Thursday, September 26, 2013

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.

Thursday, September 19, 2013

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.

Friday, September 13, 2013

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.