Monday, September 25, 2017

Free Medical Records for New Yorkers

On September 13, 2017, Governor Andrew Cuomo signed a bill which allows New Yorkers to obtain their medical records without having to pay a fee if they are needed for the support of an application, claim or appeal for any government benefit program. In the past, claimants applying for Social Security Disability ("SSD"), or Supplemental Income ("SSI") could be charged up to $.75 a page for their medical records by their doctors. This bill will take that financial burden off of the claimant's applying for SSD or SSI, who are usually in financial distress.

Saturday, September 23, 2017

Mental Health Parity Laws

New York and Montana both have mental health parity (“MHP”) laws. The purpose of MHP laws is to ensure that people with mental health problems are treated the same as people with physical problems. Surprisingly, Montana MHP laws provide greater protection for those afflicted with mental health issues than New York does. 

A few days ago, a federal judge in Montana ruled that Montana’s MHP law requires group disability plans to provide claimants with the same benefits for a mental illness as it would if the disability were due to a physical impairment. While New York’s MHP requires group health plans to provide equal coverage regardless of whether the impairment being treated is mental or physical, New York’s MHP does not require group disability plans to provide equal coverage. 

The difference in the States’ MHP is significant because the overwhelming vast majority of group disability plans limit benefits for 12-24 months for mental impairments. In Montana, Sand-Smith v. Liberty Life ruled that group disability insurers cannot enforce plan provisions that limit benefits if the claimant’s impairment is mental. New Yorkers currently lack the same protection. 

New Yorkers should contact Attorney General Schneiderman’s office and the State’s Department of Financial Services to advocate for expansion of the MHP law to apply to disability plans in addition to health plans.

Wednesday, September 20, 2017

OTRs to Reduce Backlog

Yesterday, The Denver Post published an editorial entitled Social Security’s lag time in disability assistance is unconscionable. The editorial noted that thousands of people die waiting for hearings. A couple of days ago, AP News published stating that, “More than 1 million Americans await a hearing to see whether they qualify for disability benefits from Social Security, with the average wait nearly two years — longer than some of them will live.

In the recent past, OTR decisions have been helpful in reducing the hearing backlog in the past. As recently as Fiscal Year 2010, senior attorneys issued more than 54,000 on-the record decisions, and OTRs were not uncommon. However, last year just over 1,000 were issued, with this year following suit. 

Senior attorney or attorney advisor’s would approve OTRs when medical-vocational rules directed awarding benefits, or when a listing was met. I had a hearing today, where the medical expert said the claimant met a listing, and the ALJ indicated that he was accepting that opinion. This case would have been approved by a staff attorney OTR several years ago, and resuming the program to allow them to issue OTRs would be an effective start to help alleviate the backlog.

Tuesday, August 22, 2017

SSD Hearing Delays

by Susan Golden

At the beginning of this year, the total wait time for a Social Security Disability ("SSD”) hearing was at an all time high of 511 days. [Link it] Fast forward to today, and that wait has increase by another 84 days, bringing the total wait time to an average of 595 days. 

As I discussed in a previous blog, due to the federal government hiring freeze and budget cuts in federal spending, SSD is backlogged with cases. There are not enough administrative law judges, attorneys or staff to handle these claims in a timely manner. 

If you are in dire need, and cannot wait two years for a hearing, then we recommend calling your Congressman or Senator to lobby on your behalf. You can also try calling your local TV news stations, like "7 On Your Side." The public needs to know how disabled people are being treated. These people worked their entire lives, and would give anything to be able to continue to do so. Nobody wants to get SSD instead of working since SSD only provides a fraction of what they were earning. No one should have to live for 2+ years without any income, and in danger of losing everything, because of bureaucratic delays.

Thursday, August 17, 2017

SSA Medical Experts

When an Administrative Law Judge (“ALJ”) schedules a hearing for a Social Security Disability (“SSD”) claimant, a medical expert (“ME”) may be asked to testify. 

According to the case law, an ME’s job is “to explain complex medical problems in terms understandable to lay examiners, not to assess plaintiff's impairments.” Nonetheless, ALJ’s almost always ask the ME for an assessment of the claimant’s restrictions and limitations, which more often than not, support the ability to work on a full time basis. Consequently, the credentials of the assigned ME should be investigated promptly in order to prepare for the ME’s cross-examination. 

I represent a 49 year old former nurse with fibromyalgia and arthritis, whose SSD application was remanded by the Appeals Council for a new hearing for a vocational expert (“VE”). On remand, the ALJ held a hearing with a VE. Afterwards, the ALJ submitted interrogatories to an ME, named Gerald Galst. I advised the ALJ that unless he was prepared to issue a fully favorable decision, then I wanted a supplemental hearing to cross examine the ME. 

I investigated ME Galst’s background, and submitted information from about ten websites where he was referred to as a cardiologist, which I used for the cross examination. After using a few of the exhibits, and Galst admitting that he was a cardiologist, that he didn’t treat fibromyalgia or arthritis, the ALJ went off the record and stated that he agreed the claimant should be found disabled. 

By making it clear that the ME was a cardiologist, and did not practice as an internist, it would have been extremely difficult for the ALJ to accept the ME’s opinion over the opinion of the treating rheumatologist.

Unum Loses

I represent a plaintiff who sued Unum after it terminated her long term disability (“LTD”) benefits. ERISA required Unum to render a decision in 45 days. Unum said that it could wait indefinitely beyond the 45 days because it was waiting for information from one of the claimant’s doctors. Rather than waiting, my client sued Unum. Unum then moved to dismiss the case, arguing that Plaintiff had to wait for Unum to make a decision. 

