A state agency makes the initial decision whether to approve applications for Supplemental Security Income (“SSI”). Unlike a claim for Social Security Disability benefits, an SSI applicant also has to show that he or she lacks financial assets to receive benefits.
A claimant came to me after her SSI application was denied. I immediately appealed and submitted additional medical evidence. Sometimes the state agency reviews its initial decisions on its own as part of a quality review process. When inquiring why I had not received a copy of the file exhibits, and why the case had not been transferred to the hearing office, I learned that the state agency was re-evaluating the application in light of the additional medical evidence that I had submitted.
Based upon the additional review performed by the state agency, the Social Security Administration (the “SSA”) issued a Notice of Decision (the “Notice”). The Notice said that the claimant met the medical requirements for disability benefits, but that a decision regarding the nonmedical requirements was pending. I regularly get calls from clients who are concerned or unclear about what these Notices mean.
The Notice states that the SSA has concluded that the medical evidence supports the claimant’s allegations that he or she is disabled. However, before benefits can be approved, an SSI applicant also has to show that he or she lacks financial assets, and that is what the Notice refers to as the nonmedical requirements.
Thursday, February 26, 2009
Wednesday, February 25, 2009
Vocational Experts
There are two types of experts who may appear at Social Security Disability hearings; a medical expert and/or a vocational expert (“VE”). The typical role for a VE is answering whether a claimant can do work other than his or his past work.
Claimants have the right to ask the VE questions. My cross examinations have lasted over an hour, and cover countless topics, much of which relates to the VE’s background and methodology as opposed to the particulars of the claimant’s case. In essence, I treat the cross examination of the VE as if it were a federal court deposition. At a minimum however, the VE needs to be queried regarding the treating doctors’ functional evaluations.
I represent a 48 year old who had to stop working and close his real estate agency because of his rheumatoid arthritis. The VE identified possible occupations the claimant could do based upon hypothetical questions posed by the administrative law judge (“ALJ”). On cross examination, I asked the VE if the claimant could perform those occupations given the various limitations assessed by the claimant’s treating doctors. The VE responded that if the treating doctors’ assessments were accepted, then the claimant could not do any type of work.
The above cross examination essentially eliminates the VE’s opinion, and makes the fate of the case ride on the ALJ’s accepting or rejecting the treating doctors’ opinions. Because the regulations favor treating doctors’ opinions, a denial by the ALJ becomes difficult to sustain ultimately. Perhaps cognizant of that point the ALJ approved the claimant’s application for disability benefits.
Claimants have the right to ask the VE questions. My cross examinations have lasted over an hour, and cover countless topics, much of which relates to the VE’s background and methodology as opposed to the particulars of the claimant’s case. In essence, I treat the cross examination of the VE as if it were a federal court deposition. At a minimum however, the VE needs to be queried regarding the treating doctors’ functional evaluations.
I represent a 48 year old who had to stop working and close his real estate agency because of his rheumatoid arthritis. The VE identified possible occupations the claimant could do based upon hypothetical questions posed by the administrative law judge (“ALJ”). On cross examination, I asked the VE if the claimant could perform those occupations given the various limitations assessed by the claimant’s treating doctors. The VE responded that if the treating doctors’ assessments were accepted, then the claimant could not do any type of work.
The above cross examination essentially eliminates the VE’s opinion, and makes the fate of the case ride on the ALJ’s accepting or rejecting the treating doctors’ opinions. Because the regulations favor treating doctors’ opinions, a denial by the ALJ becomes difficult to sustain ultimately. Perhaps cognizant of that point the ALJ approved the claimant’s application for disability benefits.
Tuesday, February 24, 2009
Responsive Doctors
Simply having doctors that agree that you are unable to work is not enough to succeed in obtaining disability benefits. While on vacation, I was introduced to a woman whose disability claim was denied, even though her doctor agreed that she could no longer continue working. However, her doctor did not want to prepare any reports to support her claim.
Many potential clients have asked me what to do when their doctors will not support their claim. I suggest that the patients tell their doctors two things. First, that most long term disability (“LTD”) or Social Security Disability (“SSD”) claims are not like personal injury claims in that treating doctors are rarely required to testify. Second, that as patients they recognize that medical reports take time to complete, and that their doctors will be paid for their time.
For whatever reason, many doctors cannot be persuaded to complete reports in connection with a disability claim. In those cases, I advise the claimant to seek a new doctor. If a doctor agrees that working aggravates a patient’s condition, then the doctor should be willing to do the paper work to help the patient get the disability benefits that would enable him or her to stop working.
Many potential clients have asked me what to do when their doctors will not support their claim. I suggest that the patients tell their doctors two things. First, that most long term disability (“LTD”) or Social Security Disability (“SSD”) claims are not like personal injury claims in that treating doctors are rarely required to testify. Second, that as patients they recognize that medical reports take time to complete, and that their doctors will be paid for their time.
