CIGNA Loses Standard of Review Motion

A federal court applies one of two standards of review when deciding whether a plaintiff’s disability benefits under a group insurance policy or pension were properly denied or terminated. Under a de novo standard of review, no deference is given to the defendant’s decision, and the court is free to substitute its own judgment for that of the insurer. Under an arbitrary and capricious standard of review, the deck is stacked against the plaintiff, who basically must show that the defendant’s decision was irrational, let alone wrong. 

An arbitrary and capricious standard applies when the disability plan’s sponsor has delegated discretionary authority to the plan’s claim administrator. Most disability insurance companies have severely abused discretionary clauses. Consequently, many states have enacted laws prohibiting their use. 

CIGNA was forced into a Regulatory Settlement Agreement (“RSA"), (which can be found on the Cigna tab located at the top of our home page), because it so pervasively abused discretionary clauses. Despite the RSA, CIGNA continues to do everything within its power to argue that the deferential arbitrary and capricious standard applies when cases are appealed to federal court. CIGNA knows it can win a lawsuit even if it made the wrong decision if the arbitrary and capricious standard is applied. 

Judge Joseph Bianco ruled today that CIGNA’s decision to terminate long term disability (“LTD”) benefits would be reviewed de novo. 

Over the course of several years, the claimant made many requests for all plan documents from CIGNA, which repeatedly confirmed that the group insurance policy was the only plan document. CIGNA admitted that the policy did not grant it discretionary authority. Years later, after CIGNA terminated the claimant’s LTD benefits, the day before the initial conference in the lawsuit, CIGNA suddenly produced a certificate of insurance with discretionary language. CIGNA was unable to explain to the Magistrate Judge why the Certificate had not previously been produced, but CIGNA assured the Magistrate Judge that all plan documents had now been produced. 

A few months after producing the Certificate, CIGNA produced a document called Appointment of Claim Fiduciary (“ACF”), which also contained discretionary language. CIGNA claimed that both the Certificate and ACF provided it with discretionary authority. For the reasons set forth in Barbu v. Cigna, 2:12 cv-01629-JFB-WDW (E.D.N.Y. Dec. 19, 2013), (which can be found on the Cigna tab located at the top of our home page), the Court disagreed.

Prudential Cancels IME

Disability insurance companies make it a habit of asserting rights under group disability insurance policies that do not exist, such as interviews by investigators when only medical exams are allowed. 

Prudential cancelled a demand that my client attend a so-called independent medical examination (“IME”) after I insisted that my client be allowed to videotape it. Prudential asked for the IME because I submitted reports form treating physicians and diagnostic test data that all show she remained disabled – there was no change, let alone improvement, in her medical conditions. 

As an initial matter, I objected to the location of the IME. I explained that because my client’s condition makes travel difficult, if Prudential insisted on an IME, then it should be located within a 10-mile radius of her residence. She lives in Queens which is jam packed with health care professionals. There was no excuse for requiring my client to travel a further distance as there are countless physicians who work where she resides. There certainly was no reason to make my client travel across two counties, over 20 miles, to see a doctor who practiced medicine in a specialty that was unrelated to her disability. While Prudential might have the right under the policy to an IME, it does not have the right to schedule an IME at an unreasonable location. 

Regardless of the unreasonable location of the IME, I stated that my client would attempt to comply. However, I warned Prudential that because they scheduled the IME at an unreasonable location, there was a very good chance that she would not be able to remain for its duration, which is why I suggested having the IME at a closer location. Prudential seemed to think scheduling an unreasonable IME was not a problem because they offered transportation. I explained that offering transportation was irrelevant because I had informed Prudential that the claimant would appear with a witness who would drive her. More importantly, the fact that Prudential would provide transportation would not reduce the amount of time that it would take to get to the unreasonable location of the IME. Furthermore, Prudential’s statement that the driver could stop so the claimant could stand and stretch was irrelevant because she needs to lie down, not stand up, to relieve her pain. 

Prudential canceled the IME because I stated that the claimant’s witness would videotape it, to which they objected. In half a dozen letters, I stated that there was absolutely nothing in the Group Policy that forbids videotaping an IME. Each time I told Prudential that if they disagreed to send me a copy of that part of the Policy that they claimed forbids it. They never did, which was an admission that no such provision existed. I explained to Prudential that the fact that the IME doctor did not want the IME videotaped was irrelevant to the terms and conditions of the Group Policy, and that they were breaching the Policy by imposing a condition that did not exist in it. I made it clear that I did not refuse to allow my client to attend the IME with her companion. To the contrary, I repeatedly told Prudential that both the claimant and her witness would attend the IME, even though they had scheduled it in an unreasonable manner so as to inconvenience her. Faced with admitting there was nothing in the Policy prohibiting a claimant from videotaping the IME, Prudential chose to cancel it.

Disability And Work History

A claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The underlying premise is that a person with a good work ethic would continue to work if possible. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant is telling the truth when he says he stopped working because of a disability. 

The presumption of credibility is even stronger where a claimant has a long work history with the same employer because this indicates the claimant liked the work and the employer liked claimant. The presumptions regarding an applicant’s credibility must be considered from the outset in the Social Security Disability (“SSD”) context. An SSD application only seeks the claimant’s work history for the last 15 years because after that time it is presumed that any acquired work skills will be stale. If the claimant has a strong work history beyond the 15 year period, then it should be stressed to support credibility, even though the history will be irrelevant to transferability of acquired work skills. 

I represent a 48 year old who drove a truck for Pepsi for over a quarter of a century. He had to stop working due to back problems. His SSD application was approved today without a hearing. Many other claimants under 50 years of age with similar back problems have been required to proceed to a hearing. The difference here is that the claimant’s work history provided objective evidence that rendered his subjective complaints credible.

Cirrhosis

According to WebMD, Cirrhosis is a slowly progressing disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning properly. Symptoms and its complications often include: fluid buildup in abdomen called “ascites,” fatigue, weight loss and muscle wasting, belly pain, frequent infections, and confusion. Cirrhosis is the 12th leading cause of death by disease. 

A 45 year old, who worked as a roofer for over 25 years, retained me after his Social Security Disability (“SSD””) application was denied, based on the vague opinions of the Social Security doctors. I worked with the claimant to get a functionality opinion from his board certified gastroenterologist to explain why the claimant’s liver problem rendered him incapable of working. 

I prepared an OTR that argued the gastroenterologist’s disability opinion was entitled to controlling weight. The objective evidence for the cirrhosis diagnosis was abundant: a hospitalization for paracentesis to remove ascites; CT testing revealing pelvic ascites; and spleen scan and abdominal sonogram that confirmed the cirrhosis, hepatomegaly, and significant liver fibrosis. In light of the clear objective evidence supporting the diagnosis, the only issue was the severity of the condition. 

In addition to the weight favoring a treating doctor’s opinion, I contended that the claimant’s work history supported the credibility of his complaints. The Administrative Law Judge agreed, approved the OTR, and canceled the hearing.

Common Sense

Multiple Sclerosis (“MS”) is a chronic and often disabling disease. When seeking Social Security Disability (“SSD”) benefits based on MS, the strongest evidence is that which shows the claimant meets the MS “listing.” If you establish that you meet the criteria of 11.09 for MS, then you are presumed to be disabled, and no further medical or vocational development is required to establish entitlement to SSD benefits. The listing opinion should come from the treating neurologist.

