Charcot-Marie-Tooth (“CMT”) is an inherited neurological disorder that affects an estimated 2.6 million people. CMT patients gradually lose normal use of their upper and lower extremities as peripheral nerves degenerate and the muscles become weakened because of the loss of stimulation by the affected nerves.
Late September, I filed an application for Social Security Disability (“SSD”) benefits for a 57 year old car salesman with CMT. Three months later, Social Security told my client that he had to see their unnamed doctor, with an undisclosed specialty, for a consultative examination (“CE”) regarding his “bone condition.” Social Security warned that failing to attend the CE could hurt his chances of securing SSD benefits.
My client followed my advice not to attend the CE because CMT was not a bone condition, and because I had already provided detailed medical reports from the claimant’s treating doctors. Four days ago, I received a letter from Social Security stating that they no longer wanted my client to attend the CE. Today, less than four months after filing the SSD application, I received a notice of award approving benefits.
Social Security automatically tells disability claimants that they must attend CEs. However, the Social Security rules and regulations significantly limit the circumstances where a CE is appropriate. A disability claimant should not submit to a CE before carefully determining whether the circumstances warrant it.
Friday, January 15, 2010
Tuesday, January 12, 2010
Depression and Anxiety
The Social Security Administration (the “SSA”) typically requires objective evidence before approving a claim for Social Security Disability (“SSD”) benefits. The SSA also usually requires a hearing to assess a claimant’s credibility when evaluating that person’s subjective complaints. Therefore, is it possible for a claimant with depression or anxiety to obtain SSD benefits without a hearing since those conditions are based on subjective symptoms? The answer is yes of course; otherwise, I would not be writing this blog entry.
The strongest type of evidence that an SSD claimant can submit for any type of medical condition is evidence showing the medical condition meets a “listing.” If a claimant meets a listing, then he or she is presumed to be disabled. Like many other medical conditions, there are listings for depression and anxiety.
I represent a woman who had to stop working as a teacher and selling real estate because of her depression and anxiety. I succeeded in securing her SSD benefits without a hearing by submitting evidence that she met the SSA listings for both depression and anxiety. That evidence took two different forms. First, I obtained functional assessments from the treating doctors that matched the criteria of the listings. Second, perhaps just as importantly, I had each doctor explain in a brief narrative report why the claimant met the listings. That way, there is a medical opinion that the claimant met the listings, as opposed to my simply making a legal argument.
The strongest type of evidence that an SSD claimant can submit for any type of medical condition is evidence showing the medical condition meets a “listing.” If a claimant meets a listing, then he or she is presumed to be disabled. Like many other medical conditions, there are listings for depression and anxiety.
I represent a woman who had to stop working as a teacher and selling real estate because of her depression and anxiety. I succeeded in securing her SSD benefits without a hearing by submitting evidence that she met the SSA listings for both depression and anxiety. That evidence took two different forms. First, I obtained functional assessments from the treating doctors that matched the criteria of the listings. Second, perhaps just as importantly, I had each doctor explain in a brief narrative report why the claimant met the listings. That way, there is a medical opinion that the claimant met the listings, as opposed to my simply making a legal argument.
Tuesday, January 5, 2010
RSD/CRPS
Reflex Sympathetic Dystrophy (“RSD”), also known as Complex Regional Pain Syndrome (CRPS), is a chronic neurological syndrome that is characterized by severe burning pain, pathological changes in bone and skin, excessive sweating, tissue swelling, and extreme sensitivity to touch. Symptoms from RSD/CRPS can be severe enough to prevent a person from working.
I represent a 34 year bakery wrapper whose wrist injuries resulted in RSD/CRPS that causes pain, sweating, chills, numbness, and hypersensitivity. She retained me after her Social Security Disability (“SSD”) application was denied. Because of her age, and because RSD/CRPS is not a “listed” impairment, the claimant had to prove that she was unable to perform sedentary work to establish her entitlement to SSD benefits.
An anesthesiologist who was providing the claimant’s pain management wrote a brief note in October 2007 stating that the claimant was unable to work. Subsequent treatment records stated that the claimant’s condition was getting worse. The Social Security Administration (the “SSA”) requires a specific functional capacity assessment from a medical doctor before approving an application for SSD benefits; however, the anesthesiologist did not want to do so. Therefore, I obtained a functional assessment from the claimant’s physical therapist, which consistent with the opinion of the anesthesiologist, provided a functional capacity assessment that precluded sedentary work.
Ordinarily, the SSA will give little weight to an opinion from a physical therapist regarding a claimant’s functional abilities. However, there is a Social Security Ruling covering RSD/CRPS cases that says an opinion from a treating source who is not a medical doctor is often critical in deciding the claimant’s ability to work. Based on the anesthesiologist’s diagnosis of RSD/CRPS, and the physical therapist’s opinion about the claimant’s functional abilities, the claimant’s application was approved on the record without a hearing.
When applying for SSD benefits based on RSD/CRPS make sure that your attorney is aware of the special rules that apply. There are also special rules for many other medical conditions.
