The Law Offices of Jeffrey Delott

Chronic Fatigue Syndrome (CFS)

2009-06-29T17:55:00.004-05:00

The Social Security Administration (the “SSA”), which denies a majority of disability claims initially, has a particularly difficult time approving CFS claims. In fact, the SSA had to issue a Ruling specifically addressing how CFS claims need to be evaluated, known as 99-2p.

I represent a 58 year old medical laboratory technologist who stopped working because of CFS. Her request for a fully favorable decision on the record was just approved, which means that she will receive her Social Security Disability (“SSD”) benefits without having to wait for a hearing.

I attribute the approval to two things. First, I obtained a detailed narrative from the claimant’s infectious disease specialist, Dr. Susan Levine. CFS is a diagnosis through exclusion, and frequently involves overlapping medical conditions. Dr. Levine’s report explained how the claimant’s complex and disparate medical findings supported the CFS diagnosis and functional limitations.

Second, and more importantly, in the absence of diagnostic testing for CFS, the claimant’s credibility is especially important. I provided legal precedents explaining why the claimant’s 35 year work history required a presumption of credibility. Moreover, I obtained medical assessments from four other treating physicians who corroborated Dr. Levine’s opinion that the claimant could not do sedentary work. In light of the five supporting medical opinions, the Administrative Law Judge who approved the case rejected the opinion of the SSA disability analyst who said the claimant could work.

When seeking SSD benefits based on CFS, a claimant should attempt to submit both a narrative report that provides a detailed explanation for the diagnosis, and multiple functional assessments.

Dictionary of Occupational Titles

2009-06-25T12:24:00.002-05:00

Applications for Social Security Disability (“SSD”) benefits require providing work history information. When I submit SSD applications, I provide the Dictionary of Occupations Title (the “DOT”) occupation code for the claimant’s past work where I believe Social Security medical-vocational rules, also known as the “Grid rules,” should apply.

I represent a 58 year old former dental assistant, who stopped working because of her back, neck and knee pain. I provided the DOT code when submitting the SSD application, and pointed out how the claimant would be entitled to receive SSD benefits even if the medical evidence indicated that she had the ability to do sedentary work.

The majority of SSD applications are denied initially. Those applications that are not denied, typically take at least five months to be approved. The claimant’s application was approved in only three months.

Providing the DOT code may avoid having the file referred for vocational review, which saves time. Highlighting the applicability of the Grid rules may also help the State agency recognize that SSD benefits should be approved.

Voluntary Remand

2009-06-23T10:23:00.001-05:00

When Social Security claims are pursued in federal court two things typically happen. First, after the parties brief their case, the court decides in favor of one side, or neither side and remands the case back to the Administrative Law Judge (“ALJ”) who previously heard the case. Second, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. The question arises, does it ever make sense to reject a voluntary remand.

Accepting a voluntary remand avoids the possibility that a federal district court judge would affirm the decision of the SSA. The next step would be to proceed to a federal appellate court, but they do not usually reverse such decisions. Nonetheless, there are some occasions when a voluntary remand should be rejected.

I represent a minor plaintiff whose claim for Supplemental Security Income (“SSI”) benefits was denied by ALJ Newton Greenberg. I believed that the evidence showed the plaintiff met childhood listings for mental retardation. In fact, I believed the ALJ’s own conclusions showed the plaintiff met listings 112.05D and 112.05F, without any need for the federal court judge to consider anything other than the ALJ’s unfavorable decision. Moreover, my legal research uncovered two factually indistinguishable cases where the courts granted the plaintiff’s motion for judgment on the pleadings, and remanded solely for the calculation of benefits.

Each time that the U.S. Attorney offered my client a voluntary remand, I advised his mother to decline it. After granting the U.S. Attorney extra time to brief the case and discuss it with the SSA, he advised me that the SSA had decided to pay the plaintiff all of his SSI benefits.

Had I accepted the offer, then the plaintiff would have needed to wait for another hearing before ALJ Greenberg, which the plaintiff’s mother did not want because she felt he was very abusive towards her son. Thus, by rejecting the voluntary remand, the plaintiff received his SSI benefits much faster than he would have, even if ALJ Greenberg had reversed himself. Furthermore, the plaintiff avoided having to be subjected to ALJ Greenberg’s abusive questioning.

Subpoena Denials

2009-06-16T06:46:00.004-05:00

The law requires that a Social Security Disability claimant be able to cross-examine the author of an adverse report. Since the reports of the doctors who do the consultative examinations (“CE”) for Social Security almost invariably indicate the claimant can work, I always insist that the administrative law judge (“ALJ”) issue a subpoena for the CE doctor.

I have had cases reversed by the Appeals Council and federal courts recently because the ALJ failed to give a valid reason for refusing to issue subpoenas for CEs. When an ALJ denies a subpoena request, I always respond to protect the record for appeal. I did this Friday after ALJ Hazel Strauss refused to issue a subpoena.

The first reason for Strauss’ refusal was that the CE took place eight years ago. However, Strauss would not allow the passage of time to prevent her from giving any weight to the CE report, I stated that her precluding me from cross-examining the CE doctor is a denial of Due Process.

The second reason for Strauss’ refusal was her belief that “it is not likely [the CE doctor] would be able to testify to anything except what the report of the examination states, as consultants do not keep records beyond year of such examinations.” I noted that not only is her speculation as to what the CE doctor might remember irrelevant, but also my cross examination does not need to be limited to examination findings because his examination practices and procedures during the thousands of CEs he performed are proper subjects of cross examination because they could provide probative information.