Because the symptoms of MS frequently wax and wane with remissions, it is sometimes difficult to get SSD approved, even with a supporting listing opinion. I was retained by a 48 year old Printer Graphic Designer after his SSD application had been denied twice on the grounds that he could do sedentary work. The claimant had been earning over $120,000 annually.

I filed papers contending that a hearing was not needed to evaluate the claimant’s credibility because the only issue was whether he was exaggerating his claim that he lacks the ability to perform sedentary work in order to receive SSD benefits equal to an eighth of his working income. It was common sense that the claimant would have continued to work if he could. The Administrative Law Judge agreed, and approved SSD benefits today.

Pre-onset Medical Evidence

Disability applications require applicants to provide a date when they could no longer work. The claimant has the burden of proving that he or she became unable to work as of the onset date due to medical reasons. However, just because medical evidence may predate the relevant disability onset date, does not mean that the evidence is irrelevant. 

Medical records and reports that predate the disability onset can be used to establish disability as of the onset date, and thereafter. If the claimant’s post onset symptoms relate to the pre onset condition, then the records should be relevant to show that the severity of the condition progressed. While this may seem obvious, I had a Social Security Disability (“SSD”) claim denied by an Administrative Law Judge (“ALJ”) from Queens who asserted that medical evidence predating the onset date was irrelevant. That case was eventually reversed in the claimants’ favor. 

I represent a claimant whose SSD application was approved by an ALJ from Jericho today, but only after providing pre onset medical evidence. Due to lack of medical insurance, the claimant had relatively little post onset medical evidence. However, medical records shortly before the onset included diagnostic testing that clearly established a progressive medical condition. The ALJ relied on the diagnostic testing in order to establish the onset date, as well as subsequent symptoms that supported continuing disability.

Aetna Reverses LTD Termination

I represent a former marketing sales manager with narcolepsy and Chronic Fatigue Syndrome (“CFS”) whose LTD benefits were terminated after she attended an independent medical exam (“IME”). Disability insurers usually ask claimants to attend an IME when all of the evidence submitted supports entitlement to benefits. 

Insurers pay for an IME in order to manufacture contradictory evidence when all the evidence shows a claimant cannot work. When an insurer makes the commitment to incur the expense of an IME it normally means that it has already decided to terminate the claim. In the absence of evidence showing that the claimant’s medical condition has improved, the insurer knows that it must pay an IME to support the termination, which typically involves the IME doctor claiming that the objective evidence does not support the treating experts’ restrictions and limitations. 

Insurers will claim that an IME is needed to clarify the medical restrictions and limitations even where the treating experts provide very detailed functionality assessments. The insurers will simply fail to provide any reason for requesting the IME, which proves that there is no legitimate reason for the IME, other than to create a written report to support the predetermined financial incentive to terminate the claim. 

IMEs are not “independent” in the sense of unbiased, or fair and equitable. The purpose of an insurer’s IME is to have the claimant examined by a doctor who is in the pocket of the insurance industry for the purpose of agreeing with all internally provided medical reviews supporting non-payment of claims. Insurers argue that “independent” means an examination by a physician who never examined the claimant. Notably, a CIGNA managing agent recently testified that an IME is only independent if hired by CIGNA – and that doctors hired by a plaintiff who never examined the plaintiff are not independent. 

Because insurers paying a lot of money for an IME, they rely solely on the IME, and give no consideration to the claimant’s treatment records and medical restrictions and limitations from the treating physicians that preclude work. If that were not the case, then insurers would have to pay disability benefits when the evidence supports continued disability without requiring an IME. 

The primary problem with Aetna’s termination was that it ignored all of the evidence in favor of the IME. Besides the fact that Aetna’s own in house doctor said that the IME should be performed by a sleep specialist, the IME was performed by a neurologist, with no narcolepsy or CFS experience, which focused on the claimant’s physical capabilities and memory, but disregarded the narcolepsy and CFS. Significantly, the IME stated the claimant could work in an occupation that was “well supervised.” I obtained a detailed vocational evaluation which stated that all of the occupations Aetna said the claimant could do required the ability to work independently, complete deadlines and handle many tasks at one time, and none of those occupations were well supervised. Confronted with concrete evidence undermining the premise for the termination, Aetna reversed its decision.

Social Security Benefit Increase

The Social Security Administration made it official that benefits, including disability benefits, will increase 1.5% next year. The annual Cost Of Living Adjustment (“COLA”) is supposed to enable fixed income benefit recipients to keep up with the cost of inflation. However, as medical cost increases exceed many other costs, the COLA is usually inadequate for the disabled, who normally have greater need for medical care.

Wegener's Granulomatosis

According to the Mayo Clinic, Wegener's Granulomatosis, also known as granulomatosis with polyangiitis (“GPA”), is a rare disorder that causes inflammation of your blood vessels. This inflammation restricts blood flow to various organs. 

There is no known cause for GPA, which is commonly treated with immunosuppressive therapy, in which case the patient is advised to avoid large groups of people. According to the American College of Rheumatology, GPA causes shortness of breath, joint pain, numbness and loss of movement in the extremities, among other things. 

I represent a 58 year old bookkeeper with GPA whose Social Security Disability application was approved today, five months after it was filed. The claimant was sent letters on four separate occasions demanding that she attend a consultative examination (“CE”) by IMA Disability Services that stated she needed to attend the CE in order to have her SSD application approved. 

The claimant declined each CE. The claimant’s rheumatologist and neurologist each submitted reports explaining that the GPA precluded her from being able to work. I advised the State agency that a CE was not needed because any medical information could be provided by the claimant’s specialists. I am confident that had the claimant attended the CE, which experience has shown is often cursory and even fraudulent, then the State agency would have relied on the CE to deny the application despite what the treating doctors said.

Reopening Prior Application

Why reopen a prior application? The answer is that it can result in being awarded additional benefits. There is a full 5 month waiting period to receive Social Security Disability (“SSD”) benefits. Thus, if you became disabled on October 25, 2013, the alleged onset date (“AOD”), then you would first become eligible to receive SSD benefits in April 2014, the date of eligibility (“DOE”). 

An application can provide retroactive SSD benefits up to 12 months before the month in which the application is filed. Therefore, a claimant will not lose any benefits as long as the application is filed within 17 months of the AOD, by combining the 12 month retroactive benefit and 5 month waiting periods. 

Reopening a prior application is only automatic if it is done within 12 months after the initial determination on an SSD application. The regulations provide that an application can be reopened within 4 years for good cause, which includes new and material evidence. 

I represent the widow of a claimant, whose SSD application was approved today. By providing new and material evidence, I persuaded the Administrative Law Judge to reopen a prior application. As a result, nearly 2 additional years of benefits will be awarded.

SSA “Quality” Review By QRB

For many years, the Social Security Administration (“SSA”) has reviewed about 1% of the decisions made on Social Security Disability (“SSD”) applications. That percentage significantly increased about two years ago when the SSA enacted new procedures for Appeals Council “own motion review” cases by the Appeals Council’s Quality Review Branch (“QRB”). During the past two years, I have seen a five fold increase in the number of cases subjected to “quality” review. 

The QRB only reviews favorable and partially favorable decisions by Administrative Law Judges (“ALJs”). There is no explanation why the QRB is not concerned about the quality of unfavorable decisions, which shows that the intent of the new rules is simply to increase the number of denied claims. It is unclear if the QRB is randomly sampling decisions, or targeting ALJ's who have higher rates for approving SSD decisions. 

