There is good news for people whose disability claims were terminated or denied by Unum. The Second Circuit's decision in McCauley v. First Unum makes it easier to overturn Unum's decisions in federal court.
The Second Circuit ruled that the Supreme Court's decision in Metropolitan Life v. Glenn requires the district courts to apply a new standard of review to long term disability cases. Applying this standard, the Second Circuit found that the errors Unum committed in reviewing claims, and its conflict of interest as as claim administrator and payor, warranted reversal. The court asked rhetorically, what else could have caused Unum's errors other than its conflict of interest.
The Second Circuit rejected Unum's lip service argument that it considered all of the evidence in making its decision. Perhaps more importantly, the Second Circuit ruled that Unum's cherry picking one medical report "to the detriment of a contrary report that favors granting benefits was ... indicative of an abuse of discretion."
The Second Circuit added that "Unum's history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payor in denying McCauley's claim for benefits." McCauley means that any person whose disability claim was terminated or denied by Unum now has a better chance of winning in federal court. The same applies to other insurers with a history of biased claims administration, such as CIGNA, Hartford, and others who have hidden behind the old standard of review that favored them with an unlevel playing field prior to the Glenn decision.
Monday, December 29, 2008
Saturday, December 20, 2008
Medical Evidence
An application for any type of disability benefits requires submitting medicaI evidence of the alleged disability. There are three basic kinds of medical evidence: treatment records, diagnostic tests, and functional assessments. The failure to submit all three sorts of medical evidence generally results in an application being denied.
I represent a 60 year old alarm system installer with back pain, whose application for Social Security Disability (“SSD”) benefits application was approved three months after it was filed. Not only did I submit the treatment from the claimant’s neurologist and neurosurgeon, but I also provided functional assessments from each, together with the diagnostic tests that each relied upon.
According to statistics from the Social Security Administration, over 60% of SSD applications are denied initially. Submitting treatment records, diagnostic tests, and functional assessments will not guarantee approval. However, the SSD applications that I submit are approved more frequently than 40% of the time, which I attribute to, among other things, submitting the three types of medical evidence.
I represent a 60 year old alarm system installer with back pain, whose application for Social Security Disability (“SSD”) benefits application was approved three months after it was filed. Not only did I submit the treatment from the claimant’s neurologist and neurosurgeon, but I also provided functional assessments from each, together with the diagnostic tests that each relied upon.
According to statistics from the Social Security Administration, over 60% of SSD applications are denied initially. Submitting treatment records, diagnostic tests, and functional assessments will not guarantee approval. However, the SSD applications that I submit are approved more frequently than 40% of the time, which I attribute to, among other things, submitting the three types of medical evidence.
Prior Applications
Just because you receive a “Fully Favorable” decision from the Social Security Administration (“SSA”) doesn’t mean that you will receive all the Social Security Disability (“SSD”) benefits to which you may be entitled. There are countless possible mistakes that a decision may contain. It is important to read a decision carefully, even when it is labeled “Fully Favorable”.
In January, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. Even though it is very difficult for a claimant to establish the onset of a disability when it is many years prior to the filing date, I was able to get the claimant’s SSD application without a hearing.
When I read the fully favorable decision it found that the claimant became disabled December 31, 2001, and approved benefits based on the January 2008 application. However, I advised the SSA that the claimant filed prior application in February 2006 before retaining me, which alleged the same disability onset date. I also provided the SSA with the written request that I had made to reopen the prior application.
Today I received a “Reopened and Revised” Decision that awarded SSD benefits based upon the February 2006 application. The result is that the claimant will receive 23 months, nearly two years, of additional benefits
In January, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. Even though it is very difficult for a claimant to establish the onset of a disability when it is many years prior to the filing date, I was able to get the claimant’s SSD application without a hearing.
When I read the fully favorable decision it found that the claimant became disabled December 31, 2001, and approved benefits based on the January 2008 application. However, I advised the SSA that the claimant filed prior application in February 2006 before retaining me, which alleged the same disability onset date. I also provided the SSA with the written request that I had made to reopen the prior application.
