The Social Security Administration (the “SSA”) almost always sends local disability applicants to IMA Disability Services for Consultative Examinations (“CE”). One has to question why, virtually without exception, the SSA insists on CEs even though the regulations severely limit the situations when a CE is appropriate and the weight they can be given.
The vast majority of the time, CEs contradict the supporting opinions of the treating physicians and are used to deny applications. I usually object to CEs for failing to conform to the regulations, and advise my clients not to attend, and the court agreed with my position when I argued the matter in litigation.
I took over the SSD case of a 34 year old cable television technician from another attorney when litigation was required. My primary argument was that the ALJ gave more weight to the opinions of the CEs than to the claimant’s treating doctors, and in doing so, failed to apply the treating physician rule properly. The district court judge ruled that: "As Plaintiff correctly notes, the ALJ cannot rely on those RFCs as evidence contradicting the Treating Physician RFC. This is because an inconsistency with a consultative examiner is not sufficient, on its own, to reject the opinion of the treating physician."
The case was reassigned to ALJ Faraguna on remand. ALJ rejected the opinion of the CE Mohammad Iqbal as “vague and confusing,” and CE Steven Calvino because it “flies in the face of all the objective evidence.” The claimant filed his SSD application over seven (7) years ago. The question is how long would it have taken the claimant to get his SSD benefits if he had objected to the CEs.
Saturday, March 27, 2010
Thursday, March 25, 2010
New Office
In order to better serve our rapidly growing client base in Suffolk County, we are proud to announce the opening of our new office located at 445 Broad Hollow Road in Melville, NY. We will continue to maintain our Jericho office, which is located across the street from the Social Security Hearing office.
Saturday, March 13, 2010
Complaining About Biased ALJs
For years, claimants and their attorneys have complained about the inability to receive an impartial hearing on their Social Security Disability ("SSD") claims from the Administrative Law Judges (the “ALJs”) at the Jamaica Queens hearing office. The statistics from the Social Security Administration (the “SSA”) provide evidence to support the complaints.
ALJs Strauss, Fier, Nisnewitz, Jordan, Hoppenfeld and Cofresi from the Queens hearing office denied about 55% of their cases. ALJ’s Cohen, Crawley, Faraguna, Firestone, Waldman, A. Weiss and Z. Weiss from the adjacent Jericho hearing office denied about 13% of their cases. In other words, the Queens ALJs are more than 400% likely to deny an SSD claim than their Jericho counterparts.
The SSA has argued that statistics alone cannot prove generalized bias. However, when a claimant alleges that an ALJ is generally biased the SSA argues that actions outside the particular case are irrelevant, and the SSA refuses to investigate a pattern of generalized bias. Only in a few exceedingly rare cases, where groups of attorneys have collaborated, has the SSA actually pursued generalized bias allegations. The SSA’s reluctance to investigate ALJ bias is evidenced by the fact that the SSA still has never finalized rules for addressing ALJ bias, and has relied on temporary procedures for nearly twenty years, which the SSA admitted are inadequate.
A minor step in the right direction to address ALJ bias takes effect tomorrow. Starting March 14, 2010, the SSA will maintain a new system called “Administrative Law Judge/Public Alleged Misconduct Complaints System,” which is intended to track complaints about ALJ misconduct. The system will include information about bias complaints, investigations of complaints, and information about the claimants’ attorneys, which can facilitate collaborative action and evidence gathering.
It needs to be seen if the SSA will properly collect and maintain the information in the new system, and whether the SSA will provide claimants and their attorneys reasonable access to the information. Hopefully, claimants will be able to access bias complaint information shortly after an ALJ denies a claim, in order to enable the claimant to make a generalized bias argument to the Appeals Council that is supported with evidence outside the claimant’s individual case. Unfortunately, it appears that a claimant would have to make a request through his or her Congressman for the information.
Any claimant or attorney who believes an SSD claim was denied due to ALJ bias should file their complaint with the SSA, and make clear that they want the complaint incorporated into the Administrative Law Judge/Public Alleged Misconduct Complaints System.
ALJs Strauss, Fier, Nisnewitz, Jordan, Hoppenfeld and Cofresi from the Queens hearing office denied about 55% of their cases. ALJ’s Cohen, Crawley, Faraguna, Firestone, Waldman, A. Weiss and Z. Weiss from the adjacent Jericho hearing office denied about 13% of their cases. In other words, the Queens ALJs are more than 400% likely to deny an SSD claim than their Jericho counterparts.