Third reason for Strauss’ refusal was that CE records are disposed within a year. I replied that such a justification for rejecting a subpoena is absurd because it takes more than a year between the time the CE is performed and the hearing is scheduled. According to Strauss’ logic, no CE doctor would ever be subpoenaed.

The letter to ALJ Strauss provides the Appeals Council with a clear procedural Due Process violation for remanding a potential adverse decision. The subpoena denial is also a failure to develop the record that a U.S. Attorney can accept as an excuse for a voluntary remand.

Courts Rules CIGNA Is Biased

2009-05-30T07:14:00.003-05:00

A Minnesota judge just ruled that CIGNA’s evaluation of a long term disability (“LTD”) claim was “biased.” In McNally v. CIGNA, 2009 WL 1458275 (D. Minn. May 26, 2009), CIGNA terminated the LTD benefits of a claimant with Multiple Sclerosis (“MS”), a progressive neurological disorder. The court found that CIGNA’s handling of the claim was so defective that it could only have resulted from “either bias or incompetence,” and concluded the former was the reason.

The court highlighted that CIGNA improperly relied on the opinion of Dr. John Mendez, its in-house internal/occupational medicine physician, because he “obviously lacks the necessary familiarity or training with the nature of fatigue and multiple sclerosis”. The court ruled that CIGNA “had little reason to disregard the opinions of McNally’s treating neurologist in favor of Mendez’ opinion.”

Besides reliance on the Mendez opinion, the court held that CIGNA’s “bias is apparent from other evidence as well.” However, I want to point out that CIGNA knew its reliance on Mendez was improper because it was chastised for doing the same in Alfano v. CIGNA, 2009 WL 222351 (S.D.N.Y. Jan 30, 2009).

In Alfano, I represented the claimant, who primarily suffered from a back problem. For more information about Alfano see my prior blogs or the decision which is available on my web site. In Alfano, CIGNA also rejected the opinions of the treating specialists in favor of Mendez. Mendez’ entire analysis of Mr. Alfano’s claim, which consisted of hundreds of pages of medical records, was only two sentences.

If your LTD claim has been denied by CIGNA, make sure that you consult with an attorney as soon as possible. Once you have exhausted your appeals with CIGNA it may be too late to allow a court to review additional evidence that reveals CIGNA’s bias.

SSD & Taxes

2009-05-28T08:02:00.002-05:00

After winning benefits, my clients frequently ask me about the tax ramifications of their disability benefits. Since I am not a CPA or tax attorney, I usually tell them that I am not qualified to advise them about tax matters. However, NOSSCR provides some general advice.

Social Security and Income Tax

This page gives general income tax guidance with citations, and should not be used as the basis for tax advice in individual cases. Taxpayers should always seek guidance from competent tax professionals, and should use this page only as an aid to asking the right questions.

Note: Social Security disability benefits and retirement benefits are treated the same for income tax purposes. SSI benefits are not subject to income tax.

Common questions:

How should I handle income taxes on my retroactive lump sum payment of disability benefits?
How much of my ongoing Social Security disability benefit is subject to income tax?
What about my attorney fee for the disability appeal — is it deductible?
I owe most of the Social Security lump sum to a long term disability carrier, so how do I avoid double taxation?

Lowering the tax impact of a lump sum. Congress has provided a special election allowing a client to take advantage of the tax exempt base amount for each of the retroactive years represented in a Social Security lump sum. [I.R. Code §86(e); see I.R.S. Publication 915] In most cases, this special election will be desirable, because it enables the taxpayer to offset the lump sum with a multiple of base amounts, described below. Also, the election removes the need to amend prior tax returns.

SSA-1099. Social Security is required to send each benefit recipient an SSA-1099 by February 1 of the following year, specifying how much of the Social Security benefit received in the lump sum was really a payment for some prior year or years. The 1099 also lists the attorney fee. These SSA-1099 forms are often inaccurate, and the taxpayer must use award notices to double check the 1099.

Income Tax on Social Security Benefits.

The Basic Rule. Up to 50% of Social Security benefits are taxable if total “provisional income” (adjusted gross income, tax-exempt interest and one half of Social Security benefits) exceeds a base amount: $25,000 for single taxpayers and $32,000 for married taxpayers filing jointly. At this level, taxes are payable on the lesser of (1) 50% of Social Security benefits received, or (2) one half of the difference between provisional income and the applicable base amount. Fortunately, this is the end of the income taxation picture for most recipients of disability benefits.

The Second Tier. A second tier of income tax - reaching up to 85% of Social Security benefits received - kicks in (1) for single taxpayers with provisional income over $34,000, (2) for married taxpayers filing jointly with provisional income over $44,000, and (3) for all married taxpayers who file separate returns, but do not live apart.

For these second-tier categories, income taxes are payable on the lesser of (A) 85% of Social Security benefits or (B) the total of (1) 85% of the difference between provisional income and the applicable adjusted base amount ($34,000/$44,000), plus (2) the lesser of (a) half the benefits or (b) $4,500 (for singles / $6,000 (for married couples filing jointly). The adjusted base amount for married persons filing separately but living together is zero; taxes are payable on the lesser of 85% of benefits or 85% of provisional income.

Attorney Fee Deduction. If a taxpayer discovers that some of the Social Security lump sum - when added to regular benefits received in the same year - turns out to be taxable, the attorney fee may be deducted from income, but only to the same extent that Social Security is taxed. For example, if a taxpayer paid tax on 50% of SSA benefits received, the taxpayer may deduct half of the attorney fee paid or incurred during the same year. [IRS Revenue Ruling 87-102] The taxpayer faces the burden of filing an itemized return, of course, and this limited deduction is further subject to the “2% of adjusted gross” ceiling on miscellaneous itemized deductions.

