CIGNA Bad Faith Affirmed

Yesterday, the Seventh Circuit Court of Appeals affirmed that CIGNA acted in bad faith when it rejected a long term disability (“LTD”) claimant’s award of Social Security Disability (“SSD”) benefits.  The decision, entitled Raybourne v. CIGNA Life Insurance Company of New York, can be found at http://courtlistener.com/ca7/5atS/edward-raybourne-v-cigna-life-insu/.

As part of its practice and pattern for wrongfully denying and terminating LTD claims, CIGNA supports a finding of disability before the Social Security Administration (“SSA”) when it financially benefits CIGNA, and then disregards the SSA's finding of disability when it disadvantages CIGNA.  The Seventh Circuit said CIGNA did so in order to harass its opponent instead of acting in good faith.

The Court ruled that CIGNA’s professed reasons for rejecting the SSA’s awarding of SSD benefits were arbitrary and capricious.  First, CIGNA claimed that its definition of disability was different from the SSA definition of disability.  The Court rejected that argument, ruling that the two definitions are “functionally equivalent.”   CIGNA’s termination and denial letters fail to draw any meaningful distinction between the two standards, and instead, dogmatically assert in conclusory language that the standards are different.  With Raybourne, CIGNA can no longer do so.

Next, CIGNA argued that the SSA applied the SSD regulations, including treating physician rule that requires giving greater weight to the opinion of the claimant’s physicians, do  not apply to LTD claims governed under ERISA.  The Court rejected that argument on the grounds that the regulations with treating physician rule “was not determinative to the disability finding.”  Rather, the Court said the SSA decision was based on the claimant’s need for narcotic pain medications, compliance with medical treatment, willingness to undergo surgery, good work history, and credibility.

Third, the Court said that CIGNA’s failure to explain why it rejected the SSA’s final decision, which found the claimant to be disabled, as opposed to the SSA’s earlier decision, which did not, was evidence that CIGNA had a “predisposition to reject the claim regardless of the facts.”  This is an argument that I have regularly made about CIGNA, and Raybourne provides added evidence demonstrating CIGNA’s history for biased claim adjudication.

CIGNA’s final argument was that the SSA made its decision without having a report by a CIGNA doctor who reviewed the medical records.  The Court concluded that CIGNA did not make its report available to the SSA because CIGNA wanted the SSA to award SSD benefits, thereby allowing CIGNA to reduce its LTD payments by the amount of the SSD benefits.  The Court found that CIGNA then relied on its doctor’s report after the SSD award in order to terminate LTD benefits; that is, only when it became financially advantageous for CIGNA.  The Court held that CIGNA’s selecting its one doctor’s opinion over all of the contrary evidence was arbitrary and irrational.

Walking Time Bomb

 

You may be found disabled, and entitled to Social Security Disability ("SSD") benefits, even if you have the physical and mental ability to work.  I was retained by a 43 year old truck driver after his claim was denied.  The treating cardiologists said the claimant could not do sedentary work. 

   During the claimant’s hearing, the Administrative Law Judge (“ALJ”) expressed difficulty understanding why the claimant could not work.  I explained that even if the claimant had a capacity to do sedentary work, he would still have to be considered disabled because his cardiac condition makes him a virtual walking time bomb.  The ALJ agreed that the argument made sense, but lacked medical documentation.

After the hearing, I promptly obtained and submitted a report from the claimant’s cardiologist, which stated that either two hours of physical exertion at the sedentary level, or emotional stress, could precipitate another heart attack.  In other words, there was medical evidence to support my contention that the claimant was a walking time bomb.  In approving SSD benefits, the ALJ even referred to the claimant as a walking time bomb.

The ALJ’s decision was not an isolated one.  I found many SSD cases, including one involving the identical cardiac conditions that my client had, where the federal courts ruled the claimants were disabled because their impairments created a risk of death.

Three Heads Are Better Than One

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A former office manager asked me to represent her shortly before her Social Security Disability hearing.  Her application had been denied on the grounds that her condition was not severe enough to keep her from working.  In denying the application, the State agency conceded that the claimant was afflicted with severe anemia, arthritic knee, back, wrist, and elbow, carpal tunnel syndrome, cardiovascular problem problems, and depression.