The SSA has argued that statistics alone cannot prove generalized bias. However, when a claimant alleges that an ALJ is generally biased the SSA argues that actions outside the particular case are irrelevant, and the SSA refuses to investigate a pattern of generalized bias. Only in a few exceedingly rare cases, where groups of attorneys have collaborated, has the SSA actually pursued generalized bias allegations. The SSA’s reluctance to investigate ALJ bias is evidenced by the fact that the SSA still has never finalized rules for addressing ALJ bias, and has relied on temporary procedures for nearly twenty years, which the SSA admitted are inadequate.
A minor step in the right direction to address ALJ bias takes effect tomorrow. Starting March 14, 2010, the SSA will maintain a new system called “Administrative Law Judge/Public Alleged Misconduct Complaints System,” which is intended to track complaints about ALJ misconduct. The system will include information about bias complaints, investigations of complaints, and information about the claimants’ attorneys, which can facilitate collaborative action and evidence gathering.
It needs to be seen if the SSA will properly collect and maintain the information in the new system, and whether the SSA will provide claimants and their attorneys reasonable access to the information. Hopefully, claimants will be able to access bias complaint information shortly after an ALJ denies a claim, in order to enable the claimant to make a generalized bias argument to the Appeals Council that is supported with evidence outside the claimant’s individual case. Unfortunately, it appears that a claimant would have to make a request through his or her Congressman for the information.
Any claimant or attorney who believes an SSD claim was denied due to ALJ bias should file their complaint with the SSA, and make clear that they want the complaint incorporated into the Administrative Law Judge/Public Alleged Misconduct Complaints System.
Monday, March 8, 2010
IMA Disability Services
Virtually every applicant for Social Security Disability (“SSD”) benefits on Long Island, and also in many areas around New York City, gets a letter stating that he or she “must” be examined by a “specialist” from IMA Disability Services (“IMA”). The letter always encloses a release so that the claimant can receive a copy of the IMA report. These letters are misleading in several respects.
First and foremost, the use of the word “must” is misleading because most claimants do not need to be seen by a doctor from IMA. The rules require the SSA to specify exactly what information is supposedly needed, and why the SSA claims the information is needed, which is rarely done. Moreover, the rules provide that the SSA cannot insist that a claimant attend a consultative examination (“CE”), such as the IMA exam, without first seeking the particular information from the treating physicians, or asking them to clarify any alleged inconsistency. Once again, that is virtually never done.
The word “must” is also misleading because many times, even after insisting that a claimant must attend an IMA exam, and after threatening to deny a claim if the applicant refuses to attend, SSD benefits are approved anyway. I represent a DHL delivery person whose SSD application was approved today two months after he was told that he must attend an exam by IMA.
The releases provided with the IMA demands are a joke. To date, despite countless submissions of the releases, IMA has never released one of its reports. IMA will say that it lacks the authority to release its report, which IMA will claim must be requested from the State agency. However, since the State agency does not release the IMA report before making its decision, an applicant is precluded from submitting a rebuttal.
There are countless other reasons under the rules that make CEs inappropriate. Not surprisingly, since IMA makes enormous amounts of money from performing thousands of CEs, the overwhelming vast majority of the IMA reports contradict the claimant’s disability allegations. Therefore, the demands for IMA exams should be vigorously objected to in writing.
First and foremost, the use of the word “must” is misleading because most claimants do not need to be seen by a doctor from IMA. The rules require the SSA to specify exactly what information is supposedly needed, and why the SSA claims the information is needed, which is rarely done. Moreover, the rules provide that the SSA cannot insist that a claimant attend a consultative examination (“CE”), such as the IMA exam, without first seeking the particular information from the treating physicians, or asking them to clarify any alleged inconsistency. Once again, that is virtually never done.
The word “must” is also misleading because many times, even after insisting that a claimant must attend an IMA exam, and after threatening to deny a claim if the applicant refuses to attend, SSD benefits are approved anyway. I represent a DHL delivery person whose SSD application was approved today two months after he was told that he must attend an exam by IMA.
The releases provided with the IMA demands are a joke. To date, despite countless submissions of the releases, IMA has never released one of its reports. IMA will say that it lacks the authority to release its report, which IMA will claim must be requested from the State agency. However, since the State agency does not release the IMA report before making its decision, an applicant is precluded from submitting a rebuttal.
There are countless other reasons under the rules that make CEs inappropriate. Not surprisingly, since IMA makes enormous amounts of money from performing thousands of CEs, the overwhelming vast majority of the IMA reports contradict the claimant’s disability allegations. Therefore, the demands for IMA exams should be vigorously objected to in writing.
Friday, March 5, 2010
Multiple Impairments
You may be entitled to Social Security Disability (“SSD”) benefits even if you don’t have an impairment that by itself could result in a finding of disability by the Social Security Administration (the “SSA”). That’s because the SSA regulations provide that the combined effect that all your impairments have on your ability to work could suffice.
