Avoid Early Retirement

Social Security Disability (“SSD”) benefits are available up to your full retirement age. When I submit an SSD application for a claimant who is over 62 years or old enough for early retirement, the Social Security Administration (the “SSA”) frequently suggests that I withdraw the SSD application and file an application for retirement benefits instead. The SSA reasons that it can take months, if not years, to get SSD benefits, while retirement benefits take relatively no time at all to receive after filing for them. I advise against withdrawing the SSD application.

I filed an SSD application for a 62 year old client last November. The SSA repeatedly argued that withdrawing the SSD application would be to my client’s benefit because he would not have to wait a long time to receive early retirement benefits. Despite rejecting the SSA’s advice, it sent a letter last March “confirming” the withdrawal of the client’s disability application, which I immediately disavowed in writing.

It took longer than usual to get the SSD application approved, eight and a half months, which may be related to the claimant’s refusal to withdraw it in favor of filing a retirement benefits application. Despite the delay, the client will ultimately be in a stronger financial position for refusing to withdraw his SSD application. SSD benefits can continue until the individual reaches full retirement age. By avoiding early retirement, the client’s eventual monthly retirement benefit will be larger.

LTD & SSD

Just because you qualify for long term disability (“LTD”) benefits does not mean that you qualify for Social Security Disability (“SSD”) benefits, and vice versa. I have a 40 year old client from Wisconsin who was denied SSD benefits even though he had been receiving LTD benefits for years.

After reviewing the client’s LTD and SSD files I learned that the client was relying primarily on medical evidence from his chiropractor. The medical evidence previously submitted revealed that a cervical disc was deforming the claimant’s spinal cord. The claimant also submitted an attending physician statement from his chiropractor, which concluded the claimant was permanently disabled and had a less than sedentary residual functional capacity (“RFC”). While the contractual language of the LTD plan did not distinguish between a chiropractor and a physician, the Social Security Administration (the “SSA”) regulations do.

On appeal, I obtained two things from the claimant’s neurologist. First, an opinion that the claimant met a “listed impairment” of the spine. Second, an RFC assessment concluding that the claimant could not do sedentary work. Additionally, I obtained an RFC assessment from the claimant’s family doctor that also concluded the claimant lacked a sedentary RFC. I submitted the evidence in connection with a request for a fully favorable decision on the record (“OTR”).

Based on the new medical evidence the claimant’s OTR was granted. Therefore, not only was the claimant’s application approved, but he did not have to appear for a hearing, which probably would not have been scheduled for another year or two.

Getting Benefits Faster

It is true that in order to obtain Social Security Disability (“SSD”) benefits you only need one treating physician to support your application. However, with only one supporting medical source it may take you several levels of appeals, possibly including having to go to federal court, to secure SSD benefits.

One of my client’s with neck, back and shoulder impairments had his application approved in only four months. The claimant is being treated by a neurologist, which is an appropriate specialist for his impairments. However, if I had only submitted medical evidence from the neurologist, it is unlikely that the application would have been approved so quickly.

I obtained medical reports from the claimant’s family doctor and chiropractor. Although not a specialist, because of the family doctor's long term treatment of the claimant’s overall health, he was familiar with the claimant's medical status, which rendered that doctor's functionality assessment significant. And while the chiropractor is not a medical doctor, the frequency of his treatment rendered his opinion regarding the severity of the claimant’s condition important. Additionally, I referred the claimant to a rheumatologist and a physiatrist, whose opinions corroborated those of the other treating medical sources.

Thus, instead of presenting one medical opinion to support the claimant’s application, I submitted five. Since most estimates are that it typically takes a year or two to secure SSD benefits, the additional medical support obviously was instrumental in securing the rapid approval.

Medical Records & Reports

Disability claimants frequently express shock and befuddlement that their applications for benefits were denied despite the fact that they submitted records from their doctors who all support the claimant’s inability to work. Many of these claimants’ incomprehension results from their not being aware of the difference between treatment records and medical reports.

A common rationale given for denying a claim is that while it is not disputed that the claimant has the alleged medical condition, the medical evidence fails to show that the condition is serious to prevent the individual from working. The treatment records typically provide a diagnosis identifying the medical condition, and treatment for the condition. Diagnostic tests can corroborate the clinical findings that led to the diagnosis. However, records and tests usually do not address the extent to which the medical condition affects the patient’s ability to function or work because that is not the doctor’s focus.

