The Social Security Administration (the “SSA”) tries different types of initiatives and programs on a regular basis. Usually, those programs reduce the number of claims being approved. For example, the SSA virtually eliminated the authority of staff attorneys to write OTRs, and the SSA increased the number of claims approved by ALJ’s for review.
The SSA may have another initiative currently. The SSA seems recently to be approving cancer claims more rapidly. In fact we had two more such claims approved today. While compassionate allowances, which include many cancers, are always supposed to be expedited, that has frequently not been the case.
The SSA does not automatically approve cancer claims. However, bringing it to the attention of the right people at the SSA should expedite its resolution, especially if there is presently a focus on such claims.
Thursday, May 19, 2016
Combined Disabling Conditions
Claimants frequently omit information concerning some medical problems because they say it is not the main problem. That is a mistake, especially when applying for Social Security Disability (“SSD”) benefits. Social Security has a rule that requires considering the combined effect of all of a claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.
I represent a 49 year old legal secretary with physical and mental impairments from an accident, whose SSD benefits were approved today without a hearing. I submitted reports from the claimant’s pain management specialist and orthopedist regarding the physical impairments, and reports from the claimant’s psychiatrist and therapist regarding her mental impairments.
Most cases with severe physical or mental impairments still require a hearing before SSD benefits are approved. While the claimant probably would have been approved based upon either her physical or mental impairments after a hearing, developing the record for both impairments facilitated a decision without one. The goal is not simply to win, but to do so as quickly as possible.
I represent a 49 year old legal secretary with physical and mental impairments from an accident, whose SSD benefits were approved today without a hearing. I submitted reports from the claimant’s pain management specialist and orthopedist regarding the physical impairments, and reports from the claimant’s psychiatrist and therapist regarding her mental impairments.
Most cases with severe physical or mental impairments still require a hearing before SSD benefits are approved. While the claimant probably would have been approved based upon either her physical or mental impairments after a hearing, developing the record for both impairments facilitated a decision without one. The goal is not simply to win, but to do so as quickly as possible.
Sunday, May 8, 2016
Deceptive Insurance Practices
New York has a General Business Law (“GBL”) that imposes liability for deceptive business practices in the conduct of any business, trade, or commerce. GBL 349 has three elements: 1) the conduct must be consumer-oriented; 2) the conduct must be misleading; and 3) the plaintiff must be injured as a result of the deceptive act or practice. GBL 349 permits recovery of up to three times the plaintiff’s damages, and a court can also award attorneys’ fees.
The courts have upheld GBL 349 claims involving many different types of economic activity, and that includes conduct by disability companies. Claimants whose benefits under individual disability policies were wrongfully denied have commenced actions alleging that the disability insurer violated GBL 349.
I represent a 60 year old client who had to stop working as a foreign exchange broker after more than a quarter century following his sixth lumbar back surgery. The Social Security Administration and Reliance Standard quickly found the claimant was disabled from any full time occupation, let alone his own occupation.
Met Life found the claimant disabled from his own occupation, but then refused to pay additional benefits after a few months. I filed an action against Met Life that included a cause of action for GBL 349 violations. Met Life moved to dismiss the claim, arguing that it did not apply where a plaintiff sought benefits under a disability insurance policy. Specifically, Met Life argued that the complaint was merely a private dispute. The court rejected Met Life’s argument on the grounds that the claimant had stated claims that affected the public in general. Therefore, the court held that the claimant had properly stated a cause of action for GBL 349 violations, and denied Met Life’s motion to dismiss.
The courts have upheld GBL 349 claims involving many different types of economic activity, and that includes conduct by disability companies. Claimants whose benefits under individual disability policies were wrongfully denied have commenced actions alleging that the disability insurer violated GBL 349.
I represent a 60 year old client who had to stop working as a foreign exchange broker after more than a quarter century following his sixth lumbar back surgery. The Social Security Administration and Reliance Standard quickly found the claimant was disabled from any full time occupation, let alone his own occupation.