For whatever reason, many doctors cannot be persuaded to complete reports in connection with a disability claim. In those cases, I advise the claimant to seek a new doctor. If a doctor agrees that working aggravates a patient’s condition, then the doctor should be willing to do the paper work to help the patient get the disability benefits that would enable him or her to stop working.
Wednesday, February 11, 2009
Multiple Sclerosis
Multiple Sclerosis (“MS”) is typically treated by a neurologist. When applying for Social Security Disability (“SSD”) benefits based upon MS it is extremely beneficial to have a well-supported opinion from a neurologist.
I represent a 48 year old who was employed as a food counter clerk and maintenance mechanic before his MS forced him to stop working. The claimant had been treating with a neurologist for his MS for over eight years. During the same time period the claimant also saw his family doctor.
The Administrative Law Judge (“ALJ”) had a neurologist serve as a Medical Expert (“ME) to testify at the claimant's SSD hearing. In general, an ME is not supposed to be given more weight than a treating doctor. However, the ALJ gave greater weight to the ME than the family doctor, who strongly supported the claimant’s SSD application, because the ME was a specialist. Fortunately, the claimant also supplied records and reports from his neurologist, whose opinion also strongly supported the claimant’s application. The ALJ gave greater weight to the claimant’s neurologist than the ME because the treating neurologist was board certified and had a lengthy and ongoing treating relationship with the claimant.
If the claimant had only submitted his medical records, or had only provided a functional assessment from his family doctor, then the ALJ would have denied the SSD application. Not only is it important to get medical opinions to interpret the treatment records and test reports, but one of those opinions and assessments should come from an appropriate specialist, especially if an ME will testify.
I represent a 48 year old who was employed as a food counter clerk and maintenance mechanic before his MS forced him to stop working. The claimant had been treating with a neurologist for his MS for over eight years. During the same time period the claimant also saw his family doctor.
The Administrative Law Judge (“ALJ”) had a neurologist serve as a Medical Expert (“ME) to testify at the claimant's SSD hearing. In general, an ME is not supposed to be given more weight than a treating doctor. However, the ALJ gave greater weight to the ME than the family doctor, who strongly supported the claimant’s SSD application, because the ME was a specialist. Fortunately, the claimant also supplied records and reports from his neurologist, whose opinion also strongly supported the claimant’s application. The ALJ gave greater weight to the claimant’s neurologist than the ME because the treating neurologist was board certified and had a lengthy and ongoing treating relationship with the claimant.
If the claimant had only submitted his medical records, or had only provided a functional assessment from his family doctor, then the ALJ would have denied the SSD application. Not only is it important to get medical opinions to interpret the treatment records and test reports, but one of those opinions and assessments should come from an appropriate specialist, especially if an ME will testify.
Friday, January 30, 2009
Court Blasts CIGNA LTD Benefit Termination
A federal district court judge issued a 44 page decision today that condemned CIGNA’s termination of a long term disability (“LTD”) benefit claim, which was consistent with the same type of bad faith claim decisions of CIGNA that were exposed on ABC News’ “Good Morning America.” That ABC News expose can be seen on the internet at http://abcnews.go.com/GMA/story?id=5257491&page=1. CIGNA arrogantly contended that as long as it went through the motions of supposedly considering the evidence that Plaintiff submitted its decision had to be upheld. The Court strongly disagreed for a variety of reasons.
First, the plaintiff’s medical records showed that his condition had not improved between the time that CIGNA approved and then subsequently terminated his LTD benefits. The Court criticized CIGNA’s termination “preceded by no significant change in the claimant’s physical condition”.
Second, the Court rejected CIGNA’s assertion that it could “reject the opinions of treating physicians for any or no reason at all.” To the contrary, the Court ruled that because CIGNA failed to “cite any rational justification for its decision to discredit Alfano’s treating physician evidence, this evidence is entitled to substantial weight.”
Third, the Court ruled that CIGNA “erred in discrediting the SSA decision,” especially since “it accepted the SSA decision awarding Alfano disability benefits without question when it reduced Alfano’s initial LTD benefits award by the amount of his SSD benefits.” To make matters even worse, the Court pointed out that CIGNA forces claimants to apply for SSD benefits; otherwise, CIGNA will reduce their LTD benefits by the estimated SSD benefits. The Court further chastised CIGNA’s disregarding the SSA decision because its definition of disability was basically the same as CIGNA’s; that is, the SSA specifically found that the plaintiff was unable to do his past work or any other work as well. Therefore, the Court found the SSA decision probative of the plaintiff’s claim for LTD benefits, and gave it substantial weight.
Fourth, CIGNA has a habit of intentionally misreading its functional capacity evaluation (“FCE”) reports. Rather than relying on the actual test data, CIGNA blindly accepts the conclusion of the physical therapist who performs the FCE, even when contradicted by the test data, over the opinions of treating physicians. The Court explained that “CIGNA offers no rational reason” for doing so. Therefore, the Court rejected the FCE, and all of the medical and vocational reports by CIGNA’s doctors and vocational consultants who relied on it
First, the plaintiff’s medical records showed that his condition had not improved between the time that CIGNA approved and then subsequently terminated his LTD benefits. The Court criticized CIGNA’s termination “preceded by no significant change in the claimant’s physical condition”.