I represent a former aviation assembler who stopped working due to a multitude of physical problems, including arthritis, hepatitis, hyperthyroidism, vitamin D deficiency, and hand injuries. Two treating physicians provided reports explaining why the claimant could not perform sedentary work. Nonetheless, the SSA would not find the claimant disabled, and insisted that he see their doctor, who was less supportive than the treating doctors.
Subsequently, I secured a report from the claimant’s psychiatrist, who diagnosed the claimant with bipolar and anxiety disorders. The report indicated the claimant’s condition varied significantly over the past year. However, after the psychiatrist’s report was submitted, the SSA approved the application today without requiring a hearing.
Since the treating records were deemed insufficient to find the claimant disabled, and the SSA’s doctor’s disability opinion was unsupportive too, it shows that the additional restrictions posed by the claimant’s mental limitations combined with his physical limitations sufficed to find him disabled.
I represent a former aviation assembler who stopped working due to a multitude of physical problems, including arthritis, hepatitis, hyperthyroidism, vitamin D deficiency, and hand injuries. Two treating physicians provided reports explaining why the claimant could not perform sedentary work. Nonetheless, the SSA would not find the claimant disabled, and insisted that he see their doctor, who was less supportive than the treating doctors.
Subsequently, I secured a report from the claimant’s psychiatrist, who diagnosed the claimant with bipolar and anxiety disorders. The report indicated the claimant’s condition varied significantly over the past year. However, after the psychiatrist’s report was submitted, the SSA approved the application today without requiring a hearing.
Since the treating records were deemed insufficient to find the claimant disabled, and the SSA’s doctor’s disability opinion was unsupportive too, it shows that the additional restrictions posed by the claimant’s mental limitations combined with his physical limitations sufficed to find him disabled.
Thursday, February 25, 2010
NYCERS
What do you do when despite submitting every type of medical record, test, and report, NYCERS refuses to consider your application for Disability Retirement due to a purported lack of evidence? The answer is, submit non-medical evidence.
I submitted a 195 page application, comprised mostly of medical records, in support a maintenance worker’s disability retirement application. The evidence included:
1) Decision from the Social Security Administration (the “SSA”) concluding that the claimant could not do any type of work;
2) Decision of the Housing Authority concluding the claimant could not do his job as a Municipal Maintenance Worker;
3) A description of the claimant’s medications objectively showing that his pain is severe since his doctors prescribed extremely potent pain killers, anti-inflammatories and muscle relaxants, whose side effects alone would preclude his working as a maintenance Worker;
4) The use of assistive devices for the claimant’s knees, back, and walking;
5) MRIs for the claimant’s left knee, right knee, left shoulder, and lumbar spine revealing an inordinate amount of objective evidence of abnormal findings, including conditions such as nerve root compression that are capable of causing severe pain and functional limitations;
6) Operative reports for the claimant’s left knee and left shoulder because the conditions were so severe;
7) VNG testing that confirmed moderate to severe vestibular dysfunction;
8) EMG testing confirming bilateral CTS and lumbar radiculopathy consistent with the lumbar MRI findings;
9) Treatment notes from: the doctor specializing in physical medicine and rehabilitation and pain management; neurologist specializing in spinal surgery; orthopedist who performed the surgeries; the internist who coordinates the claimant’s overall care; the rheumatologist specializing in arthritis who performed the EMG testing; orthopedist who conducted an independent medical exam;
10) Functional assessments from each of the six doctors; and
11) Hospital records demonstrating the effects of the claimant’s seizure disorder, as well as x-rays that revealed severe arthritis in the shoulder and knees, as well as other degenerative changes in the thoracic and cervical spines.
Nonetheless, the Medical Board asserted that it could not consider the application due to insufficient evidence, and would not state what type of additional evidence might suffice.
Since there was no further information that I could obtain from the claimant’s doctors, I made arrangements for a functional capacity evaluation (“FCE”) and vocational evaluation (“VE”). The FCE was performed by a physical therapist who determined that the claimant did not meet the strength requirements demanded by a maintenance worker. In fact, the FCE concluded that because the claimant was limited to lifting 2 pounds, and was unable to do any carrying, he was unable work in any capacity. The VE was a comprehensive functional vocational capacity evaluation that ultimately concluded the claimant was unable to work in any occupation, even at the sedentary level.
The Medical Board decided that there was enough information to consider the claimant’s application once I submitted the FCE and VE. After its examination of the claimant, the Medical Board recommended approving the claimant’s application for disability retirement.