In McFarlane v. Unum, U.S. District Court Judge Abrams rejected Unum’s argument, and denied its motion to dismiss. That decision can found on my website in the Resources tab drop down menu for Court Decisions. The bottom line is that disability insurers cannot claim that they are waiting for information as an excuse to act in a dilatory manner. Also as a result of the decision, Judge Abrams will review Unum’s decision de novo, meaning it will not be given any deference.

Monday, July 24, 2017

Fast SSD Approvals

I represent a former road technician from Florida, and a former electrician from New York, who were approved today for Social Security Disability benefits in less than three months and less than fours months respectively. The primary complaint of both claimants was back pain, they were both over 55 years old, and neither performed sedentary work.

As usual, Social Security directed that their doctors examine the claimant, and those examinations were avoided. The treating specialists were cooperative, and promptly provided supporting reports and records. It is unclear if the approvals are indicative of a directive for approving “GRID” cases, or merely a coincidence.

Monday, July 17, 2017

Video Representation

I represent a former nurse whose claim for Social Security Disability (“SSD”) benefits was approved today by an Administrative Law Judge (“ALJ”) from Albany. I had requested to appear via video at the Long Island hearing office with the ALJ and the claimant appearing in Albany. 

When the Albany hearing office scheduled this matter for a hearing, it insisted that I appear in person at the Albany hearing office. The Albany hearing office claimed that I had asked for a hearing at the Long Island hearing office, which was false. To compound matters further, the Albany hearing office stated that the claimant signed a Video-opt-out, and failed to mention that Form HA-55 specified that I wanted to appear by video teleconference at the hearing, which was also untrue, and could be confirmed by reading the document. 

Considering that experts frequently appear via telephone, I requested that I appear at the claimant’s hearing, via Long Island ODAR's videoconferencing. I explained that the claimant’s right to the counsel of her choice should not be denied because she had to leave Long Island because she could no longer afford to live there after becoming disabled. After contacting the ALJ directly, he agreed to allow me to appear from the Long Island hearing office via videoconference. 

When I was retained, the claimant resided on Long Island. However, because her disability prevented her from earning a living, she was forced to relocate to the Albany area where the cost of living was more affordable. Having to relocate is not uncommon, and a claimant should not have to discharge their attorney of choice because of financial reasons. Kudos to ALJ Arthur Patane for recognizing that plight.

Wednesday, July 5, 2017

Treating Doctor CE

The Social Security Administration (“SSA”) invariably sends notices to applicants seeking Social Security Disability (“SSD”) benefits stating that they to attend a consultative examination ("CE”). In New York, claimants are told they have to be examined by a doctor from Industrial Medical Associates (“IMA”). However, the SSA’s program operations manual system (“POMS”) states that a claimant’s own medical sources should be asked to perform the CE for the back problem. 

When my clients get notices for an IMA CE, I advise the State agency about the relevant POMS, and offer to have the claimant’s doctor perform the CE and provide a detailed written report. To ensure there is no issue regarding the quality of the report, I tell the State agency to specify exactly what they would like the report to include, and to provide me with the same information they send to IMA when asking it to conduct a CE. 

Several disability analysts have recently agreed to allow claimants’ doctors to perform CE in lieu of IMA. In each instance the claim has been approved. One of those cases involved a 49 year old former Director of a State agency whose primary impairments are Lyme disease and fibromyalgia. Both conditions are frowned upon by the State agency, which invariably denies SSD applications based on those conditions. Nonetheless, shortly after the claimant submitted the CE report from her doctor, the SSD application was approved.

Monday, July 3, 2017

Investigating DDS Doctors

I represent a 54 year old Social Security Disability (“SSD”) claimant with chronic asthma and prostate cancer, who not only worked full time as a detective, but also worked 20 hours a weekend as a bus driver. In a prehearing memorandum, I argued that the claimant’s work history alone should warrant approving the SSD application because the claimant’s work ethic shows that he would have continued working if he were physically able. 

The claimed earned over $100,000 annually, so he had no incentive to exaggerate his condition in order to receive a third of his salary in SSD benefits. The claim file exceeded 1,500 pages of medical records when I was retained to handle the claimant’s appeal. I provided reports from the two pulmonologists, urologist, and internist that detailed the claimant’s inability to perform even sedentary work. Even though my prehearing brief explained that if the claimant were capable of sedentary work, he still would still have to be found disabled in accordance with the medical-vocational rules, and the Police Pension Fund found the claimant disabled from his past work as a detective, I was told that the ALJ still felt a hearing was necessary. 

A month before the hearing, the only evidence adverse to the claimant’s SSD application was the opinion of the State agency doctor who never examined the claimant. I supplied websites in which the State agency doctor identified himself as a nephrologist, and the claimant did not have a kidney problem. I asked the ALJ again to review my prehearing letter. 

I was advised today that a hearing will not be required. It apppears that ALJs do not review prehearing briefs until shortly before the hearing. If you believe your case is very strong, then submit a prehearing brief explaining why the vocational and medical evidence precludes the need for a hearing. The ALJ may agree.

Friday, June 23, 2017

Work History

Earlier this year, Ingrassia v. Colvin, 2017 WL 908195 (E.D.N.Y. Mar. 6, 2017), held that an ALJ erred by failing to evaluate the Social Security Disability (“SSD”) plaintiff's long work history of approximately 25 years when making a credibility assessment. 

I represent a former carpenter with back problems who has a 40 year work history. When the ALJ asked if I had any opening remarks, I focused on the claimant’s 40 year work history. The hearing was brief, and the claimant’s SSD application was approved today. The ALJ’s decision stated that the claimant could do light work, even though the doctors said that sedentary work was not possible. However, the ALJ still concluded that the claimant could not work. 

