When seeking Social Security Disability (“SSD”) benefits, establishing the etiology of why you cannot work is not required. What is required is that you show you that the restrictions and limitations caused by the medical problem prevent you from being able to work.
A 31 year old clerk retained me after her SSD application was denied. The State agency had denied the claimant’s benefits on the grounds that the medical reports did not show any conditions of a nature that would prevent her from working.
At the ensuing hearing, the Administration Law Judge (“ALJ”) found it baffling that none of the doctors could determine the cause or a diagnosis of the claimant’s symptoms, which included pain and weakness, and was considering adjourning the hearing so a medical expert could testify. After I pointed out that the claimant’s symptoms were accompanied by objective findings, such as the claimant’s skin turning purple and cold, and joint and muscle swelling, the ALJ took testimony from a vocational expert (“VE”).
The ALJ asked the VE if the claimant could work based on the restrictions and limitations provided by the treating physicians or the consultative examiner, to which the VE said no. Based on the VE’s testimony, the ALJ approved the case. In other words, it was irrelevant that the claimant was unable to establish the cause of why she was unable to work, all that mattered was that as a result of her medical problems she was unable to perform the physical demands of work.
Friday, May 16, 2014
Thursday, May 15, 2014
Unum Field Visit
I represent an owner of a landscaping business who had purchased a disability insurance policy from New York Life, which was subsequently taken over by Unum. I filed a claim under the policy because the claimant’s diabetes prevented him from working.
During the claim process, Unum made several demands that were outside the terms of the policy. Unum requested tax records, but there was no provision entitling Unum to do so. However, that request was moot as no tax returns were filed during the requested period.
Unum also wanted the claimant to meet with one of its Field Representatives to understand his occupation and duties. I explained that there was no need for a meeting because any questions could be asked in writing, and that since a Field Representative is not a vocational expert the request was illogical. More importantly, I pointed out that the policy does not permit Unum to use a Field Representative to question the claimant, and wrote Unum that it they believed I was wrong, then they should identify the section of the policy that they claimed empowered Unum to do so. Unum never responded.
Unum also asked if the claimant had applied for Social Security Disability (“SSD”) benefits, and for an authorization to obtain his SSD file. I told Unum that the claimant would not comply because there was no offset in the policy for SSD benefits, which rendered the request irrelevant.
I suggested that Unum could make the request relevant by providing a notarized letter stating that Unum would accept the decision of the Social Security Administration as to whether the claimant was disabled under the policy. Once again, Unum never responded. I was advised today that Unum is approving the claim.
During the claim process, Unum made several demands that were outside the terms of the policy. Unum requested tax records, but there was no provision entitling Unum to do so. However, that request was moot as no tax returns were filed during the requested period.
Unum also wanted the claimant to meet with one of its Field Representatives to understand his occupation and duties. I explained that there was no need for a meeting because any questions could be asked in writing, and that since a Field Representative is not a vocational expert the request was illogical. More importantly, I pointed out that the policy does not permit Unum to use a Field Representative to question the claimant, and wrote Unum that it they believed I was wrong, then they should identify the section of the policy that they claimed empowered Unum to do so. Unum never responded.
Unum also asked if the claimant had applied for Social Security Disability (“SSD”) benefits, and for an authorization to obtain his SSD file. I told Unum that the claimant would not comply because there was no offset in the policy for SSD benefits, which rendered the request irrelevant.
I suggested that Unum could make the request relevant by providing a notarized letter stating that Unum would accept the decision of the Social Security Administration as to whether the claimant was disabled under the policy. Once again, Unum never responded. I was advised today that Unum is approving the claim.
Tuesday, April 29, 2014
Disability Benefits for Truck Driver
What happens when you apply for Social Security Disability (“SSD”) benefits, and your doctor says you cannot work, but the Social Security Administration (“SSA”) doctor says you can? If the medical records support your doctor’s opinion, then your SSD application should be approved. Unfortunately, all too often the State agency ignores that rule, which requires appealing the denial to an administrative law judge (“ALJ”).
I represent a 48 year old truck driver with back problems, whose SSD application was approved today by an ALJ. The ALJ’s decision exemplifies how medical opinions should be weighed.