I submitted a 195 page application, comprised mostly of medical records, in support a maintenance worker’s disability retirement application. The evidence included:
1) Decision from the Social Security Administration (the “SSA”) concluding that the claimant could not do any type of work;
2) Decision of the Housing Authority concluding the claimant could not do his job as a Municipal Maintenance Worker;
3) A description of the claimant’s medications objectively showing that his pain is severe since his doctors prescribed extremely potent pain killers, anti-inflammatories and muscle relaxants, whose side effects alone would preclude his working as a maintenance Worker;
4) The use of assistive devices for the claimant’s knees, back, and walking;
5) MRIs for the claimant’s left knee, right knee, left shoulder, and lumbar spine revealing an inordinate amount of objective evidence of abnormal findings, including conditions such as nerve root compression that are capable of causing severe pain and functional limitations;
6) Operative reports for the claimant’s left knee and left shoulder because the conditions were so severe;
7) VNG testing that confirmed moderate to severe vestibular dysfunction;
8) EMG testing confirming bilateral CTS and lumbar radiculopathy consistent with the lumbar MRI findings;
9) Treatment notes from: the doctor specializing in physical medicine and rehabilitation and pain management; neurologist specializing in spinal surgery; orthopedist who performed the surgeries; the internist who coordinates the claimant’s overall care; the rheumatologist specializing in arthritis who performed the EMG testing; orthopedist who conducted an independent medical exam;
10) Functional assessments from each of the six doctors; and
11) Hospital records demonstrating the effects of the claimant’s seizure disorder, as well as x-rays that revealed severe arthritis in the shoulder and knees, as well as other degenerative changes in the thoracic and cervical spines.
Nonetheless, the Medical Board asserted that it could not consider the application due to insufficient evidence, and would not state what type of additional evidence might suffice.
Since there was no further information that I could obtain from the claimant’s doctors, I made arrangements for a functional capacity evaluation (“FCE”) and vocational evaluation (“VE”). The FCE was performed by a physical therapist who determined that the claimant did not meet the strength requirements demanded by a maintenance worker. In fact, the FCE concluded that because the claimant was limited to lifting 2 pounds, and was unable to do any carrying, he was unable work in any capacity. The VE was a comprehensive functional vocational capacity evaluation that ultimately concluded the claimant was unable to work in any occupation, even at the sedentary level.
The Medical Board decided that there was enough information to consider the claimant’s application once I submitted the FCE and VE. After its examination of the claimant, the Medical Board recommended approving the claimant’s application for disability retirement.
Tuesday, February 23, 2010
Primary Care Physicians
It is generally accepted that the disability opinion of a specialist is entitled to greater weight than a general practitioner. In the Social Security Disability context, that principle is codified in a regulation that gives more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.
For a variety of reasons, this had led many people to disregard seeking medical support from their primary care physician (“PCP”), who usually is a general practitioner, such as an internist or family doctor. Depending upon a claimant’s impairments, an internist could be the specialist whose opinion is entitled to extra weight.
A woman seeking Supplemental Security Income (“SSI”) benefits retained me just prior to her hearing. The claimant’s internist diagnosed her with diabetes, hypertension, anemia, hyperlipidemia, cataracts, osteoarthritis, Lyme Disease, and osteopenia. There are medical specialists for each of those impairments. However, when no single impairment is disabling, the PCP, in this case an internist, is the appropriate specialist for treating the combination of all the impairments.
I obtained a detailed functional assessment from the claimant’s internist that showed the claimant lacked the ability to perform sedentary work. The Administrative Law Judge agreed that an internist was the appropriate specialist under the circumstances, and approved SSI benefits because he gave controlling weight to the internist’s opinion.
For a variety of reasons, this had led many people to disregard seeking medical support from their primary care physician (“PCP”), who usually is a general practitioner, such as an internist or family doctor. Depending upon a claimant’s impairments, an internist could be the specialist whose opinion is entitled to extra weight.
A woman seeking Supplemental Security Income (“SSI”) benefits retained me just prior to her hearing. The claimant’s internist diagnosed her with diabetes, hypertension, anemia, hyperlipidemia, cataracts, osteoarthritis, Lyme Disease, and osteopenia. There are medical specialists for each of those impairments. However, when no single impairment is disabling, the PCP, in this case an internist, is the appropriate specialist for treating the combination of all the impairments.
I obtained a detailed functional assessment from the claimant’s internist that showed the claimant lacked the ability to perform sedentary work. The Administrative Law Judge agreed that an internist was the appropriate specialist under the circumstances, and approved SSI benefits because he gave controlling weight to the internist’s opinion.
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