A claimant should always discuss their work history even though an ALJ will limit questions to the last 15 years. A claimant with a good work history is entitled to substantial credibility when claiming inability to work. Common sense dictates that a person with a long work history would continue working because of their strong work ethic if physically and mentally able. Most ALJ’s accept that premise.

Auxiliary Benefits

There are various types of additional, or auxiliary benefits that might be available when you become entitled to receive Social Security Disability (“SSD”) benefits. For example, if you are entitled to SSD benefits, then you are also entitled to receive benefits for your minor children, which is typically about half your SSD benefit. 

Frequently, the Social Security office will not always contact a claimant about children’s benefits after learning that a claimant will be receiving SSD benefits. Children’s benefits are not provided automatically; the claimant must file an application for them. If filed timely, the children’s benefits will start when the SSD benefits start. If an application for children’s benefits is not filed promptly, they may have a later start date than the SSD benefits. 

I represent a claimant who received SSD benefits starting in March 2008, but whose children’s benefits did not start until 2013. I was retained to see if it were possible to obtain additional children’s benefits. 

The claimant never received a letter from Social Security advising him to file an application for children’s benefits when he was approved for SSD benefits, and he had proof that he had problems receiving mail at that time. Moreover, the claimant testified that he went to the local Social Security office shortly after securing SSD benefits, he was specifically told that there were no other benefits available. 

In 2014, the claimant learned that he should have been receiving children’s benefits, and he filed an application for them. The application was approved. However, the general rule is that children’s benefits, like SSD benefits, can only be paid 12 months prior to the application’s filing. Therefore, the claimant only received children’s benefits as of 2013. The claimant appealed, but an ALJ denied the request for an earlier onset. 

I filed an appeal that argued because the claimant had been misinformed about his entitlement to children’s benefits, he was entitled to a March 2008 onset. The Appeals Council reversed the ALJ’s decision, and ordered a new hearing, to address the claimant’s misinformation argument. Unfortunately, this is a situation that could have been avoided if the claimant had retained an attorney experienced in Social Security. While an attorney is never required, one is usually advisable.

Thursday, June 15, 2017

Prehearing Brief

I represent a 54 year old Social Security Disability (“SSD”) claimant with chronic asthma and prostate cancer, who not only worked full time as a detective, but also worked 20 hours a weekend as a bus driver. In a prehearing memorandum, I argued that the claimant’s work history alone should warrant approving the SSD application because the claimant’s work ethic shows that he would have continued working if he were physically able. The claimed earned over $100,000 annually, so he had no incentive to exaggerate his condition in order to receive a third of his salary in SSD benefits. 

The claim file exceeded 1,500 pages of medical records, when I was retained to handle the claimant’s appeal. I provided reports from the two pulmonologists, urologist, and internist that detailed the claimant’s inability to perform even sedentary work. Even though my prehearing brief explained that if the claimant were capable of sedentary work, he would still have to be found disabled in accordance with the medical-vocational rules, and the Police Pension Fund found the claimant disabled from his past work as a detective, I was told that the ALJ still felt a hearing was necessary. 

A month before the hearing, the only evidence adverse to the claimant’s SSD application was the opinion of the State agency doctor who never examined the claimant. I supplied websites in which the State agency doctor identified himself as a nephrologist, and the claimant did not have a kidney problem. I asked the ALJ again to review my prehearing letter. 

I was advised today that a hearing will not be required. I suspect that ALJs will not review prehearing memos until shortly before the hearing. If you believe your case is very strong, then submit a prehearing brief explaining why the vocational and medical evidence precludes the need for a hearing. The ALJ may agree.

Thursday, June 8, 2017

Rule Change

Social Security recently changed its rules and regulations concerning unsuccessful work attempts. (“UWA”)

If you stop working at a job in less than three months due to a medical condition, then it can be considered an UWA, which would not impact the ability to receive Social Security Disability (“SSD”) benefits. Prior to November 16, 2016, there were additional requirements to qualify for an UWA if the work lasted between three and six months. Those additional requirements have now been removed. 

I represent a 43 year old former graphic designer with multiple sclerosis who was able to avoid a hearing because of the new UWA rule. The claimant’s SSD application was approved yesterday, even though he had a five month UWA after he stopped working. Prior to November 16, 2016, the claimant would have needed to attend a hearing because he would have needed to explain why he satisfied the additional requirements to qualify for the UWA.

Wednesday, May 31, 2017

ALJ Kilgannon Reversed

You know that the decision of an administrative law judge (“ALJ”) is poor when the Social Security Administration (“SSA”) refuses to defend it. I represent a claimant whose social security disability (“SSD”) application was denied by ALJ Patrick Kilgannon. I appealed the denial to federal court, and today, U.S. District Court Judge Arthur Spatt reversed ALJ Kilgannon’s decision. (see Staib v. Colvin)

Judge Spatt stated that this was “a unique case” because even the SSA argued that the ALJ’s decision could not be defended. ALJ Kilgannon stated he would admit evidence the claimant submitted, but failed to review and admit them. ALJ Kilgannon failed to develop the record by rejecting the claimant’s onset date for lack of treatment records while never seeking to obtain them or indicating they were relevant. The Appeals Council also failed to consider evidence the claimant submitted after the hearing. 

Discussing ALJ Kilgannon’s decision, Judge Spatt explained that, “the Court cannot engage in any meaningful analysis of whether he correctly applied the treating physician rule, whether his decision is supported by substantial evidence, or whether he properly weighed the Plaintiff’s credibility." ALJ Kilgannon’s decision “was so deficient and flawed” that Judge Spatt ruled it denied the claimant a full and fair hearing. Therefore, Judge Spatt did not even feel the need to address the claimant’s substantive arguments.