When I reviewed the claim file, I found that each of the claimant’s medical conditions was fully documented.  There was no dispute that the claimant suffered from any of the diagnoses.  The State agency merely resorted to its default position that the medical conditions were not severe enough to preclude work.  The State agency usually resorts to its default position where there are medical records without any opinion regarding the effect of the medical conditions upon the claimant’s ability to function.

The decision of the State agency was disturbing here because it had asked the claimant’s hematologist to describe the claimant’s functionality, and he stated that the claimant could not perform sedentary work.  The State agency examiner, who was not a doctor, named M. Jackson, stated that the claimant could do sedentary work.  However, M. Jackson blatantly lied, and represented that the hematologist’s “conclusions about the claimant’s limitations or restrictions [were not] significantly different from your findings.”  If that were true, then M. Jackson would have had to approve the application.

On appeal, I obtained reports from the claimant’s rheumatologist and pain management specialist.  Each of those physicians also concluded that the claimant lacked ability to perform the demands of sedentary work.  Since they say that two heads are better than one, it follows that three heads are even better.  I suspect that if the claimant had submitted the analytic medical opinions at the State agency level, then M. Jackson would have been unable to ignore all three treating opinions.

Power Restored

We lost power as a result of Hurricane Sandy and the Noreaster, making communications difficult, and preventing faxes from being received.  Full power has now been restored.  Thank you for your patience during the past two weeks. 

Appeals Council Remands

If an Administrative Law Judge (“ALJ”) denies your case, you can request Appeals Council review in 60 days by completing and submitting form HA-520. You can submit new evidence, and explain the reasons why the ALJ erred. The Appeals Council can approve benefits, which is rare, decide not to review your appeal, or send your claim back to the ALJ for another hearing. What should you do if your claim is remanded to the ALJ? 

I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs. 

I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.

Social Security & The Presidential Election

Raising the retirement age for Social Security has an obvious impact on those seeking disability benefits. 

The Republican position is to increase the retirement age. Mitt Romney stated that the retirement age should be “slowly increased to account for increases in longevity,” while Paul Ryan said we should, “Slowly raise the retirement age over time.”  Minority Leader, John Boehner said that A Republican-held Congress would look to raise the retirement age to 70, and the Heritage Foundation, a research and educational institution whose mission is to formulate and promote conservative public policies, believes that the retirement ages must be increased. While giving a speech at the American Enterprise Institute, another conservative think tank, Chris Christie said, “You are going to have to raise the retirement age for Social Security! Whoa! I just said it and I am still standing here. I did not vaporize into the carpeting.” 

Barack Obama said he is opposed to raising the retirement age. Previously, Barack Obama said he favored applying the Social Security payroll tax to wages above $250,000, which is now limited to wages below $110,100. 

Becoming disabled is neither a Democratic or Republican problem, nor a Conservative or Liberal problem. Disability crosses all party lines. Nonetheless, there was little attention paid to the issue during the debates. Regardless of whether you favor raising the retirement age, increasing taxes or cutting benefits in order shore up the Social Security program, insist that candidates explain how they intend to stabilize Social Security to ensure that benefits will be there when you need them.

Firefighter Awarded SSD

I represent a 51 year old firefighter with pulmonary problems whose Social Security Disability (“SSD”) application was approved today. I had submitted the medical report from the New York City Medical Board that concluded the claimant was disabled from working as a firefighter. While not binding, the decision of another agency must be considered and given weight under the Social Security rules. 

The Fire Department is obviously better equipped to determine if a firefighter is fit for duty, and its disability determination decision is usually accepted by Social Security Administrative Law Judges (“ALJs”). However, firefighters also have to prove that they cannot perform other work to receive SSD benefits. That is why it may be advisable to submit not only the Fire Department notice approving disability retirement, but also the Medical Board report discussing the medical reasons that support the disability retirement. 

 In this case, the ALJ cited the Medical Board as evidence supporting the firefighter’s entitlement to SSD benefits. As the claimant was over 50 years of age, based on the applicable medical-vocational rule, the firefighter only needed to show that he could not perform light work, which is more strenuous than sedentary work, to receive SSD benefits. 

The treating pulmonologist concluded that the claimant lacked even a sedentary work capacity. The ALJ accepted the opinion of the treating pulmonologist in large part because it was consistent with the findings of the Fire Department Medical Board. There are circumstances where a City Medical Board report could serve as the basis for an ALJ to deny SSD benefits, so consult an attorney before doing so.