Worker’s Compensation Reduction. Social Security disability may be reduced for worker’s compensation and other public disability benefits. Oddly, the amounts deducted are included as benefits received for purposes of income tax. In effect, state worker’s compensation is rendered taxable in an amount equal to the Social Security reduction, but only to the extent that Social Security is taxable for the year. [I.R. Code §86(d)(3)]

Auxiliary [child or spouse] benefits. Benefits are included in the taxable income of the person who has the legal right to receive them. For example, a child’s benefits are added to the child’s other income (if any) to determine taxability, even though the benefits are paid on the parent’s earnings record. The child receives a separate SSA-1099.

Income Tax Withholding. Voluntary Tax Withholding (VTW) from Social Security benefit income will help some taxpayers avoid quarterly estimated tax payments or an onerous lump sum due by April 15th. To begin or modify a withholding request, submit completed IRS Form W-4V to a local Social Security office. The available withholding rates are 7, 10, 15 or 27 percent. The form is posted on the Social Security web site: www.ssa.gov/taxwithhold.html

LTD reimbursement. What if the taxpayer used all or part of a Social Security back payment to reimburse a long-term disability carrier? Special tax relief is available under §1341 of the Internal Revenue Code, again avoiding the need to amend a prior tax return. See IRS Publication 525. If the repayment to the LTD carrier is under $3,000, the taxpayer gets a deduction on the current year’s tax return. For repayments over $3,000, the taxpayer chooses either the deduction or a tax credit for the excess tax paid in the prior year. A subtle tax issue to watch: LTD reimbursements to the carrier also cause “phantom” taxable income in some cases, due to the separate 1099 forms issued for the year by SSA and by the carrier.

Other Tax Notes.

Deductions for the Self-Employed. Since the self-employed pay all of their Social Security and Medicare taxes, these workers receive a Social Security tax deduction and an income tax deduction at tax time, designed to achieve parity with the employed, who do not pay FICA or income tax on the value of the employer's FICA tax payment. For the Social Security tax deduction, the self-employed deduct 7.65% of net earnings before computing the tax at 15.3%. For the income tax deduction, 50% of the net social security tax liability (after applying the Social Security tax deduction above) is deducted from gross earnings as a business expense.

Tax Liens and Social Security. To collect delinquent taxes, the IRS is authorized by the Taxpayer Relief Act of 1997 to impose an administrative offset against disability or retirement benefits. 26 USC 6334(c). The offset provision applies to delinquent income taxes, corporate withholding and FICA withholding falling within the 10-year look back range of the law.

The collection is 15% per month, with no income exemptions or set asides. There are no collections from children's benefits, from benefits already being reduced to collect a Social Security overpayment, or from SSI benefits.

For concurrent (Social Security and SSI) beneficiaries, 15% of the Social Security benefit will be taken, with no corresponding increase in SSI for the month. Couples jointly liable for a tax debt will lose 30% of their Social Security income during the collection period.

Note that beneficiaries do have the right to appeal the accuracy of the debt, to offer a compromise lump sum, to request repayment at a slower rate, and to seek a hardship exemption. These rights are administered by the IRS, not Social Security. Debt collection activity should stop while the beneficiary seeks this relief.

The elderly and disabled incur income tax liability from a surprising array of sources, including self-employment efforts, the taxable portion of Social Security benefits as detailed above, emergency withdrawals from IRAs, gains from the early and unplanned sale of investments, and damage awards that include lost wages. The vast majority of this population incurred the tax liability unexpectedly, and without adequate resources to cover the debt. These beneficiaries now face the loss of critical Social Security income through a tax lien, and affected individuals should be encouraged to contact the Taxpayer Advocate Service, a remarkably helpful and independent entity within the IRS: 1-877-777-4778 (toll free), or www.irs.gov/advocate.

ALJ Hoppenfeld Must Be Barred From FMS Cases

2009-05-21T09:54:00.001-05:00

I have asked the Regional Chief Administrative Law Judge (RCALJ”) to prohibit ALJ Hoppenfeld from hearing any case where the claimant’s inability to work is due to fibromyalgia (“FMS”). I would encourage others to write the RCALJ too.

At my client’s first hearing, ALJ Hoppenfeld saw no need for a medical expert (“ME”) to testify. The only evidence that arguably contradicted the disability opinions of the claimant’s rheumatologist, pain management specialist, internist, podiatrist and nurse practitioner was the report of Kautilya Puri, a consultative examiner (“CE). Therefore, I requested that CE Puri be subpoenaed for cross-examination, but ALJ Hoppenfeld claimed the subpoena was not issued due to “office error”.

During the hearing I advised ALJ Hoppenfeld that CE Puri was not board certified. When ALJ Hoppenfeld expressed surprise, I offered to submit written confirmation that CE Puri lacked board certification, but ALJ Hoppenfeld said it was not necessary. I advised ALJ Hoppenfeld in writing that the American Board of Medical Specialties (“ABMS”) confirmed that CE Puri is not a board certified internist. In fact, I advised the ALJ the ABMS stated that CE Puri is not board certified in any field of medicine. I wrote ALJ Hoppenfeld that she could confirm CE Puri’s lack of certification for herself by calling the ABMS at (847) 491-9091, or by checking the ABMS website www.abms.org. ALJ Hoppenfeld never took any step to verify CE Puri’s certification status.

During the first hearing, ALJ Hoppenfeld indicated that she was unsure if she could accept the opinions of the treating specialists because she needed to see if medical tests supported them. In Brunson v. Barnhart, 2002 WL 393078 (E.D.N.Y. Mar. 14, 2002) the court explained in detail why ALJ Hoppenfeld is not permitted to reject a treating doctor’s opinion about the disabling effects of FMS for lack of diagnostic testing. Nonetheless, relying on CE Puri’s report, and ignoring Brunson, ALJ Hoppenfeld denied the claimant’s application.