I represent a 34 year bakery wrapper whose wrist injuries resulted in RSD/CRPS that causes pain, sweating, chills, numbness, and hypersensitivity. She retained me after her Social Security Disability (“SSD”) application was denied. Because of her age, and because RSD/CRPS is not a “listed” impairment, the claimant had to prove that she was unable to perform sedentary work to establish her entitlement to SSD benefits.
An anesthesiologist who was providing the claimant’s pain management wrote a brief note in October 2007 stating that the claimant was unable to work. Subsequent treatment records stated that the claimant’s condition was getting worse. The Social Security Administration (the “SSA”) requires a specific functional capacity assessment from a medical doctor before approving an application for SSD benefits; however, the anesthesiologist did not want to do so. Therefore, I obtained a functional assessment from the claimant’s physical therapist, which consistent with the opinion of the anesthesiologist, provided a functional capacity assessment that precluded sedentary work.
Ordinarily, the SSA will give little weight to an opinion from a physical therapist regarding a claimant’s functional abilities. However, there is a Social Security Ruling covering RSD/CRPS cases that says an opinion from a treating source who is not a medical doctor is often critical in deciding the claimant’s ability to work. Based on the anesthesiologist’s diagnosis of RSD/CRPS, and the physical therapist’s opinion about the claimant’s functional abilities, the claimant’s application was approved on the record without a hearing.
When applying for SSD benefits based on RSD/CRPS make sure that your attorney is aware of the special rules that apply. There are also special rules for many other medical conditions.
Monday, December 21, 2009
Getting SSD Even If You Can Work
Receiving Social Security Disability (“SSD”) benefits is dependent upon the interaction between medical and vocational evidence. There are circumstances where a person can receive SSD benefits even if physically able to work, because of adverse vocational factors.
I represent a 57 year old who immigrated here from Haiti after graduating high school, and spent his last 26 years working for New York City as an automobile mechanic. The claimant was treated by an orthopedic surgeon for knee, bilateral shoulder and lumbar back injuries. The doctor said that the claimant could do some sedentary work, but his findings and conclusions showed the Plaintiff lacked the ability to perform a full range of sedentary work. Nonetheless, I was able to get the claimant’s application approved without a hearing based on the vocational evidence.
If the relevant past work of a person over the age of 55 was not sedentary, and there are no skills that are transferable to sedentary work, then that person is entitled to SSD benefits even if physically capable of sedentary work. I provided the hearing office with case law holding that there are no transferable skills for an automobile mechanic, which is medium to heavy work. Therefore, even if the medical evidence were interpreted as showing the claimant had a sedentary work ability, I had demonstrated that the claimant would still be entitled to SSD benefits. An attorney advisor agreed, and issued a fully favorable decision approving the claimant’s application without having to wait for a hearing.
I represent a 57 year old who immigrated here from Haiti after graduating high school, and spent his last 26 years working for New York City as an automobile mechanic. The claimant was treated by an orthopedic surgeon for knee, bilateral shoulder and lumbar back injuries. The doctor said that the claimant could do some sedentary work, but his findings and conclusions showed the Plaintiff lacked the ability to perform a full range of sedentary work. Nonetheless, I was able to get the claimant’s application approved without a hearing based on the vocational evidence.
If the relevant past work of a person over the age of 55 was not sedentary, and there are no skills that are transferable to sedentary work, then that person is entitled to SSD benefits even if physically capable of sedentary work. I provided the hearing office with case law holding that there are no transferable skills for an automobile mechanic, which is medium to heavy work. Therefore, even if the medical evidence were interpreted as showing the claimant had a sedentary work ability, I had demonstrated that the claimant would still be entitled to SSD benefits. An attorney advisor agreed, and issued a fully favorable decision approving the claimant’s application without having to wait for a hearing.
Friday, December 11, 2009
Settling With CIGNA
Like many insurance companies, CIGNA’s initial decisions to terminate long term disability (“LTD”) benefits can be quite indefensible. Unfortunately, most people are unable to persuade CIGNA to reverse an adverse decision, and need an attorney’s assistance.
I was retained by a former paramedic officer from Arizona to represent him in connection with his LTD claim with CIGNA. After discussing the claim with the representative who terminated the LTD benefits, I was advised that CIGNA would not reverse its decision. Therefore, my client asked me to file a lawsuit against CIGNA.
The medical and vocational evidence weighed heavily in favor of finding that the claimant remained disabled under CIGNA’s policy, and I drafted a 33 page Complaint. However, before filing the action, I provided a copy of the Complaint to a senior level CIGNA representative to review. While initially believing that CIGNA’s decision appeared appropriate, after discussing the Complaint with me and considering the Complaint in full detail, the senior representative decided to reverse CIGNA’s decision to terminate benefits.
If I had litigated the case, as requested by the claimant, I am confident that the court would have reversed CIGNA’s decision, which could have resulted in a substantial amount of additional attorney fees. However, by persuading the claimant to consider allowing CIGNA to review the Complaint before actually filing suit it resulted in his LTD benefits being restored more quickly.