Met Life found the claimant disabled from his own occupation, but then refused to pay additional benefits after a few months. I filed an action against Met Life that included a cause of action for GBL 349 violations. Met Life moved to dismiss the claim, arguing that it did not apply where a plaintiff sought benefits under a disability insurance policy. Specifically, Met Life argued that the complaint was merely a private dispute. The court rejected Met Life’s argument on the grounds that the claimant had stated claims that affected the public in general. Therefore, the court held that the claimant had properly stated a cause of action for GBL 349 violations, and denied Met Life’s motion to dismiss.
Monday, May 2, 2016
Cyclic Vomiting Syndrome
According to an article in the Journal of Child Neurology, cyclic vomiting syndrome (CVS”) is a gastrointestinal disorder that is “characterized by severe discrete episodes of nausea, vomiting, and lethargy.” CVS is a fairly common, disabling, predominately childhood condition that has increasingly been seen in adults in recent years.
I represent a 49 year old former truck driver with CVS whose Social Security Disability (“SSD”) application was approved today five months after it was filed. The claimant had been treating with a gastroenterologist for this chronic condition since 2012. The claimant was missing about three days a month due to the CVS, which most vocational experts would say makes a person unable to sustain employment. However, even if CVS does not require a person to miss an entire day, it renders a person off task too often to be able to perform full time work on a sustained basis.
I represent a 49 year old former truck driver with CVS whose Social Security Disability (“SSD”) application was approved today five months after it was filed. The claimant had been treating with a gastroenterologist for this chronic condition since 2012. The claimant was missing about three days a month due to the CVS, which most vocational experts would say makes a person unable to sustain employment. However, even if CVS does not require a person to miss an entire day, it renders a person off task too often to be able to perform full time work on a sustained basis.
Thursday, April 28, 2016
Kudos To ALJ Wexler
I represented a former valet with cardiovascular problems whose claim for Social Security Disability (“SSD”) benefits was approved today by Administrative Law Judge (“ALJ”) April Wexler. Unfortunately, the claimant died on February 27, 2016, from those health problems.
The Social Security Administration (“SSA”) had insisted that the claimant attend a consultative examination (CE”) by Jerome Caiati, a doctor who claims to be an internist working for IMA Disability. According to the American Medical Association, American Board of Medical Specialties and New York State Department of Health, Caiati did not attend medical school in the United States, and is not board certified in any medical field. That fact alone should suffice to accord little weight to Caiati’s opinion.
As discussed in my prior postings, the IMA CEs are frequently baseless. Some of my colleagues believe that the Caiati CE reports are the worst of all. ALJ Wexler’s decision is consistent with that opinion.
Caiati diagnosed the claimant with history of "asymptomatic" hypertension/high blood pressure, while cautioning the claimant to follow up with his own physician after the CE revealed elevated blood pressure. As he virtually always does, Caiati opined that the claimant had no limitations in sitting, standing, walking, reaching, pushing, pulling, lifting, climbing, and bending.
ALJ Wexler gave Caiati's opinion little weight because it was not only inconsistent with the record as a whole, but with is own CE findings as well. For example, the ALJ pointed out that the claimant could not only have a "history" of high blood pressure, implying that it was a thing of the past, while Caiati admitted that the claimant currently had high blood pressure, and even warned that the claimant had to follow up with his own physician. ALJ Wexler added that high blood pressure is etiologically related to the claimant's fatal cardiac failure.
In rejecting Caiati's opinion, ALJ Wexler concluded that, “It strains credulity that, given the claimant's significant medical history and the positive examination findings for high blood pressure, the claimant would have had absolutely no physical limitations as opined by Dr. Caiati.”
I am surprised that the ALJ gave any weight to Caiati's opinion at all. Anyone whose SSD application was denied based upon a CE by Caiati should file an appeal.
The Social Security Administration (“SSA”) had insisted that the claimant attend a consultative examination (CE”) by Jerome Caiati, a doctor who claims to be an internist working for IMA Disability. According to the American Medical Association, American Board of Medical Specialties and New York State Department of Health, Caiati did not attend medical school in the United States, and is not board certified in any medical field. That fact alone should suffice to accord little weight to Caiati’s opinion.
As discussed in my prior postings, the IMA CEs are frequently baseless. Some of my colleagues believe that the Caiati CE reports are the worst of all. ALJ Wexler’s decision is consistent with that opinion.