Rather than the typical two year wait, the Appeals Council rejected ALJ Hoppenfeld’s decision in only two months. The Appeals Council suggested a VE at the new hearing, but saw no need for an ME. Nonetheless, ALJ Hoppenfeld insisted that, not one, but two experts testify, a psychiatrist and a neurologist. In Tempesta v. Astrue, 2009 WL 211362 (E.D.N.Y. Jan 28, 2009), the court reversed ALJ Hoppenfeld for refusing to give controlling weight to treating physicians by effectively requiring objective evidence beyond the clinical findings necessary for a diagnosis of FMS under established medical guidelines of the American College of Rheumatology 1990 Classification. Thus, Hoppenfeld knew that rheumatologists, not psychiatrists or neurologists, were the appropriate specialist for evaluating FMS. I wrote ALJ Hoppenfeld that her doing so showed that she intended to disregard the treating physician rule just as she had done in Kearney v. Astrue, 2008 WL 270525 (E.D.N.Y. July 11, 2008), where the court called ALJ Hoppenfeld’s failure to follow the treating physician rule “baffling,” and added that “for reasons defying comprehension, [you] chose to repeat the same error” after he previously remanded the case to her.

Since the only evidence that arguably contradicted the reports of the treating doctors was the CE Puri report, I again asked Hoppenfeld to issue a subpoena so I could cross-examine CE Puri. To avoid another “office error,” I submitted my subpoena request by fax and ERE with confirmations. Yet, once again, Hoppenfeld failed to explain her failure to issue the subpoena.

At last week’s hearing, even though I had made it clear the claimant is not asserting disability due to a mental disorder, ALJ Hoppenfeld repeatedly tried to get the claimant to say that she had a history of abuse or mental disorder, which the claimant refused to do. ALJ Hoppenfeld then had ME Winkler testify, who out of the blue asserted that FMS is really a manifestation of people with a history of mental illness, and then said that the psychiatrist would discuss that further. Incredibly, ALJ Hoppenfeld refused to allow me to cross examine ME Winkler regarding his testimony, and terminated the hearing. In other words, since Hoppenfeld knew that the medical evidence showed the claimant’s FMS was disabling, she tried to argue it was not FMS, but a mental disorder.

Because the Queens ALJs have a history of conveniently losing hearing recording when they don’t like the testimony, I asked the Queens ODAR for a copy of the hearing immediately after it was terminated. I was told a copy would be mailed to me the following day. I called the Queens ODAR 5 days later, but was told I never requested a copy, so I then arranged to pick it up that day. However, later that day, I was told the person who makes the hearing recordings was out. Then the next day I was told that for some inexplicable reason the hearing was not recorded. The hearing tape failure was no accident.

Don’t Believe Everything You Read

2009-05-16T11:21:00.004-05:00

Just because your summary plan description (“SPD”) for your group disability plan says that it is governed by “the Employee Retirement Income Security Act of 1974 (“ERISA”) does not mean that ERISA actually applies. There are well known exceptions to ERISA. For example, many governmental or religious entities are exempt from ERISA’s coverage.

It is extremely important to make sure that the insurance company that is acting as a claims administrator realizes that you know your disability claim will not be governed by ERISA. ERISA provides significant advantages for insurers if they have discretionary, such as no jury trial trials, no punitive damages, and their decisions are overturned only for an abuse of discretion. When insurance companies cannot hide behind ERISA’s unlevel playing field they are much more reluctant to reject a claim.

Last year, after the court ruled that my client’s long term disability (“LTD”) claim was exempt from ERISA under the Church Plan exception, CIGNA demanded that the Court order a mediation to try to settle the case. Today, First Reliance approved an application I filed for a claimant who was a teacher.

The teacher’s SPD for the LTD plan stated that ERISA applied. However, I notified Reliance that the teacher’s school district constituted a political subdivision, and therefore, was exempted from ERISA as a governmental entity. Facing immediate state court litigation with unfettered discovery, and the right to a jury trial, the teacher’s application was immediately approved. I doubt that the application would have been approved as rapidly, if approved at all, had I not made clear why Reliance’s decision was not governed by ERISA.

On The Record Request

2009-05-06T13:41:00.000-05:00

After a Social Security Disability (“SSD”) claim has been denied, but before a hearing takes place, a claimant can ask for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the applicable Social Security rules, regulations and law show that a hearing is not need to approve SSD benefits. Even if the OTR is not approved, it can still benefit the claimant.

I submitted an OTR for a 49 year old former youth coordinator who was hit by a car. Despite serious injuries, and against his doctors’ advice, the claimant returned to work. I requested an OTR for the period of time before the claimant resumed working. While the OTR was rejected, it still yielded benefits.

ALJ Weiselthier was assigned the hearing, and he had arranged for a medical expert to appear. I was summoned to speak with the ALJ before the claimant arrived. I was advised that since the medical expert would confirm the contentions raised in the OTR regarding the claimant’s medical condition the case would be approved. After a short hearing on the record, the claimant’s application was officially granted. I told this to the claimant as I bumped into him entering the hearing office when I was leaving.

Avoiding SSD Remand Hearing

2009-04-25T13:01:00.003-05:00

When the Appeals Council vacates a Social Security claim, the remand order tells the Administrative Law Judge (“ALJ”) what to do, which is almost invariably to reevaluate the evidence and hold a new hearing. I was able to avoid having a 30 year old client attend a second hearing by submitting on-the-record (“OTR”) request that the ALJ granted. The OTR argued that the claimant became disabled before he turned 22, and thus was entitled to disabled child’s benefits.

