I receive many Social Security Disability referrals for claimants with mental impairments. It seems that unless a mental impairment is so severe that the claimant is hospitalized, the attorney is not interested in handling the claim. That should not be the case.
Like physical impairments, a claimant can establish entitlement to benefits by providing evidence that a "Listing" is satisfied. If the criteria of a listing are met, then the claimant is presumptively deemed disabled, and there is no need to consider if the claimant can perform past or any other work. A claimant's condition needs to be pretty severe to meet a listing.
A case that I got approved this week, for a woman in her thirties, at the initial application level, illustrates another way to get benefits approved. When a claimant's mental limitations do not meet or equal a listing, the Social Security Administration (the "SSA") must consider if the claimant has the ability to meet the mental demands of past relevant work. The SSA is supposed to do that by considering whether the claimant can meet the basic mental demands of unskilled work.
According to the SSA's internal operating rules called the "POMS", the mental demands of unskilled work include the ability to: (a) understand, carry out and remember simple instructions; (b) make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions; (c) respond appropriately to supervision, coworkers and work situations; and (d) deal with changes in a routine work setting. A substantial loss of ability to meet ANY of those basic mental demands justifies a finding that the claimant is disabled.
By providing a detailed questionnaire to the claimant's treating mental health provider, I was able to show that the claimant is disabled under the POMS. Since the POMS is supposed to apply at the initial application level, providing evidence to support the POMS is an effective way to get an application approved quickly.
Friday, May 18, 2007
Friday, May 4, 2007
Don’t Be Misled By A Biased Judge
Many of the Administrative Law Judges (“ALJs”) at the Queens Office of Disability and Adjudication Review have reputations for disapproving strong disability claims. Statistics show that a higher percentage of cases from Queens are overturned compared to other hearing offices. The ALJs often go to extraordinary lengths to justify their denials.
Last week a Queens ALJ stated that because a claimant had not been terminated from her job she was not disabled. I explained that the issue is not whether the claimant was employed in name, but rather whether she was capable of engaging in substantial gainful activity. The ALJ obviously knew he was wrong because for decades the courts have ruled that, “The first step in the sequential process is a decision whether the claimant is engaged in ‘substantial gainful activity.’” Furthermore, the ALJ knows that the regulations state that, “At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.” In other words, in order to avoid approving the claimant’s application, the ALJ was intentionally misapplying the most basic issue at any Social Security Disability hearing.
A claimant unfamiliar with Social Security law would not have thought to question the ALJ’s assertion that because the claimant was not terminated from her job she was not entitled to disability benefits. Neither claimants nor their representatives should blindly accept an ALJ’s opinion of the law. In a situation such as this, I immediately request a copy of the hearing tape and submit a post-hearing memorandum explaining the correct recitation of the law.
Last week a Queens ALJ stated that because a claimant had not been terminated from her job she was not disabled. I explained that the issue is not whether the claimant was employed in name, but rather whether she was capable of engaging in substantial gainful activity. The ALJ obviously knew he was wrong because for decades the courts have ruled that, “The first step in the sequential process is a decision whether the claimant is engaged in ‘substantial gainful activity.’” Furthermore, the ALJ knows that the regulations state that, “At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.” In other words, in order to avoid approving the claimant’s application, the ALJ was intentionally misapplying the most basic issue at any Social Security Disability hearing.
A claimant unfamiliar with Social Security law would not have thought to question the ALJ’s assertion that because the claimant was not terminated from her job she was not entitled to disability benefits. Neither claimants nor their representatives should blindly accept an ALJ’s opinion of the law. In a situation such as this, I immediately request a copy of the hearing tape and submit a post-hearing memorandum explaining the correct recitation of the law.
Saturday, April 21, 2007
LTD Plan Limitations
Many disability plans provide for the payment of benefits through an insurance policy. When an insurance carrier is liable for paying benefits under a disability plan it usually also acts as the plan’s claims administrator. In those circumstances, the insurance carrier has a conflict of interest because if it approves a claim as claims administrator, then it has to pay those benefits under the policy it issued that provides for the payment of benefits. Consequently, the insurance company’s decisions as claims administrator favor avoiding the payment of claims.
