacity, as noted above, applying the borderline case doctrine, the claimant should have been found disabled under the medical vocational rules.
For some reason, the ALJ did not apply the borderline case doctrine, and therefore, did not find the claimant disabled under the medical vocational rules. Instead, the ALJ required a hearing at which he called a vocational expert (“VE”) to testify. The VE testified that given the claimant’s vocational background and physical limitations, there were no jobs that he could perform, and the ALJ accepted that testimony to award SSD benefits.
Had the ALJ applied the borderline doctrine, which is contained in the hearing rules known as the HALLEX, then there would have been no need for a VE. In fact, there would have been no need for a hearing as the medical vocational rules required that the claimant be found disabled.
Tuesday, August 21, 2012
Binder & Binder attracts thousands of clients by spending millions of dollars on television advertising. They may have won more cases than anyone, but they have also lost more. They run their SSD practice as a business; they don’t call themselves a law firm, and experience has shown that you will have difficulty speaking with an attorney.
When I was the Senior Litigator at Binder & Binder, some clients complained that they never even had the opportunity to speak with an attorney until a few minutes before their hearing. I get my clients through referrals, and every one of them is important to me. People retain me because they know they are not a statistic in a mass production business. I run my practice as a profession, I operate a law firm, and you will be able to speak with me, and as a lawyer, your communications with me are privileged.
Two of the named class action plaintiffs in Padro are my clients. Both of their claims were recently remanded for new hearings. It appears that the remands are a prelude to the class action being settled.
The U.S. Attorney’s office represents the Queens Five. Recently, the U.S. Attorney’s sent a letter to Roanne Mann, who is the Magistrate Judge assigned to the Padro case. The letter provided plaintiffs’ counsel with a proposed formal settlement agreement to review. The parties will file a status report with Magistrate Judge Mann on September 10, 2012.
In connection with the settlement, it appears that the Queens Five have already been sent for some retraining. Additionally, a new ALJ has been installed to replace Nisnewitz as the Chief ALJ.
Among other things, the Amended Complaint seeks new hearings for disability claimants whose applications were denied by the Queens Five during the “Class Period.” Hopefully, the settlement agreement will provide that relief. While the “Class Period” has not been disclosed, presumably it will cover thousands of previously denied applicants seeking SSD and Supplemental Security Income (“SSI”) benefits.
There are questions concerning the final settlement terms. What did or will comprise the retraining, and how will it differ from training previously received by the Queens Five? What happens if the retraining fails? What measures have been put in place to ensure that the Queens Five don’t revert to their old ways after retraining? If a claimant receives a decision from the Queens Five that makes the same type of mistakes that led to the class action, will the Appeals Council or other entity have the authority to take any corrective action?
When the court approves the final settlement agreement, I will make a copy available for downloading from the Resources tab on my web site. That order should contain information that identifies who is eligible to have their SSD and SSI claims reheard.
Please contact our office if you would like more information about the impending settlement to see if you will be eligible for a new hearing. If you are notified that you fall within the class and are entitled to a new hearing, consider hiring us to represent you even if you had another attorney previously. Troy Rosasco and I were the only two attorneys who submitted affidavits on behalf of the plaintiffs in the class action, and we have been instrumental in fighting for our clients before the Queens Five for bias for over a decade.
Thursday, August 16, 2012
I sent the State agency a letter detailing the many reasons why I objected to the IMA CE. I never received a response from the State agency regarding my objections. Today, I received a fee check for the claimant, which means that the State agency approved the SSD application. As I had contended in my objections, the IMA CE was not actually necessary.
On a weekly basis, either I have to resubmit records after reviewing an eFolder and learning that a document is missing, or I receive a call from the SSA asking me to resubmit a record that I referenced in another document that managed to make its way into the eFolder. Curiously, it is typically the most salient and supportive documents that fail to find their way into claimants’ files.
