Multiple Sclerosis

According to the National Multiple Sclerosis ("MS") Society, MS is a chronic, often disabling disease that attacks the brain, spinal cord, and optic nerves. Disabling symptoms include overwhelming fatigue, numbness, and poor coordination. Since MS attacks the central nervous system, it is typically treated by a neurologist. Therefore, when applying for disability benefits, objective, clinical, and functional evidence should be sought from the treating neurologist.

I represent a 45 year old former computer consultant whose disability application was approved less than two months after I was retained. I secured a report from the treating neurologist, who specializes in MS, that summarized his clinical and functional findings. I also obtained a copy of the claimant’s brain MRI, which revealed moderate cerebral atrophy.

The decision approving disability benefits gave greater weight to the findings and opinions of the neurologist than the other doctors, not only because he was a neurologist, but also because of his long standing treating relationship.

Disabling AION

According to www.lowvision.org, Anterior Ischemic Optic Neuropathy (“AION”):

is a potentially visually devastating disease that occurs in the middle aged and the elderly. This condition is often referred to as a stroke of the optic nerve, and it usually begins suddenly with little warning in one eye, but frequently progresses to the other eye over time. Vision loss often includes both the loss of visual field and visual acuity which can vary from being nearly normal to severely impaired. The unexpected sudden visual acuity and visual field loss makes AION a particularly overwhelming disease for many patients.

When it comes to visual impairments, the State agency and Social Security Administrative Law Judges tend to focus solely on visual acuity. I suspect that tendency is because acuity is simpler to understand than other visual impairments, and that is especially true when considering the impairment listings for visual problems. Social Security is continually making the listings more complicated; probably to make it more difficult for claimants to meet.

I was retained by a 60 year old apartment manager with AION after his Social Security Disability application was denied. While the medical records showed that his visual acuity did not meet the listings, they did show that his visual fields did. I had the claimant’s eye doctor explain in simple steps why the claimant’s central and peripheral vision met both listings relating to visual fields. I submitted an on-the-record request based on the eye doctor’s explanation, which was approved today.

Proof of Birth for SSD

I represent a former truck driver whose application for Social Security Disability (“SSD”) benefits was approved today less than 2.5 months after I filed it. The approval could have come a week sooner if I had mailed the claimant’s birth certificate in with the application, but I advised against it.

It is almost routine for Social Security offices to lose or misplace documents. There have been cases where I have needed to submit the same documents numerous times electronically, by mail, and fax.

My client was born in Guatemala. Because Social Security frequently loses records, I advise my clients against submitting original birth records by mail, especially when the records are from other countries and replacing them would be difficult. Instead, once the SSD application is processed, I direct my clients to provide the birth certificate or other record to the local office for copying while the claimant waits for its immediate return.

Any delay associated with personally presenting original records should outweigh the risk of potentially having to replace them if they get lost.

Social Security Listings

Social Security’s Listing of Impairments describes medical conditions that are considered severe enough to prevent a person from doing any gainful activity.  Most of the listed impairments are permanent or expected to result in death.  If you show that you have an impairment that meets the criteria of a listing, then it is unnecessary to show that you cannot do your past or any other work.

I represent a 54 year old carpenter whose application for Social Security Disability benefits was approved today after the Administrative Law Judge (“ALJ”) agreed that the claimant’s knee impairments satisfied the criteria of two different listings.  One listing concerned a major dysfunction of a joint, and the other concerned reconstructive surgery of a major weight bearing joint.

In addition to providing surgical reports, treatment records, and functional assessment, I also provided the ALJ with an opinion from the claimant’s knee specialist that explicitly stated the listing criteria were met.  Although I could have shown how the records satisfy the criteria, experience has shown that having a medical opinion that the criteria is met is better than making a legal argument that the criteria are met.

Because the ALJ found the claimant met a listing, it was unnecessary to consider the claimant’s functional capacity, transferability of acquired skills and other issues that could require experts, and made it more difficult to establish disability.  Whenever it appears that a listing may be satisfied, medical opinion explicitly asserting the listing is met should be presented, rather than legally arguing the issue.