One way that carriers avoid liability is by intentionally mischaracterizing physical disability claims as mental disability claims. I just received an approval of both a short and long term disability claim where the carrier’s conflict of interest obviously influenced its decision.
The claimant submitted evidence that her mental and physical impairments precluded her from being able to work. Jefferson Pilot approved disability benefits based upon the mental condition, but asserted that there was insufficient evidence of physical impairments to support total disability. That assertion was false because there was just as much, if not more, evidence to support disability based solely upon the claimant’s physical impairments. As it typical of many disability plans, the claimant’s limited benefits for a mental condition for 24 months. Jefferson Pilot’s decision was a baseless attempt to limit its liability to 24 months.
Under these circumstances, I always send a letter to the carrier immediately, advising that the claimant rejects the decision insofar as it rejected disability benefits based upon the physical impairments. This avoids the carrier from subsequently arguing that a claim based upon physical impairments is waived. I expressly notify the carrier that the claimant will pursue disability benefits beyond 24 months because the medical evidence establishes an inability to work due solely to physical impairments.
One way that carriers avoid liability is by intentionally mischaracterizing physical disability claims as mental disability claims. I just received an approval of both a short and long term disability claim where the carrier’s conflict of interest obviously influenced its decision.
The claimant submitted evidence that her mental and physical impairments precluded her from being able to work. Jefferson Pilot approved disability benefits based upon the mental condition, but asserted that there was insufficient evidence of physical impairments to support total disability. That assertion was false because there was just as much, if not more, evidence to support disability based solely upon the claimant’s physical impairments. As it typical of many disability plans, the claimant’s limited benefits for a mental condition for 24 months. Jefferson Pilot’s decision was a baseless attempt to limit its liability to 24 months.
Under these circumstances, I always send a letter to the carrier immediately, advising that the claimant rejects the decision insofar as it rejected disability benefits based upon the physical impairments. This avoids the carrier from subsequently arguing that a claim based upon physical impairments is waived. I expressly notify the carrier that the claimant will pursue disability benefits beyond 24 months because the medical evidence establishes an inability to work due solely to physical impairments.
Monday, April 16, 2007
Faster Benefit Approval
Regardless of the type of disability benefits that are sought, the claimant must have a doctor who is willing to support the claimant’s inability to work. A corollary is that the more doctors a claimant has who are willing to support the claimant’s inability to work, the faster the application usually gets approved.
A couple of days ago, a Social Security Disability (“SSD”) application I submitted was approved without ever being denied. The claimant’s impairments were typical – neck, back, knee and wrist problems. Because the claimant did not have a very long work history, she was concerned about being approved at all.
The claimant had a spine specialist who fully supported the claimant’s application with treatment records, diagnostic test results and a disability assessment. Many people submit the same type of evidence yet their applications get denied. This requires the claimant to spend more time through the various levels of appeals, securing more reports from and records from doctors, before the application gets approved. The delay can cause financial hardship, and there is no interest for delayed receipt of benefits.
In this case, as well as virtually every case, I advised the claimant to secure supporting evidence from another one of her doctors to corroborate the spine specialist’s findings and conclusions. Because the claimant had only been seeing the spine specialist, in light of her impairments, I advised her to start treating with an arthritis specialist. Eventually, the claimant obtained a disability assessment from the arthritis specialist, and it concurred with that of the spine specialist.
Considering that most SSD applications are denied initially, I believe that this particular claimant’s application was approved from the outset because of the corroborative evidence from the second medical source. My experience has repeatedly shown that absent corroborating medical evidence, an SSD application will not be approved initially unless the situation involves an impairment that simply requires proof that the condition exists, such as blindness or paralysis.
A couple of days ago, a Social Security Disability (“SSD”) application I submitted was approved without ever being denied. The claimant’s impairments were typical – neck, back, knee and wrist problems. Because the claimant did not have a very long work history, she was concerned about being approved at all.
