Tuesday, July 28, 2015


The initial medical decision in Social Security Disability (“SSD”) cases has been delegated to state agencies, which in New York State is the Office of Temporary Disability Assistance (the “OTDA”). The OTDA goes to great lengths to ensure that SSD claimants get denied. 

I represent a 50 year old with scleroderma, sarcoidosis, Raynaud’s Disease, arthritic knees, back and hands, left leg nerve damage, and a blind right eye. He earned over $100,000 annually working as a steamfitter for 31 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue. 

You might think that the OTDA lacks common sense because it denied the claimant SSD benefits. However, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the SSD application. 

Last August, the OTDA told the claimant that he had to go to a consultative exam (“CE”) for sarcoidosis that would have required him to travel over 3 hours and 140 miles from his home. The claimant lives in eastern Suffolk County, and the CE was scheduled in Poughkeepsie, NY in Duchess County. In other words, the OTDA was telling the claimant to travel across Suffolk County, and the Nassau, Queens, Bronx, Westchester, and Putnam Counties to get to the CE in Duchess County. That CE demand was beyond reasonable, and could only have been made in bad faith. 

After I brought the unreasonableness of the CE location to the OTDA’s attention, it rescheduled the CE, but did so at the same location, which it did three days later, and then about four weeks later. The OTDA refused to send the claimant a notice that rescheduled the sarcoidosis CE at a reasonable location, although it managed to schedule a psychiatric CE nearby his home, which the claimant attended. However, the claimant never alleged that he had any mental impairment of any type. 

The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE. While scheduling the CE over 3 hours and 140 miles from the claimant’s home was malevolent, a review of the SSA claim file shows that the OTDA’s conduct was even worse. 

When scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named Y. Ellison-Nixon claimed that a treating doctor was asked to perform the CE, but that the doctor “does not accept the state approved vendor fee.” Ellison-Nixon lied. The claimant has over a half dozen medical specialists, and the OTDA never asked any of them to perform a CE, let alone asked any of them if they would do so for a specific fee. Ellison-Nixon committed fraud, that is, knowingly doing or saying something that is false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. While the Social Security hearing office will undoubtedly reverse the OTDA denial on appeal, the claimant’s SSD benefits should not have been delayed. This is precisely the type of incident that should be reported to the SSA Inspector General.

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