Sunday, May 28, 2017

Hereditary Angioedema

Hereditary Angioedema ("HAE") is a rare and potentially life threatening medical condition, which causes swelling in almost any body part, external or internal. The swelling occurs unpredictably, but can be triggered by repetitive motion, or even just being bumped. The swelling and pain can completely preclude use of the affected body part, e.g., hands, feet, or can result in death if the airways or digestive system swell. 

From a claimant's persepective, the problem is explaining why HAE renders them disabled from working. A Social Security medical expert testified that my 43 year old client was disabled, but could stand/walk 6 hours out of 8, and could lift 10 lbs. The administrative law judge (“ALJ”) wanted a supplemental hearing, presumably for a vocational expert, until I cross examined the medical expert ("ME"). 

I was able to get the ME to agree that the claimant would miss at least 3-4 days a month because of the HAE. The ME also agreed that while the claimant might be able to lift 10 lbs and stand for 6 hours, it was not advisable for him to do so given his HAE. Following the ME's conclusions, the ALJ stated that a supplemental hearing would not be necessary, and she would issue a decision shortly. Given the ME's testimony, I anticipate a fully favorable decision. 

The ALJ also wanted a supplemental hearing so the ME could consider adversarial evidence. Because of my client's HAE, he is homeless, which is why I vehemently opposed a supplemental hearing. Besides needing SSD to live, the client should also be entitled to receive Medicare, which is critical to his receiving proper treatment.

Friday, May 19, 2017

IMA CE

The State agency continues to send letters insisting that Social security Disability (“SSD”) claimants go to consultative examinations (“CEs”) by Industrial Medicine Associates (“IMA”). I represent a 59 year old former security guard with breast cancer and orthopedic problems whose SSD application was approved today, even though she did not go to the IMA CE. 

The State agency was unconcerned about the cancer because it was Stage I. Nonetheless, the claimant had three separate orthopedic specialists who treated her bilateral hand, lumbar spine, and knee problems. Their treatment records and supporting summary reports with functional assessment were obtained quickly. The same State agency that said it was necessary for the claimant to attend a CE, determined that the claimant was disabled from work, despite the fact that she did not attend the IMA CE. 

Ongoing communications with the State agency representative assigned to the claim helped expedite the case. We were able to pin down exactly what the State agency claimed would be needed from the CE, and had the claimant’s doctors’ provide it. Getting the information made the representative’s job easier as we did the job for her. Avoiding the IMA CE with its inevitable conclusion that the claimant could work made the extra effort worth it.

Wednesday, May 17, 2017

RSD Journal

The Social Security Administration (“SSA”) has a special rule that covers Reflex Sympathetic Dystrophy (“RSD”) claims. In a previous blog, I discussed how Social Security Disability claimants with RSD can use that rule to help win their case by submitting third party information. That rule also discusses the value of a claimant’s journal. 

Typical RSD symptoms include severe burning pain, pathological changes in bone and skin, excessive sweating, tissue swelling, and extreme sensitivity to touch. Evidence supporting the severity of those symptoms usually comes from the medical records, and is corroborated by third party information, such as hearing witnesses or affidavits. However, the RSD rule specifically adds that a claimant’s own records can establish the functional impact of RSD. 

Most of the time, the SSA disregards a journal or diary as either redundant of testimony or self-serving. However, the RSD specifies that such evidence would be documentary validation of a claimant’s subjective allegations. Therefore, the SSA’s failure to credit that evidence would be error, and provides the claimant with additional evidence that is consistent with the claims. 

I just had another RSD claimant’s application approved. In the past I have been told that I submit cumulative evidence. The SSA has effectively replaced the test of a claimant’s credibility with a test of the consistency of the evidence. It is more important now than ever to submit as much evidence from multiple sources, including evidence that is not from physicians, to show that any adverse evidence, usually limited to SSA doctors, is the inconsistent evidence.

Monday, May 1, 2017

Psychotherapy Treatment Records

The Social Security Administration (the “SSA”) uses the HIPPA definition for “psychotherapy notes,” which are also known as session or process notes. Mental health professionals document their conversations of counseling sessions with notes, and according to the SSA, it “recognizes the sensitivity and extra legal protections that concern psychotherapy notes and does not need the notes." The SSA excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date, from psychotherapy notes. 

Most mental health providers have one set of treatment records, which leaves two choices. First, the records that would be considered psychotherapy notes can be blacked out. Alternatively, the mental health care provider can prepare a report that details the critical current and longitudinal aspects of the patient’s treatment and their functional status. Most Social Security Disability attorneys provide mental medical source statements that provide the information consistent with the second option. Nonetheless, the SSA always insists on having the actual treatment records. 

The problem with supplying the psychotherapy notes is that the SSA cherry picks comments out of context to argue that the claimant’s mental impairments are insufficiently severe to be disabling. When the SSA demands my client’s psychotherapy notes, I offer to provide them if they confirm in writing that the information from their website is incorrect. I also offer to supply a report providing whatever details regarding the critical current and longitudinal aspects of the claimant’s treatment and functional status that the SSA claims was omitted form the mental medical source statement. 

I represent a claimant with anxiety and depression whose application was approved today less than two months after it was submitted. The SSA insisted on a consultative examination (“CE”) for my client because I only submitted mental medical source statements and narrative reports. After I submitted a letter discussing the above, the SSA withdrew the CE demand, and approved the application.

Saturday, April 8, 2017

Unum Rubberstamping Puppets

I read a blog by a former Unum claim representative that described how Unum claim handlers are glorified secretaries. The truth is that calling Unum claim handlers glorified administrative assistants is an insult to the latter. 

