Saturday, April 27, 2013

DDS Actually Listened

The Social Security Administration (the “SSA”) uses state disability agencies to process medical determinations for initial Social Security Disability (“SSD”) decisions. In some states, such as New York, the state agency is known as Disability Determination Services (“DDS”). After the SSA sends the claim to the DDS, it is assigned to a disability examiner or analyst who functions similarly to an insurance claims manager. 

The disability analyst is supposed to collect and interpret the medical and vocational evidence. However, many, if not most, analysts automatically demand that claimants be examined by DDS doctors, and then decide if the claimant is disabled based upon that exam, rather than what the treating doctors say. In fact, when the disability analyst denies an application, the decision specifically states that the decision was not based upon the opinion of the treating doctor. 

In response to DDS customary CE demands, I send a letter asking, among other things, if the DDS made any attempts to contact the treating doctors for medical information. Invariably, up to today that is, my letters have been ignored, and instead, the DDS simply resends the identical CE demand. 

I represent a 56 year old former heavy equipment repairman. The DDS sent its usual CE demand, and I replied with a letter asking if the DDS had asked either of the treating doctors for medical information. Unbeknownst to me, the DDS disability analyst sent a letter to the claimant’s family doctor that asked the doctor to explain the basis for the functional limitations he had provided for the claimant. The doctor provided the explanation a few weeks ago, and the claimant received SSD benefits today. 

You would think that the SSD process would usually work as it did in this case. In other words, the DDS gathers the available medical evidence to see if a treating doctor’s disability opinion is well supported. Unfortunately, the DDS usually ignores what the treating doctors say, and will deny the application if the claimant does not attend the DDS exam. The SSA then reverses the DDS decision because the opinion of a treating doctor is supposed to be given greater weight compared to a non-treating doctor. A huge waste of tax dollars.

Wednesday, April 24, 2013

Padro Class Action Update

Padro v. Astrue is the class action that was filed against Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Marilyn P. Hoppenfeld, who are Social Security Administration Administrative Law Judges (“ALJs”) from Queens (the “Queens Five”). The Padro Amended Complaint, which can be downloaded from my web page’s Resources tab, alleged that the Queens Five are biased against claimants in general. 

Among other things today, in connection with the preliminarily approval of the settlement of the class action lawsuit, the Court instructed the parties about changes that are needed for the notice that will be sent to class members. The Court imposed a one week deadline, to 5/1/13, for the submission of all final documents in connection with the settlement.

Tuesday, April 23, 2013

Same Day SSD & DI Award

I have been representing claimants for most types of disability benefit claims for many years, and clients have frequently hired me to handle more than one type of disability claim. However, until today, I never had a case where I received approval for two different disability benefits for the same client on the same day. 

A veterinarian with back problems retained me to handle his applications for Social Security Disability (“SSD”) and long term disability (“LTD”) benefits through a veterinary association group plan. While there was some crossover of medical records, the application forms and processes were completely different, and commenced on different dates. The SSD and LTD applications were approved today, five and three months after filing respectively. 

Perhaps the real story isn’t that both applications were approved on the same day, but that each was approved in relatively quick fashion. Clearly delineated work duties and physical demands, combined with detailed clinical and diagnostic findings as well as functionality assessments, which the claimant helped us get from his doctors very quickly, facilitated timely decisions from the SSD and LTD analysts.

Monday, April 22, 2013

SSD for Letter Carrier

I represent a 48-year-old postal carrier whose application for Social Security Disability (“SSD”) benefits was approved today by an Administrative Law Judge (“ALJ”). I had amended the onset date from 2008 to January 2010 at the claimant’s hearing, but the ALJ’s decision said that the onset date had been amended to June 2010. 

If the ALJ simply made a mistake, then the decision has to be amended to reflect the correct date to avoid the claimant’s losing six months of SSD benefits. If the ALJ did not make a mistake, then the decision needs to be rewritten as a partially favorable decision, so an onset appeal can be filed. Regardless of the ALJ’s reason for selecting June 2010 as the new onset date, the decision was not “fully favorable.” Every decision, and notice of award, needs to be scrutinized carefully to ensure that benefits are not being forfeited.

