Thursday, February 28, 2013

Updating Evidence

I represent a 38 year old former DMV driving examiner who sustained back injuries after two separate accidents while testing drivers. I had submitted records and reports from the claimant’s long time spine specialist that strongly supported the claimant’s disability. However, the claimant had recently started seeing a new spine specialist who was closer to the claimant’s residence. 

After receiving the treatment notes and report from the new specialist the claimant’s application for Social Security Disability benefits was approved. While the new submissions only spanned the last two months and were arguably cumulative, they did corroborate the previously submitted medical evidence. I probably would not have provided the updated records if they had been from the same doctor because I do not believe medical evidence and opinion would become stale after just two months.

SSD & Chiropractors

Under Social Security’s rules, chiropractors are not technically deemed “acceptable medical sources.” However, Social Security still considers the opinion of a chiropractor to be “important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.” In fact, “an opinion from a medical source who is not an acceptable medical source may outweigh the opinion of an “acceptable medical source,” in some circumstances, such as when the former “has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion.” 

I represent a truck driver with back problems whose Social Security Disability (“SSD”) claim was approved today after I submitted reports from two chiropractors. The chiropractors had been treating the claimant once or twice each week, and provided detailed reports regarding the claimant’s back condition. 

Administrative Law Judges (“ALJs”) frequently ignore the opinions of chiropractors and other non-acceptable medical sources in their decisions. Because the Social Security rules and regulations require ALJs to consider all opinions, the failure to address a non-acceptable medical source opinion, or even a lay opinion, can provide grounds for reversing an unfavorable decision on appeal.

Monday, February 25, 2013

SSD Approved In Under 2 Months

I filed an application for Social Security Disability (“SSD”) benefits last month, which was approved a couple of days ago. That was fast by any standard. I’ve even had compassionate allowances  take longer.

What was different here? The claimant, a former traffic officer, was not directed to go to Industrial Medicine Associates for a consultative exam (“CE”). Why not?

It is possible that no CE was required because the claimant was 63 years old, but I have had other people the same age who were not approved that quickly. It could be that I had just submitted MRI reports revealing herniated discs impinging nerve roots, but similar MRI reports did not prevent demands for a CE. Therefore, it appears that it was the claimant’s age, functionality assessment backed by the MRI reports, and the claimant’s non-sedentary work history that combined for the rapid approval.

I also filed an SSD application last December that was approved last week for a 38 year old former nurse. Once again, the claimant was not asked to attend a CE. What explained the rapid approval considering that the claimant was only 38 years old, and that the disability was multiple sclerosis (“MS”), which is frequently difficult to establish due to periods of remission?

The answer appears to be the strength of the report that we were able to get and submit from the treating neurologist. The report was specifically tailored to address the objective and subjective findings relative to MS, including the criteria for the listing.

Wednesday, February 13, 2013

Hypertrophic Cardiomyopathy

According to the Mayo Clinic, hypertrophic cardiomyopathy is a disease in which the heart muscle becomes abnormally thick. The thickened heart muscle can make it harder for the heart to pump blood. In a small number of people with this condition, the thickened heart muscle can cause signs and symptoms, such as shortness of breath and problems in the heart's electrical system resulting in life-threatening abnormal heart rhythms, which can require a pacemaker. 

The Mayo Clinic also points out that many people with hypertrophic cardiomyopathy can lead normal lives with no significant problems. However, many others are not so fortunate, such as one of my Social Security Disability (“SSD”) clients. 

My client’s hypertrophic cardiomyopathy required implantation of a pacemaker. Even though the claimant’s cardiologist had advised Social Security that the claimant’s condition precluded even sedentary work, his claim was denied. The claimant received a fully favorable decision today because I was able to persuade the Administrative Law Judge (“ALJ”) to give great weight to the cardiologist’s opinion. 