On December 14, 2012, the QRB sent me a letter stating that if I failed to provide additional evidence to support an ALJ’s October 18, 2012 fully favorable decision, then the QRB would reverse it. On December 17, 2012, I sent a detailed letter explaining that I refused on the grounds that the decision was amply supported by objective evidence. On June 6, 2013, because a half year later the QRB still had failed to act, I asked the QRB to stop wasting everyone’s time, and either to confirm the ALJ’s decision so the claimant could get paid, or reverse the ALJ’s decision so I could appeal to federal court. 

On July 29, 2013, instead of reversing the ALJ’s fully favorable decision, the QRB remanded it. Today, without a hearing, the ALJ issued a fully favorable decision. The QRB procedure was a colossal waste of time and money.

Dire Need

The Social Security Disability (“SSD”) application process is a slow one. When people lose their income because of a disability, especially those with little or no savings, they wind up having severe financial troubles. Social Security has a priority plan and procedures to expedite the processing of SSD applications for the most serious claims first.

Dire Need is one basis for expediting. The inability to pay for food, medical needs, or housing can constitute dire need. Providing documentation of creditor threats, late payment, foreclosure papers with a letter explaining why you cannot pay for medications, obtain needed clinical or hospital treatment, or pay for critical expenses, such as utilities, rent, car lease, will help substantiate the dire need.

I represent a 49 year old former administrative services for an insurance company who had to stop working primarily due to spinal cord lesions. Despite a protracted work history, the claimant became destitute. After bringing the claimant’s situation to the attention of the hearing office, buttressed by 40 page letter and documentation detailing her dire need, her case was expedited, and approved in 6 weeks.

Just because a claim is expedited does not guarantee that it will be approved. However, if the claim is going to be denied at a hearing, then it is still better to get the denial expedited to hasten review by the Appeals Council.

Padro Settlement Approved

District Court Judge Carol Bagley Amon gave final approval today to the proposed settlement in the Padro Class Action, despite the objections of ALJ Hazel Strauss. It needs to be seen if the Queens Five will revert to their biased tactics after the time period covered by the settlement expires.

Social Security Increase

It is expected that Social Security recipients will receive a 1.5% increase in their monthly benefits next year.  That includes people who receive retirement and disability benefits.  

Since 1975, the annual automatic cost of living adjustment ("COLA") has averaged 4.1%.  The purpose of the COLA is to help people on fixed incomes keep up with inflationary prices increases. 

Government Shutdown

Due to the shutdown of the Federal Government, there will be a reduction in services provided by the Social Security Administration. Your local field office will remain open, but with limited services, and it needs to be remembered that its hours have already been reduced as a result of sequestration.  Those services include helping you apply for benefits or request an appeal for benefits.  The hearings offices will remain open for Administrative Law Judges to conduct hearings, but it appears that the effectuation of disability benefits for new claimants will be delayed. Social Security Disability and Supplemental Security Income benefit payments will continue with no change in payment dates.
 

More DDS Waste

I regularly write about situations where the State agency known as Disability Determination Services (“DDS”) wastes taxpayer time and money. I need to address this topic again, only a week after I last did so. 

A 61 year old former communications electrician supervisor, which the U.S. Department of Labor’s Dictionary of Occupational Titles describes as heavy work, asked me to handle his Social Security Disability (“SSD”) appeal last month. I immediately prepared and submitted an OTR , which was approved in less than a month. 

The Administrative Law Judge (“ALJ”) promptly approved SSD benefits based upon the opinion of the DDS doctor, who said the claimant should avoid even mild exertion due to his ischemic heart disease. The ALJ’s rapid approval of the claimant’s SSD application based upon the opinion of the DDS’s own doctor shows that the State agency’s review was a complete waste of time, which then required the ALJ to review the claim a second time, thereby duplicating the resources needed to approve an obviously meritorious disability claim. 

In my prior blog entry I explained how DDS fraud wastes taxpayer money by denying SSD applications after a claimant objects to a consultative examination (“CE”) by a DDS doctor. Here, the claimant attended the CE, the CE said the claimant should avoid even mild exertion that precludes any type of work, let alone the claimant’s past heavy work requiring lifting up to 100 pounds, yet the DDS still denied the SSD application. 

The Social Security Administration (“SSA”) did away with the reconsideration step of the appeal process in New York and some other areas. Perhaps the SSA should also eliminate the initial decision making process by the DDS. The SSA could then use some of the savings to hire more ALJs, staff attorneys, and support staff to make the initial decisions.

Fraud In The Social Security Disability process

I represent a 49 year old delivery truck driver whose application for Social Security Disability (“SSD”) benefits was approved today by an Administrative Law Judge (“ALJ”) today without a hearing. The only problem is that the State agency (“DDS”), which makes the initial disability determination, should have approved the application without the need for an ALJ to review it. 

The DDS denied the application because at least one of its employees, or IMA who has the contract from the DDS, committed fraud. The DDS told the claimant that a consultative examination (“CE”) was required. Most of the time, the DDS request for a CE  is not actually required. Searching my blog will reveal many entries discussing how IMA, the service that performs New York CEs, sends claimants for CEs even though to do so is contrary to the Social Security rules and regulations . IMA is happy if DDS disregards the rules and regulations because it means it will earn more money. There is no credible way that the DDS can claim it is unaware that excessive CEs are being requested. 

Claiming that a CE is needed when one it not required under the rules and regulations is wrong. Lying about the facts in order to have IMA do the CE is fraud. 

According to a disability adjudicator/examiner named Antonio Rivera, a CE was required in my client’s case. That conclusion was wrong because under the circumstances the request for the CE was not authorized by the rules and regulations. However, Mr. Rivera then indicated that none of the claimant’s doctors were contacted to do the CE, as the rules and regulations require, because they do “not accept the state approved vendor fee.” That assertion was false. 

If the DDS never contacted the treating doctors, then the DDS had no way of knowing that the treating sources would not accept the fee for performing the CE. Furthermore, there was no report of contact or letter in the claimant’s file showing that the DDS made any attempt to contact any of the claimant’s doctors by phone or in writing about doing a CE. Moreover, Rivera stated that the claimant refused to attend a CE, which was also untrue. To the contrary, the claimant advised the DDS, in writing, that he would attend a CE by a treating doctor in accordance with the Social Security rules and regulations. 

Scheduling CEs when they are not needed or consistent with the rules and regulations is a waste of time and tax payer money. Are the DDS disability adjudicator/examiners required for undisclosed reasons to insist on CE’s when contrary to the rules and regulations? Do DDS disability adjudicator/examiners demand that CEs be done because it is easier for them to rubberstamp a CE conclusion instead of reviewing the entire medical file? Do DDS disability adjudicator/examiners insist that CEs be done because they assume that the opinions of treating doctors cannot be trusted, which contradicts the rules and regulations that require extra weight be given to treating doctors’ opinions? 

Unnecessary CEs waste money in two ways. First, if they are performed, then they waste money by requiring payment for something that was not needed. Second, denying an application for refusing to attend an unlawful CE wastes the resources of the ALJ and hearing office that have to review the denied application, which should have been approved initially by the DDS.

Medical Expert Interrogatories

“No news is good news.” That is the situation when an Administrative Law Judge (“ALJ”) fails to notify a Social Security Disability applicant about a response to interrogatories that the ALJ sent to a medical expert (ME”). 

I represent a 59 year old assistant factory manager with neck and back problems, whose hearing was scheduled for next Monday, today being a Friday. On August 23, 2013, the ALJ sent interrogatories to an ME without notifying me or the claimant. I learned about the interrogatories while preparing for the hearing. I checked about a week later, and no responses were in the claimant’s efolder. 