On August 13th, in preparation for a hearing on August 20th, I reviewed the eFolder, only to learn that a report from the claimant’s treating eye specialist was missing. I had already submitted the report twice; the second after a prior eFolder review had also revealed that the report was missing. The case was an onset appeal covering the April 10, 2011 to September 1, 2011 time period. The partially favorable decision was based upon a DDS doctor, who said the claimant met a listing based upon a letter from the eye doctor. However, the eye doctor did not say the claimant became disabled as of September 1, 2011; to the contrary, as stated in the missing letter, the eye doctor stated that the claimant became disabled as of March 2011.
I resubmitted the missing report again, and also pointed out that the DDS analyst who denied the case, stated that the claimant became disabled as of September 2011 because that is when the claimant met a listing. I explained that even if true, a claimant does not need to meet a listing in order to be entitled to disability benefits, and that the eye doctor made it clear that the claimant worked beyond her capacity to do so.
The final sentence of my letter was that, “I suspect that if the ALJ had seen the attached that a hearing probably would have been unnecessary.” Apparently, the ALJ agreed because yesterday, I was notified that the claimant’s hearing was cancelled because her onset appeal was being approved.
The eFolder has been a positive step for the SSA. For example, it avoids attorneys having to go to hearing offices to view files, saves the SSA from scheduling and supervising the folder reviews, reduces evidence getting placed into wrong folders, and allows more than one person to access a claimant’s file simultaneously. However, vigilance is still required to ensure that the submitted evidence becomes an exhibit after the eFolder is assembled.
Wednesday, August 15, 2012
The SSD backlogs at the hearing offices have led them to refer cases to the OMVE for an expedited review, which could include additional evidence development. I have had an increasing number of claims transferred to the OMVE this year, which is part of the SSA’s attempt to reduce backlogs. The transfers have always involved older applicants.
Upon transfer, the OMVE asks for additional evidence. I try to provide something new to help the OMVE justify an approval. The Baltimore OMVE approved a case today for a 56 year old former warehouse stock clerk after I submitted a report from the claimant’s podiatrist. I had already submitted reports from the claimant’s neurologist, orthopedist, and chiropractor.
The OMVE has approved about the half of my cases transferred to it. I have not submitted additional evidence each time. However, each time that I have submitted new evidence, the OMVE has approved the claim.
Tuesday, August 14, 2012
Among other things, Mr. Lane wrote that SSD applications have increased because “laid off workers turn to disability when unemployment benefits run out.” Commissioner Michael Astrue, who was appointed by President George W. Bush, made the same offensive statement last year in the Newsday article "Soc. Sec. disability in peril" [News, Aug. 22]. The article discussed how the SSD program is in financial trouble as aging baby boomers and laid-off workers file large numbers of claims.
Mr. Lane concedes that some of the increase in SSD applications is due to the aging of the population. One should expect disability claims to increase as more people near retirement age, since older workers are more likely to have medical problems that render them unable to work. However, Mr. Lane ignores the obvious; that SSD applications have increased in large part because the population has increased. Furthermore, he overlooks that many laid-off workers were allowed to work with special accommodations, especially those who had developed good will with their employers over many years.
The crux of Mr. Lane’s editorial is that our SSD policy must change because it provides too much incentive for people not to work. He states that the average monthly SSD benefit is $1,100, or $13,200 a year. According to the U.S. Dept. of Health & Human Services, the poverty level for a family of three is $19,090. According to the U.S. Dept. of Labor, the minimum wage is $7.25 an hour, which translates into an annual salary of $15,080 for someone who works a 40 hour week. According to U.S. Today, the average median income last year was about $50,000. It hardly seems that SSD policy is creating an incentive for people to feign that they are incapable of working.
Thursday, August 9, 2012
It frequently makes sense to file for SSD benefits before you have been unable to work for 12 months, especially since the initial decision by the State agency usually takes at least half a year. I represent a 52 year old bus driver whose application was approved today. The claimant had applied on March 12, 2012, claiming that he became disabled on September 19, 2011, less than 6 months after his medical condition disabled him.
