Thursday, January 31, 2013

Why DDS Denies SSD Claimants

Claimants are always telling me that they cannot understand why the State agency, DDS, denied their application for Social Security Disability (“SSD”). Frequently, the reason is that the DDS chooses to ignore the medical evidence, and rely solely on the consultative examination (“CE”). Check my prior blog posts for more information about CEs, see e.g.

I represent a former school maintenance worker who had to stop working when he was 48 years old due to a back problem. The DDS insisted on four separate occasions that it was necessary for him to go to a CE because they needed more evidence, but I stated that the treating doctors’ information I submitted was sufficient, and that they could ask any treating doctor for more information. The DDS denied the application.

 On appeal, I viewed the claimant’s file, and learned that the DDS admittedly failed to review most of the evidence submitted, and found a report conceding that it only considered two reports, while reports from twice as many doctors were filed. Not surprisingly, I received a fully favorable decision today for the claimant from an Administrative Law Judge.

Tuesday, January 22, 2013

Partially Favorable Onset Appeal

Besides having your Social Security Disability (“SSD”) application approved or denied, it can also be partially approved. A partially favorable decision (“PFD”) occurs when you are found disabled on a date after the date you claim you became disabled. The former date is called the established onset date (“EOD”) and the latter is called the alleged onset date (“AOD”). 

The effect of a PFD is that the claimant seeks a closed period of benefits, from the EOD to the AOD. Many claimants fail to appeal a PFD because they are afraid of losing their current benefits. However, while that is theoretically possible it must be extraordinarily rare, and I have never come across such a case. 

An onset appeal is easier than a typical appeal because the claimant has already been found disabled. The key is finding out the basis for the EOD by carefully reviewing the record. Sometimes, there is no basis for selecting the EOD at all. If the EOD is connected to some medical record, then the question becomes did the claimant’s condition degrade that date, which absent a catastrophic incident is very difficult for Social Security to prove. 

 I represent a 61 year old former teacher who was found disabled on September 1, 2011, even though he claimed he became disabled on February 26, 2010. I had the claimant testify about his arthritic problems that resulted from a 1975 motor vehicle accident and 1983 broken leg. His conditions were obviously progressive. I had previously submitted reports from the claimant’s treating doctors specifying that the claimant’s impairments and functionality remained unchanged from the AOD to the EOD. The claimant received a fully favorable decision today. As a result, the claimant will receive an additional 17 months of SSD benefits.

Saturday, January 19, 2013

FCE Spurs Unum Approval

Long Term Disability (“LTD”) insurers use similar tactics to deny or terminate benefits when the treating doctors support the claim. One of those tactics is sending claimants for a Functional Capacity Evaluation (“FCE”). An FCE is a battery of tests to see what your physical capabilities are with regard to work. The results of the FCE are normally weighed against the U.S. Department of Labor standards, as set forth in its Dictionary of Occupational Titles, which classifies work into progressively more strenuous categories sedentary, light, medium, heavy, and very heavy work. 

The insurers have arrangements for the same people, normally physical therapists (“PTs”), to perform the FCEs. In order to maintain those arrangements, I have seen cases where the PTs conducting the FCEs conclude the claimant can perform a certain category of work even when the FCE data fails to support it. That is precisely what happened in Alfano v. Cigna. In order to avoid an insurer from relying on a faulty FCE, I sometimes advise my clients to have an FCE. An independent FCE prevents a PT from giving a conclusion inconsistent with the FCE data. 

I represent a 43 year old securities trader with psoriatic arthritis. That occupation is light, which requires standing and walking most of the day. I advised the claimant to have an FCE for his feet, and the data revealed a severe impairment. The treating doctors concluded the claimant lacked the ability to perform light work based upon the clinical findings. The LTD claim was approved in three months, which I attribute to the FCE objectively corroborating the treating doctors’ opinions.

Treating Physician Rule

Treating physician rule (“TPR”) is a principle that when assessing the medical evidence of a Social Security Disability claimant, the administrative law judge (“ALJ”) should give greater weight to the opinions of treating physicians than to the opinions of non-treating physicians. The TPR seems simple enough, yet ALJ’s fail to follow it countless times in order to erroneously deny SSD benefits.
If the TPR rationale were understood, then there should be far fewer instances where ALJ’s erroneously fail to give proper weight to the opinions of treating physicians. I represent a marketing manager who received a fully favorable decision from ALJ Mark Hecht yesterday. The decision contained a through and comprehensible explanation for giving greater weight to the opinions of treating physicians: 

Generally, SSA gives more weight to the opinion of a source who has examined the individual than to the opinion of a source who has not examined you. Further, more weight is usually given to opinions from the individual's treating sources, since those sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of the person's medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as a consultative examinations or brief hospitalizations. Generally the longer a treating source has treated the person and the more times the person has been seen by a treating source, the more weight SSA will give to the source's medical opinion. When the treating source has seen the individual a number of times and long enough to have obtained a longitudinal picture of the person's impairment, SSA will give the source's opinion more weight than we would give it if it were from a nontreating source. Other relevant factors which will be considered in assessing the opinions of treating sources are the nature and extent of the treatment relationship; supportability of the opinion; consistency with the medical findings; and, the specialization of the treating source. 

