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:
[1] Subchapter M, §§3.1201- 3.1203

[1] 8 V.S.A. § 4062f


Friday, March 24, 2017


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, 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.