I took the case over from another attorney in late June after the application was denied. Upon receiving access to the claimant’s efolder, I corrected erroneous vocational information in it, and requested medical reports, which I submitted last month. The application was approved today, 11 months after his condition became disabling, based upon an on-the-record request I filed for a fully favorable decision.
If the claimant had waited 12 months before filing his SSD application, that is September 2012, then he probably would not receive a decision until March 2013 at the earliest. Cash flow was extremely problematical for the claimant so the relatively quick approval was important.
Friday, July 27, 2012
Very simply, all the local office has to do is open the mail that I sent them, take out the original documents that are enclosed, and associate them with the application that I faxed. The faxed documents have a cover letter explaining that while I am faxing all of the attached forms, I am also mailing the original SSA 16 and SSA 827. Incredibly, each and every time we mail the original documents to Patchogue, they claim to never receive them. Is it possible that the USPS has a vendetta against the Patchogue office that results in mail being lost? I don’t think so. No other office anywhere in the country has a problem with receiving my mail, and associating the documents with claim files.
Continuing problems with Patchogue has forced me to contact the Social Security Public Affairs Branch on numerous occasions to assist getting the applications processed. Not surprisingly, shortly after I contacted Public Affairs, I received the "filing" receipt from the Patchogue office, which means they were able to find the forms they claimed to never have received, and process the claimant's application.
Beware when dealing with the incompetents at the Patchogue field office. I now ask my clients to sign the SSA 16 and SSA 827 in duplicate when they live within the Patchogue office’s jurisdiction because I know that Patchogue will claim they never received them. It is noteworthy that Patchogue claims never to have received mail I sent them even when it was sent certified. In fact, it happened so many times that I stopped sending certified mail to Patchogue because it served no purpose. To avoid delays due to Patchogue’s incompetence, make sure you sign extra copies of forms SSA 16 and SSA 827.
I took over the SSD case of a 46 year old former police officer, now residing in Las Vegas, from another attorney after her application had been denied and she was scheduled for a hearing. While preparing the claimant for her testimony about a week before the hearing, I learned that the ALJ had received responses to ME interrogatories.
Because I had not been notified about interrogatories being submitted or responses received, it left only one of two possibilities. First, it could and should have meant that the interrogatory responses supported a fully favorable decision. Alternatively, it could have meant that the ALJ violated the procedural rules discussed above, which would provide concrete grounds for an appeal. Fortunately for the claimant, just a couple of hours before she was due to fly to New York for her hearing, the ALJ’s assistant notified us that he was approving SSD benefits and cancelling the hearing.
Thursday, July 26, 2012
An important aspect of an SSD claim is the determination of whether your statements about your inability to work due to your symptoms is credible. One way to bolster your credibility is by demonstrating that you have a good work ethic. The courts have consistently held that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability, especially when it is with the same employer, and it justifies the inference that the claimant stopped working for the reasons provided.
I represent a 55 year old field technician who worked for Verizon for over 30 years. I submitted papers arguing that there was no need for a hearing to assess the claimant’s credibility because his strong work history with the same employer was objective evidence establishing his credibility. His SSD application was approved today. When discussing the claimant’s credibility, the decision took special “note that the claimant has an excellent work history, having worked for Verizon for over 30 years.”
Monday, July 16, 2012
On March 27, 2006, New York State Insurance Department issued Circular Letter no. 8 that adopted the Model Act. However, the insurance industry pressured the Insurance Department into withdrawing the Model Act just three months later in Circular Letter No. 14 on June 29, 2006. In Letter No. 14, the Insurance Department stated that because it believed that the use of discretionary clauses are contrary to the State insurance laws, it was “drafting regulations that would prohibit the use of discretionary clauses in all new and existing accident and health insurance policies, life insurance policies, annuity contracts and subscriber contracts upon renewal, modification, alteration or amendment on or after the effective date of the regulation.” To date, no such regulations exist.