Wednesday, April 17, 2013

Illusory Unum Approval

It seems that even when Unum approves disability benefits it doesn’t really approve the claim. I represent a 48 year old part-owner of a flower business in connection with his claim for disability benefits under a policy issued by the Paul Revere Life Insurance Company. My client used to manage and operate the retail and wholesale flower business. Today, Unum reluctantly approved his disability application. 

I had provided incontrovertible medical and vocational evidence that my client was incapable of performing the duties of his regular occupation. That evidence included an extremely detailed occupational analysis by a vocational expert who worked for Unum for a decade. Nonetheless, Unum refused to accept what the report explained were the claimant’s work duties, even though Unum had no reason to dispute them, and insisted that its representative be allowed to interview one of the co-owners of the flower business to verify the work duties. 

It should be pointed out that my client’s policy did not provide Unum with the right to interview the claimant or his co-owners. Significantly, many Unum policies specify that Unum has the right to conduct interviews. However, since the co-owners advised me that my client’s work duties actually exceeded those set forth in the occupational analysis, I allowed a telephone interview to proceed, subject to my being present. 

Unum also insisted that it needed my client’s confidential tax returns. Since my client was not seeking residual disability benefits, there was no reason for Unum to review his tax records to reconcile any earnings. Notably, despite my specifically asking Unum to identify the section of the policy that would require the disclosure of tax records, it never did so -- because there was none. Unum knew it had the right to include such a clause in the policy as it included the right to review tax records in the policy rider that relates to residual disability. I did not submit tax records. 

As the blog title indicates, the Unum’s approval letter seems illusory. Unum stated that it wants monthly updates. Just as my client’s policy did not provide Unum with the right to tax records, or interviews, the policy also does not provide for monthly medical updates. Nor is there a reason for monthly updates because there is no possibility that circumstances will change. 

My client’s doctors made it perfectly clear that it was his occupation’s work duties that rendered him disabled. Since those work duties do not change, his inability to perform them will never change. Even if my client felt perfectly fine, that would only be because he was no longer performing his occupational duties. His disability from his regular occupation is permanent. The only way for my client to remain well is to avoid his prior occupation. Even if the policy explicitly stated that Unum could request monthly updates, which it does not, it still would be unreasonable for Unum to do so under the circumstances. 

The reason for concern about the approval letter is that it seems to be setting the stage for harassment of my client’s doctors. One need only google “Unum harass doctors” to see that harassing treating physicians for forms and information is a common tactic that Unum uses. As a result, I had to respond to an approval letter with a warning that any attempt to harass my client or doctors with an unreasonable demand for monthly updates in the hopes of imploding their patient-doctor relationship would not be condoned, and specifying the administrative actions I would take. Unum has no reason to maintain that monthly medical updates are necessary because I have similar ongoing claims with Unum where monthly updates are not required. 

To compound its approval even further, Unum mischaracterized my client’s occupation, even though his work duties were made crystal clear in the vocational report I submitted, which duties were confirmed by the co-owner. Bizarrely, Unum’s approval letter stated that my client had more than one occupation, which was patently wrong. My client did not have several jobs; he did not work for more than one person; nor did he own more than one business. He had a single occupation that encompassed tasks performed by people who happen to work in some other occupations too. I advised Unum that its approval letter was wrong when it said that my client would not be totally disabled if he could perform “any of his occupations,” because he had only one occupation, and it made no difference that people who work in different occupations also perform some of the work duties. It was necessary to reject Unum’s claim that my client would not be disabled even though he remained unable to perform all of his prior work duties.

Tuesday, April 16, 2013

Work History & Credibility

Many of my blog entries discuss the importance of non-medical evidence when applying for disability benefits. One example of non-medical evidence that can help secure disability benefits is a positive work history. I represent a 37 year old IT Specialist whose Social Security Disability (“SSD”) application was approved today after accepting the argument that I made concerning the claimant’s work history in an on-the-record (“OTR”) request for a fully favorable decision. 