The ALJ gave great weight to the opinion of the claimant’s orthopedist because “he has treated claimant on a regular basis." He is familiar with claimant's medical condition due to the regularity of treatment provided to him, and therefore in the best position to report on claimant's physical condition as well as its impact in his ability to perform work activities.” On the other hand, the ALJ gave little weight to the opinion of the SSA doctor because, “He evaluated the claimant one time and his examination lasted a short period, as per the claimant's testimony at the hearing, and thus he is not familiar with the claimant's functioning."
The State agency knows that the opinion of a claimant’s doctor is supposed to supercede that of the SSA doctor, yet the State agency regularly does the opposite. The result is that the State agency costs the SSA millions of dollars in having to review unnecessary appeals, and delays claimant’s receipt of SSD benefits.
I represent a 48 year old truck driver with back problems, whose SSD application was approved today by an ALJ. The ALJ’s decision exemplifies how medical opinions should be weighed.
The ALJ gave great weight to the opinion of the claimant’s orthopedist because “he has treated claimant on a regular basis." He is familiar with claimant's medical condition due to the regularity of treatment provided to him, and therefore in the best position to report on claimant's physical condition as well as its impact in his ability to perform work activities.” On the other hand, the ALJ gave little weight to the opinion of the SSA doctor because, “He evaluated the claimant one time and his examination lasted a short period, as per the claimant's testimony at the hearing, and thus he is not familiar with the claimant's functioning."
The State agency knows that the opinion of a claimant’s doctor is supposed to supercede that of the SSA doctor, yet the State agency regularly does the opposite. The result is that the State agency costs the SSA millions of dollars in having to review unnecessary appeals, and delays claimant’s receipt of SSD benefits.
Saturday, April 19, 2014
Autoimmune Hepatitis
Autoimmune hepatitis is inflammation in your liver that occurs when your body's immune system attacks your liver, and causes it to become inflamed. The American Liver Foundation says the disease is chronic, meaning it lasts many years. According to the Mayo Clinic, while the cause of autoimmune hepatitis is unclear, some diseases, toxins and drugs may trigger autoimmune hepatitis in susceptible people, especially women.
Untreated autoimmune hepatitis can lead to scarring of the liver, known as cirrhosis, and eventually to liver failure. When diagnosed and treated early, however, autoimmune hepatitis often can be controlled with drugs that suppress the immune system. The most common symptoms are fatigue, abdominal discomfort, aching joints, itching, jaundice enlarged liver, nausea and spider angiomas on the skin.
I represent a 54 year old teacher with autoimmune hepatitis, whose application for Social Security Disability benefits was approved today, four months after it was filed. The key was getting the treating hepatologist to provide a report that detailed the objective clinical and diagnostic test findings, along with the resulting functional limitations.
I represent a 54 year old teacher with autoimmune hepatitis, whose application for Social Security Disability benefits was approved today, four months after it was filed. The key was getting the treating hepatologist to provide a report that detailed the objective clinical and diagnostic test findings, along with the resulting functional limitations.
Thursday, April 10, 2014
Unum Reapproval
Unum has an historic tendency to deny and terminate claims at the end of each financial quarter to improve its reserves. A corollary of that accounting tendency is that Unum delays approvals until after a quarter. I just received written notification that Unum reapproved one of my client’s long term disability (“LTD”) claims a couple of days after the first quarter.
As I do for each of my client’s, sent written notification to Unum in very simple and unambiguous words, “Please ensure that you communicate with me and avoid communicating with my client or her doctors without my prior approval. As it typically does, Unum initially ignored my directions, and contacted the claimant directly anyway. Unum knows that under these circumstances it is not supposed to contact claimants directly.
To prevent Unum, as well as other LTD insurers, from continuing to contact claimants directly, I found a letter reiterating my direction that they are to refrain from doing so usually fails to deter them. Consequently, I am forced to send threatening letters to ensure that the attorney client relationship is respected.
I advised Unum that the next attempt to circumvent the representation of my client will result in a complaint being filed with the New York State Department of Financial Services (the “DFS”). Advisory Opinions from the DFS’ General Counsel opine that Unum’s mailing anything to my client without my permission would constitute a wrongful communication. I add that the DFS has stated that a licensee of the DFS who engages in such conduct may be found to have committed a "determined violation" pursuant to N.Y. Ins. Law § 2402(c) (McKinney Supp. 2005) as an unfair or deceptive act or practice.