Second, the Court rejected CIGNA’s assertion that it could “reject the opinions of treating physicians for any or no reason at all.” To the contrary, the Court ruled that because CIGNA failed to “cite any rational justification for its decision to discredit Alfano’s treating physician evidence, this evidence is entitled to substantial weight.”
Third, the Court ruled that CIGNA “erred in discrediting the SSA decision,” especially since “it accepted the SSA decision awarding Alfano disability benefits without question when it reduced Alfano’s initial LTD benefits award by the amount of his SSD benefits.” To make matters even worse, the Court pointed out that CIGNA forces claimants to apply for SSD benefits; otherwise, CIGNA will reduce their LTD benefits by the estimated SSD benefits. The Court further chastised CIGNA’s disregarding the SSA decision because its definition of disability was basically the same as CIGNA’s; that is, the SSA specifically found that the plaintiff was unable to do his past work or any other work as well. Therefore, the Court found the SSA decision probative of the plaintiff’s claim for LTD benefits, and gave it substantial weight.
Fourth, CIGNA has a habit of intentionally misreading its functional capacity evaluation (“FCE”) reports. Rather than relying on the actual test data, CIGNA blindly accepts the conclusion of the physical therapist who performs the FCE, even when contradicted by the test data, over the opinions of treating physicians. The Court explained that “CIGNA offers no rational reason” for doing so. Therefore, the Court rejected the FCE, and all of the medical and vocational reports by CIGNA’s doctors and vocational consultants who relied on it
Monday, January 19, 2009
Obama and Social Security Benefits
Barack Obama stated that the Social Security approval process had to be streamlined when he was running for the presidency. The Social Security Administration (“SSA”) backlog of disability claims more than doubled under the Bush Administration, and a two to three year wait for a decision is not atypical. Barack Obama stated that it is unacceptable for individuals to lose their homes or declare bankruptcy because the SSA cannot process its claims quickly enough.
Barack Obama said that because the SSA has been consistently under-funded it has resulted in unconscionable delays in initial claims determinations and hearings for individuals applying for the Social Security Disability (“SSD”) and Social Security Supplement Security Income (“SSI”) benefits. Barack Obama pledged to streamline the SSA’s application and appeals procedures by ensuring the SSA has the funding to hire judges and staff and to invest in technology to expedite final decisions.
Barack Obama specifically referred to the interests of the disabled during his pre-inaugural speeches. Let’s hope he remembers this constituency and follows through on his campaign promise for increased funding.
Barack Obama said that because the SSA has been consistently under-funded it has resulted in unconscionable delays in initial claims determinations and hearings for individuals applying for the Social Security Disability (“SSD”) and Social Security Supplement Security Income (“SSI”) benefits. Barack Obama pledged to streamline the SSA’s application and appeals procedures by ensuring the SSA has the funding to hire judges and staff and to invest in technology to expedite final decisions.
Barack Obama specifically referred to the interests of the disabled during his pre-inaugural speeches. Let’s hope he remembers this constituency and follows through on his campaign promise for increased funding.
Thursday, January 15, 2009
“Fully Favorable” Decisions
You apply for Social Security Disability (“SSD”) benefits. Two years later, after the Social Security Administration (“SSA”) lost your file and eventually held a hearing, you receive a decision that is entitled “fully favorable”. Unfortunately, that does not necessarily mean that your troubles are over. It is not uncommon for the SSA to make an error regarding the disability onset date or application filing date, which may reduce the amount of your retroactive SSD benefits.
One of my clients received a “fully favorable” decision last April that had the correct onset date, but the wrong application filing date. This error reduced the amount of the claimant’s retroactive SSD benefits. Even though I advised Administrative Law Judge Newton Greenberg about the error at the claimant’s hearing and afterwards in writing he failed to correct it.
To preserve the claimant’s rights I sought review with the Appeals Council. In the interim, because I had so many cases where the SSA was repeatedly ignoring my pleas to pay the correct amount of SSD benefits and fees, I was compelled to file a mandamus action in federal court against the SSA. As a result of that lawsuit, the SSA finally issued a supplemental notice of award today. Although this correction resulted in no additional attorney fees being paid to me, the claimant received an additional $7,149.30.
One of my clients received a “fully favorable” decision last April that had the correct onset date, but the wrong application filing date. This error reduced the amount of the claimant’s retroactive SSD benefits. Even though I advised Administrative Law Judge Newton Greenberg about the error at the claimant’s hearing and afterwards in writing he failed to correct it.
To preserve the claimant’s rights I sought review with the Appeals Council. In the interim, because I had so many cases where the SSA was repeatedly ignoring my pleas to pay the correct amount of SSD benefits and fees, I was compelled to file a mandamus action in federal court against the SSA. As a result of that lawsuit, the SSA finally issued a supplemental notice of award today. Although this correction resulted in no additional attorney fees being paid to me, the claimant received an additional $7,149.30.
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