I deposed a Unum claim representative who approved, and then 20 months later terminated, my client’s long term disability {“LTD”) benefits. The claim handler testified that my client’s benefits would continue if her condition did not improve, and that he was required to consider all of the evidence that my client had submitted. While my client continued to submit the same evidence that Unum found rendered her disabled, when terminating my client’s benefits, the Unum claim handler admitted that he did not even compare the findings and opinions of Unum’s doctors with those of Plaintiff’s doctors, and the issue of improvement was never even considered. 

An administrative assistant may not perform executive or managerial tasks, but they do exercise independent judgment. On the other hand, the Unum claim handler unabashedly testified that he exercised absolutely no independent judgment in his work. The claim handler admitted that he relies exclusively on what Unum’s doctors say, that he simply accepts whatever Unum’s doctors say, and rubberstamps their conclusions. 

In other words, Unum completely disregards all the evidence that supports a claimant being disabled, as long as Unum’s doctors say a claimant can work, regardless of what that evidence shows.

Sunday, April 2, 2017

Chronic Fatigue Syndrome Update

Today’s New York Times included an article entitled "Getting It Wrong on Chronic Fatigue Syndrome.” The article describes how a closer examination of the evidence reveals that psychotherapy and a steady increase in exercise are not effective treatments for chronic fatigue syndrome (“CFS”). In short, once access to the actual data, which was the genesis for those treatment options, was made available for analysis, the data revealed that psychotherapy and graded exercise do not improve symptoms, and to the contrary, frequently make them worse.

Saturday, April 1, 2017

Consultative Examinations

The POMS revised its rules regarding a consultative examination (“CE”). A claimant’s own medical source, which does not have to be a physician, “is generally the preferred CE source.” 

The State agency is supposed to schedule a CE with your doctor who: is qualified; has adequate training and experience necessary to perform the types of examinations and tests needed; has access to the equipment required to perform the types of examinations and tests needed; is willing to perform the examination or test for the fee schedule payment; and is willing to provide a detailed written report of the examination in a timely manner. 

The State agency will assume your doctors are not willing to do a CE if they failed or refused to provide medical evidence when asked. The State agency frequently asks treating doctors if they are willing to do a CE – in small print – on their letters to doctors that request medical records. The State agency might also call to ask if your doctor would do a CE. 

If you are applying for Social Security Disability (“SSD”) benefits, you should tell your doctors in advance to say that they will do the CE, or to send any letter they receive from the State agency to you or your attorney to respond. You should also arrange to pay the difference between what the State agency will pay for the CE and what your doctor will accept to avoid payment from being an obstacle for your doctor to do the CE.

Thursday, March 30, 2017

Discretionary Clauses

Englert v. Prudential Insurance Company of America, 2017 WL 1133380 (N.D.Cal. Mar. 27, 2017), is the latest federal district court from outside New York to rule that discretionary clauses are not enforceable. Disability insurance companies misuse discretionary clauses to deny benefits to claimants. 

Discretionary clauses are contract provisions that grant an insurance company or administrator the unrestricted authority to determine eligibility for benefits and to interpret terms and provisions of the policy, contract or certificate. An example is: “the company has full, exclusive, and discretionary authority to determine all questions arising in connection with the policy, including its interpretation.” 

Why Discretionary Clauses Need To Be Banned In New York 

Over 20 States prohibit discretionary clauses in insurance policies because they have been found to be unjust, unfair and inequitable. New York once banned discretionary clauses, but the insurance lobby succeeded in having the insurance regulations banning those clauses withdrawn. 

Discretionary clauses place the insured at a great disadvantage in any disagreement over the meaning of the insurance contract, usurp the role of the courts in deciding a matter of law, that is, the meaning of the contract, and exacerbate the insurer’s inherent conflict of interest in being both the entity that pays and decides what does or does not need to be paid. In other words, the insurance company profits increase when it denies and terminates claims. As noted by the Supreme Court in Metlife v. Glenn, 554 U.S. 105, 128 S.Ct. 2343 (2008), where an insurer both determines whether an employee is eligible for benefits and pays those benefits out of its own pocket, there is a conflict of interest. This conflict would be mitigated by prohibiting discretionary clauses and lessening the insurer’s discretion to decide what the contract means. 

Discretionary clauses are also unjust and contrary to the laws of this State because the deferential standard of review is opposed to the common law doctrine that ambiguities in insurance contracts should be construed in favor of the insured. Moreover, discretionary clauses in insurance contracts are misleading because policyholders probably do not understand when reading these clauses that they are giving up the right to a neutral, merits-based review of the insurer’s decisions and the meaning of the policy, and that the insurer as a practical matter could proceed with essentially absolute discretion as to what the policy means. Disability insurers always argue that they have the discretion to deny or terminate benefits by relying exclusively on the opinions of their doctors, who reject the opinions of the treating doctors, regardless of what the evidence reveals. 

A disability or health insurance policy is a contract. The interpretation of a contract is a matter of law and ordinarily questions of law are for the judiciary to decide. In a lawsuit on a contract, such as when an insured sues an insurer, a court looks at the question of law de novo, i.e., without regard for how the contract might have been initially interpreted by the insurer. However, when a discretionary clause is present, it usurps the role of the courts because they are required to give deference to the insurer’s interpretation of the contract, and will only overturn the insurer’s view if the court finds the insurer’s decision was arbitrary and capricious. This leads insurers to deny and terminate claims that they know should be approved. 

