Last year, a federal appellate court rejected a lawsuit by Social Security Administration (“SSA”) Administrative Law Judges (“ALJ’s”) that had challenged the SSA’s requiring ALJs to decide between 500 and 700 cases annually. The court said that while some ALJs might dismiss more cases than they would have preferred to do, the increased caseload did not interfere with decisional independence.
Last year, ALJ Weiss dismissed an SSD case that did not even address the findings and opinions from the primary treating physician, a psychiatrist. The decision was so contrary to the ALJ’s typically cogent decisions that my appeal comments stated:
“Presumably, the ALJ had a quota to meet, and had somebody else write the Decision for him, which he never bothered to review.”
It appears that my supposition was correct. The Appeals Council remanded the claim for reconsideration of the psychiatrist’s opinion. The ALJ approved the claim today without an additional hearing based on the psychiatrist’s findings and conclusions, which shows the ALJ would have approved the claim initially had he been able to spend more time on it.
Monday, February 29, 2016
Wednesday, February 24, 2016
Appealing Partially Favorable SSD Decisions
When you apply for Social Security Disability (“SSD”) benefits, the State agency can approve your application, but based on a date after you claimed you became disabled. The result of that partially favorable decision (“PFD”) is that you may lose benefits, and it may take longer for you to receive Medicare.
To decide whether or not to appeal, you must review the entire file. However, frequently the reason why a particular later date was selected for the disability onset cannot be discerned. Regardless, the issue boils down to what changed between the time you claimed you became disabled, and the date you were found to become disabled.
I just received two ALJ decisions that rejected the State agency PFDs. One was a 56 year old former bread machine operator with upper left arm impairments, and the other was a 52 year old former stock clerk with progressive orthopedic injuries from car accidents. The State agency claimed there was no contemporary medical records for either. At their hearings, I showed that there were in fact contemporary medical records for the former, and a valid retrospective medical opinion for the latter.
The ALJ agreed with my arguments, which essentially demonstrated that each claimant’s medical restrictions and limitations had existed since the date that each claimed they had become unable to work. Consequently, the ALJ issued a fully favorable decision for each claimant. The result was that each claimant received in excess of another year of SSD benefits.
To decide whether or not to appeal, you must review the entire file. However, frequently the reason why a particular later date was selected for the disability onset cannot be discerned. Regardless, the issue boils down to what changed between the time you claimed you became disabled, and the date you were found to become disabled.
I just received two ALJ decisions that rejected the State agency PFDs. One was a 56 year old former bread machine operator with upper left arm impairments, and the other was a 52 year old former stock clerk with progressive orthopedic injuries from car accidents. The State agency claimed there was no contemporary medical records for either. At their hearings, I showed that there were in fact contemporary medical records for the former, and a valid retrospective medical opinion for the latter.
The ALJ agreed with my arguments, which essentially demonstrated that each claimant’s medical restrictions and limitations had existed since the date that each claimed they had become unable to work. Consequently, the ALJ issued a fully favorable decision for each claimant. The result was that each claimant received in excess of another year of SSD benefits.
Tuesday, February 16, 2016
Subpoenas
The Social Security regulations, and HALLEX rules for Administrative Law Judges (“ALJs”), allow claimants to request subpoenas for the appearance of witnesses or documents. New York courts have repeatedly recognized the right of a claimant to subpoena and cross-examine witnesses who submit reports adverse to the disability claim, especially when ALJs substantially rely on the report.
The courts have held that an ALJ abuses his discretion, and cannot rely upon the opinion of a consultative examiner (“CE”) if it was unclear if a CE reviewed the treating doctor’s reports, or if the reliability of the CE’s report is sufficiently controversial to merit cross-examination. I recently invoked a claimant’s right to subpoena a CE for cross examination because her opinion was contradicted by six other doctors, and the reliability of the CE’s aberrant and vague report was questionable, especially in light of her medical license revocation and incarceration for felonious fraud. The CE needed to be cross examined about her review of the treating doctor reports, and her qualifications for evaluating them.
The ALJ issued a fully favorable decision today, which failed to address the subpoena. Had the ALJ denied the claimant’s disability application, then the failure to issue the subpoena, let alone address the subpoena request, would have provided automatic grounds for a remand.
The courts have held that an ALJ abuses his discretion, and cannot rely upon the opinion of a consultative examiner (“CE”) if it was unclear if a CE reviewed the treating doctor’s reports, or if the reliability of the CE’s report is sufficiently controversial to merit cross-examination. I recently invoked a claimant’s right to subpoena a CE for cross examination because her opinion was contradicted by six other doctors, and the reliability of the CE’s aberrant and vague report was questionable, especially in light of her medical license revocation and incarceration for felonious fraud. The CE needed to be cross examined about her review of the treating doctor reports, and her qualifications for evaluating them.
