Unum Agrees Claimant Can’t Do Any Work

I represent a securities trader with psoriatic arthritis, whose long term disability (“LTD”) benefits Unum was looking to terminate after the definition of disability in its policy changed from own occupation to any occupation in October 2014. As far back as January 2014, Unum had been asking for medical evidence to support the change in definition, which I had been opposing as being premature. 

Unum found that the evidence I submitted supported that my client’s condition prevents him from being able to perform any relevant occupation. Consequently, Unum approved making continued LTD benefits. 

In its approval letter, Unum asked to be advised if my client’s contact information changed. I have instructed Unum countless times that it may not contact my client directly. Therefore, there is no need for Unum to be advised of any such change. What Unum is not saying is that it wants to know if my client relocates in case it wants to pay for surveillance as a means to terminate his LTD benefits, since the medical evidence does not provide a basis for doing so.

Remand Reversal

Administrative Law Judge (“ALJ”) Bruce MacDougall has retired from the Jericho Social Security hearing office. He had denied the Social Security Disability (“SSD”) application of one of my clients with numerous orthopedic and neurologic impairments, by rejecting the opinions of the treating orthopedist and pain management specialist, even though the opinions were objectively supported. 

The Appeals Council agreed that the ALJ failed to provide good reasons for rejecting the treating doctors’ opinions, and remanded. Among other things, the Appeals Council ruled that the ALJ failed to identify any evidence to support his conclusion that the claimant could sit on a “regular and continuing basis” for an 8 hour, five day a week, basis. Consequently, the Appeals Council rejected the ALJ’s decision, ordered a new hearing. 

A new ALJ heard the case on remand. As there was no evidence to contradict the opinions of the treating doctors, a vocational expert (“VE”) was asked if the claimant could work based upon the functional findings of the treating doctors. The VE concluded that the opinions of the treating doctors precluded even sedentary work. Accordingly, the claimant’s SSD application was approved. 

The remand was relatively simple because there was a great deal of work put into the papers submitted to the Appeal Council. I always prepare my appeal to the Appeals Council as if I were submitting a summary judgment brief in federal court. If the Appeals Council rejects the appeal, I incorporate my Appeals Council comments into the federal court complaint. Fortunately, the new ALJ essentially accepted the arguments made to the Appeals Council, which served as the basis for the remand, obviating the need to proceed to federal court.

Pseudarthrosis

Pseudarthrosis, which is commonly referred to as a nonunion or false joint, is a bone fracture that will not mend because the body perceives bone fragments as separate bones and does not attempt to unite them. Pseudarthrosis occurs from inadequate healing after the fracture, and can result from a failed attempt of spinal fusion. Pain recurs in a very similar location to that before surgery. 

I represent a 42 year old grocery store manager with back problems. The State agency denied his Social Security Disability (“SSD”) application even though diagnostic testing revealed lumbar radiculopathy. However, weeks after I submitted a report from the treating spine specialist diagnosing the claimant with pseudarthrosis, his SSD benefits were approved.

Proper Hearing Notice

A colleague stated that, for the second time in two weeks, the Jericho Social Security hearing office added an expert witness just one week before the hearing. He wanted to know if there was a basis for objecting to the short notice. The answer is yes. 

Under the Social Security regulations, 20 CFR § 404.938, a hearing notice must be sent at least 20 days before the hearing, and must state if the appearance of any witness is scheduled to be made in person, by video teleconferencing, or by telephone. Furthermore, HALLEX I-2-3-15D requires the notice to include the proper names of expert witnesses. 

A hearing notice is defective if it failed to identify the name of a medical or vocational expert at least 20 days before the hearing. The notice would be defective even if it indicated that an expert would appear, but failed to identify the proper name of the expert. For example, a notice that states that the hearing will include testimony from the name of a company that provides vocational services without specifying the individual from that company is defective. 

There are two choices when the hearing notice is defective. You can waive the right to receive a proper notice of hearing at least 20 days before the hearing. Alternatively, you can insist that an amended notice of hearing be mailed to include the proper name of the expert, and that notice must be provide at least 20 days notice.

Video Taping Consultative Examination

For virtually every Social Security Disability (“SSD”) claim, the State Agency sends letters to claimants telling them that they have to attend a consultative examination (“CE”). In New York, the State Agency contracted with Industrial Medicine Associates (“IMA”) to perform the CEs. 

There is no Social Security ruling, regulation, statute, guideline, POMS, HALLEX, or case law that precludes an SSD claimant from video recording his or her CE. To the contrary, video taping an IMA CE is consistent with the SSA tape recording experts and witnesses at hearings. Notably, section 137 of the Workers’ Compensation law specifies that a claimant has the “right to video tape or otherwise record” an examination. 

One of my clients appeared at IMA for his CE. However, the IMA office manager refused to allow the CE to proceed because the claimant wanted to video tape it. The IMA office manager stated that they had the “discretion” to refuse to be video taped. When the claimant asserted his right to videotape the CE, the office manager told him to leave. 

Because the claimant video taped the IMA office manager saying that they had the “discretion” to refuse to be video taped, and telling him to leave, it is undeniable that IMA, not my client, refused to proceed with the CE. That videotape will prove that any assertion by the State agency that the claimant “failed to cooperate” is a lie, as he was ready, willing, and able to examined.

Antiphospholipid Syndrome

I have recently taken on several disability clients afflicted with Antiphospholipid Syndrome. According to the Mayo Clinic, Antiphospholipid Syndrome is an incurable condition that occurs when your immune system mistakenly attacks some of the normal proteins in your blood, which can cause blood clots, stroke, headaches, rashes, cardiovascular disease, and memory loss. 

I represent a 62 year old bookkeeper with Antiphospholipid Syndrome, whose Social Security Disability (“SSD”) application was approved today after just three months. Having obtained the documentation establishing the diagnosis of Antiphospholipid Syndrome, it was not difficult showing the claimant’s entitlement to SSD benefits, even though her past work sedentary. 

In order to reduce the claimant’s risk of a clot in her legs, her doctor advised her to elevate them frequently above the height of her heart. As sedentary work cannot be performed properly with elevated legs, whether lying down or reclining in a chair, the claimant had to be found disabled.

Non-Hodgkin’s Lymphoma

Non-Hodgkin’s Lymphoma is cancer that originates in your lymphatic system, which is the disease-fighting network that is spread throughout your body.  According to the National Cancer Institute, there are over 70,000 new cases of Non-Hodgkin’s Lymphoma each year in the U.S.  Typical symptoms include: swollen lymph nodes; abdominal pain or swelling; chest pain, coughing, or trouble breathing; fatigue; fever; night sweats; and weight loss.

Like any medical condition, a person with Non-Hodgkin’s Lymphoma can establish disability by showing that it, or its treatment, prevents then from having the functional capacity to work.  A person with Non-Hodgkin’s Lymphoma can also establish disability by showing that a listing is met.

I represent a 46 year old teacher with Non-Hodgkin’s Lymphoma whose Social Security Disability application was approved in two months.  The only explanation for the rapid approval is that Social Security determined the claimant met the applicable listing, 13.05.