Corroboration is not Superfluous

Getting more than one doctor to provide reports that explain why a disability claimant cannot work is not gratuitous.  Certainly, the confirming opinion is not redundant if the doctors practice different specialties.  Having multiple supporting opinions should be considered a necessity when seeking disability benefits since individual opinions are usually analyzed to see if they are consistent with the record as a whole.

I represent a 41 year old laborer seeking Social Security Disability benefits.  In order to succeed, he needed to demonstrate that he was unable to do sedentary work on a sustained basis.  The claimant’s orthopedist concluded the claimant was temporarily disabled, and then referred the claimant to a knee specialist when a knee replacement was needed.  According to the claimant’s orthopedic knee specialist, the claimant lacked a sedentary work capacity because of his knee problems.  That opinion then was corroborated by the claimant’s physiatrist.  

The Administrative Law Judge (the “ALJ”) gave more weight to the treating doctors’ opinions than the State agency opinions because the former were “more consistent with the record as a whole.”  Had there only been one supporting opinion, then the ALJ could have denied the claim on the grounds that the State agency medical opinions were more consistent. 

Fast SSD Approvals

If you spend a few minutes on the internet researching the Social Security Disability (“SSD”) application procedures, then you will find countless websites that describe the process as one that is frequently protracted, frustrating, and results in a denial the majority of the time.  A denial rate of 60% to 70% is usually cited.  However, that means that 30% to 40% of the time, the application process is more tolerable.

I had two more SSD claims approved today by the State agency.  The obvious upside to the claimant includes improved cash flow and financial stability, reduced attorney fees, and faster peace of mind.  Getting approved by the State agency is not random luck; the better the application is supported by medical and vocational evidence, the better the chances of getting approved.

In each case I provided treatment records, functional assessments, and diagnostic testing.  I also included workers compensation medical reports in one case.  Notably, in each case, I also persuaded the State agency that consultative examinations by Industrial Medicine Associates were not needed.  Applying for SSD benefits can be an exasperating process, but by properly presenting the evidence you can increase the chances of being part of the 30% to 40% who have a better experience.

CIGNA CONTINUES ILLEGAL CONDUCT

Four years have passed since ABC News first exposed CIGNA’s practice of illegally denying and terminating long term disability (“LTD”) claims on Good Morning America.  Nonetheless, rather than acting as a fiduciary in the interests of LTD plan claimants, CIGNA continues to act like a company that decides to terminate benefits, and then tries to create evidence to justify terminating benefits. 
 
I just filed two more actions against CIGNA for terminating LTD claims even though: (a) there had been no change, let alone improvement, in the claimants’ conditions; (b) the treating doctors still concluded the claimants could not resume working; and (c) CIGNA rejected the Social Security Administration (“SSA”) decisions that held the claimants were disabled, yet accepted the SSA decisions to offset the claimants’ LTD benefits.  The facts of my case also follow the fact pattern of Croll v. Connecticut General Life Insurance (CIGNA), 2012 WL 1439172 (D.Colo. April 26, 2012), which was decided four days ago.

In Croll, CIGNA terminated the claimant’s LTD benefits after many years based upon surveillance and an IME.  The court reversed CIGNA’s decision, and ordered CIGNA to pay the LTD benefits and attorney fees to the claimant.  The court ruled that there was no evidence in the record suggesting that the claimant’s condition had improved since CIGNA determined that she was disabled; noted that the treating physicians have continued to express their opinions that the claimant is incapable of performing any work because of her disability; and highlighted that the SSA concluded the claimant was disabled.  On the other hand, the court said that surveillance showing the claimant shopping and going to the library was not inconsistent with being disabled, and the IME doctor’s opinion was less reliable than those of the treating doctors, which were formed “from a much deeper base of knowledge of Ms. Croll and the effects of her specific history.”

As noted in the article about the Good Morning America expose, insurance companies know that if they deny and terminate claims that many of the claimants will not pursue their claims.  Don’t be one of those claimants.