I had a similar situation last year with a different ALJ, and the day before the hearing the hearing assistant called my office to say the case was being granted. Not being provided with a copy of the interrogatory responses meant one of two things. Either the interrogatory responses supported a fully favorable decision, or the ALJ violated the procedural rules in the “HALLEX” that would provide concrete grounds for an appeal. 

As noted above, the ALJ’s assistant notified us that she was approving SSD benefits and cancelling the hearing. Having seen that there were no interrogatory answers in the efolder, that news came as no surprise.

Reviewing An Employer’s Work Description

The typical Long Term Disability (“LTD”) application has three forms; one for the claimant, one for the treating doctor, and one is for the employer. While the doctor’s form provides the medical information, the employer’s form provides the vocational information. The importance of the Employer’s form should not be overlooked because the vocational evidence is just as important as the medical evidence. It is especially easy to disregard the importance of the Employer’s form if the insurance company processing the LTD application sends it directly to the employer for completion. 

I filed an LTD application with Guardian Life Insurance Company of America for a 55 year old floor trader who sustained left leg, right hand and arm injuries. The claimant stood virtually the entire day at work. However, when I asked for a copy of the Employer’s form from Guardian, the Human Resources manager indicated the job was sedentary. After notifying the discrepancy with the claimant, he obtained a letter from his direct supervisor attesting to the fact that the occupation required being on his feet most of the day, as well as a letter from the Human Resources manager that her error happened because she used the incorrect job description to complete the Employer’s form. 

I received a letter today from Guardian approving the LTD application. There is a very good chance that the application may have been denied absent the correction to the vocational information provided by the Employer’s form.

Podiatrists

The Social Security regulations specifically state that podiatrists are acceptable medical sources for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle. Nonetheless, claimants often overlook podiatrists when seeking Social Security Disability (“SSD”) benefits. 

I have stated in the past not to underestimate the importance of podiatrists when applying for disability benefits, which some claimants apparently do because foot problems are not the primary impairment. When a foot problem is the primary problem, the treating podiatrist’s opinion is paramount. 

I represent a 48 year former warehouse worker whose suffered injuries in a vehicular accident. His main injury was to his left foot, although he also sustained severe neck and back injuries. His SSD application was approved today. While the claimant submitted a report from his neurologist explaining how his neck and back injuries prevented him from working, the Administrative Law Judge gave greater emphasis to the opinion of the claimant’s podiatrist. 

If you have a foot injury, regardless of whether its your primary problem, your podiatrist’s records and disability opinion should be sought.

Off Task

I received an interesting fully favorable decision today for a 49 year old former fire fighter with pulmonary problems that originated from 9/11 related exposure. 

The claimant’s breathing problems resulted in sleeping problems, which caused the claimant to sleep during the day. Furthermore, the claimant’s medications exacerbated the claimant’s daytime somnolence. As a result, the Administrative Law Judge (“ALJ”) found that the claimant would be off task at least 20% of the work day. 

I researched the various Social Security rules and regulations, but did not find anything regarding being off task and disability. However, a review of the case law revealed dozens of cases where vocational experts unanimously testified that a person would be disabled from substantial gainful activity if off task 20% of the time. 

Many symptoms, such as pain, fatigue, or mental disorders causing a lack of focus and concentration, can effect a person’s ability to stay on task. Medical opinions regarding the percentage of time that impairments cause claimants to be off task should be incorporate into functional assessments. Not only can an opinion supporting a claimant’s inability to stay on task provide positive evidence to support a claim, but it can also provide ammunition to cross examine an unsupportive vocational expert.

Social Security Reconsideration

In most States, if your application for Social Security Disability (“SSD”) is denied, the first appeal you can file is a Request for Reconsideration. Seeking reconsideration only requires you to complete a short form concerning any changes in your health, and any work you have done since you filed your SDD application. Like the first level of review, reconsideration decisions are made by a claims examiner from the State Disability Determination Services (“DDS”). 

New York is one of the States where reconsideration of an SSD claim denied for medical reasons has been eliminated. Most reconsiderations are denied; about 85% of cases. Criticism about reconsideration being a rubberstamping formality led to its elimination in some states. 

 I represent a 49 year old electrician whose SSD application was approved by the New Jersey DDS. What makes the reconsideration approval especially rare, is that no additional medical evidence was submitted. This indicates that the DDS recognized its original decision was seriously flawed. While the decision saved Social Security resources by reducing the hearing office caseload, one wonders why the application was not approved form the outset.

Fully Favorable Decisions

Not all fully favorable decisions from Social Security are actually fully favorable. A couple of months ago, I received an approval of Social Security Disability (“SSD”) benefits from an Administrative Law Judge (“”ALJ”). During the hearing, I amended the claimant’s onset date to January 2010. However, when I reviewed the decision, I noticed that the onset date was amended to June 2010. 

There is a 60 day period to raise any issue with respect to a hearing decision. I notified the hearing the office of the discrepancy. Today, a revised hearing decision was issued that accepted January 2010 as the amended the disability onset date. As a result, the claimant will receive an addition half year’s SSD benefits. Even if you receive what appears to be a fully favorable decision, you need to review it carefully to ensure that no benefits are effectively being waived.

Operative Reports

It is not uncommon for an Administrative Law Judge (“ALJ”) to deny a Social Security Disability (“SSD”) claim on the grounds that a medical condition is not severe enough to be disabling because the claimant did not have surgery.  The case law had made clear that it is not necessary to have surgery to show that medical condition is disabling.  Nonetheless, if you have undergone surgery, then it should be obtained and submitted as evidence.

I had two cases that were approved today without any difficulty.  Both claimants sustained orthopedic injuries from motor vehicle accidents.  The first case involved a 48 year old warehouse manager whose foot was crushed, and the other concerned a 41 year old paralegal whose neck and back were injured.   

Generally, Social Security prefers denying SSD benefits to claimants who are under 50 years old.  I have had many claimants who are under 50 years old with motor vehicle injuries who retained me after their SSD application was denied.  What the two cases I had today in common was that each claimant underwent major surgery.  Each ALJ decision highlighted the surgery.

Treatment reports and functional capacity assessments can suffice to establish entitlement to SSD benefits.  However, operative reports tend to lead to faster claim approvals.  Many ALJs favor what Social Security doctors say over treating doctors because the ALJs think that treating doctors’ reports overstate a claimants’ disability in order to help them get SSD benefits.  It seems that ALJs perceive surgery as evidence that a treating doctor is not exaggerating the extent of a claimant’s inability to work.

Unusual SSD Approvals

I received two very different and unusual approvals of Social Security Disability (“SSD”) applications today. 

The first was a fully favorable decision from the Appeals Council (“AC”). While that by itself is rare, since most AC decision are either remands or denials of relief, this decision was particularly rare because the Administrative Law Judge (“ALJ”) had approved the application last month. On its own initiative, the AC decided to review the ALJ’s approval, and decided that there was nothing to do. I have had more reviews by the AC on its own initiative during the last year than in the last ten years combined. It is unclear whether such reviews are a wise use of the Agency’s limited resources. 

The second unusual decision was a fully favorable approval of an application that was filed almost a decade ago in 2004. I took over the case after it had already been to federal court. After I took the case to federal court a second time and two more hearings with medical and vocational experts, the claimant’s application was finally approved.

Risky Side Effects

Disability claim adjudicators try to guess claimant’s motivation for seeking disability benefits. Depending upon the type of disability benefit at stake, different methods are used to determine motivation. 