Today I received a “Reopened and Revised” Decision that awarded SSD benefits based upon the February 2006 application. The result is that the claimant will receive 23 months, nearly two years, of additional benefits
Tuesday, December 16, 2008
Disability is Functionality
Claimants always seem surprised to learn that their disability applications have been denied even though their doctors provided a letter stating that their patient is disabled or their medical records show that they have a medical condition. The surprise stems from the fact that disability decisions are primarily based upon an individual's functional capacity as opposed to his or her doctor's opinion or diagnosis.
Different disability programs or policies use different definitions of disability. For example, you may need to show you cannot do any type of work for Social Security or Long term Disability; whereas, you may need to show you cannot do your past work for worker's compensation or disability retirement. The claim adjudicator will not assume that the doctor knows the proper definition of disability. Instead, the claim adjudicator will decide if you have the mental and physical ability to do a particular job or category of work.
Applications are frequently denied on the grounds that while a person has a medical problem, there is no evidence that it is severe enough to preclude work. To avoid this, a claimant needs to submit evidence regarding functional limitations, and one way to do is through a disability assessment.
I represent a 61 year old college educated electrician whose only impairment was a bad hip. However, the treating doctor's disability assessment stated that the claimant lacked the functional capacity to stand or walk for more than 1 hour a work day, which precludes any type of work. The claimant's application was approved, not because his doctor stated he was disabled, but because his doctor specified his limited functional ability.
Different disability programs or policies use different definitions of disability. For example, you may need to show you cannot do any type of work for Social Security or Long term Disability; whereas, you may need to show you cannot do your past work for worker's compensation or disability retirement. The claim adjudicator will not assume that the doctor knows the proper definition of disability. Instead, the claim adjudicator will decide if you have the mental and physical ability to do a particular job or category of work.
Applications are frequently denied on the grounds that while a person has a medical problem, there is no evidence that it is severe enough to preclude work. To avoid this, a claimant needs to submit evidence regarding functional limitations, and one way to do is through a disability assessment.
I represent a 61 year old college educated electrician whose only impairment was a bad hip. However, the treating doctor's disability assessment stated that the claimant lacked the functional capacity to stand or walk for more than 1 hour a work day, which precludes any type of work. The claimant's application was approved, not because his doctor stated he was disabled, but because his doctor specified his limited functional ability.
Thursday, December 4, 2008
Medical Records & Reports
Unless you are paralyzed or blind, simply submitting your medical records is unlikely to result in an award of benefits. The claims adjudicator usually states that the diagnosis is not disputed, only its severity. In other words, disability claims are denied because the medical records do not indicate how the medical condition is severe enough to interfere with work duties.
In cases before the Social Security Administration (“SSA”), as mentioned in my prior blog entry, one way to establish that a condition is severe enough to preclude work is to provide evidence that a condition meets a listing. I represent a 51 year old former real estate representative who retained me after his application for Social Security Disability (“SSD”) benefits was denied by the Stroudsburg, PA district office. Two weeks after I submitted a request for a fully favorable decision on the record (“OTR”), the SSD application was approved by the Wilkes Barre hearing office.
The OTR did not submit new medical records. Instead, I had the treating doctor complete a functional assessment that indicated the claimant met a listing, together with a brief narrative report explicitly stating that the claimant met the listing. The gist of the decision was that the claimant met the listing, and was found presumptively disabled.
In cases before the Social Security Administration (“SSA”), as mentioned in my prior blog entry, one way to establish that a condition is severe enough to preclude work is to provide evidence that a condition meets a listing. I represent a 51 year old former real estate representative who retained me after his application for Social Security Disability (“SSD”) benefits was denied by the Stroudsburg, PA district office. Two weeks after I submitted a request for a fully favorable decision on the record (“OTR”), the SSD application was approved by the Wilkes Barre hearing office.
The OTR did not submit new medical records. Instead, I had the treating doctor complete a functional assessment that indicated the claimant met a listing, together with a brief narrative report explicitly stating that the claimant met the listing. The gist of the decision was that the claimant met the listing, and was found presumptively disabled.