Discretionary clauses place the insured at a disadvantage when litigation ensues over the meaning of the insurance contract because they commandeer much of the judge’s authority in deciding the case, and foster the insurer’s inherent conflict of interests in being both the entity that pays and the entity that decides what does or does not need to be paid. Where an insurer both determines whether an employee is eligible for benefits and pays those benefits out of its own pocket, there is a conflict of interest. A discretionary clause requires the court to defer to the insurer’s interpretation of the contract and will only overturn the insurer’s position if the court finds it was arbitrary and capricious. As the New York Insurance Department said when it originally banned discretionary clauses in 2006, where the clauses are present, “policies, contracts and certificates may be rendered illusory by nullifying the insurer’s responsibility to pay.”
Discretionary clauses unreasonably skew the balance of power further in favor of the insurer. The insurer knows it can win a lawsuit even if it made the wrong decision under a deferential standard. If discretionary clauses are prohibited, the court applies a de novo standard of review and is free to substitute its own judgment for that of the insurer, which levels the playing field.
Illinois is one of the States that has adopted the Model Act. Barrett v. Life Insurance Company of North America, a CIGNA company, was issued on June 14, 2012. Based on the Illinois law that adopted the Model Act, the court ruled that, “review will be de novo rather than measured against an arbitrary-and-capricious yardstick.” How long must New Yorkers wait for similar protection?
Thursday, July 12, 2012
I represented a 49 year old sanitation worker at a hearing after his OTR was denied. There were three points that I emphasized at the hearing; none of which concerned the medical evidence.
First, that the claimant performed unskilled work because that is all he is capable of, having attended special education from kindergarten through high school due to reading and comprehension problems that the school system considered “severe disabilities.” Second, the claimant, who worked for a New York State municipality, was found disabled under the New York State Retirement and Workers Compensation Systems. While those disability determinations were not binding on the ALJ, they certainly were in a better position to determine if the claimant could do his past work than the ALJ. Third, the claimant had been earning $70,000 annually. Therefore, I argued that it made no sense to contend that the claimant stopped working and was faking his disability so he could get about $1,887 a month in SSD benefits, which was less than a third of what he earned.
While the claimant’s OTR was denied, his SSD benefits were approved after the hearing. The only difference was the delving into the non-medical evidence. The only time it makes sense to focus on the objective evidence is when you are dealing with an ALJ who is known to deny well supported claims. In those instances, clearly describing the supporting objective on the record should improve the chances of a remand, since the Appeals Council seems to review hearing testimony closer than the documentary evidence.
Friday, June 29, 2012
Sometimes a Social Security Disability (“SSD”) claimant will retain me shortly before their hearing. When I have represented a claimant from the outset, I am usually able to submit an on-the-record (”OTR”) request for a fully favorable decision. If the OTR is approved, then the claimant receives SSD benefits without needing a hearing.
Once a hearing is scheduled, it would be highly unusual for an Administrative Law Judge (“ALJ”) to approve the OTR, since its purpose is to expedite benefits prior to a hearing. In those circumstances, requesting a bench decision should be considered.
An ALJ can orally issue a bench decision. Like an OTR, a bench decision is always fully favorable. The bench decision explains the ALJ’s reasons for granting the application at the hearing. Because the bench decision uses a short template, the decision can be issued quickly.
I was retained by a 54 year old medical equipment repairer from Florida after his hearing was scheduled. The ALJ issued his written bench decision today a week after the hearing, which was possible because it was unnecessary to spend the extra time it would have taken to prepare a typical fully favorable written decision.
ALJs may be reluctant to issue bench decisions out of concern that the Appeals Council would reject the decisions as part of the Social Security Administration’s (“SSA”) quality control. I have seen the Appeals Council reject well-written fully favorable decisions. The SSA is urging greater productivity from ALJs so it would seem to make sense for the Commissioner to make it clear to ALJs that using the bench decision procedure will not result in a rejection by the Appeals Council.
You would think that it would be obvious that when a person has worked at the same job for a quarter of a century, and says their medical condition prevents them from continuing to work, that their work ethic shows they are telling the truth. That seems especially true when the person is earning a high salary of almost $100,000 annually. What makes it even more obvious is that an ICU nurse has no transferable skills to sedentary work, and if the nurse is over 50, the medical-vocational rules require a finding of disabled even if the ICU nurse had a sedentary work capacity.