The State agency denied SSD benefits based on the assumption that anyone under 50 years of age should be able to do sedentary work. However, that assumption failed to consider that the claimant was earning close to $100,000 a year. I posited that the only issue was whether the claimant, who had been earning about $100,000 annually, conspired with his doctors to feign that he lacked the ability to do sedentary work in order to receive SSD benefits that would be about a quarter of his working income. When focusing on that non-medical evidence the answer seems obvious. 

The Attorney Advisor who approved the OTR agreed. In fact, citing the case Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983), for the principle that a good work history supports a claimant’s disability application, the Attorney Advisor explained that, “the claimant’s good work history lends to the credibility of his allegations of disability.” Since no new medical evidence was submitted after the State agency denied the SSD application, it appears that the Attorney Advisor’s decision turned on the work history argument.

Tuesday, April 9, 2013


Lupus is a disabling and chronic inflammatory disease that occurs when your body's immune system attacks your own tissues and organs. Inflammation caused by lupus can affect many different body systems — including your joints, skin, kidneys, blood cells, brain, heart and lungs. The disabling effects of lupus include chronic fatigue, swollen joints, fever, sensitivity to light, and many other symptoms, depending upon the severity of a flare up of the disease.

Social Security considers Lupus to be a severe impairment. In fact, a person can be found presumptively entitled to Social Security Disability (“SSD”) benefits by meeting the criteria of listing 14.02. However, even you cannot show that you meet the listing, you can still be entitled to SSD benefits if it decreases your functional capacity.

I represent a pharmacist whose SSD application was approved today. While I was able to get the treating rheumatologist to say the pharmacist met listing 14.02, the Administrative Law Judge (“ALJ”) approved the application on the grounds that the Lupus reduced the pharmacist’s functional capacity to the point where sustained work was not possible. Explaining to the ALJ how the Lupus symptoms precluding the claimant from being able to perform her job duties as a pharmacist was essential.

Interestingly, the State agency analyst thought the medical evidence showed the pharmacist met listing 14.02A. However, the State agency doctor, who never examined the claimant, rather than explaining why the listing was or was not met, lazily told the analyst to send the claimant for a consultative examination (“CE”). I advised the claimant that a CE was contrary to the Social Security rules and regulations, and was not needed, which was confirmed by the ALJ.

Friday, April 5, 2013

Thank You Judge Irizarry

According to the attorney representing the plaintiffs in the Padro class action, the purpose of the lawsuit was to remove Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Marilyn P. Hoppenfeld as Administrative Law Judges (“ALJs”) from the Queens Social Security hearing office (the “Queens Five”). Countless decisions from the U.S. District Court judges that rejected the Queens Five denials of Social Security Disability (“SDD”) benefits was the lynchpin that led to the proposed settlement of the Padro class action. 

The Padro settlement does not call for any of the Queens Five to be removed. Moreover, all the settlement does in essence is to require the Queens Five to follow the law, which is what they have always been charged with doing. Therefore, SSD claimants may still have to appeal the Queens Five decisions in federal court. At least one U.S. District Court Judge, Dora L. Irizarry, has finally explicitly stated that the biased decisions of the Queens Five cannot continue. 

In Fernandez v. Astrue, 2013 WL 1291284 (E.D.N.Y. March 28, 2013), Judge Irizarry reviewed a claim that had been denied both by ALJ Fier and then ALJ Strauss. As usual, both Fier and Strauss denied SSD benefits by refusing to comply with the rules and regulations for reviewing SSD claims, in particular, relying on patently erroneous reasons for elevating the opinions of non-treating doctors over the treating doctors. Judge Irizarry found ALJ Strauss’ reasons for relying on the hearing medical expert “troubling” and “egregious,” and ordered Social Security to award SSD benefits. 