A client that I am currently representing illustrates a concrete example of what is at stake. She is covered by two disability policies that were issued by First Unum. One policy grants discretionary authority, while the other does not. First Unum found that my client can perform her own occupation, and has denied benefits, under the policy that it mistakenly thinks grants it discretionary authority. At the same time, based upon the same, and actually less, evidence, First Unum found my client was disabled from any occupation under the policy that does not grant discretionary authority. 

Insurance companies’ widespread abuse due to discretionary clauses prompted some regulatory authorities to take action. In 2002, the National Association of Insurance Commissioners (the “NAIC”) issued a model act entitled “Prohibition on the Use of Discretionary Clauses” (the “Model Act”). When an insurance company issues a group disability policy, a discretionary clause grants the insurer or administrator the authority to determine eligibility for benefits and to interpret terms and provisions of the policy. The purpose of the Model Act is to prohibit clauses that purport to reserve discretion to the insurer to interpret the terms of a disability insurance policy. 

The abuse of discretionary authority by the insurance companies became so widespread that the media covered the issue. On October 13, 2002, NBC Dateline did an expose called “Benefit of the Doubt”. The story described how Unum, the largest disability insurance provider, had systematically manipulated and created evidence in order to create excuses to deny and terminate disability claims. On November 20, 2002, CBS 60 Minutes also did an expose on Unum called “Did Insurer Cheat Disabled Clients?” The 60 Minutes piece detailed how Unum forced doctors to manufacture evidence as a means to deny and terminate disability claims. 

The abuses by Unum resulted in the U.S. Department of Labor and 49 State Insurance Departments bringing an action against Unum that resulted in a regulatory settlement agreement. Among other things, Unum was forced to reassess hundreds of thousands of disability claims that it had denied or terminated. Although Unum continues to engage in the same tactics that led to the agreement, no further action has been taken, and other disability insurers are now following Unum’s lead. Perhaps no further regulatory action has been taken because many states have now banned discretionary authority. 

On March 27, 2006, New York State Insurance Department issued Circular Letter No. 8 that adopted the NAIC Model Act. The letter stated that “discretionary clause provisions in accident and health insurance policies and in subscriber contracts will no longer be approved by the Department” because “The Department has determined that the use of discretionary clauses violates Sections 3201(c) and 4308(a) of the Insurance Law in that the provisions ‘encourage misrepresentation or are unjust, unfair, inequitable, misleading, deceptive, or contrary to law or to the public policy of this state.’ Additionally, the Department believes that the use of discretionary clauses is an unfair or deceptive act or practice, within the meaning of Article 24 of the Insurance Law.” 

In what is already a contract of adhesion, i.e., one that a consumer has no choice but to accept, discretionary clauses skew the balance of power even further in favor of the insurer. In other words, when a disability policy in New York grants the insurer discretionary authority, New Yorkers are at a severe disadvantage in any contest over questions of coverage, eligibility and interpretations and applications of the provisions of the contract for the simple reason that the insurer included a discretionary clause in the contract. If discretionary clauses are prohibited, then the courts apply the de novo standard of review, and are free to substitute their own judgment for that of the insurer. If a matter comes to court, the consumer faces a level playing field, and is better protected. 

What is perhaps most affected by the differing standards of review is the mindset of the insurer – its confidence that whatever it decides is sacrosanct under the “arbitrary and capricious” standard, as opposed to the more cautious approach it would take knowing that its decisions would be reviewed de novo. My experience has shown that whenever a court rules that a de novo standard of review applies, the insurer immediately seeks to settle the case, which is a tacit admission that the insurer knew its decision was wrong. 

Recognizing that a level playing field would require insurers to stop denying and terminating claims, the insurance lobby prevailed upon the Insurance Department to withdraw the Model Act just three months after it was adopted. On June 29, 2006, the Insurance Department issued Circular Letter No. 14, which withdrew the ban. The Letter stated that discretionary clauses that require courts to review disability and medical insurance claims under an arbitrary and capricious standard of review rather than de novo review negate essential features of the policies, as well as statutorily required appeal rights, which nullifies the insurer’s responsibility to pay. The Insurance Department found that discretionary clauses were likely to mislead the policyholder, contract holder or certificate holder; were “unjust, unfair or inequitable; and were an “unfair or deceptive act or trade practice.” While no longer banning discretionary clauses, the Insurance Department stated that it was “drafting regulations that would prohibit the use of discretionary clauses” in insurance policies. 

To date, seven years later, no such regulations exist, although in April 2010, the Insurance Department asked for comments about proposed regulations to ban discretionary clauses, but no regulations were enacted. Last year, I spoke with Insurance Department-Department of Financial Services representatives, and they said that it was highly unlikely that anyone would be drafting any such regulations now. 

Over twenty States have enacted legislation to ban discretionary clauses, and the list includes “Red” States such as Texas and “Blue States” such as Vermont. Adopting the Model Act levels the playing field when the disabled are forced to sue insurance companies to receive their benefits. For example, in Barrett v. Life Insurance Company of North America, 868 F.Supp.2d 779 (N.D.Ill. 2012), based on the Illinois law that adopted the Model Act, the court ruled that, “review will be de novo rather than measured against an arbitrary-and-capricious yardstick.” How long must New Yorkers wait for similar protection? 



[1] Circular Letter No. 14 can be found at: http://www.dfs.ny.gov/insurance/circltr/2006/cl06_14.htm.
[1] Subchapter M, §§3.1201- 3.1203

[1] 8 V.S.A. § 4062f

 

Friday, March 24, 2017

Pancreatitis

WebMD says that pancreatitis is a disease where the pancreas becomes inflamed. When that happens, it can result in abdominal pain that radiates into the back, which pain may be disabling according to the Cleveland Clinic. The Mayo Clinic says severe cases of pancreatitis can cause life-threatening complications. 

