Unum Games

A Long Term Disability (“LTD”) claims administrator is usually the insurance company that issues the policy that is liable for paying disability benefits under an LTD Plan. Since approving a claim means the insurer has to pay for it, the insurer goes out of its way to deny claims. Securing LTD benefits usually entails fighting to make sure the insurance company fulfills its fiduciary obligation to pay LTD benefits when a claimant is disabled.

I represent a claimant who worked on the floor of the New York Stock Exchange (the “NYSE”). After a year long battle with Unum I had the claimant’s doctors and vocational expert rebut all of the findings and conclusions of Unum’s in house and outside medical and vocational reviews. Incredibly, after Unum approved the claim in writing and via telephone, it then contended that it had not approved the claim, and would now require IMEs and their doctors contacting the treating doctors.

I told Unum that any IME or contact with the treating doctors would have to take place with my presence or another person of my choosing. Unum then decided to forego the IME, and after I arranged and participated in the first “peer to peer” phone call, Unum stated that the claimant’s application had been approved. But, once again, Unum decided to play games.

Relying on verbal evidence from an H.R. person who did not even work while the claimant was employed at his former company, Unum asserted that the claimant worked for more than 30 continuous days in 2007, ending in April 2007. That conclusion meant that LTD benefits would be denied from December 2006 through May 2007. I filed a second appeal to insist that benefits commence as of December 2006.

Working on the NYSE requires a security card. On the appeal, I submitted a statement from the General Counsel of the NYSE averring that the claimant only worked in 2007 for an 8 day period. Faced with that undeniable evidence, Unum finally agreed to pay the claimant his full entitlement to LTD benefits.

Vocational Evidence

Vocational evidence is just as important as medical evidence when applying for disability benefits. I just received an approval on an application for Social Security Disability (“SSD”) benefits after three months. The medical evidence was similar to that many other SSD applications that take several times as long to get approved. The difference was emphasizing the vocational evidence.

The claimant was 61 years old. I highlighted that when a person is over 60 years of age the regulations require “very little, if any, vocational adjustment” to another occupation. In other words, it is very hard to argue that an older person can work at a new occupation.

The claimant’s past work was medium to heavy. That was another critical piece of vocational evidence because of its application to the Social Security medical-vocational rules. Those rules provide that even if the medical evidence shows that the claimant could do sedentary work, he must be found disabled.

Lastly, the claimant had a nearly 45 year work history. The case law makes clear that a claimant with a long work history should be found credible. Essentially, the courts are saying that the good work ethic shows that the claimant would continue to work if able to do so. It was important to stress what the courts say about a lengthy work history because the regulations only focus on the last 15 years of a person’s work history.

Other claimants with medical evidence similar to that of this client have taken longer to get approved, and some were even denied initially. Letting Social Security know that you are aware of the significance of the vocational evidence reduces the chances that it will deny your application.

Credit Disability Insurance

Credit Disability Insurance (“CDI”) pays a monthly benefit to a lender equal to the amount of a loan’s monthly payment if you become disabled. Like other types of disability insurance, there may be a waiting period before a benefit is paid and many of negotiable terms and conditions. CDI can apply to almost any type of loan, such as loans to cover the purchase of appliances, motor vehicles and farm equipment, as well as educational, credit card, home equity and mortgage loans.

If your CDI is denied or terminated, you can contest the decision. I represent a former firefighter whose CDI was terminated after two years on the grounds that, while he could not work as a firefighter, he could do other types of work. Since I had won the claimant’s Social Security Disability case, which required showing that he was unable to do any other type of work, I strongly advised him to appeal the decision.

“Fully Favorable” Decisions

Just because a Social Security Disability hearing decision is entitled “fully favorable” does not mean that the claimant will receive all the benefits to which he or she is entitled. Not infrequently, there is an error regarding the disability onset date or application filing date that reduces the amount of the claimant’s retroactive benefit.

I represent a 60 year old court reporter who received a “fully favorable” decision today that in fact, is not fully favorable. While the ALJ issued the decision with the correct onset date, he neglected to cite the correct application filing date. This has the effect of reducing her retroactive benefit.

At the hearing, I pointed out that April 27, 2007 was the wrong application date because I had filed it via certified mail on February 19, 2007. Not only did the receipt show that date, but an administrative exhibit confirmed that the application was submitted on February 19, 2007. Moreover, I gave the ALJ a blank application claim form sent by a person from the district office, with that person’s initials and date of July 27, 2006 handwritten on the form.