Long term disability (“LTD”) insurers, such as Unum and Cigna, assume that claimants are lying about their disorder in order to defraud the insurer out of their money. LTD insurers use surveillance, field visits, and background checks for criminal history, financial problems and so, to create evidence to show that claimants are being dishonest. LTD insurers have adopted an irrational culture of corporate paranoia as a way of doing business. 

Social Security has rules and regulations that provide how a claimant’s credibility must be assessed. While those rules and regulations can be misapplied, they at least provide an objective guideline that provides grounds for appeal when not followed. One of things that Social Security is supposed to analyze when evaluating a claimant’s credibility are the side effects of medication. 

 I represent a 43 year old stock broker with psoriatic arthritis whose Social Security Disability (“SSD”) claim was approved today, without a hearing. The diagnosis of psoriatic arthritis itself does not show that the claimant was disabled. Like other psoriatic arthritis cases that I have had where a hearing was required, the stockbroker’s doctors provided reports explaining why the condition precluded work. What is different here was the claimant’s treatment. 

For years, the claimant has been required to take Humira, Remicade and now Enbrel injections. Those medications are known as disease-modifying antirheumatic drugs (“DMARDs”). DMARDs have very serious side effects caused by the medications’ blocking the immune system. I contended that the claimant having no choice but to continue taking DMARDs shows that his psoriatic arthritis is very severe. The Administrative Law Judge agreed, and approved the SSD application.

ALJ Strauss Claimants

If you had a Social Security hearing before Administrative Law Judge (“ALJ”) Hazel Strauss where you thought you were denied a fair hearing, now is your chance to let her know.

The federal court has scheduled another Fairness Hearing regarding the Padro class action for September 16, 2013. ALJ Strauss asked Judge Amon for the opportunity to speak at the Fairness Hearing. Notably, ALJ Strauss made use of government resources, official SSA letterhead, envelope, and apparently postal meter, to mail her personal request.

ALJ Strauss wants to complain to Judge Amon about how unfairly she has been treated in the Padro class action. I am sure that Judge Amon would like to hear from claimants who were treated unfairly by ALJ Strauss as well.

Unsuccessful Work Attempt

Just because you worked after the date you said you became disabled does not automatically mean that you cannot get Social Security Disability (“SSD”) benefits. An unsuccessful work attempt (“UWA”) is one way that you can receive SSD benefits even if you have worked after your disability began. 

I represent a 50 year old motor equipment operator with back problems whose SSD application was approved today without a hearing. The claimant stopped working on May 24, 2012. However, the claimant did try to resume working in March and April of this year, but had to stop when working exacerbated his symptoms. 

If you worked for less than three months because of your medical impairment, the work effort can be treated as an UWA. Your impairment may have caused you to leave because you couldn't do the work, your doctor's restrictions wouldn't allow you to do the work, or the removal of special conditions, known as accommodations, were removed. Examples of accommodations include: assistance from other employees; special equipment; modified work schedule; to work irregular hours; extra breaks; and so. 

Because the claimant stopped working within three months for the reasons set forth above, his UWA did not stop him from receiving any SSD benefits. Had he worked between 6 and 9 months, then the requirements for qualifying as an UWA would be more restrictive.

Unum Pressures Doctors

When I represent a claimant for an Long Term Disabilty (“LTD”) claim, I send a letter of representation letter with specific instructions to the insurance company to have no further contact with the claimant, and that all communication goes through me. I also advise the claimant to set up a meeting with their doctors to ask them not to speak to anyone, including doctors, who call the insurance company handling their claim.

Why do I take these measures? Unum, in particular, has a habit of calling and harassing the claimant’s doctors. This bullying is done on purpose, calling the doctors in the middle of the day, during their busiest time. The claimant’s doctor may just provide information, without even checking their patients. This is why it is imperative to have a face to face conversation with all your doctors when applying for LTD.

Patchogue Continued Ineptitude

I submitted an application on December 3, 2013 to the Patchogue field office. The application was sent no less than 20 times due to our experience with that office losing or "never receiving" the paperwork. SS requires originals of some of the documents and those are mailed the same day the application is faxed. Somehow, this office never seems to get their mail, because they are forever accusing us of not mailing originals. Because of their ineptitude, we now ask claimants to send us duplicate orgininals so we are prepared to mail them again, when Patchogue claims not to have received them.

My office has been calling on this application since December, including calling the Office of Public Affairs. However, it is impossible to call and speak to anyone at the Patchogue office since they have all their phone calls rerouted to Social Security's national number. This does not help since they cannot tell us if Patchogue has received anything from us. We were forced to fax Patchogue letters, asking them to call us regarding this claimant since we cannot reach them by phone. They did not, and have not called us. We were assured in February by Public Affairs that Patchogue was overwhelmed and backlogged with work but would get the application processed.

My office spoke to Public Affairs again in April, only to be told that Patchogue claimed they had never received the original documents. My office mailed them our "duplicate" originals that same day. Today, Public Affairs advised me, almost 9 months after the application was originally submitted, and 4 months after the "duplicate" originals were mailed, that Patchogue still says they never received the original forms and cannot process the application. Patchogue even went as far as to lie to Public Affairs by telling them they sent us a letter stating this. We have not received any correspondence from them regarding this claimant.

Is Strauss Serious?

The Padro Class Action brought bias charges against five Administrative Law Judges (the “Queens Five”). I think that there is a fairly strong consensus that Hazel Strauss is easily the worst of the Queens Five. During the Padro litigation, one of the things that Social Security pointed to as evidence that the Queens Five had learned their lesson was that the percentage of cases that the Queens Five were approving had increased – that is, except for Strauss. 

Judge Amon has held a fairness hearing in connection with the proposed settlement in Padro, and is deciding whether to approve it. The settlement essentially provides for a 36 month probationary period for the Queens Five. I have maintained that after the 36 month period, I expect the Queens Five approval rates to revert to pre-Padro levels. 

Before the Padro settlement terms were proposed, the Queens Five at least had the commonsense to recognize that they had to change their conduct during the pendency of the Padro litigation. That is, all the ALJs comprising the Queens Five except for Strauss. Strauss’ approval rate has not changed, and is half that of the rest of the Queens hearing office.

That leads to today’s question, “Is Strauss serious?” Strauss wrote a letter to Judge Amon claiming that it was wrong for Plaintiff’s counsel to tell claimants, “that the ALJs had acted wrongfully, which was the reason for the Settlement Agreement.” I guess Strauss’ employer, the Social Security Administration, is requiring that thousands of disability claims be reheard for absolutely no reason at all. Obviously, the Padro allegations were not baseless.  Has she actually deluded herself into believing that she is innocent of the charges?  Read pages 58 through 66 of the Amended Complaint, which can be accessed on the “Padro Class Action” Tab of my webpage. Those pages summarize some of the highlights about what federal district court judges – not claimants’ attorneys – have said about Strauss. 

Despite the aforementioned, Strauss has the incredible hypocrisy, the audacity, the temerity, the gall, the impudence to write a letter to Judge Amon howling that she has been vilified and the Settlement Agreement should contain “specific unequivocal language that this Settlement in no way makes any finding that there has been any wrongdoing” on her part. Strauss closed her letter with a plea for “fair and equitable treatment,” the one thing that she has so callously and repeatedly denied disability claimants. 

Strauss claimed that the other ALJs share her views and make the same request. Funny thing though, none of the other ALJs signed the letter that she submitted to Judge Amon.

Is It The New Commissioner?