The decision followed a partially favorable decision that a different ALJ had issued. The result is that the claimant will receive an additional 15 months of SSD benefits. Any SSD claim that is denied in whole or part when the treating doctors support should be appealed.

Monday, January 7, 2013

Commendable Action By ALJ

I represent a claimant applying for Social Security Disability (“SSD”) benefits with severe mental problems.  One manifestation of those mental problems is that the claimant became suicidal.   As a result, I requested an expedited hearing, which was granted.

The claimant’s hearing was held today at the Jericho hearing office.  As is typical, the administrative law judge (“ALJ”) listened to the vocational and medical evidence.  However, unlike the overwhelming vast majority of the time, the ALJ advised the claimant at the close of the hearing that he was approving his SSD application.

The ALJ did the right thing twice.  Not only did he schedule an expedited hearing, but after determining that the claimant was disabled, the ALJ did not make the claimant wait to receive the hearing decision to learn his fate, which can take a substantial amount of time afterwards. 

By contrast, even though I repeatedly advised one of the five named ALJs from Queens in the Padro bias class action that my client was suicidal, he refused my request to be scheduled first in the day, and instead, scheduled her last, made her wait hours, and then told her the hearing would be adjourned to another day because it was too late in the day for him to hear her case.  The result was that my client had a complete mental breakdown, and had to be taken away by New York Fire Department EMT.

Friday, January 4, 2013

Importance of Vocational Evidence

When applying for disability benefits of any types, the claim adjudicator evaluates the vocational evidence as well as the medical evidence. Sometimes the vocational evidence is even more important that the medical evidence. One of my clients, who was awarded Social Security Disability (“SSD”) benefits today, illustrates that point. 

My client is a 60 year old former electrician, which makes him a person “closely approaching retirement age.” Under the Social Security regulations, it is very unlikely that such a person would have transferable skills to “light” work. An electrician is “medium” work, which is more strenuous than “light work.” Thus, if an electrician cannot physically do his past work, and he is 60 years old, it means he most probably has to be found disabled.

The case law holds that when an SSD claimant has a long work history, especially with the same employer, then their complaints are entitled to substantial credibility. Here, my client had a 40 year work history as an electrician. Additionally, he was earning over a $100,000 annually when he stopped working. It does not take an expert to realize that a person who worked at the same job for 40 years must like what he was doing, and even if he didn’t, the fact that he was earning a six figure income certainly explains why he did it for such a long period of time. In other words, the only logical explanation why he stopped working is that he was physically unable to continue doing so.

I did submit very strong medical reports for the claimant. One was from a chiropractor and the other was from a nurse practitioner. Neither is what Social Security calls an “acceptable medical source.” Had the claimant been under 50 years of age, had a poor work history, or earned a small income, then it is highly unlikely that SSD benefits would have been awarded. Here, the vocational evidence was more important than the medical evidence.

ERISA Exception

I recently settled the claim of a physical therapy assistant who worked for Catholic Health Services after her benefits under her group long term disability (“LTD”) plan were terminated by CIGNA.  While most employee benefit plans are subject to ERISA, LTD plans that are sponsored by churches and church-related entities are not, unless they specifically elect to have ERISA coverage.

Because ERISA did not apply, I was able to file suit in State court, seeking State law remedies.  As a substantive matter, ERISA usually preempts state law remedies like punitive damages, bad faith, unfair business practices, pain and suffering, and consequential damages.  As a procedural matter, because ERISA did not apply, the claimant was entitled to discovery, including deposing CIGNA employees at the courthouse, to introduce new evidence that CIGNA did not consider, and to a jury trial.

Church-related organizations, such as hospitals, schools, and charitable organizations, are not usually governed by ERISA.  Freed from ERISA, claimants who have “church plans" have a more level playing field when forced to fight for their disability benefits.  Perhaps most importantly, when an insurance company makes a decision for a church related LTD plan, its decision is not entitled to any deference.  That is critical because insurers usually argue that their decision does not have to be correct, just a plausible one.

Wednesday, January 2, 2013

State Agency Exam Notices

Whenever a Social Security Disability (“SSD”) claimant in New York applies for benefits, regardless of his or her diagnosis, the State agency sends a notice stating that, “It will be necessary for you to be examined by” IMA Disability Services (“IMA”).  Unsuspecting claimants think that they have no choice about going to the consultative examination (“CE”) because the State agency notice says it is “necessary."

The State agency notice is misleading.  The Social Security regulations state when it is necessary to attend a CE.  There are actually very few situations where a CE is “necessary,” and in the majority of those cases, the regulations provide that the CE should be performed by the claimant’s treating doctor.

I represent a 49 year old former public safety officer with a back problem.  As is usual, the State agency sent her letters that said it was necessary for her to be examined by IMA for her back.  For various reasons the claimant declined the CE.  Today, I received the claimant’s Notice of Award.

The State agency knows that its notice is misleading.  I send the State agency a lengthy, detailed letter explaining why the CE is not necessary, and asking if they asked the treating doctor to supply the same information that they asked IMA to supply.  Not surprisingly, the State agency fails to respond to my letters, and instead, simply sends another notice, which says that the CE is “necessary.”