The claimant stopped working in June 2005. Therefore, regardless of whether the actual February 19, 2007 filing date, or July 27, 2006 protective filing date, is used, the claimant is entitled to additional benefits. These circumstances require a letter to the ALJ to revise the decision; otherwise, an appeal needs to be filed.

Treating Sources

When applying for Social Security Disability (“SSD”) benefits you should identify all of your treating doctors, even those who are not treating your primary impairment. I represent a 49 year old whose biggest problem is lymphoma, but she also suffers from autoimmune disease and chronic fatigue syndrome. I was able to obtain her SSD benefits in less than two months, which I attribute to identifying all of her treating sources.

The claimant has been treating with three oncologists for her lymphoma. It is not uncommon for the Social Security Administration (the “SSA”) to deny application of claimants who have been diagnosed with lymphoma or breast cancer for example. What differed here was the claimant’s additional treatment for autoimmune disease and chronic fatigue. In addition to the oncologists, I provided the SSA with the treating source information for the three internists, five gastroenterologists, four rheumatologists, and three other doctors that the claimant has been seeing for her medical conditions.

A cynic might conclude that the disability examiner assigned to the claimant’s case simply wanted to avoid all the work required to develop the claimant’s application. However, since an approval in less than two months is relatively rare, as is a claimant who is treating with nearly 20 doctors, logic dictates that recognizing the scope of the claimant’s treatment was the reason for rapid approval. While this may be an extreme example, it remains advisable to identify every medical source who treats a condition that can impact one’s ability to work.

Using Vocational Evidence To Expedite Benefits

I represent a 56 year claimant whose application for Social Security Disability (“SSD”) benefits was denied even though her internist of 20 years, physiatrist, psychologist and chiropractor, all provided a very restricted residual physical and mental functional capacity. Therefore, I submitted a on-the-record (“OTR”) request for a fully favorable decision.

The hearing office said that a report from the claimant’s cardiologist indicated the claimant was able to exercise, which was deemed to be inconsistent with the claimant’s orthopedic injuries. Therefore, the hearing office said that a hearing was needed so the Administrative Law Judge could evaluate the claimant’s credibility. As a result, the OTR had not been approved, and the claimant would have to await a hearing. The current hearing back log is 18-24 months.

I asked to speak with the staff attorney reviewing the case. I pointed out that the claimant was over 55 years of age, and had a 30 year work history. I explained that the case law provides that a claimant with a long work history is entitled to an inference that when she stopped working she did so for the reasons testified to. I added that for the last 15 years of her career, the claimant was employed at a variety of occupations that were all of light work, and those jobs averaged well over $100,000 a year. By 2003, when the claimant’s medical conditions made her stop working, she was earning close to $300,000 annually. Therefore, the vocational evidence was objective proof that the claimant was credible, and thus, no hearing was needed.

The OTR was approved today. The result is that the claimant will receive her SSD benefits close to 2 years earlier than would have otherwise been the case. This is one of the many reasons why it is important to establish a rapport with the hearing office staff attorneys.

SSD & Mental Disability

I represent a 44 year old former CEO of a construction company, who became unable to work because of mental impairments. When evaluating mental disability, the Social Security Administration (“SSA”) frequently fails to understand that a person may be entitled to Social Security Disability “SSD” benefits even if the claimant does not meet a “Listed” mental impairment. A listed impairment is a medical condition that is considered so severe that the claimant is automatically deemed disabled.

The claimant was denied benefits despite the fact that his treating psychologist provided a written explanation as to why the claimant met listings for depression and anxiety. Nonetheless, I argued that that the claimant’s mental impairments required finding him disabled under the SSA’s Program Operations Manual System ("POMS"). When a claimant alleges a mental limitation that does not meet or equal a listing, the POMS says the SSA must consider whether the claimant has the ability to meet the mental demands of his past relevant work, and if not, whether he has the ability to adjust to other work considering his remaining mental and other functional capacities and vocational factors.

I secured a report from the claimant’s psychologist specifying how the claimant was unable to meet the basic mental demands of unskilled work. Based on those limitations, I submitted an on-the-record request to approve the claimant’s application to the SSA, which was granted five weeks later. As a result, the claimant avoided the nearly two year wait for a hearing