I had two Social Security Disability (“SSD”) claims with nothing in common that were approved today. While that is not unusual, the fact that each had only been filed less than months ago is. The first SSD application was filed a month ago, and involved a 58 year old heavy equipment supervisor with back pain. The second SSD application was filed two months ago, and involved a 57 year old motor vehicle license examiner with Marie Charcot Tooth Disease. 

No unusual type of medical evidence was submitted in these case to explain the rapid approvals. Furthermore, the Social Security Administration typically slows down during the summer months. The next few weeks should disclose whether this was an odd coincidence, or part of a designed process to expedited the processing of SSD claims.

Padro Class Action Problem

I received an order today from the Appeals Council that exemplifies the problem with the proposed settlement of the Padro class action. The order remanded an unfavorable decision from ALJ Hoppenfeld. Hoppenfeld’s conduct in this matter was even more reprehensible compared to the allegations asserted against her in the Padro class action complaint, which can be accessed via hypertext on my website’s “Padro Class Action” tab.

While the Appeals Council remanded the matter, it concluded that there was no bias because it myopically only considered the allegations in connection with the claimant’s individual case. I showed that Hoppenfeld’s countless gross violations of well settled hearing procedures, which the Appeals Council admitted resulted in a denial of Due Process, were the result of Hoppenfeld’s longstanding pattern and practice of biased decision making.

In other words, the Appeals Council did what is always does – it turned a blind eye to the fact that Hoppendfeld’s transparently wrong errors of fact and law were part of her general bias against claimants. The Padro settlement failed to achieve the goal of the action, which class counsel said was to remove the Queens Five. As a result, the Appeals Council will continue to bury its head in the sand when it reviewing decisions that were obviously the result of bias.

Padro Class Action Hearing Next Week

On July 16, 2013, Judge Amon issued a scheduling order for the Padro Class Action fairness hearing, which is scheduled for July 24, 2013 at 2:30p.m. at the Courthouse located at 225 Cadman Plaza East, Brooklyn, NY 11201.  Fourteen individuals were granted permission to speak for up to five minutes each, to discuss whether the proposed terms of the settlement are fair, reasonable, and adequate. 

If you have questions regarding how the settlement affects your claim you can contact class counsel or our office for information. Mr. Delott was one of the only two attorneys who was willing to submit an affidavit in support of the bias allegations against the Queens Five.  Even Binder did not submit an affidavit in support of its clients and other claimants whose disability claims were denied by the Queens Five.

Replace UNUM

That is what Linda Nee, a former Unum employee and whistle blower, says that employers should do. In her blog today, Ms. Nee suggested that employers can protect employees from Unum’s abuses by replacing Unum with another insurance company, or by insisting on a “service contract” designed to provide a fair review, if the employer has more than 2,000 employees. 

Unum has had a poor reputation for a very long time, and was actually found to be the second worst company in the entire insurance industry.  That finding came several years after the 2004 Regulatory Settlement Agreement (“RSA”) in which the U.S. Department of Labor and the state insurance regulators forced Unum to reconsider about 200,000 disability benefit claims that it previously denied or terminated. The RSA was supposed to ensure that Unum cleaned up its act.

Ms. Nee’s blog focused on service contracts, but the easier course of action would seem to be replacing Unum. The problem is that many other insurers have started adopting Unum’s methods. CIGNA did so, and as a result, was recently subjected to an RSA, which can be found on the CIGNA tab on my home page, that was modeled on the 2004 Unum RSA.  If switching carriers fails to result in fairer claims processing, then the best answer is asking the employer to insist on a policy that does not provide Unum or the replacement insurance company with discretionary authority, which is the source for most of the unjust actions by the insurers.

Court Said IME Doctor Lied

New York State Supreme Court Judge Duane Hart concluded that an “independent medical expert” (“IME”) named Michael Katz, who insurance companies regularly employed to undercut workers' compensation claims, lied about how extensive his exams were. 

Dr. Katz claimed that he performed various tests during his 20 minute examination. However, the claimant’s videotape of the exam showed that it lasted less than two minutes, and that the tests were not done. Judge Hart declared that Dr. Katz had lied, and stated that the matter should be referred to the District Attorney to prosecute for perjury. The judge also imposed $10,000 sanctions upon the attorneys representing the insurance company that hired Dr. Katz. 

Long Term Disability insurers are well known for their using IMEs to create evidence to contradict the supporting treating medical experts. However, it seems to me that Judge Hart’s conclusions can also be applied to the consultative examinations (“CEs”) that are done in connection with Social Security Disability (“SSD”) hearings. 

I have advised administrative law judges (“ALJs”) for years that the CEs are fraudulent because the reports contain exam finding that never took place. I have even advised some of my clients to videotape the exams, a practice that I will now universally endorse. 

It seems to me that if a fraudulent exam by an IME in the context of a State workers compensation case is perjury, then a fraudulent CE in the context of a federal SSD case would be a false or fictitious statement in violation of 18 U.S.C. § 1001. Since a doctor who seeks payment from the Social Security Administration under Medicare for tests that were not done can be prosecuted under 18 U.S.C. § 1001, then why can’t a doctor who seeks payment from the Social Security Administration under the SSD program for tests that were not done be prosecuted under 18 U.S.C. § 1001?

Expediting SSD Hearings

Applicants for Social Security Disability (“SSD”) benefits have complained about the tortuously slow process for many years. Not long ago, a two year wait for a hearing at the Jericho hearing office, which services many of my clients, was commonplace. However, according to the most recent statistics, the processing time for claims at the Jericho hearing office is now 292 days, making it the eighth fastest out of the 185 hearing offices. 

While 292 days is commendable, it still represents too long a period of time for some claimants. People who have little or no savings who lose their income when their disability forces them to stop working can find themselves in desperate financial straits. There are circumstances where certain claims are allowed to leap frog to the head of the line, and dire need is one of them. 

I represent a 55 year old former medical assistant who had to stop working due to back and knee problems and diabetes as well. Even though she had worked full time as a medical assistant for 14 years, she had little savings. Because she lost her income she became homeless. After bringing the claimant’s situation to the attention of the hearing office, her case was expedited, and approved. 

Just because a claim is expedited does not guarantee that it will be approved. But if the claim is going to be denied, then it is still better to get the denial expedited to hasten the appeal process.

Continuing Disability Review

Two of my clients with back problems received fully favorable Social Security Disability (“SSD”) decisions today from the same Administrative Law Judge (“ALJ”). One was an automobile mechanic who was over 50 years old, and the other was an operations agent who was less than 50 years old. The ALJ found that each was disabled and entitled to benefits. However, the ALJ closed his opinion for the operations agent by saying that medical improvement is expected with appropriate treatment, and therefore, recommended a continuing disability review (“CDR”) in twelve months. 

The regulations provide that Social Security should perform a CDR approximately every three years. However, if Social Security expects a medical condition to improve it could be sooner than that. Conversely, if Social Security determines that a condition is not expected to improve, it will still perform a CDR, but not as often as every three years. 

When Social Security performs a CDR, it must find that your condition improved in order to terminate SSD benefits. Medical reports indicating medical improvement obviously would provide evidence to support terminating benefits. Stopping or significantly reducing treatment can also be seized upon as justification for terminating benefits. 

Sometimes claimants reduce their frequency of treatment after being approved for SSD benefits because they had increased it simply to avoid Social Security from arguing their infrequent treatment reflected a medical condition that was not severe. Other times, the frequency of treatment is decreased because, once the claimant stops working, the symptoms are no longer exacerbated by the rigors of working. 

