Social Security Form DDD-3883

The Social Security Administration (the “SSA”) occasionally asks claimant’s doctors to complete a form known as DDD-3883. You should do three things to prepare for that possibility. 

 First, tell your doctor to notify you if the SSA sends a DDD-3883 (or any other information request). Second, ask your doctor to send the DDD-3883 to you or your attorney, not the SSA after it is completed. Third, discuss with your doctor the type of responses that could help or hurt your claim. The questions on the DDD-3883 are somewhat ambiguous, and you want to make sure that answers do not need to be clarified. 

I represent a 51 year old former warehouse manager with rheumatoid arthritis and cardiovascular problems. The claimant’s cardiologist and rheumatologist each completed form DDD-3883 for Social Security. A treating doctor’s opinion is supposed to be given controlling weight under the Social Security rules and regulations if it is well supported by clinical and diagnostic evidence. 

The DDD-3883 requires, among other things, that the doctor identify the clinical findings and diagnostic tests that support his or her conclusions, which the rheumatologist and cardiologist did. Moreover, both specialists concluded that the claimant lacked the ability to perform the demands of sedentary work. 

The claimant’s application for disability benefits was approved today. Interestingly, while the rheumatologist and cardiologist both completed forms for me that contained similar information to the DDD-3883, the Administrative Law Judge relied upon the latter in approving benefits. Since the form DDD-3883 is Social Security’s own form, when a doctor provides substantive responses to all of its questions that support the claim, there should be no grounds for contending it is not entitled to controlling weight.

Acceptable Medical Sources

According to Social Security regulations, only "acceptable medical sources" can establish your medically determinable impairments. Chiropractors and physical therapists are not acceptable medical sources. However, according to Social Security rules, a "non-acceptable" medical source can provide persuasive evidence of the severity of your medical condition, and the limitations imposed by your condition. 

I represent a former paramedic with neck and back problems, whose Social Security Disability (“SSD”) application was approved today without a hearing. The Administrative Law Judge (“ALJ”) found that claimant’s spine problems met listing 1.04. The treating chiropractor provided MRIs of the claimant’s neck and back that revealed, among other things, cervical degenerative disc disease with ventral cord impingement and compression of the nerve roots. The chiropractor also provided an EMG that he performed, which confirmed cervical Radiculopathy. 

In addition to the claimant’s physician, the ALJ cited clinical findings by the chiropractor and physical therapist of neuroanatomic distribution of pain, limitation of motion of the spine, motor loss, and sensory reflex loss, as evidence of the claimant’s spine problems. The ALJ concluded that those clinical findings, together with the test findings of nerve root compression and cord impingement, met the requisite criteria of Listing 1.04(A). As a result, the claimant was able to avoid having to attend a hearing.

Petition Regulators About Unum

According to Unum, the major provider of disability insurance, 3 out of every 10 workers between the ages of 25 and 65 will experience an accident or illness that keeps them out of work for 3 months or longer, with nearly 60% of these injuries occurring off the job. If an employee is hurt off the job, worker’s compensation will not cover them. When an employee cannot work for an extended period of time, LTD benefits may be available, which usually provide about 60% of your salary. Like CIGNA, which I have blogged about frequently, Unum has a history of improperly denying and terminating valid LTD claims.

Unum’s problems resulted in State regulators forcing it to reassess thousands of claims, until December 31, 2006. Despite the reassessment, which served as a model for the recent CIGNA reassessment, Unum’s deceptive and bad faith claims handling tactics persists unabated. It is time for another Conduct Market examination of Unum’s disability claim administration practices. 

An on line petition was just started that asks the State regulators to expedite an immediate Conduct Marketing examination of Unum Group.  I would encourage you to sign the petition if you have ever had any problem with Unum, or are currently covered under a Unum disability Plan or Policy.

Consultative Exam Withdrawn

It is unclear why claimants applying for Social Security Disability (“SSD”) are virtually always told they have to attend a consultative examination ("CE”) since the rules actually permit them only in limited circumstances. In New York, IMA has the contract to perform the CEs now.

Every once in a while the State agency withdraws a CE request. Sometimes the State agency sends a letter specifically notifying you that the CE request is being withdrawn, which does not always result in an approval. When it doesn’t, and the basis for the denial is failing to attend the CE, you should certainly argue that it is inconsistent to withdraw a CE, but then claim not attending the CE is the basis for the denial. Sometimes the CE request is implicitly withdrawn.