The ALJ issued a fully favorable decision today, which failed to address the subpoena. Had the ALJ denied the claimant’s disability application, then the failure to issue the subpoena, let alone address the subpoena request, would have provided automatic grounds for a remand.
Saturday, January 16, 2016
IMA Folly
I represent a 60 year old former institutional cook whose Social Security Disability (“SSD”) application was approved today, but not before IMA Disability Associates (“IMA”) sent over a half dozen letters insisting that he must attend a consultative examination (“CE”). My client did not.
On October 22, 2015 and October 23, 2016, the State agency sent letters stating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. Both letters were received on October 26, 2015. That day, I faxed the State agency a detailed seven page letter explaining the reasons why scheduling a CE with IMA was improper. My letter specified that the claimant was not refusing to attend a CE, but asked the State agency to address the questions raised in my letter raised first.
On November 5, 2015, the State agency refused to address the issues raised in my October 26, 2015, and said that this was the claimant’s last chance to attend a CE. The State agency then send another notice on November 10, 2015, reiterating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. On November 12, 2015, I replied that the claimant would attend the CE as soon as the State agency responded to the matters raised in my October 26, 2015 letter.
The State agency continued to refuse to cooperate, and instead, on November 16, 2015, sent yet another CE notice stating that the claimant “must” attend a CE on November 16, 2015, because it was “necessary” for him to be examined by IMA. On November 18, 2015, I faxed the State agency we received their letter on November 17, 2015, the day after the CE was scheduled. Moreover, I advised the State agency that I sent them a detailed report from the claimant’s pain management specialist, together with a lumbar spine MRI, which obviated any supposed need for the CE. I added that if they believed otherwise, then respond to each of the matters raised in my October 26, 2015 letter.
The State agency never attempted to address any of the issues raised in my October 26, 2015 letter, and it did finally approve SSD benefits, but the claimant never went to IMA for a CE. The question is, why does the State agency keep telling claimants that claimants “must” attend IMA CEs when that is not true.
On October 22, 2015 and October 23, 2016, the State agency sent letters stating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. Both letters were received on October 26, 2015. That day, I faxed the State agency a detailed seven page letter explaining the reasons why scheduling a CE with IMA was improper. My letter specified that the claimant was not refusing to attend a CE, but asked the State agency to address the questions raised in my letter raised first.
On November 5, 2015, the State agency refused to address the issues raised in my October 26, 2015, and said that this was the claimant’s last chance to attend a CE. The State agency then send another notice on November 10, 2015, reiterating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. On November 12, 2015, I replied that the claimant would attend the CE as soon as the State agency responded to the matters raised in my October 26, 2015 letter.
The State agency continued to refuse to cooperate, and instead, on November 16, 2015, sent yet another CE notice stating that the claimant “must” attend a CE on November 16, 2015, because it was “necessary” for him to be examined by IMA. On November 18, 2015, I faxed the State agency we received their letter on November 17, 2015, the day after the CE was scheduled. Moreover, I advised the State agency that I sent them a detailed report from the claimant’s pain management specialist, together with a lumbar spine MRI, which obviated any supposed need for the CE. I added that if they believed otherwise, then respond to each of the matters raised in my October 26, 2015 letter.
The State agency never attempted to address any of the issues raised in my October 26, 2015 letter, and it did finally approve SSD benefits, but the claimant never went to IMA for a CE. The question is, why does the State agency keep telling claimants that claimants “must” attend IMA CEs when that is not true.
SSA Self Policing
“Letting a fox guard the henhouse” illustrates the foolishness of placing a person in charge of something when they have a conflict of interest. When you assign somebody a duty that places that person into a position where he can exploit the situation for his own benefit, then you are letting the proverbial fox guard the henhouse. That is the situation created by allowing the Social Security Administration (“SSA”) to decide the propriety of Freedom of Information Act (“FOIA”) requests.
We represent a claimant for Social Security Disability ("SSD") benefits. Despite the fact we had submitted supporting evidence from his treating doctors, the SSA scheduled a Consultative Exam ("CE") for him. The client went to the CE, even though he was in a lot of pain, but when he arrived IMA said the CE doctor was out that day. No one from the SSA, State agency, or IMA ever tried to reach the claimant to tell him the CE doctor would not in that day.
To prove that the DDS/IMA were committing fraud, we filed a FOIA request. Our request included: 1. The number of other patients the CE doctor was scheduled to see that same day, May 8, 2015, at the IMA offices in Hempstead, NY. 2. A copy of all the other patients' medical reports (with the names and Social Security numbers redacted) from May 8, 2015, who were examined by the same doctor that was scheduled to examine our client on that date. 3. The time records for all exams performed by the Hempstead IMA doctors on May 8, 2015.