Caiati diagnosed the claimant with history of "asymptomatic" hypertension/high blood pressure, while cautioning the claimant to follow up with his own physician after the CE revealed elevated blood pressure. As he virtually always does, Caiati opined that the claimant had no limitations in sitting, standing, walking, reaching, pushing, pulling, lifting, climbing, and bending.
ALJ Wexler gave Caiati's opinion little weight because it was not only inconsistent with the record as a whole, but with is own CE findings as well. For example, the ALJ pointed out that the claimant could not only have a "history" of high blood pressure, implying that it was a thing of the past, while Caiati admitted that the claimant currently had high blood pressure, and even warned that the claimant had to follow up with his own physician. ALJ Wexler added that high blood pressure is etiologically related to the claimant's fatal cardiac failure.
In rejecting Caiati's opinion, ALJ Wexler concluded that, “It strains credulity that, given the claimant's significant medical history and the positive examination findings for high blood pressure, the claimant would have had absolutely no physical limitations as opined by Dr. Caiati.”
I am surprised that the ALJ gave any weight to Caiati's opinion at all. Anyone whose SSD application was denied based upon a CE by Caiati should file an appeal.
Monday, April 25, 2016
Vocational Report Pays Off
Disability claims involve both medical and vocational issues. However, while disability claimants frequently pay for medical reports, they rarely consider investing in a vocational report. I represent a former construction manger with neck and back problems who was approved for Social Security Disability (“SSD”) benefits today because after an Administrative Law Judge (“ALJ”) reviewed the claimant’s vocational report.
The ALJ had scheduled a hearing with a Vocational Expert (“VE”) from the Social Security Administration (“SSA”). I submitted a letter to the ALJ objecting to the SSA VE because the claimant had submitted a report from his own VE, who also happens to serve as a VE for the SSA. My letter explained why none of the reasons set forth in the HALLEX for scheduling a VE to testify applied. The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration's Office of Disability Adjudication and Review (“ODAR”). Moreover, the claimant’s VE was available to answer any questions that the ALJ might have.
When the ALJ originally scheduled the hearing, he did not read the VE report. That is because, as frequently happens, that evidence had been excluded from the file. After I resubmitted the VE report, together with the receipt showing that the SSA had received it, the ALJ approved the SSD application without a hearing. As a result, the claimant will be awarded in excess of $100,000. Money well spent for the VE report.
The ALJ had scheduled a hearing with a Vocational Expert (“VE”) from the Social Security Administration (“SSA”). I submitted a letter to the ALJ objecting to the SSA VE because the claimant had submitted a report from his own VE, who also happens to serve as a VE for the SSA. My letter explained why none of the reasons set forth in the HALLEX for scheduling a VE to testify applied. The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration's Office of Disability Adjudication and Review (“ODAR”). Moreover, the claimant’s VE was available to answer any questions that the ALJ might have.
When the ALJ originally scheduled the hearing, he did not read the VE report. That is because, as frequently happens, that evidence had been excluded from the file. After I resubmitted the VE report, together with the receipt showing that the SSA had received it, the ALJ approved the SSD application without a hearing. As a result, the claimant will be awarded in excess of $100,000. Money well spent for the VE report.
Tuesday, April 5, 2016
Holding IMA Accountable
We represent a claimant for Social Security Disability ("SSD") benefits. His claim was approved today without a hearing, even though Social Security rarely does this anymore.
We had filed a request with the Freedom of Information Act (“FOIA”) when the claimant attended a Consultative Exam (CE) at IMA in January, only to be told when he got there that the doctor wasn't in. We filed the FOIA request because we wanted to show that fraud was being committing, as they denied our client his SSD benefits initially for not attending the CE. Our FOIA request was denied. The evidence in other cases was just as strong, so we can only assume that Social Security did not want to have to explain why IMA lied regarding the CE. The bottom line, do not let IMA lie.
We had filed a request with the Freedom of Information Act (“FOIA”) when the claimant attended a Consultative Exam (CE) at IMA in January, only to be told when he got there that the doctor wasn't in. We filed the FOIA request because we wanted to show that fraud was being committing, as they denied our client his SSD benefits initially for not attending the CE. Our FOIA request was denied. The evidence in other cases was just as strong, so we can only assume that Social Security did not want to have to explain why IMA lied regarding the CE. The bottom line, do not let IMA lie.
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