The Remand Order stated that the ALJ failed to evaluate the testimony of the claimant and his mother adequately. I explained that the claimant and his mother had already testified fully, and there was nothing new to add at a hearing. The ALJ agreed that he simply had to re-evaluate the testimony under the guidelines of the Social Security regulations, case law, and ruling, and that additional testimony was not required.

The Remand Order also stated that the ALJ did not analyze the claimant’s residual functional capacity (“RFC”) properly. In issuing his partially favorable decision after the first hearing, the ALJ determined that the claimant became disabled in 2004, so I maintained that any new medical evidence would be irrelevant. Furthermore, I pointed out that all evidence predating 2004 had already been submitted. The ALJ agreed that he simply had to re-evaluate the claimant’s RFC under the guidelines of the Social Security regulations and rulings.

I had previously secured and submitted a retrospective opinion that the claimant became disabled prior to his 22nd birthday, which was unrebutted. Since there was no evidence that the opinion was based upon any unacceptable clinical diagnostic technique, and there was no overwhelmingly compelling non-medical evidence to the contrary, I argued that there could be no “substantial evidence” to reject the retrospective opinion. The ALJ accepted that argument, and approved the OTR.

NYCERS Disability Retirement

2009-04-08T14:26:00.001-05:00

A former Assistant Resident Buildings Superintendent who worked for the New York City Housing Authority retained me after NYCERS denied his application for disability retirement benefits under Article 15. NYCERS denied the application even though the claimant submitted reports from several treating doctors that stated he was unable to work. I learned today that NYCERS approved the new application that I put together for the claimant. Why did NYCERS effectively reverse its decision?

The prior application had been summarily denied based upon the conclusion of the NYCERS Medical Board, even though the Board’s examination findings were consistent with the findings of the claimant’s treating doctors. The new application demonstrated how the medical findings and conclusions precluded the claimant from performing his specific work duties and demands, which the Medical Board was unable to rebut.

The application showed how the City’s job description would be classified in the Dictionary of Occupational Titles (the “DOT)”, and that according to the DOT, among other things, a Building Superintendent required lifting up to 20 pounds and standing and walking for at least 6 hours during an 8 hour work day. I then obtained functional assessments from the treating doctors that demonstrated the claimant lacked the capacity to perform the duties and physical demands of a Building Superintendent.

The decisions of the Federal Social Security Administration (the “SSA”) and New York State Workers Compensation Board (the “WC”), which approved the claimant’s applications for benefits, while not binding were certainly persuasive. The WC standard for disability is essentially the same as NYCERS, that is, WC required demonstrating the claimant’s inability to work as a building superintendent. To receive benefits from the SSA, the claimant had to show he was not only unable to work as a building superintendent, but also that he could not even perform sedentary work. Since none of the medical evidence submitted to NYCERS revealed any improvement, I argued it would be incongruous for both the SSA and WC to determine that the claimant is unable to work as an assistant building superintendent, especially since NYCERS had even more supportive medical evidence than either of those other two agencies.

Submitting Medical Records

2009-04-04T15:35:00.002-05:00

Timing can be everything. When applying for Social Security Disability (“SSD”) benefits, it can make a critical difference when medical records and reports are submitted. I represent an electrician whose SSD application illustrates this point.

I obtained reports from the electrician’s orthopedist, physical therapist, and neurosurgeon. The orthopedist and physical therapist treated the claimant more frequently than the neurosurgeon. While the reports of the orthopedist and physical therapist were good, the report of the neurosurgeon was great. Since there was no question regarding the diagnosis, only the severity of the claimant’s condition, I only submitted the neurosurgeon’s report.

The claimant never saw a Social Security Administration (“SSA”) doctor, and his other doctors confirmed that they never provided any records to the SSA. The SSD application was approved yesterday in just two months' times based solely on the records and report from the neurosurgeon.

While the reports and records from the orthopedist and physical therapist were good, had they been submitted they would have watered down the strength of the neurosurgeon’s opinion. Therefore, while I have little doubt that the electrician’s application would have eventually been approved, I suspect that it would have been denied initially if all of the medical evidence would have been submitted simultaneously.

CIGNA Ordered To Pay For Its Actions

2009-04-03T10:34:00.007-05:00

I recently blogged about Alfano v. CIGNA, where District Court Judge Gerard Lynch, who President Obama has selected to move up to the Second Circuit, reversed CIGNA’s termination of my client’s long term disability (“LTD”) benefits. The decision required CIGNA to pay $89,837.29 in past due benefits. Today, Judge Lynch ordered CIGNA to pay attorney fees, interest, and costs.

In awarding attorney fees, Judge Lynch said that “there was no sound basis for CIGNA’s termination of [LTD] benefits,” and the award was needed to deter “an incentive for potential defendants to deny even meritorious claims.” Judge Lynch added that the ABC News’ “Good Morning America” News expose, which can be seen on the internet at http://abcnews.go.com/GMA/story?id=5257491&page=1, is a reminder “that abuse exists and needs to be deterred.” Judge Lynch noted that my client showed “a clear entitlement to long-term disability benefits under the Plan,” and that “CIGNA attempted to defend a denial of benefits that, in the end, simply was not justified.” Consequently, Judge Lynch found that I was entitled to charge $450 an hour for my legal services, for a total of $105, 840.00.