The ALJ had been unaware of the claimant’s family history of hypertrophic cardiomyopathy. I had the claimant explain that he only learned that he had hypertrophic cardiomyopathy after being tested because his 13 year old daughter died from it suddenly. I advised the ALJ that the claimant’s mother, two uncles, and grandfather also died from hypertrophic cardiomyopathy. I also had the claimant testify that his father had quadruple bypass surgery. Based on that family history, the ALJ not only found the cardiologist’s opinion reasonable, but also found that the emotional limitations from the claimant’s psychologist sound.

Monday, February 11, 2013

Queens ALJ Bias Plaintiff

I have written many blogs on the class action lawsuit against the five ALJs from Queens. I am one of only two attorneys who agreed to submit an affidavit against the five ALJs. The other is Troy Rosasco. You can go to my resources tab for copies of the affirmations. I have commented about those ALJs’ bias in an effort to help guaranty that my clients, and future claimants, receive fair and just hearings for Social Security benefits. Not only did the ALJ's repeatedly make the same legal errors, they also subjected the claimants to angry tirades, and treated them with unconcealed disdain. Today I received a thank you note from one of the named Plaintiffs in the Padro Queens class action case:

Dear Jeffrey: There are no words that can express my gratitude for all the hard work you have done on my behalf. I was very impressed to see how you protect and defend your clients rights regardless their gender or ethnicity. I realize this is not just a job or hobby for you. You are here to give voice to the voiceless. (someone like me after years of humiliations, or isolation I lost my voice.) So many times I came out of the hearings feeling unimportant, belittled and ridiculed due to my sickness. You gave me strength because I was standing on your shoulders. I came to this country in 1983. I worked while I went to school. I graduated from HS. I went to laguardia, received an Associate in applied science. I worked two jobs because I had family at home to take care of. Not once did I go for public assistance even when I had nothing to eat. It was out of questions. Many times I went to school without food and came home to an empty fridge. It did not matter. I had a dream. In 1991 I achieve this dream and was working as a physical therapy Assistant at Queens Genera Hospital for almost a decade. I attend meetings and have lunch with doctors and nurses. I did not fit the myth of "lazy immigrants. Later on I received my bachelor in applied science as a community health educator. I wanted to acquire a master degree in public health. You know the rest. Fibromyalgia happened. suddenly my life change completely. I am under attack My energy went from 100 % to -50. I was no longer in charge Fibromyalgia was. Sometimes it may take me one hour just to tie my shoes etc. I lost everything The only thing I had was faith. faith in god almighty and faith in my attorney. As you know I have a child with a disability. I had no choice I had to fight to survive. My Little boy is counting on me. Thank you for saving my family. It could of been a major disaster. Please continue the good fight. God chose you for a reason. He chose you to become the voice of the people.("We the people.) 

Jim Walden of Gibson Dunn is the attorney who brought the class action against the ALJs. His web page says, "Disqualify biased Administrative Law Judges who wrongfully denied Social Security disability benefits to thousands of needy New Yorkers." Unfortunately, the settlement failed to do that, and claimants will still be forced to have their cases heard by those five ALJs. Please contact my office if you are concerned that you may not receive a fair hearing from an ALJ in Queens.

Friday, February 8, 2013

Breast Cancer

Normally, obtaining Social Security Disability (“SSD”) benefits can be a long, drawn out process. However, if you have a critical medical condition, you may be able to request a Compassionate Allowance. If your illness establishes that you meet one of the conditions on the Compassionate Allowance list it allows Social Security to make a quicker decision. 

I represent a 54 year old Customer Service Representative with Stage IV breast cancer, which is one of the conditions on the Compassionate Allowance list. She received a fully favorable decision today, just a few months after I submitted her SSD application. It was only necessary that I submit the medical records that confirmed how the diagnosis qualified as a Compassionate Allowance; the more typical usual functionality restrictions and limitations were not needed. 