In response to our FOIA request, Mary Ann Zimmerman, Acting Privacy Officer, claimed that she did not have our client’s Social Security number, even though it was right at the top of the FOIA request. Yes, Zimmerman claimed that she could not see the Social Security number, which was the very subject of the FOIA request. Then, to make matters even worse, Zimmerman claimed that she did not have proof that we are the claimant's Appointed Representative, even though the SSA had already acknowledged receiving the proof.
Zimmerman then claimed that she needed the written consent of the claimant whose records were requested. However, we never asked for any personally identifiable information. In fact, we specifically asked for "a copy of all the other patients' medical reports (with the names and Social Security numbers redacted) who were examined on May 8, 2015. In other words, Zimmerman’s response was nonsensical at best as there cannot be a need for the written consent of people when no personally identifiable information was requested. Since we explicitly stated that no personally identifiable information was requested, it is not possible for the FOIA request to constitute an invasion of anyone's personal privacy or violation of the Privacy Act.
Not surprisingly, the SSA’s Glenn Sklar upheld the decision to deny the FOIA request by citing boilerplate language about the FOIA. Sklar’s only individualized claim was that releasing generic information about the number of exams and their duration performed by IMA doctors would somehow lead to the disclosure of personally identifiable information. Sklar knows that rationalization is a lie because it is impossible to identify a claimant who went for an IMA exam by providing the number of IMA exams and their duration. That is the type of opprobrious misconduct that occurs when you allow the SSA to police itself.
We represent a claimant for Social Security Disability ("SSD") benefits. Despite the fact we had submitted supporting evidence from his treating doctors, the SSA scheduled a Consultative Exam ("CE") for him. The client went to the CE, even though he was in a lot of pain, but when he arrived IMA said the CE doctor was out that day. No one from the SSA, State agency, or IMA ever tried to reach the claimant to tell him the CE doctor would not in that day.
To prove that the DDS/IMA were committing fraud, we filed a FOIA request. Our request included: 1. The number of other patients the CE doctor was scheduled to see that same day, May 8, 2015, at the IMA offices in Hempstead, NY. 2. A copy of all the other patients' medical reports (with the names and Social Security numbers redacted) from May 8, 2015, who were examined by the same doctor that was scheduled to examine our client on that date. 3. The time records for all exams performed by the Hempstead IMA doctors on May 8, 2015.
In response to our FOIA request, Mary Ann Zimmerman, Acting Privacy Officer, claimed that she did not have our client’s Social Security number, even though it was right at the top of the FOIA request. Yes, Zimmerman claimed that she could not see the Social Security number, which was the very subject of the FOIA request. Then, to make matters even worse, Zimmerman claimed that she did not have proof that we are the claimant's Appointed Representative, even though the SSA had already acknowledged receiving the proof.
Zimmerman then claimed that she needed the written consent of the claimant whose records were requested. However, we never asked for any personally identifiable information. In fact, we specifically asked for "a copy of all the other patients' medical reports (with the names and Social Security numbers redacted) who were examined on May 8, 2015. In other words, Zimmerman’s response was nonsensical at best as there cannot be a need for the written consent of people when no personally identifiable information was requested. Since we explicitly stated that no personally identifiable information was requested, it is not possible for the FOIA request to constitute an invasion of anyone's personal privacy or violation of the Privacy Act.
Not surprisingly, the SSA’s Glenn Sklar upheld the decision to deny the FOIA request by citing boilerplate language about the FOIA. Sklar’s only individualized claim was that releasing generic information about the number of exams and their duration performed by IMA doctors would somehow lead to the disclosure of personally identifiable information. Sklar knows that rationalization is a lie because it is impossible to identify a claimant who went for an IMA exam by providing the number of IMA exams and their duration. That is the type of opprobrious misconduct that occurs when you allow the SSA to police itself.
Thursday, January 7, 2016
State Agency Fraud
I represent a 60 year old with orthopedic and cardiovascular problems who worked for 46 years, including over three decades as a media salesperson, where he earned a large six figure income. His application for Social Security Disability (“SSD”) benefits was initially denied by the State agency.
Common sense dictates that a claimant does not misrepresent or exaggerate his disability in order to trick the government into paying SSD benefits that are a tenth of his past income. Nonetheless, despite having submitted Residual Functional Capacity (“RFC”) assessments from his orthopedist, cardiologist, and internist, the claimant was compelled to attend a hearing before his SSD benefits were approved today. Compelling a hearing was particularly appalling in light of fraudulent misrepresentations that the State agency in connection with a report that DDS Disability Adjudicator/Examiner V. Kumar prepared in connection with the claimant’s application.
Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. Neither Kumar nor anybody else from the DDS ever spoke with any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. The official Social Security folder showed that the DDS never even contacted any of the claimant’s doctors by mail about anything.
What made Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter that stated:
"the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved."
The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contained over a hundred pages of treatment records, functionality opinions, and diagnostic testing. Proof that the evidence was sufficient is that the judge only asked a couple of questions at the hearing. Moreover, I had sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated:
"In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE."
Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” As discussed above, the folder contained three RFC assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no such RFC assessment existed in the folder.
The most egregious fraud committed was Kumar’s writing that the claimant missed two CE appointments. The claim folder included a form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 stated that the claimant did not keep the appointment for the CE. Whoever prepared the form DDD-4184 committed fraud because the claimant has photographs of him entering the IMA offices for the CE. The claimant also videotaped him inside the IMA offices, and being told to leave by IMA.
Although I asked the judge what steps he would take to address the fraudulent misconduct by the State agency and/or IMA, I never received a response.
Common sense dictates that a claimant does not misrepresent or exaggerate his disability in order to trick the government into paying SSD benefits that are a tenth of his past income. Nonetheless, despite having submitted Residual Functional Capacity (“RFC”) assessments from his orthopedist, cardiologist, and internist, the claimant was compelled to attend a hearing before his SSD benefits were approved today. Compelling a hearing was particularly appalling in light of fraudulent misrepresentations that the State agency in connection with a report that DDS Disability Adjudicator/Examiner V. Kumar prepared in connection with the claimant’s application.
Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. Neither Kumar nor anybody else from the DDS ever spoke with any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. The official Social Security folder showed that the DDS never even contacted any of the claimant’s doctors by mail about anything.
What made Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter that stated:
"the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved."
The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contained over a hundred pages of treatment records, functionality opinions, and diagnostic testing. Proof that the evidence was sufficient is that the judge only asked a couple of questions at the hearing. Moreover, I had sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated:
"In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE."
Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” As discussed above, the folder contained three RFC assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no such RFC assessment existed in the folder.
The most egregious fraud committed was Kumar’s writing that the claimant missed two CE appointments. The claim folder included a form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 stated that the claimant did not keep the appointment for the CE. Whoever prepared the form DDD-4184 committed fraud because the claimant has photographs of him entering the IMA offices for the CE. The claimant also videotaped him inside the IMA offices, and being told to leave by IMA.
Although I asked the judge what steps he would take to address the fraudulent misconduct by the State agency and/or IMA, I never received a response.
Saturday, December 19, 2015
Sun Life Reverses Denial
A 56 year old former account executive with hypertrophic cardiomyopathy asked me to represent her after Sun Life denied her application for long term disability (“LTD”) benefits, even though Sun Life had approved her application for short term disability (“STD”) benefits. The only thing that had changed was that a Sun Life nurse said the claimant could work because she had 5 METS on a stress test.
I argued that Sun Life made diametrically opposed decisions without being able to identify any difference in the requirements for evaluating disability under the STD and LTD claims. Similarly, I pointed out that Sun Life made diametrically opposed decisions without being able to identify a single piece of medical evidence that showed the claimant's medical condition had changed, let alone improved. To make sure there was no misinterpretation of the medical evidence, I obtained a report from the claimant’s cardiologist explaining how the objective medical evidence had not changed, and that there was no basis for equating 5 METS with the ability to work.
Unlike Reliance, CIGNA and Unum regularly do, particularly at this time of the year, Sun Life made the decision to overturn its denial without insisting on extensions. Claims handlers frequently delay approvals as a means of manipulating reserves to meet financial goals. Last month, when Sun Life wrote that it had the right to “toll” the time to render a decision, I responded by sending a letter that quoted the ERISA regulatory deadlines. Sun Life verbally approved the LTD claim before the deadline expired.
I argued that Sun Life made diametrically opposed decisions without being able to identify any difference in the requirements for evaluating disability under the STD and LTD claims. Similarly, I pointed out that Sun Life made diametrically opposed decisions without being able to identify a single piece of medical evidence that showed the claimant's medical condition had changed, let alone improved. To make sure there was no misinterpretation of the medical evidence, I obtained a report from the claimant’s cardiologist explaining how the objective medical evidence had not changed, and that there was no basis for equating 5 METS with the ability to work.
Unlike Reliance, CIGNA and Unum regularly do, particularly at this time of the year, Sun Life made the decision to overturn its denial without insisting on extensions. Claims handlers frequently delay approvals as a means of manipulating reserves to meet financial goals. Last month, when Sun Life wrote that it had the right to “toll” the time to render a decision, I responded by sending a letter that quoted the ERISA regulatory deadlines. Sun Life verbally approved the LTD claim before the deadline expired.
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