Judge Lynch also awarded interest on the $89,837.29 in past due LTD benefits, holding that it was necessary to compensate the claimant adequately. The decision explained that: "as CIGNA had no sound basis for concluding that plaintiff’s condition – which it once recognized as sufficiently disabling to give rise to long-term disability benefits – had improved. CIGNA’s baseless conclusion
that its termination of plaintiff’s benefits was justified permitted it the unfair use of money that should have been paid to plaintiff long ago." Therefore, Judge Lynch ruled that my client was entitled to 9% interest from October 27, 2005 when CIGNA stopped paying LTD benefits through January 30, 2009, when judgment was entered. The interest amounts to $26,749.05.

Finally, Judge Lynch also awarded costs for service and filing fees, travel, postage and copying disbursements, and deposition costs, for a total of $1,576,76.

The good news from the client's perspective is that after I receive the attorney fee award, the claimant will be reimbursed the contingency legal fee.

Oops, CIGNA’s Done It Again

2009-03-27T07:11:00.010-05:00

Yet another court has found that CIGNA’s terminating long term disability (“LTD”) benefits was so patently without merit that interest and attorney’s fees were awarded. CIGNA’s wrongful LTD termination and denials have become so rampant that ABC News’ Good Morning America did an expose on it. http://abcnews.go.com/Video/playerIndex?id=4724275

The facts of Gordon v. Northwest Airlines, Inc. Long-Term Disability Income Plan, which was decided a couple of weeks ago, mirror those of Alfano v. CIGNA Life Ins. Co. of New York, the case that I won a couple of months earlier. Gordon highlighted that this was not the first case where CIGNA mischaracterized medical records and erroneously asserted that a claimant’s doctor supported the claimant’s ability to sedentary work. Gordon is yet another example of CIGNA’s history of biased claims administration that, under the Supreme Court’s Metlife v. Glenn decision, requires ruling in favor of LTD claimants in closer cases.

In both Alfano and Gordon, CIGNA asked the treating doctors to complete a Physical Abilities Assessment (“PAA”), and each doctor concluded the claimant was limited to sitting less than 2.5 hours during an 8 hour day. Gordon declared that CIGNA’s conclusion that the PAA showed Gordon could do sedentary work was “manifestly false” and based “on an obvious misinterpretation,” and “simply mischaracterized” the PAA. Gordon explained that “Common sense dictates that that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary work.”

Similarly, in both Alfano and Gordon, CIGNA terminated LTD benefits based upon transferable skill analysis (“TSA”) that was based on the PAA. Gordon held that “the TSA does not explain how Gordon can do sedentary or light-duty work if he is limited to occasional sitting, standing and walking.”

Gordon ruled the claimant was entitled to interest and attorney fees because CIGNA’s “behavior toward Gordon in this case was not that of a fiduciary acting in his interests and the interests of plan participants. Rather, [CIGNA] acted like a company that first decided to deny Gordon's claim and then went looking for evidence to justify that decision. CIGNA “egregiously mischaracterized the PAA, both internally and to Gordon, to support its conclusion that Gordon could do sedentary work.” Moreover, Gordon found that the CIGNA’s medical review “were so cursory as to amount to mere rubber stamping.” Once again, those are the same allegations that the claimant made in Alfano that the court accepted.

CIGNA was required to pay attorney fees because, “The evidence in the record is overwhelming that Gordon is incapable of earning a living. Rather than view the record through the eyes of a fiduciary, [CIGNA] bent over backwards to find an excuse-any excuse-to deny benefits to Gordon.” Gordon is yet another example that illustrates CIGNA’s practice and pattern of knowingly and wrongfully terminating LTD benefits. The Court awarded attorney's fees because it held that by relying on the PAA and TSA to conclude that Gordon could work, CIGNA “acted not as a fiduciary, but as an adversary.”

Hearing Office Attorneys

2009-03-25T09:55:00.006-05:00

It frequently helps to know the staff attorneys at the Social Security hearing offices. They can provide invaluable assistance regarding both procedural and substantive matters. I had a phone call today that illustrates how staff attorneys can help on both matters.

I called a staff attorney at the Jericho hearing office regarding an administrative remand of a Social Security Disability (“SSD”) case that had been returned to the hearing office. I wanted to learn what documentation existed from the State agency’s apparently second unfavorable decision. The staff attorney did not know, but referred me to a senior staff attorney for additional information. However, before transferring me, the staff attorney wanted to discuss a Supplemental Security Income (“SSI”) case.

Last week, an Administrative Law Judge's assistant called me to discuss avoiding a hearing on the SSI case by agreeing to accept a September 2007 onset date, which was when the claimant started treating with a neurologist. I stated that I had requested an on-the-record (“OTR”) request for a March 2007 onset, which was the onset date provided by the claimant’s pain management doctor. The staff attorney stated that when he reviewed the file, he came up with an April 2007 onset, and that the September 2007 onset came from another staff attorney who conducted a quick review prior to next week’s hearing. After a brief discussion, and review of the relevant report, the staff attorney said that he would approve the OTR, and prepare a fully favorable decision with a March 2007 onset date. Therefore, I was able to avoid next week’s hearing.

As for the SSD case, the senior staff attorney explained that the State agency has a fairly high approval rate for the new administrative remand program, and that my case may have been sent back for a hearing because only a partially favorable decision could have been made. The senior staff attorney said that, for example, a partially favorable decision could only be made if there was a request to reopen another application. It just so happens that the State agency commented that it was unable to locate the claimant’s prior application, which I asked be reopened. Thus, it is likely that the State agency sent the case back for a hearing only because it was unable to evaluate the claimant’s request to reopen his prior application, which would explain why I found no adverse review in the file.