If treatment is reduced, the medical records need to reflect the reasons for the reduction, such as the above reasons, to show that the reduction is not due to medical improvement. That is particularly true for claimants under 50, as they are more likely to be designated for an early CDR.

Connect The Dots

When applying for disability benefits it usually it not enough simply to submit medical records. While medical records should provide diagnoses and identify symptoms, disability adjudicators normally want to see the nexus between the diagnoses and symptoms, as well as objective evidence that is not inconsistent with a severe disability claim.

 I represent a 59 year old former Disabled Adult Aide with esophageal varices and diabetic cirrhosis of the liver. Esophageal varices are abnormal, enlarged veins in the lower part of the esophagus — the tube that connects the throat and stomach. Esophageal varices occur most often in people with serious liver diseases. Esophageal varices develop when normal blood flow to the liver is obstructed by scar tissue in the liver or a clot. Seeking a way around the blockages, blood flows into smaller blood vessels that are not designed to carry large volumes of blood. The vessels may leak blood or even rupture, causing life-threatening bleeding.

Cirrhosis is a slowly progressing disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning properly. The scar tissue blocks the flow of blood through the liver and slows the processing of nutrients, hormones, drugs, and naturally produced toxins. It also slows the production of proteins and other substances made by the liver. Cirrhosis is the 12th leading cause of death by disease. 

Besides being life threatening, cirrhosis and esophageal varices can cause fluid buildup in the legs and the abdomen , fatigue , varices in the digestive tract, belly pain or discomfort, all of which the claimant experienced according to his medical records. Those medical conditions can also result in jaundice , itching , nosebleeds, redness of the palms, spider angiomas, bruising easily, weight loss and muscle wasting, frequent infections and confusion. The claimant’s vascular surgeon provided restrictions and limitations that would preclude even sedentary work, and explained how the pain and fatigue were associated with liver disease. An abdominal ultrasound objectively established parenchymal liver disease, splenomegaly, indicative of chronic cirrhosis damage.

Podiatrists

Do not underestimate the importance of podiatrists when applying for disability benefits. Perhaps claimants frequently overlook podiatrists because foot problems are not the primary impairment.

I represent a 55 year school crossing guard with back and feet problems, who was awarded Social Security Disability (“SSD”) benefits today without a hearing. The decision rejected the opinion of the State agency doctors, who said the claimant should be able to work because they failed to consider the combined effect of the claimant’s foot and back problems.

I had obtained a report from the treating podiatrist that limited the claimant’s ability to stand and walk due to a heel spur and plantar fasciitis. Every job requires being on one’s feet to some degree, and according to the U.S. Department of Labor’s Dictionary of Occupational Titles (the “DOT”), a crossing guard must be on her feet for at least 6 hours a work day.

It is unclear if the claimant would have been approved for SSD benefits in the absence of the podiatrist’s report. However, it is fairly clear that the claimant probably would have needed to proceed to a hearing in order to have get her SSD award.

Unum Ordered To Produce Witnesses For Depositions

Unum has a reputation for doing anything it can to avoid discovery when disabled claimants sue for benefits that were wrongfully denied or terminated under an ERISA long term disability plan. In one of my cases, Unum recently argued that my client should not be entitled to any discovery at all. Because of its bad reputation, U.S. District Court Judge Paul Engelmayer rejected Unum's position. A copy of the decision can be found in Court Decisions under the Resources tab on my website.

Calling Unum’s history of biased disability claims administration "regrettable," Judge Engelmayer approved three depositions and written discovery. Addressing Unum’s typical vigorous objections to discovery, the court provided a detailed analysis as to why discovery was appropriate, especially given Unum’s poor claims administration history. Citing the U.S. Supreme Court's decision in Glenn v. MetLife, Judge Engelmayer refused to take Unum’s word that it had corrected its ways since it was forced to agree to the RSA reassessment.

Social Security Form DDD-3883

The Social Security Administration (the “SSA”) occasionally asks claimant’s doctors to complete a form known as DDD-3883. You should do three things to prepare for that possibility. 

 First, tell your doctor to notify you if the SSA sends a DDD-3883 (or any other information request). Second, ask your doctor to send the DDD-3883 to you or your attorney, not the SSA after it is completed. Third, discuss with your doctor the type of responses that could help or hurt your claim. The questions on the DDD-3883 are somewhat ambiguous, and you want to make sure that answers do not need to be clarified. 

I represent a 51 year old former warehouse manager with rheumatoid arthritis and cardiovascular problems. The claimant’s cardiologist and rheumatologist each completed form DDD-3883 for Social Security. A treating doctor’s opinion is supposed to be given controlling weight under the Social Security rules and regulations if it is well supported by clinical and diagnostic evidence. 

The DDD-3883 requires, among other things, that the doctor identify the clinical findings and diagnostic tests that support his or her conclusions, which the rheumatologist and cardiologist did. Moreover, both specialists concluded that the claimant lacked the ability to perform the demands of sedentary work. 

The claimant’s application for disability benefits was approved today. Interestingly, while the rheumatologist and cardiologist both completed forms for me that contained similar information to the DDD-3883, the Administrative Law Judge relied upon the latter in approving benefits. Since the form DDD-3883 is Social Security’s own form, when a doctor provides substantive responses to all of its questions that support the claim, there should be no grounds for contending it is not entitled to controlling weight.

Acceptable Medical Sources

According to Social Security regulations, only "acceptable medical sources" can establish your medically determinable impairments. Chiropractors and physical therapists are not acceptable medical sources. However, according to Social Security rules, a "non-acceptable" medical source can provide persuasive evidence of the severity of your medical condition, and the limitations imposed by your condition. 

I represent a former paramedic with neck and back problems, whose Social Security Disability (“SSD”) application was approved today without a hearing. The Administrative Law Judge (“ALJ”) found that claimant’s spine problems met listing 1.04. The treating chiropractor provided MRIs of the claimant’s neck and back that revealed, among other things, cervical degenerative disc disease with ventral cord impingement and compression of the nerve roots. The chiropractor also provided an EMG that he performed, which confirmed cervical Radiculopathy. 

In addition to the claimant’s physician, the ALJ cited clinical findings by the chiropractor and physical therapist of neuroanatomic distribution of pain, limitation of motion of the spine, motor loss, and sensory reflex loss, as evidence of the claimant’s spine problems. The ALJ concluded that those clinical findings, together with the test findings of nerve root compression and cord impingement, met the requisite criteria of Listing 1.04(A). As a result, the claimant was able to avoid having to attend a hearing.

Petition Regulators About Unum

According to Unum, the major provider of disability insurance, 3 out of every 10 workers between the ages of 25 and 65 will experience an accident or illness that keeps them out of work for 3 months or longer, with nearly 60% of these injuries occurring off the job. If an employee is hurt off the job, worker’s compensation will not cover them. When an employee cannot work for an extended period of time, LTD benefits may be available, which usually provide about 60% of your salary. Like CIGNA, which I have blogged about frequently, Unum has a history of improperly denying and terminating valid LTD claims.

Unum’s problems resulted in State regulators forcing it to reassess thousands of claims, until December 31, 2006. Despite the reassessment, which served as a model for the recent CIGNA reassessment, Unum’s deceptive and bad faith claims handling tactics persists unabated. It is time for another Conduct Market examination of Unum’s disability claim administration practices. 

An on line petition was just started that asks the State regulators to expedite an immediate Conduct Marketing examination of Unum Group.  I would encourage you to sign the petition if you have ever had any problem with Unum, or are currently covered under a Unum disability Plan or Policy.