Judge Irizarry went out of her way to criticize the decisions of ALJ Strauss, and indirectly ALJ Fier as well, by referring to the Padro class action: 

The Court is constrained to make a few final observations. The Court is greatly disturbed by the manner in which the ALJ's prior to ALJ Strauss mishandled this case and utterly disregarded the Appeals Council's directives on remand. 
The Court especially is disturbed by ALJ Strauss' persistence in disregarding the legal standards and regulations she is bound to follow to insure that the beneficent purposes of Social Security Disability benefits are properly fulfilled. Just a day or two prior to issuing the opinion in this case, this Court remanded yet another case for further administrative proceedings based on similar legal errors committed by ALJ Strauss. See Faherty v. Astrue, Docket No. 11–cv–2476 (DLI). Notably, she and several other ALJ's are the subject of a civil suit pending before another judge of this Court for their failure to execute their duties properly. FN3. Therefore, it is this Court's recommendation to the Commissioner of Social Security that, at a minimum, there be some oversight or review of the procedures followed by ALJ's as well as periodic training of ALJ's to insure that they are aware of and abide by the rulings of the federal district and appellate courts, as it seems that they continue to use the same flawed analytical frameworks that result in wrongful denial of benefits, remands, and unnecessarily protracted administrative proceedings. 

FN3. See, Padro, et. al. v. Astrue, Docket No. 11–cv–1788 (CBA) (RLM) Fernandez, 2013 WL 1291284 at *21. 

Judge Irizarry’s comments confirm exactly what I have been arguing in federal court and to the Appeals Council for years - the Queens Five use the same flawed analytical frameworks that have resulted in wrongful denial of benefits, remands, and unnecessarily protracted administrative proceedings. Hopefully, the other District Court judges will follow suit, and start awarding SSD benefits rather than remanding the decisions of the Queens Five for a “do over.”

Thursday, April 4, 2013

Crohn’s’ Disease

Crohn’s disease is one of the conditions that is known as Inflammatory Bowel Diseases (“IBD”). Crohn’s disease is a chronic inflammation of the gastrointestinal tract. According to the Crohn’s & Colitis Foundation of America, the major signs and symptoms of Crohn’s are: persistent diarrhea, rectal bleeding, urgent need to move bowels, abdominal cramps and pain, sensation of incomplete evacuation, and constipation. 

It is tough to establish disability for Crohn's, just like other types of IBD, because it does not typically affect a person’s ability to perform strength functions like lifting and carrying weight, or standing and walking. Rather, Crohn’s normally becomes disabling because its symptoms affect non-exertional functions. I represent a 41 year old former library aide who was approved today for Social Security Disability (“SSD”) benefits because of her Crohn’s that illustrates this point. The claimant’s gastroenterologist explained why the claimant’s Crohn’s disease met the listing for IBD. 

The Administrative Law Judge (“ALJ”) inexplicably rejected the listing opinion. However, the ALJ did accept the gastroenterologist’s opinion regarding the functional limitations caused by the Crohn’s, and concluded that those limitations rendered the claimant incapable of work. In particular, the ALJ agreed that the claimant’s need for frequent, unscheduled breaks to rest at unpredictable intervals precluded sustained work. 

Different medical conditions create different functional limitations. Understanding how a medical condition results in work restrictions is essential to securing SSD benefits.

Monday, April 1, 2013

Work History

Sometimes it is more important for a Social Security Disability (“SSD”) applicant to emphasize work history than medical evidence. I have a Connecticut client whose SSD application was approved today in three months based primarily on his work background. 

I highlighted that the claimant only held one job, inspecting shoes, for the last 25 years, where he earned a high income that steadily increased. It simply made no sense that such a person would stop working and exaggerate his medical condition in order to receive a fraction of his salary in SSD benefits. 

The claimant had physical and mental impairments that prevented him from working. Moreover, the claimant’s doctors said that they would support the claimant’s application. The application was approved in three months, at which time I had only submitted reports from one of the claimant’s doctors, both of which clearly supported. 

It usually takes multiple supporting medical opinions or diagnostic evidence showing that a claimant meets a listing to be approved for SSD benefits in only three months. Neither was the case in this instance. Therefore, the logical inference is that the claimant was approved because he was believed when he said he was unable to work based upon his work history.