SSD Approved In 3 Months

I represent a 58 year old former auto mechanic and deliveryman with cervical radiculopathy, whose application for Social Security Disability (“SSD”) benefits was approved in three months. As I have done in other cases, I supplied functionality reports and treatment records. What was different this time? Really nothing. Perhaps it was a need to make a year end quota. Or maybe it was just a Christmas gift.

Social Security Myth

Today's Newsday had an article entitled "Beware of Bad Tips on Savings for Retirement."  One of the myths addressed was that you can take early Social Security retirement when you turn 62 years old, and still get full benefits later.  

Some people take early retirement because they want to start receiving monthly payments immediately.  The article points out that by doing so, you receive 25% less than if you wait until full retirement age, and 75-80% less than if you wait until age 70.  The implication is that it usually makes more sense to avoid taking early Social Security retirement.

The decision about whether to accept early retirement is simpler if you are receiving monthly Social Security Disability ("SSD") benefits.  The SSD helps stave off having to take early retirement, which eventually leads to larger retirement benefits.

Subpoena Leads to SSD Award for Rheumatoid Arthritis

The Social Security Administration (“SSA”) recognizes that rheumatoid arthritis can be a crippling disease, as an afflicted claimant can be found presumptively disabled under listing 14.09 if the criteria are met. If a listing is not met, then a hearing is typically required.

I represent a 48 year old former dental hygienist who was scheduled for a hearing after an on-the-record (“OTR”) was denied. The typical wait for a hearing is many months, and can even be over a year. One should never be satisfied with simply waiting for the arrival of the hearing date.

I seek updated medical records and reports for most Administrative Law Judges (“ALJs”) if an OTR is denied. For those ALJs who are well known for taking excessive amounts of time before scheduling a hearing, it makes no sense to request updated records after an OTR denial because by the time the hearing arrives they will claim that the medical records are stale, and need to be updated again.

The dental hygienist had to go live in a nursing home because of her rheumatoid arthritis. After an OTR was rejected, I sought updated medical records from the nursing home. However, the nursing home refused to provide any records. Fortunately, the ALJ granted my request to subpoena the nursing home records, which totaled nearly 700 pages of objective clinical findings and diagnostic tests that support the functional less than sedentary functional assessments of the treating doctors that had been submitted previously.

Among other things, the nursing home records showed that since the claimant had been admitted, via stretcher, she had needed a wheelchair to get around, even needed assistance to use it, could not get in and out of bed without help, was incontinent, totally dependent on others for personal hygiene, including toileting, and could not even feed herself. Based on those records, I suggested that a hearing was not needed. The ALJ agreed.

Another CE Problem

     I have written dozens of times about the problems posed when Social Security schedules a Consultative Examination (“CE”) with a non-treating doctor. I had a hearing yesterday in Queens that illustrates one such problem. 

     I was representing a 37 year old former EMT who sustained serious back and knee injuries after a series of motor vehicle accidents. The medical records and the reports of the claimant’s neurologist repeatedly demonstrated that the claimant met the listing criteria for a spinal disorder. However, the medical expert at the hearing questioned whether the listing was met because the report of the one time CE by a non-treating doctor contained some contrary findings. 

     Aberrant findings from a single CE report, from a doctor who is not a neurologist, should not suffice to contradict the longitudinal and consistent medical findings of a neurologist regarding a neurological disorder. Furthermore, the claimant was prepared to testify that the CE findings were fraudulent in that the CE did not actually test what the report claimed was tested. 

     Fortunately, the medical expert testified that while the claimant did not meet the spinal disorder listing, he equaled it in severity. However, another medical expert or Administrative Law Judge may have concluded that the CE findings prevented the listing from being met or equaled. According to the regulations, there was no valid ground for the claimant to have been asked to have a CE with a non-treating doctor. Had the claimant refused to attend the CE, there would have been no evidence to contradict the claimant’s meeting a listing, and he could have avoided the need and wait for a hearing.

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.