Consultative Exam Withdrawn

It is unclear why claimants applying for Social Security Disability (“SSD”) are virtually always told they have to attend a consultative examination ("CE”) since the rules actually permit them only in limited circumstances. In New York, IMA has the contract to perform the CEs now.

Every once in a while the State agency withdraws a CE request. Sometimes the State agency sends a letter specifically notifying you that the CE request is being withdrawn, which does not always result in an approval. When it doesn’t, and the basis for the denial is failing to attend the CE, you should certainly argue that it is inconsistent to withdraw a CE, but then claim not attending the CE is the basis for the denial. Sometimes the CE request is implicitly withdrawn.

I represent a 50 year old laborer who did road construction, who alleged disability due to back problem. Last month, the State agency sent the claimant a letter saying he needed to attend a CE. A week later, I submitted an EMG that showed the claimant had lumbar radiculopathy. The SSD application was approved today, which shows the CE was never needed, or was no longer needed because of the EMG. Regardless of why the CE was withdrawn, it was done so without the State agency sending written notice, which is an example of a CE implicitly being withdrawn.

Padro Class Action Notices

I received a pile of notices today relating to the proposed settlement in the Padro class action 4/5/13, 4/24/13, 8/21/12, 9/19/12. Please contact our office if you would like more information about the impending settlement and your right to a new hearing before a different Administrative Law Judge. 

If you received a notice that you fall within the class, then consider hiring us to represent you even if you had another attorney previously. I was one of the only two attorneys who submitted affidavits on behalf of the plaintiffs in the Padro class action because I have been instrumental in fighting the Queens Five for bias for over a decade.

Rejecting SSA Remand Offer

When a Social Security Disability (“SSD”) denial is appealed to federal court, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. Since I won’t file an SSD appeal in federal court unless I am totally convinced that the Court will rule in my favor, I am usually reluctant to accept a voluntary remand order, especially since the offer is always belatedly made. 

When I reject the remand offer, the U.S. Attorney frequently advises me not to expect attorney fees if I win, for the time I work on the case after rejecting the offer. It is unclear if that is truly the U.S. Attorney’s belief, or whether it is the position that their client, the SSA, wants them to assert. Regardless of who is actually responsible for the assertion, it is wrong. 

A couple of years ago, I rejected a voluntary remand offer in a case where I represented a former municipal dispatcher. The court eventually remanded the case, and today, the court issued its decision awarding attorney fees. The attorney fee award includes the time that I worked on the case after rejecting the remand offer. 

Citing my Harris decision, the court ruled that whether the plaintiff should receive attorney’s fees after refusing an offer of remand depends on whether refusal was reasonable. Whether a plaintiff was reasonable in rejecting the SSA’s offer is determined based on plaintiff’s likelihood of success on the motion, by reviewing the underlying merits of the case. The court noted that the SSA argued, just as he did in Harris and my Pereira decision, that special circumstances warrant a reduction in the fees sought because the court granted the SSA’s motion for remand. However, the court held, “As the courts did in Harris and Pereira, the Court rejects this argument. Mr. Delott did achieve a different remedy and appreciable gains for plaintiff by rejecting the offer of remand.” Among other things, the court said that Plaintiff’s decision to reject the remand offer and to move for judgment on the pleadings was reasonable because the treating physician stated Plaintiff was incapable of full time sedentary work. 

The court also rejected the SSA’s argument that I started working on my opposition prematurely. Specifically, the court ruled that, “As the court found in Pereira, it was not ‘unreasonable of counsel to begin preparing motion papers, which are expected as a matter of course in most Social Security cases, before receiving the Commissioner’s motion papers.’” The end result is that the court awarded attorney fees for the entire 54.3 hours of work that was requested.

CIGNA Regulatory Settlement

I have been blogging for years about the bad faith tactics that the CIGNA insurance companies, including Life Insurance Company of North America, CIGNA Life Insurance of New York, and Connecticut General Life Insurance Company, have used to justify denying and terminating valid disability claims. As a result of CIGNA’s improperly denying and terminating  long-term disability claims on a systematic basis, state insurance regulators forced CIGNA  into a settlement requiring it to (a) aside $77 million to pay claims that should be approved, (b) pay $1.7 million in fines and administrative fees, and (c) pay $150,000 to cover the monitoring costs of the settlement agreement during the next two years. 

The $77 million fund has two components. $29 million of the fund is earmarked for the settlement of pending claims, while the remaining $48 million is intended to cover past claims that are being re-evaluated. The settlement agreement resulted from the same type of market conduct exams that led to the Unum reassessment several years.  In other words, there is no longer any doubt - CIGNA is as bad as Unum.

I have filed numerous complaints against CIGNA with the New York Insurance Department, and its successor, the Department of Financial Services.  I would strongly encourage anyone who has recently had, or is currently experiencing, a problem with a CIGNA disability claim in New York to file a complaint, which can be done online.

If Connecticut, California, Maine, Massachusetts and Pennsylvania insurance regulators can succeed in prosecuting CIGNA for its improper denials and terminations of disability benefits, then New York regulators should be able to do the same.  Even better yet, contact your New York State representative to push for legislation that would outlaw “discretionary” authority clauses in disability policies, which is the source for most of CIGNA’s abuse. Other States have already done so. New York’s Insurance Department had issued a rule in the past that banned discretionary clauses, but the Insurance lobby got it repealed.

Polymyositis

Polymyositis is one of the inflammatory myopathies, a group of muscle diseases that involves inflammation of the muscles or associated tissues, such as the blood vessels that supply the muscles. A myopathy is a muscle disease, and inflammation is response to cell damage. According to the Myositis Association, polymyositis is characterized by gradual muscle weakness. The weakness typically begins with the muscles closest to and within the trunk of the body, such as those in the neck, hip, back and shoulder. Some polymyositis patients also experience muscle pain, breathing problems, and trouble swallowing. The Mayo Clinic says that remission in the persistent inflammatory muscle disease that causes weakness of the skeletal muscles, which control movement, are rare. 

I represent a 54 year old former warehouse clerk forklift driver with polymyositis. The claimant’s rheumatologist, which is the specialist that typically treats polymyositis, provided a report indicating that the claimant lacked the ability to perform even sedentary worked as a result of the muscle weakness and pain from the polymyositis. While the claimant also has neck problems, with an MRI revealing that the discs are impacting the spinal cord, the claimant’s Social Security Disability application was approved today based solely on the polymyositis. 

As noted above, the claimant’s rheumatologist concluded that the claimant lacked the ability to work, and blood testing that substantiated the polymyositis supported his opinion. Nevertheless, the application was approved based upon the opinion of a non-examining rheumatologist who testified at today’s hearing that the claimant met listing 14.05 for polymyositis.

NOSSCR Conference

During last week’s NOSSCR conference in Washington, I attended the meeting for attorneys from the Second Circuit. At one point, Emilia Sicilia briefly discussed the Padro class action, including that the Queens Five will be monitored for 30 months. 

The obvious question that arose was what happens if the monitoring reveals a problem. Since Ms. Sicilia noted that there has been no change in the way that ALJ Strauss behaves, I asked what happens if during the 30 month period there is no change? I also asked what would happen if after the 30 months the Queens Five revert to their pre-Padro ways? Ms. Sicilia’s response was a shrug of the shoulders. 

If you are troubled by Ms. Sicilia’s response, then you may want to consider asking for an explanation on July 24, 2013, which is the date the court has scheduled a fairness hearing.