I represent a former mail carrier seeking Social Security Disability (“SSD”) benefits, who the Department of Veterans Affairs (“DVA”) had rated as 90% disabled. More importantly, the DVA states that the claimant was ”totally and permanently disabled due solely to your service connected disabilities.”
Last year, the Seventh Circuit ruled that great – not some - weight should be given to a DVA disability finding of 70% because any differences between the VA and SSA disability criteria are small. While the administrative law judge (“ALJ”) approved my client’s SSD claim after a hearing, he only gave the VA disability some weight.
The Seventh Circuit approach makes more sense. The VA and SSA are both federal agencies with the same task; deciding whether a claimant is totally disabled from being able to work. Considering that the Seventh Circuit ruled that a VA rating of 70% should be given great weight, there is even more reason to give a VA rating of 90% great weight. Had the ALJ given the 90% VA rating great weight, then there would have been little or no need to conduct a hearing, which is important since the wait for a hearing is now nearing two years.
Wednesday, November 9, 2016
Monday, October 17, 2016
NYSLERS Approval
I represent a 53 year old former toll collector with chronic fatigue syndrome, arthritis, depression,and anxiety impairments whose application for an Article 15 disability application was approved today. NYSLERS requested the identical information more than once, and in fact, the entire application needed to be resubmitted. This is a common occurrence, and claimants should regularly contact NYSLERS for status updates to ensure their application is being processed properly.
NYSLERS determined that the claimant is permanently incapacitated from performing the duties of her job. The decision comes as little surprise since the Social Security Administration found the claimant disabled from her past work as well as any other work.
NYSLERS determined that the claimant is permanently incapacitated from performing the duties of her job. The decision comes as little surprise since the Social Security Administration found the claimant disabled from her past work as well as any other work.
Monday, September 26, 2016
Second Circuit Case
Judge Bianco of the Eastern District of New York recently rejected the decision of an ALJ, which denied Social Security Disability benefits to my client. Judge Bianco accepted my argument that the reasons the Social Security Administration (“SSA”) gave for rejecting the treating doctor’s opinion were “post hoc”.
I have a case that was just argued before the Second Circuit involving another claimant, Botta v. Colvin. The district court judge accepted the SSA arguments as to why the ALJ properly rejected the treating doctor’s opinion that the claimant could not use her legs to work as a sewing machine operator. My argument was that the SSA arguments were never made by the ALJ, rendering them impermissibly post hoc.
Hopefully, the Second Circuit will agree, and end the claimant’s 15 year struggle for SSD benefits.
I have a case that was just argued before the Second Circuit involving another claimant, Botta v. Colvin. The district court judge accepted the SSA arguments as to why the ALJ properly rejected the treating doctor’s opinion that the claimant could not use her legs to work as a sewing machine operator. My argument was that the SSA arguments were never made by the ALJ, rendering them impermissibly post hoc.
Hopefully, the Second Circuit will agree, and end the claimant’s 15 year struggle for SSD benefits.
Friday, September 16, 2016
PRUDENTIAL LTD FRAUD
When Prudential was forced to conclude that a long term disability (“LTD”) claimant lacked full time work capacity and had reached maximum medical capacity, it transferred that claim to its Mature Claim Team (“MCT”). The MCT was the place for claims where Prudential recognized it was liable for having to pay LTD benefits for the maximum duration under Prudential’s LTD policies. Since MCT claims involved claimants with permanent or progressive medical conditions, as a cost saving measure, Prudential’s procedures required that MCT claims be reviewed less often.
I am currently litigating two cases in federal court with Prudential. Both plaintiffs have permanent and progressive medical conditions, and were paid LTD benefits for over a decade. Prudential had concluded that both plaintiffs lacked full time work capacity and had reached maximum medical improvement. Consequently, Prudential transferred each plaintiff’s claims to Prudential’s MCT.
Even though Prudential had determined that each plaintiff had medical problems that had reached maximum medical improvement, and therefore, would never change for the better, in 2014, Prudential decided that it needed each plaintiff’s doctors to explain why their patients remained disabled. After each of the plaintiff’s doctors did so, Prudential then had its own doctors reject the opinions of each plaintiff’s doctors in order to conclude that the plaintiffs were no longer disabled. In both cases, Prudential failed to identify any medical test or exam finding that had changed between the time Prudential found the plaintiffs disabled and no longer disabled.
The similarities between the two cases are obviously no coincidence. Prudential made the business decision to invade the MCT in 2014 in order to increase its profitability by reducing those MCT reserves. Its strategy was to get the treating doctors to say the claimants had work capacity, and if the doctors refused to buy into that argument, then Prudential would have its doctors reject the opinions of the treating doctors.
If Prudential terminated your LTD benefits, demand a copy of your claim file. Check to see if your file contains references about Prudential transferring your claim to its MCT or TRT. Also, check to see if your file contains references to NC/M, which means Prudential determined that you lack work capacity and have reached maximum medical improvement, which might be abbreviated as MMI. I would appreciate hearing if you were subjected to this particular bad faith practice and pattern of Prudential’s.
I am currently litigating two cases in federal court with Prudential. Both plaintiffs have permanent and progressive medical conditions, and were paid LTD benefits for over a decade. Prudential had concluded that both plaintiffs lacked full time work capacity and had reached maximum medical improvement. Consequently, Prudential transferred each plaintiff’s claims to Prudential’s MCT.