A Compassionate Allowance claim can still be denied, just like any other SSD claim, as it is still open to the same pitfalls of any most other SSD claims. While an attorney may not be required to obtain SSD benefits in the long run for a condition on the Compassionate Allowance list, if time is a concern, then an attorney can help ensure that the SSD application, along with any Child’s Benefits application, will be expeditiously and properly processed as a Compassionate Allowance.

Saturday, February 2, 2013

CIGNA LTD Fraud Template

Regular followers of this blog have read about CIGNA’s protracted history of denying disability claims in bad faith. A few months ago I described how one appellate court held that, CIGNA had a "predisposition to reject the claim regardless of the facts,” which is an argument that I regularly make about CIGNA. In another post, I described how another CIGNA decision used the same unlawful tactics that were used in the Alfano case I handled. That post noted that CIGNA’s wrongful LTD termination and denials have become so rampant that ABC News’ Good Morning America did an expose on it. The latest reported CIGNA decision provides more evidence demonstrating CIGNA’s history for biased claim adjudication. 

In Deloach v. Great Atlantic & Pacific Tea Co. LTD Plan, 2013 WL 363840 (E.D.Mich. Jan. 30, 2013), CIGNA terminated long term disability (“LTD”) benefits after Gary Person of CIGNA Group Insurance denied Deloach’s final appeal. CIGNA had previously determined that Mr. Deloach was disabled by his cardiovascular impairments. Mr. Person accepted the opinion of CIGNA’s in house physician, Dr. John Mendez, who reviewed the file and concluded that there were no “significant measured physical limitations” to support the treating physician’s physical restrictions. Mendez has absolutely no cardiovascular background, and holds himself out as an occupational medicine physician, based his statement on CIGNA’s “hired gun” Dr. Sushil Sethi who did an “IME.” 

 The court noted that there was no dispute regarding Deloach’s diagnosis or symptoms, but that CIGNA claimed there was no “objective” to support the treating doctor’s limitations. The court ruled that the LTD plan did not require objective tests, and that there are no objective tests to measure symptoms. The court also found that CIGNA selectively cherry picked medical findings out of context to terminate benefits. Perhaps more importantly, the court held that there was difference in the disability definition used by the plan and Social Security, and that Mr. Deloach’s condition had not changed since Social Security approved him for disability benefits. 

CIGNA has employed the identical practice and pattern of bad faith tactics in a case that I am currently litigating in the Eastern District of New York. In that case, on behalf of Life Insurance Company of North America, doing business as CIGNA, Gary Person terminated my client’s LTD benefits based upon John Mendez’s file review. My client has neurological and orthopedic impairments, which is outside Mendez’s expertise. Mendez of course stated that there was no objective evidence to support the limitations of my clients half dozen treating physicians, and Mendez based his conclusion on CIGNA’s hired gun, who did a file review, not an IME. There also was no change in my client’s condition since Social Security found him disabled. 

A court has just ordered CIGNA to produce both Gary Person and John Mendez for depositions at the Courthouse in New York. If anyone has had a claim denied or terminated by CIGNA that involves either Person and Mendez, I would appreciate hearing from you.

Friday, February 1, 2013

Unsuccessful Work Attempt

An unsuccessful work attempt (“UWA”), which can last up to six months, occurs when a Social Security Disability (“SSD”) claimant who stopped working, goes back to work. An UWA can benefit an SSD applicant because it may remove what would otherwise be a disqualification for benefits for a certain time period. 

 I received a favorable decision today for a former activities aide, who had been approved by the State agency for SSD as of January 1, 2012, which is the last date that she worked. I asked an Administrative Law Judge (“ALJ”) to amend the onset date to May 16, 2011, which is when she initially stopped working, before trying to resume working from November 1, 2011 through January 1, 2012. 

I contended that the claimant’s working for two months from November 1, 2011 through January 1, 2012 constituted an UWA. Citing SSR 84-25, the ALJ agreed and approved May 16, 2011 as the new onset date. As a result, the claimant will receive an additional seven months of SSD benefits.