I also provide citations from hornbook law that such conduct violates the Statement of Principles of the National Conference of Lawyers, Insurance Companies, and Adjusters. One of the declarations in the Statement of Principles is that an insurer may not deal directly with a claimant represented by an attorney without such attorney’s consent. The word "deal" is interpreted by the committee to mean to "negotiate," "settle," "do business with," and "negotiate for a settlement or a payment."
Unlike my letters simply reiterating my request to communicate solely through me, I found that the letters advising of the consequences for continuing to ignore my directions do deter the misconduct.
As I do for each of my client’s, sent written notification to Unum in very simple and unambiguous words, “Please ensure that you communicate with me and avoid communicating with my client or her doctors without my prior approval. As it typically does, Unum initially ignored my directions, and contacted the claimant directly anyway. Unum knows that under these circumstances it is not supposed to contact claimants directly.
To prevent Unum, as well as other LTD insurers, from continuing to contact claimants directly, I found a letter reiterating my direction that they are to refrain from doing so usually fails to deter them. Consequently, I am forced to send threatening letters to ensure that the attorney client relationship is respected.
I advised Unum that the next attempt to circumvent the representation of my client will result in a complaint being filed with the New York State Department of Financial Services (the “DFS”). Advisory Opinions from the DFS’ General Counsel opine that Unum’s mailing anything to my client without my permission would constitute a wrongful communication. I add that the DFS has stated that a licensee of the DFS who engages in such conduct may be found to have committed a "determined violation" pursuant to N.Y. Ins. Law § 2402(c) (McKinney Supp. 2005) as an unfair or deceptive act or practice.
I also provide citations from hornbook law that such conduct violates the Statement of Principles of the National Conference of Lawyers, Insurance Companies, and Adjusters. One of the declarations in the Statement of Principles is that an insurer may not deal directly with a claimant represented by an attorney without such attorney’s consent. The word "deal" is interpreted by the committee to mean to "negotiate," "settle," "do business with," and "negotiate for a settlement or a payment."
Unlike my letters simply reiterating my request to communicate solely through me, I found that the letters advising of the consequences for continuing to ignore my directions do deter the misconduct.
Establishing Mental Disability
The Social Security Administration (“SSA”) uses the same process for evaluating disability regardless of whether the cause is mental or physical. In short, the SSA determines whether the limitations from mental impairments results in a functional capacity to work.
The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approved disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report.
If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability.
A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the mental demands of work. A 48 year old teacher worker retained me to handle her application for Social Security Disability (“SSD”) benefits. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits the following month without the need for a hearing.
The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approved disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report.
If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability.
A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the mental demands of work. A 48 year old teacher worker retained me to handle her application for Social Security Disability (“SSD”) benefits. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits the following month without the need for a hearing.
Thursday, April 3, 2014
Medicaid Disability Determinations
Some claimants applying for Social Security Disability (“SSD”) benefits also seek Medicaid. The medical reports that are completed when applying for Medicaid can also prove helpful for the SSD application.
The State agency makes the initial medical decision when applying for SSD benefits. Similarly, a State agency makes the Medicaid disability determination, and asks doctors to complete Form LDSS-1151.
The State agency routinely favors the opinions of its doctors over claimant’s doctors. However, when the findings and opinions of a treating doctor have been accepted in connection with approving Medicaid, the State agency usually gives the treating doctor’s opinion great, if not controlling, weight.
I filed an SSD application for a property manager who was also seeking Medicaid. I submitted the claimant’s LDSS-1151 form that her doctor had completed. Right after her Medicaid was approved, the claimant’s SSD application was approved.
The State agency makes the initial medical decision when applying for SSD benefits. Similarly, a State agency makes the Medicaid disability determination, and asks doctors to complete Form LDSS-1151.
The State agency routinely favors the opinions of its doctors over claimant’s doctors. However, when the findings and opinions of a treating doctor have been accepted in connection with approving Medicaid, the State agency usually gives the treating doctor’s opinion great, if not controlling, weight.
I filed an SSD application for a property manager who was also seeking Medicaid. I submitted the claimant’s LDSS-1151 form that her doctor had completed. Right after her Medicaid was approved, the claimant’s SSD application was approved.
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