Even though Prudential had determined that each plaintiff had medical problems that had reached maximum medical improvement, and therefore, would never change for the better, in 2014, Prudential decided that it needed each plaintiff’s doctors to explain why their patients remained disabled. After each of the plaintiff’s doctors did so, Prudential then had its own doctors reject the opinions of each plaintiff’s doctors in order to conclude that the plaintiffs were no longer disabled. In both cases, Prudential failed to identify any medical test or exam finding that had changed between the time Prudential found the plaintiffs disabled and no longer disabled.
The similarities between the two cases are obviously no coincidence. Prudential made the business decision to invade the MCT in 2014 in order to increase its profitability by reducing those MCT reserves. Its strategy was to get the treating doctors to say the claimants had work capacity, and if the doctors refused to buy into that argument, then Prudential would have its doctors reject the opinions of the treating doctors.
If Prudential terminated your LTD benefits, demand a copy of your claim file. Check to see if your file contains references about Prudential transferring your claim to its MCT or TRT. Also, check to see if your file contains references to NC/M, which means Prudential determined that you lack work capacity and have reached maximum medical improvement, which might be abbreviated as MMI. I would appreciate hearing if you were subjected to this particular bad faith practice and pattern of Prudential’s.
Sunday, September 11, 2016
District Court Rejects SSA Denial
I represent a claimant whose Social Security Disability (“SSD”) claim was denied by Administrative Law Judge (“ALJ”) Seymour Rayner on the grounds that she could do sedentary work. My appeal to federal court was granted today by Judge Joseph Bianco.
The ALJ, as well as the Appeals Council, ignored the report from the claimant’s rheumatologist because she started treating the claimant after her date last insured. I argued that treating physicians are allowed to provide retrospective opinions. The Judge agreed. I also argued that every argument the SSA made in support of denying SSD benefits was never made by the ALJ, and therefore had to be rejected as post hoc. The Judge also agreed.
The ALJ, as well as the Appeals Council, ignored the report from the claimant’s rheumatologist because she started treating the claimant after her date last insured. I argued that treating physicians are allowed to provide retrospective opinions. The Judge agreed. I also argued that every argument the SSA made in support of denying SSD benefits was never made by the ALJ, and therefore had to be rejected as post hoc. The Judge also agreed.
Friday, September 9, 2016
Macroprolactinoma
Prolactinomas are the most common type of pituitary adenomas. Macroprolactinoma is a prolactin secreting pituitary tumor more than 10 mm in diameter that causes serum prolactin levels higher than 500ng per mL. These tumors commonly cause symptoms due to the excessive production of prolactin as well as complaints caused by tumor mass and compression of neural adjacent structures.
I represent a claimant with chronic fatigue, dizziness, and disturbed sleep that his physician attributes to extensive and inoperable macroprolactinoma. The Social Security Disability (“SSD”) application was approved in three months, but then was held up for an extra review. I suspect that the State agency found the medical evidence compelling. However, as the medical condition is somewhat atypical, it appears that further investigation was deemed necessary.
Whenever I represent a claimant with a condition that is less common, I submit third party medical support from the internet. Care needs to be taken to ensure that the source is reliable. For example, medical information from government websites, the Mayo Clinic, WebMD etc. The State agency frequently questions the reliability of treating physician opinion, but it is difficult to reject the information about a medical condition’s symptoms and resultant limitations when it comes from what the State agency would consider to be a disinterested source.
I represent a claimant with chronic fatigue, dizziness, and disturbed sleep that his physician attributes to extensive and inoperable macroprolactinoma. The Social Security Disability (“SSD”) application was approved in three months, but then was held up for an extra review. I suspect that the State agency found the medical evidence compelling. However, as the medical condition is somewhat atypical, it appears that further investigation was deemed necessary.
Whenever I represent a claimant with a condition that is less common, I submit third party medical support from the internet. Care needs to be taken to ensure that the source is reliable. For example, medical information from government websites, the Mayo Clinic, WebMD etc. The State agency frequently questions the reliability of treating physician opinion, but it is difficult to reject the information about a medical condition’s symptoms and resultant limitations when it comes from what the State agency would consider to be a disinterested source.
Work Record
Never under estimate the importance of a claimant’s work record when an administrative law judge (“ALJ”) adjudicates a Social Security Disability (“SSD”) application.
The ostensible purpose of a hearing is to enable an ALJ to assess a claimant’s credibility. Since claimants say they are disabled when they file an SSD application, if their credibility is accepted, then they are usually approved for SSD benefits. Even when a claimant has submitted objective diagnostic tests that provide strong support of disability, ALJ’s frequently hold hearings.
I represent a 55 year old former cost accountant with knee and back impairments. Even though there were a dozen supporting MRIs, and the claimant had a 40 year work record, the ALJ held a hearing. However, because the ALJ found the claimant had “a solid wage history,” he accepted the claimant’s complaints about pain and the need to lie down during the day, which the vocational expert stated precluded gainful activity.
The ostensible purpose of a hearing is to enable an ALJ to assess a claimant’s credibility. Since claimants say they are disabled when they file an SSD application, if their credibility is accepted, then they are usually approved for SSD benefits. Even when a claimant has submitted objective diagnostic tests that provide strong support of disability, ALJ’s frequently hold hearings.
I represent a 55 year old former cost accountant with knee and back impairments. Even though there were a dozen supporting MRIs, and the claimant had a 40 year work record, the ALJ held a hearing. However, because the ALJ found the claimant had “a solid wage history,” he accepted the claimant’s complaints about pain and the need to lie down during the day, which the vocational expert stated precluded gainful activity.
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