The claimant had a spine specialist who fully supported the claimant’s application with treatment records, diagnostic test results and a disability assessment. Many people submit the same type of evidence yet their applications get denied. This requires the claimant to spend more time through the various levels of appeals, securing more reports from and records from doctors, before the application gets approved. The delay can cause financial hardship, and there is no interest for delayed receipt of benefits.
In this case, as well as virtually every case, I advised the claimant to secure supporting evidence from another one of her doctors to corroborate the spine specialist’s findings and conclusions. Because the claimant had only been seeing the spine specialist, in light of her impairments, I advised her to start treating with an arthritis specialist. Eventually, the claimant obtained a disability assessment from the arthritis specialist, and it concurred with that of the spine specialist.
Considering that most SSD applications are denied initially, I believe that this particular claimant’s application was approved from the outset because of the corroborative evidence from the second medical source. My experience has repeatedly shown that absent corroborating medical evidence, an SSD application will not be approved initially unless the situation involves an impairment that simply requires proof that the condition exists, such as blindness or paralysis.
Monday, April 9, 2007
LTD Approval Letters
In previous blog entries I discussed some of the problems relating to Social Security Administration decisions that purported to be fully favorable, but in actuality were not. The same problem arises in the long term disability context.
After a two and a half year battle, I was finally able to persuade with Trustmark that my client was entitled to benefits under its disability policy. I received a letter that explained the claimant would be paid for the maximum 12 months under the policy. The only problem is that the policy was for a 24 month period. I contacted the claims representative, who said it was an underwriting mistake, and that the matter could be rectified easily.
When finally securing approval of benefits a claimant is apt to be elated and relieved. That euphoria is likely to cause the claimant to overlook the full extent of benefits that may be due. For example, during the period of disability, there is usually a premium waiver, which should be reimbursed, but is frequently disregarded. Care should be taken to ensure that all benefits are correctly calculated and included.
A claimant might also decide to forfeit the full extent of the benefits that are due for fear that the carrier may reverse its position altogether, but that concern should be ignored. If an insurer approves disability benefits, but then reverses its decision after a claimant seeks to recover additional benefits due under a policy, its explanation for the reversal will not be credible. If the matter resorts to litgation any court will readily see through the insurer’s subterfuge.
After a two and a half year battle, I was finally able to persuade with Trustmark that my client was entitled to benefits under its disability policy. I received a letter that explained the claimant would be paid for the maximum 12 months under the policy. The only problem is that the policy was for a 24 month period. I contacted the claims representative, who said it was an underwriting mistake, and that the matter could be rectified easily.
When finally securing approval of benefits a claimant is apt to be elated and relieved. That euphoria is likely to cause the claimant to overlook the full extent of benefits that may be due. For example, during the period of disability, there is usually a premium waiver, which should be reimbursed, but is frequently disregarded. Care should be taken to ensure that all benefits are correctly calculated and included.
A claimant might also decide to forfeit the full extent of the benefits that are due for fear that the carrier may reverse its position altogether, but that concern should be ignored. If an insurer approves disability benefits, but then reverses its decision after a claimant seeks to recover additional benefits due under a policy, its explanation for the reversal will not be credible. If the matter resorts to litgation any court will readily see through the insurer’s subterfuge.
Tuesday, April 3, 2007
Surprise Disability Benefits
Learning the full extent of potential disability benefits is critical when you become unable to work. One of my clients referred a woman who had just stopped working as a cafeteria aide because of a host of orthopedic problems and asthma. The aide was desperate because she had no idea how she would be able to pay her bills. The client who referred the aide to me told her that I could help her get Social Security Disability ("SSD") benefits, just as I had helped her obtain them. However, when I met with the aide she was in for a little surprise.
Upon our initial meeting, I refreshed the aide's recollection that she had a short term disability policy through Aflack. She immediately applied, and shortly thereafter started receiving benefits under that policy, which provided a sense of relief while she awaited the progression of her SSD application. However, the aide was in for a further surprise.