Yesterday, I received an approval on an LTD claim illustrating the difference between medical records and reports. The claimant had submitted records and confirming tests from five different medical specialists, each of whom supported the claimant’s application for disability benefits, yet the application was denied on the grounds that there was no evidence that the claimant’s back condition was severe enough to prevent him from working. On appeal, without securing any additional treatment records or tests, I obtained reports assessing the claimant’s functional capacity from each of the specialists. The claim was approved after the reports were submitted.

When seeking disability benefits, it is imperative to submit reports addressing functionality. It is the functionality opinions, backed up by the treatment and test records, that reveal the severity of a medical condition.

Discovery in LTD Cases

When a group long term disability (“LTD”) claim is litigated, insurance companies argue that no discovery should be allowed because the court’s decision has to be based on the administrative record, that is, the claim file, that the insurer used. The insurance companies oppose discovery because they know it will reveal evidence that they improperly decided to deny or terminate a claim.

Last week, I received a decision that rejected the insurance company’s argument that no discovery should be allowed in an LTD case, even though the magistrate judge who issued the decision had previously ruled against discovery in a similar situation. The court ruled that while no evidence had been presented to admit additional evidence outside of the administrative record, the claimant was entitled to determine who the decision makers were, why certain pieces of evidence were deemed more credible than others, and whether the administrative record was complete.

Obtaining the type of discovery approved by the court is critical for two reasons. First, the discovery helps show why the insurer’s decision was unreasonable. Second, because of what discovery is likely to reveal, it frequently pressures the insurer into settling the litigation.

Constant Vigilance

It typically takes about six months to get a decision from the Social Security Administration (the “SSA”) when filing an application for disability benefits. If a decision has not been received by that time, it frequently means that something has gone wrong.

Regardless of whether I submit records by certified mail, fax with confirmed receipt, by hand with time stamped copy, and even when submitted electronically using the SSA’s secured website with confirmation receipt, the SSA loses submissions. When the SSA loses evidence, it tends simply to sit on the claim.

I received a fully favorable decision today on an application that should have been decided several months earlier, but was delayed because the SSA lost evidence and sat on the application. The claim had very strong medical and vocational support. When there was no decision on the initial application after six months, I sent letters and made phone calls to learn why the claim had not been approved. About three months later, I finally received a letter from the SSA claiming that it had no record of my client’s application, so I would have to file a new application all over again.

I advised the local SSA representative that I would not begin the application all over again. I added that the fact that he had sent me a notice of disapproved claim shows that he had the file at some point, and that because he had received the certified mail request for a hearing he was required to transfer the file to the hearing office.

When two weeks went by and the file was not transferred, I notified the SSA representative that I intended to hold him personally responsible, and would commence a Congressional inquiry into his losing the application and directing that a new application be filed. I warned that if he failed to drop his demand for a new application and failed to transfer the claim for a hearing immediately, I would have the claimant’s Congressman contact the representative’s District Manager to explain how he denied the claim, but now claimed that he never had it. The file was transferred within a few days.

Once the file was transferred, I filed a request for a fully favorable decision on the record, which was granted. The claimant did not have to attend a hearing, which meant he avoided the two year delay in obtaining benefits. However, because of the local office’s actions, the claimant’s benefits were delayed several months.

Judges Are Fallible

I received a partially favorable decision from a Social Security Administrative Law Judge (the “ALJ”) today, which provided the claimant with 80% of the benefits sought. When the client called to pick up the file, I asked why. The answer, “Because the Judge said I wasn’t entitled to anything more.” The claimant was also concerned about the decision being reversed if appealed.

I explained that there were four different grounds for reversing the ALJ’s decision. The ALJ failed to follow the rules for: (1) assessing testimony, (2) determining if the claimant was presumptively disabled under a “listed” impairment, (3) evaluating medical evidence under the “treating physician rule,” and (4) using a medical expert to determine the disability onset date. I explained that additional benefits were dependent on just one of those grounds being accepted. After the claimant understood why the ALJ’s decision was faulty, and that ALJ decisions are rejected on appeal a substantial percentage of the time, the claimant decided to appeal the decision.

A claimant should insist on a detailed explanation if their hearing decision is not fully favorable. If the attorney does not think there are grounds for an appeal, get a second opinion.