Hearing Notice

2009-03-18T06:17:00.002-05:00

The rules require an Administrative Law Judge ("ALJ") to schedule a hearing on at least 20 days notice to a Social Security Disability ("SSD") claimant. The purpose of the rule is to ensure that the claimant has time to make final preparations for the hearing.

It is extremely difficult to make final preparations in less than 20 days. ALJ's typically take one to two years to schedule a case for a hearing. If the claimant appears for a hearing and the treating doctors' records and reports are more than a couple of months old, then the ALJ complains that the evidence is stale. Therefore, it makes no sense to make final preparations for a hearing until receiving the hearing notice.

I recently received a call from an ALJ's assistant to schedule a hearing in 17 days. I immediately asked the ALJ to issue subpoenas for medical records that the claimant was unable to secure because he lacked the means to pay for them. After I submitted several letters, the subpoenas were issued just a couple of days before the hearing.

The day before the hearing, the ALJ's assistant confirmed that while no records had been obtained in response to the subpoenas, the ALJ intended to proceed with the hearing. I warned that if the ALJ intended to deny the claim, then I would not waive my objection to the short notice because the denial would be based on an incomplete record. The ALJ said the claimant could return for a second hearing, but I advised that my client only left his home once or twice a month because of his disability. The ALJ then said the additional evidence could be sent to the medical expert after the hearing, but I objected since that would deprive me of the right to cross examine the medical expert. The ALJ adjourned the hearing.

Appeals Council Rebukes ALJ Fier

2009-03-12T15:14:00.001-05:00

I took over a Social Security Disability (“SSD”) claim from another attorney when it had to be appealed to federal court. The federal district court judge remanded the case because the Administrative Law Judge (“ALJ”), Seymour Fier, failed to comply with his obligation to weigh the medical evidence properly, which is common practice for him.

At the second hearing, as is his custom, ALJ Fier again ignored the supporting medical evidence. Additionally, ALJ Fier refused to recuse himself even though he was facing bias charges because his mishandling of the claim followed a practice and pattern of disregarding his legal review duties as a means to deny SSD claims. For example, ALJ Fier was required to subpoena the Social Security doctor for my cross examination, but he refused to do so.

The Appeals Council rejected ALJ Fier’s second hearing decision today. The Appeals Council indicated that ALJ Fier’s misconduct, in particular, his failure to explain the basis for failing to recuse himself, warranted assignment to another ALJ.

Unsuccessful Work Attempts

2009-03-09T22:48:00.001-05:00

The Appeals Council remanded another decision of Administrative Law Judge (“ALJ”) Nisenewitz from the Queens Social Security hearing office. Besides the ALJ’s usual refusal to follow the treating physician rule, he also decided to ignore the rules that allow claimants to work in certain situations without forfeiting Social Security Disability (“SSD”) benefits.

An unsuccessful work attempt (“UWA”) occurs when a claimant stops working in less than 6 months because of a medical condition. During that UWA, even though the claimant is working and earning money, the claimant’s SSD benefits remain unaffected. This is a well-known concept, which I pointed out to the ALJ before, during, and after the hearing.

After working for as a dispatcher with the Fire Department for 15 years, the claimant had to stop working July 31, 2004, because of her medical conditions. However, because of her past good work record, she was allowed to return to work with special accommodations after November 6, 2006, in order to avoid losing her home and having to apply for welfare. Even with the accommodations, by April 28, 2007 the claimant was forced to stop working again because her medical condition caused her to make errors that led her supervisor to advise her to resign or face termination. Those facts are the very definition of an UWA, yet the ALJ ignored the facts.

Before making several errors at work, the claimant’s supervisor wrote a letter to the ALJ in support of the claimant’s application for disability benefits. The ALJ kept refusing to admit the evidence because he said it was irrelevant. The purpose of the letter was to show that the claimant could not perform her job in the absence of special accommodations that her supervisor had informally allowed. The claimant testified that she was unable to perform her work as well as she had before her 2004 accident. The supervisor’s letter concluded that, “If not for her excellent prior work performance I would recommend that she be removed from the platform and employment.”

The Appeals Council vacated the ALJ’s decision for failing to apply the treating physician rule. Moreover, the Appeals Council ruled the ALJ failed to determine if the claimant was entitled to an UWA, or at least SSD benefits from July 31, 2004 through November 6, 2006.

Medical Assessments

2009-03-06T06:34:00.000-05:00

I represent a 41 year old bank operations manager whose application for Social Security Disability (“SSD”) benefits was approved today without a hearing even though she had filed another application on her own less than a year earlier that was denied. What changed?

Although it took half a dozen written requests, I finally obtained a copy of the claimant’s prior SSD file. The file failed to contain any records from one of the claimant’s two treating specialists. The file was also missing some key diagnostic tests, even though others from the same source were included. I submitted the missing records. Additionally, I obtained disability assessments from the treating specialists. It is uncertain whether it was the submission of the missing records, the medical source statements, or both that resulted in the application being approved.

Reviewing the claim file and ensuring that the proper medical records and reports get submitted not only increase the chances that an SSD application will be approved, but also increase the chances that it will be approved at an earlier stage of the disability process. The claimant had received a notice indicating that her application was being approved with a belated onset date. Another reason to retain an attorney familiar with the disability process is to ensure that the claimant does not unknowingly waive entitlement to additional SSD benefits once a Notice of Award is received.

Obama Disability Benefit

2009-03-05T19:45:00.001-05:00

The American Recovery and Reinvestment Act (the “ARRA”) has been all over the news since President Obama signed it into law on February 17, 2009. The ARRA has a provision that is of particular import to those people who are currently receiving Social Security Disability (“SSD”) or Supplemental Security Income (“SSI”) benefits. By June 2009, the 60 million SSD and SSI beneficiaries should receive a one-time payment of $250.