I had asked the aide if she had a long term disability ("LTD") plan through her employer, but she did not know, so I advised her to request a copy of her LTD plan summary plan from her human relations department. It turns out that she does in fact have an LTD plan that can pay up to 60% of her salary, which significantly exceeds her SSD benefit. There was yet another surprise.
During our initial meeting, I asked the aide if she belonged to a union. After learning that she did, and that she had contributed to a pension, I suggested that she request a copy of her union's summary description of the pension plan. It turns out that she will be entitled to receive a disability pension in addition to her other benefits.
When you can no longer work, always investigate what group benefits plans your employer or union have. Besides disability benefits, some plans provide for continued pension credits if disabled, premium waivers for life or health insurance benefits and so on.
Upon our initial meeting, I refreshed the aide's recollection that she had a short term disability policy through Aflack. She immediately applied, and shortly thereafter started receiving benefits under that policy, which provided a sense of relief while she awaited the progression of her SSD application. However, the aide was in for a further surprise.
I had asked the aide if she had a long term disability ("LTD") plan through her employer, but she did not know, so I advised her to request a copy of her LTD plan summary plan from her human relations department. It turns out that she does in fact have an LTD plan that can pay up to 60% of her salary, which significantly exceeds her SSD benefit. There was yet another surprise.
During our initial meeting, I asked the aide if she belonged to a union. After learning that she did, and that she had contributed to a pension, I suggested that she request a copy of her union's summary description of the pension plan. It turns out that she will be entitled to receive a disability pension in addition to her other benefits.
When you can no longer work, always investigate what group benefits plans your employer or union have. Besides disability benefits, some plans provide for continued pension credits if disabled, premium waivers for life or health insurance benefits and so on.
Wednesday, March 21, 2007
Corroborating Physicians
In a prior blog entry, I discussed the importance of having multiple medical treating sources render opinions regarding a long term disability claimant’s inability to work. The same holds true in the Social Security Disability (“SSD”) context.
When handling an SSD case, I always encourage claimants to obtain as many medical source statements as possible. The Social Security laws require controlling weight to be given to the opinion of a treating doctor in many circumstances. Therefore, if the treating doctor supports the SSD claim, then there is a good chance that the claim will be approved. Nonetheless, having corroborating medical opinions can expedite receipt of benefits.
I represent a claimant whose SSD application was denied last Fall. Today, I received a fully favorable decision on the record, which means that the claimant won his case without having to appear at a hearing. The only thing that really changed was that I encouraged the claimant to treat with a second physician. That doctor eventually completed a report that corroborated the findings and conclusions of the claimant’s primary treating doctor.
While the claimant’s application may have been approved at a hearing without the corroborating opinion, the typical hearing wait is close to 24 months. By securing the corroborative medical evidence, the disability case becomes sufficiently clear that a hearing is not warranted. Expedited receipt of benefits can reduce attorney fees and the cost of lost interest, not to mention the benefits obtained from a second medical opinion.
When handling an SSD case, I always encourage claimants to obtain as many medical source statements as possible. The Social Security laws require controlling weight to be given to the opinion of a treating doctor in many circumstances. Therefore, if the treating doctor supports the SSD claim, then there is a good chance that the claim will be approved. Nonetheless, having corroborating medical opinions can expedite receipt of benefits.
I represent a claimant whose SSD application was denied last Fall. Today, I received a fully favorable decision on the record, which means that the claimant won his case without having to appear at a hearing. The only thing that really changed was that I encouraged the claimant to treat with a second physician. That doctor eventually completed a report that corroborated the findings and conclusions of the claimant’s primary treating doctor.
While the claimant’s application may have been approved at a hearing without the corroborating opinion, the typical hearing wait is close to 24 months. By securing the corroborative medical evidence, the disability case becomes sufficiently clear that a hearing is not warranted. Expedited receipt of benefits can reduce attorney fees and the cost of lost interest, not to mention the benefits obtained from a second medical opinion.
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