I represent a 26 year old former nursery school attendant with pancreatitis, whose Social Security Disability (“SSD”) application was approved today. There was no doubt that the claimant suffered from pancreatitis. The medical records contained diagnostic and treatment records verifying the diagnosis and symptoms. I also obtained reports from the treating internist that provided restrictions and limitations that precluded full time work. 

Pancreatitis is not one of the more common impairments that I have seen over the years. As I correctly surmised, the problem for the administrative law judge (the “ALJ”) at the hearing would be figuring out why abdominal pain prevented her from working on a full time basis. It took substantial preparation before the claimant understood how she needed to articulate the nexus between her symptoms and her ability to function. 

The ALJ was led to understand the connection between the claimant’s abdominal pain and the internist’s restrictions and limitations. Once that was established, the ALJ gave great weight to the internist’s opinion, which resulted in the SSD application being approved.

Thursday, March 2, 2017

Pain Medicine

According to the American Board of Pain Medicine, pain medicine is concerned with the prevention of pain, and the evaluation, treatment, and rehabilitation of persons in pain. The POMS says there is no specialty board for pain or certification program. The POMS is wrong because the following specialty boards have certifications for Pain Medicine: Anesthesiology, Emergency Medicine, Family Medicine, Physical Medicine and Rehabilitation, Neurology, and Radiology. 

I represent a 45 year old former nurse assistant whose application for Social Security Disability (“SSD”) benefits was approved today by an administrative law judge (“ALJ”) on-the-record (“OTR”) without a hearing. The claimant has neck and back problems that cause neck, back, leg, and hand pain, which have persisted despite treatment with the claimant’s board certified physiatrist who is certified in Pain Medicine. 

When making its initial SSD decision, the State agency, is supposed to follow the POMS. Perhaps if the POMS correctly recognized that numerous medical specialty boards, including physiatry, maintain certification programs for Pain Medicine, then the State agency would have approved the claimant’s SSD application. Considering that most claimants are disabled by pain, extra weight should be given to pain specialists, regardless of whether there is an independent medical board that is part of the American Board of Medical Specialties.

Monday, February 27, 2017

ALJ Found Scleroderma Disabling

I represent a 56 year old former nurse with scleroderma, whose application for Social Security Disability (“SSD”) benefits was denied by the State agency. A State agency clerk named M. Faughnan determined that the nurse’s condition was not severe enough to prevent her from working, even though her orthopedist concluded the claimant could not work. Faughnan’s decision was particularly opprobrious because it rejected the opinion of the State agency’s consultative examiner, which supported the claimant’s disability. 

On appeal, I submitted a report from the treating rheumatologist explaining that the claimant meets listings 14.04 and 14.06, which was simply the icing on the cake. The Administrative Law Judge (the “ALJ”) assigned the case approved SSD benefits without a hearing. The ALJ gave the opinions of the orthopedist, rheumatologist, and CE little to no weight respectively. In other words, there was no excuse for Faughnan to have rejected the opinions of any of those doctors.

Tuesday, February 21, 2017

More SSD Delays

by Susan Golden

Every day, potential and existing clients ask us the same question; how long will it take to get a decision on my Social Security Disability ("SSD") claim? A few years ago, our answer was an average of 6-9 months at the initial application ("IA"), and then another 6 months or so if the IA was denied and the claim had to go to the Office of Disability Adjudication and Review ("ODAR") for a hearing. Today, the answer to that question has changed significantly, and not in a good way. 

The Social Security Administration's ("SSA") budget has been cut by 10% over the past several years while the number of beneficiaries it serves has increase by 13% during that time. The number of people waiting for hearings has increased to over 1.14 million people. In addition to that, there are over 3.6 million claimant's approved cases pending at the Payment Centers (where claimants' retro-active benefits are processed) which has increased the amount of time a claimant has to wait to receive their benefits. 

In addition to the budget cuts, the current administration issued a government -wide hiring freeze on January 23, 2017. Between the budget cuts and the hiring freeze, the delays the SSA is experiencing will only increase. And due to the budget cuts, the SSA's plan for hiring more judges and support staff to relieve some of these delays will now be impossible. The bottom line is, expect to wait a very, very long time if you plan on applying for SSD benefits.

Saturday, February 18, 2017

ODAR Rumor

The Social Security hearing office is called ODAR, which stands for the Office of Disability Adjudication and Review. There is no longer any doubt that ODAR has taken steps that reduce the number of on-the-records that get issued. Just as ODAR’s approval rates have decreased, so too have the number of OTRs ODAR approves. 

Informal discussions with senior personnel at a local ODAR indicated that OTRs will no longer be approved unless there are many medical exhibits. I disregarded those assertions because I found it hard to believe that ODAR would elevate form over substance. For example, I could not believe that separating medical tests, and reports from treatment records from one medical source into multiple exhibits could make a difference. I may have been wrong. 

I represent a 49 year old former nurse with back problems whose Social Security Disability (“SSD”) claim was just approved. As a nurse, the claimant was very assiduous about providing us with her medical records each time she underwent a procedure or saw a physician. Instead of amassing and submitting all evidence from a particular treating source as one exhibit, each time the claimant provided us with document we submitted it. The result was an abnormally large number of medical exhibits. 

The OTR was issued by an Administrative Law Judge (“ALJ”) who historically has not done so. There have been numerous claims pending from claimants with similar or less favorable vocational factors and medical conditions that were not granted an OTR. It would appear that the ALJ approved the OTR because of the large number of medical exhibits. Maybe the ODAR rumor is true.