I represent a 50 year old laborer who did road construction, who alleged disability due to back problem. Last month, the State agency sent the claimant a letter saying he needed to attend a CE. A week later, I submitted an EMG that showed the claimant had lumbar radiculopathy. The SSD application was approved today, which shows the CE was never needed, or was no longer needed because of the EMG. Regardless of why the CE was withdrawn, it was done so without the State agency sending written notice, which is an example of a CE implicitly being withdrawn.

Padro Class Action Notices

I received a pile of notices today relating to the proposed settlement in the Padro class action 4/5/13, 4/24/13, 8/21/12, 9/19/12. Please contact our office if you would like more information about the impending settlement and your right to a new hearing before a different Administrative Law Judge. 

If you received a notice that you fall within the class, then consider hiring us to represent you even if you had another attorney previously. I was one of the only two attorneys who submitted affidavits on behalf of the plaintiffs in the Padro class action because I have been instrumental in fighting the Queens Five for bias for over a decade.

Rejecting SSA Remand Offer

When a Social Security Disability (“SSD”) denial is appealed to federal court, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. Since I won’t file an SSD appeal in federal court unless I am totally convinced that the Court will rule in my favor, I am usually reluctant to accept a voluntary remand order, especially since the offer is always belatedly made. 

When I reject the remand offer, the U.S. Attorney frequently advises me not to expect attorney fees if I win, for the time I work on the case after rejecting the offer. It is unclear if that is truly the U.S. Attorney’s belief, or whether it is the position that their client, the SSA, wants them to assert. Regardless of who is actually responsible for the assertion, it is wrong. 

A couple of years ago, I rejected a voluntary remand offer in a case where I represented a former municipal dispatcher. The court eventually remanded the case, and today, the court issued its decision awarding attorney fees. The attorney fee award includes the time that I worked on the case after rejecting the remand offer. 

Citing my Harris decision, the court ruled that whether the plaintiff should receive attorney’s fees after refusing an offer of remand depends on whether refusal was reasonable. Whether a plaintiff was reasonable in rejecting the SSA’s offer is determined based on plaintiff’s likelihood of success on the motion, by reviewing the underlying merits of the case. The court noted that the SSA argued, just as he did in Harris and my Pereira decision, that special circumstances warrant a reduction in the fees sought because the court granted the SSA’s motion for remand. However, the court held, “As the courts did in Harris and Pereira, the Court rejects this argument. Mr. Delott did achieve a different remedy and appreciable gains for plaintiff by rejecting the offer of remand.” Among other things, the court said that Plaintiff’s decision to reject the remand offer and to move for judgment on the pleadings was reasonable because the treating physician stated Plaintiff was incapable of full time sedentary work. 

The court also rejected the SSA’s argument that I started working on my opposition prematurely. Specifically, the court ruled that, “As the court found in Pereira, it was not ‘unreasonable of counsel to begin preparing motion papers, which are expected as a matter of course in most Social Security cases, before receiving the Commissioner’s motion papers.’” The end result is that the court awarded attorney fees for the entire 54.3 hours of work that was requested.

CIGNA Regulatory Settlement

I have been blogging for years about the bad faith tactics that the CIGNA insurance companies, including Life Insurance Company of North America, CIGNA Life Insurance of New York, and Connecticut General Life Insurance Company, have used to justify denying and terminating valid disability claims. As a result of CIGNA’s improperly denying and terminating  long-term disability claims on a systematic basis, state insurance regulators forced CIGNA  into a settlement requiring it to (a) aside $77 million to pay claims that should be approved, (b) pay $1.7 million in fines and administrative fees, and (c) pay $150,000 to cover the monitoring costs of the settlement agreement during the next two years. 

The $77 million fund has two components. $29 million of the fund is earmarked for the settlement of pending claims, while the remaining $48 million is intended to cover past claims that are being re-evaluated. The settlement agreement resulted from the same type of market conduct exams that led to the Unum reassessment several years.  In other words, there is no longer any doubt - CIGNA is as bad as Unum.

I have filed numerous complaints against CIGNA with the New York Insurance Department, and its successor, the Department of Financial Services.  I would strongly encourage anyone who has recently had, or is currently experiencing, a problem with a CIGNA disability claim in New York to file a complaint, which can be done online.

If Connecticut, California, Maine, Massachusetts and Pennsylvania insurance regulators can succeed in prosecuting CIGNA for its improper denials and terminations of disability benefits, then New York regulators should be able to do the same.  Even better yet, contact your New York State representative to push for legislation that would outlaw “discretionary” authority clauses in disability policies, which is the source for most of CIGNA’s abuse. Other States have already done so. New York’s Insurance Department had issued a rule in the past that banned discretionary clauses, but the Insurance lobby got it repealed.