Friday, May 31, 2013

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.

Saturday, May 25, 2013

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.

Wednesday, May 22, 2013


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.

Monday, May 20, 2013

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.

Friday, May 3, 2013

Padro Class Action Settlement

Judge Amon issued an order today that approved the proposed settlement pending a fairness hearing scheduled for July 24, 2013 in Padro v. Astrue. The proposed class consists of those Social Security Disability and Supplemental Security Income claimants who received unfavorable or partially favorable decisions from the five Administrative Law Judges accused of bias in the Amended Complaint from the Jamaica Queens hearing office.

If you have questions regarding the terms of the class action settlement, or the fairness hearing, feel free to contact our office.

SSA Misinformation

I represent a former office technician whose Social Security Disability (“SSD”) application was approved today without a hearing, and without submitting an “OTR”. Someone at the local office in Freeport, who would only identify themselves by the initial STF, insisted that the claimant submit her original birth certificate, even though that requirement has not been in force since Social Security started accepting applications over the internet. I did not submit the birth certificate because the local offices had a penchant for losing them in the past, and the Freeport District Office denied the application two months after it was filed. 

Although the initial decision stated that SSD benefits were denied because the evidence supposedly did not show that the claimant was disabled, that was boilerplate language that is in every initial denial explanation. The application was denied after only two months, which is not enough time to acquire, let alone review, medical evidence. The application was denied because I did not submit the claimant’s original birth certificate. 

The application was approved today, shortly after I requested a hearing. No additional medical evidence was submitted after the Freeport denial. In other words, the application was approved based upon the same information that had been reviewed previously, confirming that the refusal to submit the original birth certificate was not a legitimate basis for denying the claim. 

The hearing decision from the Administrative Law Judge (“ALJ”) confirmed that there was no medical basis for denying the claimant’s application. The ALJ based his decision on the fact that the doctor from the State agency determined that the claimant’s medical condition met the listing for a dysfunctional joint. 

Local offices frequently simply make up rules that do not exist. For example, my office was just told by the West Babylon office that there would be a $49 charge for requesting a copy of the claimant’s file on CD-Rom. The Freeport office said there would be a $110 charge for requesting a CD-Rom. Both were utter lies. If you believe that your local Social Security office is making unreasonable or improper demands upon you, insist that they send you a copy of the rule that provides the basis for the demand.