Consultative Examinations

2009-03-05T16:24:00.000-05:00

When the Social Security Administration (the “SSA”) tells a claimant to be examined by one of its doctors it is called a consultative examination (“CE”). The Social Security regulations provide very limited circumstances when the SSA can require a claimant to attend a CE. Nonetheless, the SSA directs virtually every claimant to attend a CE.

Anyone familiar with the SSA doctors knows to expect a report indicating that there is little to nothing wrong with the claimant. If a claimant fails to attend a CE, the SSA frequently denies the application on the grounds that the claimant refused to cooperate.

I regularly advise my clients not to attend CEs. I provide a detailed explanation to the SSA citing the legal reasons why a CE would be inappropriate under the circumstances. Additionally, I offer to provide whatever medical information the SSA specifies, and to facilitate a CE with a treating physician. When the SSA refuses to identify any particular medical information, and ignores my offer to arrange a CE with a treating physician, I can show that it was the SSA, not my client, who failed to cooperate.

I represent 45 year old nurse whose Social Security Disability (“SSD”) application was approved today despite two demands that she attend a CE. I strongly doubt that the claimant’s SSD application would have been approved if file contained the typical adverse CE report from an SSA doctor.

Disability & Downsizing

2009-03-05T07:42:00.003-05:00

Just as most larger companies provide health insurance for their employees, they also provide coverage under a group long term disability ("LTD") plan . When a person leaves a company, for example when lay offs occur in our downsizing economy, coverage under the employer's group LTD plan ends.

There is no COBRA equivalent for continuing coverage under an employer's LTD plan. However, most LTD plans provide a participant with the opportunity to convert to coverage under an individual policy upon leaving the company. The ability to obtain a converted policy is frequently easier than applying for an individual policy in the open market.

An individual policy is usually superior to coverage under an employer's LTD plan. Unlike a group LTD plan, an individual policy is not subject to ERISA. ERISA is a federal law that precludes jury trials and imposes other litigation restrictions that make it more difficult for a claimant to obtain LTD benefits. Therefore, unless the prospects for future employment are exceedingly dismal, conversion rights should be exercised upon leaving a company.

SSI Decisions

2009-02-26T12:08:00.001-05:00

A state agency makes the initial decision whether to approve applications for Supplemental Security Income (“SSI”). Unlike a claim for Social Security Disability benefits, an SSI applicant also has to show that he or she lacks financial assets to receive benefits.

A claimant came to me after her SSI application was denied. I immediately appealed and submitted additional medical evidence. Sometimes the state agency reviews its initial decisions on its own as part of a quality review process. When inquiring why I had not received a copy of the file exhibits, and why the case had not been transferred to the hearing office, I learned that the state agency was re-evaluating the application in light of the additional medical evidence that I had submitted.

Based upon the additional review performed by the state agency, the Social Security Administration (the “SSA”) issued a Notice of Decision (the “Notice”). The Notice said that the claimant met the medical requirements for disability benefits, but that a decision regarding the nonmedical requirements was pending. I regularly get calls from clients who are concerned or unclear about what these Notices mean.

The Notice states that the SSA has concluded that the medical evidence supports the claimant’s allegations that he or she is disabled. However, before benefits can be approved, an SSI applicant also has to show that he or she lacks financial assets, and that is what the Notice refers to as the nonmedical requirements.

Vocational Experts

2009-02-25T15:41:00.001-05:00

There are two types of experts who may appear at Social Security Disability hearings; a medical expert and/or a vocational expert (“VE”). The typical role for a VE is answering whether a claimant can do work other than his or his past work.

Claimants have the right to ask the VE questions. My cross examinations have lasted over an hour, and cover countless topics, much of which relates to the VE’s background and methodology as opposed to the particulars of the claimant’s case. In essence, I treat the cross examination of the VE as if it were a federal court deposition. At a minimum however, the VE needs to be queried regarding the treating doctors’ functional evaluations.

I represent a 48 year old who had to stop working and close his real estate agency because of his rheumatoid arthritis. The VE identified possible occupations the claimant could do based upon hypothetical questions posed by the administrative law judge (“ALJ”). On cross examination, I asked the VE if the claimant could perform those occupations given the various limitations assessed by the claimant’s treating doctors. The VE responded that if the treating doctors’ assessments were accepted, then the claimant could not do any type of work.

The above cross examination essentially eliminates the VE’s opinion, and makes the fate of the case ride on the ALJ’s accepting or rejecting the treating doctors’ opinions. Because the regulations favor treating doctors’ opinions, a denial by the ALJ becomes difficult to sustain ultimately. Perhaps cognizant of that point the ALJ approved the claimant’s application for disability benefits.

Responsive Doctors

2009-02-24T08:41:00.002-05:00

Simply having doctors that agree that you are unable to work is not enough to succeed in obtaining disability benefits. While on vacation, I was introduced to a woman whose disability claim was denied, even though her doctor agreed that she could no longer continue working. However, her doctor did not want to prepare any reports to support her claim.

Many potential clients have asked me what to do when their doctors will not support their claim. I suggest that the patients tell their doctors two things. First, that most long term disability (“LTD”) or Social Security Disability (“SSD”) claims are not like personal injury claims in that treating doctors are rarely required to testify. Second, that as patients they recognize that medical reports take time to complete, and that their doctors will be paid for their time.

For whatever reason, many doctors cannot be persuaded to complete reports in connection with a disability claim. In those cases, I advise the claimant to seek a new doctor. If a doctor agrees that working aggravates a patient’s condition, then the doctor should be willing to do the paper work to help the patient get the disability benefits that would enable him or her to stop working.