According to reference.com, a pontine stroke is one that occurs in the pons, which is a portion of the brain stem. The pons, which is located between the midbrain and medulla, relays messages between the cerebral hemispheres and cerebellum. Common symptoms include double vision, dizziness, vertigo, slurred speech and imbalance.
Being disabled from a condition that is somewhat atypical may have helped one of my client’s get approved for Social Security Disability (“SSD”) benefits. The State agency usually requires claimants to attend a consultative examination (“CE”) that its contracted doctor performs. CE opinions are almost always less supportive than treating doctor opinions.
I represent a claimant who suffered from a pontine stroke. The State agency wanted to send the claimant for a CE to Industrial Medicine Associates (“IMA”), which I objected to for several reasons. On this occasion, the State agency agreed with my request that the claimant’s treating doctor perform the CE.
The treating doctor’s CE report stated that the claimant suffered from slurred speech, imbalance, spasticity and right sided weakness, including abnormal gross and fine manipulation. The CE report also provided a less than sedentary work ability. The State agency approved SSD benefits after receiving the report.
Treating doctors frequently supply opinions that claimants possess less than sedentary work abilities to the State agency, but those opinions are usually rejected in favor of the IMA opinion, or are simply rejected on the grounds that determination of disability is for the State agency to make. It may be possible that because the claimant’s problem was somewhat unusual, IMA lacked a proper doctor to do the CE, and therefore, the State agency agreed to allow the treating doctor to do the CE.
Tuesday, January 17, 2017
Wednesday, December 21, 2016
What is an Administrative Record?
According to the Supreme Court, the administrative record includes all materials compiled by the agency, which were before the agency at the time the decision was made. That definition is well settled. Nonetheless, even though they know that they are not agencies, disability insurance companies constantly argue that the claim file they compile is an administrative record in ERISA benefit actions.
Disability insurers assert that their claim files are administrative records in order to evade discovery. For decades, disability insurers have filed motions “on the administrative record.” Courts regularly hold that no such thing exists, and treat the motions as motions for summary judgment. Insurers misname their motions because summary judgment specifically anticipates that the motion will follow the completion of discovery.
Similarly, disability insurers assert that their claim files are administrative records in order to evade their initial disclosure obligations under Rule 26(1)(1). Unum made that argument in one of my pending cases, but Judge Abrams rejected it today.
Judge Abrams explained that unlike a federal agency, which is statutorily bound to be neutral, insurance companies like Unum are not. As another Court reasoned:
“In an agency proceeding, the court reviews the decision of a board or other agency tribunal that has been authorized by Congress to make such decisions after appropriate administrative proceedings. None of the neutrality or hearing-type protections in those cases is present here.”
Disability insurers assert that their claim files are administrative records in order to evade discovery. For decades, disability insurers have filed motions “on the administrative record.” Courts regularly hold that no such thing exists, and treat the motions as motions for summary judgment. Insurers misname their motions because summary judgment specifically anticipates that the motion will follow the completion of discovery.
Similarly, disability insurers assert that their claim files are administrative records in order to evade their initial disclosure obligations under Rule 26(1)(1). Unum made that argument in one of my pending cases, but Judge Abrams rejected it today.
Judge Abrams explained that unlike a federal agency, which is statutorily bound to be neutral, insurance companies like Unum are not. As another Court reasoned:
“In an agency proceeding, the court reviews the decision of a board or other agency tribunal that has been authorized by Congress to make such decisions after appropriate administrative proceedings. None of the neutrality or hearing-type protections in those cases is present here.”
Wednesday, December 14, 2016
Pain Medicine
According to the American Board of Pain Medicine, pain medicine is concerned with the prevention of pain, and the evaluation, treatment, and rehabilitation of persons in pain. The POMS says there is no specialty board for pain or certification program. The POMS is wrong because the following specialty boards have certifications for Pain Medicine: Anesthesiology, Emergency Medicine, Family Medicine, Physical Medicine and Rehabilitation, Neurology, and Radiology.
I represent a 45 year old former nurse assistant whose application for Social Security Disability (“SSD”) benefits was approved today by an administrative law judge (“ALJ”) on-the-record (“OTR”) without a hearing. The claimant has neck and back problems that cause neck, back, leg, and hand pain, which have persisted despite treatment with the claimant’s board certified physiatrist who is certified in Pain Medicine.
When making its initial SSD decision, the State agency, is supposed to follow the POMS. Perhaps if the POMS correctly recognized that numerous medical specialty boards, including physiatry, maintain certification programs for Pain Medicine, then the State agency would have approved the claimant’s SSD application. Considering that most claimants are disabled by pain, extra weight should be given to pain specialists, regardless of whether there is an independent medical board that is part of the American Board of Medical Specialities.