Friday, November 28, 2008
Depression & OCD
Many people with mental impairments do not seek Social Security Disability (“SSD”) benefits because they have been told that it is too hard to show that their condition renders them unable to work. It is true that there are few diagnostic tests to establish the severity of a mental impairment, and it is also true that the Social Security Administration (“SSA”) is more reluctant to approve claims that based upon subjective evidence. However, obtaining a “listing” opinion can help
overcome those problems.
In pursuing SSD benefits, it is very beneficial to submit the opinion of a treating psychologist or psychiatrist regarding what is known as a “Listing”. If a claimant meets the criteria of a “Listing,” then the claimant is considered presumptively disabled and entitled to receive disability benefits. Even if the SSA rejects the listing opinion, which can provide procedural bases for reversal, the opinion increases the likelihood that the claimant will be found disabled for lacking the mental residual functional capacity (“RFC”) to work.
I represent a 53 year former advertising sales representative afflicted with depression and obsessive compulsion disorder, who applied for SSD benefits over five years ago. The claimant retained me shortly before his hearing. I was able to secure a listing opinion cosigned by the claimant’s psychiatrist and psychologist.
The SSA found claimant disabled based upon his RFC not listing. However, both the hearing and decision were relatively brief, which leads me to believe that the listing opinion served its purpose.
overcome those problems.
In pursuing SSD benefits, it is very beneficial to submit the opinion of a treating psychologist or psychiatrist regarding what is known as a “Listing”. If a claimant meets the criteria of a “Listing,” then the claimant is considered presumptively disabled and entitled to receive disability benefits. Even if the SSA rejects the listing opinion, which can provide procedural bases for reversal, the opinion increases the likelihood that the claimant will be found disabled for lacking the mental residual functional capacity (“RFC”) to work.
I represent a 53 year former advertising sales representative afflicted with depression and obsessive compulsion disorder, who applied for SSD benefits over five years ago. The claimant retained me shortly before his hearing. I was able to secure a listing opinion cosigned by the claimant’s psychiatrist and psychologist.
The SSA found claimant disabled based upon his RFC not listing. However, both the hearing and decision were relatively brief, which leads me to believe that the listing opinion served its purpose.
Friday, November 14, 2008
Medical Specialists
Disability claims usually come down to a battle between your doctors and the those representing the insurance company or agency responsible for paying the disability benefits. Therefore, the more highly credentialed your doctors are, the less likely the chances are that your claim will be denied
A recent blog entry of mine described the case of a floor trader whose disability claim was based on uveitis. The claimant was treated by Michael Samson, who is widely renowned as one of the leading uveitis specialists in the United States. Unum approved long term disability after recognizing that it could not find a doctor capable of credibly contradicting Dr. Samson’s findings and conclusions.
Your doctor’s credentials can be just as important when seeking Social Security Disability (“SSD”) benefits. I represent a 47 year old school bus driver whose SSD application was approved in only two months. More to the point, the application was approved less than two weeks after submitting a form medical report from the claimant’s treating physician.
I have had many other older and less educated claimants with similar medical findings and conclusions whose applications were not approved until a hearing, or after an initial denial. The difference this time was that the treating physician made his credentials available. While other physicians may have credentials that are just as impressive, those facts are unknown to the analysts making the benefit determination. Therefore, when submitting medical evidence from a treating source, if at all possible, that doctor’s credentials should be provided.
A recent blog entry of mine described the case of a floor trader whose disability claim was based on uveitis. The claimant was treated by Michael Samson, who is widely renowned as one of the leading uveitis specialists in the United States. Unum approved long term disability after recognizing that it could not find a doctor capable of credibly contradicting Dr. Samson’s findings and conclusions.
Your doctor’s credentials can be just as important when seeking Social Security Disability (“SSD”) benefits. I represent a 47 year old school bus driver whose SSD application was approved in only two months. More to the point, the application was approved less than two weeks after submitting a form medical report from the claimant’s treating physician.
I have had many other older and less educated claimants with similar medical findings and conclusions whose applications were not approved until a hearing, or after an initial denial. The difference this time was that the treating physician made his credentials available. While other physicians may have credentials that are just as impressive, those facts are unknown to the analysts making the benefit determination. Therefore, when submitting medical evidence from a treating source, if at all possible, that doctor’s credentials should be provided.
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