So when a 55 year old person tells the State agency that she can no longer work as an ICU nurse after 25 years, where she was earning close to $100,000 annually, and four different medical specialists provide detailed reports showing that the nurse cannot even do sedentary work, the SSD claim looks like a no-brainer. After all, why would the ICU nurse exaggerate her claim that she lacks the ability to work in order to receive SSD benefits that are less than a third of her working income? But of course then there are State agency examiner’s like F. Osorio who can’t fathom the obvious.
The State agency denied the ICU nurse’s SSD application because Osorio wanted the claimant to attend a consultative examination (“CE”) by IMA Disability. Osorio refused to address the reasons why the nurse objected to the CE; namely, that it failed to comply with the Social Security rules and regulations. Therefore, despite all the medical evidence overwhelmingly supporting the ICU nurse’s credible disability application, Osorio denied it.
Luckily, the Social Security Administration (“SSA”) immediately rejected and reversed Osorio’s denial. Earlier this month I submitted an on-the-record (“OTR”) request for a fully favorable decision, and yesterday, the SSA approved it. Therefore, the claimant avoids wait for a hearing and decision. Unfortunately, the claimant’s SSD benefits were still unnecessarily delayed by the State agency decision.
When State agency examiners deny applications because claimants refuse to attend CEs that are scheduled in violation of the rules and regulations it wastes time and money. Tax payer money. Your money. Is the State agency knee jerk insistence for CEs a boondoggle? Are CEs automatically required because State agency examiners are lazy and simply want to rubberstamp what a CE says instead of reviewing the entire medical file? By demanding a CE the State agency is saying it does not believe what the treating doctor says, which contradicts the SSA laws that say treating doctors’ opinions are supposed to be given extra weight.
Monday, June 25, 2012
Sometimes the apparent need for a hearing to determine if a person qualifies for Social Security Disability (“SSD”) benefits has nothing to do with the medical evidence. A 61 year old former attorney, who had received a partially favorable decision, retained me after she was scheduled for a hearing to see if she was entitled to SSD benefits starting from an earlier date than had been approved. After reviewing the claimant’s efolder, it became clear that the issue of the claimant’s correct onset date concerned non-medical evidence only.
The Notice of Disapproved Claim found that the claimant became disabled as of November 1, 2010, the established onset date (“EOD”). The issue on appeal was whether the claimant should have been found disabled prior to the EOD. There were no medical records that corresponded with November 1, 2010; no medical evidence that indicated the claimant’s condition deteriorated as of November 1, 2010. The sole reason for the partially favorable decision was not medically related.
Three different earnings reports prepared by the Social Security Administration (“SSA”) demonstrated that the claimant earned no money after 2008, which was consistent with the claimant’s September 5, 2008 alleged onset date (“AOD”). I notified the hearing office that the State agency analyst had issued a partially favorable decision based upon mistaken information. While implicitly admitting that the medical evidence showed the claimant was disabled, the State agency said that the work history report that the claimant submitted showed that she worked as a lawyer through November 1, 2010. However, the work history report did not support the State agency’s issuing a partially favorable decision.
The State agency interviewer who discussed the work history with the claimant clarified that the claimant stopped working for a law firm in September 2008, and then worked on her own. However, the claimant was never actually able to work regularly after September 2008, which was evidenced by the three SSA earnings reports. Additionally, even if the SSA earnings reports were wrong, and the claimant had worked, the SSA interviewer made clear that any post 2008 work would have constituted an unsuccessful work attempt.
The hearing office stated that the Administrative Law Judge (“ALJ”), who turned out to be Brian Crawley, believed that additional evidence was needed to confirm the claimant’s lack of work activity after the AOD. The ALJ gave Schedule C tax returns as an example. Two weeks after I submitted those records, the hearing office confirmed the AOD would be accepted, and therefore, the hearing would be canceled as a fully favorable decision would be issued. That decision was issued today.
