NYS OTDA Fraud Update

A year ago, I posted about unacceptable conduct committed by the New York State Office of Temporary Disability Assistance (the “OTDA”). Unfortunately, there has been no change in the OTDA’s conduct. 

I represent a 54 year old with diabetes, and neck, back, and hand problems, who earned over $100,000 annually working as a steamfitter for 28 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue. 

Once again, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the Social Security Disability (“SSD”) application. 

In 2014, the OTDA told the claimant that he was required to go to a consultative exam (“CE”). The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE, but when scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named A. Washington claimed that there was no treating doctor to perform the CE, and that the claimant had no medical opinion about his being disabled. However, each of those statements was patently false. 

The SSA’s file revealed numerous documents listing the doctors who had been treating the claimant. Moreover, the SSA file contained, not one, but two, reports from treating physicians detailing the reasons why the claimant lacked the physical capacity to work. A. Washington simply lied; i.e., committed fraud, which is knowingly doing or saying something that was false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. 

The SSA reversed the OTDA denial on appeal, at a rapid hearing where the medical and vocational experts immediately testified in the claimant’s favor. 

Any type of incident where the OTDA misrepresents the truth should be reported to the SSA Inspector General.

SSD Approved in Less Than Months

The Deputy Commissioner of the Office of Disability Adjudication and Review (“ODAR”) of the Social Security Administration (“SSA”) is Theresa Gruber. According to Ms. Gruber, the 1.1 million pending hearings at ODAR is a record high, as is the 543 days on average that it takes ODAR to process a claim. Fortunately, I represent a former 58 year old plumber whose Social Security Disability (“SSD”) application was approved in about a month and half, so he avoided the ODAR delays. 

The plumber had two bad knees, one of which had been surgically replaced. I obtained a report from the claimant’s surgeon detailing how the claimant could not stand, walk, and sit anywhere near the number of hours required to perform full time work. However, many claimants provide similar medical support without getting approved so quickly. So what happened here? 

The claimant worked as a plumber for 32 years, earning a six figure income. While the SSA denial rates have increased, there seems to be a trend of approving SSD applications more quickly when the claimant has a protracted work history with a high income. It may be that in light of the hearing backlog, state agencies are being less rigorous when claimants have a protracted work history with a high income because common sense dictates that such a person would continue to work if they could.

Padro Benefits

The Padro class action provided disability claimants with new hearings if their case was denied by the five defendant Queens ALJs. I represented a 40 year old pharmaceutical territory manager whose Social Security Disability (“SSD”) was denied by one of the Padro ALJs, and succeeded in winning her case after a new hearing by a non-Padro ALJ. Although it took over a year, she will finally receive her SSD benefits, which will exceed $200,000.

Social Worker’s Opinion

In general, Social Security will only give controlling weight to the opinion of a medical doctor. However, under certain circumstances, Social Security will give greater weight to the opinions of those who are not deemed acceptable treating sources. 

I represent a 36 year old teacher whose Social Security Disability (“SSD”) benefits were approved today based largely on the opinion of a Social Worker. The Social Security rules provide that evidence from non-acceptable medical sources can be used to show the severity of the individual's impairment(s) and how it affects the individual's ability to function just as an acceptable medical source. In fact, 06-3p states that in some circumstances, such as when the source frequently treats the claimant over a long period of time, the non-acceptable source’s opinion can be given even greater weight than an accepted medical source. 

The Social Worker was found to treat the claimant frequently, and because of his special knowledge of the claimant, was believed to have insight into the severity of the mental impairment. The functional limitations identified by the Social Worker were found to preclude the claimant from working. Opinions regarding the restrictions and limitations caused by medical conditions should always be sought from anyone who treats those conditions even if they are not medical doctors.

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.

Lymphedema

Lymphedema refers to swelling that generally occurs in the arms or legs, which is usually caused by the removal of, or damage to, your lymph nodes. The swelling occurs from a blockage in your lymphatic system that prevents lymph fluid from draining well, and the fluid buildup leads to swelling and frequently causes pain and reduced mobility. According to webmd, elevating the swollen arm or leg can help drain lymph fluid from the affected limb. 

I represent a 51 year old former art director with lymphedema whose Social Security Disability application was approved today. A key reason for the approval was the opinion of the treating physician, who opined that the claimant should elevate her leg hourly, which the vocational expert said precluded work. The Administrative Law Judge gave great weight to that doctor’s opinion, and accepted the vocational expert’s opinion.

Significant Weight Suffices

Social Security Administration (“SSA”) regulations require Administrative Law Judges (“ALJs”) to assign weight to all medical opinions. ALJs must also discuss the factors explaining the level of weight assigned. The question arises, if your doctor’s opinion supports your disability claim, then how much weight does an ALJ need to assign that opinion for you to win? 

An ALJ gives controlling weight to an opinion if it is well-supported by medically recognized clinical and laboratory diagnostic techniques, and is not inconsistent with the rest of the medical evidence. That requires the ALJ to approve disability benefits. However, what happens if the ALJ gives less than controlling weight to your doctor’s opinion, can you still win your case? 

The answer is yes. Frequently, ALJ’s give great or greatest weight to treating physician opinions when they approve disability benefits. I represent a 38 year old former administrative assistant and stockbroker whose Social Security Disability application was approved today after the ALJ gave “significant weight” to the opinions of four treating specialists.