It obviously makes sense to retain an attorney experienced in disability litigation when seeking LTD benefits. Familiarity with the minutia of the legal issues relating to claims involving LTD benefits enabled me to persuade CIGNA to reverse its decision without having to litigate, which enabled the claimant to receive his benefits much sooner than he expected.
I was retained by a former paramedic officer from Arizona to represent him in connection with his LTD claim with CIGNA. After discussing the claim with the representative who terminated the LTD benefits, I was advised that CIGNA would not reverse its decision. Therefore, my client asked me to file a lawsuit against CIGNA.
The medical and vocational evidence weighed heavily in favor of finding that the claimant remained disabled under CIGNA’s policy, and I drafted a 33 page Complaint. However, before filing the action, I provided a copy of the Complaint to a senior level CIGNA representative to review. While initially believing that CIGNA’s decision appeared appropriate, after discussing the Complaint with me and considering the Complaint in full detail, the senior representative decided to reverse CIGNA’s decision to terminate benefits.
If I had litigated the case, as requested by the claimant, I am confident that the court would have reversed CIGNA’s decision, which could have resulted in a substantial amount of additional attorney fees. However, by persuading the claimant to consider allowing CIGNA to review the Complaint before actually filing suit it resulted in his LTD benefits being restored more quickly.
It obviously makes sense to retain an attorney experienced in disability litigation when seeking LTD benefits. Familiarity with the minutia of the legal issues relating to claims involving LTD benefits enabled me to persuade CIGNA to reverse its decision without having to litigate, which enabled the claimant to receive his benefits much sooner than he expected.
Health Insurance For Children
For many disabled parents, the loss of working income makes it difficulty to afford health insurance for children. After a year long court battle to recover child’s benefits in connection with a Social Security Disability case, I received a Notice of Award for child’s benefits that included a note about insurance for children through the Children’s Health Insurance Program (“CHIP”).
Each State’s CHIP provides health insurance to uninsured, low-income children 18 years of age or younger, including those who are homeless. You can call 1-877-KIDS-NOW (1-877-543-7669) to find out how to apply, or go to http://cms.hhs.gov/schip for more information.
Each State’s CHIP provides health insurance to uninsured, low-income children 18 years of age or younger, including those who are homeless. You can call 1-877-KIDS-NOW (1-877-543-7669) to find out how to apply, or go to http://cms.hhs.gov/schip for more information.
Wednesday, December 9, 2009
Avoiding An Improper Consultative Exam
In the vast majority of cases, the Social Security Administration (“SSA”) insists that disability claimants attend a consultative examination (“CE”), which is performed by a doctor selected by the SSA. However, the SSA rules and regulations require that the claimant’s treating doctor perform a CE subject to a few exceptions. The exception that the SSA usually relies upon as grounds for a CE is that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies. Before the SSA or an Administrative Law Judge (“ALJ”) can ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, the ALJ must first recontact the treating doctor to explain the perceived conflict, gap or inconsistency.
I represent a former police officer whose arthritis specialist and orthopedist provided reports describing why their patient’s condition prevented him from working in any capacity. ALJ Weiss insisted that the officer attend a CE by an “independent” orthopedist because of alleged conflicts and inconsistencies in the medical reports, but I insisted that the ALJ first recontact the treating doctors in accordance with the regulations. ALJ Weiss then denied the officer’s application on the grounds that the officer lacked good cause for refusing to attend the CE.
After filing a complaint in federal court, the SSA admitted that the officer had good cause for refusing to attend the “independent” CE, and that it was improper to penalize the officer for refusing to attend it. The SSA asked the officer to remand the case, and would require the ALJ to recontact the treating doctors to clarify or provide additional information to resolve the perceived conflicts and inconsistencies in their reports. The SSA also agreed that the Appeals Council remand order will direct the ALJ to issue a decision on the merits of the case even if the officer refuses to attend an independent CE without good cause.
The SSA’s remand offer confirms that a treating source is the preferred source for performing a CE. The SSA’s remand offer also confirms that it cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. Finally, the SSA’s remand offer shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the SSA’s rules and regulations.
I represent a former police officer whose arthritis specialist and orthopedist provided reports describing why their patient’s condition prevented him from working in any capacity. ALJ Weiss insisted that the officer attend a CE by an “independent” orthopedist because of alleged conflicts and inconsistencies in the medical reports, but I insisted that the ALJ first recontact the treating doctors in accordance with the regulations. ALJ Weiss then denied the officer’s application on the grounds that the officer lacked good cause for refusing to attend the CE.
After filing a complaint in federal court, the SSA admitted that the officer had good cause for refusing to attend the “independent” CE, and that it was improper to penalize the officer for refusing to attend it. The SSA asked the officer to remand the case, and would require the ALJ to recontact the treating doctors to clarify or provide additional information to resolve the perceived conflicts and inconsistencies in their reports. The SSA also agreed that the Appeals Council remand order will direct the ALJ to issue a decision on the merits of the case even if the officer refuses to attend an independent CE without good cause.
The SSA’s remand offer confirms that a treating source is the preferred source for performing a CE. The SSA’s remand offer also confirms that it cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. Finally, the SSA’s remand offer shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the SSA’s rules and regulations.
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