Thursday, June 21, 2012
An application for disability benefits can be reopened for good cause. If a prior application is reopened, then the earlier filing date is used to calculate benefits, which can result in additional benefits being awarded.
I represent a claimant who became disabled on June 10, 2009. I filed her application for Social Security Disability (“SSD”) benefits on June 28, 2011. While reviewing the claimant’s efolder, I learned that the claimant had filed an application on her own on December 8, 2009, which she had forgotten about. I made a motion to reopen that application.
Last month, I received a fully favorable decision for a Social Security Disability (“SSD”) application. However, that decision was not actually fully favorable because it did not address my motion to reopen. Therefore, I submitted a request that the decision be reopened and amended to address the prior application. Today, I received a reopened and revised decision to reflect the December 8, 2009 application date. As a result, the claimant will receive an additional 18 months of SSD benefits.
Monday, June 18, 2012
I asked the claimant to get copies of his benefit booklets from the union. Turns out that his Summary Plan Description (“SPD”) for his pension fund does provide for benefits if he becomes disabled and the Social Security Administration (“SSA”) finds that he cannot work.
The claimant’s SSD application was approved today. As a result, he can now seek a disability award pension from the union. If you are a member of a union and become disabled, always request your SPD to see if you may potentially be entitled to receive disability benefits from your union as well as from the SSA.
Saturday, June 16, 2012
In New York, the Division of Disability Determinations of the New York State Office of Temporary and Disability Assistance (“OTDA”) decides if the medical evidence supports an application for Social Security Disability (“SSD”) benefits. If the OTDA believes that the claimant’s medical information is unavailable or insufficient, then the OTDA can pay for a consultative examination (“CE”). The Social Security rules and regulations clearly state that a claimant’s treating doctor is the preferred source for a CE, which Administrative Law Judges reluctantly admit.
Even though I submit medical tests, functionality opinions, and clinical records, when I file SSD applications, the OTDA almost without exception sends notices for my clients to go for a CE by IMA Disability Services. IMA Disability Services, which has also gone by the name Industrial Medicine Associates, is part of The IMA Group (collectively, ”IMA”).
Why are claimants always told to go to IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for CEs? Why are claimants told they have to go to IMA CEs in virtually every case? I represent a 59 year old bricklayer whose SSD benefits were paid today two months after I filed his application, even though the OTDA sent two letters stating that it was “necessary” for him to be examined by an unnamed doctor from IMA. Obviously, the CE was not necessary.
The OTDA is supposed to issue three year contracts for performing CEs through a competitive bidding process. David Pulver, the President of IMA, gave a private cocktail party and fundraiser for Alan Hevesi while he was Comptroller. The Comptroller and Attorney General are supposed to review the CE contract process, and the fundraiser occurred when IMA’s contract was pending review at Hevesi’s office. Alan Hevesi plead guilty to unrelated corruption charges, and was sentenced to 1-4 years on April 15, 2011.
As of 2009, IMA held the contracts for performing CEs in 12 of the 13 regions in the State, and now apparently holds all 13, even though a State investigation revealed that IMA engaged in a practice of improperly altering and submitting documents to OTDA in connection with its bids for CE contracts, as well as other improprieties. How much does the OTDA pay IMA annually? Certainly, IMA has a great incentive to retain its monopoly.
The money that goes to IMA comes from our taxes. It would seem that anyone interested in preventing the wasting of tax revenues would want to ask a lot of questions about IMA CEs. Since the State found that there was no undue influence behind the OTDA issuing contracts to IMA, why, as noted above, are claimants reflexively sent for IMA CEs when they are in fact not necessary? Even if a CE is necessary, why does the OTDA insist that IMA perform the exam when many claimants’ doctors would conduct the CE without cost to the taxpayer? How much do we actually pay IMA in total each year for CEs? How much would we save if the OTDA only sent claimants for a CE when they were actually necessary, and then to treating doctors?