Friday, February 10, 2017

SSD Approval Rates

In 2010, 62% of Social Security Disability claims at hearing offices were approved. That number is now about 36%. Simultaneously, Administrative Law Judges (“ALJ”s) are requesting excessive support before approving SSD claims. In short, the SSA decided or it was directed to reduce the number of claims being approved, and to justify their approvals, ALJs are required to insist of receiving superfluous medical evidence. 

I represent a client who stopped working after 35 years as an accounts payable clerk when she was 60 years old due to physical and mental impairments. It should be obvious that anyone with that type of work history would continue working if able to do so. Surgical reports, EMG and MRI testing, treatment records, and opinions from the claimant’s internist, both treating and IME physical medicine and rehabilitation specialists, and psychiatrist, were all submitted to support the SSD application. Nonetheless, the ALJ insisted that the claimant provide additional treatment records before approving the SSD application. 

It is unclear why cumulative medical evidence is required. It could be that the ALJ was hoping to find something in the records that could be singled out to deny the claim. It is possible that the ALJ feels pressured to provide overwhelming evidence to justify an approval to avoid her decisions from being reviewed by quality control. Regardless of the reason, what is clear is that the old status quo is gone.

Wednesday, February 1, 2017

National Adjudication Team

Among other things, HALLEX I-5-3-21 describes the purpose of, and procedures for, attorney advisors in the National Adjudication Team (“NAT”). These attorneys select cases for review to see if they can be decided favorably on-the-record without the need for a hearing. The goal was to reduce the backlog of cases the Social Security Administration is experiencing at the hearing level.

There is no downside to your disability claim being transferred to the NAT. Either a fully favorable decision will be issued, or the case will be sent back to your local hearing office. I received such an approval today for a former teacher’s assistant. 

The real question is what is the advantage of the NAT over hiring other attorney advisors or administrative law judges (“ALJs”) for the local hearing offices. It would seem more efficient for a local office that is already somewhat familiar with the case to screen out cases for OTRs. Thus, it would seem to make more sense to hire more attorney advisors and ALJs for local hearing offices, unless the number of claims meeting NAT criteria are too small at most hearing offices.

Wednesday, January 25, 2017

Treating Testimony

I have always believed that the best evidence that a claimant can present to an administrative law judge (“ALJ”) at a Social Security Disability (“SSD”) hearing is live testimony from a treating physician. An ALJ typically rejects a supportive opinion from a treating physician by claiming it is inconsistent with other evidence or lacks support. An ALJ is duty bound to develop the record. Therefore, at a hearing, the ALJ would have to ask a testifying treating physician to explain the basis for his or her opinion before the ALJ could reject it for lacking consistency or support. 

ALJ’s frequently ask a Social Security medical expert (“ME”) to testify in order to create evidence to contradict the supporting opinions of treating physicians. It becomes extremely difficult for an ME to do that when the treating physician is present to rebut the ME. 

I represent a former cable installer whose SSD benefits were approved today. The ALJ gave equal weight to the opinions of the ME and the treating physicians, which he rarely, if ever does. I had advised the ALJ that the claimant’s treating physician would be waiting by the telephone to testify at the hearing, but it was unnecessary because the ME testified favorably to the claimant. I doubt that the ME would have testified favorably, or that the ALJ would have provided the opinions of the ME and treating physician equal weight, had the latter not been standing by to testify.

Tuesday, January 17, 2017

SSD Bench Decisions

Virtually every client appearing for a hearing on a Social Security Disability (“SSD”) claim asks when they can expect to receive a decision, or will the administrative law judge (“ALJ”) say what the decision is at the hearing. 

It is a rare case when an ALJ tells a claimant at a hearing, that is, from the “bench,” that SSD benefits are being approved. When that happens, the ALJ frequently issues a bench decision for the fully favorable decision. The written decision that follows in a few days is shorter than a typical fully favorable written decision. 

I find it surprising that more bench decisions are not issued. ALJs consistently state that they are under significant pressure to issue more decisions. Producing a bench decision takes less time and effort than a traditional written decision. I represent a former automotive repairer with a bad back and knees who received a bench decision today. I suspect that ALJs usually do not issue bench decisions because they may want to avoid having to explain at a hearing why they are unwilling to issue a bench decision to other claimants.

Pontine Stroke

According to reference.com, a pontine stroke is one that occurs in the pons, which is a portion of the brain stem. The pons, which is located between the midbrain and medulla, relays messages between the cerebral hemispheres and cerebellum. Common symptoms include double vision, dizziness, vertigo, slurred speech and imbalance. 

Being disabled from a condition that is somewhat atypical may have helped one of my client’s get approved for Social Security Disability (“SSD”) benefits. The State agency usually requires claimants to attend a consultative examination (“CE”) that its contracted doctor performs. CE opinions are almost always less supportive than treating doctor opinions. 

I represent a claimant who suffered from a pontine stroke. The State agency wanted to send the claimant for a CE to Industrial Medicine Associates (“IMA”), which I objected to for several reasons. On this occasion, the State agency agreed with my request that the claimant’s treating doctor perform the CE. 

The treating doctor’s CE report stated that the claimant suffered from slurred speech, imbalance, spasticity and right sided weakness, including abnormal gross and fine manipulation. The CE report also provided a less than sedentary work ability. The State agency approved SSD benefits after receiving the report. 

Treating doctors frequently supply opinions that claimants possess less than sedentary work abilities to the State agency, but those opinions are usually rejected in favor of the IMA opinion, or are simply rejected on the grounds that determination of disability is for the State agency to make. It may be possible that because the claimant’s problem was somewhat unusual, IMA lacked a proper doctor to do the CE, and therefore, the State agency agreed to allow the treating doctor to do the CE.