I represent a 45 year old former nurse assistant whose application for Social Security Disability (“SSD”) benefits was approved today by an administrative law judge (“ALJ”) on-the-record (“OTR”) without a hearing. The claimant has neck and back problems that cause neck, back, leg, and hand pain, which have persisted despite treatment with the claimant’s board certified physiatrist who is certified in Pain Medicine.
When making its initial SSD decision, the State agency, is supposed to follow the POMS. Perhaps if the POMS correctly recognized that numerous medical specialty boards, including physiatry, maintain certification programs for Pain Medicine, then the State agency would have approved the claimant’s SSD application. Considering that most claimants are disabled by pain, extra weight should be given to pain specialists, regardless of whether there is an independent medical board that is part of the American Board of Medical Specialities.
Sunday, November 27, 2016
SSD Approved in 2 Months
I represent a 55 year old sewer superintendent with abdominal and hiatal hernias, glaucoma, diabetes, obesity, and lastly, an ankle problem. The state agency insisted, not once, but twice, that it was “necessary” for the claimant to attend a consultative examination (“CE”) for a “joint problem;” that he “must keep” that appointment.
We advised the State agency that the claimant wanted his treating doctor to perform the CE, as the regulations stipulate. The claimant did not have a CE, yet his application for Social Security Disability (“SSD”) benefits was approved in two months, a few weeks after the State agency told the claimant that he had to go to the CE.
When will the State agency on its own, or at the direction of the Social Security Administration (“SSA”), eliminate the misrepresentative language of the letters notifying claimants about CEs? The notices should not say the CEs are “necessary.” The notices should not say the claimant “must” attend the CE. Most importantly, when will the State agency, or the SSA, require compliance with the regulations that provide CEs should be performed by treating doctors?
We advised the State agency that the claimant wanted his treating doctor to perform the CE, as the regulations stipulate. The claimant did not have a CE, yet his application for Social Security Disability (“SSD”) benefits was approved in two months, a few weeks after the State agency told the claimant that he had to go to the CE.
When will the State agency on its own, or at the direction of the Social Security Administration (“SSA”), eliminate the misrepresentative language of the letters notifying claimants about CEs? The notices should not say the CEs are “necessary.” The notices should not say the claimant “must” attend the CE. Most importantly, when will the State agency, or the SSA, require compliance with the regulations that provide CEs should be performed by treating doctors?
Wednesday, November 16, 2016
Hiring A Vocational Expert
Regardless of the reason why an Administrative Law Judge (“ALJ”) has a vocational expert (“VE”) testify at a hearing for Social Security Disability (“SSD”) benefits, a claimant should consider retaining their own VE.
I represent a former carpenter with hand and shoulder impairments, whose SSD application was approved following an Appeals Council remand. His case turned on a report submitted by his VE.
The Social Security VE at the hearing testified that while the claimant only had use of his left hand and upper extremity, he could do jobs, such as working as a parking attendant and toll collector. I got the VE to admit that her testimony was not based on the Dictionary of Occupational Titles. Furthermore, I persuaded the ALJ that it was poor reasoning to assume that a person without use of their dominant upper extremity could be trusted to park cars safely, or grab money and operate a cash register with one hand.
The claimant’s VE, who has also worked as a VE at SSD hearings, had submitted a report concluding that the claimant was incapable of any full time work due to his impairments. The ALJ gave greater weight to the claimant’s VE, than to the hearing VE. Importantly, that means that the ALJ gave some weight to the hearing VE. Therefore, in the absence of the claimant’s VE, his SSD claim would have been denied.
I represent a former carpenter with hand and shoulder impairments, whose SSD application was approved following an Appeals Council remand. His case turned on a report submitted by his VE.
The Social Security VE at the hearing testified that while the claimant only had use of his left hand and upper extremity, he could do jobs, such as working as a parking attendant and toll collector. I got the VE to admit that her testimony was not based on the Dictionary of Occupational Titles. Furthermore, I persuaded the ALJ that it was poor reasoning to assume that a person without use of their dominant upper extremity could be trusted to park cars safely, or grab money and operate a cash register with one hand.
The claimant’s VE, who has also worked as a VE at SSD hearings, had submitted a report concluding that the claimant was incapable of any full time work due to his impairments. The ALJ gave greater weight to the claimant’s VE, than to the hearing VE. Importantly, that means that the ALJ gave some weight to the hearing VE. Therefore, in the absence of the claimant’s VE, his SSD claim would have been denied.
Wednesday, November 9, 2016
VA Rating & SSD
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.
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.
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.
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